stating that a comment in a decision could “be viewed as dictum since it was not necessary to the court’s holding”
How later courts described this case
- stating that a comment in a decision could “be viewed as dictum since it was not necessary to the court’s holding”
- permitting the petitioner to raise an argument for the first time on appeal because the Board consistently rejected the petitioner’s argument
- a court’s opinion “may be viewed as dictum since it was not necessary to the court’s holding”
Written by the judges who cited it.
The opinion
RALPH B. GUY, Jr., Circuit Judge,
concurring in part and dissenting in part.
I agree with the majority that the issue of Kyle’s entitlement to an “interim presumption” of disability under 20 C.F.R. § 410.490 is properly before us, but respectfully disagree with their resolution of this issue.
I would read the statute as the Secretary suggests, as requiring that no less restrictive medical criteria be incorporated into the regulations. In support of my conclusion, I would offer the reasoning of the dissent in Halon v. Director, Office of Workers’ Compensation Programs, 713 F.2d 21 (3rd Cir.1983). In Halon , Judge Weis made a thorough analysis of the purpose and legislative history of the statutory language in question, and I find this analysis more persuasive than that of the majority here.