Schisler v. Bowen
| Decision Date | 19 September 1988 |
| Docket Number | D,No. 714,714 |
| Citation | 851 F.2d 43 |
| Parties | , Unempl.Ins.Rep. CCH 14002A Robert SCHISLER, Mary Miceli, Paulette Beard, Frank Powroznik, Rose Reese, Harry Delandro, Marjorie Hilts, Cinda Coleman, Rose Mitchell and Kathran Tennant, on behalf of themselves and all other individuals similarly situated, Plaintiffs-Appellees, v. Otis R. BOWEN, Secretary of the United States Department of Health and Human Services; Barbara Blum, as Commissioner of the New York State Department of Social Services; Sidney Houben, as Director of the New York State Department of Social Services Bureau of Disability Determinations, Defendants-Appellants. ocket 87-6244. |
| Court | U.S. Court of Appeals — Second Circuit |
Before WINTER, PRATT and ALTIMARI, Circuit Judges.
This appeal follows proceedings in the district court subsequent to our remand in Schisler v. Heckler, 787 F.2d 76 (2d Cir.1986) ("Schisler I "). Pursuant to that remand, the Secretary of Health and Human Services proposed a draft Social Security Ruling ("SSR") that purported to embody the "treating physician rule." Judge Elfvin made extensive revisions of this draft SSR and ordered the Secretary to issue the SSR as revised. Because the district court's revisions did no more than eliminate material outside the scope of the remand and, with two exceptions, restate our caselaw on the treating physician rule, we affirm in part and reverse in part.
This opinion assumes familiarity with our decision in Schisler I. Briefly stated, that decision confronted chronic problems with the Secretary's compliance with the so-called treating physician rule. Although the Secretary had never sought to challenge this rule by petitioning for certiorari in the Supreme Court, the volume of appeals from the Secretary implicating the rule raised a serious question as to whether the Secretary was actually following the rule. See DeLeon v. Secretary of Health and Human Services, 734 F.2d 930, 937-38 (2d Cir.1984). We were specifically assured at oral argument in Schisler I that the then-Secretary had adopted our rule as her policy. 787 F.2d at 83. However, the volume of litigation implicating the rule made it clear that Social Security Administration ("SSA") adjudicators had no clue that the treating physician rule was the Secretary's established policy. To remedy the situation, we ordered "that SSA tell its adjudicators what it has told us about" the Secretary's adoption of that rule. Id. at 84.
After remand to the district court, the Secretary produced a twelve-page draft SSR entitled "Development and Consideration of Medical Evidence." The draft included, inter alia, several pages of legislative history, definitions of terms found elsewhere in SSA regulations, a section on the "Need for Medical Evidence" and another section on the use of "Consultative Medical Source Evidence." The proposed draft's section on "Evaluating the Evidence and Resolving Conflicts" did not begin until page nine and the statement of the treating physician rule did not appear until page ten. Many aspects of the draft SSR contained what the Secretary describes as "elaborations" on that rule. These so-called elaborations included a formulation that made the rule merely one of many factors, including the consistency of the physician's opinion with other medical reports, to be considered by the adjudicator, and a requirement that the treating physician's opinion be supported by clinical or laboratory diagnostic evidence.
The district court concluded that the proposed SSR "fails to reflect, in significant respects, the treating physician rule recognized and effective here and to be in place nationwide," and "is rambling and ambiguous, and not to a small degree unedifying On appeal, the Secretary argues that the district court exceeded its authority by undertaking to rewrite the draft SSR. He asks us to accord the draft SSR the traditional deference shown to administrative rulings and to restore it in its elaborate detail. We decline to do so and, but for certain minor changes not worthy of discussion 1 and two changes discussed infra, adopt the district court's deletions and revisions.
to those in the field who must make the important decisions delegated to the Secretary. There lurks in its lengthy and discursive text bases for not applying the treating physician rule." Accordingly, the district court edited the draft SSR, deleting for the most part material dealing with statutory background, definitions, the development of medical evidence, and the proposed requirement that treating physician's opinions be supported by clinical and/or laboratory evidence. The district court also revised the statement of the treating physician rule, largely by using language from Schisler I. Finally, the district court modified somewhat the SSR's definition of "treating source" and added a definition of "substantial evidence" under which "[t]he opinions of non-examining medical personnel cannot, in themselves and in most situations, constitute substantial evidence to override the opinion of a treating source."
Our remand did not direct the Secretary to exercise administrative judgment on any matter other than the selection of the best means of conveying to SSA adjudicators his adoption of this circuit's treating physician rule. We deliberately limited the relief ordered in Schisler I so as to minimize any "intrusion on SSA processes" while mitigating what had become an abuse of judicial processes resulting from SSA adjudicators' ignorance of the treating physician rule. 787 F.2d at 84. Thus, the remand in this case was not a proper occasion for the Secretary to issue a regulation covering subjects not at issue in this litigation or to elaborate on the treating physician rule in ways not expressly authorized by our caselaw. To the extent that the Secretary seeks to issue rulings covering such subjects or to elaborate on that rule, he should resort to the customary administrative processes. We therefore affirm the deletions made by the district court but decline to reach the merits of the positions taken by the draft SSR in the deleted portions. We have also revised the title of the SSR in order to limit it to the treating physician rule. See Appendix A.
Moreover, the deference traditionally shown to administrative rulings is not appropriate in view of the limited goal of the remand. So far as the choice of the means of publication are concerned, we agree with the Secretary that an SSR is appropriate. So far as the content of the SSR is concerned, the Secretary has some leeway with...
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