Treating Physician Evidence in Social Security Disability Cases: What Does the Future Hold?

Copyright 1993 by National Clearinghouse for Legal Services, Inc. All rights reserved. 27 Clearinghouse Review 31 (May 1993) Treating Physician Evidence in Social Security Disability Cases: What Does the Future Hold? by Ethel Zelenske Ethel Zelenske is a staff attorney at the National Senior Citizens Law Center, 1815 H St. NW, Suite 700, Washington, DC 20006, (202) 887-5280. The author thanks David Udell, Legal Services for the Elderly, New York, NY, and Edwin Lopez-Soto, Greater Upstate Law Project, Rochester, NY, for their valuable input and assistance. I. Introduction On August 1, 1991, SSA issued new regulations describing the weight to be given all medical evidence, including reports from treating physicians and consultative examinations. /1/ In developing the regulations, SSA states that it has "been guided" by two basic principles upon which the majority of circuit courts "generally agree": (1) "treating source evidence tends to have a special intrinsic value by virtue of the treating source's relationship with the claimant" and (2) "if the Secretary decides to reject such an opinion, he should provide the claimant with good reasons for doing so." /2/ In some circuits, the regulations provide a more favorable standard because established circuit precedents accord little weight to a treating physician's opinion. /3/ In other circuits, the regulations are less advantageous because they are inconsistent with circuit precedents regarding "treating physician rules." While the continuing role of circuit precedent is unsettled, courts in these circuits may eventually hold that the regulations are consistent with the case law. /4/ As courts address these issues, familiarity with the regulations will allow advocates to frame the issues in order to obtain favorable results for their clients. II. Highlights of the Regulations A. Treating Source "Treating source" is defined as "your own physician or psychologist who has provided you with medical treatment or evaluation and who has or has had an ongoing treatment relationship with you." /5/ This definition raises several problems, particularly for poor persons. First, it excludes clinics, hospitals, or anyone other than a "physician or psychologist" (e.g., chiropractor, nurse practitioner, or psychiatric therapist). Second, there must be an "ongoing treatment relationship" that depends on "a frequency consistent

with accepted medical practice for the type of treatment... required for your medical condition(s)." A few visits or visits only after long intervals may be adequate "if the nature and frequency of treatment is typical for your condition(s)." /6/ B. Weight Accorded Medical Opinions The regulations establish a three-step procedure to determine how much weight to accord treating physician and other medical opinions, and consultative examinations (CEs). /7/ STEP 1: Determine whether a treating physician's opinion is entitled to "controlling" weight because (a) it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and (b) is "not inconsistent with the other substantial evidence." /8/ If the opinion is "controlling," the analysis stops at this step. SSA cannot substitute its own judgment, and the remaining evidence should not be weighed under Steps 2 and 3. /9/ STEP 2: If the treating physician's opinion is not entitled to controlling weight, determine what weight is appropriate by considering the following factors: (1) Treatment relationship, including length of the relationship, and nature and extent of the relationship; (2) supportability; (3) consistency with the record as a whole; and (4) specialization. /10/ STEP 3: After determining the weight to accord the treating physician's opinion under Step 2, weigh six factors together in deciding what weight to give to all of the medical opinions. /11/ The factors include the four mentioned in Step 2 plus examining relationship (generally, more weight to examining than nonexamining source), and "other factors." /12/ Despite concerns regarding application of these factors, many helpful statements are included in the preamble and responses to comments published with the final regulations. /13/ Advocates should use these statements to guide the interpretation of the regulations, since they are not codified in the Code of Federal Regulations. In recognizing the "special intrinsic value" of treating physician opinions, the preamble states that "once we [SSA] have determined that an opinion is from a treating source, it is entitled to special deference." /14/ If the treating source has seen the claimant long enough, SSA "will always give greater weight to the treating source's opinion than to the opinions of nontreating sources... even if the treating source's opinion is inconsistent with other substantial evidence of record." /15/ To receive "some special deference," the opinion "does not necessarily have to be supported by objective evidence." /16/ No "special significance" will be given to a treating physician opinion on issues reserved to the Secretary (e.g., the claimant is "disabled" or "unable to work," the impairment meets or equals the Listing of Impairments, or residual functional capacity). /17/ However, SSA will "consider" these opinions and, if necessary, will recontact the treating source for further explanation or additional evidence. /18/

