Marjorie H. Hofslien v. J O ANNE B. BARNHART , Commissioner of Social Security

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2649
M ARJORIE H. H OFSLIEN ,
Plaintiff-Appellant,
v.
J O A NNE B. B ARNHART , Commissioner
of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-C-822-S—John C. Shabaz, Judge.
____________
A RGUED J ANUARY 25, 2006—D ECIDED M ARCH 1, 2006
____________
Before POSNER , M ANION , and W OOD , Circuit Judges.
P OSNER , Circuit Judge. Marjorie Hofslien appeals from the
district court’s refusal to disturb the decision by an adminis-
trative law judge denying her application for social security
disability benefits. Her principal ground of appeal is that
the administrative law judge misapplied the “treating
physician” rule; her other grounds are of no general signifi-
cance and are disposed of in an unpublished order that we
are issuing together with this opinion.

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2 No. 05-2649
Hofslien complains that she is totally disabled by reason
of severe depression. At her disability hearing she presented
treatment notes by the psychiatrist who treats her depres-
sion, along with a summary assessment of her ability (or
rather inability) to work. The notes and the assessment if
taken at face value would go far to establish that she is
indeed totally disabled. The administrative law judge,
however, refused to give them controlling weight because
they were inconsistent with other medical evidence, albeit
from physicians who had not treated or even examined her.
Hofslien contends that in doing this the administrative law
judge violated the “treating physician” rule.
This rule, now codified in social security regulations, 20
C.F.R. § 404.1527(d)(2), has been around a long time and is
cited and discussed in innumerable cases. E.g., Black &
Decker Disability Plan, 538 U.S. 822, 829 (2003); White v.
Barnhart, 415 F.3d 654, 658 (7th Cir. 2005); Hackett v.
Barnhart, 395 F.3d 1168, 1173-74 (10th Cir. 2005); Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam). Its
meaning and utility, however, are uncertain. It seems to take
back with one hand what it gives with the other, and as a
result to provide little in the way of guidance to either
administrative law judges or counsel. It is time that the
Social Security Administration reexamined the rule.
The rule directs the administrative law judge to give
controlling weight to the medical opinion of a treating
physician if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and “not
inconsistent with the other substantial evidence.” Obviously
if it is well supported and there is no contradictory evi-
dence, there is no basis on which the administrative law
judge, who is not a physician, could refuse to accept it.
Equally obviously, once well-supported contradicting

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No. 05-2649 3
evidence is introduced, the treating physician’s evidence is
no longer entitled to controlling weight.
Where does that leave the administrative law judge?
There are two possibilities. One is that, by analogy to
presumptions that disappear when evidence in opposition
to the presumed fact is introduced (“bursting bubble”
presumptions, Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir.
1993); Costa v. Desert Palace, Inc., 299 F.3d 838, 855 n. 6 (9th
Cir. 2002); Lepre v. Department of Labor, 273 F.3d 59, 69 (D.C.
Cir. 2001)), the rule drops out and the treating physician’s
evidence is just one more piece of evidence for the ad-
ministrative law judge to weigh. Another possibility is
that his evidence retains a tiebreaker role: if the treating
physician’s evidence and the contrary evidence are in
equipoise, his view prevails. The first seems the more
plausible interpretation, as well as being more consistent
with the case law; we have found no cases that adopt the
equipoise interpretation.
The rule goes on to list various factors that the administra-
tive law judge should consider, such as how often the
treating physician has examined the claimant, whether the
physician is a specialist in the condition claimed to be
disabling, and so forth. The checklist is designed to help the
administrative law judge decide how much weight to give
the treating physician’s evidence. When he has decided how
much weight to give it, there seems no room for him to
attach a presumptive weight to it.
The advantage that a treating physician has over other
physicians whose reports might figure in a disability case is
that he has spent more time with the claimant. The other
physicians whose reports or other evidence are presented to
the administrative law judge might never even have
examined the claimant (that was true here), but instead have
based their evidence solely on a review of hospital or other

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4 No. 05-2649
medical records. But the fact that the claimant is the treating
physician’s patient also detracts from the weight of that
physician’s testimony, since, as is well known, many
physicians (including those most likely to attract patients
who are thinking of seeking disability benefits) will often
bend over backwards to assist a patient in obtaining
benefits. Black & Decker Disability Plan, supra, 538 U.S. at 832;
Hawkins v. First Union Corp. Long-Term Disability Plan, 326
F.3d 914, 917 (7th Cir. 2003), and cases cited there. More-
over, though not in this case, the treating physician is often
not a specialist in the patient’s ailments, as the other
physicians who give evidence in a disability case usually
are.
So the weight properly to be given to testimony or other
evidence of a treating physician depends on circumstances.
As explained in the accompanying order, the administrative
law judge was justified in giving greater weight to the
medical evidence that contradicted the treating physician’s
evidence than to his evidence.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-1-06

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