# Amicus Curiae Brief — Black & Decker Disability Plan v. Nord

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0606%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 822

## Text

[Sipe oe Court, US.
FILED

No. 02-469

In The

Supreme Court of the Guit
Sd

THE BLACK & DECKER DISABILITY PLAN,

Petitioner,

Vv.

KENNETH L. NORD,

Respondent.
e

On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

o

BRIEF OF THE NATIONAL ORGANIZATION
OF SOCIAL SECURITY CLAIMANTS’
REPRESENTATIVES AS AMICUS CURIAE
IN SUPPORT OF THE RESPONDENT

¢

On the brief: Nancy G. SHOR
ProF. ROBERT E. RAINS NATIONAL ORGANIZATION OF

THE PENNSYLVANIA STATE SOCIAL SECURITY

CLAIMANTS’
UNIVERSITY
DICKINSON SCHOOL OF LAW REPRESENTATIVES
Carlisle, Pennsylvania 6 Prospect Street
. Midland Park, New Jersey
JON HOLDER 07432
Portland, Maine (201) 444-1415

ERIC SCHNAUFER

1555 Sherman Avenue #303

Evanston, Illinois 60201

(847) 733-1232

Counsel of Record for
Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY -.

TABLE OF CONTENTS

Page
TABLES OF CON TERIN EG cvccccvcsscccccccscccccscccscsesccevccevees i
TABLE OF AUTHORITIES .................ccsseseceseeeeeeeeees iii
INTEREST OF AMICUS CURIAE NOSSCR.............. 1
SUMMARY OF ARGUMENT...............:cccccceeceeeeseeeeees 2
PITT Snsccnsvaccnssencscnssncsseenscasccesescnevecanensscoseseuee 3

I. Instead Of Trying To Identify Anew In Each
ERISA Case Principles To Guide The Considera-
tion Of Medical Opinions, The Ninth Circuit
Reasonably Adopted The Mature, Flexible Treat-
ing Physician Rule From Social Security Law.... 3

II. Social Security's Treating Physician Rule Is
A Response To The Need To Evaluate Medical
Opinions When Deciding Disability Claims
Administratively And When Undertaking
Judicial Review Of Denied Claims................. 5

III. The Mature, Flexible Treating Physician Rule Of
Social Security Law Meets Petitioner’s Objec-

TIT sccicicinccesicanianennimmatmnsensbeonenamieesteenssuotewtesecene 8
A. A Treating Physician Rule Accounts For
Specialization, Training, And Experience..... 8

B. Treating Physicians Provide Opinions That
Support And Detract From Claims Of

i ccccaccedsccssccosscoseccsscensscncssvessvossese 10
C. A Treating Physician Rule Accounts For Dif-
ferences Between Treating Physicians......... 12

D. A Treating Physician Rule Responds To
Allegations Of Advocacy And Bias........... 13

ii

TABLE OF CONTENTS — Continued
Page

E. A Treating Physician Rule Penalizes Ma-
BERRGROT EERE ...0000000csccensennessecnnnsensenelennnnnnnnal 15

F. Non-Lawyers And Lawyers Alike Can
Apply A Treating Physician Rule............. 16

G. Petitioner Mischaracterizes SSA’s Dis-
Qdility PYOGPORID ..111110scsscsssienseennene 18

1. The Plan And SSA Define Disability
In Terms of Past WOFR.....ccsccccccccscecsoes 18

2. SSA’s Treating Physician Rule Does Not
Place The Burden Of Persuasion On
SBI. .000cccnccescccusccnnssumneenaanneaea onitninidialy 22

H. A Treating Physician Rule Considers
Whether A Treating Physician Responds

To A Request For More Information ........ 24
IV. A Treating Physician Rule Is Compatible
With Deferential Judicial Review .................. 25

A. Petitioner Seeks Review Significantly
More Deferential Than Even Substantial
BE VIGORCS TROVEOW occccccsccossoianstaeanene 25

B. A Court Can Apply A Treating Physician
Rule And Respect A Factfinder’s Respon-
sibility To Resolve Evidentiary Conflicts. 28

CORO LATGIIN oo ccccscccscscesescossnccessesssuniinnsiianininanninial 30
APP TRIUIIER .0000cccccscscvscccnesseoenosenencsqnensnenssssnenenaeaneananannil la

Te 5

iii
TABLE OF AUTHORITIES

Page
CASES
Allen v. Heckler, 749 F.2d 577 (9th Cir. 1984)................... 29
Andrews v. Shalala, 53 F.3d 1035 (9th Cir. 1995)......... 7,12
Books v. Chater, 91 F.3d 972 (7th Cir. 1996) ................006. 15
Bowen v. Yuckert, 482 U.S. 137 (1987).................. 19, 23, 24
Brawner v. Secretary of Health and Human Servs.,

839 F.2d 432 (Oth Cir. 1968)..............ccccccccccccccccesseesssseees 16
Burkhart v. Bowen, 856 F.2d 1335 (9th Cir. 1988)............. i)
Butera v. Apfel, 173 F.3d 1049 (7th Cir. 1999) .................. 15
Buxton v. Hal*er, 246 F.3d 762 (6th Cir. 2001)............ 10, 11
Castellano v. Secretary of Health and Human

Servs., 26 F.3d 1027 (10th Cir. 1994) 0.00.0... cece 7
Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000)............... 7,27
Craig v. Chater, 76 F.3d 585 (4th Cir. 1996).................. 7,16
Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000)................ccccee 24
Curry v. Sullivan, 925 F.2d 1127 (9th Cir. 1991)............... 10
Davis v. Secretary of Health and Human Servs., 915

a 10
DeChirico v. Callahan, 134 F.3d 1177 (2d Cir. 1998)........ 10
Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995)... 13
Director, OWCP v. Greenwich Collieries, 512 U.S.

EE oseneesesecececesecsssscess 23
Dixon v. Massanari, 270 F.3d 1171 (7th Cir. 2001)........... 15

Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001) ....7, 16
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101

iv

TABLE OF AUTHORITIES -— Continued

Page
Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987).................... 14
Fuja v. Benefit Trust Life Ins. Co., 18 F.3d 1405 (7th
eID Tee cceiessiesiennaitinnsscerasittitaieannnsiaiianiitannaiiiisatttiniiaaiatatiiiadaaiidiaeedl 22
Gomez v. Chater, 74 F.3d 967 (9th Cir. 1996)..................... 7
Gossett v. Bowen, 862 F.2d 802 (10th Cir. 1988)................ 10
Griego v. Sullivan, 940 F.2d 942 (5th Cir. 1991)............... 10
Halpin v. W.W. Grainger, Inc., 962 F.2d 685 (7th
See Tee cecernininieriincnsenesnceniininieiintaitinisabasiaianiaitaiiipimetaiapametanaias 5
Heckler v. Campbell, 461 U.S. 458 (1983) ..............cee 24
Heckler v. Day, 467 U.S. 104 (1984) ............ccccccccceeeeeeeeeeees 17
Her v. Commissioner of Social Security, 203 F.3d
RE 24
Holohan v. Massanari, 246 F.3d 1195 (9th Cir.
a nccnshinsnsnndemisantenieninedinmiiiiidaeepebtsimemaneiaaneanatte 7,11
Horton v. Reliance Standard Life Ins. Co., 141 F.3d
RC ED We ccerernccnsncnsncsnmnssssensintnntennsntetnnnseend 22
Jones v. Department of Health and Human Servs.,
be) ee 10
Lester v. Chater, 81 F.3d 821 (9th Cir. 1995)...................... 7
Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001)...................... 12
Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997)............. 7
Loza v. Apfel, 219 F.3d 378 (5th Cir. 2000).................00.000. 7
Magallanes v. Bowen, 881 F.2d 747 (9th Cir.
Pirie cenenecsnnsnnssnnshaneuminnsmnenntaimanniadenmumntepsienaens 7, 11, 27, 29
Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993)............ 9,13
Mastro v. Apfel, 270 F.3d 171 (4th Cir. 2001).............. 16, 29

TABLE OF AUTHORITIES -— Continued

Page
Matney ex rel. Matney v. Sullivan, 981 F.2d 1016

Re EE SI cncecnsenerecemnicnstinsicnsenininiibaainnsendemmueniniinn 12
Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993)............. 10
Micus v. Bowen, 979 F.2d 602 (7th Cir. 1992) ................... 15
Moncada v. Chater, 60 F.3d 521 (9th Cir. 1995)................ 10
Moore v. Sullivan, 919 F.2d 901 (5th Cir. 1990)................. 4
Morgan v. Commissioner of Social Security Admin.,

169 F.3d 595 (Sth Cir. 1999)................ccccccccccesesssesesereeees 7
Murray v. Heckler, 722 F.2d 499 (9th Cir. 1983)................ 6
Nelson v. Sullivan, 966 F.2d 363 (8th Cir. 1992)................ 7
Osenbrock v. Apfel, 240 F.3d 1157 (9th Cir. 2001)............. 10
Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001)........ 20, 23
Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999) .................. 7
Prosch v. Apfel, 201 F.3d 1010 (8th Cir. 2000)................... 27
Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998)................ 14
Regennitter v. Commissioner of Social Sec. Admin.,

166 F.3d 1294 (Sth Cir. 1999)...................ccccccccceseeeeeeseees 7
Reynolds v. Bowen, 844 F.2d 451 (7th Cir. 1988) .............. 15
Richardson v. Perales, 402 U.S. 389 (1971)................. 11, 29
Saelee v. Chater, 94 F.3d 520 (9th Cir. 1996)..................... 14
Sandgathe v. Chater, 108 F.3d 978 (9th Cir. 1997)........... 16
Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998)....................4. 13
Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988)

EE nenssensssaninmesunininsnesnnnnmmmempmapenineaepenintnanetenes 6

Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993)
ia ee 5, 7, 26

TABLE OF AUTHORITIES — Continued

Page
Schweiker v. Gray Panthers, 453 U.S. 34 (1981)............... 24
Shramek v. Apfel, 226 F.3d 809 (7th Cir. 2000)................. 10
Singh v. Apfel, 222 F.3d 448 (8th Cir. 2000)...................... 9
Skidmore v. Swift & Co., 323 U.S. 134 (1944)................... 17
Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996)......... 7,9, 25
Sobolewski v. Apfel, 985 F. Supp. 300 (E.D. N_Y.

