Appendix — Bowen v. Polaski
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OcTOBER TERM, 1986
Otis R. BOWEN, SECRETARY OF HEALTH
AND HUMAN SERVICES, PETITIONER
v.
LORRAINE POLASKI, ET AL.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHARLES FRIED
Solicitor General
RICHARD K. WILLARD
Assistant Attorney General
ALBERT G. LAUBER, JR.
Deputy Solicitor General
EDWIN S. KNEEDLER
Assistant to the Solicitor General
WILLIAM KANTER
HOWARD S. SCHER
Altorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217
oe _ ge
rn)
BN matic nee
TABLE OF CONTENTS
Page
Appendix A (court of appeals opinion dated 10/30/86) . . la
Appendix B (court of appeals order dated 1/8/87) ...... 3a
Appendix C (court of appeals opinion dated 12/31/84) .. 4a
Appendix D (court of appeals order dated 7/17/84) ..... 30a
Appendix E (district court order dated 4/17/84) ........ 35a
Appendix F (court of appeals order dated 4/27/84) ..... 49a
Appendix G (district court order dated 4/10/85) ....... 85a
Appendix H (district court order dated 4/12/85) ....... 86a
Appendix I (district court order dated 3/7/84) ......... 94a
Appendix J (court of appeals judgment dated 12/31/
We eee ba tea Ree Lie ee ae keene 99a
Appendix K (court of appeals rehearing order dated
MEE ceo nar a ede eet Ce oa a a dea a ae 100a
Appendix L (court of appeals amended rehearing
Ie A a PC os a 8 eek a x ok oe ease 10la
Appendix M (statutory appendix) ................. ... 102a
(I)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 84-5085
LORRAINE POLASKI, ET AL., APPELLEES,
Vv.
MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, APPELLANT.
Appeal from the United States District Court
for the District of Minnesota
Submitted: July 21, 1986
Filed: October 30, 1986
Before HEANEY, JOHN R. GIBSON and FAGG, Cir-
cuit Judges.
HEANEY, Circuit Judge.
This matter comes before this Court on remand from
the Supeeme Court of the United States. We were
directed to reconsider our decision in Polaski v. Heckler,
751 F.2d 943 (8th Cir. 1985) in light of Bowen v. City of
New York, 476 USS. , 54 U.S.L.W. 4536 (June 3,
1986). Upon our request, the parties filed supplemental
briefs.
The Secretary takes the position that our opinion
must be amended to exclude from the class those people
who filed claims with the Secretary within a stated time
(1a)
2a
period but failed to exhaust their administrative
remedies by appealing the Secretary’s denial of
benefits. The appellees argue that no amendment is re-
quired.
After a careful review of Bowen, we agree that no
amendment is required for the following reasons:
1. On petition for certiorari the Secretary stated
that the exhaustion issue in this case was essentially
identical to that presented to the Supreme Court in
Bowen. The Supreme Court in Bowen held that exhaus-
tion was not required.
2. Here, as in Bowen, we simply require that the
claims of the questioned class members be reopened at
the administrative level. We do not order that benefits
be paid. Unless these class members are permitted to
reopen their claims with the Secretary, they may suffer
irreparable injury.
This Court’s stay of July 10, 1985, is lifted and the
Clerk is directed to issue the mandate forthwith.
A true copy.
Attest:
CLERK: U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
3a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 84-5085-MN
LORRAINE POLASKI, ET AL., APPELLEES,
vV.
MARGARET M. HECKLER, ETC., APPELLANT.
Appeal from the United States District Court
for the District of Minnesota
Appellant’s petition for reheariz.s en banc has been
considered by the Court and is denied.
Petition for rehearing by the panel is also denied.
January 8, 1987
4a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 84-5085
LORRAINE POLASKI, ET AL., APPELLEES
Vv.
MARGARET M. HECKLER, SECRETARY
OF HEALTH AND HUMAN SERVICES, APPELLANT
Appeal from the United States District Court
for the District of Minnesota
Submitted: June 12, 1984
Filed: December 31, 1984
Before HEANEY, JOHN R. GIBSON and FAGG,
Circuit Judges.
HEANEY, CIRCUIT JUDGE.
The Secretary of Health and Human Services ap-
peals from a district court order granting a prelimi-
a
5a
nary injunction to a class of plaintiffs seeking social
security disability benefits. For the reasons set forth
below, we remand for further proceedings.
I. BACKGROUND.
For several months a dispute has raged in this and
other Circuits on the question of whether the Secre-
tary of Health and Human Services (Secretary) has
been properly construing the Social Security Act,
particularly with respect to persons who claim to be
disabled because of pain and with respect to persons
whose disability benefits have been terminated. On
January 20, 1984, Lorraine Polaski filed a complaint
in federal district court for the District of Minnesota,
seeking review of the termination of her social secu-
rity disability benefits by the Secretary. She later
amended her complaint to pursue the case as a class
action on behalf of similarly situated disabled per-
sons within the Eighth Circuit. The amended com-
plaint alleges: first, that the Secretary is not follow-
ing Eighth Circuit law in that she is terminating dis-
ability benefits absent evidence demonstrating either
that the claimant’s condition has materially improved
or that the original decision granting benefits was
erroneous; and second, that the Secretary is not fol-
lowing Eighth Circuit law in that she is requiring
that objective medical evidence fully corroborate a
disability claimant’s allegations of pain and other
subjective complaints.
On April 27, 1984, the district court issued a pre-
liminary injunction and a class certification order.
It determined that the Secretary was nonacquiescing
in Eighth Circuit decisions with respect to the proper
standard for evaluating pain and other subjective
complaints, and with respect to the proper standard
EE ———
6a
for terminating disability benefits. The court en-
joined the Secretary from denying or terminating
disability benefits unless she followed this Court’s de-
cisions regarding these standards. It also provided
for reconsideration of the claims of persons within
-the class under the designated standards.
On May 1, 1984, the Secretary sought an emer-
gency stay of the preliminary injunction pending ap-
peal to our Court. The district court denied that
motion the next day. The Secretary filed a notice of
appeal on May 15, 1984. On May 25, 1984, this
Court granted a temporary stay pending appeal. We
heard oral argument on June 12, 1984.
In her brief and at oral argument, the Secretary
asserted that she had been applying Eighth Circuit
cases concerning the standard for evaluating allega-
tions of pain and other subjective complaints. The
appellants took a contrary view, but in light of the
Secretary’s assertion, we deferred a decision to give
the parties a chance to reach an agreement on the
issue. -
On July 11, 1984, the Justice Department notified
this Court that the parties reached a_ settlement,
agreeing to the relevant standard for evaluating pain
cases.
On July 17, 1984, this Court entered an order in
which we stated that the settlement agreement set
forth a correct statement of the law concerning pain
cases, to be followed in all administrative and judicial
proceedings within the Eighth Circuit. We required
the Secretary to transmit the agreed-upon laneuage
to adjudicators within the Eighth Circuit responsible
for determining disability, including personnel in
state and district offices, and personnel within the
Social Security Administration, administrative law
Ta
judges (ALJs), and the Appeals Council. On July 18,
the Secretary disseminated the approved language to
all adjudicators.
Meanwhile, on June 27, 1984, this Court held in
Rush v. Secretary of Health and Human Services,
738 F.2d 909 (8th Cir. 1984), that “in a disability-
términation proceeding, there is a presumption that
a claimant who has previously been determined to
be disabled remains disabled.” Jd. at 915-16 (foot-
note omitted). We also held that the Secretary must
bear the initial burden to come forward with evidence
showing that there is a legitimate reason to re-
evaluate the claimint’s right to receive benefits. We
explained that the Secretary could meet this burden
by showing that there was clear and specific er-
ror in the prior determination or by producing
new evidence that the claimant’s medical condi-
tion has improved, that the claimant has bene-
fited from medical or vocational therapy or tech-
nology, or that the claimant’s condition is not so
disabling as originally supposed.
Id. at 916.
On September 13, 1984, this Court entered an or-
der directing the Secretary of Health and Human
Services to inform the Clerk of the United States
Court of Appeals for the Eighth Circuit on or before
September 25, 1984, whether she intended to neon-
acquiesce in the Court’s decision in Rush.
On September 19, 1984, Congress passed the Social
Security Disability Benefits Reform Act of 1984
(1984 Act), Pub. L. No. 98-460, 98 Stat. 1794
(1984). The President signed the Act on October 9,
1984, and it became effective on that date. Among
other things, the Act sets forth the standard for re-
viewing disability benefits terminations, and_ the
Sa
standard for evaluating pain and other subjective
complaints. It also establishes the procedures to be
followed in pending and future cases relating to medi-
cal improvement and pain.
II. TERMINATION CASES WHERE MEDI-
CAL IMPROVEMENT IS ALLEGED.
The 1984 Act details the procedure to be followed
concerning persons whose benefits have been termi-
nated by the Secretary. It provides in pertinent part
that the Secretary may terminate the benefits of per-
sons who have previously been found disabled only if
there is substantial evidence which demonstrates
that:
(A) there has been any medical improve-
ment in the individual’s impairment or combina-
tion of impairments (other than medical im-
provement which is not related to the individ-
ual’s ability to work), and
(B) * * * the individual is now able to engage
in substantial gainful activity.""!
Id. § 2(a).
This determination is to be made
'The 1984 Act also provides several other yvrounds for
termination: (1) where the claimant has benefited from
advances in medical or vocational therapy or technology; (2)
where the claimant’s impairment is shown to be not as dis-
abling as orginally determined, based on new or improved
diagnostic techniques; or (3) where the prior determination
of disability is shown to be in error. In each case there must
also be substantial evidence that the individual is now able to
engave in substantial gainful activity. Social Security Bene-
fits Reform Act of 1984, Pub. L. No. 98-460, §$ 2(a), 98 Stat.
1794 (1984).
9a
on the basis of the weight of the evidence and
on a neutral basis with regard to the individual’s
condition, without any initial inference as to the
presence or absence of disability being drawn
from the fact that the individual has previously
been determined to be disabled.
Id.
This language makes clear that the portion of our
Rush decision that recognized a presumption of con-
tinuing disability and required the Secretary to bear
the initial burden of producing evidence indicating a
legitimate reason to reevaluate the claimant’s dis-
ability no longer stands.
The Act provides that the court shall remand to
the Secretary the cases of persons whose benefits have
been terminated and who were unnamed members of
a class action relating to medical improvement pend-
ing as of September 19, 1984. The Secretary is to
notify these persons that they may request a review
of their cases under the 1984 Act within 120 days of
receiving this notice. The claimant may also request
interim benefits pending the initial redetermination.
The Secretary’s decision as to each claimant is sub-
ject to further administrative and judicial review, if
the claimant requests this review in a timely manner.
Id. § 2(d) (38). The 1984 specifies that the decision
by the Secretary is to be
regarded as a new decision on the individual’s
claim for benefits, which supersedes the final de-
cision of the Secretary. The new decision shall
be subject to further administrative review and
to judicial review only in conformity with the
time limits, exhaustion requirements, and other
provisions of section 205 of the Social Security
10a
Act and regulations issued by the Secretary in
conformity with such section.
Id. § 2(a) (4).
Finally, the 1984 Act limits class action litigation
over the medical improvement standard by providing
that:
No class in a class action relating to medical
improvement may be certified after September
19, 1984, if the class action seeks judicial review
of a decision terminating entitlement (or a pe-
riod of disability) made by the Secretary * * *
prior to September 19, 1984.
Id. § 2(d) (5).
In light of the action taken by Congress, there are
only two questions remaining in this litigation con-
cerning claimants who allege that their disability
benefits have been erroneously terminated because of
the improper application of the medical improvement
standard: 1) should the pending class action be dis-
missed upon remand to the Secretary, and 2) if not,
what portions of the district court’s order should be
implemented in light of the 1984 Act?
The Secretary maintains that, after an individual
case or the case of an unnamed class member is
remanded to the Secretary, there is no further role
for any court, and the 1984 Act thus requires that
the case be dismissed. The plaintiffs contend that the
1984 Act does not require dismissal of the case and
that the district court should continue to supervise
the case after remand to the Secretary.
The 1984 Act requires that all claims including
those of named and unnamed class members be ini-
tially resolved by the Secretary. Jd. $2(d). The
conference agreement states that the 1984 Act “pro-
lla
vides that the existing certified classes will be covered
by the new standard in order to resolve the existing
controversy over the medical improvement issue in
the courts.” 130 Cong. Rec. H9828 (daily ed. Sept.
19, 1984). In accordance with this objective, we dis-
miss the class action concerning the medical improve-
ment cases. We note, however, that the disability
benefits of more than 400,000 persons were termi-
nated by the Secretary. Many of those terminated
have sought review of their individual claims in this
and other Circuits. At least two class actions includ-
ing the instant one have been commenced in this Cir-
cuit. It is now conceded that the benefits of many
persons were improperly terminated. In light of this
history, the Secretary has a responsibility to those
who have sought the protection of this Court to insure
that the claims of those who were terminated and who
seek review and reinstatement of benefits are handled
promptly and in accordance with the letter and the
spirit of the 1984 Act.
The plaintiffs contend that, where the statute and
the preliminary injunction conflict with respect to
the nature and the timing of relief, the preliminary
injunction should prevail. First, $2(d)(2) of the
1984 Act provides that the claims of class members
with individual appeals pending in court be auto-
matically remanded. The district court allowed class
members to choose either to remand to the Secre-
tary, or have their cases adjudicated by the court
with jurisdiction over their appeals. The plaintiffs
argue that class members should, in the interest of
judicial economy, be allowed the latter option. They
also argue that, because many claimants have raised °
issues in addition to medical improvement (including
the pain issue) which may be dispositive, we should
12a
permit the courts to resolve these cases without re-
mand. They cite the delay in the administrative proc-
ess as requiring this result. We recognize that there
is merit to these contentions, but Congress has spoken
and we cannot disregard its mandate to remand these
cases to the Secretary. Second, even though the stat-
ute provides that class members who are not pursuing
administrative or judicial appeals must affirmatively
request readjudication of their claims after receiving
notice, the plaintiffs argue that these claims should
be readjudicated automatically as provided by the
preliminary injunction. Again, notwithstanding the
plaintiffs’ analysis of the relative burdens and bene-
fits of automatic readjudication, this balancing deci-
sion has been condugted by Congress, and it must be
respected.
At least two practical aspects of the district court’s
preliminary injunction remain which have not been
addressed by Congress. Specifically, while the 1984
Act does provide that the Secretary must prescribe
regulations implementing the Act within six months,
the Act is silent as to the timing and the form of
notice to be given to class members concerning their
right to readjudication and reinstatement of benefits.
The timetable for notifying class members was cer-
tainly a concern of the Congress. The conference re-
port states that:
The conferees recognize that there will be con-
siderable administrative difficulty in identifying
and notifying individuals who are eligible to
have their cases redetermined as a result [of]
their being unnamed [sic] members of class ac-
tions certified prior to September 19, 1984. Not-
withstanding the administrative difficulty of this
task, the conferees expect the Secretary of Health
13a
and Human Services to act expeditiously in noti- |
fying these individuals of the provisions of this
act which are applicable to them.
130 Cong. Rec. H9828 (daily ed. Sept. 19, 1984).
In light of this conference report and in light of
the fact that the Secretary will have to notify not
only the class members of this class action, but per-
sons similarly situated throughout the United States,
we cannot mandate that the specific time periods in
the district court’s order be followed. Again, we em-
phasize, however, that significant delays have al-
ready occurred and that the Secretary should act
promptly.
The Secretary apparently does not object to the
form or content of the notices. The Act leaves it to
the Secretary to notify class members about their
right to readjudication of their claims; while the
notice provisions approved by the district court are
not mandatory, the Secretary may wish to use them
to the extent they are consistent with the Act.
III. PAIN CASES.
The July 11, 1984, stipulation signed by the Sec-
retary and the plaintiffs with respect to evaluation
of pain read as follows: !
A claimant has the burden of proving that the
disability results from a medically determinable
physical or mental impairment. Symptoms such
as pain, shortness of breath, weakness, or ner-
vousness are the individual’s own perceptions of
the effects of a physical or mental impair-
ment(s). Because of their subjective character-
istics and the absence of any reliable techniques
for measurement, symptoms (especially pain)
l4a
are difficult to prove, disprove, or quantify. As
a result of this difficulty, some adjudicators have
misinterpreted the Secretary’s policies as enun-
ciated in SSR-82-58. [Emphasis added. ]
In particular, some adjudicators may have
misinterpreted Example No. 2 in SSR-82-58 to
allow allegations of pain to be disregarded solely
because the allegations are not fully corroborated
by objective medical findings typically associated
with pain. The example should not be construed
to be inconsistent with the text of SSR-82-58
which states in part:
The effects of symptoms must be considered
in terms of any additional physical or men-
tal restrictions they may impose beyond
those clearly demonstrated by the objective
physical manifestations of disorders. Symp-
toms can sometimes suggest a greater se-
verity of impairment than is demonstrated
by objective and medical findings alone.