To avoid problems, it is advisable to obtain sufficient underlying medical evidence from the treating source that will compel a favorable conclusion regarding these issues. For example, while residual functional capacity (RFC) is an issue reserved to the Secretary, a medical source statement "about what you can still do despite your impairment(s)" should be included in a treating source report. /19/ This statement, which may receive "controlling weight" or "special deference," is a description of work-related limitations and forms the basis of the RFC determination. /20/ In sum, "treating source opinions are generally entitled to greater weight than opinions from nontreating sources unless there are clear and specific reasons why they are outweighed" and SSA "will never disregard a treating source's opinion." /21/ C. Consultative Examinations The regulations establish, for the first time, standards regarding consultative examinations. /22/ A notable change allows a treating physician or psychologist to be paid to perform the needed examination and tests; however, the treating source must be "qualified, equipped, and willing" to accept the fee schedule payment and "generally furnishes complete and timely reports." /23/ Even with these requirements, SSA considers "the treating source... [to be] the preferred source for a consultative examination" at every level, and advocates should ensure that SSA attempts to secure the treating source for the CE. /24/ Situations "requiring" a CE are delineated, including the situation when a conflict, inconsistency, or ambiguity exists, and SSA is unable to resolve it by recontacting the original medical source, including the treating physician. /25/ CE reports must contain certain elements to be considered "complete." /26/ One requirement is the "statement about what you can still do despite your impairment(s)" upon which the claimant's RFC is based. /27/ Since lack of the statement will not make the treating source report "incomplete," SSA may not make the same effort to obtain the statement from the treating source. /28/ The claimant's representative should ensure that it is provided. Other highlights in the regulations include a requirement that the CE be given "any necessary background information" about the condition; a process for handling objections to a designated physician or psychologist; and minimum scheduling intervals for CEs. /29/ However, the regulations do not determine the length of the appointments. /30/ D. Responsibility for Gathering Evidence

SSA is now required to make "every reasonable effort" at every level of review to help claimants obtain medical evidence from their own medical sources. However, SSA defines this requirement as making only one follow-up attempt between 10 and 20 days after the initial request. A minimum of 10 days is allowed to reply to the follow-up. /31/ SSA is also required to recontact sources when evidence is inadequate to determine disability. It need not seek additional evidence if past experience shows that the particular source cannot or will not provide the information. /32/ III. Treating Physician Rule in Certain Circuits In many circuits, the decisions regarding the "treating physician rule" establish a presumption. The treating physician opinion is the starting point, and it may be disregarded or given lesser weight only if it is deficient in certain specified situations, as defined in circuit case law. Some advocates are concerned that the regulations may dilute this presumption so that the treating physician opinion is given the same or even less weight than other evidence. Thus, it may be discounted in a broader range of situations than would be allowed under circuit precedent. On the other hand, the regulations may be interpreted by the courts to be consistent with or a codification of circuit case law. Some of the inconsistencies between circuit precedent and the medical evidence regulations are discussed below. The discussion is not an exhaustive treatise on case law in each circuit but rather provides a starting point for advocates to compare the case law in their circuits to the regulations. A. When Is the Treating Physician Opinion Controlling? The medical evidence regulations accord controlling weight to the treating physician opinion only when it is "well supported" by objective medical evidence and is "not inconsistent with the other substantial evidence" in the record. Even if not controlling, the opinion will generally be given "more weight." /33/ The POMS provides that "more weight will be given if the opinion is consistent with other evidence in the record as a whole." /34/ However, the POMS further provide that a treating physician opinion, even if "well supported," may be outweighed by substantial evidence, including nonmedical evidence. /35/ A treating physician opinion on issues reserved to the Secretary is considered but is never controlling. /36/ In circuits with the strongest treating physician rules, the case law, at least upon initial analysis, is far more generous in according the treating physician opinion "great weight," "special deference," or "binding" weight. For instance, in the Second Circuit, the treating physician opinion is "binding... unless contradicted by substantial evidence," even if the opinion is unsupported by objective medical evidence. When contradicted, it is still entitled

