# Appendix — Bowen v. Polaski > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2080%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 482 U.S. 927 ## Text 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