While the claimant has the burden of proving
that the disability results from a medically de-
terminable physical or mental impairment, di-
rect medical evidence of the cause and effect re-
lationship between the impairment and the de-
gree of claimant’s subjective complaints need not
be produced. The adjudicator may not disregard
a claimant’s subjective complaints solely because
the objective medical evidence does not fully
support them.
The absence of an objective medical basis
which supports the degree of severity of subjec-
tive complaints alleged is just one factor to be
considered in evaluating the credibility of the
15a
testimony and complaints. The adjudicator must
give full consideration to all of the evidence
presented relating to subjective complaints, in-
cluding the claimant’s prior work record, and
observations by third parties and treating and .
examining physicians relating to such matters
as:
1. the claimant’s daily activities;
2. the duration, frequency and intensity of
the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
medication ;
5. functional restrictions.
The adjudicator is not free to accept or reject
the claimant’s subjective complaints solely on
the basis of personal observations. Subjective
complaints may be discounted if there are in-
consistencies in the evidence as a whole. [Em-
phasis in original. }
Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.
1984).
On July 17, 1984, this Court issued an order ap-
proving the language as a correct statement of the
law under the Social Security Act and of the case
law in the Eighth Circuit. On July 18, 1984, the
Secretary disseminated the approved language to
all adjudicators—state district offices, state DDS
offices, and ALJs in the Eighth Circuit. It dissem-
inated the same information to the Appeals Council.
Thereafter, this Court permitted the parties to file
supplemental briefs to explain how the agreement
on the pain standard, as approved by this Court,
l6a
affected this litigation. The government’s brief
stated: .
The approved language is simply a clarification
of SSR 82-58, which is the Secretary’s instruc-
tional ruling on the evaluation of pain and other
subjective complaints. This point is made clear
by the specific reference in the approved lan-
guage to SSR 82-58 and the fact that errors in
cases involving pain may have been the result of
misinterpretations of the SSR and specifically
Example No. 2 in the SSR. * * * (“[{S]ome
adjudicators have misinterpreted the Secretary’s
policies enunciated in SSR-82-58”; and ‘some
adjudicators may have misinterpreted Example
No. 2 in SSR-82-58”’).
That the approved language is a clarification
of SSR 82-58 is further reinforced by the fact
that the Secretary’s regulations and SSR 82-58
require that pain and other subjective com-
plaints be evaluated according to the following
factors:
1. the claimant’s daily activities;
2. the duration, frequency and intensity of
the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
medication ;
5. functional restrictions.
See SSR 82-58, Addendum D to Opening Brief
at 3. The approved language identifies the same
factors and similarly requires their considera-
17a
tion in the evaluation of subjective complaints
of pain. * * *
In sum, the approved language is merely a
restatement of the standard which the Secretary
has been following all along. [Emphasis added,
citations omitted. ]
On September 19, 1984, Congess passed the Social
Security Disability Benefits Reform Act of 1984."
That Act amended the existing law with respect to
evaluation of pain. It provides:
EVALUATION OF PAIN
SEC. 3. (a) (1)[.] Section 223(d)(5) of the
Social Security Act is amended by inserting after
the first sentence the following new sentences:
“An individual’s statement as to pain or other
symptoms shall not alone be conclusive evidence
of disability as defined in this section; there
must be medical signs and findings established
by medically acceptable clinical or laboratory
diagnostic techniques, which show the existence
of a medical impairment that results from ana-
tomical, physiological, or psychological abnor-
malities which could reasonably be expected to ~
produce the pain or other symptoms alleged and
which, when considered with all evidence re-
quired to be furnished under this paragraph (in-
cluding statements of the individual or his physi-
cian as to the intensity and persistence of such
pain or other symptoms which may reasonably
* The existing statute stated only that: ‘‘An individual
shall not be considered to be under a disability unless he
furnishes such medical and other evidence of the existence
thereof as the Secretary may require.” 42 U.S.C. § 423(d) (5).
18a
be accepted as consistent with the medical signs
_ and findings), would lead to a conclusion that
the individual is under a disability. Objective
medical evidence of pain or other symptoms es-
tablished by medically acceptable clinical or lab-
oratory techniques (for example, deteriorating
nerve or muscle tissue) must be considered in
reaching a conclusion as to whether the indi-
vidual is under a disability.”
(2) Section 1614(a)(3)(H) of such Act (as
added by section 8 of this et) is amended by
striking out “section 221 ¢h)” and inserting in
lieu thereof “sections 221(h) and 223(d)(5)”.
(3) The amendments made by paragraphs
(1) and (2) shall apply to determinations made
prior to Jauary 1, 1987.
Id. § 3(a).
The conference report summarized Congress’s un-
derstanding of present law with respect to evaluation
of pain as follows:
There is no statutory provision concerning the
evaluation of pain (or the use of subjective alle-
gations of pain) in determining eligibility for
disability benefits. The <efinition of disability
requres that the person be unable to work by
reason of a “medically determinable impair-
ment’—one which results from “anatomical,
physiological, or psychological abnormalities
Which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.”
By regulation, subjective allegations of symp-
toms of impairments, such as pain, cannot alone
be evidence of disability. There must be medical
signs or other findines which show there is a
medical condition that could be reasonably ex-
19a
pected to produce those symptoms and that is
severe enough to be disabling.
130 Cong. Rec. H9828-29 (daily ed. Sept. 19, 1984).
The conference report then stated:
The statutory language providing for an in-
terim standard for evaluation of pain is amend-
ed to more accurately reflect current policies.
Id. at H9829.
The Chairman of the Social Security Subcommit-
tee, Congressman J. J. Pickle, commenting on the
statutory provisions concerning pain, stated:
With reference to pain, the conference agree-
ment puts present regulatory policy into statute
until January 1, 1987, and mandates that in the
meantime, a study be conducted so that we might
better deal with this very difficult issue. I know
the many Members in both bodies are concerned
about the fairness of our present policies and I
would expect that as we continue to benefit from
the progress of medical science, we will improve
our laws in this regard.
Id. at H9836.
No other House member commented on the statu-
tory provision with respect to pain.
It seems clear from the conference report and the
statement of Congressman Pickle, a House manager
of the bill, that it was the intent of Congress to
write the regulation dealing with pain into the stat-
ute. That this result was accomplished is evidenced
by the fact that the amended statute closely tracks
the regulations.
The question, then, is does the amended statute
negate the settlement agreement approved by this
Court. We conclude it does not. The Secretary’s sup-
sims seamaenanmaamamacea iain
20a
plemental brief of August 1, 1984, quoted above, pro-
vides the rationale for this conclusion.
Our understanding is simply this: The amended
statute on pain evaluation requires the Secretary and
adjudicator to follow regulation § 404.1529 and
ruling SSR 82-58 in evaluating pain until January
1, 1987. Adjudicators are to do so, however, in light
of the settlement agreement which recognized that
some adjudicators had misinterpreted SSR 82-58. It
follows that all pain cases in the Eighth Circuit cur-
rently under evaluation at the administrative or judi-
cial level will be evaluated on the basis of the
amended statute, regulation § 404.1529, and ruling
SSR 82-58 as clarified by the settlement agreement.
Cases filed after this date will be evaluated on the
same basis. As we stated in our opinion of July 17,
1984, the settlement agreement is “a correct state-
ment of the law concerning evaluation of pain and
other subjective complaints for determining dlisabil-
ity.” It would thus seem that any differences be-
tween the Secretary and this Circuit with respect to
the law relating to the evaluation of pain have been
resolved and that there is no longer a question of
nonacquiescence on the part of the Secretary al-
though questions as to the substantiality of evidence
in pain cases will undoubtedly continue to arise in
the future.
There remain a number of specific problems with
which we now deal.
Some named and unnamed members of the termi-
nated class claim that the pain standard has been
incorrectly applied in their cases. In such instances,
the claim must be remanded to the Secretary, who
will review their cases in light of the 1984 Act and
this opinion.
——
2la
Other named plaintiffs raising the pain issue (but
not the issue of medical improvement) have cases
pending before this Court or district courts within
the Circuit. These cases should be decided in accord-
ance with this opinion by the courts having jurisdic-
tion of the cases. Cases may be remanded to the Sec-
retary where substantial evidentiary questions re-
main.
The class as certified also includes claimants whose
disability claims were. denied by the Secretary but
who at the time of certification were still pursuing
administrative appeals, or if not pursuing adminis-
trative appeals, were not time barred from doing so.
As to these claims, the district court concluded that
a waiver of the requirement of exhaustion was ap-
propriate in this case. This is the most difficult is-
sue in this appeal. The Secretary argues that the
Court does not have jurisdiction over these cases and
so must vacate this portion of the district court’s
preliminary injunction under the Social Security Act,
42 U.S.C. $ 405(g) (1982), and the mandamus stat-
ute, 28 U.S.C. $1361 (1982). We find that the
Court does have jurisdiction over these clainis and
that this carefully defined section of the class is en-
titled to relief.
Section 405(g) provides that:
Any individual, after any final decision of the
Secretary made after a hearing to which he was
a party, irrespective of the amount in contro-
versy, may obtain a review of such decision by a
civil action commenced within sixty days after .
the mailing to him of notice of such decision or
Within such further time as the Secretary may
allow. Such action shall be brought in the dis-
22a
trict court of the United States for the judicial
district in which the plaintiff resides * * *.
This section involves several elements: (1) the in-
dividual must have presented a claim for benefits to
the Secretary, and (2) the individual must have ex-
hausted the administrative remedies established by
the Secretary. The first requirement is “jurisdic-
tional” in the sense that it may not be waived; the
second requirement may be waived by either the Sec-
retary or the courts. Heckler v. Ringer, 52 U.S.L.W.
4547, 4551 (May 14, 1984); Mathews v. Eldridge,
424 U.S. 319, 328 (1976); Mental Health Associa-
tion of Minnesota v. Heckler, 720 F.2d 965, 969 (8th
‘ Cir. 1983). Each of the class members has submitted
a claim for disability benefits to the Secretary; none,
however, exhausted his or her administrative reme-
dies. Thus, the question is whether the district court
properly waived the exhaustion requirement for
them.
As we noted in Mental Health Association of Minne-
sota v. Heckler, 720 F.2d at 969, “[t]he Supreme
Court has taken a rather pragmatic approach” to
this requirement. In Mathews v. Eldridge, 424 U.S.
at 330, the Supreme Court acknowledged that, while
the waiver determination generally belongs to the
Secretary, “cases may arise where a claimant’s in-
‘ terest in having a particular issue resolved promptly
is so great that deference to the agency’s judgment
is inappropriate.” It went on to determine that
Waiver was proper because the plaintiff’s legal claim
was entirely collateral to his substantive claim of
entitlement, and he had “at least a colorable claim
that * * * an erroneous termination would damage
him in a way not recompensable through retroactive
| | ’
23a
payments.” Id. at 331 (footnote omitted). See also
Heckler v. Ringer, 52 U.S.L.W. at 4551-52.
The Second Circuit also recently suggested that
analysis of whether waiver is appropriate requires a
flexible, pragmatic approach:
Although Eldridge and Ringer make clear the
circumstances that permit a court to waive ex-
haustion, they do not establish whether each of
the individual factors deemed relevant in those
decisions—futility, collaterality, and irreparable
harm—must be present before a court may ¢lis-
pense with exhaustion. In the absence of: ex-
press guidance, we have taken the view that no
one factor is critical. * * * We have adopted a
more general approach, balancing the competing
considerations to arrive at a just result under
the circumstances presented.
City of New York v. Heckler, No. 84-6037, slip op.
6015, 6027-28 (2d Cir. Aug. 27, 1984) (citation
omitted).
We determined in Mental Health that waiver of
the exhaustion requirement was proper, based upon
a pragmatic analysis of the claimants’ interest in
judicial review at that point in the proceedings and
the relative harm to the agency’s administrative
process. Mental Health Association of Minnesota v.
‘Heckler, 720 F.2d at 970-71. A similar pragmatic
analysis leads us to conclude that waiver is appro-
priate in this case for several reasons. Il*irst, the
district court found, and we agree, that the plain-
tiffs face potentially irreparable harm. In the dis-
trict court’s words,
It is hard to envision a more urgent situation.
Claimants who lose or are denied benefits face
ae —
24a
foreclosure proceedings on their homes, suffer
utility cutoffs and find it difficult to purchase
food. They go without medication and doctors’
care; they lose their medical insurance. They be-
come increasingly anxious, depressed, despair-
ing—all of which aggravates their medical con-
ditions.
Polaski v. Heckler, 585 F. Supp. 1004, 1013 (D.
Minn. 1984).
Secondly, deference to the Secretary’s judgment
concerning exhaustion is inappropriate in light of the
plaintiffs’ contention that administrative adjudica-
tors at every level have evaluated complaints of pain
using an improper standard. As noted above, the
Secretary herself acknowledged that
some adjudicators may have misinterpreted the
Secretary’s policies as enunciated in SSR-82-d8.
In particular, some adjudicators may have
misinterpreted Example No. 2 in SSR-82-58 to
allow allegations of pain to be disregarded solely
because the allegations are not fully corrobo-
rated by objective medical findings typically as-
sociated with pain.
Polaski v. Heckler, 739 F.2d at 1322.
This Court has reversed the Secretary’s denial of
disability due to her failure to follow the proper
pain standard on a “number of occasions. In 1984
alone, we reversed or remanded to the Secretary be-
cause of inadequate consideration of pain in at least
thirteen cases, while affirming the Secretary’s anal-
ysis of pain or other subjective complaints in none.
Douglass v. Schweiker, 734 F.2d 399 (8th Cir. 1984) ;
Carpenter v. Heckler, 733 F.2d 591 (8th Cir. 1984) ;
Reinhart v. Secretary of Health and Human Serv-
<<
25a
ices, 733 F.2d 571 (8th Cir. 1984); Ledoux v.
Schweiker, 732 F.2d 1385 (8th Cir. 1984); Nunn v.
Heckler, 732 F.2d 645 (8th Cir. 1984); Marshall v.
Heckler, 731 F.2d 555 (8th Cir. 1984); Brissette v.
Heckler, 730 F.2d 548 (8th Cir. 1984); Allred v.
Heckler, 729 F.2d 529 (8th Cir. 1984); Smith v.
Schweiker, 728 F.2d 1158 (8th Cir. 1984); Layton
v. Heckler, 726 F.2d 440 (8th Cir. 1984); Basinger
v. Heckler, 725 F.2d 1166 (8th Cir. 1984); Tome v.
Schweiker, 724 F.2d 711 (8th Cir. 1984) ; Warner v.
Heckler, 722 F.2d 428 (8th Cir. 1984). As in Mental
Health, the high reversal rate “fortifies our decision
to waive exhaustion in light of the potentially irrep-
arable harm incurred by the plaintiffs as a result of:
this procedural irregularity.” Mental Health Asso-
ciation of Minnesota v. Heckler, 720 F.2d at 970.
Third, at the time this appeal was submitted, the
Secretary argued strenuously that she was acqui-
escing in this Circuit’s decisions concerning the pain
standard, although she acknowledged that the stand-
ard may have been misapplied by some administra-
tive adjudicators. In light of the Secretary’s posi-
tion, we deferred our disposition of this appeal in or-
der to permit the Secretary and the plaintiffs to
achieve a settlement agreement on the proper pain
standard. We took this step also because it allowed
the Secretary to pursue the national uniformity of
administration which she contends is so important.
As a result of the parties’ settlement agreement, all
class members whose claims have been decided since
July 17, 1984, will have their claims re-decided un-
dex the proper pain standard. Those class members
whose claims were decided before this date have not
received this relief. This result is not only unfair,
but if permitted, would diminish the Court’s author-
26a
ity to direct uniform and equitable relief in class
actions.
Fourth, in light of the relief sought by the plain-
tiffs, deferring to the ugency is both unnecessary and
inappropriate. At this point in the proceedings no
further elaboration of agency policy is likely. The
parties’ stipulation on pain and the 1984 Act have
resolved the controversy over the appropriate stand-
ard. All that remains is to give these class members
a chance to have their complaints of disabling pain
evaluated under the correct standard.
Finally, the plaintiffs’ claims are admittedly not
“wholly collateral” to their claims for benefits, as
was true in Eldridge. But the focus of their relief as
a class—the Secretary’s compliance with our case
_law and the 1984 Act—is substantially collateral to
the issue of whether they are in fact disabled and
entitled to benefits. See City of New York v. Heckler,
slip op. at 6028-29; Mental Health Association of
Minnesota v. Heckler, 720 F.2d at 971."
The district court narrowly tailored the class to
meet the sixty-day requirement of section 405(g).
Only those class members who received an adverse
decision from the Secretary within sixty days prior
to the filing of the relevant class actions are entitled
to relief here.’
