Examining versus non-examining medical opinions

At some point during a Social Security Disability claim, the file will probably be reviewed by at least one medical source at the request of the agency processing the claim.  In years past, such opinions were often ignored by claimants, claimant representatives, and the judges deciding the claims at the hearing.  The reason they were ignored is because the medical opinions were from non-examining/non-treating sources who often had very little in terms of medical records to review.  Not surprisingly, essentially every single opinion from the non-examining/non-treating medical source would be that the RFC was one level above what was required for a finding of disabled. Thus, if a claimant was 51 and would “GRID” at sedentary, the medical opinion would almost always state that the claimant could perform “light” work.   Some of those medical opinions are not even filed with the medical exhibits, but rather, are found in the prior decision or determination documents.

Recently, I’ve noticed the opinions of these agency employee physicians are being given much more consideration by the ALJs.  There are probably a couple of reasons for this phenomenon.  There is some evidence that ALJs are being steered into a “norm” in terms of approval/denial percentages. In other words, an ALJ that approves “too many” disability claims will be scrutinized very closely.  Presumably, the same would be true of an ALJ that denies “too many” claims. Be that as it may, an easy way to justify the denial of a claim is to rely on the non-examining/non-treating medical source.  And, you can be certain that almost every case (at least in this area) that reaches a hearing will have a medical opinion stating that the claimant is not disabled.  Otherwise, the case would probably not be at the hearing level. There are even a few ALJs who believe that the opinions of the non-examining/non-treating medical sources are entitled to “more weight” than a treating source because the agency employees are “experts” in the field of disability evaluation.

The fact that ALJs seem to be giving much more consideration to the state agency non-examining/non-treating medical opinions is particularly troubling to claimants because quite often, it is difficult to determine what type of doctor is rendering the opinion. I have seen on more than one occasion where the doctor relied upon by the ALJ to deny the claim is a pediatrician or a gynecologist and my client has a lower back issue.  Thus, you can have a controlling medical opinion on a claimant with a spinal condition  rendered by a gynecologist who has never seen the patient and who has reviewed only a handful of the medical records.  Of course, with a good ALJ, such an opinion would be given little weight.

Keep in mind, the regulations provide: “Generally, we give more weight to the opinion of a source who has examined you than to the opinion or a source who has not examined you.”  Thus, a consultative examination should generally be given more weight than a non-examining medical opinion.  And, of course, a treating physician should also be given more weight than a non-examining and/or consultative examiner.  However, the days when treating source medical opinions would all but guaranty a favorable decision appear to be over.

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About tngadisabilitylawyer
Disability Lawyer in Tennessee and Georgia.

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