Se niesehesciepiiihlieaiiiatnsinaiaiaticnitehataababinaataaraineaamancaiatal 10
Stanley v. Secretary of Health and Human Servs.,

fF 29
Stephens v. Heckler, 766 F.2d 284 (7th Cir. 1985)............. 15
Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986)................ 26
Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999).................. 24
Thomas v. Barnhart, 278 F.3d 947 (9th Cir. 2002)............ 28
Thomas v. Commissioner of Social Security, 294

F.3d 568 (3d Cir. 2002), cert. granted, 71 U.S.L.W.

3390 (U.S. Feb. 24, 2003) (No. 02-763) ..0..........0:cccceeeeeee 19
Tidwell v. Apfel, 161 F.3d 599 (9th Cir. 1998) ................... 24
Tonapetyan v. Halter, 242 F.3d 1144 (9th Cir. 2001).........28
Universal Camera Corp. v. NLRB, 340 U.S. 474

(BIB) a0 2ccecesccsscsseseccssesssoscvesssssescussseoseosoocssssoceocsessocses 26, 28
Walters v. Commissioner of Social Security, 127

IY STI cnantnicnntncnetisnmieionbnniiiinieenmenens 7
Washington State Dep’t of Social and Health Servs.

v. Guardianship Estate of Keffeler, 123 S. Ct.

SIET Taritnnntsiiennrenedinnemsniniieniintinasienaiamiapriaiemmemenmeiauads 17
White v. Barnhart, 287 F.3d 903 (10th Cir. 2001) ............. 13

vii

TABLE OF AUTHORITIES — Continued

Page

Williams v. Shalala, 997 F.2d 1494 (D.C. Cir. 1993)......... 29
Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996)............... 20
Wolfe v. Shalala, 997 F.2d 321 (7th Cir. 1993) .................. 11
STATUTES
NN Oi TTT ss ssessiniticeneiteiiceadeeenidnibnitaadtianeaitidainiieal 22
Ss Oe CII cacincnsnienncsenastennenivintneinininininnteveentanmaninisil 28
rs I siccnnticnsnsciiniemnesnninnmeimmaientin 3, 4, 6, 25, 29
es BE citneirnccnnsecnnnncennniatsiseemaienensneninainemetiiiiid 4,5
er icreternnennncsnsnsienisinmmaiess 19
ee ee Si iiceninensecsccttssmennsmntenmniinneiians 1
a re i irastrsnertnensenictesnnienmsmemmenes 1
Employee Retirement Income Security Act of 1974,

29 U.S.C. § 1001 ef Seq. ..ecccccccecescescsssssesesssesessessseseseseeeeee 1
REGULATIONS
ey ee i ircencnentcennnvsnncentninnnssmnnnnmaineel 20
Ga BSG Be Ce cccncsccccccscceceseceessenscneseseneses 13, 17
20 C.F.R. § 404.16 12(e) (QOOR) ........0eccccccccoscrccccseesesesesoosees 24
20 C.F.R. § 404.1513(a)(4) (2002)...........-cseecsseeeesneesssneeesnes 10
20 C.F.R. § 404.1520(e) (2002) ..............ccccereerrrececsssereecseees 19
20 C.FR. § 404.1527 (2002) .......0....ccccccseeseeseeseereeees passim
20 C.F.R. § 404.1527(c)3) (2002)............cceecccceeeeeseeeeeeeeeeees 25
20 C.F.R. § 404.1527(d)(2) (2002)...........cccccececeseeeeeeeeeeeneees 13

20 C.F.R. § 404.1527(d)(2)ii) (2002)... eeeeeeceereeceneeeneees 9

Vili

TABLE OF AUTHORITIES - Continued

Page
20 C.F.R. § 404.1527(d)(3) (2002)...........cccseeeeeseerereeeeeees 9,16
20 C.F.R. § 404.1527(d)(4) (2002)...........ceecceeeeeeeeeeeeeeeeeeees 26
20 C.F.R. § 404.1527(d)(5) (2002)..........cccseeeeseeeeeeeeeseeeeenees )
ee Oe ciniciccricnsecestrncicnssnennioniniscsieninnn 17
a a OO a Cr icccnsecvcsnccsccecessccscccccnnenesernsesenes 17
ee I GD cernrcnesentencsncssntemnnesmmnnenees 7
20 C.F.R. § 416.927(a)( 1) (2OOD)..............cseseccccsccesesssesssreeees 18
29 C.F.R. § 2560.503-1(h)(3) (2002). .........ccccccceeeereeeeeeeeeeeees 4
29 C.F.R. § 2560.503-1(h)(4) (2002) .........ccccccceeecceeeeseeeeeeeees 4
OTHER AUTHORITY
EE 6
ey Fe re eR ccnnnescccesecencsstsessssssencenescescsccanses 24
eS Fe eR ceseccccccesssnsscesssnscecscesscsssssessuneenss 4
65 Fed. Reg. 70,269 (2000)........ -— EO ne TT 4
Acquiescence Ruling 00-4(2) ..............ccccccsseeseeeeeeeeeeeeeneeeees 24
Office of Human Resources and Statistics, Admin.
Office of the U.S. Courts, Federal Judicial
Caseload Statistics (Mar. 2002) .............::ccccccsseeeeeeeeeeeees 29
Program Operations Manual System DI 24501 005......... 17
Program Operations Manual System DI 24515................ 17

Rachel Schneider, A Role for the Courts: Treating
Physician Evidence in Social Security Disability
Determinations, 3 U. Chi. L. Sch. Roundtable 391

ix

TABLE OF AUTHORITIES — Continued

Page
Richard J. Pierce, Administrative Law Treatise
STU iccidissihienbieaieiiiiabaniitdaeeiae iil 26
Social Security Advisory Bd., Disability Decision
Making: Data and Materials (Jan. 2001) .................00+. 17
Social Security Ruling 82-62 ...................cccccsesseeseeseeeeeeees 20
Social Security Ruling 96-5p ...................cccccceseeeeeees mideinial 23

1

INTEREST OF AMICUS CURIAE NOSSCR'

The National Organization of Social Security Claim-
ants’ Representatives (NOSSCR) is a non-profit corpora-
tion. NOSSCR members. represent claimants. in
administrative proceedings for claims for federal benefits —
primarily disability benefits — under Titles II and XVI of
the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f,
and represent in civil litigation plaintiffs for Social Secu-
rity benefits whose claims were denied administratively.
NOSSCR members commonly represent claimants not
only for Social Security benefits, but also for benefits
under the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. § 1001 et seg. As amicus curiae,
we present to the Court the interests both of our members
who represent ERISA claimants and those ERISA claim-
ants themselves. Our members and their clients have an
interest in the full and fair review of claims for ERISA
benefits. NOSSCR has filed amicus briefs in several prior
cases to assist the Court by presenting the viewpoints of
our members and their clients.

Additionally, NOSSCR members have vast experience
with the well-established “treating physician rule” of
Social Security law. This case involves the application of a
treating physician rule in the ERISA context. We seek to
assist the Court in its analysis of a treating physician rule

" The parties have consented to the filing of this amicus brief in
support of Respondent. Counsel for a party did not author this brief in
whole or in part. No person or entity, other than the amicus curiae, its
members, or its counsel made a monetary contribution to the prepara-
tion or submission of this brief.

2

in the ERiSA context based on our experience with the
treating physician rule of Social Security law.

¢

SUMMARY OF ARGUMENT

Judicial review of a plan administrator’s denial of
ERISA disability benefits typically involves consideration
of medical opinions from treating and non-treating physi-
cians. Neither the ERISA statute nor ERISA regulations
explain how a court should consider various medical
opinions when ruling on a challenge to a plan administra-
tor’s denial of ERISA disability benefits. Given this void
and the necessity to consider medical opinions, the Ninth
Circuit reasonably adopted the treating physician rule of
Social Security law as part of the common law of ERISA.
Social Security law has a mature, flexible treating physi-
cian rule well-suited to guide judicial review of a plan
administrator’s denial of ERISA disability benefits.

Petitioner purportedly identifies serious defects in
Social Security’s treating physician rule. For example,
Petitioner contends that the rule does not take into ac-
count a physician’s specialty. On the contrary, Social
Security's treating physician rule requires consideration of
a physician’s specialty. Social Security's treating physician
rule does not have the defects Petitioner alleges.

