Appendix — Hyatt v. Bowen

Supreme Court brief1986

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Supreme Court, U.S.

FILED

SEP 19 1985

IN THE ih

Supreme Court of the United States

OCTOBER TERM, 1985

PATRICK M. HYATT, HERMAN O. CAUDLE ana

MARY P. LOVINGOOD, on behalf of themselves

and all others similarly situated,

Petitioners,

Ve

MARGARET M. HECKLER, or her successors in office,

SECRETARY OF THE UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

Respondent

and

NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES,

DISABILITY DETERMINATION SERVICES,

Intervenor-Nominal Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX TO PETITION

JOHN R. WESTER CHARLES MCBRAYER SASSER

(Counsel of Record) LEGAL SERVICES OF

DAN T. COENEN SOUTHERN PIEDMONT,

ROBINSON, BRADSHAW _ INC.

& HINSON, P.A. 6th Floor, 951 South

1900 Independence Center Independence Bouievard

Charlotte, North Carolina Charlotte, North Carolina

28246 28202

(704) 377-2536 (704) 376-1608

Attorneys for Petitioner

TABLE OF CONTENTS

CIR TTUTTIAAE, VII iain scsice cccudiseccseadinscscess

Article III, Section 1

Article II, Section 3

Amendment V

STATUTES AND REGULATIONS ............00000008 a nevenscumends

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42 U.S.C. Section 405(h)........ prabienorsasiceddenesepinsesenes

28 U.S.C. Section 1361 ...........: PENA SORES AORN ee

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H. R. Conference Report 98-1-39...........cceeeeeeees

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20 C.F.R. Subpart P, App. 1, Section 4.00C.........

SOCIAL SECURITY ADMINISTRATION REGULATIONS....

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HiHS/SSA interim Circular 155. ........0...000.-.ccee00002-.

AMERICAN BAR ASSOCIATION REPORT 110................

ORDER OF SUPREME COURT OF UNITED STATES

EXTENDING TIME TO FILE PETITION FOR WRIT OF

os Eos AERC D Oe OPO CREE NCTE OR oP OE

DECISION OF UNITED STATES COURT OF APPEALS,

I I iene

ORDER OF UNITED STATES COURT OF APPEALS

DENYING PETITIONS OF REHEARING IN BANC.......

FINDINGS OF FACT, CONCLUSIONS OF LAW AND

DECISION OF UNITED STATES DISTRICT COURT,

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58

JUDGMENT OF UNITED STATES DISTRICT COURT,

SA Bie er aceiasketnerscaconsavcsesnsecoccseces 92

ORDER OF UNITED STATES DISTRICT COURT

CERTIFYING A CLASS AND REQUIRING NOTICE ...... 95

AMENDED ORDER OF UNITED STATES DISTRICT

COURT ALLOWING ATTORNEYS’ FEES ............000c00+08 102

AFFIDAVIT OF JEAN HALL HINCKLEY .............:00ceeeeeees 113

ORDER OF UNITED STATES DISTRICT COURT

- FOLLOWING REMAND BY UNITED STATES COURT

OF APPEALS, JUNE 25, TFBS cccicinssccncesicssciscscisceeesees. 119

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ SECOND

MOTION FOR ATTORNEY FEES. ...........-cccscsscscscoesseees 128

CONSTITUTION OF THE UNITED STATES

Article III, Section 1: The judicial Power of the United

States, shall be vested in one supreme Court, and in such

inferior Courts as the Congress may from time to time

ordain and establish. The Judges, both of the supreme and

inferior Courts, shall hold their Offices during good Beha-

viour, and shall, at stated Times, receive for their Services, a

Compensation, which shall not be diminished during their

Continuance in Office.

Article II, Section 3: [The President] shall take Care that

the Laws be faithfully executed, and shall Commission all

the Officers of the United States.

Amend. V: No person shall be . . . deprived of life, liberty,

or property, without due process of law ....

2

42 U.S.C. § 405(g): Any individual, after any final deci-

sion of the Secretary made after a hearing to which he was a

party, irrespective of the amount in controversy, 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 district court of

the United States for the judicial district in which the plain-

tiff 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 Dist:ict of Columbia. As part of his answer the Secre-

tary shall file a certified copy of the transcript of the record

including the evidence upon which the findings and decision

complained of are based. The court shall have power to

enter, upon the pleadings 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 Secretary as to any fact, if

supported by substantial evidence, shall be conclusive, and

where a claim has been denied by the Secretary or a decision

is rendered under subsection (b) of this 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 individual to submit proof in conformity with any regu-

lation prescribed under subsection (a) of this section, the

court shall review only the question 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 additional evidence to be taken before the Secretary,

but only upon a showing that there is new evidence which is

material and that there is good cause for the failure to incor-

porate such evidence into the record in a prior proceeding;

and the Secretary shall, after the case is remanded, and after

3

hearing such additional evidence if so ordered, modify or

affirm his findings of fact or his decision, or both, and shall

file with the court any such additional and modified findings

off act and decision, and a transcript of the additional record

and testimony upon which his action in modifying or

affirming was based. Such additional or modified findings of

fact and decision shall be reviewable only to the extent pro-

vided 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 notwithstanding any change in

the person occupying the office of Secretary or any vacancy

in such office.

4

42 U.S.C. § 405(h): The findings and decision of the Sec-

retary after a hearing shall be binding upon all individuals

who were parties to such hearing. No findings of a fact or

decision of the Secretary shall be :eviewed by any person,

tribunal, or governmental agency except as herein provided.

No action against the United States, the Secretary, or any

officer or employee thereof shall be brought under section

1331 or 1346 or Title 28 to recover on any claim arising

under this subchapter.

28 U.S.C. § 1361: The district courts shall have original

jurisdiction of any action in the nature of mandamus to

compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.

28 U.S.C. § 1651(a): The Supreme Court and all courts

established by Act of Congress may issue all writs necessary

or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.

5

Pub. Law No. 98-460, 98 Stat. 1794 et seq.

STANDARD OF REVIEW FOR TERMINATION OF

DISABILITY BENEFITS AND PERIODS OF

DISABILITY

SEC. 2. (a) Section 223(f) of the Social Security Act is

amended to read as follows:

“Standard of Review for Termination of Disability

Benefits

“(f) A recipient of benefits under this title or title XVIII

based on the disability of any individual may be determined

not to be entitled to such benefits on the basis of a finding

that the physical or mental impairment on the basis of which

such benefits are provided has ceased, does not exist, or is

not disabling only if such finding is supported by —

“(1) substantial evidence which demonstrates that —

“(A) there has been any medical improvement in the

individual’s impairment or combination of impair-

ments (other than medical improvement which is not

related to the individual’s ability to work), and

“(B)(i) the individual is now able to engage in sub-

stantial gainful activity, or

“(ii) if the individual is a widow or surviving

divorced wife under section 202(e) or a widower or ©

surviving divorced husband under section 202(f), the

severity of his or her impairment or impairments is no

longer deemed, under regulations prescribed by the Sec-

retary, sufficient to preclude the individual from engag-

ing in gainful activity; or

“(2) substantial evidence which —

“(A) consists of new medical evidence and (in a case

to which clause (ii)(II) does not apply) a new assessment

of the individual’s residual functional capacity, and

demonstrates that —

6

“(i) although the individual has not improved

medically, he or she is nonetheless a beneficiary of

advances in medical or vocational therapy or

thechnology (related to the individual’s ability to

work), and

“(ii)(1) the individual is now able to engage in sub-

stantial gainful activity, or

“(I1) if the individual is a widow or surviving

divorced wife under section 202(e) or a widower or

surviving divorced husband under section 202(f), the

severity of his or her impairment or impairments is

no longer deemed under regulations prescribed by

the Secretary sufficient to preclude the individual

from engaging in gainful activity, or

“(B) demonstrates that —

“(i) although the individual has not improved

medically, he or she has undergone vocational ther-

apy (related to the individual’s ability to work), and

“(ii) the requirements of subclause (I) or (Il) of

subparagraph (A)(ii) are met; or

“(3) substantial evidence which demonstrates that, as

determined on the basis of new or improved diagnostic

techniques or evaluations, the individua!’s impairment or

combinatien of impairments is not as disabling as it was

considered to be at the time of the most recent prior

decision that he or she was under a disability or continued

to be under a disability, and that therefore —

“(A) the individual is able to engage in substantial

gainful activity, or

“(B) if the individual is a widow or surviving

divorced wife under section 202(e) or a widower or

surviving divorced husband under section 202(f), the

severity of his or her impairment or impairments is not

deemed under regulations prescribed by the Secretary

sufficient to preclude the individual from engaging in

gainful activity; or

.

“(4) substantial evidence (which may be evidence on

the record at the time any prior determination of the

entitlement to benefits based on disability was made, or

newly obtained evidence with relates to that determina-

tion) which demonstrates that a prior determination was

in error.

Nothing in this subsection shall be construed to require a

determination that a recipient of benefits under this title or

title X VIII based on an individual’s disability is entitled to

such benefits if the prior determination was fraudulently

obtained or if the individual is engaged in substantial gainful

activity (or gainful activity in the case of a widow, surviving

divorced wife, widower, or surviving divorced husband),

cannot be located, or fails, without good cause, to cooperate

in a review of the entitlement to such benefits or to follow

prescribed treatment which would be expected to restore his

or her ability to engage in substantial gainful activity (or

gainful activity in the case of a widow, surviving divorced

wife, widower, or surviving divorced husband). Any deter-

mination under this section shall be made on the basis of all

the evidence available in the individual’s case file, including

new evidence concerning the individual’s prior or curreni

condition which is presented by the individual or secured by

the Secretary. Any determination made under this section

shall be made 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 individua! has

previously been determined to be disabled. For purposes of

this subsection, a benefit under this title is based on an

individual’s disability if it is a disability insurance benefit, a

child’s, widow’s, or widower’s insurance benefit based on

disability, or a mother’s or father’s insurance benefit based

on the disability of the mother’s or father’s child who has

attained age 16.”

8

(b) Section 216(i)(2)(D) of such Act is amended by adding

at the end thereof the following: “The provisions set forth in

section 223(f) with respect to determinations of whether

entitiement to benefits under this title or title X VIII based

on the disability of any individual is terminated (on the

basis of a finding that the physical or mental impairment on

the basis of which such benefits are provided has ceased,

does not exist, or is not disabling) shall apply in ths same

manner and to the same extent with respect to determina-

tions of whether a period of disability has ended (on the

basis of a finding that the physical or mental impairment on

the basis of which the finding of disability was made has

ceased, does not exist, or is not disabling).”

(c) Section 1614(a) of such Act is amended by adding at

the end thereof the following new paragraph:

“(5) A recipient of benefits based on disability under this

title may be determined not to be entitled to such benefits on

the basis of a finding that the physical or mental impairment

on the basis of which such benefits are provided has ceased,

does not exist, or is not disabling only if such finding is

supported by —

“(A) substantial evidence which demonstrates that —

“(i) there has been any medical improvement in

the individual’s impairment or combination of

impairments (other than medical improvement

which is not related to the individual’s ability to

work), and

“(i1) the individual is now able to engage in sub-

stantial gainful activity; or

“(B) substantial evidence (except in the case of an

individual eligible to receive benefits under section

1619) which —

“(i) consists of new medical evidence and a new

assessment of the individual’s residual functional

capacity, and demonstrates that —

)

“(I) although the individual has not improved

medically, he or she is nonetheless a beneficiary of

advances in medical or vocational therapy or tech-

nology (related to the individual’s ability to work),

and

“(II) the individual is now able to engage in sub-

stantial gainful activity, or

“(ii) demonstrates that —

“(I) although the individual has not improved

medically, he or she has undergone vocational

therapy (related to the individual’s ability to

work), and

“(I1) the individual is now able to engage in sub-

stantial gainful activity; or

“(C) substantial evidence which demonstrates that, as

determined on the basis of new or improved diagnostic

techniques or evaluations, the individual’s impairment or

combination of impairments is not as disabling as it was

considered to be at the time of the most recent prior

decision that he or she was under a disability or continued

to be under a disability, and that therefore the individual

is able to engage in substantial gainful activity; or

“(D) substantial evidence (which may be evidence on

the record at the time any prior determination of the

entitlement to benefits based on disability was made, or

newly obtained evidence with relates to that determina-

tion) which demonstrates that a prior determination was

in error.

Nothing in this paragraph shall be construed to require a

determination that an individual receiving benefits based on

disability under this title is entitled to such benefits if the

prior determination was fraudulently obtained or if the indi-

vidual is engaged in substantial gainful activity, cannot be

located, or fails, without good cause, to cooperate in a review

of his or her entitlement or to follow prescribed treatment

which would be expected to restore his or her ability to

10

engage in substantial gainful activity. Any determination

under this paragraph shall be made on the basis of all the

evidence available in the individual’s case file, including

new evidence concerning the individual’s prior or current

condition which is presented by the individual or secured by

the Secretary. Any determination made under this paragraph

shall be made 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.”

(d)(1) The amendments made by this section shall apply

only as provided in this subsection.

(2) The amendments made by this section shall apply

to—

(A) determinations made by the Secretary on or after

the date of the enactment of this Act;

(B) determinations with respect to which a final deci-

sion of the Secretary has not yet been made as of the date

of the enactment of this Act and with respect to which a

request for administrative review is made in conformity

with the time limits, exhaustion requirements, and other

provisions of section 205 of the Social Security Act and

regulations of the Secretary;

(C) determinations with respect to which a request for

judicial review was pending on September 19, 1984, and

which involve an individual litigant or a member of a

class in a class action who is identified by name in such

pending action on such date; and

(D) determinations with respect to which a timely

request for judicial review is or has been made by an

individual litigant of a final decision of the Secretary

made within 60 days prior to the date of the enactment of

this Act.

In the case of determinations described in subparagraphs

(C) and (D) in actions relating to medical improvement, the

11

court shall remand such cases to the Secretary for review in

accordance with the provisions of the Social Security Act as

amended by this section.

(3) In the case of a recipient of benefits under title II, X VI,

or XVIII of the Social Security Act —

(A) who has been determined not to be entitled to such

benefits on the basis of a finding that the physical or

mental impairment on the basis of which such benefits

were provided has ceased, does not exist, or is not disa-

bling, and

(B) who was a member of a class certified on or before

September 19, 1984, in a class action relating to medical

improvement pending on September 19, 1984, but was

not identified by name as a member of the class on such

date,

the court shall remand such case to the Secretary. The Secre-

_ tary shall notify such individual by certified mail that he

may request a review of the determination described in sub-

paragraph (A) baced on the provisions of this section and the

provisions of the Social Security Act as amended by this

section. Such notification shall specify that the individual

must request such review within 120 days after the date on

which such notification is received. If such request is made

in a timely manner, the Secretary shall make a review of the

determination described in subparagraph (A) in accordance

with the provisions of this section and the provisions of the

Social Security Act as amended by this section. The amend-

ments made by this section shall apply with respect to such

review, and the determination described in subparagraph

(A) (and any redetermination resulting from such review)

shall be subject to further administrative and judicial

review, only if such request is made in a timely manner.

(4) The decision by the Secretary on a case remanded by a

court pursuant to this subsection shall be regarded as a new

decision on the individual’s claim for benefits, which super-

sedes the final decision of the Secretary. The new decision

12

shall be subject to further administrative review and to judi-

cial review only in conformity with the time limits, exhaus-

tion requirements, and other provisions of section 205 of the

Social Security Act and regulations issued by the Secretary in

conformity with such section.

(5) No class in a class action relating to medical improve-

ment may be certified after September 19, 1984, if the class

action seeks judicial review of a decision terminating entitle-

ment (or a period of disability) made by the Secretary of

Health and Human Services prior to September 19, 1984.

(6) For purposes of this subsection, the term “action relat-

ing to medical improvement” means an action raising the

issue of whether an individual who has had his entitlement

to benefits under title II, XVI, or XVIII of the Social Secu-

rity Act based on disability terminated (or period of disabil-

ity ended) should not have had such entitlement terminated

(or period of disability ended) without consideration of

whether there has been medical improvement in the condi-

tion of such individual (or another individual on whose disa-

bility such entitlement is based) since the time of a prior

determination that the individual was under a disability.

(e) Any individual whose case is remanded to the Secre-

tary pursuant to subsection (d) or whose request for a review

is made in a timely manner pursuant to subsection (d), may

elect, in accordance with section 223(g) or 1631(a)(7) of the

Social Security Act, to have payments made beginning with

the month in which he makes such election, and ending as

under such section 223(g) or 1631(a)(7). Nothwithstanding

such section 223(g) or 1631(a)(7), such payments (if

elected) —

(1) shall be made at least until an initial redetermina-

tion is made by the Secretary; and

(2) shall begin with the payment for the month in which

such individual makes such election.

