When is evidence not evidence? When you appear before the Social Security Administration (SSA). Let me explain ...

Virtually everyone who reads this article will have taken a course on evidence or had a crash course in it over their years of practicing law. There are the basic federal rules of evidence which, for the most part, are followed by state rules of evidence. There are multiple rules against hearsay, rules for hearsay exceptions, and, of course, there is a whole raft of cases regarding admissible scientific or medical evidence. Those rules are consistently followed across virtually all fields of litigation.

At a Social Security hearing, however, you may hear an administrative law judge (ALJ) almost invariably begin with an opening statement that includes the words that “the usual rules of evidence do not apply.” However, just how far the SSA is allowed to depart from the usual rules of evidence takes on almost “Alice in Wonderland”-like dimensions when you review the variations.

If you were practicing Social Security law before March 2017, the treating physician rule was a standard that all practitioners memorized. In my experience, there was a Maslow-esque¹ hierarchy of evidence: that is, evidence from treating physicians was given the most deference, followed by evidence from consultative physicians (those who typically have seen a plaintiff only once), and finally evidence from non-examining physicians or psychologists. Those in the last category were, and are, employed by the SSA at the initial determination and reconsideration stages of a Social Security claim. They review medical records and come up with decisions regarding a plaintiff’s residual functional capacity (RFC). In the so-called olden days, one could reasonably look at those opinions as a floor as opposed to a ceiling. That is, ALJs would typically build upon those findings and then review and apply the evidence that came in at the hearing level. Frankly, most non-examining physicians got short shrift for good reason, especially since they could not have possibly reviewed all the evidence.

While Jones v. Astrue held that a treating physician’s opinion literally could not be discredited by the opinion of a non-examining physician,² it does point to an evidentiary problem: how can Social Security now place so much weight upon non-examining physicians when they cannot possibly have reviewed all of the evidence? To be complete, there is a fourth category of physician: the occasional medical expert who testifies at hearings. In the past, there were some local experts, meaning that one might have some knowledge or sense of how that doctor might be likely to testify. Now, however, they are like Forrest Gump’s proverbial box of chocolates: you never know what you will get. I had a hearing where the medical expert who testified had been suspended from practicing medicine, and a case in which the proposed medical expert had taught at Harvard Medical School for decades. Unlike the battles of experts common in many personal injury cases, Social Security does not differentiate between experts; superior credentials are rarely (if ever) discussed by ALJs in their decisions — after reviewing thousands of such decisions, I cannot recall such a statement. Thus, practitioners must try to shape or question a medical expert as best as he or she can without being able to rely on an opinion from an obviously superior doctor prevailing over other medical opinions.

The seminal case in the U.S. Sixth Circuit Court of Appeals on this issue was Gayheart v. Commissioner of Social Security.³ Gayheart emphatically reinforced the primacy of the treating physician and set forth several considerations that appear to survive the alleged extinction of the treating physician rule. Even if the treating physician rule is considered extinct (see below), Gayheart provides several guidelines that are seemingly useful with or without the treating physician rule. The Sixth Circuit remanded Gayheart while making several observations, including that the ALJ had given little weight to the opinion of a treating physician because that judge had simply described the findings as “inconsistent with other credible evidence” and the judge’s failure to provide good reasons for not following that opinion hindered meaningful review of the case on appeal.⁴

Furthermore, Wilson v. Commissioner of Social Security⁵ requires that the SSA follow its own procedural regulation to “give good reasons” for not giving weight to a treating physician in the context of a disability determination.⁶ Even if an ALJ does not afford the treating physician’s opinion controlling weight, it must be properly analyzed and take into account the seven specific factors set forth in the SSA rules.⁷ Simply saying that the opinion is not consistent with the record is not enough. Those sorts of holdings, though seemingly logical and providing a framework for evaluating medical evidence, were the targets of the SSA’s apparent effort to reduce the number of successful claims.

While the SSA also amended 20 CFR 404.1527 as part of its makeover, it really did not (and could not) eliminate the evidentiary considerations that existed before March 2017. Subsection (b) dutifully states that the SSA will “always consider the medical opinions in your case record together with the rest of the relevant evidence we receive.”⁸ Further, subsection (c)(1) states that a physician who actually has examined a plaintiff will generally receive more weight than a physician who has not done so, and (c)(2) adds that treating sources in general will be given more weight than consultative physicians or other sources.