*In light of our conclusion that there is jurisdiction under
section 405(g), it is unnecessary for us to consider whether the
mandamus statute provides an alternate basis for jurisdiction.
‘The class members are those ~3 described above who re-
ceived an adverse decision within the following time periods:
1) in Minnesota, North Dakota, South Dakota, Ne-
braska, and Missouri, those persons who received an ad-
27a
Accordingly, those class members who were denied
disability benefits on medical or medical-vocational
grounds before July 17, 1984 (the date of our order),
alleging that they cannot work due to pain or other
subjective complaints, and who, although not time
barred, have not yet fully exhausted their adminis-
trative appeals are entitled to have their claims re-
considered by the Secretary under the proper pain
standard. The Secretary shall, within a reasonable
time, issue a written notice to these class members
(with a copy to their legal representatives, if any)
which:
1) Informs each member of the class of the
proper pain standard;
2) Asks each member of the class whether he or
she contends he or she is unable to work in whole or
in part because of pain as defined in the standard;
3) States that each member of the class has a
right, if he or she chooses, to have his or her claim
reconsidered under the proper pain standard; and
4) Contains other information concerning the
availability of attorneys under the Social Security
Act to assist claimants in their efforts to gain bene-
fits.
Upon receiving a written request for reconsidera-
tion within time limits established by the Secretary,
verse decision on or after January 30, 1984, through
July 16, 1984;
2) in Arkansas, those persons who received an adverse
decision at the ALJ or Appeals Council levels on or after
February 20, 1984, through July 16, 1984; and
3) in Iowa, those persons who received an adverse de-
cision on or after November 26, 1983, through July 16,
1984.
See Polashi v. Heckler, 585 F. Supp. 1004, 1006-07 & n.1 (D.
Minn. 1984).
28a
the Secretary shall consider the application under the
proper pain standard and shall issue a written deci-
sion within a reasonable time. No deadlines, and no
interim benefits to class members whose claims were
not reconsidered by a deadline, are required of the
Secretary. The district court shall thus retain juris-
diction over the pain cases in this manner.
IV. CONCLUSION.
This case is remanded to the district court with
directions to proceed in a manner consistent with
this opinion.
JOHN R. GIBSON, Circuit Judge, concurring in
part and dissenting in part.
While I agree with a substantial part of what the
court holds today, I am unable to agree that the dis-
trict court properly waived the requirement of ex-
- haustion of administrative remedies for those class
members who alleged disabling pain but did not pur-
sue timely appeals after denial of their claims. The
court today considerably exceeds the limits of the
waiver doctrine as set down in Mental Health Asso-
ciation v. Heckler, 720 F.2d 965 (8th Cir. 1983).
Several factors present in Mental Health are not
present in this case, the most notable being that the
claimants in Wental Health, because of their condi-
tions, were often incapable of understanding or effec-
tively using their appeal rights. Jd. at 970. Given
the extensive public discussion of the Social Security
situation in this circuit from late November 1983
through July 16, 1984, I find it hard to believe that
persons truly threatened with such irreparable harm
as hypothesized by the court would not have sought
administrative review of the denials of their benefits.
29a
In addition, in Mental Health there was a finding
by the district court that an improper presumption
was being applied; thus, we held, additional agency
proceedings would not result in further clarification
of agency policy and immediate court review would -
not “interfere prematurely with agency procedures.”
Id. at 970-71. Here, while there have been many
misapplications of the pain standard, the July 17,
1984, stipulation concerning the standard in such
cases does not demonstrate the existence of an erro-
neous policy or procedure. Polaski v. Heckler, 739
F.2d 13820, 1821-22 (8th Cir. 1984). There is less
reason to believe that blanket court intervention is
necessary and I would defer to normal agency proce-
dures, including the Secretary’s decisions on when
waiver of exhaustion is appropriate.
The extension of Mental Health to the facts of this
case is contrary to the principles laid down in
Mathews v. Eldridge, 424 U.S. 319, 331 n.11 (1976)
(waiver of exhaustion requires the existence of a
challenge entirely collateral to the substantive claim
of entitlement plus a colorable claim of irreparable
harm). Accordingly, I dissent from that portion of
the opinion dealing with the waiver of exhaustion,
commencing on page 1d of the court’s opinion. I
would not allow those seeking administrative review
to continue in this litigation.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
30a
APPENDIX D
UNITED STATES COURT OF APPEALS
EIGHTH CIRCUIT
No. 84-5085
LORRAINE POLASKI, ET AL., APPELLEES
Vv.
MARGARET M. HECKLER, SECRETARY OF
HEALTH AND HUMAN SERVICES, APPELLANT
Submitted June 12, 1984
Decided July 17, 1984
Before HEANEY, JOHN R. GIBSON and FAGG,
Circuit Judges.
ORDER
On January 20, 1984, Lorraine Polaski filed a com-
plaint in federal district court for the District of
Minnesota, seeking review of the termination of her
social security disability benefits by the Secretary of
Health and Human Services (Secretary). She later
successfully amended her complaint to pursue her
case as a Class action on behalf of similarly situated
disabled persons within the Eighth Circuit. The
amended complaint alleges: first, that the Secretary
is not following Eighth Circuit law by requiring that
objective medical evidence fully corroborate a dis-
ts sill
3la
ability claimant’s allegations of pain and cther sub-
jective complaints; and second, that the Secretary is
not following Eighth Circuit law by terminating dis-
ability benefits absent new evidence demonstrating
either that the claimant’s condition has materially
improved or that the original decision granting ben-
efits was erroneous.
On April 27, 1984, the district court issued a pre-
liminary injunction and revised its class certification
order, 585 F.Supp. 1004. The court determined that
the Secretary was nonacquiescing in Eighth Circuit
decisions concerning both the standard for evaluat-
ing pain and other subjective complaints and the
standard for evaluating medical improvement. The
court enjoined the Secretary from denying or termi-
nating disability benefits without following those cle-
cisions. It also provided for reconsideration of the
claims of persons within the class under the proper
standards. ;
On May 1, 1984, the Secretary sought an emer-
gency stay of the preliminary injunction pending
appeal to our Court. The district court denied the
motion for a stay on May 2, 1984. The Secretary
filed a notice of appeal on May 15, 1984. On May 25,
1984, our Court granted a temporary stay pending
appeal. We heard oral argument on June 12, 1984.
In her brief and at oral argument, the Secretary
majntained that she had been applying Eighth Cir-
cuit cases concerning the standard for evaluating
allegations of pain and other subjective complaints.
At the conclusion of oral argument, we stated from
the bench that our Court would defer any immediate
action in order to allow the parties a chance to reach
an agreement on the standard to be used in evaluat-
ing pain and other subjective complaints in cases
within the Eighth Circuit.
32a
On July 11, 1984, the Justice Department notified
this Court that the parties reached a settlement,
agreeing that the relevant standard is as follows:
A claimant has the burden of proving that the
disability results from a medically determinable
physical or mental impairment. Symptoms such
as pain, shurtness of breath, weakness, or nerv-
ousness are the individual’s own perceptions of
the effects of a physical or mental impair-
ment(s). Because of their subjective character-
istics and the absence of any reliable techniques
for measurement, symptoms (especially pain)
are difficult to prove, disprove, or quantify. As
a result of this difficulty, some adjudicators have
misinterpreted the Secretary’s policies as enun-
ciated in SSR-82-58.
In particular, some adjudicators may have
misinterpreted Example. No. 2 in SSR-82-58 to
allow allegations of pain to be disregarded solely
because the allegations are not fully corrobo-
rated by objective medical findings typically asso-
ciated with pain. The example should not be
construed to be inconsistent with the text of
SSR-82-58 which states in part:
The effects of symptoms must be considered
in terms of any additional physical or men-
tal restrictions they may impose beyond
those clearly demonstrated by the objective
physical manifestations of disorders. Symp-
toms can sometimes suggest a greater se-
verity of impairment than is demonstrated
by objective and medical findings alone.
While the claimant has the burden of proving
that the disability results from a medically ter-
33a
minable physical or mental impairment, direct
medical evidence of the cause and effect rela-
tionship between the impairment and the degree
of claimant’s subjective complaints need not be
produced. The adjudicator may not disregard a
claimant’s subjective complaints solely because
the objective medical evidence does not fully sup-
port them.
The absence of an objective medical basis
which supports the degree of severity of subjec-
tive complaints alleged is just one factor to be
considered in evaluating the credibility of the
testimony and complaints. The adjudicator must
give full consideration to all of the evidence pre-
sented relating to subjective complaints, includ-
ing the claimant’s prior work record, and obser-
vations by third parties and treating and exam-
ining physicians relating to such matters as:
1. the claimant’s daily activities;
2. the duration, frequency and intensity of
the pain;
3. precipitating and ageravatinge factors;
4. dosage, effectiveness and side effects of
medication ;
5. functional restrictions.
The adjudicator is not free to accept or reject
the claimant’s subjective complaints solely on the
basis of personal observations. Subjective com-
plaints may be discounted if there are incon-
sistencies in the evidence as a whole. [Emphasis
in original.
| The parties also agreed that the Secretary will
4 transmit the agreed-upon language to adjudicators
34a
within the Eighth Circuit responsibile for determin-
ing disability, including personnel in state and dis-
trict offices, and personnel within the Social Security
Administration, ALJs, and the Appeals Council. The
language is to be transmitted no later than July 18,
1984.
This Court agrees with the above language as a
correct statement of the law concerning the evalua-
tion of pain and other subjective complaints for de-
termining disability. This language thus serves as
a correct restatement of our case law, to be followed
in all administrative and judicial proceedings within
the Eighth Circuit.
This order shall be issued forthwith. All other
questions raised in this appea! are reserved for fur-
ther decision by this Court.
35a
APPENDIX E
UNITED STATES DISTRICT COURT
D. MINNESOTA
FOURTH DIVISION
Civ. No. 4-84-64
LORRAINE POLASKI, ET AL., PLAINTIFFS
Vv.
MARGARET M. HECKLER, SECRETARY OF
THE DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DEFENDANT
April 17, 1984
ORDER
MILES W. LORD, Chief Judge.
This matter comes before the court on plaintiffs
motions for conditional class certification, leave to
file an amended complaint and a temporary restrain-
ing order. The central issues at the heart of these
motions concern certain standards used by the Secre-
tary of Health and Human Services (Secretary) in
evaluating claims for disability insurance benefits
under Title I] and Title XVI of the Social Security
Act.
a
36a
Plaintiff Lorraine Polaski is a 50-year-old resident
of Hennepin County who began receiving disability
benefits in 1979. Four years later, in 1983, the Secre-
tary declared that Polaski was no longer disabled and
therefore terminated her benefits. Polaski contends
that this decision was not supported by substantial
evidence because it improperly discounted her allega-
tions of pain and because there was no evidence to
show either that her condition had improved or that
the original decision finding her disabled was erro-
neous.
Polaski further contends that hers is not an iso-
lated case of improper decision-making by the Secre-
tary. Instead, Polaski argues that the Secretary is
using erroneous standards on pain and medical im-
provement on a systemwide basis and that the Secre-
tary’s policies run contrary—directly and flagrantly
—to the law as set out by the Court of Appeals for
the Eighth Circuit. Thus, Polaski seeks to expand
her action to include other disability claimants who
find themselves in a position similar to hers.
AMENDED COMPLAINT
Polaski moves to file an amended complaint, which
includes class action allegations and seeks declaratory
and injunctive relief on a class-wide basis.
After plaintiff filed this motion for an amended
complaint, the Secretary on April 13 declared a na-
tionwide moratorium on the termination of benefits
under Title II and Title XVI on medical or medical-
vocational grounds. The government now claims that
the amended complaint should not be allowed because
members of the proposed class are either non-existent
or unidentifiable at the present time. Counsel for
plaintiff strongly disagree. They contend that the
37a
moratorium declared by the Secretary does not affect
plaintiff Polaski and other individuals like her whose
benefits have been terminated and who have ex-
hausted their administrative remedies before the Sec-
retary. This much appears clear from this court’s
interpretation of the Secretary’s moratorium. Like-
wise, as argued by plaintiff’s counsel, the moratorium
does not affect first-time applicants who have received
an adverse determination before the Secretary where
they have claimed disability based upon their sub-
jective complaints of pain.
Furthermore, federal courts follow a liberal policy
in allowing motions to amend pleadings. Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230,°9 L.Ed.
2d 222 (1962); Buder v. Merrill Lynch, Pierce, Fen-
ner d: Smith, 644 F.2d 690, 694 (8th Cir.1981). As
stated in Rule 15(a), Fed.R.Civ.P., “leave [to amend
pleadings] shall be freely given when justice so re-
quires.”
For these reasons, the court concludes that the
amended complaint, with the addition of named
plaintiff Patrick Blaschko, is proper and shall be
allowed.
CLASS CERTIFICATION
The class which plaintiff seeks to certify consists
of other claimants who allege that they are unable to
work because of pain or other subjective complaints
and/or that their medical condition has not improved
Since their initial applications for disability status
were approved. More precisely, the class as proposed
by plaintiffs is defined as follows:
All persons residing in Minnesota, North Da-
kota, South Dakota, Missouri, Nebraska or Iowa,
38a
(a) Who have been or will be notified that
their application for Title II and/or Title XVI
benefits have been denied or that their Title II
and,or Title XVI benefits are being terminated
on medical or medical/vocational grounds; and
(b) Who allege that they are unable to work
in whole or in part because of pain or other
subjective complaints and/or that their medical
condition has not improved; and
(c) Who are pursuing or will pursue timely,
-administrative or judicial appeals, or, if not
pursuing timely appeals, who have received or
will receive an adverse decision at any level of
the administrative review process on or after
January 30, 1984,
(d) Provided, however, that the class of per-
sons whom plaintiffs represent shall exclude per-
sons who are members of class actions which
have been certified in any court in the Eighth
Cireuit which challenge the Secretary’s policy
with regard to a medical improvement standard
or the evaluation of pain and other subjective
complaints; provided that such persons shall be
excluded from this class only with regard to the
issue or issues actually being litigated in such
other certified class actions.
This proposed class was defined to include all
claimants within the jurisdiction of the Court of
Appeals for the Eighth Cireuit whose claims regard-
ing the Secretary’s standards on pain and medical
improvement are not already being dealt wtih in
some type of unified action. Thus, the proposed class
does not include claimants residing in Arkansas,
Which has imposed its own moratorium on benefits
terminations and which has been following the law
39a
of the Eighth Circuit regarding pain and medical
improvement for some time. Likewise, the class
would not include claimants alleging disability due
to pain in Missouri, where a class already has been
certified on this issue. (The Missouri class is the ©
only one brought to this court’s attention which
would be covered by paragraph (d) of the present
class certification ).
The class includes only those claimants whose cases
have been decided on medical or medical-vocational
grounds. The class does not include persons who
have had their disability claims decided on other
grounds, such as refusal to cooperate, excess assets,
or engaging in substantial gainful activity.
This court finds that the proposed class meets all
of the requirements for certification as set out in
Rule 23(a) and (b) (2), Fed.R.Civ.P.
The class as defined is so numerous that “joinder
of all members is impracticable.” Rule 23(a) (1),
Fed.R.Civ.P. Using projections and extrapolations
from government data, plaintiffs estimate that the
class includes 4,200 claimants whose benefits were
terminated without the use of a medical improve-
ment standard and 2,430 claimants whose allegations
of pain or other subjective symptoms were improp-
erly evaluated. This amounts to a class size of 6,630,
clearly satisfying the numerousity requirements of
Rule 23.
Tis case involves common questions of law and fact
concerning the Secretary’s policies as to the evalua-
tion of pain or other subjective complaints and med-
ical improvement. These policies appear to have been
promulgated at the highest level of the Social Security
Adninistration and appear to have been applied uni-
formly to the class as a whole. The claims of the
40a
representative parties are typical of those of the
class, and final injunctive or declaratory relief may
well be appropriate. Thus, the requirements of Rule
23(a) (2), 23(a) (3) and 23(b) (2) are met.
This court is also satisfied that the representative
parties “will fairly and adequately protect the inter-
ests of the class.” Rule 23(a) (4), Fed.R.Civ.P.
Plaintiffs’ counsel are legal services attorneys with
extensive experience in the areas addressed by this
action and will vigorously puruse the litigation.
Finally, this court has jurisdiction over all mem-
bers of this proposed class by virtue of both section
205(g) of the Social Security Act, 42 eae § 405
(g), and the mandamus statute, 28 U.S.C. § 1361.
Mental Health Association of Minnesota v. Heckler,
720 F.2d 965 (8th Cir.1983).
TEMPORARY RESTRAINING ORDER
Plaintiffs seek a temporary restraining order to
enjoin the Secretary from applying the improper pain
and medical improvement standards and to require
the Secretary ta freeze certain case files in their cur-
rent locations. This order would halt the denial and
termination of benefits, thereby preserving the status
quo until this court can make a ruling on the proper
standards and the appropriateness of further relief.
