Schisler v. Sullivan
| Decision Date | 23 August 1993 |
| Docket Number | Nos. 786,909,D,773,900,s. 786 |
| Parties | , 42 Soc.Sec.Rep.Ser. 184, Unempl.Ins.Rep. CCH 17470A Robert SCHISLER, et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellant-Cross-Appellee. Jonathan ALDRICH, et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellant-Cross-Appellee. ocket 92-6232, 92-6234, 92-6233, 92-6243. |
| Court | U.S. Court of Appeals — Second Circuit |
Frank A. Rosenfeld, Atty., Civil Div., Appellate Staff, Dept. of Justice, Washington, DC (William Kanter, Atty., Civil Div., Appellate Staff, Dept. of Justice, Stuart M. Gerson, Asst. Atty. Gen., Washington, DC, Dennis C. Vacco, U.S. Atty., W.D.N.Y., Buffalo, NY, Charles A. Caruso, U.S. Atty., D. Vt., Rutland, VT, of counsel), for defendant-appellant-cross-appellee.
Bryan D. Hetherington, Rochester, NY (Catherine M. Callery, Monroe County Legal Assistance Corp., Edwin J. Lopez-Soto, Greater Upstate Law Project, Rochester, NY, David S. Buckel, Harlem Legal Services, New York City, Alan B. Block, Neighborhood Legal Services, Buffalo, NY, Lewis A. Golinker, Ithaca, NY, of counsel), for Schisler plaintiffs-appellees-cross-appellants.
Joan C. Bauer, Montpelier, VT (Alexander Scherr, Vermont Legal Aid, Inc., St. Johnsbury, VT, of counsel), for Aldrich plaintiffs-appellees-cross-appellants.
Before: KEARSE, WINTER and WALKER, Circuit Judges.
This consolidated appeal involves regulations issued by the Secretary of Health and Human Services ("HHS") modifying the so-called "treating physician rule" used to adjudicate Social Security disability claims. Two district courts upheld the new regulations with respect to disability adjudications within HHS but held that the treating physician rule as fashioned by this court would continue to apply in appeals from those adjudications to the federal courts. The Secretary appealed from the portions of the decisions relating to the rule to be applied in appeals. The claimants cross-appealed, challenging those portions of the judgments upholding the new regulations with respect to adjudications within HHS. We granted a stay pending this appeal.
We hold the following. The Secretary has the statutory authority to promulgate regulations concerning the weighing of evidence, including the weight to be given to opinions of treating physicians, in adjudicating claims under HHS's benefits scheme. Although the new regulations depart in various ways from this circuit's version of the rule, they are neither arbitrary, capricious, nor contrary to the statute. They are thus valid. Because they are valid, they are binding on the
courts. We therefore affirm the portions of the district courts' decisions approving the new regulations. However, we reverse those portions of the decisions indicating that the regulations are not binding on the courts. We also lift the stay.
We first briefly review the background and procedural history of this appeal, including our earlier decisions in Schisler v. Heckler, 787 F.2d 76 (2d Cir.1986) ("Schisler I" ), and Schisler v. Bowen, 851 F.2d 43 (2d Cir.1988) ("Schisler II" ), familiarity with which is assumed.
Schisler I was brought in 1980 by Robert Schisler and others similarly situated who were a New York state-wide class of Social Security disability recipients who lost their benefits on or after June 1976 even though there had been no showing of a medical improvement in their condition. See Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, Sec. 2, 98 Stat. 1794 (). The class was certified in 1981.
The plaintiff class claimed that the Secretary had unlawfully deprived them of disability benefits by forcing claimants to prove their disabilities de novo whenever their cases were reviewed. The district court upheld the class membership, refusing the Secretary's request to narrow it. When the Secretary appealed, the plaintiff class cross-appealed, seeking, inter alia, an injunction ordering the Secretary to apply the so-called treating physician rule.