Petitioner maintains that Social Security’s treating
physician rule is inappropriate for ERISA because, unlike
Petitioner’s ERISA plan, Social Security does not define
disability in terms of past work, and because, unlike
ERISA, the burden of persuasion in Social Security cases
is not on the claimant. Petitioner thereby mischaracterizes
Social Security’s definition of disability and burden of
persuasion.

a et ee

3

Petitioner also objects generally to a treating physi-
cian rule on the ground that it is incompatible with defer-
ential judicial review, including deference to a factfinder’s
resolution of a conflict in the medical evidence. The ex-
perience of the lower courts reviewing administrative
denials of Social Security disability benefits under 42
U.S.C. § 405(g) refutes this objection. For more than a
decade, the lower courts have applied Social Security’s
treating physician rule when undertaking deferential
substantial evidence review of administrative denials of
Social Security disability benefits.

For these reasons, the Ninth Circuit correctly adopted
Social Security’s treating physician rule as the common
law of ERISA for judicial review of a plan administrator’s
denial of ERISA disability benefits.

¢

ARGUMENT

I. Instead Of Trying To Identify Anew In Each
ERISA Case Principles To Guide The Considera-
tion Of Medical Opinions, The Ninth Circuit
Reasonably Adopted The Mature, Flexible Treat-
ing Physician Rule From Social Security Law

Respondent must satisfy the definition of disability
set forth in the Black & Decker Disability Plan (Plan) in
order to receive ERISA disability benefits. The Plan
defines disability in terms of an employee’s medical
conditions and his ability to work. (L. 20.) Under the Plan,
an employee is disabled during the first thirty months of
disability if he cannot perform his regular occupation due
to his mental and/or physical conditions. (L. 20.) There-
fore, consideration of medical opinions is intrinsic both to
the determination of disability by a plan administrator

4

and to judicial review of a plan administrator’s denial of
benefits. The same is true in the context of disability
benefits under the Social Security Act. Consideration of
medical opinions is intrinsic both to the administrative
determination of claims for Social Security disability bene-
fits, see 42 U.S.C. § 423(d), and to judicial review of adminis-
trative denials of claims for those benefits, see 42 U.S.C.
§ 405(g). Faced with the recurrent issue of how to consider
medical opinions on judicial review of denials of ERISA
disability benefits, the Ninth Circuit reasonably adopted the
“treating physician rule” from Social Security law.

Although the ERISA statute does not address this
recurrent issue, the Courts of Appeals are authorized to
craft a common law for ERISA to fill the statutory void.
See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
110-11 (1989). Inasmuch as the Secretary of Labor did not
anticipate in the 2000 regulations this recurrent issue of
how to weigh conflicting medical opinions, it is necessary
for the courts to provide a reasonable framework for
dealing with this common situation. Nothing in the Secre-
tary of Labor’s implementing regulations (the current
version of which does not specifically apply to the instant
case, see 65 Fed. Reg. 70,246 (2000)) provides any guid-
ance in this area.’ Hence, contrary to the position of the
Solicitor General, it cannot reasonably be argued that
judicial imposition of a treating physician rule interferes
with the “primary jurisdiction” of the Secretary of Labor.
(U.S. Br. 11.) The Ninth Circuit reasonably filled the

* Addressing a different concern, the Department of Labor’s 2000
regulations state that an ERISA plan administrator shall consult with
a health care professional. 65 Fed. Reg. 70,269 (2000); 29 C.F.R.
§ 2560.503-1(h)(3)-(4) (2002).

5

statutory and regulatory void with the mature, flexible
treating physician rule from Social Security law. (Petition
App. 13.) Cf. Halpin v. W.W. Grainger, Inc., 962 F.2d 685,
695 n.11 (7th Cir. 1992) (“Although the standards used in
adjudicating social security cases are not applicable under
ERISA, the guiding principles developed in those cases
may be ‘instructive’ in ERISA cases.”). By adopting the
mature, flexible treating physician rule from Social Secu-
rity law, the Ninth Circuit eliminated the need to decide
anew in each case the appropriate rules for weighing
medical opinions. Instead, guided by the treating physi-
cian rule, a court can focus on the facts of a particular
ERISA case to determine on de novo or deferential judicial
review whether the court should overturn the denial of
disability benefits. Utilizing the treating physician rule
from Social Security law for judicial review of denials of
ERISA disability benefits thus promotes principled deci-
sionmaking and judicial economy. Accordingly, this Court
should approve of the application of a treating physician
rule in ERISA cases without prejudice to the right of the
Secretary of Labor to address this matter by regulation.
Cf. Schisler v. Sullivan, 3 F.3d 563, 567-69 (2d Cir. 1993)
(Schisler III) (holding that Social Security’s new regula-
tory treating physician rule superseded prior Second
Circuit treating physician caselaw).

II. Social Security’s Treating Physician Rule Is A
Response To The Need To Evaluate Medical
Opinions When Deciding Disability Claims
Administratively And When Undertaking Ju-
dicial Review Of Denied Claims

Because disability under the Social Security Act is based
on a claimant’s medical condition, see 42 U.S.C. § 423(d),
Social Security Administration (SSA) adjudicators must

6

evaluate medical opinions from treating and non-treating
physicians. For the same reason, federal courts must
consider medical opinions when deciding whether to affirm
or reverse administrative denials of Social Security dis-
ability benefits. See 42 U.S.C. § 405(g). By the mid-1980s,
almost all of the Courts of Appeals had adopted a treating
physician rule for Social Security cases. See Rachel
Schneider, A Role for the Courts: Treating Physician
Evidence in Social Security Disability Determinations, 3 U.
Chi. L. Sch. Roundtable 391, 396-400 (1996) (surveying
caselaw). Under the rule, more weight is generally owed to
the opinion of a treating physician than a non-treating
physician because a treating physician has more opportu-
nity to observe and know his patient and because the
treating physician is responsible for providing medical
care. See, e.g., Murray v. Heckler, 722 F.2d 499, 501-02
(9th Cir. 1983). Unlike other Circuits, the Second Circuit's
rule in the 1980s was absolutist, stating that a treating
physician’s opinion was sometimes “binding.” Schisler v.
Bowen, 851 F.2d 43, 47 (2d Cir. 1988) (Schisler II). In 1991,
the Agency issued a regulatory treating physician rule for
three reasons: to announce that independent of caselaw a
treating physician rule is appropriate; to summarize its
agreement with caselaw principles; and to accept the
Second Circuit’s invitation to set forth a nationwide rule.
See 56 Fed. Reg. 36,934 (1991); see also 20 C.FR.
§ 404.1527 (2002)° (codifying as amended SSA's treating
physician rule) (set forth in Appendix of this Brief).

* The regulations for claims under Title II of the Social Security
Act are at 20 C.F.R. Part 404. We do not cite parallel regulations for
claims under Title XVI of the Social Security Act at 20 C.F.R. Part 416.

In Schisler III, the Second Circuit held that the 1991
regulations superseded prior Second Circuit law. 3 F.3d at
569. Today, other Circuits cite interchangeably their
caselaw and the 1991 regulations.‘ Petitioner argues that
the Ninth Circuit “does not follow the SSA rule, even in
SSA cases.” (Pet. Br. 20 (citing Morgan v. Commissioner of
Social Security Admin., 169 F.3d 595, 600, 601 (9th Cir.
1999); Lester v. Chater, 81 F.3d 821, 831-32 (9th Cir. 1995);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)).)
By this, Petitioner means that the Ninth Circuit utilizes
its own caselaw treating physician rule instead of 20
C.F.R. § 404.1527 (2002). On the contrary, the Ninth
Circuit follows 20 C.F.R. § 404.1527 (2002) as well as its
caselaw. See Edlund v. Massanari, 253 F.3d 1152, 1157
(9th Cir. 2001) (citing 20 C.F.R. § 404.1527).° Because
there is no substantive difference between Ninth Circuit
caselaw and SSA regulations, the Ninth Circuit correctly

* See, e.g., Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)
(citing caselaw and 1991 regulations); Craig v. Chater, 76 F.3d 585, 590
(4th Cir. 1996) (same); Loza v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000)
(same); Walters v. Commissioner of Social Security, 127 F.3d 525, 529-
30 (6th Cir. 1997) (same); Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.
2000) (same); Nelson v. Sullivan, 966 F.2d 363, 367-68 (8th Cir. 1992)
(sane); Castellano v. Secretary of Health and Human Servs., 26 F.3d
10./, 1029 (10th Cir. 1994) (same); Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997) (same).

* See also Holohan v. Massanari, 246 F.3d 1195, 1202, 1205, 1207
(9th Cir. 2001) (citing 20 C.F.R. § 404.1527); Regennitter v. Commis-
sioner of Social Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)
(same); Lester, 81 F.3d at 832-33 (same); Smolen v. Chater, 80 F.3d
1273, 1285, 1288 (9th Cir. 1996); Gomez v. Chater, 74 F.3d 967, 971 (9th
Cir. 1996) (same); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995) (citing 20 C.F.R. § 416.927).

