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Schisler v. Bowen

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


September 19, 1988

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

851 F.2d 43.

Winter, Pratt and Altimari, Circuit Judges.

ON PETITION FOR REHEARING

Plaintiffs-appellees petition for rehearing in Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988) (" Schisler II "). Plaintiffs-appellees argue that we misstated our "treating physician rule" in Schisler II when we deleted from the SSR the district court's addition of language stating that "opinions of non-examining medical personnel cannot, in themselves and in most situations, constitute substantial evidence to override the opinion of a treating source." In reversing, we characterized this language as based solely on dictum in Havas v. Bowen, 804 F.2d 783, 786 (2d Cir. 1986). At 46. Plaintiffs-appellees contend, however, that addition of the language in question is justified by the holding of Hidalgo v. Bowen, 822 F.2d 294, 297 (2d Cir. 1987). We agree and order the restoration of the pertinent portion of the SSR as modified by the district court.

Granted.

19880919

© 1998 VersusLaw Inc.



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