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Bulletin Board

September 27, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

The "Bulletin Board" contains information about recent disability decisions from the United States Supreme Court and the United States Court of Appeals for the Second Circuit.




Astrue v. Capato, ex rel. B.N.C., 132 S. Ct. 2021 (2012)

A unanimous Supreme Court upheld SSA's denial of survivors' benefits to posthumously conceived twins because their home state of Florida does not allow them to inherit through intestate succession.  The Court relied on Section 416(h) of the Social Security Act, which requires, inter alia, that an applicant must be eligible to inherit the insured's personal property under state law in order to be eligible for beneifts.  In rejecting Capato's argument that the children, conceived by in vitro fertilization after her husband's death, fit the definition of child in Section 416(e), the Court deferred to SSA's interpretation of the Act.

Barnhart v. Thomas, 124 S. Ct. 376 (2003)

The Supreme Court upheld SSA’s determination that it can find a claimant not disabled at Step Four of the sequential evaluation without investigation whether her past relevant work actually exists in significant numbers in the national economy. A unanimous Court deferred to the Commissioner’s interpretation that an ability to return to past relevant work can be the basis for a denial, even if the job is now obsolete and the claimant could otherwise prevail at Step Five (the “grids”). Adopted by SSA as AR 05-1c.

Barnhart v. Walton, 122 S. Ct. 1265 (2002)

The Supreme Court affirmed SSA’s policy of denying SSD and SSI benefits to claimants who return to work and engage in substantial gainful activity (SGA) prior to adjudication of disability within 12 months of onset of disability. The unanimous decision held that the 12-month durational requirement applies to the inability to engage in SGA as well as the underlying impairment itself.

Sims v. Apfel, 120 S. Ct. 2080 (2000)

The Supreme Court held that a Social Security or SSI claimant need not raise an issue before the Appeals Council in order to assert the issue in District Court. The Supreme Court explicitly limited its holding to failure to “exhaust” an issue with the Appeals Council and left open the possibility that one might be precluded from raising an issue.

Forney v. Apfel, 118 S. Ct. 1984 (1998)

The Supreme Court finally held that individual disability claimants, like the government, can appeal from District Court remand orders. In Sullivan v. Finkelstein, the Supreme Court held that remand orders under 42 U.S.C. 405(g) can constitute final judgments which are appealable to circuit courts. In that case the government was appealing the remand order.

Lawrence v. Chater, 116 S. Ct. 604 (1996)

The Court remanded a case after SSA changed its litigation position on appeal. SSA had actually prevailed in the Fourth Circuit having persuaded that court that the constitutionality of state intestacy law need not be determined before SSA applies such law to decide “paternity” and survivor's benefits claims. Based on SSA’s new interpretation of the Social Security Act with respect to the establishment of paternity under state law, the Supreme Court granted certiorari, vacatur and remand.

Shalala v. Schaefer, 113 S. Ct. 2625 (1993)

The Court unanimously held that a final judgment for purposes of an EAJA petition in a Social Security case involving a remand is a judgment “entered by a Court of law and does not encompass decisions rendered by an administrative agency.” The Court, however, further complicated the issue by distinguishing between 42 USC §405(g) sentence four remands and sentence six remands.




Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)
The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.
Cage v. Commissioner of Social Security,
692 F.3d 118 (2d Cir. 2012)
The Court of Appeals held that the burden of proving that drug or alcohol addiction is not material to a disability claim rests with the claimant. It also affirmed the ALJ’s finding that the claimant would not be disabled absent drug addiction or alcoholism (“DAA”) was supported by substantial evidence even though there was no medical opinion specifically addressing materiality. It ruled that that a “predictive medical opinion” addressing the issue of materiality was not necessary.
Brault v. Social Sec. Admin. Com’r,
683 F.3d 443 (2d Cir. 2012)