8

cites interchangeably its own caselaw and SSA regula-
tions.* Although Ninth Circuit caselaw and SSA's regula-
tions are the same, we generally discuss below Ninth
Circuit caselaw and SSA's regulations separately, demon-
strating that there is no substantive difference between
Ninth Circuit caselo« and SSA’s regulations and that even
if Ninth Circuit case’ aw were different from SSA’s regula-
tions, both Ninth Circuit and SSA law meet Petitioner’s
objections to a treating physician rule.

Ill. The Mature, Flexible Treating Physician Rule
Of Social Security Law Meets Petitioner’s Ob-
jections

A. A Treating Physician Rule Accounts For
Specialization, Training, And Experience

Petitioner objects to a treating physician rule because
it places an “almost insurmountable burden on the plan
administrator who believes that the treating physician’s
opinion is erroneous.” (Pet. Br. 45.) As a main example
arguing against a treating physician rule, Petitioner
asserts that a plan administrator would have a great and
difficult burden refuting a podiatrist’s opinion that a
claimant was disabled by throat cancer. (Pet. Br. 45; see
also id. 14-15, 29 (stating that a treating physician rule
does not take into account a physician’s training and
experience).) This example is not a serious challenge to a
treating physician rule. Under the Ninth Circuit’s treating
physician rule, as well as SSA's treating physician rule,
the specialty of a physician must be considered when

* The Solicitor General does not allege that any Ninth Circuit
decision is inconsistent with the 1991 regulations.

—— OPES ~ a 4
-

9

evaluating the physician’s opinion. See Smolen, 80 F.3d at
1285 (“the opinions of a specialist about medical issues
related to his or her area of specialization are given more
weight than the opinions of a nonspecialist.”); 20 C.F.R.
§ 404.1527(d)(5) (2002) (“We generally give more weight to
the opinion of a specialist about medical issues related to
his or her area of specialty than to the opinion of a source
who is not a specialist.”).’ Similarly, under the Ninth
Circuit’s and SSA’s treating physician rules, the nature of
a podiatrist’s treating relationship with a claimant as well
as the podiatrist’s clinical findings would be taken into
account and would likely provide solid grounds to reject
the podiatrist’s opinion about throat cancer. See Burkhart
v. Bowen, 856 F.2d 1335, 1139 (9th Cir. 1988) (ratifying
rejection of treating physician’s opinion unsupported by
“medical findings, personal observations or test reports”);
20 C.F.R. § 404.1527(d)(2)(ii) (2002) (“For example, if your
ophthalmologist notices that you have complained of neck
pain during your eye examinations, we will consider his or
her opinion with respect to your neck pain, but we will
give it less weight than that of another physician who has
treated you for the neck pain.”); 20 C.F_R. § 404.1527(d\(3)
(2002) (“The more a medical source presents relevant
evidence to support an opinion, particularly medical signs
and laboratory findings, the more weight we will give that
opinion.”). In fact, an ALJ or plan administrator would
normally be justified in dismissing out of hand a podia-
trist’s opinion about a claimant’s disability due to throat

" See also Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000)
(specialist’s opinion is generally owed more weight); Mason v. Shalala,
994 F.2d 1058, 1066-67 (3d Cir. 1993) (same); Moore v. Sullivan, 919
F.2d 901, 905 (5th Cir. 1990) (same).

10

cancer. Cf. 20 C.F.R. § 404.1513(a)(4) (2002) (acknowledg-
ing licensed podiatrists as “acceptable” medical sources
only “for purposes of establishing impairments of the foot,
or foot and ankle”); Sobolewski v. Apfel, 985 F. Supp. 300,
312 (E.D. N.Y. 1997) (similar).

B. Treating Physicians Provide Opinions
That Support And Detract From Claims Of

Disability

Petitioner maintains that the Ninth Circuit’s treating
physician rule “effectively puts a ‘thumb on the scale’ in
favor of the claimant. ... ” (Pet. Br. 47.) A treating physi-
cian rule is not a one-sided rule in favor of claimants.
Treating physicians commonly provide opinions that are
probative evidence that their patients do not satisfy the
relevant legal standard of disability. See Osenbrock v. Apfel,
240 F3d 1157, 1165 (9th Cir. 2001) (affirming denial of
benefits based on treating physician’s opinion); Moncada uv.
Chater, 60 F.3d 521, 523 (9th Cir. 1995) (same); Matthews v.
Shalala, 10 F.3d 678, 680-81 (9th Cir. 1993) (same); Curry v.
Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1991) (same).”

Treating physicians routinely report not only that
their patients can work — perhaps with restrictions such

* See also Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001)
(affirming denial of benefits based on treating physician’s opinion);
Shramek v. Apfel, 226 F.3d 809, 814-15 (7th Cir. 2000) (same);
DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998) (same); Jones
v. Department of Health and Human Servs., 941 F.2d 1529, 1533 (11th
Cir. 1991) (same); Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991)
(same); Davis v. Secretary of Health and Human Servs., 915 F.2d 186,
189 (6th Cir. 1990) (same); Gossett v. Bowen, 862 F.2d 802, 807 (10th
Cir. 1988) (same).

11

as a limitation on lifting heavy objects — but also that their
patients should work. See, e.g., Richardson v. Perales, 402
U.S. 389, 391 (1971) (treating physician “advised that [the
claimant] return to work”). In fact, the very purpose of
much medical treatment is to restore a claimant’s ability
to work. Petitioner assumes without empirical or rational
basis that treating physicians see themselves as protecting
their patients from the workforce instead of helping their
patients reach their maximum work capacities and con-
tinue or renew productive lives in the workforce.

Along the same lines, Petitioner asserts that the

‘Ninth Circuit’s treating physician rule “assumes that

there is only one treating physician’s opinion,” (Pet. Br.
28), and cannot function reasonably if opinions from more
than one treating physician conflict (Pet. Br. 29). Neither
the Ninth Circuit’s treating physician rule nor SSA's
assumes that a claimant has only one treating physician.
And both rules handle easily cases with opinions, includ-
ing conflicting opinions, from more than one treating
physician. See Holohan, 246 F.3d at 1201-05 (applying
Ninth Circuit law and 20 C.F.R. § 404.1527 in case with
more than one treating physician); Magallanes, 881 F.2d
at 751-55 (applying Ninth Circuit law while resolving
conflicting opinions from more than one treating physi-
cian).” In fact, in a typical disability case there are a series
of opinions about various conditions from several treating
physicians such as a treating orthopedist and a treating
psychiatrist. See, e.g., Perales, 402 U.S. at 390-408 (two

* See also Buxton, 246 F.3d at 773-75 (ALJ reasonably weighed the
opinions of several treating sources); Wolfe v. Shalala, 997 F.2d 321,
325-26 (7th Cir. 1993) (same).

12

treating physicians, five one-time examining physicians,
and one non-examining physician). If it were true that a
treating physician rule cannot reasonably be applied when
there is more than one treating physician, the Courts of
Appeals and SSA would have abandoned the treating
physician rule years ago.

C. A Treating Physician Rule Accounts For
Differences Between Treating Physicians

In Petitioner’s view, the Ninth Circuit’s treating
physician rule has serious infirmities. According to Peti-
tioner, in the Ninth Circuit the opinion of a physician who
“‘treated’ a patient one time is afforded the same weight
as that of a physician who has been treating the patient
through the entire course of his impairment.” (Pet. Br. 28.)
The Ninth Circuit’s rule allegedly does not take into
account “the length of time” a physician has treated a
claimant. (Pet. Br. 14.) The Ninth Circuit’s treating physi-
cian rule is not so simple-minded and irrational. Instead,
the Ninth Circuit’s treating physician rule permits rea-
soned evaluation of a treating physician’s opinion based on
the extent of the treating relationship. See, e.g., Lewis v.
- Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (addressing the
precise extent of a treating physician’s contact with a
claimant); Andrews, 53 F.3d at 1040 (rejecting claimant’s
argument that a psychologist who examined him four
times but did not treat his condition was a treating
source); Matney ex rel. Matney v. Sullivan, 981 F.2d 1016,
1020 (9th Cir. 1992) (holding that ALJ properly gave less
weight to opinion of a treating physician who examined

opt RI

13

the claimant only once). The regulations are no different.
See 20 C.F.R. § 404.1527(d\(2) (2002) (evaluating treating
physician opinions based on the “[lJength of the treatment
relationship,” the “frequency of examination,” and the
“(njJature and extent of the treatment relationship”); 20
C.F.R. § 404.1502 (2002) (defining “treating source” as a
physician or psychologist who had or has an “ongoing
treatment relationship” with a claimant).

D. A Treating Physician Rule Responds To
Allegations Of Advocacy And Bias

Petitioner contends that a treating physician rule is
unwarranted because the rule does not account for a
treating physician’s presumed advocacy for his patient (by
falsifying medical records and opinions) and presumed
bias against his patient working. (Pet. Br. 29-33.) But
Petitioner fails to address how the treating physician rule
actually deals with allegations of advocacy or bias.

The Ninth Circuit has considered several times
whether a treating physician’s opinion may be rejected or
given less weight on the ground that a claimant asked his
treating physician to provide an opinion to obtain private

” See also White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001)
(approving giving less weight to the opinion of a treating physician
whose treatment relationship was “relatively brief”); Schaal v. Apfel,
134 F.3d 496, 504 (2d Cir. 1998) (noting that the relevance of a treating
physician’s opinion depends on the length of the treatment); Diaz v.
Shalala, 59 F.3d 307, 314-15 (2d Cir. 1995) (ALJ properly gave less
weight to the opinion of a treating specialist who had only examined the
claimant several times); Mason, 994 F.2d at 1067 (ALJ erroneously
implied that a physician who examined the claimant once was a

treating physician).