to "some extra weight." /37/ In the Fourth Circuit, the treating physician opinion must "be given great weight and may be disregarded only if there is persuasive contradictory evidence." /38/ Although other circuits provide "considerable" but less than "binding" weight, they require only that the treating physician opinion be supported by "some" or "any" objective medical evidence before it is given special weight. In the Eighth Circuit, the treating physician opinion is entitled to "substantial weight" and may be discounted only if it is unsupported by "any" objective medical evidence. /39/ "Deference" must also be accorded when it is corroborated by the testimony of lay witnesses and the claimant's work history. /40/ A similar standard is provided in the Tenth and Eleventh Circuits when a treating physician opinion, if supported by medical evidence, must be given "substantial" or "considerable" weight unless good cause is shown to the contrary. /41/ B. How Much Weight Is Given to Nonexamining Physician Opinions? In applying the six factors used for weighing medical evidence when the treating physician opinion is not controlling, the medical evidence regulations provide that more weight is generally given to an examining source than a nonexamining source. /42/ Further, the opinions are not entitled to the special deference given to treating source opinions. /43/ Nevertheless, at the ALJ and Appeals Council levels, the findings of DDS physicians and psychologists will be considered "medical opinions" and evaluated the same as other medical evidence. /44/ These opinions, if "properly supported... may outweigh noncontrolling opinions of treating sources." /45/ However, in applying the six-factor test, ALJs cannot give the opinions "special weight" since the opinions came from nonexamining sources. /46/ Circuit precedents in this area may well survive with courts interpreting the regulations to support the case law. Many circuits have held that opinions by nonexamining physicians do not constitute "substantial evidence" that outweighs the treating physician opinion and that such opinions are entitled to little or no weight. The Second and Eighth Circuits have held that nonexamining source opinions cannot, in most situations, constitute substantial evidence to override the opinion of a treating source and deserve "little weight." /47/ In other circuits, the case law is a variation on this theme: a nonexamining source opinion should be discounted and is not substantial evidence when contradicted by the treating physician opinion or by "all other evidence in the record"; /48/ the contrary opinion of a nonexamining source does not provide "good cause" for failing to give "substantial or considerable" weight to a treating physician's opinion; /49/ conclusory opinions of SSAemployed reviewing doctors cannot outweigh credible evidence provided by the treating physician. /50/

C. How Much Weight Is Accorded a Consultative Examiner Report? The medical evidence regulations provide that the opinion of a consultative examiner will be considered on the same basis as other medical opinions, including noncontrolling treating physician opinions, by using the six factors for determining the weight to give a medical opinion. /51/ A CE from a nontreating source may provide "substantial evidence" to prevent a treating physician opinion from being accorded controlling weight. /52/ However, the opinions of nontreating sources are not entitled to the special deference given to treating source opinions. /53/ In a number of circuits, CE opinions are given only "limited weight" and do not provide "substantial evidence," especially when contradicted by the treating physician opinion. /54/ Because SSA consultants are "employed and paid by the federal government for the purpose of defending against a disability claim" and their reports are based on "limited contact and examination," their opinions are of "suspect reliability." /55/ IV. Litigation The quandary raised regarding the continuing role of court-created "treating physician rules" in light of the new regulations has been squarely addressed in Schisler v. Sullivan, which is currently pending in the Second Circuit. /56/ In 1988 the Second Circuit directed SSA to distribute to New York disability adjudicators a Social Security Ruling (SSR) setting forth the Second Circuit's treating physician rule. /57/ The district court eventually authorized the Secretary to rescind the SSR, allowing the regulations to take precedence over circuit precedent at SSA administrative levels; however, the court also held that the SSR (embodying circuit case law) would remain the controlling law at the judicial level of review. /58/ A core issue on appeal is whether the Secretary has the authority pursuant to 42 U.S.C. Sec. 405(a) to promulgate regulations which displace a judicial rule developed by the courts in order to perform their statutory function under 42 U.S.C. Sec. 405(g). /59/ In Schisler, the Secretary has claimed that the new regulations differ from the Second Circuit treating physician rule but has not articulated the particular differences. The same issues are on appeal to the Second Circuit in Aldrich v. HHS, involving a class of Vermont residents. In Aldrich the district court entered an order similar to the July 8, 1992, Schisler order. /60/ It thus seems likely that the Second Circuit (which arguably has the strongest treating physician rule) will be the first court to address in depth the interplay between the regulations and circuit precedent. Several other courts have referred to the medical evidence regulations, usually in the context of whether remand of the individual case was warranted in light of the new regulations. For example, in Nelson v. Sullivan, the Eighth Circuit has stated that "the new regulation merely codifies this circuit's law regarding the opinions of treating physicians."

