Effective March 27, 2017, Social Security has changed its long-standing policy about how it treats medical records and opinion evidence form your treating physician. Prior to March 27, 2017, evidence from your treating physicians would be given “controlling weight” by a Social Security adjudicator or judge.

Now, records and opinions from your long time treating doctors will be given no special weight. Instead, medical opinions from your treating doctor, consultative doctors and even non-examining medical consultants will be evaluated equally based on “persuasiveness.”

What does this change mean to you?

At first glance, this rule change seems to make no sense at all. Clearly a physician who has treated you for 10 years would have a more educated opinion about your capacity for work than a consultative doctor who met you once 2 years ago for 45 minutes, or a Social Security in house doctor who only knows you through his review of your medical records.

And, yes, there is a danger that a judge who has made up his mind not to approve your case will now have an easier time justifying a denial of your case.

My sense is that Social Security enacted this change because of concerns from lawmakers in Congress that too many claimants have been collecting disability for invisible diseases like:

• fibromyalgia
• chronic fatigue syndrome
• CRPS
• migraine headaches
• chronic idiopathic pain
• depression
• anxiety
• bi-polar disorder
• PTSD

Members of Congress also have expressed their concerns that claimants (and their lawyers) could go “doctor shopping” to find a physician who would issue a disability opinion supporting one of these invisible illnesses and because of the treating physician rule, Social Security judges had no choice but to approve.

Many lawmakers in Congress believe that too many claimants have been awarded disability based on subjective complaints like pain, fatigue, depression, anxiety and other symptoms that cannot be objectively verified. There have also been a few high profile cases (like the Eric Conn case in Kentucky) where corrupt doctors have issued disability statements for cash.

Social Security says that judges are supposed to look for consistency and supportability. I read this to mean that if you are alleging disability based on chronic pain, dizziness, fatigue, headaches or nausea that has no objective cause, you are going to need more than two or three doctor visits and a functional capacity evaluation. You are going to need years of documented treatment records to prove that your “invisible” impairment is real and that it is debilitating.

Similarly, if you are alleging disability based on depression, anxiety, bi-polar disorder, PTSD and other mental health issues, you are going to need long time treatment records from reputable mental health professionals and evidence of severity such as in-patient hospitalizations, suicide attempts, and unsuccessful treatments with multiple medications and other therapies like ECT.

I think that this new rule will have significant impact on cases where you are suffering from an “invisible illness” like fibromyalgia, chronic fatigue syndrome, CRPS and other idiopathic conditions that give rise to chronic pain, fatigue, nausea, vertigo and related symptoms.

Similarly, claimants alleging disability based on depression, anxiety, PTSD and other mental health conditions will find it more difficult to win disability.

I think that judges will be looking for:

• older (i.e. 50+) claimants
• compliance with all recommended treatment
• statements from treating physicians that recommended treatment has not been effectivein depression/anxiety/PTSD cases, judges will look for evidence of severe impairment, such as in-patient hospitalizations, suicide attempts, extreme treatment like electoshock or medications with potentially deadly side effects
• in fibromyalgia cases, judges will look for treatment records from a rheumatologist, treatment records from other specialists like gastrointerologists and psychiatrists
• long work histories – people with long, financially rewarding careers are less likely to stop work to pursue disability

I think that this new rule will have less impact in cases where your impairment can be more objectively verified. For example if you have congestive heart failure, chronic kidney disease, vascular disease with DVT, a failed back after multiple surgeries, multiple sclerosis and other conditions that can be seen using an MRI or CT scan, I think that most judges will continue to defer to the records and opinion evidence from long time treating doctors.

Because Social Security administrative law judges have to explain their decisions, we should soon see if judges are using this new rule to deny invisible illness cases. Clearly the trend over the past few years has been against approving claims that have no objective symptoms and this new rule codifies what many judges have already been doing.