I-5-4-15.Campbell, et al. v. Sullivan

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Inquiries
Attachment 1 Order Dated March 26, 1990, as Amended on April 25, 1990 and Letter, Stipulation and Order Filed November 19, 1990
Attachment 2 CAMPBELL COURT CASE FLAG/ALERT
Attachment 3 Route Slip on Case Flag for Screening
Attachment 4 Campbell Screen Sheet
Attachment 5 Route Slip for Routing Class Member Alert (and Prior Claim Folder(s)) to ODIO or PSC — OHA No Longer Has Current Claim
Attachment 6 Non-Class Membership Notice
Attachment 7
Attachment 8 Class Membership Notice
Attachment 9 Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments”
Attachment 10
Attachment 11 ALJ Dismissal to DDS
Attachment 12 Notice Transmitting ALJ Order of Dismissal
Attachment 13 Cambell Class Member Flag for HO Use (DDS Readjudication)

ISSUED: August 6, 1992

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the March 26, 1990 order, as amended on April 25, 1990, and the November 19, 1990 order of the United States District Court for the Northern District of Iowa in the Campbell, et al. v. Sullivan class action involving the “not severe” impairment issue.

Adjudicators throughout the country must be familiar with this TI because Campbell class members who now reside outside of Iowa must have their cases processed in accordance with the requirements of the court's order.

II. Background

On April 16, 1985, the United States District Court for the Northern District of Iowa certified a class challenging the Secretary's regulations, policies and practices for evaluating disability claims at step two of the sequential evaluation.

On October 21, 1985, the district court found the Secretary's severity regulations invalid and enjoined the Secretary from using step two of the sequential evaluation. The district court also held that the Secretary's pre-December 1, 1984 policy of not considering the combined effect of an individual's multiple “not severe” impairments violated the Social Security Act.

On August 21, 1986, the United States Court of Appeals for the Eighth Circuit stayed further consideration of this case pending the Supreme Court's decision in Bowen v. Yuckert, 482 U.S. 137 (1987). After the Supreme Court upheld the facial validity of the severity regulations in Yuckert, the Eighth Circuit, on October 28, 1987, vacated the district court's 1985 order and lifted the injunction on using step two. The circuit court remanded the case to the district court for further consideration in light of Yuckert.

On March 26, 1990, the district court upheld the validity of Social Security Ruling (SSR) 85-28 as the proper standard for adjudicating claims at step two, and rejected the plaintiffs' claims that the Secretary had systematically misapplied step two. However, the district court reaffirmed its 1985 holding that found that the Secretary's pre-December 1, 1984 policy of not considering the combined effect of an individual's multiple “not severe” impairments violated the Social Security Act. The court ordered the Secretary to identify class members affected by the former policy and to reconsider the claims of those individuals. The district court instructed the Secretary to take “into consideration the combined effect of all impairments,” and to consider “each class member's claim for the entire time period from the date of the original application to the date of the reconsideration” (Attachment 1).

On April 25, 1990, the district court amended its March judgment order by granting the Secretary an extension of time for distributing copies of the order to all adjudicators (Attachment 1). On November 19, 1990, the district court ordered the Clerk of the Court to file the parties' joint Stipulation that provided further details for the implementation of the court's amended judgment order. The order created a record of the Stipulation rather than a grant of approval by the court (Attachment 1).

III. Guiding Principles

Under Campbell, the Secretary will reopen and readjudicate the claims of those persons who (1) respond to notice informing them of the opportunity for review and (2) are determined to be class members after screening (see Part V below). The Disability Determination Service (DDS) in the state of the claimant's current residence, usually Iowa, will screen for class membership and perform the court-ordered readjudications regardless of the level of administrative review that last decided the claim.

OHA will screen cases and perform readjudications under limited circumstances (see Part V.B. below).

Cases readjudicated by the DDS will be processed at the reconsideration level regardless of the final level at which the case was previously decided. Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).

Campbell does not require any change in OHA's existing adjudicatory policies or practices because SSR 85-28 remains the proper standard for adjudicating claims at step two of the sequential evaluation.

IV. Definition of Class

Except as noted below, for purposes of implementing the 1990 orders, the Campbell class includes all persons residing in Iowa:

  • whose claims for disability benefits under titles II and/or XVI were denied or terminated based on a “not severe” impairment at step two of the sequential evaluation without consideration of the combined effect of multiple impairments; and

  • who received an adverse decision at any level of the administrative process on or after July 1, 1984 through November 30, 1984.

    EXCEPTION:

    A person is not a class member if:

    (1) the last administrative denial or termination the individual received on the claim was not based on step two of the sequential evaluation; or

    (2) the last administrative denial or termination the individual received on the claim was issued after November 30, 1984 (this includes claims readjudicated under ); or

    (3) the individual had a subsequent claim denied after November 30, 1984, and the onset date alleged in connection with the subsequent claim is on or before the onset date alleged in connection with the claim; or

    (4) a court entered a final judgment on the merits of the claim.

V. Determination of Class Membership and Preadjudication Actions

A. Non-OHA Actions

1. Notification

On April 18, 1991, SSA sent notices to all potential class members identified by computer run. Individuals had 30 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Campbell court order. Notices returned as undeliverable will be mailed a second time if SSA obtains an updated address.

The Office of Disability and International Operations (ODIO) and the Program Service Centers (PSCs) will send all untimely responses to the servicing Social Security field office (i.e., district office or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411.

2. Alert and Folder Retrieval Process

Litigation Staff in the Office of the Deputy Commissioner for Programs is tracking all response forms and sending alerts to ODIO and the PSCs to use in locating claim folders. See Attachment 2 for a sample Campbell alert.

In most instances, ODIO or the PSCs will associate the Campbell alert and the claimant's response form with the claim folder(s) and forward the folder to the appropriate DDS (see Part III above) for screening and readjudication.

3. Alerts Sent to OHA

If ODIO or the PSCs determine that either a potential class member claim or a subsequent claim is pending appeal in OHA, it will forward the alert to OHA, along with any prior claim folder(s) not in OHA's possession, for screening, consolidation consideration and readjudication, if consolidated.

ODIO or the PSCs will send all alerts potentially within OHA jurisdiction and related prior claim folders to the Office of Civil Actions (OCA), Division II, at the following address:

Office of Hearings and Appeals
Office of Civil Actions, Division II
P.O. Box 3300
Arlington, VA 22203
ATTN: Campbell Screening Unit Suite 801

4. Folder Reconstruction

In general, ODIO or the PSCs will coordinate any necessary reconstruction of prior claim folders.

5. Class Membership Denials

The Des Moines, Iowa district office, located at 210 Walnut Street, Room 293, Des Moines, Iowa 50309, will hold all non-class member claim folders pending review by class counsel. Upon review of the folders, class counsel will contact the Office of the General Counsel (OGC) directly to resolve class membership disputes.

B. OHA Actions

1. Pre-Screening Actions

a. Current Claim in OHA

As provided in Part V.A.3. above, if there is a current claim pending in OHA, OCA will receive the alert and related Campbell claim folder(s). OCA will determine which OHA component has the current claim and forward for screening as follows.

  • If the current claim is in a hearing office (HO), OCA will forward the alert and the prior claim folder(s) to the HO for screening using Attachment 3.

  • If the current claim is before the Appeals Council, OCA will forward the alert and prior claim folder(s) to the appropriate Office of Appellate Operations (OAO) branch for screening using Attachment 3.

  • If the current claim folder is in an OAO branch minidocket or Docket and Files Branch (DFB), OCA will request the folder, associate it with the alert and prior claim folder(s) and perform the screening.

    If OCA is unable to locate the current claim folder within OHA, OCA will broaden its claim folder search and arrange for folder retrieval, alert transfer or folder reconstruction, as necessary.

b. Current Claim Pending in Court

If OCA receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, OCA Division II will associate the alert with the claim folder(s) and screen for Campbell class membership. See Part V.B.2.b. below for special screening instructions when a civil action is involved.

2. Screening

a. General Instructions

The screening component will associate the alert, if any, and any prior claim folder(s) with the claim folder(s) in its possession and complete the screening sheet (see Attachment 4) as follows:

  • consider all applications denied (including res judicata denials/dismissals) during the Campbell timeframe;

  • follow all instructions on the screening sheet;

  • sign and date the original screening sheet, place it in the claim folder (on the top right side of the folder); and

  • forward a copy of the screening sheet to:

    Office of Hearings and Appeals
    Office of Civil Actions
    Division of Litigation Analysis and
    Implementation
    P.O. Box 10723
    Arlington, VA 22213
    ATTN: Campbell Coordinator

    Suite 702

    The Division of Litigation Analysis and Implementation will forward a copy of the screening sheet to the Litigation Staff at SSA Headquarters.

    If the HO or OAO branch receives an alert only or an alert associated with a prior claim folder(s) for screening, and no longer has the current claim folder, it will return the alert and the prior claim folder(s) to OCA, Division II (see address in Part V.A. above), and advise OCA of what action was taken on the current claim. OCA will determine the folder location and forward the alert and any accompanying prior claim folder(s) to that location (see Attachment 5).

    NOTE:

    Final determinations or decisions made after November 30, 1984, on a claim filed by a potential class member may adjudicate the same timeframe covered by the claim. Instead of applying the doctrine of administrative res judicata to the claim, these claims should be denied class membership.

b. Special OCA Screening Instructions if a Civil Action is Involved

As noted in Part V.B.1. above, OCA will screen for Campbell class membership when a civil action is involved. OCA's class membership determination will dictate the most appropriate post-screening action.

  • If the current claim pending in court was adjudicated in accordance with SSR 85-28 and resolved all Campbell issues, the claimant is not a Campbell class member. OCA staff will follow the instructions in Part V.B.3.a. below for processing non-class member claims.

  • If the current claim pending in court was adjudicated in accordance with SSR 85-28, but a Campbell issue(s) remains unresolved, e.g., there is a prior (inactive) Campbell claim and the current claim does not include the entire period covered by the Campbell claim, OCA staff will forward the Campbell claim to the appropriate DDS (see Part III above) for separate review. OCA will modify the case flag in Attachment 10 to indicate that the pending court case does not resolve all Campbell issues and that the Campbell class member claim is being forwarded for separate processing.