/61/ In Mulvenna v. Sullivan an Illinois district judge stated that the regulations "confirm the general rule that the ALJ must normally give extra weight to a treating physician's evaluation." /62/ V. Practice Tips Despite the complicated questions raised in Sections III and IV, the regulations are final and in effect. In many circuits, advocates will have to work harder in seeking reports from treating sources, particularly in order that they be given "controlling weight." The following practice tips may be helpful in obtaining treating physician opinions which are "controlling" or given greater weight under the six-factor test and in otherwise using the medical evidence regulations: 1. Establish that the doctor is the "treating" physician under 20 C.F.R. Secs. 404.1502 and 416.902. a. Prove length of the relationship. If the doctor is new to the case, make sure he or she emphasizes the ongoing nature of the treatment. b. Make sure the doctor addresses the frequency of treatment. If visits are infrequent, the doctor should explain why (e.g., the condition is monitored only periodically). If necessary, the doctor should explain that the infrequency is typical for the condition (e.g., claimant is seen once every few months to monitor epilepsy). c. Try to have primary physician cosign with nurse practitioner, therapists, etc. d. Because a clinic is not defined as a "treating source," explain frequent change among treating physicians, especially when residents are used. If report is by a resident, have it cosigned by an attending physician. e. Establish specialty and experience of treating physician through resumes, board certification, etc. 2. Establish that the treating source opinion is controlling. a. Show that opinion is well supported by objective medical evidence in the record. If the treating physician's report does not include this evidence, establish that it exists elsewhere in the record. The regulations do not require that the report itself include the evidence to be "well supported." /63/

b. Make sure that the record contains objective medical evidence if subjective complaints of pain or other symptoms are critical to the case. Under the 1992 regulations for evaluating symptoms, including pain, /64/ if objective medical evidence establishes an impairment that could "reasonably be expected to produce pain or other symptoms alleged," then subjective allegations must be considered by SSA. /65/ c. Show that the opinion is not inconsistent with other "substantial" evidence in the record. Where possible, try to show that reports are actually consistent, especially when the nontreating source is ambiguous and can be clarified by information in the treating source report. If reports are contradictory, establish that the nontreating reports are not "substantial," e.g., CE report does not meet regulatory requirements. 3. Seek key criteria and score high on the factors test. a. Obtain information relevant to the six factors so that the treating physician report will match up well with other reports. b. Obtain "medical source statement" of what claimant can still do despite impairments. If credibility of subjective symptoms is critical to the claim, make sure that the statement includes information to satisfy the requirements under 20 C.F.R. Secs. 404.1529 and 416.929. c. Continue to ask treating sources to give opinions regarding "issues reserved to the Secretary," but also have them supply and explain with underlying medical information which compels the desired conclusion. 4. Pursue doctors to resolve specific inconsistencies. Obtain critical information from treating physicians needed to resolve inconsistencies in the record. This may involve clarifying another report by the same physician or another treating source, or refuting reports by an SSA examining consultant, nonexamining medical advisor, an adverse test result or adverse finding by an ALJ. 5. Check on consultative examinations. a. If a CE is needed, try to have the treating physician perform it. b. Consider seeking information from the state agency to determine if it has identified any treating physicians not to be used to perform consultative examinations. c. If the CE is by a nontreating source, determine whether the report is "complete" and complies with the requirements in the regulations, including (1) SSA-provided necessary background information and (2) "elements of a complete consultative examination" under

20 C.F.R. Secs. 404.1519n and 416.919n. If SSA did not comply with these requirements, argue that the CE report should be disregarded. d. If there have been problems with specific consultative examiners used by SSA, ask on behalf of your client for a different examiner, and determine whether to initiate a formal investigation of the doctor under 20 C.F.R. Sec. 404.1519j or 416.919j. VI. Conclusion Court-created "treating physician rules" have long been a critical tool in obtaining favorable results for disability claimants. The 1991 regulations for weighing all medical evidence, including treating physician opinions, may allow SSA to accord less weight to these opinions than would seem to be permitted under circuit case law. The courts in class actions like Schisler and in individual cases will ultimately decide how the two standards interface. Indeed, courts may ultimately hold that established precedents survive the 1991 regulations or that the regulations should be construed in ways that are compatible with the case law. Meanwhile, the best advocacy approach may be to argue that the claimant is disabled under both the regulations and case law. Where the regulations are silent, vague, or seemingly adverse, the case law should be used to define or guide the analysis under the regulations. footnotes /1/ Standards for Consultative Examinations and Existing Medical Evidence, 56 Fed. Reg. 36931-70 (Aug. 1, 1991) (codified at 20 C.F.R. parts 400-499). /2/ 56 Fed. Reg. 36931, 36934 (Aug. 1, 1991). /3/ See, e.g., Mulvenna v. Sullivan, 796 F. Supp. 325 (N.D. Ill. 1992) (the regulations "confirm the general rule that the ALJ must normally give extra weight to a treating physician's evaluation") (citation omitted). /4/ See, e.g., Nelson v. Sullivan, 966 F.2d 363 (8th Cir. 1992) ("the new regulation merely codifies this circuit's law regarding the opinions of treating physicians"). /5/ 20 C.F.R. Secs. 404.1502, 416.902. A physician or psychologist who is seen solely to obtain a report to support a disability claim is considered to be a consulting and not a treating source. /6/ Id.