(f) In the case of any individual who is found to be under a

disability after a review required under this section, such

13

individual shall be entitled to retroactive benefits beginning

with benefits payable for the first month to which the most

recent termination of benefits applied.

(g) The Secretary of Health and Human Services shall

prescribe regulations necessary to implement the amend-

ments made by this section not later than 180 days after the

date of the enactment of this Act.

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 anatom-

ical, physiological, or psychological abnormalities which

could reasonably be expected to produce the pain or other

symptoms alleged and which, when considered with all evi-

dence required to be furnished under this paragraph (includ-

ing statements 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 evi-

dence of pain or other symptoms established by medically

acceptable clinical or laboratory techniques (for example,

deteriorating nerve or muscle tissue) mist be considered in

reaching a conclusion as to whether the individual is under a

disability.”

(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 “section 221(h) and 223(d)(5)”.

(3) The amendments made by paragraphs (1) and (2) shall

apply to determinations made prior to January 1, 1987.

14

(b)(1) The Secretary of Health and Human Services shall

appoint a Commission on the Evaluation of Pain (hereafter

in this section referred to as the “Commission”) to conduct a

study concerning the evaluation of pain in determining

under titles Il and XVI of the Social Security Act whether an

individual is under a disability. Such study shall be con-

ducted in consultation with the National Academy of

Sciences.

(2) The Commission shall consist of at least twelve

experts, including a significant representation from the field

of medicine who are involved in the study of pain, and

representation from the fields of law, administration of disa-

bility insurance programs, and other appropriate fields of

expertise.

(3) The Commission shall be appointed by the Secretary

of Health and Human Services (without regard to the

requirements of the Federal Advisory Committee Act)

within 60 days after the date of the enactment of this Act.

The Secretary shall from time to time appoint one of the

members to serve as Chairman. The Commission shall meet

as often as the Secretary deems necessary.

(4) Members of the Commission shall be appointed with-

out regard to the provisions of title 5, United States Code,

governing appointments in the competitive service. Mem-

bers 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 rate provided for

level IV of the Executive Schedule under section 5315 of

title 5, United States Code, for each day, including travel-

time, during which they are engaged in the actual perform-

ance of duties vested in the Commission. While engaged in

the performance of such duties away from their homes or

regular places of business they may be allowed travel

expenses, including per diem in lieu of subsistence, as

15

authorized by section 5703 of title 5, United States Code, for

persons in the Government service employed intermittently.

(5) The Commission may engage such technical assistance

from individuals skilled in medical and other aspects of pain

as may be necessary to carry out its functions. The Secretary

shall make available to the Commission such secretarial,

clerical, and other assistance and any pertinent data pre-

pared by the Department of Health and Human Services as

the Commission may require to carry out its functions.

(6) The Secretary shall submit the results of the study

under paragraph (1), together with any recommendations, to

the Committee on Ways and Means of the House of Repre-

sentatives and the Committee on Finance of the Senate not

later than December 31, 1985. The Commission shall termi-

nate at the time such results are submitted.

16

From H.R. Conference Report 98-1-39:

10. ACQUIESCENCE OR NON-ACQUIESCENCE IN COURT OF

APPEALS DECISIONS

Present law

Claimants for benefits under the Social Security Act may

appeal State agency denials through several levels of admin-

istrative appeal. A claimant who wishes to continue to pur-

sue appeal may next turn to the Federal district court with

jurisdiction over his or her claim. The district court reviews

the record as complied by the agency to determine whether

substantial evidence existed for the agency’s decision. The

district court’s decision may be appealed, by the claimant or

the Secretary, to the Circuit Court with jurisdiction, and

ultimately to the Supreme Court (which may or may not

agree to hear the appeal).

Under the Federal judicial system, decisions by a Cnceiit

Court of Appeals constitute binding case law to be followed

by all district courts in that circuit. (District courts are not

bound by the case laws of other circuits and often develop

contrary case laws on the same issue.)

In general, if two circuits rule differently on a particular

issue, the Supreme Court will review the issue to settle the

dispute, although frequently the Court will decline to review

for an extended period of time if the issue is not ripe for

disposition, or if it is not of sufficient importance to warrant

immediate attention. If a particular policy is found by the

Supreme Court to be unconstitutional, or contrary to the

statute, that decision is binding on the agency.

Most social security cases decided in the Federal courts

have little value as precedent for SSA decisions, since most

reversals of agency determinations rest on the lack of sub-

stantial evidence for the agency’s position. However, in

some instances, the court’s opinion is based on matter of a

statutory interpretation.

17

The Social Security Administration abides by the final

judgments of Federal courts with respect to the individuals

in particular cases. It does not, however, consider itself

bound with respect to nonlitigants as far as adopting as

agency policy, either in the circuit or nationwide, the inter-

pretation underlying a Circuit Court’s decision. If the deci-

sion of a Circuit Court is contrary to the Secretary’s interpre-

tation of the Social Security Act and regulations, SSA, like

some other Federal agencies, issues a ruling stating that it

will not adopt the court’s decision as agency policy. There

are currently 7 such rulings of nonacquiescence by the Social

Security Administration.

House bill

Requires that a decision of a Circuit Court of Appeals

interpreting title II of the Social Security Act or its regula-

tions in a manner different from prevailing policy be

appealed to the Supreme Court or the Secretary must apply

the interpretation underlying that decision as agency policy

in the circuit. If the Supreme Court denies review, circuit-

wide acquiescence with that interpretation would be

required until the Supreme Court ruled on the issue.

Includes title X VI conforming amendment.

Effective date. — On enactment, with respect to all circuit

court decisions made on or after the date of enactment, and

with respect to circuit court decisions for which the Secre-

tary still has an opportunity to request review by the

Supreme Court.

Senate amendment

Requires SSA to notify Congress and print in the Federal

Register (within 90 days after decision date, or on the last

date available for appeal, whichever is later) an explanation

of the agency’s decision to acquiesce or not acquiesce in

decisions of the Circuit Courts relating to interpretation of

the Social Security Act or of regulations issued under the

18

Act. In cases where the Secretary is acquiescing, the report-

ing requirement would apply only to significant decisions.

States that nothing in the section shall be interpreted as

sanctioning any decision of the Secretary not to acquiesce in

the decision of a circuit court.

Effective date. — Applies to Court decisions rendered

after the date of enactment.

Conference agreement

The confererice agreement deletes both the House and

Senate language. The conferees do not intend that the agree-

ment to drop both provisions be interpreted as approval of

“non-acquiescence” by a federal agency to an interpretation

of a U.S. Circuit Court of Appeals as a general practice. On

the contrary, the conferees note that questions have been

raised about the constitutional basis of non-acquiescence

and many of the conferees have strong concerns about some

of the ways in which this policy has been applied, even if

constitutional. Thus, the conferees urge that a policy of non-

acquiescence be followed only in situations where the

Administration has initiated or has the reasonable expecta-

tion and intention of initiating the steps necessary to receive

a review of the issue in the Supreme Court.

The conferees reaffirm the congressional intent that the

Secretary resolve policy conflicts promptly in order to

achieve consistent uniform administration of the program.

This objective may be achieved in at least two ways other

than non-acquiescence when the agency is faced with con-

flicting interpretations of the meaning and intent of the

Social Security Act: either to appeal the issue to the Supreme

Court, or to seek a legislative remedy from the Congress.

When there are court rulings which the Secretary believes

are inconsistent with the meaning and intent of the law, the

Secretary should diligently pursue appropriate appeals chan-

nels on an expeditious basis. By refusing to apply circuit

court interpretations and by not promptly seeking review by

19

the Supreme Court, the Secretary forces beneficiaries to re-

litigate the same issue Over and over again in the circuit, at.

substantial expense to both beneficiaries and the federal gov-

ernment. This is clearly an undesirable consequence. The

conferees also feel that in addition to the practical adminis-

trative problems which may be raised by non-acquiescence,

the legal and Constitutional issues raised by non-acquies-

cence can only be settled by the Supreme Court. The confer-

ees therefore urge the Administration to seek a resolution of

this issue.

The conferees recognize that the realities of litigation do

not make it appropriate or feasible to appeal every adverse

decision with which the Secretary continues to disagree. In

such instances, however, the conferees strongly insist that

Congress’ judgment as to the appropriate policy should pre-

vail. The conferees expect the Secretary to propose what she

believes to be appropriate remedial legislation for congres-

sional consideration.

it is clearly undesirable to have major differences in statu-

tory interpretation between the Secretary and the courts

remain unresolved for a protracted period of time. The con-

ferees believe this legislation takes a major step toward

removing the obstacles to resolution by clarifying the statu-

tory language and congressional intent.

20

20 C.F.R. § 404.1529: 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 extent to which signs and

laboratory findings confirm these symptoms. The effects of

all symptoms, including severe and prolonged pain, must be

evaluated on the basis of a medically determinable impair-

ment which can be shown to 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 reasona-

bly expected to produce those symptoms.

20 C.F.R. § 404.1633 (b): The State agency making deter-

minations of disability will comply with the written guide-

lines in the Disability insurance section of the Program

Operations Manual System. This manual will also include

certain policies, procedures, guides and operating instruc-

tions designated as advisory or discretionary.

20 C.F.R. § 416.1033 (b): The State agency making deter-

minations of disability will comply with the written guide-

lines in the Disability Insurance section of the Program

Operations Manual System. This manual will also include

certain policies, procedures, guides and operating instruc-

tions designated as advisory or discretionary.

20 C.F.R. Subpart P, App. 1, § 4.00 C: Hypertensive vascu-

lar disease does not result in severe impairment unless it

causes severe damage to one or more of four end organs:

heart, brain, kidneys, or eyes (retinae). The presence of such

damage must be established by appropriate abnormal physi-

cal signs and laboratory findings as specified in 4.02 or 4.04,

or for the body system involved.

21

From SSR 82-55:

PURPOSE: To enunciate the policy regarding nonsevere

impairments and to provide examples of impairments that

are not severe in order to more clearly illustrate the level of

severity required before the concept of “nonsevere impair-

ment” can be applied in the sequential evaluation of

disability.

eK

The following examples are merely representative of the

types of impairments which would be considered not severe

and are not intended to be all inclusive.

xxx

4. Cardiovascular

a. Hypertension without significant organ damage, cur-

rent or past.

*x*x

7. Endocrine

a. Diabetes mellitus, adult onset, controlled on prescribed

therapy, without significant end-organ damage or

recent episodes of acidosis.

[Identical language appears at POMS 2107.]

22

From SSR 82-58:

PURPOSE: To state the policy and describe the consider-

ation given to symptoms, particularly that of pain, in the

evaluation of disability under titles II and XVI of the Social

Security Act.

KK

POLICY STATEMENT: Symptoms will not have a signif-

icant effect on a disability determination or decision unless

medical signs or findings show that a medical condition is

present that could reasonably be expected to produce the

symptoms which are alleged or reported. However, once

such a medical condition (e.g., disc disease) is objectively

established, the symptoms are still not controlling for pur-

poses of evaluating disability. Clinical and laboratory data

and a 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 reasonable conclusions about the validity of

the intensity 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 disc 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 impairment severity. It is

not sufficient to merely establish a diagnosis or a source for

the symptom.

[Identical language appears at POMS 2205.]

23

SSR 81-6

TITLES If AND XVI:

CONTINUANCE OR CESSATION OF

DISABILITY OR BLINDNESS

PURPOSE: To state the policy for determining whether dis-

ability or blindness under titles II and XVI continues or

ceases.

CITATIONS (AUTHORITY): Sections 221 and 1631 of the

Social Security Act; Regulations No. 4, sections 404.1579,

404,1586 and 404.1594; Regulations No. 16, section

416.994.

PERTINENT HISTORY: Under operating guides which

have been in effect for approximately 3 years, disability or

blindness is found to have ceased when current evidence

shows that the individual does not meet the definition of

disability or blindness under which his or her claim was

allowed; it is not necessary to show that the individual’s

medical condition has “improved” since the prior determi-

nation. However, prior regulations had been interpreted by

some to mean that before cessation of disability or blindness

could be found, there must have been a positive showing of

medical improvement. Such an interpretation precluded a

finding of cessation in cases where current evidence showed

that the individual was not disabled or blind, but it could

not be shown that actual “improvement” had taken place.

The regulations have now been revised to clarify this issue.

POLICY STATEMENT: Where the evidence obtained at

the time of a continuing disability investigation (CDI) estab-

lishes that the individual is not currently disabled or blind, a

finding of cessation is appropriate. It will not be necessary to

determine whether or how much the individual’s condition

has medically improved since the prior favorable

determination.

24

EFFECTIVE DATE: Final regulations covering this policy

were effective August 20, 1980, the date of publication in the

Federal Register (45 FR 55566).

Fis

SSR 82-49c

Patti v. Schweiker, 9th Circuit, Civ. No. 80-5763 (2/18/82)

The Social Security Administration (SSA) does not

acquiesce in the court’s decision.

The claimant had been receiving supplemental secu-

rity income (SSI) benefits as a disabled individual since

1976. In December 1977, SSA informed the claimant

that her disability had ceased. After a hearing in March

1978, this determination was reversed by an adminis-

trative law judge (ALJ) and the claimant’s benefits were

continued. SSA then informed the claimant that her

disability had ceased in April 1979, and that determina-

tion was affirmed by the district court.

The Court of Appeals, however, reversed SSA’s

determination. The court found that the determination

of disability in 1978 gave rise to a presumption at the

hearing in 1979 that the claimant was still disabled.

While the opinion acknowledges that this presumption

does not shift the burden of proof and the claimant still

has the burden of proving her case, the court found that

the presumption imposes on the Secretary the burden of

going forward with evidence that the claimant’s condi-

tion has medically improved or otherwise changed.

Finding that there was essentially no evidence to sup-

port a conclusion that the claimant’s condition had

changed, the court held that SSA’s determination that

the claimant’s disability had ceased was not supported

by substantial evidence.

In essence, the court has concluded that SSA must

show that an SSI recipient’s condition has improved or

otherwise changed before it can determine that the

recipient’s disability has ceased. SSA disagrees with the

court’s conclusion that medical improvement or other

change is required in these cases.

26

Regardless of whether medical improvement or other

change is or is not shown, under 20 CFR 416.994(b)(1),

a determination of cessation is appropriate for an SS]

nongrandfatheree if the recipient is not disabled under

the Federal criteria; i.e., current medical or other evi-

dence shows that the recipient is able to engage in sub-

stantial gainful activity.

Since the claimant in Patti is an SSI non-

grandfatheree, SSA determined that her disability

ceased in April 1979 because it found, on the basis of

current medical evidence, that she was capable of

engaging in substantial gainful activity (i.e., she does

not meet the Federal definition of disability).

As noted above, under 20 CFR 416.994(b)(1), issued

in August 1980, SSA is not required to show medical

improvement or other change in order to terminate SSI

disability benefits. However, the final administrative

decision in Patti was issued prior to August 1980 so that

the court’s decision in Patti was based on an adminis-

trative decision involving regulations no longer in

effect. Moreover, the Court of Appeals in Patti did not

even address either the August 1980 regulations or the

earlier regulations governing when disability ceases. For

these reasons (and since there are other Court of

Appeals decisions which do not require a showing of

improvement to terminate disability benefits), we

believe that Patti does not provide a judicial interpreta-

tion of the disability regulations which should be

followed.

27

Consequentiy, SSA holds that, even if current medi-

cal or other evidence does not show “medical improve-

ment” or other change, the disability of a non-

grandfathered SSI recipient is subject to cessation if

such evidence shows that the recipient is able to engage

in substantial gainful activity (i.e., the recipient does

not meet the Federal definition of disability).

28

SSR 82-64

TITLES If AND XVI:

THE OBLIGATION OF THE SOCIAL SECURITY

ADMINISTRATION (SSA) TO INVESTIGATE

CONTINUANCE OF DISABILITY AND

EVALUATION GUIDES FOR DETERMINING

WHETHER DISABILITY CONTINUES

PURPOSE: To state the obligations of SSA to investigate

continuance of disability and provide the standards and

evaluation guides for determining whether disability

continues.

CITATIONS (AUTHORITY): Sections 216(i), 223(d), and

1614(a) of the Social Security Act, as amended; Regulations

No. 4, Subpart P, sections 404.1530, 404.1589, 404.1590,

404.1593, and 404.1598; and Regulations No. 16, Subpart I,

sections 416.930, 416,989, 416.990, 416.993, and 416.998.

INTRODUCTION: This Program Policy Statement (PPS)

states the reason for conducting continuing disability inves-

tigations and contains an explanation of several policies for

evaluating disability claims which are to be used as guides in

deciding whether an individual is currently disabled. These

policies include finding that disability or blindness has

stopped if new evidence shows the person is not disabled or

blind as defined in the law, determining when a person

becomes disabled by another impairment, evaluating

residual functional capacity and vocational background,

securing consultative examinations to resolve medical

issues, and evaluating some special considerations in contin-

uing disability cases. These policies are applicable to all

determinations.

29

POLICY STATEMENT:

The Obligation to Investigate Continuance of Disability

Disability ceases when the physical or mental impairment

together with the vocational profile (i.e., his or her age, edu-

cation, work experience, etc.), where appropriate, does not

prevent the individual from engaging in substantial gainful

activity (SGA) or, subject to the trial work period (TWP)

provisions, the individual demonstrates, by working, the

ability to engage in SGA (except in certain title II cases

based on statutory blindness).

SSA has an obligation to terminate benefits based on disa-

bility and freeze periods when an individual is not disabled.

The primary purpose of a continuing disability investigation

(CDI) is to obtain complete and current information about

the disabled individual’s physical and/or mental condition

and any work activity. The information is required so that

an evaluator may determine whether the individual is still

under a disability.

The 1980 disability arnendments (P.L. 96-265) provide

certain work incentive benefits to persons who complete 9

months of trial work and whose disability ceases because of

their activity. To qualify for the work incentive benefits, the

person must continue to have a disabling impairment. CDI’s

are conducted in these cases if there is reason to question

whether the impairment continues to be disabling.

Evaluation Guides for Determining

Whether Disability Continues

The standards and the evaluation guidelines that apply in

determining initial disability also apply in determining

whether disability continues. The question to be resolved is

whether the individual is currently disabled. The fact that

the individual is currently receiving benefits on the basis of

disability does not shift the burden of establishing that disa-

bility is continuing from the claimant to SSA. All evidence

30

secured in connection with the original determination is in

the folder for consideration. However, the determination or

decision as to whether or not disability continues is not

controlled by any prior determination or decision which

established that the individual was disabled.

In determining whether the individual is currently dis-

abled, current medical evidence will be obtained. It is not

essential that the evidence indicate a change in the individ-

ual’s impairment. Thus, it is possible current evidence will

warrant a cessation of disability even where such evidence is

essentially similar to the evidence of record when disability

was originally established or when a prior CDI was con-

ducted. This is true regardless of the administrative or judi-

cial level at which disability was originally established or

previously continued. Also, the fact that disability is ceased

as a result of a CDI because the individual is not currently

disabled would not ordinarily raise a question regarding the

correctness of any prior determination or decision which

found that the individual was disabled.

In determining whether the individual is currently dis-

abled, the original impairments and any new conditions will

be considered. If a new, severe impairment begins in or

before the month in which the last impairment ceases to be

disabling (i.e., the month of cessation) disability is continued

until the individual has the capacity to engage in SGA. The

new impairment need not be expected to last 12 months or

result in death, but it must be severe enough to prevent the

person from performing SGA. If the individual again

becomes disabled after the month in which the last impair-

ment ceases to be disabling, there is a break in the continuity

of disability. This break requires a cessation of the last disa-

bility and independent consideration of any new impair-

ment for a new disability, even though the new impairment

may begin before the month of termination of the last period

a ee

31

of disability. Severity and duration requirements must be

met to establish a new disability.

If an individual’s impairment might reasonably have been

expected to improve (i.e., a medical reexamination diary was

established), a subsequent return to work before the month

of the scheduled medical reexamination is considered as a

possible indication of medical recovery. Where an individ-

ual’s return to work coincided with an established medical

reexamination diary, SSA may first learn of the individual’s

return to work through the individual’s responses at the time

of the continuing disability interview. SSA must carefully

consider the development aiready undertaken, if any, to

Jetermine whether further medical documentation is needed

and, if so, the type and extent necessary for a sound determi-

nation of continuance or cessation.

When an individual has been so severely impaired that an

allowance was justified, some residual impairment may

remain even after maximum treatment. The continuing disa-

bility evaluation process requires a determination as to

whether any residual impairment precludes the individual

from engaging in SGA.

When the question of continuing disability cannot be

resolved on medical consideration alone, and it is necessary

to consider vocational factors, and the individual is unable

to return to past relevant work, evaluation of the claimant’s

ability to make an adjustment to other work will include

consideration of skills acquired through vocational rehabili-

tation or other training. A new evaluation of the individual’s

present capacity to engage in SGA will be required in these

cases.

SSA must evaluate the evidence with care before prepar-

ing a determination (either continuance or cessation) to

assure that the total evidence accurately portrays the indi-

vidual’s current condition. When the medical and vocational

evidence of record covering the original impairment and any

32

new impairment establishes that the individual’s condition

together with the vocational profile, where appropriate, pre-

cludes SGA, in the absence of demonstrated SGA, a continu-

ance is warranted. If, however, the evidence demonstrates

that the individual’s condition together with the vocational

profile, where appropriate, does not preclude SGA, a cessa-

tion is appropriate. If information furnished by the individ-

ual concerning the current medical condition is consistent

with the statements from the treating physician which are

supported by clinical and laboratory findings, and there is

no reason to believe that the individual’s condition has

changed, a determination as to the continuance or cessation

of disability will be made without further development. In

all cases in which the evidence of record is unavailable,

inadequate, equivocal or inconclusive, a consultative exami-

nation will be obtained to resolve medical issues.

In disabled widow/widower cases, a finding of medical

cessation is appropriate when the medical evidence shows

the impairment does not meet or equal the Listing. In title

XVI childhood cases, a finding of medical cessation is

appropriate when the medical evidence shows the impair-

ment does not meet or equal the childhood impairment list-

ings in part B of the Listing of Impairments or the Part A

listings where the childhood listings are not appropriate.

Special Evaluation Considerations

The following considerations assume particular impor-

tance in evaluating continuing disability cases:

1. Temporary Improvement

Improvement that is only temporary does not warrant a

finding that the individual does not have a disabling

impairment. The probable duration of improvement

and the prognosis should be carefully considered, partic-

ularly if the disease is characterized by periods of remis-

sion followed by relapse. All factors must be considered

33

before it is concluded that improvement is more than

temporary.

Examination Reflecting Result of Rest

Conditions which become comparatively symptom-free

after prolonged rest must be given careful consideration.

Only where it can reasonably be expected that the capac-

ity for SGA can be maintained under ordinary condi-

tions of life in work setting of the type for which the

individual is qualified may a finding of cessation be

made.

Medical Regimen

Generally, when an individual is hospitalized or a treat-

ing physician markedly restricts an individual’s activi-

ties, the signs, sy.aptoms, and laboratory findings will

establish that a severe impairment exists which contin-

ues to prevent the individual from engaging in any SGA.

Hospitalization, prescribed therapy which prevents

work, or the judgment by the treating source that the

individual should not work are not, however, in them-

selves, sufficient evidence to support a finding of

continuance.

In making an independent judgment as to an individ-

ual’s ability to engage in SGA, the evidence provided by

the individual’s treating physician must by considered.

Careful consideration must always be given to the possi-

bility that the treating physician has additional medical

information not reflected in the file which might support

a finding of continuance. If, however, full development

has been undertaken and the evidence does not support

a finding of disability under existing policies and regula-

tions, a finding of cessation is appropriate.

34

Recommended Treatment Not Followed

In those cases where thé previously recommended treat-

ment has not been followed, all pertinent aspects, partic-

ularly with respect to why the recommended treatment

has not been carried out, should be developed. Where

the evidence establishes the individual’s unjustified fail-

ure to follow prescribed treatment which could be

expected to restore the capacity for SGA, a finding of

cessation should be made (see SSR 82-59 (PPS-78: Fail-

ure to Follow Prescribed Treatiment).)

Nonrollback Conversion Cases

Where the individual was a supplemental security

income grandfatheree and is receiving SSI benefits based

on disability, disability will be ceased when the individ-

ual’s impairment as shown by current medical or other

evidence does not meet the criteria of the appropriate

State plan or the Federal criteria (SSR 82-10C).

EFFECTIVE DATE: The policies covered by this PPS

have been in effect for many years except for the policy

on work incentives. This policy became effective

December |, 1980, as specified by the Social Security

Disability Amendments of 1980.

CROSS-REFERENCE: Program Operations Manual

System Part 4, Chapter II.

35

Department of

HEALTH AND HUMAN SERVICES

Sociai Security Administration

Office of Hearings and Appeals

INTERIM CIRCULAR NO. 185

Office of Hearings and Appeals Handbook

Applicability of Circuit Court Decisions at Administrative

Law Judge and Appeals Council Levels

1. Background

SSA has been subject to increasing litigation in recent years

involving a myriad of program issues. One of the most

troubling questions which has been raised by the Congress,

the Courts, and by the public at large has been the issue of

nonacquiescence. Recently, nonacquiescence has been the

subject of various law suits challenging its legality. More-

over, the Congress, in enacting the 1984 Disability Amend-

ments, indicated in the Conference Report on that legisla-

tion that the Secretary should seek a resolution of the issue.

These developments have led to a reexamination of the

agency’s practices. As a result, the Secretary has decided to

modify the longstanaing policy and has established the pro-

cedures described below. These procedures require that par-

ticular circuit court decisions will be considered prior to a

final decision of the Secretary being rendered on the case.

Until further notification, the procedures contained in this

Interim Circular supersede the instructions contained in sec-

tion | - 16 “Court Decisions” of the OHA Handbook.

A series of Social Security Rulings (SSRs) will be issued

identifying circuit court decisions which are at variance with

established SSA policy (i.e. the law, Regulations and SSRs)

for each of the circuits and which wiil be considered at the

Administrative Law Judge (ALJ) and Appeals Council (AC)

36

levels. These SSRs will provide a full description of the case

and an explanation of how SSA will apply the decision

within the circuit. They will be issued not as new adjudica-

tive policy but rather as a part of the agency’s procedures for

reviewing claims from the standpoint of Court of Appeals

law and as a part of the agency’s ongoing litigation manage-

ment program.

The ALJ should begin to address circuit court case law as

soon as these SSRs are published. Thereafter, if the ALJ

concludes that a circuit court decision, as interpreted by the

agency in an SSR, dictates an allowance (partial or full) in a

particular case while SSA policy would dictate a denial, a

recommended decision favorable to the claimant will be

issued by the ALJ and reviewed automatically by the AC.

Wherever reference is made in this Circular to “applicable

circuit court decisions,” “applicable circuit court case law”

or “circuit court case law” it means such decisions or case

law as interpreted by the agency in an SSR.

Il. ALJ Procedures

A. General

Where a request for hearing is received involving an issue on

which an SSR has been published which indicates that cir-

Cult court case law in the circuit in which the claimant

resides is at variance with SSA policy, the procedures dis-

cussed below will be followed.

B. Notice of Hearing

The usual notice of hearing procedures will be followed.

However, the notice of hearing will be revised to indicate

that in certain situations the agency will also consider the

applicable circuit court case law on the issue(s) to be

decided. As appropriate, model language will be furnished in

supplements to this IC.

37

C. Conduct of Hearing

As usual, the ALJ is to inquire fully into the matters at issue.

The inquiry must consider the applicable requirements

established by circuit court case law, if appropriate, in addi-

tion to those under agency policy. The opening statement by

the ALJ should indicate that the agency will consider

whether the claimant will be found eligible, entitled, contin-

ued, etc. under applicable circuit court case law as well as

under SSA policy.

D. Decision

Preparation of the decision will differ depending on how the

ALJ is prepared to rule in the case:

Where applicable circuit court case law differs from SSA

policy on a particular issue but the ALJ is prepared to rule

fully favorably to the claimant under SSA policy, the deci-

sion need not consider or address the applicable case law.

An initial ALJ decision should be issued in the usual

manner.

if the ALJ is prepared to find unfavorably to the claimant

under both SSA policy and applicable circuit court case

law, the decisional rationale should contain evaluation of

the evidence addressing both established SSA policy and

the case law. Findings and decisional language addressing

both established policy and applicable circuit court case

law should also be made. An initial ALJ decision should

be issued in the usual manner.

Where the ALJ is prepared to rule unfavorably to the

claimant under SSA policy but favorably to the claimant

under the agency’s interpretation of circuit court case law

as set forth in the applicable SSR, a recommended

favorable decision will be issued. The recommended deci-

sion should contain separate sections on the case law

which will be included following the standardized text

statement of SSA regulations. A separate section should

38

be included in the rationale using applicable circuit court

case law. This should follow the section on evaluation of

the evidence under established SSA policy. Separate rec-

ommended findings and a recommended decisional para-

graph under the case law will be made and included fol-

lowing the recommended findings under SSA policy.

Those sections of the recommended favorable decision

dealing with applicable circuit court case law should be

specifically identified as such so that the AC can readily

identify them in reviewing the recommended decision. As

an example, after the section headed FINDINGS in

which SSA policy would be applied, a separate section

headed FINDINGS — CIRCUIT LAW APPLIED should

be included.

E. Processing of Decision

All decisions issued under this Circular will be processed in

the usual manner. The usual notice to the claimant which

accompanies a decision (recommended or initial) will be

issued.

Ill. AC Procedures

A. ALJ Decision Favorable to the Claimant

Under SSA Policy

If own motion review is being considered where the ALJ

issued a favorable decision to the claimant under SSA policy

which the AC considers to be contrary to such policy, the AC

must determine whether a favorable decision could have

been made under applicable circuit court case law. If so, own

motion review need not be taken. If own motion review is

not taken, the ALJ’s favorable decision will become the final

agency decision. If it is not clear whether the case law would

result in a different decision, the AC should remand the case

to an ALJ for a hearing, as necessary, and recommended

decision on the issue of the effect of applicable circuit court

case law on the claim.

39

B. ALJ Decision Unfavorable to the Claimant Under Both

Agency Policy and Circuit Court Case Law

A claimant may request review of an ALJ hearing decision

which was unfavorable to the claimant under both SSA pol-

icy and applicable circuit court case law. Where the AC

agrees that the unfavorable decision is supported by substan-

tial evidence, the request for review will be denied. If the AC

believes that the decision is not correct with respect to SSA

policy, the usual AC procedures will be followed. Where the

AC believes that the decision with respect to the agency

policy is correct, but may be incorrect with respect to circuit

court case law, the request for review will be granted.

The following actions may be taken:

¢ If the AC believes that a decision favorable to the claim-

ant should have been recommended under applicable cir-

cuit court case law and from a litigation standpoint the

case might be expected to result in a court decision

adverse to the Secretary if an unfavorable administrative

decision were issued and judicial review were sought by

the claimant, a decision favorable to the claimant will be

issued by the AC.

e Where the AC believes that further development must be

undertaken with respect to circuit court case law, the case

will be remanded to the ALJ for that purpose.

* Where the AC believes that the decision unfavorable to

the claimant is correct with respect to SSA’s policy but

contrary to circuit court case law but believes the issue

should be relitigated in that circuit on the basis of that

case, the AC will prepare a draft unfavorable decision

which will be circulated and handled as described in sec-

tion C below.

40

C. ALJ Decision Unfavorable to the Claimant Under

SSA’s Policy — Favorable to the Claimant

Under Circuit Court Case Law

The AC will consider the recommended decision under its

usual criteria. After its review, if the AC agrees with the

ALJ’s findings under circuit law as interpreted by the

agency, the Council will ordinarily adopt the ALJ’s recom-

mended decision. If the AC is of the opinion that the ALJ’s

decision incorrectly interprets circuit law, corrective action

will be taken by the AC (i1.e., the AC will either issue a

revised decision unfavorable to the claimant or remand for

further development). A copy of the AC decision will be

forwarded to an SSA Special Policy Review Committee for

use in evaluating this procedure.

If the AC agrees with the ALJ’s conclusion in a decision

which is unfavorable to the claimant under SSA policy but

favorable to the claimant under circuit court law but

believes the issue involved should be relitigated in that cir-

cuit in the context of that case, the AC will prepare a draft

decision unfavorable to the claimant which will be for-

warded to the SSA Special Policy Review Committee for its

review. If the Committee decides that the case is an appro-

priate vehicle for relitigating the issue, the Office of the

General Counsel shall consult with the Department of Jus-

tice as to whether or not it believes relitigation of the issue is

appropriate. If relitigation is determined to be appropriate,

the AC’s unfavorable decision will be issued. If relitigation is

not appropriate in the particular case, the ALJ’s recom-

mended decision favorable to the claimant will be adopted

by the AC because it will have been decided that, from a

litigation standpoint, the case might be expected to result in

a court decision adverse to the Secretary if an unfavorable

administrative decision were issued and judicial review were

sought by the claimant.

4]

AMERICAN BAR ASSOCIATION

Report No. 110

BE IT RESOLVED, That the American Bar Association

urges the Social Security Administration to observe, in all

stages of administrative proceedings, the applicable deci-

sions of the United States Court of Appeals for the circuit in

which the matter has arisen, subject to the agency seeking

review in the United States Supreme Court.

BE IT FURTHER RESOLVED, That the American

Bar Association urges that, in the event the Social Security

Administration continues its nonacquiescence policy, in its

former or present form, Congress enact legislation to man-

date the agency to observe fully within each circuit the deci-

sions of the Court of Appeals within that circuit, subject to

the agency seeking review in the United States Supreme

Court.

Passed: July 10, 1985.

42

Supreme Court of the United States

No. A-977

PATRICK H. HYATT, ET AL.,

Applicants,

¥..

MARGARET M. HECKLER,

SECRETARY OF HEALTH HUMAN SERVICES, ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel

for the applicants,

IT IS ORDERED that the time for filing a petition for a

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including September 20,

1985.

/s/ WARREN E. BURGER

Chief Justice of the United States

Dated this 3rd

day of July, 1985

43

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1381

Patrick H. Hyatt: Herman OQ.

Caudie and Mary P. Lov-

ingood, on behalf of them-

selves and all others similarly

situated, North Carolina

Department of Human

Resources, Disability Deter-

mination Services,

Appellees,

VS.

Margaret M. Heckler, or her

successor in office, Secretary

of the United States Depart-

ment of Health and Human

Services

Appellant.

Appeal from the United States District Court for the West- —

ern District of North Carolina, at Charlotte. James B.

McMillan, District Judge. (C/A 83-655)

Argued: June 7, 1984 Decided: March 20, 1985

No. 84-1695

Patrick H. Hyatt; Herman O.

Caudle and Mary P. Lov-

ingood, on behalf of them-

selves and all others similarly

situated, North Carolina

Department of Human

Resources, Disability Deter-

mination Services,

Appellees,

«-VY-

Margaret M. Heckler, or her

successor in office, Secretary

of the United States Depart-

ment of Health and Human

Services,

Appellant.

Appeal from the United States District Court for the

Western District of North Carolina, at Charlotte. James B.

McMillan, District Judge. (C/A 83-655).

Submitted: August 9, 1984 Decided: March 20, 1985

Before RUSSELL and HALL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

Howard S. Scher, Attorney, Appellate Staff, Civil Divi-

sion, United States Department of Justice (Richard K. Wil-

lard, Acting Assistant Attorney General; Charles R. Brewer,

45

United States Attorney; William Kanter and Deborah R.

Kant, Attorneys, Appellate Staff, Civil Division, United

States Department of Justice, on brief) for appellants;

John R. Wester (Dan T. Coenen, Robert M. Bryan, Her-

man Spence, III, Fleming, Robinson, Bradshaw & Hinson,

P.A.; Jane Harper, Legal Services of Southern Piedmont.

Inc., on brief) for appellees in 84-1381; (John R. Wester,

Dan T. Coenen, Robert M. Bryan, Fleming, Robinson, Brad-

shaw & Hinson, P.A.; Charles McBrayer Sasser, Legal Serv-

ices of Southern Piedmont, Inc., on brief) for appellees in

84-1695; Jeffrey L. Bishop (Casey, Bishop, Alexander &

Murphy, P.A., on brief) for intervenor.

46

BUTZNER, Senior Circuit Judge:

The Secretary of Health and Human Services appeals

from the district court’s order enjoining the Secretary to

cease her policy of not following the decisional law of this

circuit regarding the initiation and termination of disability

benefits. The Secretary also assigns error to the district

court’s certification of a class whose claims are to be

reopened and readjudicated in accordance with the stan-

dards laid down by this circuit.! In a related appeal, the

Secretary questions the award of attorneys’ fees.

After the parties argued this appeal, Congress enacted the

Social Security Disability Benefits Reform Act of 1984,

which became effective October 9, 1984.2 The parties’ sup-

plemental briefs disclose that many of the issues raised on

appeal have been affected significantly by the new legisla-

tion. Furthermore, Heckler v. Day, 104 S. Ct. 2249 (1984),

and Heckler v. Ringer, 104 §. Ct. 2013 (1984), which were

decided after entry of the district court’s order, provide con-

trolling precedent for aspects of this legislation. The 1984

Act and the recent Supreme Court opinions require us to

vacate the district court’s judgment and remand the case.

'The district court’s opinion is reported as Hyatt v. Heckler, 579 F.

Supp. 985 (W.D.N.C. 1984). The district court subsequently revised the

published draft of the certification order. The revised subclasses are: ini-

tial claimants who allege disability from diabetes or hypertension, A(1)(a),

or pain, A(1)(b); claimants whose benefits were terminated, A(2) and B.

Pub. L. No. 98-460, 98 Stat. 1794 (1984).

47

I.

Terminated Berefits

The district court directed the Secretary to adjudicate the

termination of benefits in accordance with circuit prece-

dent.’ It certified subclasses of North Carolina residents who

were entitled to this relief.

We conclude that the 1984 Act cortrols the claims of all

members of the subclasses who assert that their benefits

have been terminated unlawfully. Section 2 of the 1984 Act

deals with the issue of medical improvement and prescribes

the standard of review for the termination of disability bene-

fits. These standards are broad enough to encompass all

impairments or combination of impairments, whether physi-

cal or mental, that provided the basis for the initial award of

benefits.

Section 2(d) of the Act deals with class actions relating to

medical improvement pending, as this one was, on Sepiem-

ber 19, 1984, for judicial review of the termination of bene-

fits. This section provides that the claims of named class

members are to be remanded to the Secretary for adjudica-

tion in accordance with the provisions of the Act. Also, the

claims of unnamed class members are to be remanded to the

Secretary, who is directed to notify them of their mght to

request administrative review.

The government protests that some subclass members |

whose benefits were terminated are not entitled to a remand

because they have not satisfied the requirements of section

2U5(g) of the Social Security Act, 42 U.S.C. §405(g). This

attack on the district court’s certification order, however,

does not survive the enactment of the 1984 legislation. By

directing remand of cases pending September 19, 1984, the

3See Dotson v. Schweiker, 719 F.2d 80 (4th Cir. 1983); Myers v.

Califano, 611 F.2d 980 (4th Cir. 1980); Martin v. Secretary, 492 F.2d 905

(4th Cir. 1974).

48

Act created an exception to the normal exhaustion require-

ments for actions, such as this, relating to medical improve-

ment. The import of this provision was explained by Senator

Dole:

The effective date provision does, however, permit all

class members of certified class actions to seek review

of their cases under the medical improvement standard

established by this act, even where they may not have

pursued their appeal rights in accordance with section

205 and the Secretary’s regulations.

130 Cong. Rec. $11454 (daily ed. Sept. 19, 1984).

Members of one of the subclasses, whose benefits are sub-

ject to termination, insist that they are entitled to have

claims involving pain evaluated by the Secretary on remand

according to this crcuit’s case law.* This contention is fore-

closed by section 3(a) of the 1984 Act which prescribes an

interim statutory standard for the evaluation of pain in all

determinations made prior to January |, 1987. Because their

cases were pending when the 1984 legislation was enacted,

the new statutory standard is applicable to their claims. See

Bradley v. Richmond School Board, 416 U.S. 696, 711-16

(1974); United States v. Schooner Peggy, 5 U.S. (1 Cranch)

102, 110 (1801). Contrary to the claimant’s contention, they

have no vested constitutional right to have their claims eval-

uated by standards that were in effect prior to the 1984 Act.

See Richardson v. Belcher, 404 U.S. 78, 80-81 (1971).

Another subclass included claimants whose benefits were

terminated because the Secretary did not follow this circuit's

precedent for evaluating hypertension or diabetes mellitus.°

The district court, concluding that this policy of nonacquies-

cence was unlawful, required the Secretary to follow circuit

precedent with regard to these impairments.

4See Myers v. Califano, 611 F.2d 980 (4th Cir. 1980).

5See Martin v. Secretary, 492 F.2d 905 (4th Cir. 1974).

a

49

Congress is aware of the Secretary's policy of nonacquies-

cence. As proposed by the House, the 1984 Act would have

required the Secretary to acquiesce or petition for certiorari.

The Senate bill would have required the Secretary to report

her decisions of nonacquiescence to the Congress and to

print her explanation in the Federal Register.°®

The conferees deleted both the House and the Senate

provisions, but they did not intend that deletion should be

interpreted as approval of nonacquiescence. On the con-

trary, they noted that questions had been raised concerning

the constitutionality of nonacquicscence, as well as the

application of the policy, even if constitutional. “By refusing

to apply circuit court interpretations and by not promptly

seeking review by the Supreme Court, the Secretary forces

beneficiaries to re-litigate the same issue over and over again

in the circuit, at substantial expense to both beneficiaries

and the federal government. This is clearly an undesirable

consequence.” Conference Report at 38, 130 Cong. Rec. at

H9831. The conferees reaffirmed that Congress intended the

Secretary to resolve policy conflicts promptly to assure uni-

form administration of the program. This objective, they

pointed out, may be achieved by diligently pursuing appeals

or by seeking a legislative remedy.’ The conferees urged

“that a policy of non-acquiescence be followed only in situa-

tions where the Administration has initiated or has the rea-

sonable expectation and intention of initiating the steps nec-

essary to receive a review of the issue in the Supreme

Court.” Conference Report at 37, 130 Cong. Rec. at H9831.

*See H.R. Rep. No. 1039, 98th Cong., 2d Sess. 36-38, reprinted in

130 Cong. Rec. H9831 (daily ed. Sept. 19, 1984) (hereinafter cited as

Conference Report).

"Also, section 10 of the Act directs the Secretary to establish pursu-

ant to the Administrative Procedure Act un.form standards for determin-

ing disability.

50

When the Conference Report is read in conjunction with

Heckler v. Day, 104 S. Ct. 2249 (1984), it becomes apparent

that the injunction must be vacated. In Day, the Court

vacated an injunction entered in a class action requiring the

Secretary to adjudicate all claims and pay benefits within

specified times. The Court held that the injunction was “an

unwarranted judicial intrusion into this pervasively regu-

lated area....” 104 S. Ct. at 2258. Its opinion rested to a

great extent on Congress’s rejection of legislation imposing

mandatory deadlines on disability reviews.

The controversy over nonacquiescence presents an analo-

gous situation. The conferees deleted a provision of the

House bill that would have required acquiescence in circuit

precedent in the absence of appeal. See Conference Report

at 37, 130 Cong. Rec. at H9831. Following the reasoning of

Day, we cannot approve an injunction imposing the same

restraints that Congress rejected.

Vacating the district court’s injunction does not leave

claimants without a remedy. In the unlikely event that the

Secretary spurns the Conference Report, the district courts

reviewing the Secretary’s decision are bound to apply circuit

precedent construing the Social Security Act. But this review

would be long and wasteful to the claimant and the govern-

ment. Both the district court and the conferees spoke force-

fully to avoid the harm and extravagance of the policy of

routine nonacquiescence. The Secretary should not deem

vacation of the injunction as approval of the policy.

We decline the claimants’ request that we instruct the

district court to retain jurisdiction for review of the Secre-

tary’s orders on remand terminating disability. Section

2(d)(4) provides that the Secretary’s decision of a remanded

case shall be regarded as a new decision subject to review

only in conformity with section 205 of the Social Security

Act. Section 2(d)(5) prohibits certification of a class relating

to medical improvement after September 19, 1984. These

eee EE Ee

51

provisions persuade us that Congress intended that judicial

review of remanded cases should not be the subject of a class

action. Individual review provides an adequate remedy.

We direct the district court to remand to the Secretary the

claims of the named plaintiffs and the unnamed class mem-

bers designated in subclasses A(2) and B, except those whose

claims have been mooted by award of benefits pendente lite.

After remand to the Secretary, the district court should relin-

quish jurisdiction over the claims of the plaintiffs end

unnamed class members.

Il.

Initial Benefits

We find merit in the government’s challenge to the district

court’s jurisdiction over some members of the subclasses

composed of claimants for initial benefits. The 1984 Act did

not provide initial claimants the same right of reconsidera-

tion that it granted claimants whose benefits were termi-

nated. Initial claimants, therefore, must be limited to those

who meet the requirements of section 205(g) of the Social

Security Act, 42 U.S.C. §405(g). Califano v. Yamasaki, 442

U.S. 682, 698-701 (1970).

Ordinarily section 405(g) requires exhaustion of adminis-

trative remedies before a claimant can seek judicial review.

The Court has recognized an exception to this requirement

for a claimant who has presented to the Secretary a claim |

that raises a legal issue wholly collateral to a claim for bene-

fits and who has made a colorable showing that his injury

cannot be remedied if exhaustion is required. Mathews v.

Eldridge, 424 U.S. 319, 326-32 (1976). The district court

applied this exception to the general rule and held that

exhaustion of remedies was not required.

In Heckler v. Ringer, 104 S. Ct. 2013, 2023 (1984), the

Court held that a claim that the Secretary was applying an

improper standard for entitlement was not wholly collateral

52

to a claim for benefits. Consequently, exhaustion was

required. Here, too, the claims that the Secretary has applied

improper standards with respect to pain, diabetes, and

hypertension are inextricably intertwined with claims for

benefits within the meaning of the exhaustion requirement

of section 405(g) as interpreted by the Supreme Court in

Ringer. Consequently, exhaustion of administrative reme-

dies is necessary for members of the subclasses composed of

claimants of initial benefits.

Section 405(g) also requires a claimant to file an action for

judicial review within 60 days after the Secretary’s final

decision. In this circuit, the 60-day requirement is consid-

ered to be jurisdictional, and unnamed class members are

not exempt from compliance. Hunt v. Schweiker, 685 F.2d

121 (4th Cir. 1982). We cannot accept the suggestion that we

should overrule Hunt, for, as a panel of the court, we lack

authority to do this.

On remand, we direct the district court to dismiss the

initial claims for disability of class members who have not

exhausted their administrative remedies or who have not

sought timely judicial review of the Secretary’s final deci-

sion. The district court should remand to the Secretary all

initial claimants in subclasses A(1)(a) and (b) who have satis-

fied the requirements of section 405(g). Those who raise the

issue of pain should be reconsidered by the Secretary in the

light of the interim statutory pain standard of section 3(a) of

the 1984 Act for the reasons we stated in Part I.

The Act does not address the diabetes and hypertension

standards. Nevertheless, we will not assume that the Secre-

tary will disregard the views expressed in the Conference

Report about the Secretary’s policy of nonacquiescence in

circuit law. The Secretary should have an opportunity to

reconsider these claims in light of circuit precedent and the

legislative history of the 1984 Act. The claimants are entitled

53 \

to a decision on this issue, so, if necessary, they can seek

review on an unequivocal administrative record.

After remand, the district court should relinquish jurisdic-

tion over the members of these subclasses for reasons men-

tioned in Part I. Section 405(g) provides an adequate proce-

dure for judicial review of individual claims in each of the

three districts of North Carolina where the claimants reside.

Il.

Identification of Unnamed Class Members

The district court’s order provided for identification of.

and notice to, unnamed class members. Section 2(d) of the

1984 Act supersedes the district court’s directions to the

Secretary with respect to class members whose benefits were

terminated.

The district court should amend its order and notice with

respect to claimants for initial benefits by providing that the

Secretary should identify and notify those members of sub-

classes A(1)(a) and (b) who have met the requirements of

§405(g).

IV.

Mandamus

The appellees contend that the court had mandamus juris-

diction over the claims of all plaintiffs under 28 U.S.C.

§1361. They argue that this independent ground obviates the

need to satisfy the jurisdictional prerequisites of §405. In

Heckler v. Ringer, 104 S. Ct. at 2022, the Court noted that

mandamus would issue only to a plaintiff who had

exhausted all other avenues of relief, and only if the defen-

dant owed the plaintiff a clear nondiscretionary duty. The

Court concluded that §405(g) provided an adequate remedy

for challenges to the Secretary’s denial of claims including

54

objections based on the Secretary’s policies. For these rea-

sons, we hold that mandamus is inappropriate. See also

Starnes v. Schweiker, 748 F.2d 217 (4th Cir. 1984).

V.

Intervention

The district court allowed the North Carolina Department

of Human Resources, Disability Determination Services to

intervene pursuant to Rule of Civil Procedure 24(b). The

department’s complaint challenges the Secretary’s policy of

nonacquiescence in Fourth Circuit precedent in the same

areas as the class action. It seeks declaratory and injunctive

relief prohibiting the Secretary from following this policy in

North Carolina. The department claims standing to sue

because of its role in administering the disability program

and as parens patriae. The Secretary contends that the

department lacks standing.

Ordinarily, rule 24(b) authorizes a district court to permit

an agency to intervene in an action that involves a statute

that it administers. But in this instance, which involves the

standards the Secretary uses for determining disability bene-

fits, sections 405(g) and 405(h) limit actions against the Sec-

retary to an individua! who seeks review of a final decision

made after a hearing to which he was a party. In Lowther v.

Montgomery County, 561 F.2d 1120 (4th Cir. 1977), we held

that neither a county nor an unincorporated association was

an individual entitled to sue under §405(g). The depart-

ment’s function of determining disability does not distin-

guish its situation from the plaintiffs’ in Lowther. A claim of

standing analogous to the department’s was rejected in

D'Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983). There

administrative law judges who sought to challenge the Secre-

tary’s instruction pertaining to the repayment of Social Secu-

rity benefits were denied standing to sue. The benefi-

ciaries — not the adjudicators — are the proper parties to

55

seek review under section 405(g). Lowther and D'Amico fore-

close the department’s standing in its own right.

The department also lacks standing to sue the federal gov-

ernment in its capacity as parens patriae. With respect to a

citizen’s rights in relation to the federal government, the

United States — not the state — occupies the status of

parens patriae. Massachusetts v. Mellon, 262 U.S. 447, 485-

86 (1923).

On remand, the district court should dismiss the depart-

ment’s complaint in intervention.

Vi.

Attorneys’ Fees

The Secretary has appealed the district court’s order

awarding attorneys’ fees (No. 80-1695). We vacate the award

and remand this issue to the district court for reconsidera-

tion in light of this opinion.

VII.

Summary

On remand, we direct the district court to take the follow-

ing action:

1. Vacate its order of injunctive and declaratory relief,

except as provided in paragraph 5 below.

2. Remand to the Secretary for reconsideration pursuant

to the Social Security Disability Benefits Reform Act of

1984 the claims of named parties and unnamed members of

subclasses A(2) and B whose benefits were terminated,

except those who have been granted awards pendente lite.

3. Dismiss the claims of initial claimants in subclasses

A(1)(a) and (b) who have not met the requirements of sec-

tion §405(g).

56

4. Direct the Secretary to identify and notify claimants for

initial benefits in subclasses A(1)(a) and (b), who meet the

requirements of §405(g), in accordance with procedures and

a notice prescribed by the district court.

5. Remand to the Secretary for reconsideration pursuant

to the interim pain standard of section 3(a) of the 1984 Act

the claims of initial claimants in subclass A(1)(b) who have

met the requirements of section 405(g).

6. Remand to the Secretary for reconsideration of her

policy of nonacquiescence in light of the 1984 Act’s legisla-

tive history and circuit precedent the claims of initial claim-

ants in subclass A(i)(a) who have met the requirements of

§$405(g).

7. After remand, relinquish jurisdiction of all remanded

claims and dismiss the claimants without prejudice to their

right to seek timely review of the final decisions of the Secre-

tary on remand in their respective judicial district pursuant

to §405(g).

8. Dismiss the complaint in intervention of the North

Carolina Department of Human Resources, Disability

Determination Services.

9. Reconsider the award of attorneys’ fees in light of this

opinion.

The judgments in 84-1381 and 84-1695 are vacated, and

the cases are remanded. Each party shall bear its own costs.

57

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1381

Patrick H. Hyatt, et al,

Appellees,

versus

Margaret M. Heckler, etc.,

Appellant.

}

Appeal from the United States District Court for the West-

ern District of North Carolina, at Charlotte. James B.

McMillan, District Judge.

The appellant’s petition for rehearing and the appellee’s

petition for rehearing with suggestion for rehearing in banc

were submitted to this Court. As no member of the Court

requested a poll on the suggestion for rehearing in banc, and

As the panel considered the petitions for rehearing and is

of the opinion that they should be denied,

IT IS ORDERED that the petition for rehearing in banc is

denied.

Entered at the direction of Judge Butzner with the concur-

rence of Judge Russell and Judge Hall.

For the Court,

/s/ JOHN M. GREACEN

CLERK

Filed April 23, 1985.

IN THE DISTRICT COURT OF

THE UNITED STATES

FGR THE WESTERN DISTRICT OF

NORTH CAROLINA

Charlotte Division

C-C-83-655-M

PATRICK H. HYATT;

HERMAN QO. CAUDLE and

MARY P. LOVINGOOD, on

behalf of themselves and

all others similarly

Situated,

« Plaintiffs,

and

NORTH CAROLINA

DEPARTMENT OF HUMAN

RESOURCES, DISABILITY

DETERMINATION SERVICES,

Plaintiff-Intervenor,

-vS-

MARGARET M. HECKLER,

or her successors in office,

Secretary of the United

States Department of

Health and Human

Services,

Defendant.

FINDINGS OF FACT

CONCLUSIONS OF LAW

AND

DECISION THAT THE

UNITED STATES

SECRETARY OF

HEALTH AND HUMAN

SERVICES SHOULD

(1) STOP DENYING CLAIMS FOR SOCIAL SECURITY DIS-

ABILITY BENEFITS BASED CN HYPERTENSION OR DIABE-

TES MELLITUS UPON THE THEORY THAT WITHOUT

END-ORGAN DAMAGE (TO HEART, EYES, KIDNEYS OR

BRAIN) THE CLAIMANT DOES NOT HAVE A “SEVERE

IMPAIRMENT”

(2) STOP DENYING CLAIMS FOR SOCIAL SECURITY DISABIL-

ITY BENEFITS BASED ON PAIN, UPON THE THEORY THAT

SUBJECTIVE MANIFESTATIONS OF PAIN CANNOT BE

SS |

(3

~~

9

5

CONSIDERED DISABLING UNLESS THEY ARE SUP-

PORTED BY OBJECTIVE CLINICAL FINDINGS

STOP TERMINATING SOCIAL SECURITY BENEFITS WITH-

OUT SUBSTANTIAL EVIDENCE THAT THE RECIPIENT'S

DISABILITY HAS CEASED

— ALL OF WHICH THE SECRETARY PERSISTS IN DOING,

IN CONSCIOUS AND WILFUL DISREGARD OF PERTINENT

AND CONTROLLING DECISIONS OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH JUDICIAL CiR-

CUIT OF THE UNITED STATES.

FINDINGS GF FAC cviicntngeemnnenamnaane

I. THE PARTIES AND THE ISSUES ...........

Il. CASE HISTORIES OF THE

INDIVIDUAL PLAINTIFFS AND

OTHERS

(a) FOUR FE FRO evcirtseeectcinertconsinn

(Ey) Herein GP. 6D vcetniccresateseensecncencsiadss

Cc) Dilan FE vc csckcccesncccncctanepincwverss

(d) Other Representative

Chk: WINE ooo cticciec cocecerenaraes

Il. HOW SOCIAL SECURITY CLAIMS

ARE HANDLED; REVIEW AND

TERMINATION, 1982-84 STYLE............

OCIIIIG, ss Siccocvdeneneamanenes

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eI iisnccdccetdacicceoeen

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The Secretary’s Position ...........-.cccccsssseccreee

CONC LU CP EAA innikitccishicciotnmnnen

i. DEFENDANT’S MOTION TO DISMISS

FOR LACK OF JURISDICTION .............

Il. THE SUBSTANTIVE LEGAL MERITS

CP TRE CAiiccticxiscccconinbnetaewe

IY occ ciecaricctaxersiavepavecmcnrsaventenvoieniuaatimeanan

Page

l

]

61

FINDINGS OF FACT

I.

The Parties and the Issues

|. This is a class action against the Secretary of the United

States Department of Health and Human Services, challeng-

ing the policy of the Social Security Administration (SSA)

denying Social Security benefits and terminating Social

Security benefits, in the cases described below, in open vio-

lation of applicable decisions of the Fourth Circuit Court of

Appeals.

2. The individual plaintiffs and class members are appli-

cants for or former recipients of disability benefits under

Titles II and XVI of the Social Security Act, 42 U.S.C. §§401

et seq; 1381 et seq. The North Carolina Department of

Human Resources, Disability Determination Services

(DDS), has been authorized to intervene as a party plaintiff.

See, Nuesse v. Camp, 385 F.2d 694 (D. C. Cir. 1967); Fed. R.

Civ. P. 24(a); (b).

3. Plaintiffs contend that the Secretary, acting pursuant to

an express policy of refusal to comply with federal circuit

court decisions with which she disagrees, has promulgated

standards of eligibility for disability benefits which directly

contradict controlling decisions of the Fourth Circuit Court

of Appeals.

4. First, plaintiffs contend that the Secretary’s regulation’

SSR 82-55 disregards the Fourth Circuit’s holding in Martin

v. Secretary of Department of Health, Education and Welfare,

492 F.2d 905 (4th Cir. 1974), by requiring that medical

impairments such as diabetes mellitus and hypertension

shall not be considered disabling unless they are accompa-

nied by end-organ damage (i.e., damage to heart, eyes, kid-

neys or brain).

5. Second, plaintiffs contend that the Secretary’s regula-

tion SSR 82-58 disregards the Fourth Circuit’s holding in

62

Myers v. Califano, 611 F.2d 980 (4th Cir. 1980), by provid-

ing that subjective manifestations of pain shall under no

circumstances be considered disabling unless they are sub-

stantiated by objective clinical findings.

6. Finally, plaintiffs contend that the Secretary’s regula-

tions SSR 82-49c and SSR 81-6 disregard the holding of

Dotson v. Schweiker, 719 F.2d 80 (4th Cir. 1983), by provid-

ing that a person currently receiving benefits is not entitled

to a presumption of continuing disability, and may be found

to be no longer disabled, despite the absence of evidence that

the recipient’s condition has changed for the better since the

date when he or she was last determined to be disabled.

7. Plaintiffs have argued that SSA’s policy of “non-

acquiescence” is contrary to the Social Security Act: to the

separation of powers doctrine; to principles of res judicata,

stare decisis, and collateral estoppel; to the due process and

equal protection guarantees of the Fifth Amendment to the

United States Constitution; and to the Administrative Pro-

cedure Act. They seek both declaratory and injunctive relief

requiring the Secretary to adhere to the decisions of the

Fourth Circuit Court of Appeals in determining eligibility

for Social Security disability payments.

8. Pursuant to specific orders of court dated December 16,

1983, and January 13, 1984, all issues were consolidated

under Rule 65(a)(2), and the case was heard on January 18,

1984, on (1) defendant’s motion to dismiss; (2) plaintiffs’

motion for injunctive relief; (3) plaintiffs’ motion for class

certification; and (4) the merits of the case. The court

received all competent evidence offered on all issues by all

parties.

ee

63

Il.

Case Histories of the Individual Plaintiffs

(a) Patrick H. Hyatt

9. Plaintiff Patrick Hyatt is 47 years old, has a tenth grade

education, and last worked in 1973 as a long haul truck

driver. He lives in Mecklenburg County, North Carolina,

with his wife and two daughters. Between 1969 and 1974

plaintiff underwent a scries of back operations, including

several lumbar laminectomies with removal of ruptured

intervertebral discs. Since the time of his original surgery,

plaintiff has suffered from continuous, disabling back and

leg pain.

10. On January 7, 1974, plaintiff was found by the Social

Security Administration to be disabled due to degenerative

disc disease, post-lumbrosacral fusion problems, and depres-

sive reaction. He received Social Security disability benefits

from March, 1973, until September, 1981.

11. On September 10, 1981, DDS notified Hyatt that his

disability had ceased during July, 1981; his benefits were

terminated. DDS did not inform Hyatt that his condition

had improved since he was last determined by SSA to be

totally disabled. On October 5, 1981, plaintiff requested

reconsideration of this decision. On January 8, 1982, after

reconsideration, DDS upheld its original decision, informing

Hyatt that although he suffered irom “discomfort,” he did

not suffer from objective physical impairments that would

prevent him from doing work activity.

12. On December 10, 1982, Mr. Hyatt received a hearing

before a Social Security Administration administrative law

judge (ALJ). At the hearing, plaintiff testified that his severe

pain precluded him from engaging in even the slightest exer-

tional activities’ this evidence was substantiated by wit-

nesses. In connection with the hearing, the ALJ received as

evidence numerous reports rendered by plaintiff's regular

treating physician, Dr. Jerry M. Petty, a neurosurgeon.

64

Among his other findings, Dr. Petty stated that “Mr. Hyatt is

totally and permanently disabled for any type work and has

been for quite some time.” Tr. 160. Dr. Petty’s reports fol-

lowing Mr. Hyatt’s frequent visits throughout the past ten

years document Hyatt’s continuing and severe pain.

13. The ALJ also considered a report made by Dr. Ronald

C. Demas, to whom plaintiff was referred for a consultive

examination by DDS. Dr. Demas diagnosed plaintiff as suf-

fering from probable chronic low back strain, post

laminectomy changes. Tr. 148. Dr. Demas does not appear

to have considered the disabling effects of plaintiff's subjec-

tively experienced pain.

14. On January 7, 1983, the ALJ rendered his decision.

He determined that plaintiff's back condition constituted a

severe impairment, but stated that plaintiff retained the

residual functional capacity to preform sedentary work. The

ALJ did not accord plaintiff a presumption of continuing

disability, and he did not make any finding whether plain-

tiffs condition had improved since he was last found

disabled.

15. In his decision, the AL! took notice of plaintiff's

severe pain, but found that it was not disabling. The ALJ

stated that Dr. Petty was “overly impressed with the claim-

ant’s complaints of pain,” and stated that the job of SSA was

to determine whether a claimant is disabled “on the basis of

medical evidence and other findings.” Tr. 23-24. The ALJ

then proceeded to find that Hyatt’s pain is not disabling

when he limits his physical exertion. There is no evidence in

the file to support this finding.

16. On June 2, 1983, the SSA Appeals Council denied

review of ihe ALJ decision. Following that action, plaintiff

instituted this suit to review the Secretary’s fina! decision

pursuant to 42 U.S.C. §405(g).

65

17. At the trial, Mr. Hyatt testified that his disability

benefits amounted to $425 per month before they were ter-

minated. Since the payments were terminated, plaintiff has

received no income for himself. He receives $202 per month

in AFDC payments to provide support for his two children,

and the family also receives food stamps. The family’s

monthly rent is $175.

18. Mr. Hyatt and his family have experienced severe

financial distress since his benefits were terminated. Mr.

Hyatt was forced to sell his home because he fell behind on

the mortgage payments, and a number of his personal pos-

sessions, including an automobile and two chairs, have been

repossessed by the finance company. Mr. Hyatt testified that

he has fallen behind on a number of bills, including all the

utility bills; the family has been unable to buy clothing, or to

afford a diet that includes meat.

(b) Herman O. Caudle

19. Plaintiff Herman O. Caudle was 56 years old at the

time this suit was filed. He had a 10th grade education, and

nad worked in the past as a salesclerk, night watchman, and

maintenance man. Until the time of his death on October

24, 1983, Mr. Caudle lived with his wife in Winston-Salem,

North Carolina.

20. SSA originally found that Mr. Caudle was entitled to a

period of Social Security disability benefits beginning in

May, 1981, due to hypertension, control less than satisfac-

tory, with Grade II retinopathy, exogenous obesity, passive-

dependent personality, and depressive reaction with sleep

disorder. The evidence before the court established also that

Mr. Caudle weighed about 270 pounds, and suffered for a

period of years from hypertension which his doctors were

unable to control through medication. Exh. 25, p. 4; Exh. 11,

ae

66

21. In March, 1983, DDS informed Mr. Caudle that his

disability had ended. DDS affirmed its initial determinaticn

upon reconsideration. Plaintiff Caudle then requested a

hearing before an ALJ. A hearing was held on August 17,

1983, and on August 24, 1983, the ALJ issued his decision

that Mr. Caudle was no longer disabled because he did not

suffer from a “severe impairment.”

