unempl.ins.rep. (Cch) P 16316a Dolores Canales v. Louis W. Sullivan, M.D., Secretary of Health and Human Services , 947 F.2d 45 ( 1991 )

947 F.2d 45

Unempl.Ins.Rep. (CCH) P 16316A
Dolores CANALES, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, M.D., Secretary of Health and Human
Services, Defendant-Appellee.

Nos. 1507, 1508, Dockets 90-6144, 90-6306.

United States Court of Appeals,
Second Circuit.

Petition for Rehearing Submitted on Aug. 26, 1991.
Decided Oct. 28, 1991.

Kenneth J. Barnes, Bronx, N.Y. (Bronx Legal Services, Guilene Cherenfant, of counsel), for plaintiff-appellant.

A. George Lowe, Deputy Chief Counsel for Social Sec. Disability Litigation, Office of the Gen. Counsel, Social Sec. Div., Baltimore, Md. (Stuart M. Gerson, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., Donald A. Gonya, Chief Counsel for Social Sec., Randolph W. Gaines, Deputy Chief Counsel for Social Sec., of counsel), for defendant-appellee.

Jane E. Booth, Director of Litigation, New York City (Legal Aid Soc., Civ. Appeals & Law Reform Unit, Matthew Diller, of counsel), as Amicus Curiae.

Before LUMBARD, CARDAMONE, Circuit Judges, and LASKER,* District Judge.

LUMBARD, Circuit Judge:

1

The Secretary has petitioned for rehearing. He asks us to vacate our opinion which was filed on June 27, 1991 936 F.2d 755 and remand the case to him for reconsideration in light of Social Security Ruling SSR-91-5p, 56 Fed.Reg. 29,971, which was issued on July 1, 1991, four days after we filed our opinion. The new ruling permits claimants to raise mental incapacity as good cause for missing the deadline to request review of the denial of social security benefits. We have considered the petition and the Secretary's brief, the brief of the plaintiff Dolores Canales, and the amicus brief of the Legal Aid Society.

2

We see no need to vacate our opinion. Of course, the district court in its discretion may remand the case to the Secretary. In view of the lapse of time since the claims were first asserted, control of further proceedings by the district court assures an earlier disposition on the merits.

*

Morris E. Lasker, United States Senior District Court Judge for the Southern District of New York, sitting by designation