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Stieberger v. Bowen

decided: September 8, 1986.

THERESA STIEBERGER, INDIVIDUALLY AND ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED; THE CITY OF NEW YORK, PLAINTIFFS-APPELLEES
v.
OTIS R. BOWEN, SECRETARY, UNITED DEPARTMENT OF HEALTH AND HUMAN SERVICES; MARTHA MCSTEEN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION; LOUIS B. HAYS, ASSOCIATE COMMISSIONER OF HEARINGS AND APPEALS AND ACTING DIRECTOR, OFFICE OF PROGRAMS AND POLICY, SOCIAL SECURITY ADMINISTRATION; AND PHILIP T. BROWN, CHIEF ADMINISTRATIVE LAW JUDGE, OFFICE OF HEARINGS AND APPEALS, SOCIAL SECURITY ADMINISTRATION, DEFENDANTS-APPELLANTS



Appeal from a preliminary injunction issued by the District Court for the Southern District of New York (Leonard B. Sand, Judge) barring the Secretary from denying or terminating disability benefits under policies inconsistent with decisions of this Circuit and granting relief to implement this prohibition. 615 F. Supp. 1315. Preliminary injunction vacated.

Author: Newman

Before: MESKILL, NEWMAN, and KEARSE, Circuit Judges.

JON O. NEWMAN, Circuit Judge :

This appeal from the issuance of a preliminary injunction against the Secretary of Health and Human Services potentially raises far-reaching issues concerning the proper role of agencies and courts in the implementation of statutes. The issues arise in the context of adjudicating claims for disability benefits. The District Court for the Southern District of New York (Leonard B. Sand, Judge) ruled that the Secretary has violated and will violate the rights of a class of present and future claimants for disability benefits by failing to apply the law of this Circuit concerning the so-called "treating physician rule," the standard for assessing the significance of the medical testimony presented by a claimant's treating physician. The Court issued an injunction barring the Secretary from denying or terminating benefits under policies inconsistent with decisions of this Circuit and granting other relief to implement this prohibition. Stieberger v. Heckler, 615 F. Supp. 1315 (S.D.N.Y. 1985). After the District Court's decision, another panel of this Court ordered a substantial but less far-reaching remedy on behalf of a class of disability claimants who had complained of the Secretary's failure to observe the treating physician rule. Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986). For reasons that follow, we conclude that the Schisler remedy has removed, at least for now, the justification for the preliminary injunction issued in this case, and we therefore vacate the injunction.

Background

Clarification of the issues requires a detailed examination of the proceedings in the District Court. The amended complaint was brought by the plaintiff, Theresa Stieberger, on behalf of herself and a class alleged to consist of all New York residents who have had disability benefits denied or terminated since October 1, 1981, by administrative law judges and who have not had benefits granted or restored in administrative appeals. The City of New York is also a plaintiff.*fn1 A class was certified, and later redefined by an order entered December 20, 1985, to include "All New York residents whose claims for benefits or continuation of benefits have been or will be denied or terminated since October 1, 1981, based on a determination that they do not have a disability that prevents them from engaging in substantial gainful activity." The defendants are the Secretary and other Health and Human Services officials, collectively referred to as "the Secretary."

The District Court ruled that jurisdiction under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (1982), was proper, that judicial waiver of the exhaustion of remedies requirement was appropriate, that the sixty-day period of section 205(g) was tolled, and that mandamus jurisdiction was available. See 615 F. Supp. at 1328-37.

In considering plaintiffs' motion for a preliminary injunction, the District Court initially determined that those future class members whose claims have not yet been resolved in the administrative process face irreparable injury if their claims are denied pursuant to policies they contend are unlawful. Judge Sand therefore proceeded to consider whether likelihood of success on the merits had been established.

The suit challenges two policies of the Secretary. The first concerns what the District Court concluded was the Secretary's de facto policy of non-acquiescence in the law of this Circuit concerning the treating physician rule. The second concerns so-called "Bellmon Review"--a program by which the Secretary, acting pursuant to an amendment to the Social Security Act sponsored by Senator Henry Bellmon,*fn2 initiates on his own motion review of decisions rendered by administrative law judges on disability claims. The District Court denied plaintiffs' motion for a preliminary injunction with respect to Bellmon review practices, requiring only that the Secretary provide the Court and the plaintiffs ten days' notice in the event that certain aspects of the Bellmon review program, which have been discontinued, are reimplemented. The defendants have not challenged this grant of limited relief, and the plaintiffs have not cross-appealed to seek broader relief. The Bellmon review issues are therefore not before us at this stage of the litigation.

On the issue of non-acquiescence, the District Court initially noted that the treating physician rule has been clearly articulated in the decisions of this Circuit. See, e.g., Bluvband v. Heckler, 730 F.2d 886, 892-93 (2d Cir. 1984); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980). In Schisler we summarized the rule as follows:

The rule, which has been the law of this circuit for at least five years, provides that a treating physician's opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is: (i) binding on the fact-finder unless contradicted by substantial evidence; and (ii) entitled to some extra weight because the treating physician is usually more familiar with a claimant's medical condition than are other physicians, although resolution of genuine conflicts between the opinion of the treating physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the factfinder.

787 F.2d at 81 (citations omitted). We also noted in Schisler that an additional element of the rule is "'that there is not requirement that the [treating] physician's medical testimony be supported by objective clinical or laboratory findings.'" Id. at 82 n.2 (quoting Bluvband v. Heckler, supra, 730 F.2d at 893).

The District Court then considered whether the Secretary was complying with the rule. The Court cited Social Security Ruling (SSR) 82-48c (1982), which provides that other things being equal, the fact that a physician treated a claimant will increase the weight accorded to that physician's opinion, but noted that this SSR does not mention that the treating physician's opinion is binding unless contradicted by substantial evidence. The Court also cited regulations suggesting that a treating physician's opinion must be supported by clinical or laboratory findings. See 20 C.F.R. §§ 404.1526(b), 416.925(b) (1986). Mention was also made of SSR 83-6c (1983), which adopted views expressed in Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir. 1982), to the effect that a treating physician's views sometimes ought not to be given controlling weight because that physician "might have been leaning over backwards to support the application for disability benefits." Finally, the District Court placed major emphasis of decisions of this Court and of eighteen judges of the district courts within New York that have overturned denial or termination of disability benefits because of inadequate compliance or even disregard of the treating physician rule. 615 F. Supp. at 1347-49 (collecting cases).

Based on these materials, Judge Sand concluded that "the preliminary showing here is virtually as strong a showing of de facto non-acquiescence as can be made." Id. at 1349. The District Court then considered and rejected the defendants' contention that Congress had ratified the Secretary's approach to assessing the opinion of the treating physician by enacting section 9(b)(1) of the Social Security Disability Benefits Reform Act of 1984 (the "Reform Act"), Pub. L. No. 98-460, 98 Stat. 1794, 1805 (codified at 42 U.S.C. § 423(d)(5)(B) (Supp. II 1984)). That conclusion led the District Court squarely to face the legality of the non-acquiescence policy it was satisfied existed. In assessing the likelihood that the plaintiffs would prevail in demonstrating the illegality of non-acquiescence, the District Court considered the Secretary's approach to non-acquiescence not only with respect to this Circuit's treating physician rule but more broadly with respect to adherence to any decisions of the courts of ...


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