The Court ruled that an ALJ is not required to state expressly his reasons for accepting challenged vocational testimony, nor is the ALJ required to grant the claimant an opportunity to inspect and challenge the VE’s evidence. The claimant had challenged the VE’s method of “extrapolating” from data to arrive at the numbers of available jobs in the economy, relying on a line of cases holding that although the Federal Rules of Evidence do not apply in Social Security claims, the “spirit” of Rule 702 regarding scientific evidence should. See, e.g., Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). The court refused to extend the Daubert type rule to the Second Circuit. It acknowledged that an ALJ need never question the reliability of VE testimony, and agreed that evidence cannot be “conjured out of whole cloth,” but concluded that “the extent to which an ALJ must test a VE's testimony is best left for another day and a closer case.”
Vincent v. Astrue, 651 F.3d 299 (2d Cir. 2011)

In a case involving EAJA (Equal Access to Justice Act) attorney fees, the Second Circuit held that counsel representing Social Security claimants cannot be penalized on fee petitions “for failing to address issues collateral to the disability determination as to which counsel had no notice.” The district court had found that although the ALJ had failed to develop the record, counsel should have should have addressed the underdeveloped issues as part of “his ethical obligation to act with reasonable diligence.” The Court of Appeals found that the district court “demanded too much of counsel.” Counsel should not have “to anticipate and refute all conceivable credibility issues….” His perceived failure to anticipate what were essentially collateral issues to the finding of disability were not “special circumstances” justifying a reduction in his EAJA award. The responsibility for the gaps in the records fell exclusively on the ALJ.

Genier v. Astrue, 606 F.3d 46 (2d Cir. 2010)

Court of Appeals remanded for further proceedings where the ALJ’s decision was based on a serious misunderstanding of the claimant’s testimony. The claimant’s testimony relating to his ability to perform household chores at the time of the hearing did not pertain to the time when he completed the questionnaire or to any time prior to his bariatric surgery. Since the ALJ’s adverse credibility finding, crucial to the rejection of the claim, was based on a misreading of the evidence, the court held that it did not comply with the ALJ’s obligation to consider all relevant medical and other evidence, citing 20 C.F.R §404.1545(a)(3).

Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010)

Commissioner’s decision upheld where ALJ’s failure to consider a report from plaintiff’s psychiatrist because it was “incomplete and unsigned,” while incorrect, did not necessitate remand since the correct application of the treating physician would still lead to the conclusion that the plaintiff could return to her past relevant work. Case involved a “closed period” of disability, based on an agreement by counsel at the hearing to amend the time-period in issue to the period before the plaintiff allegedly began performing substantial gainful activity (SGA). The Court rejected the plaintiff’s arguments on appeal that the ALJ should have done more to develop the record regarding the actual work activity. It also held the plaintiff’s attorney had the authority to amend the period under review.

Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009)

Finding that the ALJ had inadequately developed claimant’s record by means of a brief and limited hearing where the ALJ had neither thoroughly examined claimant’s work history nor properly qualified reports against claimant’s testimony, the Second Circuit remanded for further proceedings. The Court lamented remanding a case that was already thirty years old, but held that the remand was based on the ALJ’s failure to develop the record, rather than because the ALJ’s decision was not supported by substantial evidence. The claimant had been awarded benefits retroactive to 1991, but had appealed denials of his 1980 and 1987 applications under the provisions of two different class actions: Dixon v. Shalala, 54 F.3d 1019, 1021 (2d Cir. 1995), which challenged the Commissioner’s application of the “severity” step of the Sequential Evaluation; and Stieberger v. Sullivan, 792 F.Supp. 1376, modified, 801 F.Supp 1079 (S.D.N.Y. 1992), challenging the Commissioner’s policy of non-acquiescence in Circuit case law.

Encarnacion ex rel. George v. Astrue, 568 F.3d 72 (2d Cir. 2009) (“Encarnacion II”), cert. denied 130 S.Ct. 2342, 176 L.Ed.2d 576 (U.S. 2010).

The Court rejected plaintiffs’ challenge to SSA’s policy preventing adjudicators from adding together less than marked limitations from separate domains and prohibiting SSA from adjusting the level of limitation in one domain to reflect the impact of limitations in other domains. The Court deferred to the Commissioner’s interpretation of focusing on combined impairments within each domain rather than across domains. It held that the Commissioner's interpretation satisfies the test that each of a claimant's impairments be given at least some effect during each step of the disability determination process because SSA considers all impairments within each domain.