14

or public disability benefits. The Ninth Circuit’s treating
physician rule has evolved so that it is able to evaluate
reasonably allegations of advocacy or bias based on facts
in particular cases instead of assumptions that treating
physicians are deceitful. In Saelee v. Chater, 94 F.3d 520
(9th Cir. 1996), the Ninth Circuit affirmed an ALJ’s
rejection of a treating physician’s opinion on the ground
that the treating physician attempted to assist the claim-
ant “in obtaining social security benefits.” Jd. at 522. The
ALJ correctly found that the treating physician relied too
heavily on the claimant’s subjective statements and that
an objective basis for the treating physician’s opinion was
lacking. Jd. at 523. Later, in Reddick v. Chater, 157 F.3d
715 (9th Cir. 1998), the Ninth Circuit clarified that a
treating physician’s opinion could not be dismissed merely
because the physician was asked to provide an opinion:
“(I]In the absence of other evidence to undermine the
credibility of a medical report, the purpose for which the
report was obtained does not provide a legitimate basis for
rejecting it.” Jd. at 726. Petitioner thus could have chal-
lenged the opinions of Respondent’s treating physicians
within the treating physician rule itself. But within the
treating physician rule, Petitioner needed evidence, not
assumptions, to show that the opinions of Respondent’s
treating physicians were unsupported and incredible. Id.”

As a related matter, Petitioner seems to argue that
the Seventh Circuit (correctly) presumes in Social Security
cases that a claimant’s treating physician is a partisan

" See also Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987)
(finding that ALJ did not cite any evidence to support allegation that a
family physician “naturally advocates his patient’s cause”).

15

advocate for finding his patient disabled: “‘The patient’s
regular physician may want to do a favor for a friend and
client, and so the treating physician may too quickly find
disability.’” (Pet. Br. 32 (quoting Stephens v. Heckler, 766
F.2d 284, 289 (7th Cir. 1985)).) In Micus v. Bowen, 979 F.2d
602 (7th Cir. 1992), the Seventh Circuit clarified that its
decisions in Stephens and another case” do “not create a
presumption of bias in a treating physician’s disability
opinion; the cases recognize only the ALJ’s ability as a
trier of fact to consider a physician’s possible bias.” Jd. at
609. Furthermore, the Seventh Circuit does not under-
stand Stephens as inconsistent with a treating physician
rule: the Seventh Circuit cites Stephens along with SSA’s
regulations when evaluating medical opinions. See Dixon
v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001) (citing
Stephens, 766 F.2d at 289, and 20 C.FR. § 404.1527);
Butera v. Apfel, 173 F.3d 1049, 1056 (7th Cir. 1999) (same);
Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996) (same).

E. A Treating Physician Rule Penalizes Ma-
lingering

Petitioner believes that the treating physician rule
places an adjudicator, plan administrator, and reviewing
court at the mercy of a malingering claimant and his
corrupt treating physician conspiring with the malingerer
to obtain undeserved benefits.” (Pet. Br. 25, 32.) Peti-
tioner’s belief is unfounded. The treating physician rule
does not allow a malingering claimant to obtain benefits

* Reynolds v. Bowen, 844 F.2d 451 (7th Cir. 1988).

* Petitioner does not assert that Respondent himself is malinger-
ing. (Pet. Br. 1-48.)

16

by misleading his treating physician or conspiring with his
treating physician to obtain benefits fraudulently. Instead,
when there is evidence that a treating physician’s opinion
is not based on clinical findings but on a claimant’s voli-
tional misrepresentation, the treating physician’s opinion
should be discounted. See Edlund, 253 F.3d at 1157 (af-
firming rejection of treating physician’s opinion when
treating physician was unaware that the claimant exag-
gerated his complaints to seek pain medication); Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (affirming rejec-
tion of treating physician’s opinion when claimant’s “psycho-
logical problems may have been volitional”); Brawner v.
Secretary of Health and Human Servs., 839 F.2d 432, 433-
34 (9th Cir. 1988) (affirming rejection of treating physi-
cian’s opinion because it was based on claimant’s unreli-
able statements); 20 C.F.R. § 404.1527(d\3) (2002) (“The
more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory
findings, the more weight we will give that opinion.”)
(emphasis added).”

F. Non-Lawyers And Lawyers Alike Can Ap-
ply A Treating Physician Rule

According to Petitioner, a treating physician rule
should not be applied in the ERISA context because a “lay
ERISA plan administrator” lacks the training of an SSA

“ See also Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (ALJ
properly rejected treating physician’s opinion when the treating
physician’s “diagnosis was based largely upon the claimant’s self-
reported symptoms”); Craig, 76 F.3d at 590 (ALJ properly rejected
treating physician’s conclusory opinion based on claimant’s subjective
complaints).

17

ALJ and thus, supposedly, lacks the training and ability to
apply a treating physician rule. (Pet. Br. 21.) Petitioner
misunderstands SSA’s administrative process. The SSA
uses a four-tier administrative process in which a de novo
hearing before an ALJ is the third step. See 20 C.F.R.
§ 404.900 (2002) (describing four tiers); Heckler v. Day, 467
U.S. 104, 106-107 (1984) (same). At the first and second
tiers of the administrative process, non-lawyer “disability
examiners” make disability determinations applying the
same treating physician rule as ALJs at the third tier.”
Just as non-lawyer SSA disability examiners can apply a
treating physician rule, lay ERISA plan administrators
can apply a treating physician rule.

For a similar reason, Petitioner’s allegation that a
treating physician rule would require plan administrators
“to engage legal counsel to review their benefit denials” is
baseless. (Pet. Br. 14.) Nothing in the Ninth Circuit’s
treating physician rule or SSA's treating physician rule is

‘* Program Operations Manual System (POMS) DI 24501.005 (The
Disability Determination Services (DDS) Disability Examiner’s (DE’s)
Role In the Determination Process), at http://policy.ssa.gov/poms.
nsf/poms?OpenView; see also Washington State Dep't of Social and
Health Servs. v. Guardianship Estate of Keffeler, 123 S. Ct. 1017, 1025-
26 (2003) (noting that the POMS warrants respect under Skidmore v.
Swift & Co., 323 U.S. 134, 139-140 (1944)).

** See 20 C.F.R. § 404.1502 (2002) (regulations apply to all levels of
adjudication); 20 C.F.R. § 404.985(a) (2002) (adverse caselaw applies to
all levels of adjudication); POMS DI 24515 (Specific Medical Evaluation
Instructions) (instructions to disability examiners to follow the regula-
tory treating physician rule).

In Fiscal Year 2000, disability examiners made 1,988,425 determi-
nations. Social Security Advisory Bd., Disability Decision Making: Data
and Materials (Jan. 2001), at Chart 67, at http//www.ssab.
gov/chartbookB. pdf.

18

so arcane or technical that it cannot be readily mastered
by a plan administrator. Any plan administrator with the
ability to understand and effectuate an ERISA benefits
plan surely has the ability to understand and apply a
treating physician rule. (See L. 15-30 (Black & Decker’s
sixteen-page disability plan).)

G. Petitioner Mischaracterizes SSA’s Disabil-
ity Programs

As justification for not applying in the ERISA context
the Ninth Circuit’s treating physician rule from Social
Security law, Petitioner purports to identify major differ-
ences between SSA's definition of disability and Peti-
tioner’s definition of disability in its ERISA plan. (Pet. Br.
23.) Petitioner’s argument is based on a mischaracteriza-
tion or misunderstanding of SSA's disability program.

1. The Plan And SSA Define Disability In
Terms of Past Work

Petitioner argues that a “decision by a plan adminis-
trator that an employee is disabled from his own occupa-
tion is entirely different than an ALJ’s decision in an SSA
case that a person is disabled from ‘any substantial gainful
activity.’” (Pet. Br. 22-23 (emphasis in original) (quoting 20
C.F.R. § 416.927(a)(1) (2002)).) This is incorrect. The Black

& Decker Disability Plan has two definitions of disability..

For the first thirty months, a claimant is disabled if he
cannot perform his “regular occupation.” (Petition App. 3;
L. 20.) Beginning with the thirty-first month, disability is
defined as the “complete inability (whether physical and/or
mental) of a participant to engage in any gainful occupa-
tion.” (Petition App. 3; L. 20.) This case involves a claim of
disability during the first thirty months. (Pet. Br. 3.) The

oe Stank 1 (Gerona pra

19

plan’s definition of disability during the first thirty months
as a claimant’s inability to perform his “regular occupa-
tion” is virtually identical to step four of SSA’s well-known
five-step sequential evaluation, for which the test is
whether a claimant can do his “past relevant work”:

Your impairment(s) must prevent you from doing

past relevant work. If we cannot make a decision

based on your current work activity or on medi-

cal facts alone, and you have a severe impair-

ment(s), we then review your residual functional

capacity and the physical and mental demands of

the work you have done in the past. If you can

still do this kind of work, we will find that you

are not disabled.
20 C.F.R. § 404.1520(e) (2002) (step four); see also Bowen
v. Yuckert, 482 U.S. 137, 141-42 (1987) (summarizing
sequential evaluation). Step four is the regulatory expres-
sion of the Social Security Act’s provision that a claimant
is not disabled if he can perform his “previous work.” 42
U.S.C. § 423(d)(2)(A).