This court finds that such an order is warranted at
this time, the plaintiffs having demonstrated with
ample sufficiency that they have an excellent chance
of succeeding on the merits of their action, that they
will suffer irreparable harm if a restraining order is
not entered forthwith, that the impact of this order
on the Secretary is far outweighed by the interests
of the plaintiffs in obtaining immediate relief and
that the order is in the public interest. See Data-
a sill
4la
phase Systems, Inc. v. CL Systems, Inc., 640 F.2d
109, 114 (8th Cir.1981).
Plaintiffs claim in essence that the Secretary has
placed herself above the law by refusing to comply
with the edicts of the Court of Appeals for the
Eighth Circuit.
On the issue of pain, plaintiffs cite to some 19
cases which hold that the Secretary must give serious
consideration to a claimant’s subjective complaints of
pain, even where such complaints are not fully corrob-
orated by objective medical evidence.' Despite these
rulings, the Secretary appears to continue to require
the individuals claimant to prove a direct cause and
‘1 The cases cited by the plaintiffs are:
Yawitz v. Weinberyer, 498 F.2d 956 (8th Cir. 1974);
Lund v. Weinberger, 520 F.2d 782 (8th Cir. 1975) ; Brand
v. Secy. of Dept. of Health, Etc., 623 F.2d 523 (8th Cir.
1980) ; Ragsdale v. Secy. of Dept. of Health, 623 F.2d 528
(8th Cir. 1980) ; Cole v. Harris, 641 F.2d 613 (8th Cir.
1981); Tucker v. Schweiker, 689 F.2d 777 (8th Cir.
1982); Thorne v. Schweiker, 694 F.2d 170 (8th Cir.
1983); McDonald v. Schweiker, 698 F.2d 361 (8th Cir.
1983); Simonson v. Schweiker, 699 F.2d 426 (8th Cir.
1983); O’Leary v. Schweiker, 710 F.2d 1334 (8th Cir.’
1983); Bastian v. Schweiker, 712 F.2d 1278 (8th Cir.
1983); Nettles v. Schweiker, 714 F.2d 833 (8th Cir.
1983); Baugus v. Scy. of HHS, 717 F.2d 443 (8th Cir.
1983) ; Streissel v. Schweiker, 717 F.2d 1231 (8th Cir. |
1983) ; Mallet v. Schweiker, 721 F.2d 256 (8th Cir. 1983) ;
Warner v. Heckler, 722 F 2d 428 (8th Cir. 1983); Tome
~ v. Sehweiker, 724 F.2d 711 (8th Cir. 1983); Nelson v.
Heckler, 712 F.2d 346 (8th Cir. 1983); Hillhouse v.
Harris, 715 F.2d 428 (8th Cir. 1983).
This list does not include the numerous decisions of district
courts which also direct the Secretary to employ the proper
standard regarding complaints of pain. See, e.y., Roberts v.
Schweiker, 583 F.Supp. 724 (D.Minn.1984); Fenus v.
Schweiker, 584 F.Supp. 45 (D.Minn.1983).
42a
effect relationship between the objective medical evi-
dence and the amount of pain suffered.
Such is the burden placed upon plaintiff Polaski,
whose claim for disability benefits rests upon her
allegations of severe and continuous pain. After re-
ceiving notice of her termination from benefits, Po-
laski requested and received a hearing before an ad-
ministrative law judge (ALJ). In evaluating Po-
laski’s claims of pain, the ALJ first gave lip service to
the Eighth Circuit’s rulings and then concluded that
“none of the medical reports contain any significant
findings to substantiate constant, severe, intractable
pain.” (Transcript of administrative proceedings,
p. 28).
The Court of Appeals recently took note of the
Seeretary’s policy of disregarding the law of this
circuit:
For some unexplained reason, the Secretary
insists upon ignoring this Court’s statements
with respect to the proper evaluation of pain.
The Secretary must give consideration to subjec-
tive complaints of pain and may not disregard
them solely because they are not fully corrobo-
rated by the objective medical evidence. :
Nelson v. Heckler, 712 F.2d 346, 348 (8th Cir. 1983).
~The Eighth Circuit again had occasion to criticize
the Secretary for failing to abide by the proper
standard in the case of Hillhouse v. Harris, 715 F.2d
428, 430 (Sth Cir. 1983). The court, in quoting from
the lower court opinion, stated:
The result of this individual case should not
obscure the fact that the regulations of HHS are
not the supreme law of the land. ‘It is emphati-
cally the province and duty of the judicial de-
43a
partment, to say what the law is,’ Marbury v.
Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1904) ;
and the Secretary will ignore that principle at
his peril.
715 F.2d at 430. Judge McMillian in the same case
commented separately:
While I concur wholly in everything said in the
majority opinion, I think more is needed to be
expressed. I have no wish to invite confronta-
tion with the Secretary. Yet, if the Secretary
persists in pursuing here nonacquiescence in this
circuit’s decisions, I will seek to bring contempt
proceedings against the Secretary both in her
official and individual capacities.
Id. at 430.
In a recent law review article, Judge Heaney of the
Eighth Circuit recognized the Secretary’s policy of
nonacquiescence :
The SSA apparently has directed that decisions
of both the district courts and the courts of ap-
peals should be ignored in deciding whether to
grant or deny benefits to individual claimants.
A memo to all ALJs dated January 7, 1982,
from the Associate Commissioner of the Office of
Hearings and Appeals, is typical of the Secre-
tary’s approach. The memo emphasized that the
Deputy Assistant General Counsel ‘stressed the
point that the federal courts do not run SSA’s
programs, and that the ALJs are responsible for
applying the Secretary’s policies and guidelines
regardless of court decisions below the level of
the Supreme Court.’
44a
Heaney, Why the High Rate of Reversals in Social
Security Disability Case?, 7 Hamline Law Review 1,
9 (1984).
Plaintiffs also claim that the Secretary has failed to
follow the proper standard in termination cases. His-
torically, the Secretary in such cases had employed a
medical improvement standard, under which the
claimant’s current conditions was compared with the
condition supporting the original finding of disabil-
ity, and benefits were terminated only if claimant’s
condition showed the requisite improvement. See
Graham py. Heckler, 573 F.Supp. 15738, 1575 n. 1
(W.Va. 1983). Sometime in 1980, the Secretary
abandoned this policy, and adopted a “current dis-
. ability” standard for termination of disability bene-
fits. Once this new policy reached the courts by way
of appeal, it was overwhelmingly rejected as im-
proper. See, e.g., Lopez v. Heckler, 725 I°.2d 1489 (9th
Cir. 1984); Dotson v. Schweiker, 719 F.2d 80 (Ath
Cir. 1983); Kuzmin v. Schweiker, 714 F.2d 1233
(3rd Cir. 1983); Simpson v. Schweiker, 691 F.2d 966
(llth Cir. 1982); Patti v. Schweiker, 669 F.2d 582
(9th Cir. 1982); Weber v. Harris, 640 F.2d 176 (8th
Cir. 1981); Hyatt v. Heckler, 579 F.Supp. 985 (N.C.
1984); Doe v. Heckler, 576 F.Supp. 463 (Md. 1983) ;
Graham v. Heckler, 573 F.Supp. 1573 (W.Va. 1983) ;
. Musgrove v. Schweiker, 552 F.Supp. 104 (Pa. 1982) ;
Shaw v. Schweiker, 536 F.Supp. 70 (Pa. 1982).
These courts have all held that the Secretary must
follow the medical improvement standard, and that
the burden of showing the necessary improvement
rests with the Secretary.
Plaintiffs argue that the Secretary has violated
both the Social Security Act and the Constitution by
failing to follow the proper standards regarding pain
45a
and termination. The cases cited by plaintiffs
strongly support a finding that the Secretary is not
adhering to its constitutional duty to provide due
process to individual claimants. By not following the
law of this circuit, the Secretary adopts a course of
action in disregard of the fundamental fairness due
each claimant. The Secretary further appears to be
in violation of the constitutional doctrine of separa-
tion of powers. As was first made clear in the
Supreme Court case of Marbury v. Madison, supra,
it is the duty of government agencies to follow the
law as interpreted by the courts. Apparently, the
Secretary has chosen not to do so. While this court
is now considering these matters only preliminarily,
it is convinced that there is a strong likelihood that
plaintiffs will prevail on the merits of their claims.
A further and more detailed discussion of these is-
sues will be required upon a full hearing on plain-
tiffs’ motion for 2 preliminary injunction.
As for irreparable harm, the class of plaintiffs con-
sists of disabled persons for whom Social Security
benefits may be their sole source of support. Sub-
stantial and irreparable harm. is likely to befall these
people if their benefits are denied or terminated.
Affidavits submitted by plaintiffs demonstrate the
urgency of their plight. Plaintiff Polaski, who states
that her disability is worsening, is not able to buy
the basic necessities of life without her disability
benetits. Carrie F. Turner, a Missouri woman with a
heart condition whose benefits were cut off in 1982,
states in her affidavit that she has been forced to bor-
row money from her mother and daughter, whose in-
come derive, in turn, solely from Social Security and
AFDC payments. Turner «does not have enough
money to pay her bills for utilities, food, medications.
46a
She begs for assistance at churches and _ social
agencies.
The hardships of the class were summed up in affi-
davits filed by James Marshall Smith, an attorney
with Legal Aid of Western Missouri, and Doretta
Henderson, chairperson of the Kansas City Chapter
of the National Welfare Rights Organization, as fol-
lows:
During the appeal period in federal court, which
ean frequently take in excess of one year, our
clients are without benefits. They have many
other legal problems as a result, such as eviction
suits, collection suits from creditors, problems
with utility shut offs, ete. Within the last eigh-
teen months I can remember offhand five of our
clients who have died during the appeal process.
(Affidavit of Smith)
After being terminated from benefits, many in-
dividuals are unable to pay for medical care and
obtain the necessary prescriptions for their ill-
ness. We also find that individuals often are
unable to pay their rent or housing costs, with
some individuals losing their homes because of
their inability to meet the payments. (Affidavit
of Henderson)
In sum, this court finds that plaintiffs have satis-
fied all of the requirements for a temporary restrain-
ing order. Plaintiff Polaski has properly presented
her claims before this court and has exhausted her
acdiministrative remedies. Only before this court can
she—and the class members whom she represents—
pursue full and adequate relief.
Accordingly, IT IS HEREBY ORDERED That
defendant, her employees, agents and assigns shall:
47a
1. Be enjoined from denying or terminating Title
II benefits and from denying Title XVI benefits at
any level of administrative review, and from termi-
nating Title XVI benefits at the Administrative Law
Judge or Appeals Council levels until a further order
of this court concerning the proper standards to be
used for the evaluation of pain and other subjective
complaints and the proper medical improvement
standard.
2. Assure that all Social Security Administration
District Offices within the Eighth Circuit retain all
- Title II and/or Title XVI files in which an adverse
initial or reconsideration determination has been or
will be made dated on or after January 30, 1984
unless or until the claimant files a timely appeal;
3. Assure that the Appeals Council of the Social
Security Administration retains all files in which an
adverse decision has been or will be rendered by an
Administrative Law Judge or by the Appeals Council
dated on or after January 30, 1984 unless or until it
is appealed;
4. Issue a teletype to all Social Security Adminis-
trative District Offices within the Eighth Circuit and
to the Appeals Council containing the instructions
set forth in the foregoing paragraphs 1, 2 and 3
within 24 hours of the issuance of this order. The
defendant shall send copies of the teletype to plain-
tiffs’ attorneys and to this court.
This temporary restraining order shall stand untii
the court issues a further order regarding a prelimi-
nary injunction, a hearing for which has been set for
2 p.m. April 26.
IT IS FURTHER ORDERED That plaintiffs’
motion for leave to file an amended complaint is
granted.
48a
IT IS FURTHER ORDERED That plaintiffs’
motion for class certification, as defined by this order,
is granted.
IT IS FURTHER ORDERED That the govern-
ment’s motions to stay proceedings and to strike por-
tions of plaintiffs’ complaint are denied.
IT IS FURTHER ORDERED That by 5 p.m.
April 24, 1984, the parties shall provide to this court
briefs detailing their respective positions concerning
possible future relief for this class, particularly on
the issue of the immediate reinstatement of benefits
for those individuals whose benefits have been termi-
nated and the immediate payment of benefits to class
members whose initial applications have been denied.
IT IS FURTHER ORDERED That by 4 p.m.
April 24, 1984, the Secretary shall provide to this
court an estimate of the number of persons covered
by the class as defined by this order.
49a
APPENDIX F
UNITED STATES COURT OF APPEALS
D. MINNESOTA |
FOURTH DIVISION
Civ. 4-84-64
LORRAINE POLASKI, ET AL., PLAINTIFFS
Vv.
MARGARET M. HECKLER, SECRETARY OF THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
DEFENDANT
April 27, 1984
ORDER
MILES W. LORD, Chief Judge.
INTRODUCTION
Plaintiffs in this class-action suit against the Sec-
retary of Health and Human Services (Secretary)
seek a preliminary injunction which would, in es-
sence, compel the government to use the proper stand-
ards in evaluating claims for disability insurance
benefits under Titles II and XVI of the Social Secu-
rity Act. After a hearing on April 17, 1984, this
court certified a, class and issued a temporary re-
50a
straining order to freeze the situation pending fur-
ther review. A second hearing was held on April 26,
1984, to consider whether a preliminary injunction
should issue and, if so, what preliminary relief would
be appropriate. The present order is based upon the
‘evidence presented at those hearings and the exten-
sive briefs submitted by the parties.
For several years now, the courts of this circuit
have found themselves embroiled in an increasingly
frustrating effort to persuade the Secretary to follow
their decisions regarding certain legal standards un-
der the disability insurance program. The Secretary,
in an apparent effort to reduce the number of dis-
ability beneficiaries, has taken a more restrictive ap-
proach in recent years in determining eligibility.
Often, the Secretary has stuck to this restrictive path
even when it has led to direct contravention of fed-
eral court edicts. By proceeding in such a manner,
the Secretary also has disregarded the fundamental
policies at the heart of the disability program:
Congress enacted the social security disability in-
surance program in order to provide benefits to
individuals who become disabled and can no
longer “engage in any substantial gainful ac-
tivity by reason of any medically determinable
physical or mental impairment.” The program
is intended to aid workers who, after having con-
tributed to the nation’s workforce, are unable to
continue to «lo so because of a disability. The
underlying purpose of this program is to ease
the economic dislocations and hardships that
often-accompany disability. The Act is a reme-
dial one which should be broadly construed and
liberally applied to effectuate its humanitarian
goals.
5la
Judge Gerald W. Heaney, Why the High Rate of Re-
versals in Social Security Disability Cases?, 7 Ham-
line Law Review 1, 2 (1984) (footnotes omitted).
In the present action, plaintiffs challenge two spe-
cific policies, of the Secretary: (1) the agency policy
of requiring objective medical evidence to fully cor-
roborate all allegations of pain and other subjective
complaints, and (2) the agency policy of terminating
_ disability benefits without new evidence showing that
the claimant’s medical condition has improved or that
the prior decision was erroneous. Plaintiffs contend
that these policies violate the Social Security Act as
well as the separation of powers doctrine and due
process rights under the U.S. Constitution.
JURISDICTION
At the threshold, the Secretary argues that this
court lacks the jurisdiction to consider this action.
The Secretary’s extended arguments along this line
however, ignore principles that have by now become
well-established in actions of this nature. See, e.9.,
Mental Health Association of Minnesota v. Heckler,
720 F.2d 965, 968-71 (8th Cir. 1983). This court
therefore concludes that it has jurisdiction over all
members of this class by virtue of both section 205 (¢)
of the Social Security Act, 42 U.S.C. $ 405(@), and
the mandamus statute, 28 U.S.C. § 1361.
Jurisdiction under section 205(g¢) imposes two re-
quirements. The first mandates that the individual
present a claim to the Secretary, which all members
of this class clearly have done. The second requires
that the individual exhaust his administrative reme-
dies and receive a final decision from the Secretary
before seeking reljef in the courts. It is true that
some members of this class have not yet proceeded
aaa ii
52a
through all levels of agency appeals. This second re-
quirement is, however, waivable by either the Secre-
tary or the courts when necessary to prevent ir- |
reparable harm or the loss of crucial collateral claims. |
Mathews v. Diaz, 426 U.S. 67, 75-77, 96 S.Ct. 1883,
1889-1890, 48 L.Ed.2d 478 (1976); Mathews v.
Eldridge, 424 U.S. 319, 331 n. 11, 96 S.Ct. 893, 900
n. 11, 47 L.Ed.2d 18 (1976).