Poupore v. Astrue, 566 F.3d 303 (2d Cir. 2009)

The Court agreed the opinion of the treating orthopedist that the claimant could perform “sedentary, light-duty” supported the ALJ’s finding that the claimant had the residual functional capacity (RFC) for light work. It found that the need to get up and move around from time to time does not preclude an ability to perform sedentary work. It also upheld the ALJ’s credibility finding, observing that the ALJ correctly noted the claimant’s level of daily activities, including caring for his one-year old child. Finally, the Second Circuit adopted the Commissioner’s argument that 20 C.F.R. §404.1560(c)(2)(2003) abrogated Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000), clarifying that the Commissioner need not provide additional evidence of RFC at Step five of the sequential evaluation. Plaintiff’s argument that the regulations should not be applied retroactively was deemed waived since it was not raised in the district court.

Lamay o/b/o KPD v. Astrue, 562 F.3d 503 (2d Cir. 2009), cert. denied 130 S.Ct. 1503, 176 L.Ed.2d 152 (U.S. 2010).

In a case involving an unrepresented parent in a child’s SSI claim, the Court found that that the plaintiff had made a knowing and intelligent waiver of her right to counsel. In holding that additional disclosures advising the plaintiff of the availability and benefits of representation required by prior case law are not mandatory under the Social Security Act, the Court acknowledged a split in the circuits on this issue.

Kohler v. Astrue, 546 F.3d 260 (2d Cir. 2008)

In a mental impairment case, the Second Circuit held that the ALJ’s failure to adhere to the regulations requiring the application of a “special technique” at Steps two and five of the sequential evaluation constituted grounds for remand. The court agreed with several other circuits in finding remand appropriate where the ALJ’s noncompliance with 20 C.F.R. §404.1520a(e)(2) resulted in an inadequately developed record in terms of the four functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of compensation. The court also criticized the ALJ for focusing in isolation on the treating source’s use of the word “stable,” and for failing to consider the opinion of the nurse practitioner, where she was the only medical professional available the very rural ‘North Country’ of New York State.

Burgess v. Astrue, 537 F.3d 117 (2d Cir 2008)

The ALJ’s finding that there was no objective evidence to support opinion of treating physician that claimant’s back impairment was disabling was unsupported, where both the ALJ and the medical expert on whom he relied erroneously assumed that MRI referred to in other reports was not actually in the file.  The court noted that even if the MRI report was not in the exhibit file, the ALJ – once made aware of its existence – would have been obligated to request it. The court also rejected the Commissioner’s attempt to argue that the MRI did not support the treating physician’s opinion, since the court could not affirm on grounds different that those considered by the agency.  Nor was the Commissioner or the District Court permitted to substitute their views for that of competent medical opinion.  In remanding for further consideration of the treating physician opinion, the court summarized many of its leading treating physician cases.

Burger v. Astrue, 2008 WL 2595167 (2d Cir. June 27, 2008)

While acknowledging that the claimant has the burden of demonstrating she could not return to her past relevant work, the court found that the claimant was unable to do so because she lacked both funds and insurance.  Her failure to seek medical treatment, while in some circumstances could cast doubt on her testimony, should not be held against her. The court ruled that the ALJ was obligated to help develop the record to ensure an accurate assessment of residual functional capacity, including ordering consultative examination is necessary. 

Torres v. Barnhart, 417 F.3d 276 (2d Cir. 2005)

In a decision clarifying the grounds for equitable tolling, the Second Circuit found that the District Court’s failure to hold an evidentiary hearing on whether a plaintiff’s situation constituted “extraordinary circumstances” warranting equitable tolling was an abuse of discretion. The Court found that the plaintiff, a pro se litigant, was indeed diligent in pursuing his appeal but mistakenly believed that counsel who would file the appropriate federal court papers represented him.  This decision continues the Second Circuit’s fairly liberal approach to equitable tolling.