Petitioner argues that the “own occupation,” i.e.,
regular occupation, disability test of the Black & Decker
Disability Plan “requires knowledge and information
about that occupation,” while SSA’s test does not. (Pet. Br.
23.) On the contrary, when SSA determines at step four
whether a claimant can do his past relevant work, SSA
gathers information about the mental and physical de-
mands of that occupation. See Social Security Ruling (SSR)

” The Court granted this Term the Solicitor General’s petition for
a writ of certiorari to review the Third Circuit’s construction of step
four. Thomas v. Commissioner of Social Security, 294 F.3d 568 (3d Cir.
2002), cert. granted, 71 U.S.L.W. 3390 (U.S. Feb. 24, 2003) (No. 02-763).

20

82-62:" see also Pinto v. Massanari, 249 F.3d 840, 845 (9th
Cir. 2001) (applying SSR 82-62); Winfrey v. Chater, 92 F.3d
1017, 1024 (10th Cir. 1996) (same). Determining whether a
claimant can do his past relevant work at step four neces-
sarily requires knowledge of the demands of that past
work.

Petitioner’s underlying contention based on a plan
administrator’s need to know about the demands of a
claimant’s regular occupation — and an SSA adjudicator’s
supposed lack of need to know about demands of past work
— appears to be that a treating physician’s opinion is
worthless because the treating physician is unfamiliar
with the demands of the claimant’s regular occupation.
(Pet. Br. 23.) Petitioner’s argument is ill-founded.

First, a claimant or plan administrator would simply
need to provide a treating physician with relevant facts
about a claimant’s regular occupation to ensure that the
treating physician addressed the claimant’s ability to do
his regular occupation. Petitioner assumes that the treat-
ing physician not only lacks relevant information about
the claimant’s regular occupation, but also that he cannot
be provided with and assimilate that information. Peti-
tioner’s argument is not an argument against a treating
physician rule. It is merely a good reason to provide the
treating physician with the relevant information and to
ask the treating physician relevant questions.

Second and more significantly, a treating physician
can provide an opinion relevant to a determination of

* At http//www.ssa.gov/OP_Home/rulings/. Social Security Rulings
announce agency-wide policy, and are binding on agency adjudicators. 20
C.F.R. § 402.35(b) (2002).

—-.

21

whether the claimant can do his regular occupation (past
work) even if the treating physician knows nothing about
the claimant’s regular occupation. For example, if a
treating physician opines that a claimant cannot lift more
than five pounds and if the claimant’s regular occupation
requires lifting more than five pounds, the treating physi-
cian’s opinion is evidence that the claimant cannot do the
lifting that his regular occupation requires. Here, Respon-
dent’s treating physician Dr. Hartman opined that Re-
spondent could not lift more than five pounds (L. 53), and
Respondent’s regular occupation as a material planner
required lifting up to twenty pounds (L. 143). Therefore,
Dr. Hartman’s opinion was evidence that Respondent
could not do the lifting that his regular occupation of
material planner required. Thus, Petitioner’s criticism of
Dr. Hartman as not knowing “the essential functions of
the position of a material planner” misses the point. (Pet.
Br. 35.) Once Dr. Hartman specified Respondent’s func-
tional limitations (L. 53), it became a straightforward task
to compare those limitations to the known requirements of
Respondent’s regular occupation as a material planner (L.
143). For the same reason, Petitioner’s allegation that Dr.
Hartman’s opinions were not relevant to ascertaining
whether Petitioner could work as a material planner has
no basis in fact or logic. (Pet. Br. 45.) Petitioner’s objec-
tions to the treating physician rule do not withstand even
superficial review.”

" Petitioner suggests, “Some persons with limited physical
capacity outperform persons with no limitations; there is no direct
relationship between a person’s physical capacity and a person’s work
capacity.” (Pet. Br. 36.) This is a non sequitur. What Petitioner appar-
ently is trying to say is that there is no absolute relationship between

(Continued on following page)

22

2. SSA’s Treating Physician Rule Does
Not Place The Burden Of Persuasion
On SSA

A claimant for ERISA disability benefits bears “the
burden of proving that he is entitled to a benefit under 29
U.S.C. § 1132(aX1\B).” (Pet. Br. 39 (citing Horton v.
Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th
Cir. 1998); Fuja v. Benefit Trust Life Ins. Co., 18 F.3d 1405,
1408 (7th Cir. 1994)).) Petitioner relies on a supposed
difference in the burden of proof between claims for ERISA
and Social Security disability benefits as reason not to
utilize a treating physician rule in the judicial review of
denials of ERISA benefits. (Pet. Br. 23; see also id. 15, 45.)
Petitioner’s argument rests on an erroneous evaluation of
the burden of proof in SSA proceedings. According to
Petitioner, a treating physician rule is compatible with
SSA proceedings because in those proceedings the “burden
is ultimately on the SSA, and not the claimant, to prove

the severity of a claimant’s medical diagnosis and a claimant’s func-
tional limitations. If true, this basic proposition is reason for a treating
physician rule because a treating physician is best situated to assess
how an individual claimant’s medical diagnosis actually affects the
claimant’s ability to function. In contrast, an examining physician or
non-examining physician might consider every claimant as an average
or typical case. A treating physician is best suited to know whether a
medical diagnosis of a specific severity has more or less impact on an
individual claimant than in the average case.

But Petitioner does not consistently suggest or argue that there is
no correlation between the severity of a claimant’s medical diagnosis
and the claimant’s functional limitations. In fact, Petitioner apparently
argues for reliance on Dr. Mitri’s independent medical examination
precisely because Dr. Mitri supposedly could deduce from the severity
of Petitioner’s medical diagnoses Respondent’s functional limitations.
(Pet. Br. 33, 44.)

ee sr

23

that the claimant is not totally disabled from any substan-
tial gainful activity.” (Pet. Br. 23.) Petitioner cites a foot-
note in Yuckert, which refers to the “burden of proof” in
SSA proceedings as shifting to SSA at step five. (Pet. Br.
23 (citing Yuckert, 482 U.S. at 146 n.5).) But it is settled
law that a claimant for Social Security benefits has the
burden of persuasion through step four in SSA proceed-
ings, the analogous step of SSA's five-step sequential
evaluation to Petitioner’s “regular occupation” ERISA
disability standard relevant to this case. See Pinto, 249
F.3d at 844 (“At step four, claimants have the burden of
showing that they can no longer perform their past rele-
vant work.”). Because SSA applies its treating physician
rule at step four when determining a claimant’s residual
functional capacity, see 20 C.F.R. § 404.1527 (2002); SSR
96-5p,” it cannot be true that a treating physician rule
shifts the burden of persuasion to the adjudicator or plan
administrator. There is no tension between SSA's treating
physician rule and an SSA claimant’s burden at step four
to persuade SSA that he cannot do his past relevant work.
Although there has been a treating physician rule in
Social Security law for decades, Petitioner does not cite a
single case holding that SSA’s treating physician rule
cannot be applied at step four of the five-step sequential
evaluation because at step four the claimant, not SSA, has
the burden of persuasion.”

* At http://www.ssa.gov/OP_Home/rulings/.

“ The burden of proof includes the burden of production of
evidence and the burden of persuasion. Director, OWCP v. Greenwich
Collieries, 512 U.S. 267 (1994). In Yuckert, this Court recognized that
SSA has the authority to define through regulation the burden of proof
in Social Security disability proceedings. Yuckert, 482 U.S. at 146 n.5

(Continued on following page)

24

H. A Treating Physician Rule Considers
Whether A Treating Physician Responds
To A Request For More Information

Petitioner sets forth as an objection to a treating
physician rule that the Ninth Circuit below did not con-
sider that Respondent did not provide additional information
from a treating physician when the plan administrator asked
Respondent to submit examining physician Dr. Mitri’s
report to a treating physician for comment. (Pet. Br. 44.)
This is no defect in the treating physician rule. Under that
rule, an adjudicator, plan administrator, and court may
consider the fact that a claimant did not respond to a
request to provide additional information from a treating
physician. See Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir.
1998) (approving an ALJ's rejection of a treating physician’s
opinion because the treating physician gave an inadequate
response to a request for additional information); 20 C.F.R.

(citing Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981)). In footnote
five of Yuckert, this Court did not distinguish between the burdens of
production and persuasion, stating broadly that the Agency “is required
to bear this burden [of proof] only if the sequential evaluation process
proceeds to the fifth step.” Yuckert, 482 U.S. at 146 n.5. This Court
referred to the shifting burden of production of vocational evidence from
the claimant to the Agency at step five. Jd.; see also Heckler v. Camp-
bell, 461 U.S. 458 (1983) (describing the Agency’s burden to provide
evidence of jobs at step five); Tackett v. Apfel, 180 F.3d 1094, 1098 n.3
(9th Cir. 1999) (describing “elusive” nature of shifting burden of proof in
SSA proceedings). This Court in Yuckert did not reach the issue of
whether a claimant or SSA has the burden of persuasion at step five.
On this issue, the Circuits are split. Compare Curry v. Apfel, 209 F.3d
117, 122-23 (2d Cir. 2000) (placing burden of persuasion on SSA at step
five); Acquiescence Ruling 00-4(2), 65 Fed. Reg. 54,879 (2000) (SSA
disagreement with Curry), with Her v. Commissioner of Social Security,
203 F.3d 388, 391 (6th Cir. 1999) (placing burden of persuasion on
claimant at step five). There is no need to reach the issue in this case.

oe ee ri SE

25

§§ 404.1512(e), 404.1527(c\3) (2002) (regulatory procedure
for recontacting a treating physician).