This court finds that such a waiver is appropriate
in the present case. As set out in detail below, this
class of plaintiffs will suffer irreparable harm if its
claims are not acted upon immediately. This class
does not have the resources to endure delay upon
delay; the members of this class depend upon dis-
ability benefits to meet the most basic of their needs,
to sustain their health and_well-being. Further, it
would be futile and inefficient to force these plaintiffs
to pursue their claims through level after level of
agency review when it appears that the agency is
systematically relying upon improper — standards.
Mental Health Association of Minnesota, 720 F.2d at
970-71.
As for mandamus jurisdiction, it is well estab-
lished that courts will assert such jurisdiction when
no other adequate remedy is available and the plain-
tiff is owed a clear duty. United States ex rel. Girard
Trust Co. v. Helvering, 301 U.S. 540, 543-44, 57
S.Ct. 855, 857, 81 - L.Ed. 272 (1937). Such is the
situation in the present action, in which a writ of
mandamus would not supplant the Secretary’s duty
delegated authority to make the-faetual determina-
tions upon which eligibility depends but would merely
compel the Secretary to make such determinations in
a lawful manner. Mental Health Association of Min-
nesota, 720 F.2d at 971-72 n. 17.
Nemeanbaiangsy =
53a
REVISED CLASS CERTIFICATION
Plaintiffs move for a revised class certification, ap-
parently on the basis of newly-acquired information
on the status of various class actions which have
been filed but not yet certified throughout the EKighth
Circuit’s jurisdiction. The class as originally certi-
fied in this court’s order of April 17 was defined to
include disability claimants within the Eighth Circuit
who have viable claims regarding the Secretary’s
standards on pain and medical improvement but
whose claims are not already being dealt with in
some other collective action.
Thus, the original certification excluded residents
of Arkansas because that state had had some success
on its own in convincing the agency to follow the law
of the Eighth Circuit and had imposed its own mora-
torium on terminations under improper standards.
This court is now advised, however, that the Secre-
tary’s acquiescence and the state’s moratorium came
as recently as December 1983. The proper standards
therefore have never been applied to some applicants
whose claims are still viable. Certainly, these in-
dividuals should be included in the class.
The original certification also was too narrow in
that it failed to encompass individuals in Arkansas
and Iowa for whom the statute of limitations had
been tolled by the filing of class actions in their re-
spective states.’ American Pipe and Construction Co.
v. State of Utah, 414 U.S. 538, 94 S.Ct. 756, 38
L.Ed.2d 713 (1974). This court finds that the class
appropriately encompasses these individuals.
‘ 1 These putative class actions are: Wilson v. Heckler, Li-
C-83-338 (D. Ark. 1984); Myers v. Ross, et al., Civ. No. 82-
170-B (D. Iowa 1982), and Bradley v. Hecker, No. 2c¢-84-2010
(D. Iowa 1984). Class certification is still pending in each -
of these suits.
d4a
Accordingly, this court orders that the class be re-
defined as follows:
All persons residing in Minnesota, North Dakota,
South Dakota, Missouri, Nebraska, Iowa, or
Arkansas,
a) who have been or will be notified that their
applications for Title II and/or Title XVI bene-
fits have been denied or that their Title I] and/
or Title XVI benefits are being terminated on
- medical or medical vocational grounds; and
b) who allege that they are unable to work in
whole or in part because of pain or other sub-
jective cornplaints and/or that their medical con-
dition has not improved; and
c) who are pursuing or will pursue timely ad-
ministrative or judicial appeals, or, if not pur-
suing timely appeals, who have received or will
receive an adverse decision at any level of the
administrative review process on or after Janu-
ary 30, 1984, provided however that,
(1) as to those who are residents of Arkan-
sas and who have been or will be notified
that their applications for Title II and or
Title XVI benefits have been denied. the
class includes only (a) those who are pur-
suing or will pursue timely judicial appeals
and (b) those who are pursuing timely ad-
ministrative appeals at the Administrative
Law Judge or Appeals Council level, and
(c) those who received or will receive an ad-
verse decision at the Administrative Law
Judge or Appeals Council level on or after
February 20, 1984;
55a
(2) as to those who are residents of Arkan-
sas and who have been terminated from
Title II and/or Title XVI benefits, the class
also includes those who have received or will
receive an adverse decision at any level of
the administrative review process on or after
February 12, 1983; and
(3) as to those who are residents of Iowa
and who have been or will be notified that
their applications for Title II and/or Title
XVI benefits have been denied, the class also
includes those who have received an adverse
decision at any level of the administrative
review process on or after November 26,
1983; and
(4) as to those who are residents of Iowa
and who have been or will be terminated
from Title II and/or Title XVI benefits, the
class also includes those who have received
or will receive an adverse decision at any
level of the administrative review process on
or after January 13, 1982,
d) provided, further, however, that the class of
persons whom plaintiffs represent shall exclude
persons who are members of class actions which
have been certified in any court in the Eighth
Circuit which challenge the Secretary’s policy
with regard to a medical improvement standard
or the evaluation of pain and other subjective
complaints; provided that such persons shall be
excluded from this class only with regard to the
issue or issues actually being litigated in such
other certified class actions.
\
56a
PRELIMINARY INJUNCTION
The Eighth Circuit has set out a four-part test to
govern the issuance of preliminary injunctions. In
short, this test involves consideration of (1) the
threat of irreparable harm to the movant; (2) the
state of balance between this harm and the injury
that granting the injunction will inflict on other par-
ties litigant; (3) the probability that the movant will
succeed on the merits; and (4). the public interest.
Dataphase Systems, Inc. v. C L Systems, Inc., 640
F.2d 109, 114 (8th Cir. 1981). In applying these
factors, courts are advised to use a flexible and equi-
table approach: .
. . . [T]he question is whether the balance of
equities so favors the movant that justice re-
quires the court to intervene to preserve the
status quo until the merits are determined. The
equitable nature of the proceeding mandates that
the court’s approach be flexible enough to encom-
pass the particular circumstances of each case.
Id. at 113.
This court turns first to a consideration of the
probability of plaintiffs succeeding on the merits of
their action.
The Pain Standard
Plaintiffs argue that the Secretary is systemati-
cally applying an erroneous standard in evaluating
complaints of pain. Numerous decisions of the Eighth
Circuit, cited by plaintiffs, hold that subjective com-
plaints of pain must be given serious consideration,
even When not fully corroborted by objective medical
evidence. See, ¢.g., Brand v. Secy of Dept. of Health,
Etc., 623 F.2d 523 (8th Cir. 1980); Cole v. Harris,
57a
641 F.2d 613 (9th Cir. 1981); Tucker v. Schweiker,
689 F.2d 777 (8th Cir. 1982); Simonson v. Schweiker,
699 F.2d 426 (8th Cir. 1983); Nelson v. Heckler,
712 F.2d 346 (8th Cir. 1983); Hillhouse v. Harris,
715 F.2d 428 (8th Cir. 1982}.*° Under these deci-
sions, all that is required is that there be medical
evidence of a mental or physical impairment. Once
that is established, the claimant need not show a di-
rect cause and effect relationship between his condi-
tion and the level of pain that he suffers:
Of course, under the Act, there must be medical
evidence of physical or mental impairment. Dis-
regard of a claimant’s subjective complaints of
pain, however, is not justified solely because
there exists no objective evidence in support of
such complaint.
Northcutt v. Califano, 581 F.2d 164, 166 (8th Cir.
1978) (footnote omitted); Brand v. Secy. of Dept.
of Health, Etc., 623 F.2d at 526.
‘To require that the medical evidence fully supports
the individual’s complaints of pain ignores the reality
that each person is different in the way that he deals
with his particular impairment:
These claimants are real people and entitled to
have their disabilities measured in terms of their
total physiological well-being. Different people
- This list is by no means exhaustive. In total, plaintills
refer this court to nineteen Eighth Circuit opinions with
similar holdings on the issue of pain. In addition, this list
does not include the numerous decisions of the district courts
which also direct the Secretary to give serious consideration
to complaints of pain whether or not such complaints are fully
corroborated by the medical evidence. See, ¢.y., Roberts v.
Schweiker, 583 F.Supp. 724 (D. Minn. 1984); Fenus vu.
Schweiker, 584 F.Supp. 45 (D. Minn. 1983).
58a
react in markedly different ways to similar in-
juries. A back condition may affect one individ-
ual in an inconsequential way, whereas the same
condition may severely disable another person
who has greater sensitivity to pain or whose
physical condition, due to age, obesity, deformity,
or general physical well-being is generally de-
teriorated.
Landess v. Weinberger, 490 F.2d 1187, 1190 (8th
Cir. 1974).
The Secretary argues that the pain standard enun-
ciated by the Court of Appeals is indeed being fol-
lowed. She contends that there is no systemwide pol-
icy ignoring the law of this circuit, but rather only
erroneous results in certain isolated cases.
The evidence against the Secretary’s argument is
overwhelming. The court first turns to the very de-
cisions of the Eighth Circuit defining the proper
standard, which the Secretary argues are “isolated
cases”’:
For some unexplained reasons, the Secretary in-
sists upon ignoring this Court’s statements with
respect to the proper evaluation of pain. The
Secretary must give consideration to subjective
complaints of pain and not disregard them solely
because they are not fully corroborated by the
objective medical evidence.
Nelson v. Heckler, 712 F.2d at 348.
The Eighth Circuit again confronted the continu-
ing problem of the Secretary applying an improper
pain standard in the case of Hillhouse v. Harris, su-
pra. In quoting from the lower court opinion, the
Eighth Circuit warned the Secretary that it con-
sidered her refusal to apply the proper pain standard
as a violation of law:
59a
The result of this individual case should not ob-
scure the fact that the regulations of HHS are
not the supreme law of the land. ‘It is em-
phatically the province and duty of the judicial
department, to say what the law is,’ Marbury v.
Madison, 1 Cranch 137, 117, 2 L.Ed. 60 (1804) ;
and the Secretary will ignore that principle at
his peril.
715 F.2d at 430.
Commenting separately in Hillhouse, Judge Mc-
Millian further warned the Secretary of the conse-
quences of her policy of nonacquiescence:
While I concur wholly in everything said in the
majority opinion,-I think more is needed to be
expressed. I have no wish to invite confronta-
tion with the Secretary. Yet, if the Secretary
persists in pursuing her nonacquiescence in this
circuit’s decisions, I will seek to bring contempt
proceedings against the Secretary both in her
official and individual capacities.
Id. at 430.
The Secretary contends that her regulations strictly
comply with the Eighth Circuit’s rulings on pain.
Specifically, the Secretary points to the following:
How we evaluate symptoms, including pain. If
you have a physical or mental impairment, you
may have symptoms (like pain, shortness of
breath, weakness or nervousness). We consider
all your symptoms, including pain, and the ex-
tent to which signs and laboratory findings con-
firm these symptoms. The effects of all your
symptoms, including severe and prolonged pain,
must be evaluated on the basis of a medically de-
terminable impairment which can be shown to
60a
be the cause of the symptom. We will never find
that you are disabled based on your symptoms,
including pain, unless medical signs or findings
show that there is a medical condition that could
be reasonably expected to produce those symp-
toms.
20 C.F.R. § 404.1529 (emphasis added).
This regulation, contrary to the Secretary’s con-
tention, does not meet the standard declared by the
Eighth Circuit for evaluating complaints of pain.
- The Secretary’s regulation clearly requires that the
individual claimant show sufficient objective proof of
his subjective complaints in order to receive benefits.
The cases of this circuit emphatically direct the Sec-
retary to carefully evaluate arn individual’s com-
plaints of pain, regardless of whether or not those
subjective complaints are supported by medical evi-
dence. Rather than adopt this standard, the Secre-
tary has declared that symptoms of pain themselves
must be objectively verified by medical evidence. In
her regulation, the Secretary requires the individual
claimant to draw a direct connection between his con-
dition and the pain he suffers by showing that he is
impaired by a “medical condition that could be rea-
sonably expected to produce those symptoms.”
Eighth Circuit Law interpreting the Social Secu-
rity Act explicitly states that such a connection need
not be established. Whether or not the claimant’s im-
pairment should or should not produce disabling pain
is simply not dispositive of the issue surrounding
whether the claimant actually suffers from disabling
pain. By requiring even a “reasonable” connection
between the impairment and the claimant’s symptoms
of pain, the Secretary introduces into the evaluation
an erroneous objective medical standard not required
ee ee
6bla
under the law. Individual applicants must be taken
as they are, complete with what may be their pecu-
liar sensitivities to the pain which afflicts them.
Even if this court were to ignore a common sense
reading of the Secretary’s regulation, it would have
to conclude that the Secretary is in fact applying her
regulation in a manner contrary to Eighth Circuit
law. Under Social Security Ruling 82-58,* the Secre-
tary has made it even clearer that subjective com-
plaints of pain will not be seriously considered unless
established by objective medical evidence:
Once . . . a medical condition (e.g. dise disease) ©
is objectively established, the symptoms are still
not controlling for purposes of evaluating dis-
ability. Clinical and laboratory data and well-
documented medical history must establish find-
ings which may reasonably account for the
symptom in a particular impairment. Objective
clinical findings which can be used to draw rea-
sonable conclusions about the validity of the in-
tensity and persistence of the symptom and about
its effect on the individual’s work capacity must
be present. For example, in cases of back.pain
associated with dise disease, typical associated
findings are muscle spasm, sensory loss, motor
loss, and atrophy. There must be an objective
basis to support the overall evaluation of impair-
ment severity. (emphasis added).
Furthermore, in recent decisions the Secretary's
Appeals Council has directly refused to follow the
proper pain standard, even when specifically ordered
to do so by a federal district court. In Nickels v.
*Social Security Rulings are essentially policy statements
issued by the Commissioner of Social Security.
. ~~ *
62a
Schweiker, No. 82-0265-CV-W-8 Slip op. (W.D. Mo.
June 11, 1983), the district court found that the Sec-
retary had failed to give sufficient consideration to
plaintiff’s subjective complaints of pain. The court
then remanded the matter for further agency action,
explicitly instructing the Secretary that she could not
ignore subjective complaints of pain, “even if not
supported by objective evidence.” Jd. at 13. When
the matter reached the Appeals Council,‘ the Council
decided to remand the case to an ALJ for further
proceedings. On remand, the Council instructed the
ALJ to follow “the procedures described in the
Court’s order of remand.” However, the Appeals
Council continued :
[T]he administrative law judge is reminded
that Social Security Administration Regulations
404.1529 and 426.929 and Ruling 82-58 direct
that pain is a symptom, not an impairment... .
A finding of disabled, therefore, must not be
based on symptoms unless medical signs or find-
ings show that there is a severe medical condi-
tion which could be reasonably expected to pro-
(luce the symptoms and the degree of symptom-
atology alleged.
Likewise, the order of the district court was not
followed in Devore v. Heckler, No. C 83-2040 (N.D.
la. November 22, 1983). There, the district court
ruled that an “ALJ may disbelieve a claimant’s com-
plaints of pain because of inherent inconsistencies or
other circumstances, but not solely because they can-
‘The first step in the remand process from district court
is to the Appeals Council. The Council may at that point either
uct upon the matter itself, or refer the case to an ALJ for
further findings.
=.
dR EE A A A A A RL -
63a
not show the exact physiological source of the pain.”
Id. at 3. The court then remanded the matter for
further proceedings before the Secretary. The Ap-
peals Council again remanded to an ALJ for further
hearing, noting that the ALJ should follow the di-
rections of the district court. The Appeals Council
again, however, cited the ALJ to the Secretary’s own
erroneous regulations and rulings regarding pain,
concluding that a disability ‘“‘must not be based on
symptoms unless medical signs or findings show that
there is a severe medical condition which could be
reasonably expected to produce the symptoms and the
degree of symptomology alleged.”
Judge Heaney of the Eighth Circuit recently wrote
of the Secretary’s policy of disregarding the law of
the courts:
The SSA apparently has directed that decisions
of both the district court and the courts of ap-
peals should be ignored in deciding whether to
grant or deny benefits to individual claimants.
A memo to all ALJs dated January 7, 1982,
from the Associate Commissioner of the Office of
Hearings and Appeals, is typical of the Secre-
tary’s approach. The memo emphasized that the
Deputy Assistant General Counsel “stressed the
point that the federal courts do not run SSA’s
programs, and that the ALJs are responsible for
applying the Secretary’s policies and guidelines
regardless of court decisions below the level of
the Supreme Court.”
Heaney, Why the High Rate of Reversals in Social
Security Disability Cases?, 7 Hamline Law Review
1,9 (1984).
Thus, the Secretary apparently has decided to obey
only the edicts of the U.S. Supreme Court. At the
64a
same time, however, the Secretary refuses to appeal
adverse rulings to the Supreme Court, thus depriving
the Court of the opportunity to issue opinions on
disputed issues and eliminating the Secretary’s risk
of being bound by a decision of.the highest court in
the land. Instead, the Secretary merely follows the
ruling as to the individual claimant whose case was
before a lower court, while ignoring general prece-
dents set out by such courts. The Secretary therefore
faces reversal on a case-by-case basis, but sees noth-
ing to prevent her from ruling as she chooses in sub-
sequent cases.
In her motion papers before this court, the Secre-
tary even admits to her general policy of ignoring
federal court decisions, while arguing simultaneously
that she is following the law of this circuit:
[C Jonsiderations of inter-branch comity suggest
that the Secretary should decline to follow court
of appeals opinions only after due and respectful
consideration of such opinions.
Defendant’s Memorandum in Opposition to Plaintiff’s
Motions for Temporary Restraining Order and Pre-
liminary Injunction, p. 14 n. 10.
Whether it be out of due and respectful considera-
tion or bad faith, the Secretary has nonetheless
breached her duties under the Social Security Act and
the U.S. Constitution by not following the law of this
circuit. By implementing her policy of nonacquies-
ence, Whether it be by formal ruling or otherwise,’
* The Secretary argues that she has not adopted a policy of
nonacquiesence in this case because she has not issued a formal
ruling nonacquescing in the orders of this circuit. The Secre-
tary did in fact issue such a ruling regardiny the Ninth Cir-
cult’s decision that the Secretary must follow the medical
improvement standard in termination cases. See Lopez v.
65a
the Secretary impairs the right of each individual to
a proper consideration of his subjective complaint, in-
cluding pain.
For these reasons, this court preliminarily con-
cludes that the Secretary has applied an erroneous
pain stanadrd on a system-wide basis, violating the,
Social Security Act, the due process clause of the
Fifth Amendment and the constitutional doctrine of
the separation of powers. Plaintiffs have more than
sustained their burden of showing a likelihood of suc-
cess on the merits on this issue.
The Medical Improvement Standard
Plaintiffs further argue that the Secretary has ap-
plied an erroneous standard when terminating bene-
fits for individuals who had once been declared by
the Secretary to be disabled. Plaintiffs claim that the
Secretary is required under the Social Security Act
to employ a “medical improvement standard”, which
would require the Secretary to show that an individ- -
ual’s medical condition has materially improved, or
that there was a clear error in the initial decision,
before terminating benefits. The Secreatry presently
adheres to a “eurrent disability” standard, which al-
lows the Secretary to merely look at the present evi- |
dence of disability and make a new determination of
whether or not an individual’s disability has ceased."
Heckler, 725 F.2d 1489 (9th Cir. 198-4). This court finds such
a distinction to be meaningless. Whether or not a formal rul-
ing has been issued is irrelevant; the Secretary’s policy of
ignoring federal court decisions remains alive.
‘The Secretary argues that at least in some cases “new”
medical evidence is gathered in determining whether an in-
dividual’s disability has ceased. Even if this is true in some
cases, the Secretary still refuses to follow the medical im-
provement standard urged by plaintiffs to be the proper one.
66a
The Secretary’s “current disability” standard has
been overwhelmingly rejected by the courts. See, e.g.,
Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982) ;
Dotson v. Schweiker, 719 F.2d 80 (4th Cir. 1983);
Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir. 1983) ;
Simpson v. Schweiker, 691 F.2d 966 (11th Cir.
1982); Weber v. Harris, 640 F.2d 176 (8th Cir.
1981); Graham v. Heckler, 573 F.Supp. 1573 (W.Va.
1983); Hyatt v. Heckler, 579 F.Supp. 985 (N.C.
1984); Doe v. Heckler, 576 F.Supp. 463 (Md. 1983).
There is no doubt that under the Social Security
Act, the claimant “bears a continuing burden of
showing ... that he has a physical or mental impair-
ment,” and that “[i]n order to remain eligible for
benefits [he] must demonstrate that he is [disabled].”
Mathews v. Eldidge, 424 U.S. 319, 336 and 3438, 96
S.Ct. 893, 903 and 907, 47 L.Ed.2d 18 (1976). This
rule does not prohibit. however, a presumption that
an individual once disabled remains disabled absent
proof that his condition has changed. Sce Patti v.
Schweiker, supra. In Patti, the Ninth Cireuit ex-
plained the reasoning for sueh a presumption in these
cases:
[A] prior ruling of disability can give rise to a
presumption that the disability still exists. “Once
evidence has been presented which supports a
finding that a given condition exists, it is pre-
sumed in the absence of proof to the contrary
that the condition has remained unchanged.”
Rivas v. Weinberger, 475 F.2d 255, 258 (5th
Civ.1973). A presumption . . . imposefs] “on
the party against whom it is directed the burden
of going forward with the evidence to rebut or
meet the presumption.” Fed.R.Evid. 301.
67a
The Secretary’s own regulations provide that
the decision of an ALJ on a disability question
becomes binding “on all parties to the hearing”
if none of the specific avenues of review are ex-
ercised by the claimant or the Secretary. 20
C.F.R. § 416.1455 (1981).
669 F.2d at 586.
The Secretary’s own regulations require that a final
decision on the issue of disabilty is binding on both
parties. The resulting presumption of continuing
disability only requires the Secretary to come for-
ward with evidence that the individual’s condition
has improved, and does not shift the ultimate burden
of proof to the Secretary.
The difference between the medical improvement
and current disabilities standards is of great impor-
tance to individual claimants. In Lopez v. Hechler,
supra, the Ninth Circuit directed the Secretary to
apply the medical improvement standard on a class-
wide basis. Subsequently, the agency began a review
of the cases of those individuals whose benefits had
been terminated under the Secretary’s improper cur-
rent disability standard. Of these individuals, 73‘:
were found to be disabled under this new and proper
standard. In addition, the termination rate in Ore-
gon, covered by the Lopez decision, has been reduced
to only 12.3°7 compared to the national average of
45.2% . Affidavit of Elena H. Ackel, attorney in the
Lopez case.
The Secretary argues that the medical improve-
ment standard is too broad, and will allow individ-
uals to remain on the rolls whose situation has im-
proved due to new medical technology or drug treat-
ment, but whose actual medical condition has _ re-
mained unchanged. Clearly, the effect that such tech-
nology or treatment might have on the individual
68a
could be taken into account in considering whether
a person’s medical condition has materially improved.
New technology or treatment may in many cases
alleviate the individual’s impairment to the point
that it is no longer disabling.
The Secretary’s afguments along these lines con-
firm plaintiffs’ position that the current standard in
termination cases is not designed to merely take
those individuals-off the rolls who ean now work.
Rather, it has become clear that the Secretary’s in-
tentions have heen to simply cut down the number of
people receiving benefits.’ This policy has been car-
ried out at the expense of many people who have
been previously found to be disabled and depend upon
benefits for their daily needs. While the Secretary
has been directed by Congress to carry out a disabil-
ity review program, it has been carried out in a man-
ner clearly contrary to law.
I’or these reasons, this court finds plaintiffs have
shown substantial likelihood of success on the merits
of their claims on this issue.
lrreparable Harm
The irreparable harm likely to befall plaintiffs if
this preliminary injunction is not granted is im-
mense. It is hard to envision a more urgent situa-
_ tion. Claimants who lose or are denied benefits face
foreclosure proceedings on this homes, suffer utility
cutoffs and find it difficult to purchase food. They go
without medication and doctors’ care; they lose their
\
' This court takes note that the ALJs themselves have tiled
suit in federal court to stop the Secretary from applying
pressure to trim the disability rolls. Association of Adminis-
trative Law Judges Ine. v. Schweiker, Civil No. $5-01244
(D.D.C. tiled Jan. 19, 1983).
‘ceiesiiiiaaiaaaccammeaeaaaaiaiiiea
69a
medical insurance. They become increasingly anx-
ious, depressed, despairing—all of which aggravates
| their medical conditions. They begin to think of.
suicide. They even die from the very disabilities the
agency denies they have.
The following excerpts from plaintiffs’ affidavits
detail their compelling plight:
Because I was not able to meet my utility costs
in the winter of 82/83 my natural gas was shut
off in May of 1983. Gas not only heats my house
ees but also is the fuel needed for my cooking stove.
! I live in an older home with poor insulation and
the house was quite chilly after the heat was
turned off which aggravated the pain in my
bones. I had only an electric hot plate to use for
cooking .. . Many months I have had no money
to pay for doctor’s visits, prescription drugs or
even over-the-counter pain relievers . . . Especi-
ally in the last year I have felt a great sense
of isolation and frustration and have experi-
enced moments of despair and wonderment at
the futility of going on.
Affidavit of Harriet A. Miller, 61, Mora, Minn., suf-
fering from spinal osteoporosis and arthritis.
I cannot work because | uffer constant and se-
vere pain, as a result of my degenerative disc
disease . . . Our family has no medical coverage
at this time... If a dise in my back were to slip
out again—as had happened on six occasions
while I was on disability benefits and Medicare
—I would be fully responsible for the hospital
bill, which would inevitably amount to several
thousand dollars ... These financial difficulties,
the prospect of seeing my life savings dwindle
70a
away, the constant severe pain, have caused me
and my family considerable anxiety and distress.
I have suffered, and continue to suffer from a
prolonged depression as diagnosed by my psy-
chiatrist. The loss of my income has created
problems between me and my wife and has dam-
aged our married life.
Affidavit of Donald Eugene Foster, 59, Maplewood,
Minn., truck driver for 36 years.
[ cannot work because of severe and constant
pain in my back, due to arthritis and degenera-
tive disc disease . . . The pain is so severe on
some days that I cannot even get out of bed...
Our house has twice gone into foreclosure pro-
ceedings and I have had to borrow from friends
and relatives to save it.
Affidavit of George Hinrichs, 43, Minneapolis, Minn.,
Western Electric employee for 21 years.
My doctor told me to avoid stress, because other-
wise I’d be more likely to have another heart at-
tack. How can I avoid stress when I can’t pay
my bills or buy food for my family?
Affidavit of Arthur Gottsch, 43.
My father was originally found to be disabled
. In January of 1975 . . . He continued to
receive disability benefits until August of 1981,
when his benefits were terminated. This oc-
curred despite the fact that his problems with
his eyesight seemed to have worsened, and he
had also developed hypertension. He appealed
the termination and he had a hearing before an
Administrative Law Judge on April 15, 1982.
The day after the hearing my father suffered a
severe heart attack and was hospitalized in a
| | |
Tla
coma. He died, without having regained con-
sciousness, on June 2, 1982. In the meantime,
having been notified of my father’s condition,
the Administrative Law Judge issued a favor-
able decision on May 20, 1982. Although I can-
not draw a direct connection between my father’s
death and the loss of his Social Security benefits,
such loss clearly did cause him additional strain
and anguish, and it certainly was unjustified in
light of the fact that his condition had worsened,
not changed for the betther. I state these things
in the hope that it may help others avoid similar
hardship and loss.
Affidavit of Kim Ringold, daughter of Jack Jesper-
son, deceased.
This undeniable harm to plaintiffs convinces this
court that the public interest demands immediate
relief. This harm to plaintiffs also far outweighs any
injury the Secretary might suffer as a result of the
injunction. The Secretary points to bureaucratic
woes and inconveniences in administering this order,
but this cannot begin to compare with the health and
welfare interests of the plaintiffs. The Secretary’s
alleged and speculative troubles pale even further in
view of the fact that it was her own actions which
brought the disability program to this juncture of
crisis. Justice is only now catching up with her.
In sum, this court finds that plaintiffs have met all
of the requirements for a preliminary injunction and
now takes on the task of defining the terms of relief
appropriate at this stage.
This court is fully cognizant of the deference that
must ordinarily be displayed toward the Secretary
when acting within her administrative domain, At
the same time, however, this court recognizes its duty
72a
to fashion equitable relief commensurate to the harm
plaintiffs face. Califano v. Yamasaki, 442 U.S. 682,
704, 99 S.Ct. 2545, 2559, 61 L.Ed.2d 176 (1979).
The present circumstances mandate two types of
preliminary relief. First, the Secretary must be or-
dered to employ the proper standards for pain and
medical improvement. Second, class members whose
benefits have been terminated must be entitled to
have their benefits reinstated immediately pending a
proper review of their cases, and class members
whose initial applications for benefits have been de-
nied under improper standards must be entitled to
receive an expedited review of their claims.
Other courts facing similar situations involving
the Secretary also have found it necessary to award
reinstated benefits to terminated disability claimants.
See, e.g., Mental Health Association of Minnesota v.
Heckler, 720 F.2d 965 (8th Cir.1983); Lopez v.
Heckler, 725 F.2d 1489 (9th Cir.1984). Mental
Health Association of Minnesota involved a class-
action challenge of the Secretary’s procedures for
evaluating disability claims of the severely mentally
ill. The district.court concluded that the plaintiffs
were likely to prevail on the merits at trial and or-
dered the reinstatement of benetits. The Eighth Cir-
cuit affirmed, finding that the scope of the order was
within the district court’s jurisdiction:
The district court merely reinstates certain
plaintiffs to their former position; it does not
extend a new benefit to those plaintiffs who
merely had applied for benefits . . . The result-
ant order of reinstatement of benetits pending a
proper adjudication is a restoration of the status
quo.
Mental Health Association of Minnesota, 720 F.2d at
972-73.
73a
Similarly, the present reinstatement order is
merely a limited form of relief intended to preserve
the status quo of terminated recipients. It does not
pronounce that these class members will perpetually
receive disability benefits, but only insists that bene-
fits be paid until the Secretary properly reviews each
claim on a case-by-case basis. Should the claimant
ultimately be found ineligible, benefits paid out pur-
suant to the terms of the injunction could be re-
covered by the Secretary under the standard overpay-
ment procedures of the Social Security Act. This
order also does not provide to terminated claimants
the past-due benefits which they may ultimately be
entitled to. There is not the same urgency accom-
panying the award of past-due benefits as there is
with reinstatement of current benefits, upon which
plaintiffs rely for daily survival. Thus, back benefits
will not be awarded until the Secretary evaluates
and finds a continuing disability for each claimant
or until this controversy is fully litigated.
The reasonableness of this reinstatement remedy
is underscored by a recent action by the Secretary
herself. On April 13, 1984, the Secretary announced
a moratorium on certain terminations and, accom-
panying the moratorium, the reinstatement of bene-
fits to some categories of terminated recipients. This
indicates that the Secretary recognizes the harm suf-
fered by persons whose benefits have been terminated.
This court realizes that some members of the class
whose benefits have been terminated will be entitled
to reinstatement under the Secretary’s moratorium.
There is much confusion, however, as to the exact
terms and coverage of the moratorium. The Secre-
tary herself has provided conflicting information,
stating at one point that certain class members were
74a
covered only to come back another day and recant.
The Secretary also failed to comply with an order of
this court to furnish more details on the moratorium.
In fact, at the April 26 hearing—two weeks after
the “alleged” moratorium—the Secretary still could
not explain in any detail the parameters of her mora-
torium. The one fact that is clear is that many ter-
niinated claimants are definitely not covered by the
moratorium. The moratorium does not provide for
reinstated benefits to persons whose appeals are pend-
ing in distiict court (rather than in the agency), like
Plaintiff Polaski, or to persons whose appeals have
been remanded to the Secretary by a district court,
like Plaintiff Blaschko. In addition, the moratorium
will not reinstate benefits to persons whose benefits
were terminated following a “diaried” as opposed to
a “periodic” review. In order to provide effective
relief, this court is left with no alternative but to
proceed with this class intact with the understand-
ing, of course, that no one would be entitled to a dou-
ble payment of benefits.
Class members who have never been awarded dis-
ubility benefits by the Secretary are not in as strong
a position as terminated claimants to seek immediate
benefits pursuant to this preliminary injunction.
With these first-time applicants, there has never been
un agency finding of disability. This court is none-
theless tempted to grant plaintiffs’ request for the
immediate payment of benefits, at least to claimants
With pending district court appeals, because of the
Secretary’s persistent and obstinate refusal to abide
by the law. The Secretary has had a multitude of
opportunities to apply the proper standards to these
Class members, but has continually refused to do so.
It is troublesome to contemplate that this again
75a
might be the case if this court remands the claims of
this segment of the class and again orders the Secre-
tary to apply the proper law. Reluctantly, however,
this court concludes that the Secretary should be
given one last chance. The Secretary therefore is di-
rected to evaluate under the proper standards the
claims of these first-time applicants within the time
periods specified below. Any claimant not receiving
this individualized review in the mandated time will
be entitled to immediate benefits.
This preliminary injunction includes within its
terms of relief class members who have not pursued
timely appeals. The fact that appeals were not filed
in some cases is not an indication of how meritorious
a case the claimants could present. Many claimants
believe—after rounds of agency appeals—that fur-
ther fighting would be futile. Others have been un-
able to retain attorneys. Affidavit of Arthur Gottsch.
And some claimants may be so disabled that they
could not perfect timely appeals.
The Secretary, through an affidavit submitted by
Jean Hall Hinckley, Acting Deputy Associate Com-
missioner for Disability, implies that compliance with
this order will be virtually impossible. According to
Hinckley, it will take at least six months to merely
identify “‘a substantial number” of class members.