22. In reaching his decision, the ALJ did not accord Cau-

dle a presumption of continuing disability, and did not make

any finding that Caudle’s condition had improved since he

was last found by SSA to be disabled.

23. The ALJ found from the evidence before him that

Caudle suffered from hypertension, under less than satisfac-

tory control with Grade II-III retinopathy, but he found that

Caudle suffered from no end-organ damage (/.e., damage to

eyes, heart, kidneys, or brain).

24. The ALJ further found that plaintiff's subjective com-

plaints were not substantiated by objective clinical findings.

25. On October 21, 1983, Mr. Caudle filed a timely

request with the Appeals Council for review of the ALJ’s

decision; three days later he was dead, apparently from the

hypertension and other ailments which had disabled him for

several years.

26. Counsel for plaintiffs introduced the affidavit of plain-

tiff Caudle’s regular treating physician, Dr. Mary Fennell

Lyles, assistant professor of internal medicine at Bowman

Gray School of Medicine. Dr. Lyles, who treated Caudle

from 1979 until his death in 1983, discussed the severity of

Caudle’s hypertension, which she stated showed no medical

improvement, and in fact showed a progressive deteriora-

tion, despite a course of aggressive therapy. She also stated:

aera

67

“Anxiety, depression, and financial stress all further

complicated management of Mr. Caudle’s blood pres-

sure. I attribute a large portion of this emotional dis-

tress to worry over his benefit status, especially since

May of 1983.” Exh. 11, p. 1.

27. Dr. Lyles further stated that Dr. Joyce Reynolds, med-

ical examiner at Forsyth Memorial Hospital, had reported

her opinion that Mr. Caudle had died a cardiac death as a

complication of his hypertension. Dr. Lyles supported the

finding of Dr. Reynolds with her own opinion that “Mr.

Caudle’s disabling condition, severe hypertension, led to

aggravation of his angina and eventually to myocardial

infarction which was the probable cause of death.” Exh. 11,

D2.

28. Dr. Lyles added that she had attempted to hospitalize

Mr. Caudle before his death, to perform intensive diagnostic

procedures. Mr. Caudle had refused hospitalization due to a

lack of insurance coverage and the threatened loss of his

disability benefits. Dr. Lyles concluded that her patient “did

not receive optimal treatment because his benefits were cut

off.” Exh. 11, p. 3.

29. Counsel for plaintiffs also introduced the affidavit of

Herman Caudle’s widow, Mary Devers Caudle. Mrs. Caudle

stated in her affidavit that Mr. Caudle’s physical condition

had not improved, but instead had continued to decline.

from the time when he was originally awarded disability.

benefits. Additionally, she stated, Mr. Caudle grew very wor-

ried and upset about the termination of his benefits, spend-

ing more and more time alone in his room, and causing Mrs.

“audle great concern. Mrs. Caudle stated her belief that

“worrying about Social Security shortened Herman’s life.”

Exh. 10, p. 2.

(c) Mary P. Lovingood

30. Plaintiff Mary Lovingood is 57 years old, and cannot

read or write. In the past she worked as a pie maker and a

EE

ii

68

poultry cleaner. She lives with her husband in Charlotte,

North Carolina.

31. SSA originally found that Ms. Lovingood was disabled

due to chest pain, high blood pressure, and back and leg

pain. Lovingood received Social Security disability benefits

from 1974 until October, 1983. Her benefits were termi-

nated pursuant to a notice by DDS in August, 1983, that she

was no longer disabled.

32. In the explanation accompanying the notice of termi-

nation sent to Ms. Lovingood, DDS stated:

“Although you may have pain in your back and legs at

times, the report show ({sic] that you are able to stand,

walk, and use your legs in a normal manner.

The explanation further stated:

“Although your blood pressure is higher than normal, it

has not damaged your heart, kidneys or eyes [end-

organs].”

Exh. 25, p. 2.

33. DDS did not accord Ms. Lovingood a presumption of

continuing disability based on her prior entitlement to bene-

fits, nor did it make any finding that her condition had

improved since she was initially found to be disabled.

34. On September |, 1983, Ms. Lovingood requested

reconsideration of the DDS decision and her request was

denied. She then filed a request for a hearing before an ALJ

on October 15, 1983. Apparently, that request is still

pending.

35. Ms. Lovingood’s affidavit was received in evidence. In

her affidavit, plaintiff states that her condition has not

improved since SSA originally found that she was disabled.

In addition, Ms. Lovingood states that she has grown anx-

ious and depressed since learning that her disability benefits |

would be terminated. The termination of Ms. Lovingood’s

benefits reduced her family income by approximately 30 per |

69

cent; she and her husband now live on his income of $530

per month, and will experience difficulty in paying the costs

of their food, rent, utilities, insurance, and medical bills.

Ms. Lovingood did not elect to continue receiving her disa-

bility payments pending appeal of her case to an ALJ,

because she was afraid she would be unable to repay SSA if

she ultimately lost her case.

(d) Other Representative Class Members

36. Affidavits of several declarants were received in evi-

dence. From these affidavits and other evidence, the court

finds the following facts:

37. SSA has engaged in a consistent practice of terminat-

ing Social Security disability benefits without making any

finding that a recipient’s condition has improved since he or

she was originally determined to be disabled. Exhs. 8-24.

38. The loss of Social Security benefits often causes for-

mer recipients to suffer severe financial hardship. Many for-

mer recipients have become completely dependent on

others, such as the public welfare system, private charities,

or their children, for support. Still others have suffered the

loss of their homes (Exh. 16); their utilities (Exh. 19); or

their automobiles (Exh. 13).

39. The termination of benefits to disabled persons whose

conditions have not changed has often resulted in the inabil-

ity of these persons to secure proper medical treatment for —

the very conditions from which they are disabled, or other

conditions. Exh. 20 (claimant in debt for medicine); Exh. 14

(inability to purchase medicine); Exh. 13 (appointments —

with private treating physician no longer affordable); Exhs.

14, 16 (eye examinations and glasses not affordable); Exh. 21

(needed dental treatments cancelled).

40. Persons whose disability benefits are terminated with-

out any demonstration that their conditions have improved

often experience deep emotional distress due to resultant

CC —

70

financial pressures, which tends only to aggravate the sever-

ity of their physical or emotional disabilities. Exhs. 17-20;

a3.

41. On several known occasions, former recipients of disa-

bility benefits have died, shortly after their benefits were

terminated without any showing of improvement, from the

very conditions which SSA had determined were not disa-

bling severe impairmeats. Exhs. 15, 17, 18, 24.

Ill.

How Social Security Claims are Handled;

Reviews and Terminations, 1982-84 Style.

Background

42. Title II of the Social Security Act provides for disabil-

ity insurance benefits (SSDI) for disabled workers. 42 U.S.C.

$401 et seg. SSDI benefits are based upon an individual’s |

earnings record and are paid without regard to financial

need. Title XVI of the Socia! Security Act provides for sup-

plemental income (SSI) for persons who are both poor and

disabled. 42 U.S.C. §1381 ef seg. SSI benefits are paid to

eligible poor persons whose income and resources fall below

a certain level.

43. The disability standards for both the SSDI and SSI

programs are identical. Disability is defined as the “inability

to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment

which can be expected to result in death or which has lasted

or can be expected to last for a continuous period of not less

than twelve (12) months.” 42 U.S.C. §423 (d)(1)(A); §1382

(c)(a)(3)(A).

44. The Social Security Administration (SSA), pursuant to

contract, has entrusted initial disability determinations to

the North Carolina Department of Human Resources, Disa-

bility Determination Services (DDS). In making disability

71

determinations, DDS, the state agency, follows, and is only

authorized to follow, disavility standards promulgated by

the federal agency, SSA. These standards are established by

directives in the Programs Operation Manual System

(POMS) utilized by DDS employees, and in various SSA

rulings (SSRs) and policy statements.

45. An initial claimant for disability benefits will be

referred to DDS, the state agency, for review. If the claim is

denied, the claimant may request reconsideration by DDS.

If the claim is still denied, the claimant may request a hear-

ing before a federal SSA Administrative Law Judge (ALJ). A

claimant who receives an adverse decision from an ALJ may

appeal the decision to the SSA Appeals Council. Finally, a

claimant who is denied benefits hy the Appeals Counc’

seek relief from that decision by suing in federal co. cL

U.S.C. §405 (g).

46. A claimant who ts found disabled at any stage of this

procedure is entitled to benefits. However, a person is eligi-

ble for benefits only as long as the disability continues. A

recipient of disability benefits is subject to a “continuing

disability investigation” (CDI) at least once every three

years. 42 U.S.C. §421 (h)(1).

47. The procedure for review of eligibility for benefits and

possible termination is essentially similar to the procedure

followed in initial applications for benefits. See 20 C.F.R.—

§404.900 et seqg.; §416.901 et seg. A recipient is contacted by

DDS and told that his or her case is being reviewed to

determine whether he or she is still disabled. If DDS deter-

mines that the recipient is no longer disabled, DDS sends the

recipient a letter informing him or her of the determination;

SSA terminates payments of benefits shortly thereafter. A

recipient may request reconsideration from DDS, and may

seek further review of a termination of benefits from (in

turn) an ALJ, the Appeals Council, and the federal courts.

a

ee

(An SSI reciptent need not seek reconsideration from DDS,

but instead may appeal directly to an ALJ.)

48. Persons whose benefits have been terminated are cur-

rently offered the option of continuing to receive benefits

pending appeal at the ALJ level. 42 U.S.C.A. §423(g)(1)

(West Supp. 1983) (“aid paid pending” program). However,

if the ALJ affirms the termination, all benefit payments are

terminated, and the benefits paid pending appeal may be

considered overpayments subject to recoupment by the Sec-

retary of Health and Human Services.

Procedure

49. The Secretary develops guidelines for substantive dis-

ability determinations. These guidelines are published as

Social Security regulations, 20 C.F.R. §400 et seq.; Social

Security rulings (SSRs); and Programs Operating Manual

Systems (POMs). They are used as a controlling reference by

DDS (state) and SSA (federal) employees who perform disa-

bility evaluations upon claimants.

50. Under the contract between the SSA and North Caro-

lina, the North Carolina Department of Human Resources,

Disability Determination Services, makes initial disability

determinations both for new applicants and for those recipi-

ents whose continuing disability status is reviewed. The state

employees are controlled by the federal regulations in mak-

ing disability determinations and may not vary from them.

If, for example, a DDS consulting physician expresses the

opinion that a claimant is disabled, that opinion will be

rejected by the state and federal examiners unless the medi-

cal impairments fit precisely within the guidelines estab- |

lished by the defendant.

51. SSA and DDS employees who evaluate claims for |

disability payments are charged with the duty of determin-

ing whether a claimant suffers from a “severe impairment” |

which limits the claimant’s ability to engage in, or wholly

73

prevents a claimant from engaging in, substantial gainful

activity.

52. SSA has published SSR 82-55, which is the same docu-

ment as POM 2107. These documents are entitled, “Medical

Impairments That Are Not Severe.” According to these doc-

uments SSA has determined that the following impairments

are not “severe,” and thus not disabling:

44a. Hypertension without significant organ damage,

past or present.

§]7.[a]. Diabetes mellitus, adult onset, controlled on pre-

scribed therapy, without significant end-organ damage

or recent episodes of acidosis.

These regulations are codified in 20 C.F.R. Subpart P,

Appendix 1, §4.00 C, which states:

Hypertensive vascular disease does not result in severe

impairment unless it causes severe damage to one or

more of four end-organs: heart, brain, kidneys, or eyes

(retinae).

53. DDS employees who evaluate the condition of disabil-

ity claimants automatically determine that individuals who

suffer from hypertension or diabetes mellitus are not dis-

abled from those illnesses, unless those individuals also suf-

fer from clinically substantiated end-organ damage. In such

cases, DDS employees do not make any attempt to deter-

mine an individual’s actual ability to perform work.

54. The Secretary offered no evidence to indicate that

either diabetes mellitus or hypertension is not disabling

unless it has already resulted in end-organ damage.

55. Carl Young, Supervisor of the Quality Assurance Unit

of DDS, testified at the trial and submitted an affidavit

which supports his testimony. Mr. Young supervised an

evaluation of a random sample of 407 cases closed by DDS

in late December, 1983. The closed cases included those of

Original applicants whose claims for benefits were denied,

74

and cases of former recipients whose benefits were termi-

nated. From this evaluation, Mr. Young determined that 15

percent of al: denials in the sample involved either hyperten-

sion or diabetes mellitus without any significant end-organ

damage. From all of the testimony, the court finds that a

substantial number of persons in North Carolina have been

denied a complete evaluation of their actual ability tc per-

form substantial gainful activity, solely because their ill-

nesses have not yet resulted in significant damage to their

eyes, kidneys, hearts or brains.

56. Symptoms, including pain, must be strictly judged by

a guideline (SSR 82-58 and POM 2205) entitled “Evaluation

of Symptoms”:

“POLICY STATEMENT: Symptoms will not have a sig-

nificant effect on a disability determination or decision

unless medical signs or findings show that a medical

condition is present that could reasonably be expected to

produce the symptoms which are alleged or reported.

However, once such a medical condition (e.g., disc dis-

ease) is objectively established, the symptoms are still

not controlling for purposes of evaluating disability.

Clinical and laboratory data and a well-documented

medical history must establish findings which may rea-

sonably account for the symptom in a particular impair-

ment. Objective clinical findings which can be used to

draw reasonable conclusions about the validity of the

intensity and persistence of the symptom and about its

effect on the individual’s work capacity must be pre-

sent. For example, in cases of back pain associated with

disc disease, typical associated findings are muscle

spasm, sensory loss, motor loss, and atrophy. There

must be an objective basis to support the overall evalua-

tion of impairment severity. /t is not sufficient to merely

establish a diagnosis or a source for the symptom.”

[Emphasis added. }

57. DDS employees who evaluate the condition of disabil-

ity claimants do not consider subjective claims of pain

which seem to them to be disproportionate to the clinical

medical evidence before them. These employees disregard

— a fle ee Kh ee

75

statements by the individual being evaluated concerning the

severity or intensity of his or her pain, unless those state-

ments are supported by objective clinical findings.

58. Dr. George M. Cooper, a medical consultant for DDS,

testified — and the court finds — that chronic severe pain

may limit a claimant’s functional capacity to a greater extent

than would be indicated by objective clinical findings alone.

An evaluating physician may be convinced, on the basis of

his or her professional judgment and an analysis of all the

evidence, that a claimant is totally disabled, yet the physi-

cian may be required by the Secretary’s regulations to find

the claimant not disabled due to a lack of objective clinical

findings to support the claimant’s complaints of pain.

59. Carl Young (see §]55, above) further testified that 16.4

percent of all the denials of benefits evaluated by his office

in late December, 1983, involved claims of significant pain,

the intensity of which was not supported by objective

clinical findings. From this testimony the court finds that a

significant number of persons in North Carolina have been

denied a complete evaluation of their actual ability to engage

in substantial gainful activity solely because their subjective

complaints of pain, no matter how severe or disabling, were

not fully supported by objective clinical findings.

Terminations

60. The Secretary has admitted, in SSRs 81-6, 82-64 and ~

82-49c, and through testimony in this court, that she does

not comply with the mandate of the Fourth Circuit in Dot-

son V. Schweiker, 719 F. 2d 80 (4th Cir. 1983), and that SSA

continues to terminate disability benefits without any dem-

onstration that the recipient’s condition has improved since

the time that he or she was originally found disabled.

61. Since October 5, 1981, in North Carolina, DDS has

adjudicated approximately 165,000 claims, of which approx-

imately 99,000 were denials or terminations. During 1983,

76

prior to September 7, 1983, DDS had terminated the Social

Security disability benefits of approximately 106 North

Carolinians per week. The total number of terminations

since October 15, 1981, is approximately 15,000.

62. Aileen Webster, witness for the plaintiffs, testified.

She also filed an affidavit which contains the substance of

her oral testimony. That affidavit is as follows:

I, Aileen Webster, being duly sworn, aver and say:

1. I have been employed by Disability Determination

Services (“DDS”) for the past 18 years, serving as a

disability specialist, a supervisor and, for the last five

years, as a section chief.

