This article expresses the views of attorney Bonny G. Rafel Esq. View other articles by Ms. Rafel at
ERISA: A PRACTITIONER’S GUIDE
CLAIM DENIED! NEW TRENDS IN EMPLOYEE BENEFIT CLAIM LITIGATION
By: Bonny G. Rafel
The Treating Physician Opinion Quagmire
This rule requires the fact-finder to defer to the treating physician’s opinion and to
provide substantial reasons if they decide to reject his opinions. The treating physician
rule had its birth in Social Security Disability cases where Administrative Law Judges
recognized the distinction between a physician who has not “treated” the patient and the
physician who examines the claimant once briefly or, in the case of a ‘paper reviewer’,
never sets eyes on the claimant.
The treating physician rule as applied in a Social Security setting requires that the
administrative law judge determining the claimant’s eligibility for benefits give deference
to the opinions of the claimant’s treating physician, because “he is employed to cure and
has a greater opportunity to know and observe the patient as an individual”. Morgan v.
Commr of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). See C.F.R. §§404.
1527(d) , 416.927 (d) (2001). 1 As the Court in Regula reasoned, “This grant of deference
to a treating physicians’ opinions increases the accuracy of disability determinations by
forcing the administrative law judge who rejects those opinions to come forward with
specific reasons for his decision, based on substantial evidence in the record.” Regula v.
Delta Family Care Disability Survivorship Plan 266 F.3d 1130 (9th Cir. 2001), petition
for cert. filed, 71 USLW 3001 (U.S. June 13, 2002) (No. 01-1840)
Claimants attorneys in disability cases have argued for years that the treating
physician rule should apply to cases in the non-Social Security venue. It goes beyond
saying that a physician who has had the chance to examine the claimant over a period of
time, to get to know the signs and symptoms of the