Tom Krause, NOSSCR Of-Counsel

The Death of the Treating Source Rule

This is the third in a series of four articles on the history and development of the Treating Source Rule. As with the two prior articles, a more detailed analysis of the issue follows this article.

For decades, the treating physician rule embodied sound medical and legal policy, recognizing a fundamental truth: doctors who observe patients over time possess qualitatively different and superior knowledge compared to those conducting brief examinations or reviewing files. The rule, codified in 20 C.F.R. §§ 404.1527(b) and 416.927(b), acknowledged that treating physicians who adjust medications, monitor treatment responses, and witness functional changes possess insights unavailable to consultative examiners or state agency reviewers.

As the Eleventh Circuit noted in Spencer v. Heckler,[1] attempting to evaluate disability without personal examination and longitudinal observation constitutes “medical sophistry at its best.” This principle wasn’t merely a regulatory preference—it reflected medical reality.

SSR 06-3p

Social Security Ruling 06-3p represented a sensible expansion of treating source principles to non-physician providers, such as nurse practitioners and physician assistants. The ruling preserved the core principle that ongoing treatment relationships offer unique insights as healthcare delivery evolves in a modern context. Critically, SSR 06-3p maintained a focus on relationship factors, including the length of treatment, frequency of examination, and the nature of the therapeutic relationship.

The 2013 ACUS Report

In April 2013, the Administrative Conference of the United States (ACUS) issued its final report on the treating source rule. ACUS, SSA Disability Benefits Programs: Assessing the Efficacy of the Treating Physician Rule (Apr. 3, 2013). The report documented high remand rates but fundamentally misinterpreted the data. Finding that federal courts remanded cases 45% of the time, with treating source issues as the primary reason, the report concluded the rule itself was defective rather than inconsistently applied.

This analysis conflated correlation with causation. The same statistics could have supported conclusions that better training, more precise guidance, and improved quality assurance were needed. The Appeals Council’s 24% remand rate for treating source issues demonstrated that administrative review could identify and correct ALJ errors, suggesting targeted solutions rather than wholesale elimination.

The 2017 Regulatory Overhaul

SSA published the Notice of Proposed Rulemaking in September 2016.[2] Despite overwhelming stakeholder opposition during the comment period, SSA proceeded to eliminate the treating source rule.[3] The final rule, published on January 18, 2017, replaced the hierarchical framework with the “persuasiveness” standard under 20 C.F.R. §§ 404.1520c and 416.920c.

What We Lost: The Medical Reality

The new framework treats all medical opinions as potentially equivalent, disregarding fundamental differences in their knowledge bases. A treating physician who has monitored a patient’s functional decline over the years, adjusted medications, and observed treatment responses is now evaluated using the same criteria as a consultative examiner who spends thirty minutes with the claimant.

The supportability and consistency factors, although superficially appealing, cannot fully capture the unique value of longitudinal knowledge about functional changes over time, treatment response patterns, and patient-specific factors that affect disability. The framework reduces complex medical relationships to standardized evaluation criteria, overlooking essential elements of treating physician insight.

The Consequences We’re Living With

The dual system created by the 2017 changes, where pre-March 27, 2017, cases follow the old rules while newer cases use the persuasiveness framework, creates an unnecessary administrative burden. More troubling, the new framework’s emphasis on subjective concepts like “supportability” and “consistency” creates opportunities for inconsistent decision-making disguised as objective evaluation.

Contrary to SSA’s predictions, federal court remand rates have increased to 58%, higher than the 45% rate that supposedly justified eliminating the treating source rule. This increase suggests that eliminating clear hierarchical standards has made consistent evaluation more difficult, not easier.

Conclusion

SSA could have addressed legitimate concerns while preserving the core principles of the treating source rule. Enhanced standards could have provided more explicit guidance on when opinions should be treated as credible or discredited. Enhanced training programs could have addressed inconsistencies in the application process. Quality assurance enhancements could have monitored rule application and identified adjudicators needing additional guidance.

The expansion of acceptable medical sources to include nurse practitioners, physician assistants, and audiologists was sound policy that could have been implemented while extending treating source protections to these qualified providers when they establish longitudinal relationships.

Instead, we are left with a system that treats our clients more harshly, leading to more appeals.

Next month: In the fourth installment of this series, we will examine litigation strategies to revise – and perhaps expand – the Treating Source Rule.

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[1]  Spencer on Behalf of Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) see Nelson v. Heckler, 712 F.2d 346, 348 (8th Cir. 1983). 

[2]  Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 FR 62560-01, 2016 WL 4702272 (September 9, 2016).

[3]  Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (January 18, 2017).

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