Tom Krause, NOSSCR Of-Counsel

The Evolution of the Treating Source Rule in Social Security Disability Claims (1979-1991)

Note: This is the second in a four-part series of articles on the history and development of the Treating Source Rule, the demise of the Rule, and prospects for the revival of the Treating Source Rule. Part I can be found here. At the end of the article is a link to a more thorough discussion of the topic.

The Treating Source Rule (also known as the Treating Physician Rule) represents one of the most significant developments in Social Security disability adjudication prior to 2017. This article traces how this vital doctrine evolved from judicial creation to formal codification between 1979 and 1991.

Foundational Principles (1979-1983)

As discussed in the first article in this series (NOSSCR Forum, March 2025), by 1979, courts had established that treating physicians’ opinions deserved special weight in disability determinations. The Second Circuit solidified this principle in Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980), declaring it “settled law in this circuit” that “in the absence of substantial contradictory evidence, the opinion of the claimant’s treating physician is binding on the Secretary [now the Commissioner].”

This early articulation contained two key elements: a procedural dimension requiring ALJs to help claimants develop adequate evidence from treating physicians, and a substantive rule establishing that treating physicians’ findings could not be disregarded without substantial contradictory evidence.

The principle was further reinforced in Harris v. Schweiker, 560 F. Supp. 1298 (S.D.N.Y. 1983), which emphasized that a treating physician’s opinion “is binding on the fact-finder unless contradicted by substantial evidence.” Similarly, Edwards v. Sec’y of Dep’t of Health & Hum. Servs. of U.S., 572 F. Supp. 1235 (E.D.N.Y. 1983) held that relying “almost exclusively” on laboratory results rather than treating physician evidence was “legally erroneous.”

Refinement of the Rule (1984-1988)

Courts increasingly emphasized the value of treating physicians’ longitudinal perspective. In Ceballos v. Bowen, 649 F. Supp. 693 (S.D.N.Y. 1986), the court noted that even a conclusory report by a treating physician “presumably rests upon encapsulated experience with the subject,” and therefore could not be rejected without providing the claimant an opportunity to submit more detailed information.

Maher v. Bowen, 648 F. Supp. 1199 (S.D.N.Y. 1986), similarly held that a treating physician’s opinion deserves “some extra weight” due to their unique position to evaluate the claimant’s condition over time.

During this period, courts also clarified limitations to the rule. Artrip v. Bowen, 651 F. Supp. 376 (S.D.N.Y. 1987), established that treating physicians’ opinions could be outweighed by substantial contradictory evidence, including opinions from consultative and non-examining physicians as well as treatment reports.

The Schisler Litigation: A Turning Point

The Schisler litigation represents a pivotal development in the rule’s evolution. In Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986), the Second Circuit addressed a class action challenging SSA’s failure to consistently apply the treating physician rule. The court articulated the rule as follows:

The treating physician rule provides that a treating physician’s opinion on medical disability is: (i) binding on the fact-finder unless contradicted by substantial evidence; and (ii) entitled to some extra weight because the treating physician is usually more familiar with a claimant’s medical condition than other physicians.

The court ordered SSA to draft and distribute instructions to all adjudicators within the Second Circuit to apply the treating physician rule. In Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988) (Schisler, 851 F.2d 43), the court reviewed SSA’s proposed instructional document, making significant revisions to ensure it accurately reflected the established rule.

The Road to Codification

In April 1987, responding to congressional mandate in Section 9 of PL 98–460 (HR 3755), PL 98–460, October 9, 1984, 98 Stat 1794, SSA published proposed regulations titled “Standards for Consultative Examinations and Existing Medical Evidence, 52 FR 13014-01). These regulations addressed the weight given to treating source opinions, providing that such opinions would be “conclusive” when “fully supported by medically acceptable clinical and laboratory diagnostic techniques” and not inconsistent with other substantial evidence.

After a four-year period of considering public comments, SSA published final regulations on Standards for Consultative Examinations and Existing Medical Evidence. 56 FR 36932-01 (August 1, 1991). The final rule made several key modifications:

1. Replaced “conclusive” with “controlling” and “fully supported” with “well-supported”
2. Clarified the need to recontact treating sources to complete records and resolve inconsistencies
3. Expanded the definition of “treating source” to include physicians who had treated claimants on an ongoing basis in the past
4. Established a hierarchy for weighing medical opinions based on the source’s relationship with the claimant
5. Specified factors for consideration when a treating source’s opinion wasn’t given controlling weight
6. Required “good reasons” when a treating source’s opinion wasn’t given controlling weight

These regulations remained essentially the same until 2017, when SSA published rules that eliminated the Treating Source Rule. But that’s a topic for another day.

BIBLIOGRAPHY

1. Social Security Disability Law & Procedure in Federal Court, by Carolyn A. Kubitschek and Jon C. Dubin, Second Circuit section excerpt (February 2024 Update)
2. “Treating Physicians Evidence in Social Security Disability Cases: What Does the Future Hold?” by Ethel Zelenske, Clearinghouse Review (May 1993)
3. “Demise of the Treating Physician Rule” by Jacques M. Farhi and Michael Stephen Stretton, III, NYSBA Health Law Journal (2021)

Download the document below for a more thorough discussion on this topic: