Schisler v. Sullivan

3 F.3d 563
CourtCourt of Appeals for the Second Circuit
DecidedAugust 23, 1993
DocketNos. 786, 909, 773, 900, Docket 92-6232, 92-6234, 92-6233, 92-6243
StatusPublished
Cited by368 cases

This text of 3 F.3d 563 (Schisler v. Sullivan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993).

Opinion

WINTER, Circuit Judge:

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 [565]*565courts. 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.

BACKGROUND

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 them condition. See Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, § 2, 98 Stat. 1794 (amending Social Security Act and reinstating the need to prove medical improvement before terminating benefits). 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 eases 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 eases. 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 eases, 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 restate[566]*566ment 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 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 ... elaborating] 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 “resorting] to the customary administrative processes,” id., that would warrant “the deference traditionally shown to administrative rulings.” Id.

In upholding the district court’s authority to order the revisions, we further articulated the rule.

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3 F.3d 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schisler-v-sullivan-ca2-1993.