  • If the final administrative decision on the claim pending in court was not adjudicated in accord- ance with SSR 85-28 or is legally insufficient for other reasons, OCA will initiate voluntary remand proceedings and consolidate the claims.

    NOTE:

    OCA will immediately notify OGC if the pending court case is a class member claim so that OGC can notify the claimant of the option to have the case remanded for readjudication.

3. Post-Screening Actions

a. Non-Class Member Cases

If the screening component determines that the individual is not a class member, the component will:

  • notify the individual, and representative, if any, of non-class membership using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);

  • retain a copy of the notice in the claim folder;

  • send a copy of the notice to:

    Martin Ozga
    Legal Services Corporation of Iowa
    Suite 300, 312 Eighth Street
    Des Moines, Iowa 50309-3828
    Attn:Campbell

  • send the non-class member claim folder(s) to the Des Moines, Iowa district office using the pre-addressed route slip in Attachment 7.

NOTE:

Photocopy any material in the prior folder that is relevant to the pending current claim and place it in the current claim folder before shipping the prior folder.

An individual who wishes to appeal a determination of non-class membership may do so only through class counsel, as explained in the notice (Attachment 6).

b. Cases Determined to be Class Members

If the screening component determines that the individual is a class member, the component will:

  • notify the individual and representative, if any, of class membership using Attachment 8 (modified as necessary to fit the circumstances); and

  • proceed with processing and adjudication in accordance with the instructions in Part VI below.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

The DDS will conduct the first Campbell review except for cases consolidated at the OHA level (see Part VI.E. below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review). Except as otherwise noted in this instruction, ALJs should process and adjudicate requests for hearing on Campbell DDS review cases in the same manner as for any other case.

B. Payment Reinstatement for Cessation Cases

If the Campbell claim involves a title II or title XVI cessation, the class member may elect to have disability benefits reinstated pending readjudication. In general, the servicing Social Security field office has responsibility for:

  1. contacting the class member, who may have reinstatement rights;

  2. completing the election forms;

  3. verifying non-disability factors; and

  4. making a good faith effort to reinstate benefits.

    NOTE:

    For OHA jurisdiction cases, the screening component will:

    (1) identify claims involving title II or title XVI cessations;

    (2) immediately notify the servicing field offices by telephone of the pending claims which may be eligible for benefit reinstatement and document the file accordingly; and

    (3) provide the servicing field office with identifying information and any other information requested.

C. OHA Adjudication of Class Member Claims

The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Campbell readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and Headquarters will process Campbell class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.

1. Type of Review and Period to be Considered

Pursuant to the Campbell order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a reopening. The claim of each class member must be fully reopened to determine whether the claimant was disabled at any time from the onset date alleged in the Campbell claim through the present (or, in title II cases in which the claimant is no longer insured, through the date last insured).

2. Step Two of the Sequential Evaluation

Campbell does not require any change in OHA's current adjudicatory policies or practices with respect to step two of the sequential evaluation. Effective with the enactment of the 1984 Amendments to the Social Security Act, OHA's adjudicators have considered the combined effects of individual “not severe” impairments in evaluating disability claims at step two. ALJs and the Appeals Council may, if appropriate, continue to deny or cease the disability claims of Iowa residents in accordance with 20 CFR §§ 404.1520(c), 404.1521, 416.920(c) and 416.921, as well as SSR 85-28. The then Acting Associate Commissioner's memorandum, dated February 21, 1991 (Attachment 9), regarding the proper standard for adjudicating claims at step two, remains in effect.

3. Class Member is Deceased

If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.

D. Claim at OHA But No Current Action Pending

If the claim folder (either a class member or a subsequent claim folder) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the folder awaiting potential receipt of a request for review or notification that a civil action has been filed, OCA will associate the alert with the folder and screen for class membership.

  • If the 120-day retention period for holding a claim folder after an ALJ decision or Appeals Council action has expired, OCA will attach a Campbell class member flag (see Attachment 10) to the outside of the folder and send the claim folder(s) to the appropriate DDS (see Part III above) for review of the Campbell class member claim.

  • If less than 120 days has elapsed, OCA will attach a Campbell class member flag to the outside of the folder (see Attachment 10) to ensure that the case is routed to the appropriate DDS (see Part III above) after expiration of the retention period. Pending expiration of the retention period, OCA will also:

    • return unappealed ALJ decisions and dismissals to DFB, OAO; and

    • return unappealed Appeals Council denials to the appropriate OAO minidocket.

The respective OAO components will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the folder(s) to the appropriate DDS (see Part III above) in a timely manner.

E. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims (Consolidation Procedures)

1. General

If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Campbell class member claims with the current claim at the level at which the current claim is pending.

2. Current Claim Pending in the Hearing Office

a. Hearing Has Been Scheduled or Held, and All Remand Cases

Except as noted below, if a Campbell class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Campbell case with the appeal on the current claim.

EXCEPTIONS:

The ALJ will not consolidate the claims if:

  • the current claim and the claim do not have any issues in common. For example:

    (1) if the current claim is a title II retirement and survivor's insurance benefits claim or a title XVI claim involving only nondisability issues, e.g., income, resources, or residency, it will not have any issues in common with the claim; however,

    (2) if the current claim is a disability claim, for consolidation purposes, it will have an issue in common with the claim, regardless of the period at issue or the title under which the current claim was filed; or

  • a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

If the claims are consolidated, follow Part VI.E.2.c. below. If the claims are not consolidated, follow Part VI.E.2.d. below.

b. Hearing Not Scheduled

Except as noted below, if a Campbell class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Campbell claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Campbell claim and the current claim to the DDS for further action (see Part VI.E.2.d. below).

EXCEPTION:

If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all issues raised by the application that makes the claimant a class member, the ALJ will consolidate the claims.

If the claims are consolidated, follow Part VI.E.2.c. below. If the claims are not consolidated, follow Part VI.E.2.d. below.

c. Action if Claims Consolidated

Because the Campbell court order requires the Secretary to reopen fully the claims of class members, when consolidating a Campbell claim with any subsequent claim, the issue in title II claims is whether the claimant was disabled at any time from the earliest alleged onset date through the present (or, if the person is no longer insured, through the date the claimant last met the insured status requirements). Similarly, in title XVI claims, the issue is whether the claimant was disabled at any time from the earliest application date through the present.

If the ALJ decides to consolidate the current claim with the Campbell claim(s), the HO will:

  • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Campbell claim raises an additional issue(s) not raised by the current claim;

  • offer the claimant a supplemental hearing if the ALJ has already held a hearing and the Campbell claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Campbell claim;

  • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Campbell claim (the ALJ's decision will clearly indicate that the ALJ considered the Campbell claim pursuant to the Campbell court order); and

  • send copies of the consolidated hearing decision to both:

    Office of Hearings and Appeals
    Office of Civil Actions
    Division of Litigation Analysis and Implementation
    P.O. Box 10723
    Arlington, VA 22210

    ATTN: Campbell Coordinator
    Suite 702

    and

    Litigation Staff
    Office of the Deputy Commissioner
    for Programs, SSA
    P.O. Box 17729
    Baltimore, Maryland 21235

    ATTN: Campbell Coordinator
d. Action if Claims Not Consolidated

If common issues exist but the ALJ decides not to consolidate the current claim with the Campbell claim because a hearing has not yet been scheduled, the HO will:

  • dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 11 and the covering notice in Attachment 12; and

  • send both the Campbell claim and the current claim to the appropriate DDS for consolidation and further action (see Part III above).

If the ALJ decides not to consolidate the current claim with the Campbell claim because: 1) the claims do not have any issues in common, or 2) there is a court-ordered time limit, the ALJ will:

  • flag the Campbell claim for DDS review using Attachment 13; immediately route it to the appropriate DDS (see Part III above) for adjudication; and retain a copy of Attachment 13 in the current claim folder; and

  • take the necessary action to complete the record and issue a decision on the current claim.

3. Current Claim Pending at the Appeals Council

The action the Appeals Council takes on the current claim determines the disposition of the Campbell claim. Therefore, OAO must keep the claim folders together until the Appeals Council completes its action on the current claim. The following sections identify the possible Appeals Council actions on the current claim and the appropriate corresponding action on the Campbell claim.

a. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — No Campbell Issue(s) Will Remain Unresolved

This will usually arise when the current claim duplicates the Campbell review claim, i.e., the Campbell claim raises an issue of disability for a period covered by the current claim, and the current claim has been adjudicated in accordance with the provisions of SSR 85-28. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action.

The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Campbell claim.

b. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — Campbell Issue(s) Will Remain Unresolved

This will usually arise when the current claim does not duplicate the Campbell claim, e.g., the Campbell claim raises an issue of disability for a period prior to the period adjudicated in the current claim.

In this instance, the Appeals Council will proceed with its intended action on the current claim in accordance with the provisions of SSR 85-28.

OAO staff will attach a Campbell case flag (Attachment 10) to the Campbell claim, immediately forward the Campbell claim to the appropriate DDS (see Part III above) for adjudication, and retain a copy of Attachment 10 in the current claim file. OAO will modify Attachment 10 to indicate that the Appeals Council action on the current claim does not resolve all Campbell issues and that the Campbell class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ or Appeals Council decision or order on the current claim and the exhibit list used for the ALJ or Appeals Council decision.

c. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — No Campbell Issue(s) Will Remain Unresolved

If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Campbell class member, the Appeals Council will proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Campbell claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Campbell claim pursuant to the Campbell court order. For class action reporting purposes, the Appeals Council will send copies of its decision to the Campbell coordinators listed in Part VI.E.2.c. above.

d. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — Campbell Issue(s) Will Remain Unresolved

If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Campbell claim, the Appeals Council will proceed with its intended action. In this situation, the Appeals Council will request the effectuating component to forward the claim folders to the appropriate DDS (see Part III above) after the Appeals Council's decision is effectuated. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: “Campbell court case review needed — following effectuation forward the attached combined folders to (insert address of the DDS having jurisdiction for review of the Campbell class member claim).”

e. Appeals Council Intends to Remand the Current Claim to an ALJ

If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Campbell claim with the action on the current claim pursuant to the instructions in Part VI.E.2.a. above.

EXCEPTIONS:

The Appeals Council will not direct the ALJ to consolidate the claim if:

  • the current claim and the claim do not have any issues in common. For example:

    (1) if the current claim is a title II retirement and survivor's insurance benefits claim or a title XVI claim involving only nondisability issues, e.g., income, resources, or residency, it will not have any issues in common with the claim; however,

    (2) if the current claim is a disability claim, for consolidation purposes, it will have an issue in common with the claim, regardless of the period at issue or the title under which the current claim was filed;

  • a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the class member claim to the appropriate DDS (see Part III above) for separate review. The case flag in Attachment 13 should bye modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the class member claim for separate processing.

F. Copy Requirements

For all cases in which OHA is the first level of review for the Campbell claim (i.e., the Appeals Council or an ALJ consolidates the Campbell claim with action on a current claim or a class member only claim is pending at OHA), HO, OAO or OCA personnel, as appropriate, will send a copy of any OHA decision to the Campbell coordinators at the addresses listed in Part VI.E.2.c. above.

VII. Case Coding

HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.”

To identify class member cases in HOTS, HO personnel must code “CB” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Inquiries

HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022.

Attachment 1. Order Dated March 26, 1990, as Amended on April 25, 1990 and Letter, Stipulation and Order Filed November 19, 1990

[DATE FILED: 03/26/1990]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

MULINDA CAMPBELL, Individually, )  
and on behalf of all other )  
similarly situated individuals, )  

Plaintiffs,

)  
  ) NO. C 84-2085

vs.

) ORDER
LOUIS W. SULLIVAN, M.D. )  
Secretary of Health and Human )  
Services of the United States, )  

Defendant.

)  

This matter is before the court on defendant's resisted Motion for Dismissal or in the Alternative for Summary Judgment, filed July 15, 1988, and on plaintiffs' resisted Motion for Summary Judgment, filed Novemeber 16, 1988. Defendant's motion to dismiss denied. Motions for summary judgment granted in part and denied in part. Defendant ordered to reconsider claims in accordance herewith.

The plaintiff class in this matter seeks declaratory and injunctive relief against defendant for improperly denying social security disability benefits and supplemental security income benefits based on determinations that plaintiffs' impairments were not severe.

At the outset, it is useful to review the relevant statutes, regulations, and social security rulings. Under the Social Security Act an individual is disabled if he is unable:

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 12 months....

42 USC § § 423(d)(1)(A), 1382c(a)(3)(A) (1989). This definition is limited so that

an individual... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....

42 USC § 423(d)(2)(A), 1382c(a)(3)(B) (1989).

Defendant has established regulations which provide steps for evaluating disability. 20 CFR §§ 404.1520(a), 416.920(a) (1989). At step one, if the claimant is engaged in substantial gainful activity, defendant determines that the claimant is not disabled. If the claimant is not engaged in substantial gainful activity, defendant considers the claimant's physical and mental impairment(s) in step two. The step two regulations, 20 CFR §§ 404.1520(c) and 416.920(c) (1989) (severity regulations), provide1:

You must have a severe impairment. If you do not have any impairment(s), which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.

The severity regulations provide that an impairment is not severe if it does not significantly limit one's physical or mental ability to do basic work activities such as standing, walking, lifting, handling, seeing, speaking, hearing, understanding, and following simple instructions. 20 CFR §§ 404.1521, 416.921 (1989).

Additionally, beginning in 1980 and up until the passage of the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 460, 98th Cong., 2d Sess., 98 Stat. 1794 (effective date 12/1/84), the Secretary would “consider the combined effects of unrelated impairments only if all (were) severe and expected to last twelve months.” 20 CFR §§ 404.1522, 416.922(1984). The 1984 amendment to the Social Security Act countermanded this interpretation, requiring the Secretary to consider “the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 USC. § 423(d)(2)(C).

Defendant has published Social Security Rulings (SSRs) which are binding on all components of the Social Security Administration. 20 CFR § 422.408(1989). SSR 82-55 provided that at step two of the evaluation process2:

when we may decide that an impairment is not severe, we do not consider the effects of age, education, and work experience (i.e., the vocational factors) since in such cases the determination is based on medical considerations alone. Similarly, the individual's RFC is not assessed in cases in which the individual's impairment is determined to be not severe. In such cases, the RFC assessment is not relevant because it is based upon functional limitations which result from a severe impairment, and thus, it only comes into play at a letter stage in he sequential evaluation process.

* * *

Inasmuch as a nonsevere impairment is one which does not significantly limit basic work-related functions, neither will a combination of two or more such impairments significantly restrict the basic work-related functions needed to do most jobs.

SSR 82-56 provides that:3

[w]hen there is no significant limitation in the ability to perform... basic work-related functions, an impairment will not be considered to be severe even though it may prevent the individual from doing work that the individual has done in the past. Inasmuch as a nonsevere impairment is one which does not significantly limit basic work-related functions, neither will a combination of two or more such impairments significantly restrict the basic work-related functions needed to do most jobs.

On October 21, 1985, the court held that the regulations at 20 CFR §§ 404.1520(c), 404.1521, 416.920(c), 416.921, and SSR 82-55 and those portions of SSR 82-56 relating to non-severe impairments were invalid and beyond defendant's statutory authority. Specifically, the court held that those regulations and rulings did not allow for consideration of vocational factors or a claimant's residual functional capacity in determining the severity of an impairment, and therefore they were in conflict with 42 USC §§ 423(d)(2)(A) and 1382c(a)(3)(B) which required consideration of those matters. The court further held that defendant's former policy of refusing to consider the combined effects of impairment which were individually found not to be severe, established at 20 CFR §§ 404.1522 and 416.922 (1984), was contrary to the plain meaning of 42 USC §§ 423(d)(2)(A) and 1382c(a)(3)(B). The court then ordered specific relief.

On appeal, the Eighth Circuit Court of Appeals entered a stay pending the Supreme Court's determination of Bowen v. Yuckert, 482 U.S. 137, 96 L.Ed. 2d 119 (1987), and thereafter vacated this court's decision and remanded for further consideration in light of the Yuckert decision. Briefs and arguments have been received, with the last filing having been submitted on June 2, 1989.

Prior to addressing the pending motions, it is useful to revisit the claims raised in plaintiffs' complaint:4

  1. Plaintiffs challenged the facial validity of the severity regulations. Specifically, plaintiffs asserted that the severity regulations were contrary to 42 USC §§ 423(a) and 1382c(a) (3), and that they were promulgated in violation of the Administrative Procedure Act (APA) (5 USC §§ 523 et seq.) See Counts 1 and 2.

  2. Plaintiffs asserted that defendant's former policy enunciated in 20 CFR §§ 404.1522, 416.922(1984) SSR 82-55, and SSR 82-56, whereby defendant refused to consider the combined effects of impairments which were individually found not to be severe, was contrary to the plain meaning of 42 USC §§ 423(d)(2)(A) and 1382c(a)(3)(B). Similarly, plaintiffs urged that the regulations and rulings permitting this result were promulgated in violation of the APA. See Counts 3 and 4.

  3. Plaintiffs assert that defendant's policy and practice of denying/terminating benefits on the ground that an impairment was not severe was applied in an arbitrary and capricious manner in violation of 42 USC §§ 405 and 1383, the APA, and the Due Process Clause of the Fifth Amendment. See Count 5.

As previously noted, plaintiffs sought and obtained declaratory and injunctive relief, which was later vacated by the Court of Appeals.

DEFENDANT'S MOTION TO DISMISS, OR IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendant first urges that Yuckert resolved all the issues in this matter against plaintiffs, and therefore defendant seeks dismissal of plaintiffs' claims. Alternatively, defendant requests a summary judgment on the following grounds:

  1. Yuckert upheld the facial validity of the severity regulations.

  2. Plaintiffs are barred from challenging the application of the severity regulations.

  3. If not barred from presenting a challenge to the application of the severity regulations, plaintiffs' challenge (i) cannot be maintained as a class action and (ii) is without merit.

  4. Even if plaintiffs' misapplication challenge is meritorious, judicial waiver of the exhaustion of administrative remedies is unwarranted.

  5. The analytical framework of the Yuckert decision requires reconsideration of the combined impairments issue.

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs seek summary judgment and declaratory and injunctive relief on the following grounds:

  1. That defendant's former policy of refusing to consider the combined effects of impairments individually found to be non-severe violates the Social Security Act. Plaintiffs seek reconsideration of the claims of all class members affected by this policy.

  2. That defendant systematically misapplied the severity regulations, and continues to do so. Plaintiffs seek reconsideration of the claims of all class members affected by the alleged misapplication.

  3. Plaintiffs seek an order enjoining the Secretary from using the severity regulations or, in the alternative, from using them in a manner inconsistent with Yuckert.

Due to their interrelationship, plaintiffs' and defendant's motions shall be considered together. The court notes that plaintiffs have not raised their APA claim at any point since the remand to this court, and therefore it shall be considered abandoned.

In Yuckert the Supreme Court addressed an individual claimant's challenge to the severity regulation pertaining to Title II benefits.5 The Court there upheld the facial validity of the severity regulation against the same facial validity challenge made here. Nevertheless, Yuckert did not address the pending misapplication challenge, nor did Yuckert address the Secretary's failure to consider the combined effects of impairments individually found to be non-severe. Accordingly, defendant's motion for dismissal on the basis of Yuckert having resolved all matters herein shall be denied.

Yuckert having upheld the facial validity of the severity regulations, plaintiffs have abandoned their challenge to facial validity. Defendant is entitled to summary judgment on this point.