Pollard v. Halter, 377 F.3d 183 (2d Cir. 2004)

In a children’s SSI case, the Court held that a final decision of the Commissioner is rendered when the Appeals Council issues a decision, not when the ALJ issues a decision.  In this case, since the Appeals Council decision was after the effective date of the “final” childhood disability regulation, the final rules should have governed the case.  The Court also held that new and material evidence submitted to the district court should be considered even though it was generated after the ALJ decision.  The Court reasoned that the evidence was material because it directly supported many of the earlier contentions regarding the child’s impairments.

Holloran v. Barnhart, 362 F. 3d 28 (2d Cir. 2004)

Treating physician opinions not entitled to controlling weight where inconsistent with other evidence and not particularly informative.  Treating physician merely responded to multiple choice questionnaire about claimant’s ability to sit/stand.

Jasinski v. Barnhart, 341 F.3d 182 (2d Cir. 2003)

Vocational expert’s testimony as to exertional requirements of claimant’s past relevant work as a teacher’s aide was not in conflict with descriptions of job in the Dictionary of Occupational Titles (DOT), since the VE relied on the claimant’s descriptions of how the job was actually performed as opposed to generally performed.  The Court held that substantial evidence supported the Commissioner’s findings that claimant could return to her past work.

Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003)

In a fibromyalgia case, the Second Circuit ruled that “objective” findings are not required in order to make a finding of disability and that the ALJ erred as a matter of law by requiring the plaintiff to produce objective medical evidence to support her claim.  Furthermore, the Court found that the treating physician’s opinion should have been accorded controlling weight and that the fact that the opinion relied on the plaintiff’s subjective complaints did not undermine the value of the doctor’s opinion.

Byam v. Barnhart, 324 F.3d 110 (2d Cir. 2003)

The Court ruled that federal courts might review the Commissioner’s decision not to reopen a disability application in two circumstances:  where the Commissioner has constructively reopened the case and where the claimant has been denied due process.  Although the Court found no constructive reopening in this case, it did establish that “de facto” reopening is available in an appropriate case.  The Court did, however, find that the plaintiff was denied due process because her mental impairment prevented her from understanding and acting on her right to appeal the denials in her earlier applications.  The Circuit discussed SSR 91-5p and its Stieberger decision as support for its finding that mental illness prevented the plaintiff from receiving meaningful notice of her appeal rights.

Veino v. Barnhart, 312 F.3d 578 (2d Cir. 2002)

In a continuing disability review (CDR) case, the Second Circuit ruled that the medical evidence from the original finding of disability, the comparison point, must be included in the record.  In the absence of the early medical records, the record lacks the foundation for a reasoned assessment of whether there is substantial evidence to support a finding of medical improvement.  The Court held that a summary of the medical evidence contained in the disability hearing officer’s (DHO) decision was not evidence

Draegert v. Barnhart, 311 F.3d 468 (2d Cir. 2002)

The Second Circuit addressed the issue of what constitutes “aptitudes” as opposed to “skills” in determining whether a claimant has transferable skills under the Grid rules.  The Court found that there was an inherent difference between vocational skills and general traits, aptitudes and abilities.  Using ordinary dictionary meanings, the Court found that aptitudes are innate abilities and skills are learned abilities.  The Circuit noted that for the agency to sustain its burden at step 5 of the sequential evaluation that a worker had transferable skills, the agency would have to identify specific learned qualities and link them to the particular tasks involved in specific jobs that the agency says the claimant can still perform.

Shaw v. Chater, 221 F.3d 126 (2d Cir. 2000)

The Second Circuit reaffirmed its support and approval of retrospective medical evidence and its continued insistence that SSA adhere to its own treating physician rule. In addition, the Second Circuit has found as a matter of law that an SSI application must be treated as a concurrent SSD application.

Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000)

The Second Circuit found that SSA failed to meet its burden at Step 5 because the consultative examiner’s report was so vague as to “render it useless.”  As SSA failed to introduce evidence sufficient to meet its burden at Step 5, the Court then remanded only for calculation of benefits.  Note that SSA’s Acquiescence Ruling adopting Curry (burden of proving residual functional capacity at step five of the sequential evaluation process for determining disability - titles II and XVI of the Social Security Act), AR 00-4(2), was rescinded on 9/25/2003, based on regulatory amendments “clarifying” SSA’s policy.