Hickley Affidavit, at p. 4. This court, in this age of
computers, finds this assertion to be preposterous and
frightening. Hinckley further states that the
agency’s problems will be compounded because it “is
at present attempting to comply with a number of
injunctive orders in major class action lawsuits na-
tionwide.” Hickley Affidavit, at p. 4. This only
serves to illustrate, once again, that the Secretary
herself has beought on many of the difficulties now
76a
facing her. The fact that the magnitude of the Secre-
tary’s transgressions has been so overwhelming can-
not stand as an argument for delaying remedial ac-
tion. Instead, it further demonstrates the necessity
for effective and immediate relief.
Accordingly, IT IS HEREBY ORDERED That a
preliminary injunction be issued as to class members
whose benefits have been or will be terminated and
that the defendant, her employees, agents and assigns
shall be:
1. Enjoined from terminating Title II or Title
XVI benefits at any level of the administrative re-
view process unless and until defendant has:
a. Given timely and effective written notice to
the recipient of disability benefits and his au-
thorized representative, if any, of the proper
pain and medical improvement standards and of
the right to submit additional evidence; and
b. Evaluated the recipient’s continuing eligibil-
ity for disability benefits under the proper pain
and medical improvement standards;
2. Enjoined from terminating disability payments
to persons receiving continuing payments pursuant to
Pub.L. 97-455 unless or until there has been an ad-
verse decision by an Administrative Law Judge made
in accordance with the requirements of paragraph 1,
supra,
3. Ordered to notify all class members and their
authorized representatives, if any, who are currently
pursuing administrative or judicial appeals from the
termination of their benefits and who are not cur-
rently receiving payments, of the proper pain and
medical improvement standards, of the right to sub-
T7a
mit additional evidence, and of the right to reinstate-
ment of payments.
These benefits shall continue until the Secretary
determines, on a case-by-case basis and under the
proper standards, that a claimant is not disabled.
For class members whose appeals are pending in
district court and who choose reinstatement, their
cases shall be remanded to the Secretary for this in-
dividualized review under the proper standards. The
Secretary shall submit a notice of remand, along with
a proposed order of remand, to the district court for
each class member who requests reinstatement within
72 hours of claimant’s request. These remands are
intended to be administrative in nature, a procedural
step to facilitate the transfer of cases from courts to
the agency for compliance with this order, The Sec-
retary’s notice of remand shall state that the remand
is being sought pursuant to the claimant’s request
and this court’s injunction, and that immediate court
action is requested.
4. Ordered to notify all class members and their
authorized representatives, if any, who do not have
timely administrative appeals pending of the proper
pain and medical improvement standards, the right
to have their claims reopened, the right to submit ad-
ditional evidence, and the right to have payments
reinstated ;
5. Ordered to reopen the claims of class members
whose files are located at the District Offices or at
the Appeals Council and to return these files to the
DDS for reevaluation under the proper pain and
medical improvement standards, whether or not the
claimant seeks reinstatement of payments pursuant
to paragraph 4, supra;
6. It is further ordered that both parties shall
submit to the court within five days of the date of
78a
this order proposed notices to be sent by the Secretary
to class members pursuant to the terms of this order.
This notice shall include information concerning the
availability of attorneys under the Social Security
Act to assist claimants in their efforts to gain bene-
fits. The Secretary shall mail such notices to class
members within fifteen days of the court’s approval
of the forms. Class members shall be given thirty
days to respond to such notices. Except for class
members with appeals pending in district courts, the
Seeretary shall begin paying benefits to any class
members requesting reinstatement within fifteen
days of the request for reinstatement. For claimants
with pending district court appeals, the Secretary
shall begin paying benefits to any class members re-
questing reinstatement within fifteen days of the fil-
ing of the district court’s remand order.
IT IS FURTHER ORDERED That a preliminary
injunction be issued as to class members whose appli-
cations have been or will be denied as follows:
1. The the Secretary is ordered to issue a teletype
Within twenty-fqur hours of the date of this order
notifying all offices of the Social Security Adminis-
tration to process applications for Title II and Title
XVI disability benefits, under the proper pain stand-
ard, and to notify the claimant of the proper pain
standard if the application is denied;
2. That all class members whose applications have
heen denied by the defendant at any level of the ad-
ministrative review process with no appeal pending,
or who currently have an adniinistrative appeal
pending,
a. Shall be issued a written notice (with a copy
to his legal representative, if any) by the Secre-
tary which contains the following:
79a
i. Asks the applicant whether he alleges he.
is unable to work in whole or in part be-
cause of pain or other subjective complaints ;
ii. Informs the applicant of the proper pain
standard;
iii. With respect to applicants who do not
have a timely appeal pending, states that
the applicant has a right, if he so chooses,
to have his claim reopened and considered
under the proper pain standard, to submit
additional evidence, to an expedited decision
on his application within a stated time pe-
riod, and to interim benefits if the Secretary
fails to issue a decision within the stated
time period;
iv. With respect to applicants who cur-
rently have an administrative appeal pend-
ing, states that the applicant has a right, if
he so chooses, to have his claim considered —
under the proper pain standard, to submit
additional evidence, to an expedited decision
on his application within a stated time pe-
riod, and to interim benefits if the defend-
ant fails to issue a decision within the
stated time period.
b. Upon receiving the timely written request
from an applicant for an expedited decision, the
Secretary shall consider the application under
the proper pain standard and shall issue a writ-
ten decision within the stated time period:
i. For those persons whose applications are
pending andor will be considered at the
initial application or the Reconsideration
80a
Level, the stated time period shall be sixty
days from the date of receipt of the request
for an expedited decision.
ii. For those persons whose applications are
pending and/or will be considered at the
Administrative Law Judge or Appeals
Council level, the stated time period shall be
ninety days from receipt of the request for
an expedited decision.
ce. In those cases in which the defendant has not
issued an expedited decision within the stated
time period, the Secretary shall commence pay-
ing current monthly interim benefits to the ap-
plicant from the date the stated time period has
expired, and shall continue to pay such benefits
until a written decision is issued.
3. That the Secretary shall reopen the claims of
class members whose files are located at the District
Offices or at the Appeals Council whether or not the
claimant responds to the notice referred to in para-
graph 2(a) (ili), supra. The files located at the Dis-
trict Offices shall be returned to the DDS for evalua-
tion under the proper pain standard, and the files
located at the Appeals Council shall be returned to
the Office of Hearings and Appeals for evaluation
under the proper pain standard.
4. That all class members whose applications have
been denied in a final decision by the Secretary and
who have requested review by a federal district court,
a. Shall be issued a written notice (with a copy
to his legal representative if any) by the Secre-
tary which contains the following:
1. Asks the applicant whether he alleges he
is unable to work in whole or in part. be-
8la
cause of pain or other subjective com- .
plaints;
ii. Informs the applicant of the proper pain
standard,
iii. States that the applicant has a right, if
he so chooses, to have his claim remanded to
the Secretary to be considered under the
proper pain standard, to submit additional
evidence, to an expedited decision on his ap-
plication within a stated time period, and
to interim benefits if the defendant fails to
issue a decision within the stated time
period.
iv. Within 72 hours of an applicant’s re-
quest to have his claim remanded, the Secre-
tary shall submit a notice of remand, along
with a proposed order, to the district court.
These remands are intended to be adminis-
trative in nature, a procedural step to fa-
cilitate the transfer of cases fiom courts to
the agency for compliance with this order.
The Secretary’s notice of remand shall state
that the remand is being sought pursuant
to the claimant’s request and this court’s
injunction, and that immediate court action
is requested.
b. Upon receiving the timely written request
from an applicant for an expedited decision, the
Secretary shall consider the application under
the proper pain standard and shall issue a writ-
ten decision within thirty days from the date of
the filing of the district court’s remand order.
In those cases in which the defendant has not
82a
issued an expedited decision within the stated
time period of thirty days, the Secretary shall
commence paying current monthly interim bene-
fits to the applicant from the date the stated
time period has expired, and shall continue to
pay such benefits until a written decision is
issued.
5. Both parties shall submit to the court within
five days of the date of this order proposed form
notices to be sent by the Secretary to class members
pursuant to the terms of this order. This notice shall
include information concerning the availability of at-
torneys under the Social Security Act to assist claim-
ants in their efforts to gain benefits. The Secretary
shall mail such notices to class members within fif-
teen clays of the court’s approval of the forms. Class
menibers shall be given thirty days to respond to such
notices.
IT IS FURTHER ORDERED That as used herein,
the “proper medical improvement standard” is as
follows:
Disability may be found to have ceased for med-
ical reasons when there is material improvement
in the individual’s medical condition, or there
was clear and specific error.
Material improvement means that, since the
most recent decision, the medically determinable
physical or mental impairment(s) which pre-
vented the person from doing substantial gain-
ful activity and entitled him/her to disability
benefits has decreased to the point that the per-
son can now perform substantial gainful activ-
ity. This improvement must be demonstrated by
83a
medical evidence consisting of signs, symptoms
and laboratory findings and must show that
either:
a. the impairment(s) itself has decerased,
or
b. the effect of the impairment(s) on the
person has decreased (for example through
drug therapy; however, any negative effects,
such as a drug reaction, must be consid-
ered).
Clear and specific error means the determina-
tion allowing or continuing disability was plainly
incorrect; e.g. evidence belonged to another in-
dividual, evidence was incorrectly reported or
obviously misread. A difference in judgment on
a case does not constitute clear and _ specific
error.
IT IS FURTHER ORDERED That as used herein,
the ‘‘proper pain standard” is as follows:
Disability may be found to exist when there is a
medically determinable physical and mental im-
pairment which provides an underlying basis for
allegations of pain and other subjective com-
plaints even if there is no objective evidence
which explains or supports the degree or severity
of the claimant’s pain or other subjective com-
plaints. .
IT IS FURTHER ORDERED That plaintiffs’
motion for a revised class certification is hereby
granted.
IT IS FURTHER ORDERED That defendant’s
motion for a reconsideration of this court’s April 17
order is hereby denied.
84a
IT IS FURTHER ORDERED That defendant’s
motion for summary judgment is hereby denied.
IT IS FURTHER ORDERED That defendant
shall furnish a complete copy of this opinion to all of
her agents and personnel who will in any capacity act
upon this order.
PL mn A PCT Ce at A Ry at a
85a
APPENDIX G
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Civil No. 4-84-64
LORRAINE POLASKI, ET AL., PLAINTIFFS,
Vv.
MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT.
[Filed Apr. 11, 1985]
Based on all the files, records and proceedings herein it
is ORDERED:
1. That the individual claim of named plaintiff Lor-
raine Polaski (SSN 476-30-8652) for a continuation of
disability insurance benefits under Title II of the Social
Security Act is hereby remanded to the Secretary of Health
and Human Services for further proceedings consistent
with the Disability Benefits Reform Act of 1984; and
2. That this Court shall retain jurisdiction over the
class claims which remain at issue in this lawsuit in a man-
ner consistent with the decision of the Eighth Circuit of
Appeals in Polanski v. Heckler, 751 F.2d 943 (8th Cir.
1984).
Dated: April 10, 1985 BY THE COURT:
/s/ Mires W. Lorp
Judge of District Court
86a
APPENDIX H
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Civil No. 4-84-64
LORRAINE POLASKI, ET AL., PLAINTIFFS,
Vv.
MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT.
April 12, 1985
ORDER
MILES W. LORD, Chief Judge.
This matter comes before the court upon the order of re-
mand issued by the United States Court of Appeals for the
Eighth Circuit, Polaski v. Heckler, 751 F.2d 943 (1984)
remanding 585 F.Supp. 1004. In that opinion, the Court
of Appeals dismissed plaintiffs’ class action concerning the
Secretary’s termination of disability benefits, but upheld
this court’s order in favor of plaintiffs whose applications
for benefits had been denied because of the Secretary’s
misapplication of agency regulations concerning proof of
pain and other subjective complaints. In compliance with
the Eighth Circuit’s order, therefore,
87a
IT IS HEREBY ORDERED
1. That the class members who are entitled to the relief
described herein include:
all persons (1) residing in Minnesota, North Dakota,
South Dakota, Nebraska, lowa or Arkansas, (2) who
have applied for Title II or Title XVI benefits, (3)
who allege that they are unable to work in whole or in
part as a result of pain or other subjective complaints,
and (4) who have received an adverse administrative
decision on their claims for benefits as described
below: :
a) in Minnesota, North Dakota, South
Dakota, and Nebraska, those persons who
received an adverse decision on their claims, at
any level of the administrative review process,
between January 30, 1984 and July 17, 1984, in-
clusive;
b) in Arkansas, those persons who received an
adverse decision on their claims at the Ad-
ministrative Law Judge or Appeals Council
levels between February 20, 1984 and July 17,
1984, inclusive;
c) in Iowa, those persons who received an
adverse decision on their claims at any level of
the administrative review process between
November 26, 1983 and July 17, 1984, inclusive;
2. That, within a reasonable time, the Secretary shall
issue the attached written notice to each class member with
a copy to his or her legal representative, if any, which:
a) informs each class member of the proper standard
for the administrative appraisal of allegations of pain
or other subjective complaints;
b) asks each class member whether he or she alleges
an inability to work, in whole or in part, because of
pain or other subjective complaints;
88a
c) States that each class member has the option and
the right to have his or her claim reconsidered under
the proper pain standard;
d) informs each class member that the request for
reconsideration must be submitted within time limits
established by the Secretary;
e) informs each class member of his or her right to
submit additional evidence within time limits
established by the Secretary;
f) contains information concerning the availability
under the Social Security Act of attorneys to assist
claimants in their efforts to obtain disability benefits.
3. That upon receiving a written request for recon-
sideration, the Secretary shall consider the application
under the proper pain standard, and shall issue a written
decision within a reasonable time;
4. That the claims of class member who request recon-
sideration shall be evaluated by the Disability Determina-
tion Services in their respective states. The decision of the
Disability Determination Services upon reconsideration
shall be regarded as a new decision and shall be subject to
the regular appeals procedures of agency adjudication.
5. That the Secretary shall timely provide to the court
and plaintiffs’ counsel copies of the Secretary’s teletype
transmitting the notice and instructing adjudicative com-
ponents of the Social Security Administration as to its
proper use. Further, the Secretary shall prepare and main-
tain monthly statistical reports showing the number of
people notified and the number of people responding to
the notices. The Secretary shall timely provide to the court
and plaintiffs’ counsel copies of these reports.
6. That as used herein, the “proper pain standard” is
as follows:
A claimant has the burden of proving the disability
results from a medically determinable physical or
mental impairment. Symptoms such as pain, short-
a ee
89a
ness of breath, weakness, or nervousness are the in-
dividual’s own perceptions of the effects of a physical
or mental impairment(s). Because of their subjective
characteristics and the absence of any reliable tech-
niques for measurement, symptoms (especially pain)
are difficult to prove, disprove, or quantify. As a
result of this difficulty, some adjudicators have
misinterpreted the Secretary’s policies as enunciated
in SSR-82-58.
In particular, some adjudicators may have mis-
interpreted Example No. 2 in SSR-82-58 to allow
allegations of pain to be disregarded solely because
the allegations are not fully corroborated by objective
medical findings typically associated with pain. The
example should not be construed to be inconsistent
with the text of SSR-82-58 which states in part:
The effects of symptoms must be considered in
terms of any additional physical or mental
restrictions. They may impose beyond those
clearly demonstrated by the objective physical
manifestations of disorders. Symptoms can
sometimes suggest a greater severity of impair-
ment than is demonstrated by objective and
medical findings alone.
While the claimant has the burden of proving
that the disability results from a medically deter-
minable physical or mental impairment, direct
medical evidence of the cause and effect relation-
ship between the impairment and the degree of
claimant’s subjective complaints need not be pro-
duced. The adjudicator may not disregard a
claimant’s subjective complaints solely because
the objective medical evidence does not fully sup-
port them.
The absence of an objective medical basis
which supports the degree of severity of subjective
90a
complaints alleged is just one factor to be con-
sidered in evaluating the credibility of the
testimony and complaints. The adjudicator must
give full consideration to all of the evidence
presented relating to subjective complaints, in-
cluding the claimant’s prior work record, and
observations by third parties and treating and ex-
amining physicians relating to such matters as:
1. the claimant’s daily activities;
2. the duration, frequency and intensity of
the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
medication;
5. functional restrictions.
The adjudicator is not free to accept or reject
the claimant’s subjective complaints so/ely on the
basis of personal observations. Subjective com-
plaints may be discounted if there are incon-
sistencies in the evidence as a whole.
7. That the Secretary shall send to class members and
their representatives, if any, copies of the notice in the
form appended hereto.