SYSTEMATIC MISAPPLICATION OF SEVERITY REGULATIONS

Before addressing the merits of plaintiffs' misapplication claim, the court must focus on two matters raised by defendant. First, defendant asserts that plaintiffs' challenge to the regulation as they are applied is beyond the scope of this litigation. Defendant contends that this litigation has thus far been limited to the validity of the severity regulations and that plaintiffs failed to pursue their challenge to the application of those regulations.

Defendant's assertion is without merit. Plaintiffs specifically raised the application issue in their complaint, and fairly referred to the issue in their supplemental memorandum (docket #36) at pages 9-11. Plaintiffs emphasized and initially succeeded on the facial validity challenge, and therefore they did not have a ruling on the application challenge. This result will not be held to bar them from challenging the severity regulations as they are applied. This is not a matter of whether an issue has been preserved for appellate review applicable to the question of whether an application challenge may be made in this court. The Court of Appeals simply vacated this court's decision, and remanded for reconsideration in light of Yuckert. To the extent that defendant urges that only the issues discussed in Yuckert may now be reconsidered, it is noteworthy that a majority of the Yuckert court discussed the potential misapplication of the severity regulations.6 Finally, again noting that this issue was raised in plaintiffs' complaint, there is no danger of unfair surprise to defendant. The issue of application of the severity regulations is properly and fairly before the Court. Cf. FRCP 15 (leave to amend should be freely granted when justice so requires).

Second, defendant contends that even if the application challenge is properly before the court, it should not proceed a class action. Defendant urges that (1) there is already a established avenue of judicial review available; (2) the plaintiffs are not challenging any act or omission applicable to the class as a whole; and (3) appropriate declaratory and injunctive relief cannot be fashioned for large numbers of necessarily fact specific determinations.

The fact that there already exists an avenue for individual judicial review is no impediment to class certification under FRCP 23. Moreover, to the extent that plaintiffs assert the Secretary has established erroneous standards which result in systematic and class-wide misapplication of the regulation, a class action remains an appropriate vehicle for presentation of the plaintiffs' claims. See FRCP 23. See also Bailey v. Sullivan, 885 F.2d 52, 57-58 (3rd Cir. 1989); Wilson v. Sullivan, 709 F.Supp. 1351, 1357 (D.N.J. 1989); Dixon v. Bowen, 673 F.Supp. 123 (S.D.N.Y. 1987), later proceeding, 126 FRD 483 (S.D.N.Y. 1989). Cf. Johnson v. Bowen, 697 F.Supp. 346, 351-352 n.6 (N.D. Ill. 1989) (subsequent history omitted) (class action is an inappropriate vehicle for challenging random [rather than systematic] misapplication of facially valid severity regulation). Finally, the court is satisfied that if necessary, appropriate relief can be fashioned. Defendant's contentions are without merit.

Having considered and rejected defendant's two preliminary concerns, the court turns to the substantive issue of systematic misapplication.

Even though Yuckert held that the severity regulations are facially valid, plaintiffs urge that injunctive relief remains appropriate to halt the alleged continuation of systematic misapplication of those regulations. Plaintiffs also assert that they are entitled to summary judgment on the issue of past systematic misapplication of the severity regulations.

The standard governing a summary judgment motion is well known. Summary judgment should not be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FRCP 56(c). It is an extreme remedy, not to be entered unless the moving party has established his right to a judgment with such clarity as to leave no room for controversy and unless the other party is not entitled to recover under any discernible circumstances. Equal Employment Opportunity Commission v. Liberty Loan Corp., 584 F.2d 853, 857 (8th Cir. 1978). In passing upon a motion for summary judgment the court is required to view the facts in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co. 398 U.S. 144, 158-59 (1970).

Plaintiffs urge that they are entitled to summary judgment on their misapplication claim based upon official and published policy statements, internal documents, quality assurance returns, court cases, and statistics showing a substantial increase in the use of the severity regulations. Plaintiffs have chosen to split their analysis into two parts, the first involving the period prior to October of 1985, the effective date of SSR 85-28, and the second part involving the period after publication of that ruling.

PRE-SSR-85-28

While the Secretary's regulations have long permitted denial of claims on medical considerations alone7, the “not severe” language was first introduced in 19788, followed by the 1980 codification of the sequential evaluation process embodying the “not severe” language in step two.9 Although there was no substantive change in the regulatory standard other than purported technical clarifications, plaintiffs assert that it is undisputed that in the late 1970's there was a substantial national increase in the number of claims disallowed on the basis of a finding of non-severe impairments. See Background Materials and Data on Programs within the Jurisdiction of the committee on Ways & Means, 1986 Ed. Mouse Comm. On Ways and Means, 99th Cong. 2d Sess. 114 (March 3, 1986), Plaintiffs' undisputed facts, p. 4 (docket #87). Indeed, it is undisputed that the Ways and Means report shows that 8.4% of total disallowances in 1975 were based upon a finding of no severe impairments, and quite steadily that category of disallowances rose to a national high water mark of 43.2% of total disallowances in 1981 followed by 38.9% in 1982, 39.4% in 1983, 34.3% in 1984, and 23.3% in 1985. Plaintiffs urge that the dramatic escalation on the national percentages of disallowances based on the use of the severity regulations demonstrates system-wide misapplication resulting in excessive denials.10

Yuckert establishes that the second step evaluation with the severity regulations may be used only as a threshold screening device to deny claims where there is no significant impairment to the claimant's ability to do basic work activities. See Id., 482 U.S. at 158, 96 L.Ed. at 137, Justices O'Connor and Stevens concurring. Nevertheless, plaintiffs' statistics do not make out a violation of this de minimis standard. They are national in scope. Defendant makes the unresisted representation that the percentage of denials in Iowa attributable to non-severity grounds from 1979 to 1984 was 21.7%, 26.2%, 22.5%, 20.6%, 24.1%, and 22.8%, respectively. See defendant's resistance filed December 30, 1988 at p. 10 (docket #96), and attachment D appended thereto. Accordingly, in this case with a class of Iowa plaintiffs, plaintiffs' statistics simply do not support their claim.

Next, plaintiffs urge that the use of some of the twenty examples listed in SSR 82-55 led to the denial of benefits to individuals due to a “non-severe impairment” when those individuals actually met the statutory definition of disability, resulting in misapplication of the severity regulations. Specifically, plaintiffs point to two parts of SSR 82-55: 1.a and 1.b. SSR 82-55 1.b. declares the following to be a non-severe impairment: Traumatic fracture of a vertebral body in the absence of metabolic bone disease, with loss of less than 50 percent of height in the vertebra without significant physical findings or neurologic abnormalities."

Plaintiffs pose a hypothetical situation where an individual whose only past work has been unskilled heavy farm labor has the condition set forth in SSR 82-55 1.b. Plaintiffs urge that this individual, with no education, no skilled work experience, and who is closely approaching retirement age, would be found disabled under Rule 203.01 of the Medical Vocational Guidelines if his claim is not denied at step two due to a finding of no severe impairment. However, absent consideration of age, education and vocational factors, and based solely upon the “negative listing” of SSR 82-55 1.b., this individual would be denied benefits at step two of the sequential evaluation process.

While it appears that plaintiffs' hypothetical farm laborer would fall within the suggested Medical Vocational Guideline if he were unable to return to his past work, the conclusion which plaintiffs draw from their hypothetical example is deficient in the following respect. In its definition example 1.b. is qualified by the requirement that there be no “significant physical findings.” As the court understands this, it means that 1.b. is defining a situation where, notwithstanding the traumatic fracture, there are no limits on the claimant's ability to lift, bend, walk, carry, etc.

Presumably, if there is no significant physical finding or neurological abnormality, the claimant will be able to return so his past work. Plaintiffs have not come forward with any proposed undisputed fact or other evidence to the contrary. While it might be unusual that an individual with such a fracture would have no significant physical findings under these circumstances, i.e., no pain, no motion limitation, no lifting limitation, no prophylactic limitation to prevent further injury, etc., it is not irrational for the Secretary to establish that whenever this combination of circumstances is found, the result shall be a finding of no severe impairment. If there is to be any merit in plaintiffs' assumption that the claimant cannot return to his past work, there must necessarily and logically be physical findings of some significance. Lacking these, plaintiffs' hypothetical does not establish or support a claim of systematic misapplication.

Plaintiffs' second hypothetical involving osteoarthritis as described in SSR 82-55 1.a. suffers from a similar shortcoming. To the extent that the osteoarthritis is a accompanied by minimal abnormal findings as defined in the example, the example is not in conflict with the regulation or statute so as to support plaintiffs' systematic misapplication claim. While plaintiffs urge that “it seems obvious” that these examples would preclude heavy work, the narrow definitions discussed above lead to the opposite conclusion. Consistent with this discussion, the court notes that to the extent a claimant's condition produces severe or prolonged pain, it falls outside the scope of the example. See Id.

COURT CASES

Plaintiffs urge that “the many reported cases in which the Secretary misapplied the severity regulation reveal [the establishment of] an erroneous severity standard.”

That the Secretary has often incorrectly decided individual cases on step two grounds establishes no more than that fact. Random misapplication is undoubtedly inevitable in the enormous volume of claims processed by the Secretary. However, plaintiffs' bare assertion that there exist multiple individual cases of misapplication falls far short of even suggesting or establishing systematic misapplication.

POST-SSR 85-28

Plaintiffs assert that even after the October, 1985 implementation of SSR 85-28, the Secretary is continuing the alleged systematic misapplication of the severity regulation. Plaintiffs urge that notwithstanding the withdrawal of SSR 82-55, the examples of non-severe impairments have been reborn in companion sources such as a “Program Circular” (exhibit J attached to plaintiffs' undisputed facts), and the recently published Physicians Training Manual on Impairment Evaluation, SSA Pub. No. 64-027 (June 1988) (see docket No. 99).

In light of the court's holding that the challenged examples in SSR 82-55 were not overly restrictive in violation of Yuckert, the court finds no merit in plaintiffs' contention that the retention of similar examples results in the Secretary's maintenance of the step two threshold at a level which denies benefits to individuals that meet the statutory definition of disability.