2. In connection with my duties as Section Chief, |

directed a review of the files of those 821 recipients

who, as of approximately November |, 1983, would

have been terminated for medical reasons but for the

moratorium. Specifically, I instructed supervisors to

review the medical evidence available at the time each

such claim was initially allowed and the medical evi-

dence currently available with respect to each such

claim and to determine, using common sense guide-

lines, whether there had been any medical improve-

ment. On the basis of that review, the supervisors

reported to me that 60.2% of the recipients who would be

terminated for medical reasons under the present guide-

lines had not experienced any medical improvement in

their condition. [Emphasis added. ]

This 12 day of January, 1984.

/s/ Aileen Webster

63. The court finds the facts to be as the above evidence

tends to show: Large numbers (whether 60.2% or somewhat

more or less) of the persons undergoing review of disability

under the Secretary’s present guidelines are being cut off the

Social Security rolls without eivdence that their conditions

have improved and without any presumption that their disa-

bilities continue. Those persons would continue to draw

benefits if the Secretary were following relevant decisions of

the Fourth Circuit Court of Appeals.

oi ie er

ee ee

77

Irreparable Harm

64. The termination and the unjustified denial of Social

Security disability benefits cause irreparable harm to eiigible

persons. Many become unable to pay for medicines, cloth-

ing, food, fuel, transportation and shelter. Termination and

denial of benefits cause anxiety, depression and decline in

health. Some former recipients have died following termina-

tion of benefits; posthumous reinstatement after appeal

doesn’t help them.

65. If the Social Security Administration were to provide

DDS with the files of disability claimants who reside in

North Carolina, DDS employees would be able to determine

by reviewing the files whether they showed (a) hypertension

or diabetes mellitus without significant end-organ damage:

(b) a subjective claim of disabling pain unsupported by

objective clinical medical findings; or (c) a termination of

benefits without any evidence that a claimant’s condition

had improved since he or she was last found disabled. The

court is satisfied from the evidence that the work and

expense necessary to locate and reevaluate the files of those

affected will produce no serious hardship upon the state or

federal administrators.

The Moratorium

66. On September 7, 1983, James M. Hunt, Jr., the Gov-

ernor of North Carolina, was sufficiently concerned about

the terminations of disability benefits payments in North

Carolina that he issued Executive Order No. 97 entitled

“Moratorium on Terminating Social Security Disability

Benefits.” Temporarily, such terminations have ceased.

67. In addition, the Social Security Administration on

December 7, 1983, ordered a nationwide temporary halt of

terminations of benefits due to Congress’ failure to extend

certain provisions of section 2, P.L. 97-455, which has

expired. Nevertheless, in both North Carolina and the rest of

78

the nation, disability termination decisions are still being

made at a rapid rate: the temporary nationwide halt only

relates to notifications to individuals that their eligibility for

benefits has ceased. Benefits are still being paid to those who

are considered no longer eligible, but those payments could

be terminated any day at the discretion of the Governor or

the Secretary. Moreover, North Carolina residents whose

benefits were terminated pursuant to SSA’s policies prior to

September 7, 1983, are not eligible to receive benefits under

the Governor’s order, and the cases of others who have filed

claims to have their benefits restored are currently wending

their way through the lengthy DDS and SSA appeals process.

The Secretary's Position

68. The Secretary of HHS accepts the decision of no court

short of the Supreme Court as precedent binding on her. She

views decisions of the United States circuit courts and dis-

trict courts as binding only on the litigants involved in a

case, and not as precedent which she must follow in other

similar cases. When a conflict arises between the decisions of

lower courts and the opinions of the Secretary, the Secretary

considers herself entitled to follow her own interpretations

of the Social Security Act rather than those rendered by

lower courts.

69. The Secretary has instructed all administrative law

judges handling Social Security disability cases to make “rea-

sonable efforts” to follow district or circuit court decisions

regarding procedural or evidentiary matters. However, SSA

has instructed its ALJs that when district court or circuit

court decisions interpreting the Act, Social Security regula-

tions, or SSA rulings conflict with the Secretary’s interpreta-

tions, the ALJs should not consider these court decisions

binding in future cases and should not cite such lower court

decisions in their opinions. ALJ decisions relying on federal

case law are often reversed by the SSA Appeals Council for

that reason. ALJs have becn informed that “the federal

ee

79

courts do not run SSA’s programs.” Associate Comm’r.,

Office of Hearings and Appeals, Memorandum to Adminis-

trative Law Judges (January 7, 1982).

70. The Secretary’s refusal to comply with court decisions

with which she disagrees is a continuing policy from which

SSA deviates only by publishing new regulations and rulings

that conform to judicial precedent. !-161, SSA Precedents.

CONCLUSIONS OF LAW

I.

Defendant’s Motion To Dismiss

For Lack Of Jurisdiction.

71. Defendant has moved to dismiss the complaints with

respect to all named and class plaintiffs except Mr. Hyatt, on

grounds that the court lacks subject matter jurisdiction over

the actions with respect to these claims. Defendant relies on

42 U.S.C. §405(g), which provides in pertinent part:

“Any individual, after any final decision of the Secretary

made after a hearing to which he was a party, irrespec-

tive of the amount in controversy, 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.” [Emphasis added.]

72. Despite its literal language, the relief afforded by this

statute is not confined to individual Social Security claim- .

ants who file individual suits in district courts. The Supreme

Court has held that §405(g) provides an appropriate jurisdic-

tional basis for claims challenging the constitutionality of

provisions of the Social Security Act. Weinberger v. Salfi,

422 U.S. 749 (1975). The Court has also held that this stat-

ute provides jurisdiction over a claim challenging SSA’s pro-

cedures. Mathews v. Eldridge. 424 U.S. 319 (1976). Finally,

the Court has held that §405(g) permits federal courts to

entertain class actions and to grant injunctive relief.

Califano v. Yamasaki, 442 U.S. 682 (1979).

80

73. Defendant claims that only plaintiff Hyatt has

received a “final decision” of the Secretary which this court

has the authority to review under the statute, in that his is

the only claim that has been presented to the SSA Appeals

Council for review. The “final decision” requirement of

§405(g) consists of two elements. The first element, which is

purely jurisdictional in the sense that it cannot be waived, is

the requirement that a claim for benefits shall have been

presented to the Secretary. The second element, which can

be waived either overtly or constructively by the Secretary,

is the requirement that the administrative remedies be

exhausted. Matthews v. Eldridge, 424 U.S. at 328; Wein-

herger v. Salfi, 422 U.S. at 763-64; Aldrich v. Schweiker, 555

F. Supp. 1080, 1087 (D. Vt. 1982).

74. The first, non-waivable, element of the finality

requirement of §405(g) has been satisfied with respect to the

claims of all the named and proposed class plaintiffs. The

named plaintiffs have all presented claims for benefits to the

Secretary. The class proposed includes only those claimants

who (a) have presented initial claims for benefits or who, (b)

by joining in the proposed class or otherwise, will have noti-

fied the Secretary that they believe their benefits should not

be terminated. See, Mathews V. Eldridge, supra, at 323-24,

329 (jurisdictional requirement satisfied by answering state

agency questionnaire, and by writing letter in response to

tentative determination of disability cessation); Mathews vy.

Diaz, 426 U.S. 67, 75 (1976) (claim filed with Secretary by

Espinosa, after he had joined in District Court suit, satisfied

jurisdictional requirement); Kennedy v. Harris, 87 F.R.D.

372, 376 (S.D. Cal. 1980) (mere termination of benefits ful-

fills requirement of presenting a claim).

75. The Secretary’s claim that only she may waive the

§405(g) formal prerequisite to suit was rejected by the

Supreme Court when it stated:

81

Salfi suggested that under §405(g) the power to deter-

mine when finality has occurred ordinarily rests with

the Secretary since ultimate responsibility for the integ-

rity of the administrative program is [hers]. But cases

may arise where a claimant’s interest in having a partic-

ular issue resolved promptly is so great that deference

to the agency’s judgment is inappropriate.”

Mathews v. Eldridge, 424 U.S. at 330.

76. In Mathews v. Eldridge, the Supreme Court estab-

lished a method for determining whether a court may infer

waiver of the Social Security Act’s exhaustion requirement.

First, a court may infer waiver when the plaintiff's claim is

entirely collateral to his individual claim for benefits. 424

U.S. at 330-31. Further, the exhaustion requirement may be

deemed waived when the damages upon which a plaintiff's

claim for relief is based are of such a nature that he cannot

adequately be compensated by the relief that would accrue

from a judicial proceeding following exhaustion. /d. at 331.

Finally, federal courts have held that exhaustion may be

inferred when the Secretary’s position with respect to the

litigant’s claim is so fixed that further pursuit of administra-

tive remedies would be futile. Weinberger v. Salfi, supra, at

767; Liberty Alliance of the Blind v. Califano, 568 F.2d 333,

345 (3d Cir. 1977).

77. Plaintiffs have satisfied all the above tests for waiver,

and have provided additional reasons why the Social Secu-

rity Act’s exhaustion requirement should be waived. First, |

and most significantly, plaintiffs’ claims in this case are not

confined to direct claims for the payment of benefits.

Instead, plaintiffs seek to affect the procedures by which the

Secretary determines eligibility for benefits. Of course,

plaintiffs’ claims are generated from a belief that benefits

would be awarded to them if SSA were to apply lawful stan-

dards to the review of their cases. Nevertheless, that fact

does not convert their suit into a direct claim for benefits, in

which the court would be asked to review the record of each

ee

82

individual case to determine whether the Secretary’s deci-

sion is supported by substantiai evidence. In Mathews vy.

Eldridge, supra, the Supreme Court held that a plaintiffs

due process claim to a pre-deprivation hearing was collateral

to a substantive claim for benefits. 424 U.S. at 330. That the

plaintiff in Eldridge hoped ultimately to have his benefits

reinstated did not affect the court’s decision concerning the

essential nature of his claim.

78. Smith v. Schweiker, 709 F.2d 777 (2d Cir. 1983),

relied on by the Secretary, does not affect this decision. In

Smith, a panel of the Second Circuit Court of Appeals deter-

mined that a claim concerning the Secretary’s application of

a medical improvement standard, similar to a claim made in

this case, was not collateral to the plaintiffs’ substantive

claims for benefits. In rejecting the plaintiffs’ argument that

exhaustion of the claim could be inferred, the court stated:

“Exhaustion, moreover, would frame the issue in a

much clearer fashion than is possible when it is posed

as an abstraction. While the legal issue raised by plain-

tiffs may seem well-defined to them, it seems rather

unformulated to us. What is meant by evidence of med-

ical improvement, for example, is somewhat

ambiguous.”

709 F.2d at 780.

79. Unlike the abstract claims presented to the Second

Circuit panel in Smith, the claims raised by plaintiffs in this

case are all-too-sadly concrete. Plaintiffs here challenge the

Secretary’s refusal to follow three well-reasoned opinions by

the Fourth Circuit Court of Appeals which this court is

bound to follow. Where a legal standard has been clearly

enunciated, this court is authorized, and indeed required, to

determine whether the Secretary’s posture with regard to

that standard comports with the constitutional principles of

separation of powers and due process. In addition, in this

case, the court has received in evidence numerous docu-

ments from which this court as factfinder can decipher the

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Secretary’s questioned policies which are systematically

applied to all claims for benefits.

80. The plaintiffs have further demonstrated that the

harm they suffer cannot adequately be relieved by individual

judicial review following complete administrative exhaus-

tion of their claims. The Secretary has argued that whatever

harm plaintiffs may suffer from a possible misapplication of

the law to their cases will be compensated by the ultimate

retroactive payment of benefits upon successful litigation in

federal court. This claim overlooks several serious aspects of

plaintiffs’ situation.

81. First, as plaintiff Hyatt testified at the trial of this

case, termination of disability benefits means for many of

the members of plaintiffs’ class the difference between exis-

tence at a bare subsistence level, and the ability to pay the

utility bills to keep warm in freezing temperatures, or to

purchase an occasional item of clothing or piece of meat.

Even more seriously, the evidence reveals that many persons

whose disability benefits are terminated lose the ability to

pay for desperately needed medications and health care.

Indeed, many former recipients (some of whose benefits

were later reinstated on appeal) attested to the severe physi-

cal and mental stress occasioned by the termination itself. In

some cases, this severe stress was closely followed by death.

No amount of retroactive benefits can compensate for years

of deprivation and anxiety — which may even ultimately

result in death — resulting from the Secretary’s wrongful

practices. Another reason that retroactive benefits are not

fully compensatory is that one-quarter of the amount ulti-

mately awarded following district court litigation is often

paid, pursuant to 42 U.S.C. §406(b)(1), to the lawyer who

successfully represents the claimant in federal court.

82. Finally, the Secretary’s argument overlooks the fact

that the only claimants who will be retroactively compen-

sated for the Secretary’s application of an unlawful standard

84

of review are those “with the temerity to request. . . review.”

Aldrich v. Schweiker, 555 F. Supp. 1980, 1088 (D. Vt. 1982),

cuoting, Spear v. Harris, No. 80143, slip. op. at 7 (D. Vt. July

31, 1980). The possibility of the application of a double

standard to members of a group of potential disability pay-

ment recipients who are similarly situated provides further

necessity for an inference of waiver. See Rivera v. Heckler,

568 F.Supp. 235, 242 (D. N.J. 1983).

83. This case adequately questions and attacks the legality

of the Secretary’s rulings and guidelines for the determina-

tion of eligibility for benefits. To require each plaintiff to

exhaust her administrative remedies would serve no useful

purpose. Weinberger v. Salfi, supra, at 767.

84. Although the Secretary insists that her challenged rul-

ings fit within the letter of the law, she has made no repre-

sentation that they are subject to change at any time in the

near future. The particular rulings in question, then,

represent the Secretary’s fixed position, to which the court

has no doubt that the Secretary would adhere in reviewing

each individual, substantive claim for benefits.

85. A requirement of exhaustion in this case would be the

mere enforcement of formality, and a waste of administra-

tive and judicial resources. See, Kuehner v. Schweiker, 717 F.

2d 813, 817-818 (3d Cir. 1983); Graham vy. Heckler, 573

F.Supp. 1573, 1577-78 (N.D. W.Va. 1983). It would only

add hardship to hardship.

II.

The Substantive Legal Merits

Of The Case

86. The principle of separation of powers embodied in the

United States Constitution is that federal courts retain the

ultimate authority to interpret the law. Marbury v. Madison,

5 U.S. 137 (1803).

85

87. Decisions of the Fourth Circuit Court of Appeals

interpreting the Social Security Act are binding upon the

Social Security Administration when it decides claims of

people who live within the territorial jurisdiction of this

circuit. See, PPG Industries, Inc. v. N.L.R.B., 671 F.2d 817,

823 n. 9 (4th Cir. 1982). (The NLRB, a federal adjudicative

agency, was required to determine unfair labor practice cases

arising within the circuit in accordance with the decisions of

the Court of Appeals interpreting the National Labor Rela-

tions Act.)

88. In reaching its decision in PPG Industries, the Fourth

Circuit expressed the position that has been adopted by the

great majority of circuit courts addressing the question of an

agency’s refusal to follow the law of the circuit in which it

functions. Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983);

Ithaca College v. NLRB, 623 F.2d 224 (2d Cir. 1980); Mary

Thompson Hospital, Inc. v. NLRB, 621 F.2d 858 (7th Cir.

1980); Allegheny General Hospital v. NLRB, 608 F.2d 965

(3d Cir. 1979); Federal-Mogul Corp. v. NLRB, 566 F.2d

1245, 1252 (Sth Cir. 1978). But see, Yellow Taxi Company of

Minneapolis V. NLRB, No. 80-1481 (D.C. Cir. November 4,

1983) (NLRB not required to conform its rulings to every

decision by court of appeals, but when law has been firmly

established, Board is required to give court great deference).

As the Court stated in Allegheny Hospital, supra:

A decision by this court, not overruled by the United

States Supreme Court, is a decision of the court of last

resort in this federal judicial district. Thus our judg-

ments. . . are binding on all inferior courts and litigants

in the Third Judicial District, and also on administra-

tive agencies when they deal with matters pertaining

thereto. .. [T]he Board is not a court nor is it equal to

this court in matters of statutory interpretation. Thus, a

disagreement by the NLRB with a decision of this court

is simply an academic exercise that possesses no author-

itative effect... For the Board to predicate an order on

its disagreement with this court’s interpretation of a

statute is for it to operate outside the law.