At the time of Schisler I, our caselaw had established a rule giving substantial weight to the opinions of treating physicians in disability benefit cases. See, e.g., Bluvband v. Heckler, 730 F.2d 886, 892-93 (2d Cir.1984); Gold v. Secretary of Health, Educ. and Welfare, 463 F.2d 38, 42 (2d Cir.1972). There were then no comprehensive administrative regulations concerning the weighing of such opinions. However, HHS chose not to acquiesce in our rule. As a result, we and the district courts within our circuit were faced with a large volume of appeals asserting the treating physician rule as a ground for overturning denials of benefits by HHS. Schisler I, 787 F.2d at 82. Indeed, a district court had ordered the Secretary to apply the rule in all cases, an unprecedented intrusion into an agency's right to non-acquiesce in the rule of one circuit. Stieberger v. Heckler, 615 F.Supp. 1315 (S.D.N.Y.1985), vacated sub nom. Stieberger v. Bowen, 801 F.2d 29 (2d Cir.1986).
Congress also expressed frustration at HHS's resort to non-acquiescence because of its concomitant failure ever to seek Supreme Court review of the rules in which it refused to acquiesce. Schisler I, 787 F.2d at 82-83. With respect to the treating physician rule, the result of HHS's non-acquiescence was that claimants relying on the opinions of treating physicians were routinely denied benefits at the agency level. They were thus forced to take their cases one-by-one to the federal courts, which routinely remanded with instructions to apply the rule. However, HHS never sought Supreme Court review of any of these many decisions. It thus appeared that HHS was non-acquiescing in the treating physician rule not as a matter of principle--which could have been resolved by seeking review in the Supreme Court--but as a means of discouraging claimants who relied upon the rule. This creation of unnecessary legal hurdles was understandably perceived as an abuse of process.
When Schisler I was argued, however, counsel for the Secretary represented to us that the agency followed this court's version of the treating physician rule. Id. at 83. In light of that representation, we directed the Secretary to inform its adjudicators by appropriate publication of her stated policy. Id. at 84. This rather unique form of relief was ordered because it seemed to us that the agency's adoption of the rule as expressed by counsel was hardly evident to the agency's adjudicators. We left "to the district court the task of fashioning the precise order to accompany the remand." Id. at 85.
The Secretary then proposed a Social Security Ruling ("SSR") that was modified by the district court to bring it into conformity with our instructions (i.e., a verbatim restatement In Schisler II, we upheld the district court's revision of the Secretary's proposed SSR because the modifications "did no more than eliminate material outside the scope of the remand and, with two exceptions, 1 restate our caselaw on the treating physician rule...." 851 F.2d at 44 (footnote added). We held that the district court might permissibly modify the Secretary's draft because, in Schisler I, we had "deliberately limited the relief ordered ... [, making] the remand ... not a proper occasion for the Secretary to issue a regulation ... elaborat[ing] on the treating physician rule in ways not expressly authorized by our caselaw." Schisler II, 851 F.2d at 45. We distinguished that situation from one in which the Secretary issued regulations after "resort[ing] to the customary administrative processes," id., that would warrant "the deference traditionally shown to administrative rulings." Id.
of the rule). See Schisler II, 851 F.2d at 44-45 (quoting district court). The Secretary appealed, claiming that the ordered revisions exceeded the district court's authority.
In upholding the district court's authority to order the revisions, we further articulated the rule. In particular, we held that the nature of the relationship between the physician and the claimant, rather than the relationship's duration, was "determinative" of whether the physician was a "treating source" under the rule and that "[t]he opinions of non-examining medical personnel cannot, in themselves and in most situations, constitute substantial evidence to override" a treating physician's opinion. Id. at 45-47. To the extent that the district court's version of the Secretary's draft agreed with the Second Circuit's rule, as further articulated in Schisler II, it was upheld. The full SSR as approved by us is set out in APPENDIX A. After the decision, all identified and located Schisler II claimants received the relief to which they were entitled.
Meanwhile, a similar class action was brought in the District of Vermont by Jonathan Aldrich, on behalf of himself and a Vermont-wide class of claimants similarly situated. Aldrich claims. Unlike the class in Schisler, the Aldrich class has not obtained full relief. 2
In 1991, after notice and comment periods, the Secretary issued the regulations that are at issue in the instant appeal. They are entitled "Standards for Consultative Examinations and Existing Medical...
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