Williams v. Apfel, 204 F.3d 48 (2d Cir. 1999)

The Second Circuit remanded the case for further administrative proceedings to determine Ms. Williams’s ability to perform any other work in the national economy (a Step 5 determination).  This case is significant because the district court judge had concluded that Ms. Williams was unable to perform her past relevant work and awarded benefits to her on that basis.  The Commissioner, not the plaintiff, then appealed, arguing that the district court erred in granting Williams’s motion for judgment on the pleadings when it should have remanded the case for a Step 5 determination.

Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999)

The Second Circuit reversed and remanded on the grounds that the Appeals Council failed to provide adequate reasons for its decision, may have ignored favorable evidence, and should have fully developed the record.  The Court made clear that it will not accept perfunctory conclusions by SSA.  The Court also refused to let the Commissioner attempt to offer explanations at the appellate level; it would “not accept appellate counsel’s post hoc rationalization for agency action” as to why, in the case of Ms. Snell’s second treating physician, the agency accepted one less favorable evaluation over another more favorable one.

Melville v. Apfel, 198 F.3d 45 (2d. Cir. 1999)

The Second Circuit rejected the argument that workfare can never be considered evidence of claimant’s ability to perform SGA.  It ordered remand for proper consideration of the plaintiff’s work activity, setting forth what such an evaluation should include.

Brown v. Apfel, 174 F. 3d 59 (2d Cir. 1999)

The Second Circuit remanded a case for further proceedings based on the additional evidence submitted in the appeal to the Appeals Council.  The Court remanded because the new evidence submitted to the Appeals Council undermined the findings upon which the ALJ decision rested.  The Court was also sharply critical of the agency’s failure to develop the record and of the ALJ’s substitution of his own judgment of that of a physician.

Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999)

Remanding the case for further administrative proceedings to correct various errors, the Second Circuit held that: (a) the ALJ cannot set her own expertise against that of the treating physician and then reject the treating physician’s opinion; (b) the ALJ has a duty to contact treating and other medical sources to clear gaps in the administrative record even when represented by counsel: (c) the ALJ erred in applying the Medical Vocational Guidelines (the “Grid”) to deny benefits in a case in which it was undisputed that the claimant suffered from non-exertional impairments; and the Commissioner must present affirmative evidence to sustain its burden of proof and demonstrate a claimant has the residual functional capacity to meet the demands of sedentary work.

Tejada v. Apfel, 167 F.3d 770 (2d Cir. 1999)

The Second Circuit remanded the case for a new hearing and determination confined to Step 5 of the sequential evaluation.  The Court instructed the Commissioner to either find other work that the claimant could perform or pay benefits.  Further, the Court urged the Commissioner to expedite the proceedings on remand as Ms. Tejada’s application had been pending for more than five years.

Yancey v. Apfel, 145 F.3d 106 (2d Cir. 1998)

The Court held that the ALJ did not abuse his discretion in refusing to subpoena Yancy’s treating physician to testify at the administrative hearing.  In reaching this decision, the Court held that practical concerns strongly militated against adopting a rule establishing an absolute right to subpoena a reporting physician.  The Court noted that it was particularly concerned that to accept, as a matter of law, that a disability claimant has an absolute right to subpoena a reporting physician would unnecessarily increase the financial and administrative burdens of processing disability claims while diluting the ALJ’s discretion in how he develops the record.

Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998)

The Second Circuit remanded a case to allow the ALJ to re-weigh the evidence as the Court could not discern the legal standard the ALJ had applied.  The Court also noted that the ALJ failed to provide a statement of valid reasons for not crediting the opinion of the claimant’s treating physician.

Ellis v. Apfel, 147 F.3d 139 (2d Cir. 1998)

The Second Circuit held that counting rental assistance from a non-relative/non-landlord and not counting rental assistance from a relative/landlord (1) does not violate rational basis equal protection and (2) fits within the rubric of Ruppert because such rental assistance from a non-relative, non-landlord is portable.