IV. A Treating Physician Rule Is Compatible With
Deferential Judicial Review

A. Petitioner Seeks Review Significantly
More Deferential Than Even Substantial
Evidence Review

Petitioner erroneously asserts that application of a
treating physician rule is incompatible with deferential
judicial review such as abuse of discretion review or
substantial evidence review. (Pet. Br. 24-25.) For example,
Petitioner protests that the Ninth Circuit’s treating
physician rule is inconsistent with deferential substantial
evidence review because the Ninth Circuit requires either
clear and convincing reasons or specific and legitimate
reasons to justify rejection of a treating physician’s opin-
ion. (Pet. Br. 24.) Neither the Ninth Circuit nor any other
Circuit has understood the application of a treating
physician rule to require more than substantial evidence
in order to justify affirmance of an administrative denial of
Social Security benefits. Nor could it, given the Social
Security Act. See 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if sup-
ported by substantial evidence, shall be conclusive”). And
the Ninth Circuit’s treating physician rule does not re-
quire more than substantial evidence to support a denial
of benefits: it requires exactly “substantial evidence” to
support a denial of benefits. See, e.g., Smolen, 80 F.3d at
1286. The Ninth Circuit correctly does not understand its
treating physician rule in the Social Security context as
overriding the statutorily prescribed substantial evidence
standard of review. 42 U.S.C. § 405(g).

26

In support of its argument that the Ninth Circuit’s
treating physician rule is incompatible with substantial
evidence review, Petitioner seems to rely on Richard J.
Pierce’s Administrative Law Treatise (2002), in which
Pierce supposedly criticizes the Second Circuit’s treating
physician rule. (Pet. Br. 28 n.12, 41 (citing Administrative
Law Treatise, §§ 9.10, 11.3).) Pierce objects in part to the
Second Circuit’s rule described in Stieberger v. Bowen, 801
F.2d 29, 31 (2d Cir. 1986). See Administrative Law Treatise
§§ 9.10, 11.3. This is no longer the Second Circuit’s rule. In
Schisler III, the Second Circuit held that its prior treating
physician caselaw was superseded by SSA’s regulations
promulgated in 1991. 3 F.3d at 569. The Second Circuit
now has a mature, flexible treating physician rule that
aids judicial review under the substantial evidence stan-
dard. Id. (following 20 C.F.R. § 404.1527 (2002)).

Deferential judicial review such as substantial evi-
dence review is based on the “whole” evidentiary record.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 481-89
(1951). Petitioner attacks the treating physician rule as
inconsistent with deferential review of the “entire medical
record.” (Pet. Br. 24.) On the contrary, a treating physician
rule neither prevents nor discourages reasoned considera-
tion of the whole record. The treating physician rule itself
emphasizes consideration of the whole record. See 20
C.F.R. § 404.1527(d)(4) (2002) (“Generally, the more
consistent an opinion is with the record as a whole, the
more weight we will give to that opinion.”) (emphasis
added). In order to assess whether an adjudicator or plan
administrator properly accepted or rejected a treating
physician’s opinion, it is necessary to review the treating
physician’s opinion in the context of the other record
evidence, including the treating physician’s clinical find-
ings, other medical opinions and findings, and non-medical

27

facts. See Magallanes, 881 F.2d at 751-55 (affirming denial
of benefits after review of the “whole” record, including
multiple medical opinions and findings from various
physicians).”

Instead of inhibiting consideration of the whole record
on deferential judicial review, a treating physician rule
focuses the court’s attention on important evidence:
treating physician opinions. In almost all cases involving a
determination of disability based on a medical condition, a
claimant’s treating physician’s opinion deserves thoughtful
consideration even if the court’s ultimate conclusion is to
ratify the adjudicator’s or plan administrator’s rejection or
endorsement of the treating physician’s opinion. The
mature, flexible treating physician rule as set forth in
Ninth Circuit caselaw and SSA regulations aids a court’s
review of the whole record because it identifies for the
court important evidence. This rule neither requires nor
implies that evidence other than a treating physician’s
opinion must or should be ignored.

In any case, Petitioner does not welcome deferential
review based on the whole record. Petitioner is hostile to
deferential review based on the whole record. As the Ninth
Circuit described in its decision below, Petitioner main-
tains that a plan administrator need not consider any
evidence contrary to the plan administrator’s chosen
result:

* See also Clifford, 227 F.3d at 871 (medical opinions are evalu-
ated with “all relevant evidence”) (emphasis in original); Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (a treating physician’s
opinion is evaluated “in light of the record as a whole”).

28

Because the issue of an apparent conflict of in-
terest was litigated below, Black & Decker re-
ceived ample opportunity to demonstrate that its
termination of Nord’s benefits was free from con-
flict by advancing sound reasons for its denial of
benefits. It has provided none. Rather, it has
simply asserted at every turn, and again before
this Court, that it was under no duty to consider
evidence that was unfavorable to its determina-
tion, whether coming from Nord’s physicians or
from its own human resources representative. .. .
(Petition App. 14 (emphasis added).) This position is
unreasonable and a breach of a plan administrator’s
fiduciary duty to provide “full and fair” review. 29 U.S.C.
§ 1133(2). Moreover, it is inconsistent with this Court’s
jurisprudence of deferential judicial review emphasizing
consideration of the “whole” record, including evidence
that “detracts” from the disputed finding. Universal

Camera Corp., 340 U.S. at 488.

B. A Court Can Apply A Treating Physician
Rule And Respect A Factfinder’s Respon-
sibility To Resolve Evidentiary Conflicts -

Petitioner contends that the Ninth Circuit’s treating
physician rule impedes or prevents a plan administrator
from weighing conflicting evidence. (Pet. Br. 47.) This is
not an argument against the Ninth Circuit’s treating
physician rule. The Ninth Circuit’s treating physician rule
neither impedes nor prevents the weighing of conflicting
evidence, but rather requires the reasonable resolution of
evidentiary conflicts. See Thomas v. Barnhart, 278 F.3d 947,
956-57 (9th Cir. 2002) (affirming finding of non-disability
based on the reasonable resolution of conflicting medical
opinions); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

oe 2 ee

29

Cir. 2001) (holding that ALJ properly resolved a conflict
among medical opinions when rejecting a claimant’s
allegations); Magallanes, 881 F.2d at 751-55 (affirming
finding of non-disability based on the reasonable resolu-
tion of conflicting medical opinions); Allen v. Heckier, 749
F.2d 577, 579 (9th Cir. 1984) (same).”

Petitioner’s argument if correct would be astonishing.
There are more than 15,000 civil actions annually chal-
lenging SSA’s administrative decisions denying claims of
disability.“ See 42 U.S.C. § 405(g). If Petitioner were
correct, the lower courts could not both enforce SSA’s
treating physician rule, see 20 C.F.R. § 404.1527 (2002),
and respect a factfinder’s responsibility to weigh conflict-
ing evidence, see Perales, 402 U.S. at 399 (“We therefore
are presented with the not uncommon situation of conflict-
ing medical evidence. The trier of fact has the duty to
resolve that conflict.”). But the lower courts discharge both
duties every day.

* See also Mastro, 270 F.3d at 179 (affirming ALJ’s rejection of
treating physician’s opinion given conflicting evidence); Stanley v.
Secretary of Health and Human Servs., 39 F.3d 115, 118 (6th Cir. 1994)
(ALJ reasonably resolved conflict among a treating physician’s opin-
ions); Williams v. Shalala, 997 F.2d 1494, 1499 (D.C. Cir. 1993)
(affirming rejection of treating physician’s opinion given “contradictory”
evidence).

* Office of Human Resources and Statistics, Admin. Office of the
U.S. Courts, Federal Judicial Caseload Statistics (Mar. 2002), Table C3,
at http//www.uscourts.gov/caseload2002/contents.html. About 700
district-court dispositions under 42 U.S.C. § 405(g) annually are
appealed to the Courts of Appeals. Jd. at Table B7.

30

CONCLUSION

The judgment of the Court of Appeals for the Nir*h
Circuit should be affirmed.

Respectfully submitted,
On the brief: Nancy G. SHOR
Pror. RoBERT E. RAINS NATIONAL ORGANIZATION OF
SOCIAL SECURITY
THE PENNSYLVANIA STATE ;
UNIVERSITY DICKINSON CLAIMANTS
S Law REPRESENTATIVES
ie ton —— 6 Prospect Street
Carlisle, Pennsylvania Midland Park, New Jersey
JON HOLDER 07432
Portland, Maine (201) 444-1415
ERIC SCHNAUFER
1555 Sherman Avenue #303

Evanston, Illinois 60201

(847) 733-1232

Counsel of Record for
Amicus Curiae

la

APPENDIX
20 C.F.R. § 404.1527 (2002), provides in full:

(a) General.