/7/ Id. Secs. 404.1527(d), 416.927(d). /8/ Id. Secs. 404.1527(d)(2), 416.927(d)(2). /9/ 56 Fed. Reg. 36931, 36936. /10/ 20 C.F.R. Secs. 404.1527(d)(2)-(5), 416.927(d)(2)-(5). /11/ Id. Secs. 404.1527(d)(1)-(6), 416.927(d)(1)-(6). /12/ Id. Secs. 404.1527(d)(1), (d)(6), 416.927(d)(1), (d)(6). This may include a source who submits an identical report for every claimant. 56 Fed. Reg. 36931, 36936. /13/ 56 Fed. Reg. 36931-53. /14/ Id. at 36937. In discussing the "treatment relationship" factor, the preamble states that "[w]e give treating source medical opinions special deference because treating sources usually have the most knowledge about their patients' conditions." Id. at 36935. /15/ Id. at 36936. /16/ Id. at 36951. /17/ 20 C.F.R. Secs. 404.1527(e), 416.927(e). /18/ Id. Secs. 404.1527(e)(2), 416.927(e)(2). Opinions of nonexamining medical consultants and medical advisers on these issues will be weighed differently: at the initial and reconsideration levels, they will be "administrative findings of fact," but not evidence. However, at the ALJ and Appeals Council levels, the opinions will be considered under the rules for weighing medical evidence. Id. Secs. 404.1527(f), 416.927(f). 56 Fed. Reg. 36931, 36951. /19/ 20 C.F.R. Secs. 404.1513(b)(6), 416.913(b)(6). In contrast to reports from consulting sources, this statement is not required to make the treating source report "complete." The representative should ensure that it is obtained. /20/ See id. Secs. 404.1545(a), 416.945(a) ("your RFC is what you can still do despite your limitations"). /21/ 56 Fed. Reg. 36931, 36937, 36950. /22/ 20 C.F.R. Secs. 404.1519-404.1519t, 416.919-416.919t. /23/ 20 C.F.R. Secs. 404.1519h, 416.919h. "Willingness" will be determined by a general survey of physicians in the state once every 3 years or by response to a written request in a

particular case. If the source fails to respond to the survey or request without a good reason, the treating source will not be used for the CE in that case. POMS DI 22510.010B.1. /24/ 20 C.F.R. Secs. 404.1519h, 416.919h. /25/ 20 C.F.R. Secs. 404.1519a(b), 416.919a(b); 56 Fed. Reg. 36931, 36941. /26/ 20 C.F.R. Secs. 404.1519n(c), 416.919n(c). /27/ Id. Secs. 404.1519n(c)(6), 416.919n(c)(6). /28/ Id. Secs. 404.1513(b)(6), 416.913(b)(6). /29/ Id. Secs. 404.1517, 404.1519j, 416.917, 416.919j. There will be a change for a "good reason." Once there is a review of an objection based on "lack of objectivity" and the CE is found to be "objective," that CE will not be changed for other claimants. /30/ Id. Secs. 404.1519n(a), 416.919n(a). /31/ Id. Secs. 404.1512(d)(1), 416.912(d)(1). /32/ Id. Secs. 404.1512(e), 416.912(e). /33/ Id. Secs. 404.1527(d)(2), 416.927(d)(2). /34/ POMS DI 24515.003A.4.d. /35/ POMS DI 24515.003B.2. /36/ 20 C.F.R. Secs. 404.1527(e)(2), 416.927(e)(2); POMS DI 24515.010.5. /37/ Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988). The Third Circuit has also held that a treating physician opinion cannot be rejected solely because it is not supported by objective medical evidence. Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979). /38/ Coffman v. Bowen, 829 F.2d 514 (4th Cir. 1987). /39/ Turpin v. Bowen, 813 F.2d 165 (8th Cir. 1987); Janka v. Secretary of HEW, 589 F.2d 365 (8th Cir. 1978). /40/ Douglas v. Bowen, 836 F.2d 392 (8th Cir. 1987). /41/ The Tenth Circuit accords "substantial" weight. Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987); Byron v. Heckler, 742 F.2d 1232 (10th Cir. 1984). The Eleventh Circuit