DeChirico v. Chater, 134 F.3d 1177 (2d Cir. 1998)

The court defined stump complications as including prosthetic intolerance as well as those arising from the shape or character of the stump itself.  According to the Second Circuit, a leg amputation at or above the ankle is a per se disabling condition if the amputee cannot reasonable obtain a properly fitting prosthesis that allows the amputee to walk without a cane, crutches or other “assistive device.”

Clark v. Commissioner of Social Security, 143 F.3d 115 (2d Cir. 1998)

The Court reaffirmed its holding in Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998) that the lack of specific clinical findings in the treating physician’s report did not, standing by itself, justify the ALJ’s failure to credit the physician’s opinion.  In Clark, the Court was faced with the interesting dilemma of treating physician’s reports with perceived inconsistencies.  The pro se claimant argued that the ALJ should have acted differently to seek out clarifying information concerning the perceived inconsistencies.  The Court agreed.

Balsamo v. Chater, 142 F.3d 75 (2d Cir. 1998)

The Second Circuit set aside the ALJ decision because SSA failed to introduce any medical evidence that the claimant could hold a sedentary job.  The ALJ did not cite any medical evidence to dispute the claimant’s treating source opinions about his impairments.  Thus, the Court concluded that it was error for the ALJ to reject those opinions and to substitute his own judgment.  The Court remanded the case solely for the calculation of benefits.

Quinones v. Chater, 117 F.3d 29 (2d Cir. 1997)

The Court noted that the regulations require consideration of how impairments in one domain affect functions in other domains and found that the district court was incorrect in concluding that there would be impermissible “double counting” of the learning disability evidence.  The Court focusing on the concentration domain held that a learning disability does not automatically involve impairment of concentration.  The Court noted that some children who read and perform other academic tasks below age-appropriate levels are nevertheless able to focus and concentrate on their work.  This important decision deals with the children’s regulations as they existed prior to August 1996.

Stieberger v. Apfel, 134 F.3d 37 (2d Cir. 1997)

The Court ruled that, where a sufficient allegation of mental impairment has been made, “notice of denial of disability benefits to an unrepresented claimant who cannot comprehend it because of mental impairment is constitutionally deficient.”  The Court, holding that the District Court had the jurisdiction to review this type of case, remanded the case to the District Court to determine “whether the adverse decision reached by the ALJ at the 91-5p hearing is supported by substantial evidence.”  It is the first time that the Second Circuit has found that a District Court had jurisdiction to review, due to its constitutional deficiency, an SSA unfavorable decision that an individual had no “good cause” to miss a deadline.

Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996)

The Court identified multiple errors of law in the ALJ’s decision and remanded the case.  The ALJ had denied, at step five of the sequential evaluation, the claim of a former mechanic suffering from HIV.  The Court held that:  (a) the ALJ failed to develop the record even though the claimant had an attorney; (b) remand was necessary because a gap in the hearing tape caused the medical expert’s testimony to be lost; (c) “review physician” opinions were generally not substantial  evidence to support denial of the claim, citing Vargas and Hidalgo; (d) the ALJ made errors in referring to the record; and (e) once the ALJ identified the claimant’s nonexertional impairments its Bapp decision prevented reliance on the Grid to deny benefits.

Perez v. Chater, 77 F.3d 41 (2d Cir. 1996)

The Second Circuit held that over SSA’s objection, that evidence of disability submitted to the Appeals Council becomes part of the administrative record, and is reviewable by the district court, even though such evidence was neither seen nor evaluated by the agency’s ALJ.  After issuing such a favorable holding, the court affirmed SSA’s denial of Perez’s retroactive disability benefits, holding both that it was supported by substantial evidence and that the agency had adequately developed the record.