(1) You can only be found disabled if you are unable
to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of
not less than 12 months. See § 404.1505. Your impairment
must result from anatomical, physiological, or psychologi-
cal abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.
See § 404.1508.

(2) Evidence that you submit or that we obtain may
contain medical opinions. Medical opinions are statements
from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature
and severity of your impairment(s), including your symp-
toms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental
restrictions.

(b) How we consider medical opinions. In deciding
whether you are disabled, we will always consider the
medical opinions in your case record together with the rest
of the relevant evidence we receive.

(c) Making disability determinations. After we
review all of the evidence relevant to your claim, including
medical opinions, we make findings about what the
evidence shows.

2a

(1) If all of the evidence we receive, including all
medical opinion(s), is consistent, and there is sufficient
evidence for us to decide whether you are disabled, we will
make our determination or decision based on that evi-

dence.

(2) If any of the evidence in your case record, includ-
ing any medical opinion(s), is inconsistent with other
evidence or is internally inconsistent, we will weigh all of
the evidence and see whether we can decide whether you
are disabled based on the evidence we have.

(3) If the evidence is consistent but we do not have
sufficient evidence to decide whether you are disabled, or
if after weighing the evidence we decide we cannot reach a
conclusion about whether you are disabled, we will try to
obtain additional evidence under the provisions of
§§ 404.1512 and 404.1519 through 404.1519h. We will
request additional existing records, recontact your treating
sources or any other examining sources, ask you to un-
dergo a consultative examination at our expense, or ask
you or others for more information. We will consider any
additional evidence we receive together with the evidence

we already have.

(4) When there are inconsistencies in the evidence
that cannot be resolved, or when despite efforts to obtain
additional evidence the evidence is not complete, we will
make a determination or decision based on the evidence

we have.

(d) How we weigh medical opinions. Regardless of its
source, we will evaluate every medical opinion we receive.
Unless we give a treating source’s opinion controlling
weight under paragraph (d)(2) of this section, we consider

3a

all of the following factors in deciding the weight we give
to any medical opinion.

(1) Examining relationship. Generally, we give more
weight to the opinion of a source who has examined you
than to the opinion of a source who has not examined you.

(2) Treatment relationship. Generally, we give more
weight to opinions from your treating sources, since these
sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objec-
tive medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source’s opinion
on the issue(s) of the nature and severity of your impair-
ment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsis-
tent with the other substantial evidence in your case
record, we will give it controlling weight. When we do not
give the treating source’s opinion controlling weight, we
apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii)
of this section, as well as the factors in paragraphs (d)(3)
through (d)(6) of this section in determining the weight to
give the opinion. We will always give good reasons in our
notice of determination or decision for the weight we give
your treating source’s opinion.

(i) Length of the treatment relationship and the
frequency of examination. Generally, the longer a treating
source has treated you and the more times you have been
seen by a treating source, the more weight we will give to
the source’s medical opinion. When the treating source has
seen you a number of times and long enough to have

4a

obtained a longitudinal picture of your impairment, we
will give the source’s opinion more weight than we would
give it if it were from a nontreating source.

(ii) Nature and extent of the treatment relationship.
Generally, the more knowledge a treating source has about
your impairment(s) the more weight we will give to the
source’s medical opinion. We will look at the treatment the
source has provided and at the kinds and extent of exami-
nations and testing the source has performed or ordered
from specialists and independent laboratories. For exam-
ple, if your ophthalmologist notices that you have com-
plained of neck pain during your eye examinations, we will
consider his or her opinion with respect to your neck pain,
but we will give it less weight than that of another physi-
cian who has treated you for the neck pain. When the
treating source has reasonable knowledge of your impair-
ment(s), we will give the source’s opinion more weight
than we would give it if it were from a nontreating source.

(3) Supportability. The more a medical source
presents relevant evidence to support an opinion, particu-
larly medical signs and laboratory findings, the more
weight we will give that opinion. The better an explana-
tion a source provides for an opinion, the more weight we
will give that opinion. Furthermore, because nonexamin-
ing sources have no examining or treating relationship
with you, the weight we will give their opinions will
depend on the degree to which they provide supporting
explanations for their opinions. We will evaluate the
degree to which these opinions consider all of the pertinent
evidence in your claim, including opinions of treating and
other examining sources.

< ore ss

5a

(4) Consistency. Generally, the more consistent an
opinion is with the record as a whole, the more weight we
will give to that opinion.

(5) Specialization. We generally give more weight to
the opinion of a specialist about medical issues related to
his or her area of specialty than to the opinion of a source
who is not a specialist.

(6) Other factors. When we consider how much
weight to give to a medical opinion, we will also consider
any factors you or others bring to our attention, or of
which we are aware, which tend to support or contradict
the opinion. For example, the amount of understanding of
our disability programs and their evidentiary require-
ments that an acceptable medical source has, regardless of
the source of that understanding, and the extent to which
an acceptable medical source is familiar with the other
information in your case record are relevant factors that
we will consider in deciding the weight to give to a medical
opinion.

(e) Medical source opinions on issues reserved to the
Commissioner. Opinions on some issues, such as the
examples that follow, are not medical opinions, as de-
scribed in paragraph (a)(2) of this section, but are, instead,
opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a
case; i.e., that would direct the determination or decision
of disability.

(1) Opinions that you are disabled. We are responsi-
ble for making the determination or decision about
whether you meet the statutory definition of disability. In
so doing, we review all of the medical findings and other
evidence that support a medical source’s statement that

6a

you are disabled. A statement by a medical source that you
are “disabled” or “unable to work” does not mean that we

will determine that you are disabled.

(2) Other opinions on issues reserved to the Commis-
sioner. We use medical sources, including your treating
source, to provide evidence, including opinions, on the
nature and severity of your impairment(s). Although we
consider opinions from medical sources on issues such as
whether your impairment(s) meets or equals the require-
ments of any impairment(s) in the Listing of Impairments
in appendix 1 to this subpart, your residual functional
capacity (see §§ 404.1545 and 404.1546), or the application
of vocational factors, the final responsibility for deciding
these issues is reserved to the Commissioner.

(3) We will not give any special significance to the
source of an opinion on issues reserved to the Commis-
sioner described in paragraphs (e)(1) and (e)(2) of this
section.

(f) Opinions of nonexamining sources. We consider
all evidence from nonexamining sources to be opinion
evidence. When we consider the opinions of nonexamining
sources, we apply the rules in paragraphs (a) through (e)
of this section. In addition, the following rules apply to
State agency medical and psychological consultants, other
program physicians and psychologists, and medical ex-
perts we consult in connection with administrative law
judge hearings and Appeals Council review:

(1) At the initial and reconsideration steps in the
administrative review process, except in disability hear-
ings, State agency medical and psychological consultants
are members of the teams that make the determinations of
disability. A State agency medical or psychological consultant

|

7a

will consider the evidence in your case record and make
findings of fact about the medical issues, including, but
not limited to, the existence and severity of your impair-
ment(s), the existence and severity of your symptoms,
whether your impairment(s) meets or equals the require-
ments for any impairment listed in Appendix 1 to this
subpart, and your residual functional capacity. These
administrative findings of fact are based on the evidence
in your case record but are not themselves evidence at
these steps.

(2) Administrative law judges are responsible for
reviewing the evidence and making findings of fact and
conclusions of law. They will consider opinions of State
agency medical or psychological consultants, other pro-
gram physicians and psychologists, and medical experts as
follows:

(i) Administrative law judges are not bound by any
findings made by State agency medical or psychological
consultants, or other program physicians or psychologists.
However, State agency medical and psychological consult-
ants and other program physicians and psychologists are
highly qualified physicians and psychologists who are also
experts in Social Security disability evaluation. Therefore,
administrative law judges must consider findings of State
agency medical and psychological consultants or other
program physicians or psychologists as opinion evidence,
except for the ultimate determination about whether you
are disabled. See § 404.1512(b)\(6).

(ii) When an administrative law judge considers
findings of a State agency medical or psychological con-
sultant or other program physician or psychologist, the
administrative law judge will evaluate the findings using

8a

relevant factors in paragraphs (a) through (e) of this
section, such as the physician’s or psychologist’s medical
specialty and expertise in our rules, the supporting evi-
dence in the case record, supporting explanations provided
by the physician or psychologist, and any other factors
relevant to the weighing of the opinions. Unless the
treating source’s opinion is given controlling weight, the
administrative law judge must explain in the decision the
weight given to the opinions of a State agency medical or
psychological consultant or other program physician or
psychologist, as the administrative law judge must do for
any opinions from treating sources, nontreating sources,
and other nonexamining sources who do not work for us.

(iii) Administrative law judges may also ask for and
consider opinions from medical experts on the nature and
severity of your impairment(s) and on whether your
impairment(s) equals the requirements of any impairment
listed in appendix 1 to this subpart. When administrative
law judges consider these opinions, they will evaluate
them using the rules in paragraphs (a) through (e) of this
section.

(3) When the Appeals Council makes a decision, it
will follow the same rules for considering opinion evidence
as administrative law judges follow.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0606%3A18. Public record. Not legal advice.