QUALITY ASSURANCE RETURNS

Plaintiffs assert that the Secretary periodically conducts “quality assurance returns,” requesting state Disability Determination Services (DDSs) to re-evaluate a case when it is felt that the case was improperly evaluated. Plaintiffs assert that from October, 1985 through February 11, 1988, there were returns in approximately 69 cases requesting state DDS agencies to reevaluate whether the claimant set the severity threshold. See Exhibit “M” attached to plaintiffs' undisputed facts (docket No. 7). While each of the 69 claimants had previously been granted benefits, 47 were denied benefits upon re-evaluation. Plaintiffs assert that this statistic demonstrates that step two is applied in a manner which, in violation of Yuckert, denies benefits to individuals whose claims for benefits would otherwise survive later steps of the sequential evaluation process.

The outcome of 69 of what defendant represents were hundreds of thousands of cases considered by state DDS's from October, 1985 through February, 1988, is far too small a number to be probative of systematic misapplication. To the contrary, the statistically insignificant request for re-evaluation in only 69 cases nationwide over this period of time suggests that on a broader scale, as a percentage of total cases, the Secretary is not attempting to use the severity step in anything more than a de minimis manner. The court notes that plaintiffs neither assert nor have they attempted to show that the 47 claimants in question were entitled to benefits.

Plaintiffs further urge that SSR 85-28 “continues the illegal practice of considering impairments ”not severe“ even though they affect the claimant's ability to do past work.” In support, plaintiffs point to that part of SSR 85-28 which provides as follows:

At the second step of the requested evaluation, then, medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities. If this assessment shows the individual to have the physical and mental ability(ies) necessary to perform such activities, no evaluation of past work....is needed.

Id.

Plaintiffs state that SSR 85-28 limits the foregoing proposition by not allowing a denial at the severity step where “the person cannot perform his or her past relevant work because of the unique features of that work.....” Plaintiffs then argue that a screening procedure which permits denial where a claimant's impairment prevents return to past work in not the type of de minimis screening step acknowledged as permissible under Yuckert.

In making this argument, plaintiffs disregard SSR 85-28's explicit direction that basic work activities are the abilities and aptitudes necessary to do most jobs, and that “in the absence of contrary evidence, it is reasonable to conclude that an individual whose impairment do not preclude the performance of basic work activities is, therefore, able to perform his or her past relevant work.” Id. See also Yuckert 482 U.S. at 153, n.11, 96 L.Ed 2d at 134 n. 11. Yuckert noted that “[t]he severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.” Id., 482 U.S. at 153, 96 L.Ed. 2d at 134. A fair reading of SSR 85-28 belies plaintiffs' overly constricted interpretation. The language discussing “unique features of past relevant work” is clearly an additional caution within an SSR which already directs evaluators to use great care. Plaintiffs' continuing misapplication claim based on the language of SSR 85-28 is without merit.

Based upon the foregoing analysis and discussion regarding the claimed systematic misapplication of the severity regulations, the court finds that plaintiffs have failed to establish their right to judgment.

In reviewing defendant's cross-motion for summary judgment on the systematic misapplication issue, the court is mindful that its function “is not to weigh the evidence, but rather to determine as a matter of law whether there are genuine factual conflicts.” Agristor Leasing v. Farrow 826 F.2d 732, 734 (8th Cir. 1987). Of course, and as noted earlier, “in making this determination, the court is required to view the evidence in the light most favorable to the non-moving party and to give that party the benefit of all reasonable inferences to be drawn from the underlying facts.” Id. However, “there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L.Ed. 2d 202, 212 (1986) (citations omitted). Stated differently, if the record as a whole does not contain evidence from which reasonable jurors might conclude that plaintiffs have met their burden of proof, summary judgment may be granted in favor of defendant. Perry v. Kunz, 878 F.2d 1056, 1060 (8th Cir. 1989).

In light of the foregoing standards, and upon consideration of the entire record submitted by plaintiffs, the court finds no dispute as to any material fact. The court concludes that the statistical and other evidence submitted by plaintiffs is merely colorable at best, and not significantly probative of systematic misapplication.11 While plaintiffs' statistics show a substantial national increase in severity disallowances after promulgation of the step two regulations, that dramatic increase is not demonstrated by plaintiffs' statistics with respect this class of Iowa plaintiffs. Similarly, the policy statements, internal documents, quality assurance returns and uncited court cases fail to breathe life into plaintiffs' systematic misapplication claim. Accordingly, the court concludes that defendant is entitled to summary judgment on this point.

In denying relief, the court does not mean to suggest that the Secretary has uniformly properly applied the severity standard. To the contrary, and as observed in Johnson v. Bowen, supra, “the court has little doubt that the [Secretary] has not consistently applied a de minimis severity standard in each individual case.” Id., 697 F.Supp. at 351 n.6 (citations omitted). Nevertheless, and in accordance with this court's observation regarding plaintiffs' “court cases” assertion, infra, class relief is not the remedy for random misapplication. Those random class members who upon rehearing believe their claims have been subjected to an improper severity standard, i.e., greater than de minimis, may individually appeal from the denial of their claims.

COMBINED IMPAIRMENTS

Prior to the passage of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 460, 98th Cong., 2d Session 98 Stat. 1794, the Secretary did not consider the combined effects of unrelated impairments unless all were severe and expected to last twelve months. 20 CFR §§404.1522, 416.922 (1984). The court previously concluded that the Secretary's former policy of refusing to consider the combined effect of impairments which were individually found to be not severe violated the Social Security Act. The Secretary asserts that the analytical framework of Yuckert did not even discuss the combination of non-severe impairments issue. Nevertheless, the Secretary now attempts to rekindle his argument, urging that the statutory definition of disability uses the term “impairment” in the singular. See § 423(d)(1)(A). From this use of the singular term “impairment,” the Secretary argues that his pre-1985 regulation requiring that a claimant have at least one impairment that satisfies the severity standard was consistent with the statute. Similarly, the Secretary urges that the 1984 amendment to the Social Security Act requiring him to consider the combined effect of impairments without regard to severity was a substantive change in the law, rather than a legislative clarification.

The use of the singular term “impairment” in 42 USC § 423(d)(1)(A) “cannot bear the weight the Secretary ascribes to it.” Bailey v. Sullivan, supra, 885 F.2d at 60. Congress has not yet seen the need to alter the singular term in § 423(d)(1)(A) even though Congress explicitly clarified the evaluation process by requiring the Secretary to consider the combined effect of all impairments without regard to their individual degree of severity in § 423(d)(2)(C). Additionally, the court rejects the Secretary's contention that the 1984 amendment created new law rather than clarifying existing law. Bailey v. Sullivan, supra, 885 F.2d at 61; Johnson v. Heckler, 769 F. 2d 1202, 1214 (7th Cir. 1985) rehearing en banc denied, 776 F.2d 166, vacated and remanded on other grounds, 482 U.S. 922, 96 L.Ed. 2d 690 (1987), modified on other grounds, 697 F.Supp. 346 (N.D. Ill. 1988), later proceeding 714 F.Supp. 1476 (N.D. Ill. 1989).

Absent explicit Supreme Court approval of the Secretary's former practice, the court sees no reason to disturb its earlier invalidation of the non-combination policy mandated by 20 CFR §§ 404.1522 and 416.922 and SSR 82-55 and that part of SSR 82-56 which pertains to non-severe impairments. Bailey v. Sullivan, supra, 885 F.2d at 60-61; Johnson v. Bowen, supra, 697 F.Supp. at 352-353. The Secretary shall be required to identify class members affected by the former policy, and to reconsider the claims of these individuals.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Defendant urges that those claimants who failed to exhaust administrative remedies may not now have their claims reconsidered. In support, defendant cites Pittston Coal Group v. Sebben, 109 S.Ct. 414, 102 L.Ed. 2d 408 (1988), and City of New York v. Bowen, 476 US 476, 90 L.Ed. 2c 462 (1987).

The class defined by this court's order of February 28, 1985 is limited to claimants:

Who are pursuing or will pursue timely administrative or judicial appeals, or, if not pursuing timely appeals, who have received or will receive an adverse decision at any level of the administrative review process on or after July 1, 1984.

The complaint in this case was filed on August 30, 1984. Pursuant to the foregoing order, only those claimants who were then currently engaged in the administrative process or who had received a decision sixty days or less from the filing of the complaint were included in the class. Upon the filing of the complaint, any then unexpired limitation period was tolled for all class members. See 7B Wright & Miller, Federal Practice and Procedure, § 1800 at 455 (2d Ed. 1986). Accordingly, this class certification does not raise the prospect of the resurrection of claims to which the bar of res judicata has attached. The class defined in this case does not present a situation where the court is compelling “the readjudication of claims decided under erroneous standards but not directly appealed to the courts within the time prescribed.” Pittston Coal Group v. Sebben, supra, 102 L.Ed. 2d at 416. Pittston Coal Group v. Sebben is thus distinguishable, and therefore defendant's reliance on that case is misplaced. This court waived only the futile requirement that plaintiffs with then live claims continue to work their way through administrative channels until exhaustion of both the claimant and administrative remedies. The court did not waive any claimant's failure to directly appeal or pursue administrative remedies.12 The court did not waive any claimant's failure to directly appeal or pursue administrative remedies within the time proscribed. The Secretary has not raised any matters which persuade the court to change its original view on the exhaustion question. Judicial waiver of exhaustion of administrative remedies continues to be appropriate as it pertains to the plaintiffs entitled to relief in this class action. Bailey v. Sullivan, supra , 885 F.2d at 65. See also Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984), vacated and remanded, 476 U.S. 1167, 90L.Ed. 2d 974, reinstated, 804 F.2d 456 (8th Cir. 1987). The class thus includes all claimants that satisfied the foregoing requirements, yet who failed to exhaust administrative remedies or seek judicial review between the time the complaint was filed in this case and the time of the final decision on the merits.

As a final matter and in accordance with the foregoing analysis and discussion, the court shall deny plaintiffs' request for an order enjoining (1) the use of the severity regulations or (2) their use in a manner inconsistent with Yuckert. While the Secretary is bound to follow Yuckert, the court has found no Yuckert violation.

The court's order of October 21, 1985, as amended November 27, 1985, having been vacated, this order shall be entered in its stead. All issues before the court in this matter have been resolved herein.

It is therefore

ORDERED

  1. Defendant's motion to dismiss is denied.

  2. Defendant's motion for summary judgment on the facial validity of the severity regulations is granted.

  3. Plaintiffs' motion for an order enjoining the Secretary from using the severity regulations inconsistently with Yuckert is denied.

  4. Re: Systematic misapplication of the severity regulations:

    Plaintiffs' motion for summary judgment denied;

    Defendant's motion for summary judgment granted;

    Plaintiffs' misapplication claim is dismissed.

  5. Re: Secretary's former policy of refusing to consider combined effect of non-severe impairments:

    Defendant's motion for summary judgment denied;

    Plaintiffs' motion for summary judgment granted.

    It is declared that the defendant's former policy of refusing to consider the combined effect of impairment which were individually found not to be severe was contrary to the plain meaning of 42 USC §§ 423(d)(2)(A) and 1382c(a)(3)(B) and therefore violated the Social Security Act.

  6. By not later than Friday, April 20, 1990, defendant shall establish procedures for the identification of all class members affected by the Secretary's former policy of refusing to combine non-severe impairments, to-wit, those claimants or recipients whose benefits were denied or terminated at step two of the five-step eligibility test, and whose multiple non-severe impairments were not considered in combination pursuant to 20 CFR §§404.1522 and 416.922, and SSRs 82-55 and 82-56. Defendant shall contemporaneously issue and distribute instructions for compliance with this order, including procedures for the identification of class members and the evaluation of their claims.

  7. Defendant shall forthwith provide plaintiffs' attorneys with copies of all memoranda, notices, instructions, directives, and any other documents issued to effect compliance with this order as those documents are issued.

  8. Upon identification of the affected class members, the Secretary shall:

    1. forthwith notify these class members that their claim for benefits is being reviewed, that the prior denial or termination may have been in error, and that the claimant will be entitled to retroactive benefits if it is determined that the prior determination was erroneous;

    2. in accordance with paragraphs 7 and 8 of the court's order of October 21, 1985, as amended on November 27, 1985, reconsider the claims of these class members, taking into consideration the combined effect of all impairments, and considering each class member's claim for the entire time period from the date of the original application to the date of the reconsideration. See Johnson v. Sullivan, 714 F.Supp. 1476, 1481 (N.D. Ill. 1989);

    3. reinstate benefits pending reconsideration of the claim(s) of any of these class members whose benefits were terminated; and

    4. grant retroactive benefits to class members who, upon reconsideration, are found disabled.

    The Secretary shall implement this relief with all deliberate speed.

  9. By not later than April 20, 1990, defendant shall transmit a copy of this order and instructions to comply herewith to all appropriate personnel within the Social Security Administration, including ALJ's and the Appeals Council.

March 26, 1990.

  _________________/s/__________________
  Edward J. McManus, Judge
  UNITED STATES DISTRICT COURT
__________/s/____________  
Deputy Clerk  

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA

[Date Filed: 4/25/90]

MULINDA CAMPBELL, Individually, and  
on behalf of all other similarly Amended
situated individuals, JUDGMENT IN A CIVIL CASE

v.

 
LOUIS W. SULLIVAN, M.D. Secretary of  
Health and Human Services of the  
United States, Case Number: C 84-2085
___ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
_X_ Decision by Court. This action came to decision before the Court. The issues have been decided and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

  1. Defendant's motion to dismiss is denied.

  2. Defendant's motion for summary judgment on the facial validity of the severity regulations is granted.

  3. Plaintiffs' motion for an order enjoining the Secretary from using the severity regulations inconsistently with Yuckert is denied.

  4. Re: Systematic misapplication of the severity regulations:

    Plaintiffs' motion for summary judgment denied;

    Defendant's motion for summary judgment granted;

    Plaintiffs' misapplication claim is dismissed.

  5. Re: Secretary's former policy of refusing to consider combined effect on non-severe impairments:

    Defendant's motion for summary judgment denied;

    Plaintiffs' motion for summary judgment granted.

    It is declared that the defendant's former policy of refusing to consider the combined effect of impairments which were individually found not to be severe was contrary to the plain meaning of 42 USC §§ 423(d)(2)(A) and 1382c(a)(3)(B) and therefore violated the Social Security Act.

  6. By not later than Friday, April 20, 1990, defendant shall establish procedures for the identification of all class members affected by the Secretary's former policy of refusing to combine non-severe impairments, to wit, those claimants or recipients whose benefits were denied or terminated at step two of the five step eligibility test, and whose multiple non-severe impairments were not considered in combination pursuant to 20 CFR §§ 404-1522 and 416.922, and SSRs 82-55 and 82-56. Defendant shall contemporaneously issue and distribute instructions for compliance with this order, including procedures for the identification of class members and the evaluation of their claims.

  7. Defendant shall forthwith provide plaintiffs' attorneys with copies of all memoranda, notices, instructions, directives, and any other documents issued to effect compliance with this order as those documents are issued.

  8. Upon identification of the affected class members, the Secretary shall:

    1. forthwith notify these class members that their claim for benefits is being reviewed, that the prior denial or termination may have been in error, and that the claimant will be entitled to retroactive benefits if it is determined that the prior determination was erroneous;

    2. in accordance with paragraphs 7 and 8 of the court's order of October 21, 1985, as amended on November 27, 1985, reconsider the claims of these class members, taking into consideration the combined effect of all impairments, and considering each class member's claim for the entire time period from the date of the original application to the date of the reconsideration. See Johnson v. Sullivan, 714 F.Supp. 1476, 1481 (N.D. Ill. 1989);

    3. reinstate benefits pending reconsideration of the claim(s) of any of these class members whose benefits were terminated; and

    4. grant retroactive benefits to class members who, upon reconsideration, are found disabled.

    The Secretary shall implement this relief with all deliberate speed.

  9. By not later than June 4, 1990, defendant shall transmit a copy of this order and instructions to comply herewith to all appropriate personnel within the Social Security Administration, including ALJ's and the Appeals Council.

Approved as to form

_____________/s/_______________ Edward J. McManus, Senior Judge
U.S. District Court


April 25, 1990
_______________________________
Date
WILLIAM J. KANAK
______________________________
Clerk
_____________/s/______________
By Chief Deputy Clerk, Cheryll S. Scot
 
U.S. Department of

United States Attorney
Northern District of Iowa
____________________________________________________________________________
 
425 Second Street, S. E., Suite 950
Cedar Rapids, Iowa 52401
  November 5, 1990
Honorable Edward J. McManus
United States District Court
U. S. Courthouse
1st Street and 1st Avenue, SE
Cedar Rapids, IA 52401
 

Re:   Campbell v. Sullivan; C 84-2085

Dear Judge McManus:

Through negotiations the parties have arrived at a stipulation which would implement your April 25, 1990, Order in this case. So there are no misunderstandings, we would ask that you sign off on the stipulation so there will be a document of record relating to implementation of your Order.

Please let me know if this procedure is unacceptable. Thank you.

  Sincerely,
 
CHARLES W. LARSON
United States Attorney

By:
__________/s/____________
ROBERT L. TEIG
Assistant United States Attorney

RIT/lah

cc: Martin Ozga
Lawrence A Lavey

[DATE FILED: 11/19/1990]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

MULINDA CAMPBELL, Individually, and    
on behalf of all other similarly    
situated individuals,    
    NO. C 84-2085

Plaintiffs,

   

vs.

  ORDER
LOUIS W. SULLIVAN, M.D.    
Secretary of Health and Human    
Services of the United States,    

Defendant.

   

This matter is before the court on a letter and stipulation received from defendant's counsel on November 5, 1990. The Clerk shall file the letter and stipulation.

In his letter, defendant makes the representation that the parties have entered into a stipulation as to the implementation of paragraph 8(a) of the court's amended judgment of April 25, 1990, and defendant has supplied the original signed stipulation. Defendant asserts that the parties wish to have the court sign the stipulation so that there will be a document of record relating to implementation of the court's order.

It is the court's view that the parties' wishes regarding the creation of a record will be satisfied by causing the stipulation to be filed as it presently exists, without the court's signature.

It is therefore

ORDERED

The Clerk shall file defendant's letter and the parties' stipulation.

November 19, 1990.

_________/s/_______
   Deputy Clerk

__________/s/____________
Edward J. McManus, Judge
UNITED STATES DISTRICT COURT

   

[DATE FILED: 11/19/1990]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

MULINDA CAMPBELL, *  
Individually and on behalf *  
of all other similarly *  
situated individuals, * NO. C 84-2085

Plaintiffs,

*  
     
v. *  
LOUIS W. SULLIVAN, M.D. * STIPULATION
Secretary of Health and *  
Human Services, *  

Defendant.

*  

IT IS STIPULATED by plaintiffs and defendant, through their respective counsel, that paragraph 8(a) of the Court's April 25, 1990 Amended Order shall be implemented by the following procedures:

  1. The Social Security Administration (SSA) shall, by means of its data processing systems identify the names, Social Security numbers and last known addresses of potential class members who between July 1, 1984 and November 30, 1984 had a disability claim denied, or whose disability benefits were terminated based upon finding that he or she did not have a severe impairment.

  2. SSA shall send a notice by first class mail to each potential class member identified pursuant to paragraph 1 of this stipulation at his or her last known address. These notices will instruct the potential class member to return an enclosed preaddressed postage paid postcard or form within 30 days from receipt of the notice if he or she wishes to receive relief pursuant to the Court's Amended Order and Opinion.

  3. If a potential class member receives a notice and does not respond within the required 30 days, he or she may be denied class member status absent a finding of “good cause” for late filing under the current instructions for “good cause” as defined in § GN 03101.020 of SSA's Programs Operations Manual System.

  4. An individual who had a claim readjudicated pursuant to Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984) which is duplicative of the issues addressed in his or her Campbell claim will not receive a notice or readjudication.

  5. For those individuals who respond to the notice, SSA will locate (and/or reconstruct, if necessary) and screen the applicable claims folders to determine if they are class members. Those individuals who have been determined not to be class members will be notified in writing of such determination and will be further informed of their right to a review thereof, in accordance with the procedures set forth in ¶ 6 of this Stipulation.

  6. Individuals who disagree with a finding that they do not meet the class membership criteria, may contact or write plaintiffs' class counsel for additional review. Class counsel may, within 60 days of the date of the class membership determination notice, in turn notify in writing an individual to be designated in the Office of the General Counsel, Department of Health and Human Services, Social Security Administration, Altmeyer Building, 6401 Security Boulevard, Baltimore Maryland 21235, that he wishes to review the individual's claims file. Within 45 days of class counsel's written request to review the file, SSA will make available that individual's claim file at a designated SSA field office location in Iowa, and notify class counsel in writing. At the expiration of 45 days after the written notification to class counsel, if class counsel has still not reviewed the file, it shall be assumed that class counsel no longer wishes to review the claims file and the agency's non-class membership determination shall become final. If class counsel's review of the file establishes that there is a dispute as to whether the individual is a class member, class counsel will again notify the Office of the General Counsel, Department of Health and Human Services. Both parties will then have authority to resolve the dispute by negotiation. In the event the parties are unable to settle the dispute, either party may submit any unresolved dispute to the Court for final resolution by proper motion.

  7. After the class member's record is updated, his or her claim will be reopened. The reopening shall be at the reconsideration level, with determinations being appealable to an Administrative Law Judge upon request made pursuant to the procedures set forth at 20 C.F.R. §§ 404.933, 416.1433. Appeal an Administrative Law Judge decision will be to the Appeals Council, upon request made pursuant to the procedures set forth at 20 C.F.R. §§ 404.968, 416.1468. Class members will retain right to judicial review as provided in 42 U.S.C. §§ 405 (g) and 1383(c)(1) and (3). (See paragraph 6 above for resolution of disputed class membership).

  8. A class member with a current claim active and pending at any administrative level of review will have all other claims covered by the Court's Order and Judgment consolidated with the current claim.

  9. In the event that a notice mailed pursuant to paragraph 2 of this Stipulation is returned as undeliverable, SSA will attempt to obtain updated addresses by providing a computer tape to the Iowa State Department of Social Services, with a request for the performance by the letter of a computerized match with public assistance, food stamp and/or other relevant records. SSA will thereafter mail a second notice to all potential class members for whom updated addresses are obtained, and will have no further obligation to locate those individuals whose current addresses have not been obtained despite the efforts undertaken pursuant to this Stipulation.

ATTORNEY FOR PLAINTIFFS

_____________/s/_______________
MARTIN OZGA
Legal Services Corp.
of Iowa
315 East Fifth
Suite 22
Des Moines, Iowa 50309
ATTORNEYS FOR DEFENDANT
_____________/s/_______________
ROBERT L. TEIG
Assistant United States
Attorney
425 Second Ave., S.E.
Suite 950, The Center
Cedar Rapids, Iowa 52401

OF COUNSEL:

DONALD A. GONYA
Chief Counsel for Social
Security
RANDOLPH W. GAINES
Deputy Chief Counsel for
Social Security

A. GEORGE LOWE
Deputy Chief Counsel for
Social Security
Disability Litigation

By _____________/s/_______________
LAWERENCE A. LEVEY
Attorney
Office of the General Counsel
Social Security Division
Department of Health and
Human Services
6401 Security Boulevard
Room 639 Altmeyer Building
Baltimore, Maryland 21235

SO ORDERED:


_____________/s/_______________
EDWARD J. MCMANUS, Senior Judge

_______________________________
Date

1 While the court cites to the 1989 regulations, these regulations have remained essentially unchanged since the 1980 codification of the sequential evaluation process. See footnote 9, infra.

2 SSR 82-55 was rescinded in April of 1985. See SSR 85-III II.

3 SSR 82-56 was superseded by SSR 86-8, which mandates consideration of the combined effects of impairments without regard to whether they are individually non-severe.

4 The sixth count of the complaint, not addressed here, was that the Secretary's decision as to Mulinda Campbell was not supported by substantial evidence on the record as a whole. That count is no longer an issue in this case..

5 The claimant in Yuckert sought only Title II benefits. Nevertheless, the severity regulations for both Title II (20 CFR §404.1520(c)) and Title XVI (20 CFR 416.920(c)) are identical, and therefore the Yuckert decision applies with equal force to Title XVI claims.

6 See Justice O'Connor's [illegible].

7 See 20 CFR §404.1502(a) (1961).

8 See 20 CFR 416.904(1978).

9 See 45 Fed. Reg. 55566 (August 20, 1980), 20 CFR §§404.1520, 416.920 (1981).

10 Justices O'Connor and Stevens, concurring, observed that statistical evidence showing an approximate 32% jump in disallowances after promulgation of the step-two regulations suggested step two had been systematically applied in a manner inconsistent with the statute. Yuckert, supra, 482 U.S. at 157, 96 L.Ed. 2d at 136. Justices Blackman, Brennan and Marshall, dissenting, agreed with this observation. Id., 482 U.S. at 179, 96 L.Ed. 2d at 150.

11 Cf. Justice O'Connor's concurring observation, noted infra, that misapplication was suggested by statistics showing an approximate 32% increase in denial of claims at the “not severe” stage after the promulgation of the step two regulations. Yuckert, supra, 482 U.S. at 157, 96 L.Ed. 2d at 136.

12 The court found the exhaustion requirement futile due to the fact that the challenge was addressed to the Secretary's established policy, and exhaustion was therefore “not likely to further distill agency policy.” Mental Health Association V. Heckler, 720 F.2d 965, 970 (8th Cir. 1983).

Attachment 2. CAMPBELL COURT CASE FLAG/ALERT

CAMPBELL COURT CASE FLAG/ALERT

                   TITLE: 

II       CATEGORY: 2

REVIEW     PSC      MFT   DOC       ALERT DATE

OFFICE
1160        1        A    B37         06/04/91


            FUN            NAME
                        NORMA J MILLARD

        SSN OR HUN     RESP DTE    TOE
        107-18-3286                840

   FOLDER LOCATION INFORMATION
TITLE   CFL   CFL DATE    ACN         PAYEE ADDRESS

 II     2910  00/00/00                NORMA J. MILLARD
                                      2310 MORENSEN DR
                                      APT 6
                                     AMES IA
                                     50010
    REVIEWING OFFICE:
    REHABILITATION EDUCATION AND SERVICES 
BRANCH
    DISABILITY DETERMINATION DIVISION
    510 EAST 12TH STREET, 2ND FLOOR
    DES MOINES, IOWA 50319

                        OR

                  APPROPRIATE DDS

Attachment 3. Route Slip on Case Flag for Screening

Campbell      Class      Action      Case

SCREENING            NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant may be a Campbell class member. The attached folder location information indicates that a current claim folder is pending in your office. Accordingly, we are forwarding the attached alert [and prior claim folder(s)] for association, screening for class membership, consolidation consideration and possible readjudication.

Please refer to HALLEX Temporary Instruction 5-4-15 for additional information and instructions.

TO: ______________________________

___________________________________

___________________________________

___________________________________

Attachment 4. Campbell Screen Sheet

Campbell SCREENING SHEET

1. SOCIAL SECURITY NUMBER
___ ___ ___ - ___ ___ - ___ ___ ___ ___

2. BIC

[___] [___]

DATE (Month, Day, Year)

Example: May 19, 1992 is 05-19-92

[__] [__] - [__] [__] - [__] [__]

[___] MEMBER (J)

[___] NONMEMBER (F)

3. NAME (First Name, Middle Initial, Last Name)

4. SCREENOUT CODE:
___ ___ (See item 10 for screenout codes)

5.  Is this a DIB, CDB claim or CBD claim (title II, excluding disabled widows & widowers, or an SSID claim?

__Yes       __No

(if No, go to 13)

6.  Did the individual reside in the State of Iowa at any time between July 1, 1984, and November 30, 1984, inclusive?

__Yes       __No

(if No, go to 10)

7.  Were benefits denied or ceased at any administrative level between July 1, 1984, and November 30, 1984, inclusive?

__Yes       __No

(if No, go to 10)

8.  Was the denial or cessation made on the basis of a finding of a “not severe” impairment(s) without considering the combination of multiple “not severe” impairments?

__Yes       __No

(if No, go to 10)

9. Did any of the determinations made between July 1, 1984, and November 30, 1984, inclusive, become final? (That is, if there was a determinatio ¦or decision on the same claim which was made after November 30, 1984, then the answer should be “NO.”)

__Yes       __No

(if No, go to 10)

10. If any answer is “NO”; the individual is not a class member. Enter the screenout code in Item 4 as follows:

Enter 05 if question 5 was answered “NO.”
Enter 06 if question 6 was answered “NO.”
Enter 07 if question 7 was answered “NO.”
Enter 08 if question 8 was answered “NO.”
Enter 09 if question 9 was answered “NO.”
Enter 10 if question 10 was answered “NO.” No other screenout code is appropriate.

SIGNATURE OF SCREENER

COMPONENT

DATE

Enter dates of all applications screened.

________________ _________________ ________________ _________________

Attachment 5. Route Slip for Routing Class Member Alert (and Prior Claim Folder(s)) to ODIO or PSC — OHA No Longer Has Current Claim

ROUTING AND TRANSMITTAL SLIP

DATE:

TO:

INITIALS

DATE

1.    
2.    
3.    
4.    
5.    
6.    
7.    
XX ACTION   FILE   NOTE AND RETURN
  APPROVAL   FOR CLEARANCE   PER CONVERSATION
  AS REQUESTED   FOR CORRECTION   PREPARE REPLY
  CIRCULATE   FOR YOUR INFORMATION   SEE ME
  COMMENT   INVESTIGATE   SIGNATURE
  COORDINATION   JUSTIFY    

REMARKS

CAMPBELL CASE

Claimant: ___________________________

SSN: ________________________________

OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the appropriate DDS for screening and possible readjudication. SEE POMS DI 42525.005 OR DI 12525.005.