So, what really has changed? Indeed, reading this portion of the regulations sounds like it echoes some of the principles set forth by Gayheart. And the new and allegedly improved section (d)(1) of 20 CFR 404.1527 maintains that the SSA essentially has the right to determine disability and, really, as ALJs often apply it, ignore statements of disability because that issue is the province of the SSA. Anyone practicing in this area will encounter clients who bring in letters from their doctors which simply state that their patients are disabled (or words to that effect) and clients are confounded about why they can’t win their cases with those letters; the best practice is to tell them not to get such letters and let you handle the issue. An overall review of the regulation demonstrates that very little really has changed regarding the proper consideration of evidence; however, one would not know that by reading the federal court briefs filed by the U.S. Attorney’s Office on behalf of the SSA. Some federal magistrates and judges have taken those arguments seriously despite the very thin strands of evidentiary sinew connecting them. And some ALJs now treat non-examining physician opinions as the evidentiary mountaintop due to the alleged familiarity of such doctors with SSA rules and regulations. Naturally, the SSA never provides proof of that familiarity, and this assumption of superiority is propagated despite the gigantic flaw in its logic — that non-examining doctors could not have reviewed all the evidence, especially the most recent evidence. Really, outside of being more updated, the same flaw plagues medical experts at hearings, especially now since they all testify remotely and, thus, have never laid eyes upon the plaintiff at the hearing (and some of them turn out to have a questionable grasp of the record.)

So, what’s a lawyer to do? Emphasizing the parts of Gayheart that impact how medical opinions must be treated is a good place to start since the case has never been overruled. Among other things, Gayheart stands for the proposition that the plaintiff’s ability to perform some activities is not sufficient to support a finding that such a person could perform work activities on a sustained basis.⁹ Furthermore, Gayheart said that regarding review of a treating physician’s opinion:

“We therefore conclude that the ALJ’s focus on isolated pieces of the record is an insufficient basis for giving [the treating physician’s] opinions little weight under 20 CFR § 404.1527(c).”¹⁰

When an ALJ fails to afford good reasons for discounting the opinion of a claimant’s treating physician, the Sixth Circuit has made clear that reversal and remand of a denial of benefits is warranted even though “substantial evidence otherwise supports the decision of the Commissioner.”¹¹

What is prevalent these days are ALJs discrediting treating opinions because there are some normal findings in their examinations. If you think about it, there are normal findings with persons who are near death, but I have seen psychological opinions ignored because a plaintiff seemed to be in touch with reality at office appointments with their primary care physicians. These so-called normal findings are accumulated to attempt to show that a treating physician/therapist must have issued unsupported opinion testimony by finding that a patient is disabled. Such reasoning would not get the time of day in a trial court and seems to contradict parts of the Gayheart case that could not be abolished by the attempted assassination of the treating physician rule. Social Security practitioners must be aware of these practices to avoid having clients ambushed by what appears to be the SSA’s effort to recast basic evidentiary law into a new (and highly anti-plaintiff) evidentiary paradigm.

One of those weapons could be the quite recent U.S. Fourth Circuit Court of Appeals case of Shelly C. v. Commissioner of Social Security.¹² In that case, the treating physician rule still applied, and the court catalogued the kind of evidentiary techniques mentioned above and absolutely condemned them all. The Fourth Circuit went on to note that it was joining “our sister Circuits’ growing conversation surrounding chronic diseases[.]”¹³ The entire opinion sounds a lot like Gayheart in terms of what is acceptable evidence and what is acceptable criticism of that evidence; despite what the SSA is saying, there is an ongoing debate in federal courts about how ALJs evaluate evidence and whether their techniques are acceptable. Practitioners should be prepared to challenge those techniques both at and in post-hearing briefs, but there is no excuse for simply accepting ALJ decisions using such reasoning to defeat valid claims. Indeed, the SSA’s insistence on its seemingly inverted evidentiary pyramid invites more federal litigation, meaning practitioners must lay the groundwork to pursue cases in those forums.

Part of an attorney’s job in this field is marshaling all relevant evidence and remembering that despite SSA efforts to the contrary, the federal courts have yet to decide definitively that the treating physician rule is dead. Since the SSA did not eliminate 20 CFR 404.1527 — and really, how could it? — we attorneys still are able to argue to the courts that the current and inconsistent evidentiary rules propounded by the SSA simply should not deprive clients of evidentiary rights they never lost.

Regarding the SSA, it’s best to paraphrase the immortal words of Pogo, the comic strip character created by Walt Kelly: “[Evidence] is not dead, it is merely unemployed.”¹⁴ Until and unless the Supreme Court eliminates the treating physician rule, let’s take the above information and keep it alive for the sake of our clients.