APPENDIX
NOTICE
Our records show that you might be able to receive
disability benefits because of a recent court case about the
Social Security law. In Polaski v. Heckler, the United
States Court of Appeals for the Eighth Circuit ruled that
we, the Social Security Administration, may have used the
wrong legal standard for considering the pain or other
subjective complaints of people who have applied for
disability benefits. By the term “other subjective com-
9la
plaints”, we mean things like numbness, dizziness, ner-
vousness, and other problems that do not show up in
x-rays, blood test, or the like.
The court ordered us to consider pain or other subjec-
tive complaints under the “pain standard” (copy enclosed)
when we are deciding whether people who apply for
disability benefits are disabled. Under the “pain
standard”, people can be found eligible for disability
benefits, even though objective medical evidence may not
entirely support the applicant’s claim of disability caused
by pain or other subjective complaints.
IMPORTANT RIGHTS
You applied for disability benefits and your application
was denied. You now have the chance to renew your ap-
plication. If you claim that you are unable to work either
solely or partly because of pain or some other subjective
complaint, you have the right to have your claim con-
sidered under the “pain standard.” Our new consideration
of your claim under the “pain standard” might result in an
award of disability benefits to you. You will also have the
chance to present new evidence to prove that you are
disabled.
If you request reconsideration, your claim will be
evaluated by the Disability Determination Service in your
state. The decision on reconsideration will be a new deci-
sion, amd you will have the right to file an appeal if you
don’t agree with it.
You have the right to represent yourself in any new pro-
ceedings, or to be represented by an attorney or any other
qualified person. Contact your local Social Security office
or legal services program for the names of the organiza-
tions or individuals who can help you.
92a
WHAT YOU MUST DO
If you want us to reconsider your claim for disability
benefits, you must return the attached request form to us
within 30 days of the date you receive this notice. We will
not review your case unless you ask us to do so. If you
wish to present new evidence of your condition, be sure to
check off the blank on the enclosed return form. You will
have 60 days from your receipt of this notice in which to
send us new evidence.
PAIN STANDARD
While the claimant has the burden of proving that the
disability results from a medically determinable physical
or mental impairment, direct medical evidence of the
cause and effect relationship between the impairment and
the degree of claimant’s subjective complaints need not be
produced. The adjudicator may not disregard a claimant’s
subjective complaint solely because the objective medical
evidence does not fully support them.
The absence of an objective medical basis which sup-
ports the degree of severity of subjective complaints al-
leged is just one factor to be considered in evaluating the
credibility of the testimony and complaints. The ad-
judicator must give full consideration to all of the evidence
presented relating to subjective complaints, including the
claimant’s prior work record, and observations by third
parties and treating and examining physicians relating to
Such matters as
1. the claimant’s daily activities;
2. the duration, frequency and intensity of the
pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness andside effects of medica-
tion;
5. functional restrictions.
93a
The adjudicator is iot free to accept or reject the claim-
| ant’s subjective coiiplaints solely on the basis of personal
) observations. Subjective complaints may be discounted if
) there are inconsistencies in the evidence as a whole.
REQUEST FORM
I believe that | am unable to work in whole or in part
because of pain or some other subjective complaint. |
would like the Social Security Administration to recon-
sider my application for disability benefits using the cor-
rect pain standard.
Check One:
____ I wish to submit additional evidence.
I do not wish to submit additional evidence.
Date: Name:
Social Security No.:
REMEMBER, IF YOU WANT US TO RECONSIDER YOUR
CLAIMS, YOU MUST RETURN THIS FORM TO US
WITHIN 30 DAYS. ANY ADDITIONAL
EVIDENCE MUST BE SUBMITTED
WITHIN 60 DAYS.
94a
APPENDIX I
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Civil No. 4-83-233
PATRICK J. BLASCHKO, PLAINTIFF,
V.
MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT.
[Filed Mar. 9, 1984]
ORDER
Based upon the Report and Recommendation of
Magistrate Floyd E. Boline, and a review of the files and
records here,
IT IS HEREBY ORDERED that this case is remanded
to the Secretary for further action in accordance with said
Report and Recommendation.
Date: March 7, 1984
/S/ DIANA E. MuRPHY
Judge Diana E. Murphy
United States District Court
95a
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Civil No. 4-83-233
PATRICK J. BLASCHKO, PLAINTIFF,
Vv.
MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT.
PAUL ONKKA, Esq., SOUTHERN MINNESOTA REGIONAL
LEGAL SERVICES, INC., FiFTH & OAK STREETS, CARVER,
MN 55315, APPEARS FOR PLAINTIFF;
v.
ROBERT M. SMALL, ASSISTANT UNITED STATES ATTORNEY,
234 FEDERAL BUILDING, MINNEAPOLIS, MN 55401,
APPEARS FOR DEFENDANT.
REPORT AND RECOMMENDATION
Plaintiff appeals the Secretary’s final decision that he is
no longer entitled to disability insurance benefits and Sup-
plemental Security Income under §§ 216(i), 223 and Title
XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423
and 1381 et seg. This Court has jurisdiction to review the
Secretary’s final decision under § 205(g) of the Act, 42
U.S.C. § 405(g).
Plaintiffs applied for benefits in October 1975, claiming
that he became unable to work as of June 1975 because of
96a
a heart condition.'! He was granted disability benefits. In
August 1981, plaintiff received a termination notice advis-
ing him that recent medical evidence showed he had
regained the ability to work as of July 1981. This decision
was affirmed on reconsideration in February 1982. Plain-
tiff disagreed with the result and an administrative appeal
hearing was held at his request on June 3, 1982. The Ad-
ministrative Law Judge (ALJ) found that although plain-
tiff’s heart condition still prevents him from returning to
his old job as a truck driver, he has regained the ability to
perform sedentary work. (T. 17) The Appeals Council ap-
proved the ALJ’s decision, making it the final decision of
the Secretary.
Both parties have filed summary judgment motions.
The issue on appeal is whether the Secretary’s decision is
supported by substantial evidence. After reviewing the
record, this Court concludes that it is not, and recom-
mends that the matter be remanded for further considera-
tion in accordance with this opinion.
The medical records show that plaintiff was evaluated
for heart burn and chest pain in the summer of 1975 and
was diagnosed as suffering from coronary heart disease.
(T. 168-174) Coronary angiograms done in October 1975
revealed the need for surgery, and in February 1976 plain-
tiff underwent a two-vessel bypass operation. (T. 134, 148)
Since his operation, plaintiff has continued to have
nonradiating chest pain upon physical exertion. The con-
dition has been diagnosed as “chronic stable angina”. (T.
111) Plaintiff’s angina is relieved by resting for ten minutes
or by taking nitroglycerin. (T. 152, 155-55, 158)
The records also show that plaintiff suffers from leg
pain when he exerts himself. In January 1982, Doppler
ultrasound studies of plaintiff's “peripheral arterial cir-
' Plaintiff now also claims that low back pain prevents him from
working. However, by plaintiff’s own admission, he has never been
treated for this condition. (T. 52)
97a
culation. . . in the lower extremities” were performed. (T.
177). The results showed “abnormal Doppler ultrasound
pressure studies in the left lower extremity indicating mild
athersclerotic obliterans.” (T. 178)
Plaintiff testified that his chest and leg pain prevents
him from performing household tasks, walking long
distances and lifting more than ten pounds. He testified
that he takes three short naps a day and must lie down for
15 minuies whenever he has an angina attack. Finally,
plaintiff stated that the medicine he takes has affected his
ability to concentrate and remember.
Plaintiff has the burden of showing that his disability
continues and that he remains entitled to benefits. Weber
v. Harris, 640 F.2d 176, 177 (8th Cir. 1981). Plaintiff met
his burden when he showed he was unable to return to his
old job. Nelson v. Heckler, 712 F.2d 346 (8th Cir. 1983).
The burden shifted to the Secretary to show that other
jobs existed which plaintiff could perform. Jd.
In attempting to discharge his burden, the ALJ relied
exclusively on the Medical-Vocational Guidelines, 20
C.F.R. Part 404, Subpart P, Appendix 2 to determine that
plaintiff could perform sedentary work. The ALJ ap-
parently relied exclusively on the Guidelines because,
although he did not discredit plaintiff’s subjective com-
plaints of pain, he refused to consider them because they
were unsupported by objective medical evidence. (T. 15)
However, this circuit has repeatedly held that the ALJ
must give serious consideration to a claimant’s allegations
of pain, and may not reject them solely because they are
unsupported by the medical evidence. Simonson vy.
Schweiker, 699 F.2d 426, 429 (8th Cir. 1983). Moreover, a
fair reading of record indicates that plaintiff’s complaints
of chest pain are fully supported by the medical evidence.
(T. 152-168) The ALJ’s exclusive reliance on the
98a
Guidelines was therefore error, because the Guidelines
only take into account a claimant’s exertional limitations.
McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir. 1982).
On remand, the ALJ has the burden of showing that
there are other jobs plaintiff can perform despite his pain.
To discharge his burden, the ALJ must consult a voca-
tional expert. The hypothetical posed to the expert should
include a complete description of plaintiffs pain, and may
not contain any ultimate conclusion about plaintiff’s abili-
ty to perform in a particular work category. Simonson,
supra.
It is therefore recommended that this case be remanded
for further consideration in accordance with this opinion.
Date: February 2, 1984
FLOYD E. BOLINE
United States Magistrate
Pursuant to Local Rule 14C(b) any party may object to
this Report and Recommendation by filing with the Clerk
of Court and serving all parties within ten days, a writing
which specifically identifies those portions of this Report
to which objections are made and the basis of that objec-
tion. Failure to comply with this procedure shall operate
as a forfeiture of the objecting party’s right to seek review
in the Court of Appeals.
it Re A OHS I ti eo
99a
APPENDIX J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1984
No. 84-5085MN
LORRAINE POLASKI, ET AL., APPELLEES
v.
MARGARET M. HECKLER, ETC., APPELLANT
[Tiled Dee. 31, 1984]
Appeal from the United States District Court
for the District of Minnesota
JUDGMENT
.This appeal from the United States District Court
was submitted on the record of the said District
Court, briefs of the parties and was argued by counsel.
Upon consideration of the premises it is hereby or-
dered and adjudged that the cause is remanded to
the district court with directions for further proceed-
ings consistent with the opinion of this Court.
December 31, 1984
100a
APPENDIX K
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1984
No. 84-5085-MN.
LORRAINE POLASKI, ET AL., APPELLEES
v.
MARGARET M. HECKLER, ETC., APPELLANT
Appeal from the United States District Court
for the District of Minnesota
Appellant’s petition for rehearing en banc has been
considered by the Court and is denied.
Petition for rehearing by the panel is also denied.
Judge Donald R. Ross would have granted the peti-
tion.
April 16, 1985
10la
APPENDIX L
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1984
No. 84-5085-MN.
LORRAINE POLASKI, ET AL., APPELLEES
Vv.
MARGARET M. HECKLER, ETC., APPELLANT
Appeal from the United States District Court
for the District of Minnesota
AMENDED ORDER
Appellant’s petition for rehearing en banc has been
considered by the Court and is denied.
Petition for rehearing by the panel is also denied.
Judges Donald R. Ross, John R. Gibson and Pasco
M. Bowman would have granted the petition.
April 19, 1985
102a
APPENDIX M
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
1. Section 205(g) of the Social Security Act, 42
U.S.C. 405(g), provides:
Judicial review
Any individual, after any final decision of the
Secretary made after a hearing to which he was
a party, irrespective of the amount in contro-
versy, may cbtain a review of such decision by a
civil action commenced within sixty days after
the mailing to him of notice of such decision or
within such further time as the Secretary may
allow. Such action shall be brought in the dis-
trict court of the United States for the judicial
district in which the plaintiff resides, or has his
principal place of business, or, if he does not
reside or have his principal place of business
within any such judicial district, in the United
States District Court for the District of Colum-
bia. As part of his answer the Secretary shall
file a certified copy of the transcript of the rec-
ord including the evidence upon which the find-
ings and decision complained of are based. The
court shall have power to enter, upon the plead-
ings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of
the Secretary, with or without remanding the
cause for a rehearing. The findings of the Sec-
retary as to any fact, if supported by substan-
tial evidence, shall be conclusive, and where a
claim has been denied by the Secretary or a de-
cision is rendered under subsection (b) of this
a
103a
section which is adverse to an individual who
was a party to the hearing before the Secretary,
because of failure of the claimant or such in-
dividual to submit proof in conformity with any
regulation prescribed under subsection (a) of
this section, the court shall review only the ques-
tion of conformity with such regulations and the
validity of such regulations. The court may, on
motion of the Secretary made for good cause
shown before he files his answer, remand the
case to the Secretary for further action by the
Secretary, and it may at any time order add-
tional evidence to be taken before the Secretary,
but only upon a showing that there is new evi-
dence which is material and that there is good
cause for the failure to incorporate such evidence
into the record in a prior proceeding; and the
Secretary shall, after the case is remanded, and
after hearing such additional evidence if so or-
dered, modify or affirm his findings of fact or
his decision, or both, and shall file with the court
any such additional and modified findings of fact
and decision, and a transcript of the additional
record and testimony upon which his action in
modifying or affirming was based. Such addi-
tional or modified findings of fact and decision
shall be reviewable only to the extent provided
for review of the original findings of fact and
decision. The judgment of the court shall be
final except that it shall be subject to review in
the same manner as a judgment in other civil
actions. Any action instituted in accordance
with this subsection shall survive notwithstand-
ing any change in the person occupying the office
of Secretary or any vacancy in such office.
104a
2. Section 3 of the Social Security Disability Bene-
fits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat.
1799, provides:
EVALUATION OF PAIN
(a)(1) Section 223(d)(5) of the Social Se-
curity Act is amended by inserting after the
first sentence the following new sentences: “An
individual’s statement as to pain or other symp-
toms shall not alone be conclusive evidence of
disability as defined in this section; there must
be medical signs and findings, established by
medically acceptable clinical or laboratory diag-
nostic techniques, which show the existence of
medical impairment that results from anatomi-
cal, physiological, or psychological abnormalities
which could reasonably be expected to produce
the pain or other symptoms alleged and which,
when considered with all evidence required to be
furnished under this paragraph (including state-
ments of the individual or his physician as to the
intensity and persistence of such pain or other
symptoms which may reasonably be accepted as
consistent with the medical signs and findings),
would lead to a conclusion that the individual is
under a disability. Objective medical evidence
of pain or other symptoms established by medi-
cally acceptable clinical or laboratory techniques
(for example, deteriorating nerve or muscle tis-
sue) must be considered in reaching a conclusion
as to whether the individual is under a disabil-
ity.”’.
(2) Section 1614(a)(3)(H) of such Act (as
added by section 8 of this Act) is amended by
striking out “section 221(h)” and inserting in
lieu thereof “sections 221(h) and 223(d)(5)”.
Se
10Sa
(3) The amendments made by paragraphs
(1) and (2) shall apply to determinations made
prior to January 1, 1987.
(b)(1) The Secretary of Health and Human
Services shall appoint a Commission on the Eval-_
uation of Pain (hereafter in this section referred
to as the “Commission’’) to conduct a study con-
cerning the evaluation of pain in determining
under titles II and XVI of the Social Security
Act whether an individual is under a disability.
Such study shall be conducted in consultation
with the National Academy of Sciences.
(2) The Commission shall consist of at least
twelve experts, including a significant represen-
tation from the field of medicine who are in-
volved in the study of pain, and representation
from the fields of law, administration of dis-
ability insurance programs, and other appropri-
ate fields of expertise.
(3) The Commission shall be appointed by the
Secretary of Health and Human Services (with-
out regard to the requirements of the Federal
Advisory Committee Act) within 60 days after
the date of the enactment of this Act. The Sec-
retary shall from time to time appoint one of
the members to serve as Chairman. The Com-
mission shall meet as often as the Secretary
deems necessary.
(4) Members of the Commission shall be ap-
pointed without regard to the provisions of title
5, United States Code, governing appointments
in the competitive service. Members who are not
employees of the United States, while attending
meetings of the Commission or otherwise serving
on the business of the Commission, shall be paid
at a rate equal to the per diem equivalent of the
106a
rate provided for level IV of the Executive
Schedule under section 5315 of title 5, United
States Code, for each day, including traveltime,
during which they are engaged in the actual per-
formance of duties vested in the Commission.
While engaged in the performance of such duties
away from their homes or regular places of busi-
ness they may be allowed travel expenses, in-
cluding per diem in lieu of subsistence, as au-
thorized by section 5703 of title 5, United States
Code, for persons in the Government service em-
ployed intermittently.
(5) The Commission may engage such tech-
nical assistance from individuals skilled in medi-
cal and other aspects of pain as may be neces-
sary to carry out its functions. The Secretary
shall make available to the Commission such sec-
retarial, clerical, and other assistance and any
pertinent data prepared by the Department of
Health and Human Services as the Commission
may require to carry out its functions.
(6) The Secretary shal
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