Bush v. Chater, No. 95-6215, CCH 15, 542B (2d Cir. 1996)

The Court affirmed on substantial evidence grounds, an administrative decision that had denied at step four of the sequential evaluation the claim of a woman suffering from bronchitis.  In reversing a district court decision that had found the woman disabled, the Court noted that the district court may have been frustrated by the ten years of administrative delay in the case, but that delay alone does not justify an award of benefits if the evidence doesn’t establish disability.

Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995)

The Court ruled that SSA unlawfully denied disability claims by misapplying the “not severe” step of the sequential evaluation.  The decision will require SSA to offer to fully reopen and re-adjudicate up to 200,000 claims denied between June 1976 and July 1983.

Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995)

The Court held that according to regulations promulgated on August 1, 1991 and which were the subject of litigation in Schisler v. Shalala, 3F. 3d 563 (2d Cir. 1993), a chiropractor’s opinion is not a medical opinion.  Thus, the Court ruled that SSA did not have to give controlling weight to a chiropractor’s opinion as SSA need only provide controlling weight, when appropriate, to medical opinions.

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

The Court held that the Secretary’s regulations governing the weight to be given the opinion of a treating physician are valid and will be applied to all levels of review of disability decisions.  The “Schisler SSR” therefore, is no longer in effect.  Nonetheless, even thought the regulations differ from the SSR, the factors to be considered in determining the weight to be given the treating physician are not unreasonable.  Vermont advocates should note that Schisler v. Sullivan consolidates Schisler with Aldrich v. Sullivan, 800 F. Supp. 1197 (D. Vt. 1992), a parallel class action in Vermont.

Lisa v. Secretary of Department of HHS, 940 F.2d 40 (2d Cir. 1991)

The Court remanded the case directly to SSA for consideration of new evidence, explaining that under Tirado v. Bowen, 842 F.2d 595 (2d Cir. 1988):  (1) a treating doctor’s report is “new,” and not “cumulative,” if it describes a previously mentioned condition in greater depth; and (2) a report is “material” if it sets forth a new diagnosis that shows the impairment was more severe than was previously known, and where the new diagnosis also bolsters the claimant’s credibility.  The Court also held that a separate treating physician report, which stated that the claimant was “unable to work,” would not justify remand since (1) the doctor had submitted previous reports and there was no “good cause” for the claimant’s failure to previously obtain the particular report, and (2) the report was not “material” since it was “bereft of any supporting analysis” and deserved only “marginal weight.”

Jones v. Sullivan, 949 F.2d 57 (2d Cir. 1991)

The Court remanded the case to the district court to determine whether a new report from a treating physician – addressing the onset date of disability – established “good cause” to remand the case to SSA.  The circuit court stated that “only when the appeals court can determine that the new evidence is sufficient as a matter of law to require a new hearing is remand from the appeals court directly to the Secretary appropriate.”  Without deciding whether there was good cause, the court suggested that the district court might find good cause since Jones was pro se, played a “passive role” at the agency level, and might have been unaware of the need to obtain the treating physician’s opinion.

Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991)

The Court reversed a district court decision dismissing a complaint for failure to comply with 60-day statute of limitations of 42 USC §405(g).  The court found that a mental impairment might justify equitable tolling of the statute of limitations and that plaintiff averred facts sufficient to warrant consideration of the claim.  The court thus remanded the action with instructions to conduct an evidentiary hearing to determine whether plaintiff’s condition justified equitable tolling.  In a separate opinion, issued on October 28, 1991, the court rejected SSA’s motion for rehearing.  SSA had asked the court to vacate its earlier opinion on the ground that a new Social Security Ruling (SSR 91-5p) made clear that mental incapacity may be a sufficient ground for tolling administrative time limits.  The court held that issuance of the SSR was not a sufficient ground to require vacating the earlier opinion.

For earlier Social Security decisions from the Second Circuit Court of Appeals, see the Stieberger Manual, published by SSA pursuant to the district court’s decision in Stieberger v. Apfel, 738 F. Supp. 716 (S.D.N.Y. 1990), which challenged the Commissioner’s refusal to acquiesce in circuit law.  The Manual can be found in SSA’s HALLEX at (Attachment C).


 1993-2003 updates to compilation of Second Circuit cases can be found at


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