Tom Krause, NOSSCR Of-Counsel

A Historical Perspective for Disability Advocates

(At the end of this article is a link to a more thorough discussion of these early cases and a bibliography)

From Judicial Innovation to Regulatory Standard

Most disability attorneys practicing today are familiar with the rise and fall of the Treating Physician Rule. We’ve adapted our practice to the post-2017 regulatory framework, where the special deference once afforded to treating source opinions has been significantly diminished. But how many of us understand the origins of this critical doctrine? Understanding the historical development of the Treating Physician Rule provides valuable context for today’s advocacy strategies and may offer ammunition for challenging the 2017 changes, given the Supreme Court’s recent Loper Bright decision. See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

The Early Days: Judicial Recognition (1959-1967)

The Treating Physician Rule wasn’t born from regulation; it emerged organically from the federal courts’ interpretation of the substantial evidence standard in the earliest disability cases following the 1956 amendments establishing the disability insurance program.

The Seventh Circuit’s 1959 decision in Teeter v. Flemming, 270 F.2d 871, 874 (7th Cir. 1959), laid the first cornerstone. The court recognized something any practicing attorney would find obvious: doctors who treat patients know more about their conditions than those who merely review papers. The court found that when a referee disregarded treating physicians’ conclusions to form his own medical opinions, the resulting decision lacked substantial evidence.

The following year, Judge Henry Friendly (a judicial giant whose influence extends far beyond Social Security law) reinforced this approach in Kerner v. Flemming, 283 F.2d 916, 921–22 (2d Cir. 1960). While not explicitly articulating a treating physician rule, Judge Friendly implicitly recognized that physicians with an ongoing relationship with their patients possess unique insights that should be accorded significant weight.

By 1962, the Fourth Circuit in Underwood v. Ribicoff, 298 F.2d 850, 851–52 (4th Cir. 1962), had distilled disability evaluation into four essential elements, placing treating physicians’ opinions front and center in the analysis:

1. Objective medical facts from treating or examining physicians
2. Diagnoses and expert medical opinions of treating physicians
3. Subjective evidence of pain and disability
4. The claimant’s educational background, work history, and age

This framework, cited repeatedly in subsequent decisions, explicitly positioned treating physicians’ opinions as a cornerstone of proper disability evaluation. The court recognized that “the expert medical opinion of treating or examining physicians on these subsidiary questions of fact will in most cases be essential in determining… the severity of an objectively determinable physical impairment.” Id. at 851.

Binding Effect: The Rule Takes Shape (1967-1972)

By the late 1960s, courts had moved beyond merely recognizing the importance of treating source opinions to explicitly declaring their binding effect absent substantial contradictory evidence.

In a remarkable example of judicial plain-speaking, the Southern District of Indiana held that “the expert opinions of plaintiff’s treating physicians as to plaintiff’s disability and inability to engage in any substantial, gainful employment are binding upon the referee if not controverted by substantial evidence to the contrary.” Walker v. Gardner, 266 F. Supp. 998, 1002 (S.D. Ind. 1967). The court didn’t mince words—treating physicians’ opinions weren’t merely “important” or deserving of “deference.” They were binding.

The Sixth Circuit was equally unequivocal in Branham v. Gardner, 383 F.2d 614, 630 (6th Cir. 1967), declaring that “the expert opinions of treating physicians as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary.” This statement established that administrative fact-finders couldn’t dismiss treating physicians’ opinions casually.

The rule was reinforced in 1971 when the Sixth Circuit highlighted treating physicians’ unique longitudinal perspective in Whitson v. Finch, 437 F.2d 728, 732 (6th Cir. 1971). The court recognized that physicians who treat patients over time have unique insight, particularly in chronic conditions: “The evidence of physicians who have been treating a patient over a long period and who state that he is totally incapacitated, is substantial evidence as compared with the evidence of physicians who have examined appellant on only one occasion.”

Cementing the Doctrine: Late 1970s Refinements

By the mid-1970s, the Treating Physician Rule had become firmly entrenched in disability jurisprudence. Courts continued to refine and strengthen the doctrine while addressing specific applications.

The Fourth Circuit’s decision in Wyatt v. Weinberger, 519 F.2d 1285, 1289 (4th Cir. 1975) reinforced that treating physicians’ opinions are binding unless contradicted by substantial evidence, cementing the treating physician’s central role in disability adjudication.

Perhaps most significantly, the Second Circuit’s seminal 1978 decision in Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978), articulated the enduring formulation of the rule: “The expert opinions of a treating physician as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary.” The court explained that treating physicians’ opinions deserve special weight because they reflect “an expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.”

The Bastien court also emphasized a crucial point for advocates to remember: when the record lacks contemporaneous medical evidence contradicting a treating physician’s opinions of disability, this represents a “serious deficiency in the record.” Id. at 912. This observation remains relevant today in challenging inadequately developed records.

Practical Lessons for Today’s Advocates

What can disability attorneys learn from this historical perspective?

First, the Treating Physician Rule wasn’t a regulatory invention but a judicial doctrine that emerged organically from the courts’ interpretation of the substantial evidence standard. It represented the courts’ common-sense recognition that physicians with ongoing treatment relationships possess unique, valuable insights.

Second, the judicial origins of the rule may provide ammunition for challenging the 2017 regulatory changes given the Supreme Court’s recent Loper Bright decision overturning Chevron deference. Courts originally created the rule to interpret what constitutes “substantial evidence” under 42 U.S.C. § 405(g). In that case, they may reassert their authority to interpret that statutory standard in the post-Chevron era.

Finally, the Treating Physician Rule’s principles remain persuasive even under current regulations. While treating source opinions no longer receive automatic preference, well-supported arguments emphasizing the longitudinal perspective and clinical insights of treating sources—the very factors courts recognized decades ago—can still carry significant weight.

The Treating Physician Rule’s rich judicial history reminds us that sometimes the most enduring legal principles emerge not from legislative mandates or regulatory pronouncements but courts recognizing fundamental truths about how evidence should be evaluated. Those truths haven’t changed—even if the regulations have.

Bibliography

Soc. Sec. Admin., Annual Statistical Report on the Social Security Disability Insurance Program (2017) (www.ssa.gov/policy/docs/statcomps/di_asr/2017/di_asr17.pdf)

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003)

Charles Terranova, Somebody Call My Doctor: Repeal of the Treating Physician Rule in Social Security Disability Adjudication, 68 Buff. L. Rev. 931, 945 (2020)

Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 Tex. L. Rev. 499, 545 (2011)

James A. Maccaro, The Treating Physician Rule and the Adjudication of Claims for Social Security Disability Benefits, 41 Soc. Security Reporting Service 833 (1993)