I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the August 23, 1993 decision of the United States Court of Appeals for the Second Circuit in the Schisler v. Sullivan and Aldrich v. Sullivan class actions, with respect to the evaluation of treating physician opinion.

Although the TI affects only adjudicators processing cases of Second Circuit residents (Connecticut, New York and Vermont), adjudicators throughout the country must be familiar with the TI because of potential case transfers or claimant changes of address.

II. Background

On April 2, 1986, in connection with the Schisler litigation, the Court of Appeals for the Second Circuit ordered the Secretary to prepare a written statement directing adjudicators at all levels to apply the Second Circuit's treating physician rule. On February 9, 1987, in connection with the Aldrich litigation, the U.S. District Court for the District of Vermont addressed several matters and, among other things, ordered the Secretary to redetermine the claims of all class members whose applications were denied or terminated prior to implementation of the Schisler instructions. Accordingly, the Vermont Disability Determination Services identified for future retrieval, under “Code 254”on the SSA-831, all denials or terminations of Vermont residents that involved the evaluation of treating physician opinion. However, on August 5, 1987, the Aldrich court modified its prior order by holding that Aldrich class members whose cases had been decided or redetermined under the Aldrich Program Operations Manual System need not be readjudicated under the Schisler instructions. On October 29, 1987, after further Schisler litigation, the Commissioner of Social Security issued a ruling to address the evaluation of treating physician opinion in the disability claims of Second Circuit residents. Subsequently, after additional Schisler litigation, the court of appeals amended the ruling and the Commissioner issued it on March 9, 1989 (the "Schisler ruling").

Thereafter, on August 1, 1991, the Secretary published final regulations on the standards for consultative examinations and existing medical evidence (the “CE/MER” regulations). Those regulations also provide guidance on the evaluation of treating source opinion. The Secretary notified the U.S. District Courts for the Western District of New York and the District of Vermont in the Schisler and Aldrich litigation, respectively, of the regulations' publication and of the Secretary's intent to implement the regulations in the Second Circuit. In conjunction with that notice, the Secretary also requested the Schisler court's permission to rescind the Schisler ruling. The Schisler and Aldrich plaintiffs challenged the “CE/MER” regulations, and both district courts held that the regulations were binding in administrative proceedings but that the Second Circuit's treating physician rule would continue to govern in disability claims appealed to federal courts. Notwithstanding its holding on the regulations issue, however, the Schisler court granted the Secretary's request to rescind the Schisler ruling.

The parties in both Schisler and Aldrich filed cross-appeals to the Second Circuit. Following oral argument, the court of appeals issued a consolidated decision on August 23, 1993. The court upheld the validity of the regulations, determined that the regulations are binding on the courts and lifted a stay of implementation. Accordingly, on November 12, 1993, the Commissioner published Notice of Rescission of the Schisler ruling in the Federal Register (58 FR 60042). Subsequently, on November 23, 1993, the Associate Commissioner notified OHA decision makers to apply the “CE/MER” regulations in their entirety in adjudicating the disability claims of Second Circuit residents and to discontinue using the Schisler ruling.

III. Guiding Principles

Effective with publication of the Associate Commissioner's November 23, 1993 memorandum, OHA decision makers will apply (with the exceptions described below) the “CE/MER” regulations in their entirety to all disability claims of Second Circuit residents, and will discontinue using the Schisler ruling. Decision makers must cite the regulations, and decisional rationale must reflect application of the regulations. (See HALLEX , issued March 12, 1992, for discussion of the “CE/MER” regulatory provisions.)

Implementation of the Aldrich and Schisler class actions is essentially complete. Although no Code 254 cases have been identified for OHA review, a copy of the screening sheet used by the Office of Disability and International Operations is attached for information concerning the individuals entitled to relief.

IV. Inquiries

Hearing office personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022.