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

FROM: Office of Hearings and Appeals __________________________________________ SUITE/BUILDING
PHONE NUMBER

OPTIONAL FORM 41 (Rev. 7-76)

*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA

FPMR (41 CFR) 101-11.206

Attachment 6. Non-Class Membership Notice

SOCIAL

SECURITY Important Information

NOTICE

______________________________________

From: Department of Health and Human Services

Social Security Administration

______________________________________

___________________________ DATE: __________________

___________________________ CLAIM NUMBER: __________________

___________________________

We are writing to tell you that we received your request to review your earlier claim for disability benefits under the Campbell, et al. v. Sullivan court decision. We have looked at your case and have decided that you are not a class member. This means that we will not review our earlier decision that you were not disabled. The reason you are not a class member under the Campbell court decision is checked below.

Why You Are Not a Class Member

You are not a Campbell class member because:

  • You did not reside in Iowa at any time between July 1, 1984, and November 30, 1984, inclusive.

  • As an Iowa resident, you did not receive a decision denying or terminating disability benefits at any administrative level between July 1, 1984, and November 30, 1984, inclusive.

  • You appealed the decision denying you disability benefits, and the appeal was decided after November 30, 1984.

  • There was no final denial or termination decision made on the basis of a finding that you did not have a severe impairment(s).

  • Your benefits were denied for some reason other than your medical condition. The reason was:

    ______________________________________________

We Are Not Deciding If You Are Disabled

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not a Campbell class member.

If You Are Disabled Now

If you think you are disabled now, you should fill out a new application at any Social Security office.

If You Have Any Questions

If you have any questions, you may contact your local Social Security office. If you call or visit one of our offices, please have this letter with you. It will help us answer your questions.

Additionally, if you have someone helping you with your claim, you should contact him or her.

A copy of this letter is being sent to the attorneys for the class. If they disagree, we may change our minds and look at your case again. If you disagree, you may write or call class counsel, who will answer your questions about class membership without charge. The name, address and telephone number of class counsel is:

Martin Ozga, Attorney
Legal Services Coporation of Iowa
312 Eighth Street, Suite 300
Des Moines, Iowa 50309
(515) 243-2151 (Des Moines Area)
1-800-532-1275 (Statewide)

Si usted no entiende esta carta, llevela a la oficina de Seguro Social arriba mencionada para que se la expliquen.

Attachment 7.

ROUTING AND TRANSMITTAL SLIP DATE:
TO: INITIALS DATE
1. SSA District Office    
2. Federal Building, Room 293    
3. 210 Walnut Street    
4. Des Moines, IA 50309    
5.    
6.    
7.    
XX ACTION   FILE   NOTE AND RETURN
  APPROVAL   FOR CLEARANCE   PER CONVERSATION
  AS REQUESTED   FOR CORRECTION   PREPARE REPLY
  CIRCULATE   FOR YOUR INFORMATION   SEE ME
  COMMENT   INVESTIGATE   SIGNATURE
  COORDINATION   JUSTIFY    

REMARKS

CAMPBELL CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Campbell class member. (See screening sheet and copy of non-class membership notice in the attached claim folder(s).) SEE POMS DI 12525.005

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

FROM:

Office of Hearings and Appeals

__________________________________________

SUITE/BUILDING
PHONE NUMBER

OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206

Attachment 8. Class Membership Notice

SOCIAL

SECURITY Important Information

NOTICE

______________________________________

From: Department of Health and Human Services

Social Security Administration

______________________________________

___________________________ DATE: __________________

___________________________ CLAIM NUMBER: __________________

___________________________

We are writing to tell you that we received your request to review your earlier claim for disability benefits under the Campbell, et al. v. Sullivan court decision. We have looked at your case and have decided that you are a class member. This means that you will have a new chance to prove your claim. The new review will use the standards set by the Court.

Additional Evidence

We expect to receive many requests for review and it may take several months before we review your file. In the meantime, you will be contacted to submit medical and other evidence about your past and current condition.

You May Be Eligible To Have Benefits Started Again

If you were already receiving disability benefits when we terminated your earlier claim, you may be eligible to have your benefits started again for the current month and continue until we decide your case. If this applies in your case, we will get in touch with you and tell you how to get these monthly benefits.

If You Have Any Questions

If you have any questions, you may call, write, or visit any Social Security office. Most questions can be answered by telephone. If you have a representative or someone helping you with your claim, you should contact him or her. If you do not, you may contact one of the Legal Aid offices in you area or you may contact:

Martin Ozga, Attorney
Legal Services Corporation of Iowa
312 Eighth Street, Suite 300
Des Moines, Iowa 50309
(515) 243-2151 (Des Moines Area)
1-800-532-1275 (Statewide)

Attachment 9. Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments”

DEPARTMENT OF HEALTH & HUMAN SERVICES Social Security Administration
____________________________________________________________________________

Refer to:

February 21, 1991

Office of Hearings and Appeals
PO Box 3200
Arlington VA 22203

MEMORANDUM TO:

Headquarters Executive Staff
Appeals Council Members
Regional Chief Administrative Law Judges
Hearing Office Chief Administrative Law Judges
Supervisory Staff Attorneys
Decision Writers

FROM: Acting Associate Commissioner
SUBJECT: The Standard for Evaluating “Not Severe” Impairments — ACTION

During the past few months, the Office of the General Counsel (OGC) has requested voluntary remand in a number of cases, denied by the Secretary at step two of the sequential evaluation, on the grounds that the decisions have not been fully consistent with SSA policy and the Supreme Court's opinion in Bowen v. Yuckert, 482 U.S. 137 (1987).

Despite the Yuckert decision, extensive litigation, both in individual cases and in significant class actions, continues on the issue of how the Agency applies the step two standard expressed in Social Security Ruling (SSR) 85-28. Because the courts continue to give step two denials close scrutiny, I am asking all adjudicators and decision writers to carefully review SSR 85-28 to ensure that they are applying the proper standard for adjudicating claims at step two.

In accordance with SSR 85-28, a step two denial is appropriate only in very limited situations. The evidence must establish that the claimant's impairment, or combination of impairments, is so slight that it does not have more than a minimal effort on the individual's ability to perform basic work activities. When the medical evidence is inconclusive and does not clearly establish the effect of a claimant's impairment(s), or when the evidence shows more than a minimal effect, the claim may not be denied at step two.

Decisions denying claims at step two must include a comprehensive analysis of all the evidence of record and a decisional rationale consistent with SSR 85-28. Even when the medical evidence of record clearly fails to establish that the claimant has more than a slight mental or physical abnormality, the decision must clearly show that the adjudicator evaluated all the evidence and must articulate the reasons for finding that the impairment(s) is not severe. Furthermore, when the claimant has a medically determinable impairment(s) which might reasonably be expected to cause pain or other symptoms, the decision must include an evaluation of the claimant's subjective complaints using the factors outlined in SSR 88-13 or its equivalent, i.e., SSR 90-lp for Fourth Circuit cases.

If hearing office personnel have questions or need copies of applicable instructions, they should contact the appropriate Regional Office. Regional Office Personnel should direct their questions to the Division of Field Practices and Procedures, Office of the Chief Administrative Law Judge.

  ______________/s/_______________
  Lawrence W. Mason for Andrew J. Young

Attachment 10.

Campbell Class Action Case

READJUDICATION            NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Campbell class member. After expiration of the retention period, forward claim folder(s) to the ____________________ DDS for readjudication.

If the claimant has filed a civil action and elected to remain in court for review of the subsequent claim, forward the Campbell claim folder(s) without delay to the ____________________ DDS for readjudication.

Send folders to: (Insert name and address of appropriate DDS)

_______________________________________
_______________________________________
_______________________________________
_______________________________________
(Destination code: ____)

Attachment 11. ALJ Dismissal to DDS

DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

IN THE CASE OF CLAIM FOR
__________________________ __________________________
__________________________ __________________________

This case is before the Administrative Law Judge pursuant to a request for hearing filed on _________________ with respect to the application(s) filed on _________________.

In accordance with an order of the United States District Court for the Northern District of Iowa in the case of Campbell, et al. v. Sullivan, No. C 84-2085 (N.D. Iowa Apr. 25, 1990), the claimant has requested review of the final (determination/ decision) on the prior application(s) filed on ______________. The claimant has been identified as a Campbell class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Campbell final judgment order. Because the claimant's current claim shares certain common issues with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the _______________________ Disability Determination Service which will conduct the Campbell readjudication.

The disability determination service will notify the claimant of its new determination and, if unfavorable, give notice of the claimant's right to file a new request for hearing.

 

_________________________
Administrative Law Judge
_________________________
Date

Attachment 12. Notice Transmitting ALJ Order of Dismissal

NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the _______________ Disability Determination Service which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge has sent your current claim and your Campbell class member claim back to the ______________ Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

The ____________________ Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the ______________ Disability Determination Service within 30 days, contact your local Social Security office.

Do You Have Any Questions?

If you have any questions, contact your local Social Security office. If you visit your local Social Security office, please bring this notice and the Administrative Law Judge's order with you.

Enclosure

cc:
(Name and address of representative, if any)
(Social Security Office (City, State))

Attachment 13. Cambell Class Member Flag for HO Use (DDS Readjudication)

Campbell Class Action Case

READJUDICATION            NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Campbell class member. The attached Campbell claim folder was forwarded to this hearing office for possible consolidation with a current claim.

  • The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.

    OR

  • The claims have not been consolidated because:

    ______________________________________________

    ______________________________________________

Accordingly, we are forwarding the attached alert and prior claim folder(s) to your location for any necessary Campbell readjudication action.

We are sending the alert and prior folder(s) to:

(Insert name and address of appropriate DDS)

____________________________________________

____________________________________________

____________________________________________

____________________________________________

(Destination code: _____ )