accords "substantial or considerable" weight. Lamb v. Bowen, 847 F.2d 698 (11th Cir. 1988). /42/ 20 C.F.R. Secs. 404.1527(d)(1), 416.927(d)(1). /43/ 56 Fed. Reg. 36931, 36937. /44/ 20 C.F.R. Secs. 404.1527(f), 416.927(f). /45/ POMS DI 24515.007.1.c. /46/ 56 Fed. Reg. 36931, 36937. /47/ Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988); Vargas v. Sullivan, 898 F.2d 293 (2d Cir. 1990); Nelson v. Heckler, 712 F.2d 346 (8th Cir. 1983). /48/ Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986); Millner v. Schweiker, 725 F.2d 243 (4th Cir. 1984). /49/ Lamb v. Schweiker, 847 F.2d 698 (11th Cir. 1988). /50/ Harris v. Secretary of HHS, 821 F.2d 541 (10th Cir. 1987). /51/ 20 C.F.R. Secs. 404.1527(d), 416.927(d). /52/ POMS DI 24515.002B.1. /53/ 56 Fed. Reg. 36931, 36937. /54/ E.g., Cruz v. Sullivan, 912 F.2d 8 (2d Cir. 1990); Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987); Turpin v. Bowen, 813 F.2d 165 (8th Cir. 1987); Lashley v. Secretary of HHS, 708 F.2d 1048 (6th Cir. 1983). /55/ Frey, 816 F.2d at 513, 515; see also Allen v. Califano, 613 F.2d 139 (6th Cir. 1980). /56/ Nos. 92-6232 & 92-6234 (2d Cir. filed Sept. 4, 1992). Schisler began in 1980 as a challenge to the standard used by SSA to terminate disability benefits and has subsequently evolved into litigation over SSA's nonacquiescence in Second Circuit precedent regarding the treating physician rule. Schisler v. Heckler, 574 F. Supp. 1538 (W.D.N.Y. 1983) (preliminary injunction), 107 F.R.D. 609 (W.D.N.Y. 1984) (class certified), aff'd, 787 F.2d 76 (2d Cir. 1986), aff'd on remand, Civ. No. 80-572E, 1987 WL 15330 (W.D.N.Y. Aug. 5, 1987), aff'd, 851 F.2d 43 (2d Cir. 1988), subsequent decision, Civ. No. 80-572E, 1992 WL 170736 (W.D.N.Y. July 8, 1992) (Clearinghouse No. 32,771).

/57/ Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988). /58/ Civ. No. 80-572E, 1992 WL 170736 (W.D.N.Y. July 8, 1992). /59/ See Brief of Plaintiffs-Appellees-Cross-Appellants at 16-33, Schisler v. Sullivan, Nos. 92-6232 & 92-6234 (2d Cir.). /60/ Aldrich v. HHS, No. 80 Civ. 279, 1992 WL 249375 (D. Vt. Aug. 13, 1992), appeal docketed, Nos. 92-6233 & 92-6243 (2d Cir. filed Sept. 30, 1992). /61/ Nelson v. Sullivan, 966 F.2d 363 (8th Cir. 1992). But see Black v. Sullivan, 793 F. Supp. 45 (D.R.I. 1992) (remand warranted for application of new regulations). See also Shields v. Sullivan, 801 F. Supp. 151, 159 n.15 (N.D. Ill. 1992) ("the arguably mixed signals that have emanated from judicial opinions in this area may be a thing of the past"). /62/ Mulvenna v. Sullivan, 796 F. Supp. 325 (N.D. Ill. 1992). This statement may be particularly helpful because Seventh Circuit precedent is not generally favorable to claimants, with decisions holding that nonexamining source opinions may be more probative and impartial than treating physician opinions and that treating physicians may be biased and partial. See, e.g., Reynolds v. Bowen, 844 F.2d 451 (7th Cir. 1988); Garrison v. Heckler, 765 F.2d 710 (7th Cir. 1985). /63/ 20 C.F.R. Secs. 404.1527(d)(2), 416.927(d)(2). /64/ Evaluation of Symptoms, Including Pain, 56 Fed. Reg. 57,927-57,948 (Nov. 14, 1991). /65/ 20 C.F.R. Secs. 404.1529, 416.929.