I-5-4-1-A.Modification of Morrison, Doe & Decker Settlement Agreement

I. Purpose

This Temporary Instruction (TI) provides guidance for implementing the October 22, 1991 order of the United States District Court for the Western District of Washington in the Morrison, Doe & Decker v. Sullivan class action, which involves multiple disability issues. Issues relevant to this order concern the evaluation of treating physician opinion and obtaining consultative examinations and medical evidence of record.

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

II. Background

On April 4, 1989, the district court approved a stipulated settlement agreement that required, among other things, continued compliance with the amended preliminary injunction of June 16, 1983, continued compliance with the second preliminary injunction of August 20, 1984, and the implementation of a December 16, 1988 order for readjudication of certain first injunction cases with respect to the evaluation of treating physician opinion. The 1989 settlement agreement also included a provision wherein the Secretary reserved the right to seek modification of the agreement in the event of a change in controlling precedent, governing statute or applicable valid regulation.

On August 1, 1991, a change in the applicable valid regulation occurred when the Secretary published final regulations, “Standards for Consultative Examinations and Existing Medical Evidence.” These regulations also included guidance on the evaluation of treating physician opinion. Accordingly, the Secretary notified the court of his desire to substitute the new regulations for the relevant provisions of the amended first and second preliminary injunctions and the December 1988 order. After briefing by the parties, the court, on October 22, 1991, granted the Secretary's motion for modification. The court also stated that its order did not preclude any person from filing suit to challenge the validity of the new regulations or any actions taken thereunder.

III. Guiding Principles

Paragraph C of the amended first preliminary injunction, paragraph 2 of the second preliminary injunction and paragraph 2 of the readjudication order are no longer in effect.

Paragraph C of the amended first preliminary injunction enjoined the Secretary from failing to apply the standards enunciated in Day v. Weinberger, 552 F.2d 1154 (9th Cir. 1975) and Rhodes v. Schweiker, 660 F.2d 722 (9th Cir. 1981).

Paragraph 2 of the second preliminary injunction required SSA to: 1) purchase consultative examinations from nontreating sources only after asking specific questions of the treating source in an effort to obtain supplemental information for adjudication prior to the purchase of a consultative examination; 2) purchase such examination only after making efforts to purchase a consultative examination from the treating source; and 3) document reasons for purchasing a consultative examination from a nontreating source.

Paragraph 2 of the readjudication order required the Secretary to distribute Appendix A of the court's order to all Disability Determination Service and SSA staff members responsible for adjudicating class member claims. Appendix A contained the district court's ruling on the standards to be applied in deciding claims involving the opinion(s) of one or more treating physicians who have examined the claimant.

The regulations published on August 1, 1991 must be applied in their entirety to all initial and continuing disability claims under titles II and/or XVI of Washington State residents. This includes Morrison class member which have been consolidated at the OHA level with pending subsequent claims.

The Secretary must continue to comply with the remaining provisions of the April 1989 settlement order.

IV. Inquiries

Hearing office 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 (FTS) 305-0022.