86

608 F.2d at 970, quoted in Ithaca College v. NLRB, supra,

623 F.2d at 228-29.

89. the law of this Circuit is that the Secretary may nol

require end-organ damage as an exclusive precondition to

the establishment of a disability from hypertension or diabe-

tes. Martin v. Secretary of Dept. of Health, Ed. & Welf., 402

F.2d 905 (4th Cir. 1974). In Martin, the Fourth Circuit

found that neither medical evidence nor the Social Security

Act required a finding that a person is not disabled from

hypertension or diabetes simply because he has not yet expe-

rienced end-organ damage.

90. The Secretary’s regulations SSR 82-55 and POM 2107

directly contravene the law of the Fourth Circuit by mandat-

ing that disability claimants who suffer from hypertension or

diabetes must conclusively be found not disabled unless they

exhibit significant end-organ damage.

91. SSA operated outside the law of this circuit by evaluat-

ing the disability status of plaintiffs Herman Caudle and

Mary Lovingood according to regulations which dictate that

claimants who suffer from diabetes or hypertension, but who

have not yet experienced any end-organ damage, are conclu-

sively deemed not disabled from either of those two

conditions.

92. The law of this Circuit requires the Secretary to evalu-

ate the disabling effects of a disability claimant’s pain even

though the intensity of the pain is shown only by subjective

evidence. Myers v. Califano, 611 F.2d 980 (4th Cir. 1980). In

Myers, the Fourth Circuit reversed a denial of disability

benefits which had rested on an SSA regulation requiring

that impairments “must be demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” Jd.

at 983.

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87

93. The Secretary’s regulations SSR 82-58 and POM 2205

directly contravene the law of the Fourth Circuit by mandat-

ing that symptoms will not have a significant effect on a

disability determination unless they are supported by objec-

tive clinical findings.

94. The fact that the Secreiary’s regulations may have

changed since the time of the Myers decision makes no dif-

ference for purposes of this analysis; the current regulations

are aS repugnant to the law as the regulation evaluated in

Myers. In Myers, the court found that the claimant had

established a sufficient case of disability in that the intensity

of ier pain, which was substantiated only by subjective evi-

dence, “had a specific physical cause.” Jd. The Secretary’s

regulation expressly contradicts the holding of Myers, as it

States: “It is not sufficient to merely [sic] establish a diagno-

sis or a source for the symptom.”

95. SSA expressly refused to follow the law of this Circuit,

in evaluating the disability status of plaintiffs Patrick Hyatt

and Mary Lovingood, when it faiied to consider the disa-

bling effects of the pain experienced by these plaintiffs not-

withstanding the fact that such pain was not supported by

objective clinical findings.

96. In Dotson v. Schweiker, 719 F.2d 80 (4th Cir. 1983),

reh. denied, ____ F.2d ____ (4th Cir. Jan. 11, 1984), the

Fourth Circuit, following the Administrative Procedure Act

and applying a “familiar principle” of the presumptive con-

tinuing validity of judicial and administrative decisions,

heid that a previous determination of disability gives rise to

a presumption that a claimant is still disabled. In order to

rebut this presumption and justify termination of benefits,

the Secretary is required to come forward with evidence that

a claimant’s condition has improved since the last disability

determination. The rule adopted by the Fourth Circuit in

Dotson has been applied by every federal court which has

88

directly considered the standards applicable to the termina-

tion of disability benefits. Patti v. Schweiker, 669 F.2d 582

(9th Cir. 1982); Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.

1983); Simpson v. Schweiker, 691 F.2d 966 (11th Cir. 1982);

Doe v. Heckler, F. Supp. , No. M-83-2218 (D.

Md. Dec. 13, 1983); Graham v. Heckler, 573 F. Supp. 1573

(N.D.W.Va. 1983); Trujillo v. Schweiker, 558 F. Supp. 1058

(D. Colo. 1983).

97. Since Dotson did not invent, nor claim to invent, any

new rule of law, defendant’s claim that it should not apply to

pre-Dotson claims has no merit.

98. As she admits, the Secretary continues to determine,

without any showing that the recipients’ conditions have

improved, that persons receiving benefits are no longer dis-

abled. Thus the Secretary has explicitly chosen to disregard

the law of the Fourth Circuit with respect to terminations of

benefits.

99. Following her own regulations, and in direct contra-

vention of the law of this Circuit, the Secretary terminated

the disability benefits of plaintiffs Patrick Hyatt, Herman

Caudle, and Mary Lovingood without any evidence that the

condition of these plaintiffs had improved.

100. The Secretary contends that the Fourth Circuit’s

decision in Dotson is not binding law until the time for

appeal has run on that case. No authority is cited to support

this proposition. This court is bound by decisions of the

Fourth Circuit Court of Appeals from the day they are

issued; hence, in this case, the court is bound to apply the

law as it stands in this circuit. As the Second Circuit stated

in a similar case:

“When [the NLRB] disagrees in a particular case, it

should seek review in the Supreme Court. During the

interim before it has sought review or while review is

still pending, it would be reasonable for the Board to |

stay its proceedings in another case that arguably falls

89

within the precedent of the first one. However, the

Board cannot, as it did here, choose to ignore the deci-

sion as if it had no force or effect. Absent reversal, that

decision is the law which the Board must follow.”

Ithaca College v. NLRB, supra, at 228.

101. The Secretary has shown the court that she is abiding

by the Dotson decision with respect to Dotson, the individ-

ual plaintiff in that case (who is now deceased); that she has

not decided whether to appeal that case; and that she is

currently appealing another case in the Fourth Circuit which

raises the identical issues decided by the court in Dotson.

These actions, the Secretary contends, show “awareness and

respect” for the Fourth Circuit’s opinion in Dotson. Sec’y’s

Supplemental Memo of Points and Authorities in Oppos. to

Plaintiffs’ Motions for Prelim. Inj. and Class Cert., 12.

102. The Secretary’s position concerning the Dotson deci-

sion can hardly be characterized as “respectful.” Respect for

the law means obeying the law. In taking the position that

the Dotson decision need not be followed by her, the Secre-

tary has disobeyed the law of this Circuit.

103. This court can understand why the Secretary might

choose to appeal this issue in a case other than Dotson’s;

Dotson died, shortly after the Fourth Circuit’s decision was

rendered, from the very condition which the Secretary con-

tended was not disabling. However, the Secretary may not

continue an unlawful practice while she pursues, in an unre-

lated case, the issues conclusively determined by Dotson.

Such a position, if accepted by a court, would allow the

Secretary forever to escape the mandates of the law by aban-

doning appeals before a case reaches the Supreme Court for

decision, but continuing to assert that she is litigating the

issue by defending claims that have only freshly entered the

federal court system.

104. A cabinet member is not above the law of the land,

but is obligated to follow it. The Secretary is free to argue her

90

position in any case she chooses, but, absent express author-

ity from Congress or the federal courts, she can not offer an

appeal in a newly-filed and unrelated case as an excuse to

evade the law in this case.

105. The Secretary finally contends that her right to disre-

gard decisions of the Fourth Circuit Court of Appeals bas

recently been confirmed by the Supreme Court in its opinion

in United States v. Mendoza, 52 U.S.L.W. 4019 (January 10,

1984). In Mendoza, a unanimous Supreme Court held that

the government cannot be collaterally estopped from reliti-

gating a constitutiona! issue adjudicated against it at the

district court level in a different lawsuit brought by a differ-

ent party.

106. In Mendoza, a United States district court in Califor-

nia refused to hear the merits of a defense raised by the

government to a due process claim arising out of the Nation-

ality Act of 1940. The court’s reason for refusing to hear the

merits of the government’s defense was a prior decision

unfavorable to the government rendered in a similar case by

a different California United States district court. The

Supreme Court held that nonmutual collateral estoppel may

not lie against the government in such a case.

107. Mendoza is not in point. The pertinent holding of

Mendoza was only that the government must be allowed to

challenge a Jaw in court on its merits, not that an officer of

the government may disobey court decisions with which he

or she disagrees. This court has not refused to hear the mer-

its of anything defendant wanted to present; on the contrary

it has proceeded to the merits without unnecessary delay,

and has heard everything defendants had to offer. The plain-

tiffs have claimed that the Secretary does not follow the law

of the Fourth Circuit, and have cited authority, squarely in

point, to support this claim. The Secretary has asserted that

she does follow the law of the Circuit or, that where she does

91

not follow it, she is not required to. The Court has consid-

ered the Secretary’s case, has searched for its merits, and

finds none.

108. Plaintiffs say (brief in support of injunctive relief,

pp. 8-10) that their rights to “procedural due process” have

been denied. Defendant responded in a footnote. Procedural

due process does appear to be a valid additional basis of

decision. See Mathews v. Eldridge, 424 U.S. 319, 322 (1976)

(interest in continued receipt of disability benefits is a prop-

erty interest protected by the Fifth Amendment); Goldberg v.

Kelly, 397 U.S. 254, 271 (1970) (conclusion of agency as to

eligibility for welfare benefits must rest upon legal rules and

evidence presented at a hearing). I have always been puzzled

-as to hcw much one clarifies the concept of due process of

law (“that process which is due”) by calling that process

“procedural.” Moreover, the quest for procedural due pro-

; cess in this context leads inevitably for its identification

back to the cases of Myers, Martin and Dotson. Therefore,

although “procedural due process” is an additional valid

basis for this decision, I will not add more to what has

already been written.

DECISION

Plaintiffs have established a clear entitlement to have

| their claims for disability benefits reviewed pursuant to pro-

cedures that comport with the controlling decisions of this

circuit interpreting the Social Security Act. The court will

order relief consistent with this decision.

This 14 day of February, 1984.

— | heed. taketh 4

/s/ JAMES B. MCMILLAN

JAMES B. MCMILLAN

United States District Judge

i

92

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT OF

NORTH CAROLINA

Charlotte Division

C-C-83-655-M

Patrick H. Hyatt; Herman O.

Caudle and Mary P. Lov-

ingood, on behalf of them-

selves and all others similarly

situated,

Plaintiffs,

and

North Carolina Department

of Human Resources, Disa-

bility Determination

Services,

Plaintiff-Intervenor,

-VS-

Margaret M. Heckler, or her

successors in office, Secretary

. of the United States Depart-

ment of Health and Human

Services,

Defendant.

JUDGMENT

Pursuant to the findings of fact and conclusions of law

previcusly entered, IT

IS HEREBY ORDERED,

ADJUDGED AND DECREED:

1. Defendant’s motion to dismiss the action for lack of

jurisdiction is DENIED.

2. Plaintiffs’ motion for certification of a class is

ALLOWED. The procedure for defining and notifying the

: ‘

—

93

class and instituting class action proceedings is being set out

in a separate order

IT IS HEREBY FURTHER ORDERED that the Secre-

tary of Health and Human Services is restrained and

enjoined:

1. To cease immediately her policy of refusing to follow

the law of the Fourth Circuit in implementing the Social

Security Act in North Carolina.

2. To begin immediately to follow the law of the Fourth

Circuit within North Carolina as it is expressed in Martin v.

Secretary of Health, Education and Welfare, 492 F. 2d 980

(4th Cir. 1974), Myers v. Califano, 611 F. 2d 905 (4th Cir.

1980), and Dotson v. Schweiker, 719 F. 2d 80 (4th Cir. 1983),

and to issue written directives to SSA and DDS officials and

other persons responsible for the administration of Social

Security disability programs in North Carolina, ordering

such persons to follow Fourth Circuit standards.

3. Within thirty (30) days from the date of entry of this

judgment, to provide the North Carolina Department of

Human Resources, Disability Determination Services, with

sufficient information with regard to disability claims to

enable DDS to identify the persons who may be entitled to

relief under this judgment.

IT IS HEREBY FURTHER ORDERED, ADJUDGED

AND DECREED: .

1. The case of plaintiff Hyatt is remanded for reconsidera-

tion by the Secretary in light of the findings of fact and

conclusions of law previously entered.

2. A class action order will be entered.

3. Defendant shall provide plaintiffs access to the claims

files sufficient to enable them to verify compliance with this

judgment.

94

4. The Secretary shall pay to the North Carolina Depart-

ment of Human Resources, Disability Determination Serv-

ices, any costs incurred by DDS in implementing the terms

of this judgment.

5. Defendant shall pay to plaintiffs’ counsel their costs

and reasonable attorneys’ fees and expenses incurred in this

case.

This 14 day of February, 1984.

/s/ JAMES B. MCMILLAN

James B. McMillan

United States District Judge

95

IN THE DISTRICT COURT OF

THE UNITED STATES

FOR THE WESTERN DISTRICT OF

NORTH CAROLINA

Chariotte Division

C-C-83-655-M

PATRICK H. HYATT; HERMAN O. CAUDLE

and MARY P. LOVINGOOD, on behalf

of themselves and all others

similarly situated,

Plaintiffs,

and

ORDER

NORTH CAROLINA DEPARTMENT OF

CERTIFYING

HUMAN RESOURCES, DISABILITY

A CLASS

DETERMINATION SERVICES,

Eh AND

Plaintiff-Intervenor,

REQUIRING

-VS-

NOTICE

MARGARET M. HECKLER, or her

successors in office, Secretary of

the United States Department of

Health and Human Services,

Defendant.

Pursuant to the findings of fact, conclusions of law and

judgment previously entered, and after consideration of fur-

ther argument and briefs, the class is defined as follows:

A. The Martin and Myers subclass —

(1) All North Carolina residents who, since Septem-

ber 10, 1981, have applied for disability benefits (SSI or

SSDI benefits) under the Social Security Act and whose

claims were denied, either in an initial determination or

another level of the administrative appeal procedure,

because:

96

(a) the Secretary or DDS relied upon an absence or

lack of end-organ damage, current or past, as determin-

ing that the claimant’s hypertension or diabetes mel-

litus was not a severe impairment; or

(b) the Secretary or DDS relied upon an absence or

lack of clinical findings as determining that the claim-

ant’s pain was not disabling; and

(2) All North Carolina residents whose benefits under

the statute have, since September 10, 1981, been termi-

nated or are subject to being terminated by the Secretary

or DDS on grounds that they were not disabled under the

Act for one or Loth of the reasons noted above in (a) and

(b); and

B. The Dotson subclass —

All North Carolina residents whose Social Security dis-

ability benefits have, since October 6, 1982, been termi-

nated or are subject to being terminated on grounds that

the recipients were noi disabled under the Act, without

findings, and substantial evidence to support those find-

ings, that, since the Secretary’s most recent determination

of disability as defined in the Act, there has been improve-

ment in their medical condition sufficient that they are no

longer disabled.

The court finds that the class meets the requirements for

certification of a class action under Federal Rule of Civil

Procedure 23(a) and 23(b)(2):

1. The class is so numerous (many thousands of claimants

whose benefits have been terminated or whose applications

have been denied) that joinder of all members is

impracticable.

2. The claims of the members of the class as defined above

present substantial common questions of law and fact. The

claims have one significant and all-important feature of

97

commonality, in that it is the procedures under which the

determinations are made (i.e., in disregard of controlling

court decisions) which all potential claimants are entitled to

attack.

3. The claims of class representatives Hyatt, Caudle and

Lovingood are typical of the claims of the class members.

4. The court finds that the named class representatives

will fairly and adequately represent and protect the interests

of the class.

5. The defendant has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate

final injunctive relief or corresponding declaratory relief

with respect to the class as a whole.

6. The exhaustion requirements of 42 U.S.C. §405(g) are

met; the class includes only those persons who have

presented or will have presented, in appropriate fashion,

within the appropriate time limits, claims for benefits which

come within the claims specified in the class designations.

7. The date of September 10, 1981 in paragraphs A.(1)

and (2) is chosen because that is the date on which class

representative Hyatt was notified that his disability had

ceased, and on which he first became eligible to file a claim

for reconsideration. Class members should be entitled to

participate in this action as if they had filed claims on or

since the date Hyatt became eligible to file a claim.

8. The date of October 6, 1982, is chosen for the beginning

date of the group described in paragraph B. because that

date is one year before the decision of the Fourth Circuit

Court of Appeals in Dotson v. Schweiker, 719 F.2d 80 (4th

Cir. 1983). See 20 C.F.R. §404.988 and §416.1488 (Secretary

may reopen disability cases up to one year following final

determination).

98

Defendant objects to the use of October 6, 1982, as the

beginning date, arguing that the principle stated in Dotson is,

even now, not the law in this Circuit. Instead, in a stated

“spirit of cooperation with plaintiff's counsel,” defendant

proposes January 11, 1984, as the beginning date.

That proposal does not sound like cooperation.

As already stated by this court in its conclusions of law,

numbers 97 and 100, the Secretary was already bound to

apply the “medical improvement” standard before Dotson

was decided.

Since Dots

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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