I-5-4-1.Morrison, Doe & Decker v. Secretary
Table of Contents
I |
Purpose |
II |
Guiding Principles (Cross-Reference Section III. “Guiding Principles” of I-5-4-1-A) |
III |
Definition of Class |
IV |
Determination of Class Membership and Preadjudication Actions |
V |
Processing and Adjudication |
VI |
Case Coding |
VII |
Inquiries |
Attachment 1 |
Orders dated March 3, 1987; April 21, 1988; and December 16, 1988, with Appendix A, of the U.S. District Court for the Western District of Washington |
Attachment 2 |
Stipulation of Settlement and Compromise Dated April 4, 1989 |
Attachment 3 |
Screening Sheet |
Attachment 4 |
Case Flag for Screening |
Attachment 5 |
Notice of Nonclass Membership |
Attachment 6 |
Case Flag for Redetermination |
Attachment 7 |
Sample Diswmissal Order |
Attachment 8 |
Sample Acknowledgment Notice — Reinstated Request for Hearing |
Attachment 9 |
Sample Acknowledgment Notice — Request for Hearing on Morrison Redetermination |
ISSUED: June 7, 1990
I. Purpose
This Temporary Instruction (TI) sets forth the rules for implementing the
December 16, 1988, order of the U.S. District Court for the Western
District of Washington in Morrison, Doe &
Decker to “[r]edetermine, and readjudicate if and to the
extent necessary” certain cases involving treating physician
opinion. In addition, it sets forth the April 4, 1989, settlement
agreement to readjudicate, at the initial or reconsideration level,
certain cases involving evaluation of disability from alleged alcoholism
or drug addiction. The settlement agreement incorporates by reference the
December 16, 1988, order. The settlement agreement also provides that if
SSA learns the identity of any class member whose case has not been
reviewed under the Morrison standards, we must
notify the class member of the availability of review.
The court order and the settlement agreement must be implemented
simultaneously. Adjudicators throughout the country must be thoroughly
familiar with this TI, since Morrison class
members who now reside outside Washington State must have their cases
processed in accordance with these instructions.
The Disability Determination Service (DDS) in the state of the claimant's
current residence, usually Washington State, will ordinarily conduct the
Morrison redeterminations. However, under certain
circumstances OHA will consolidate the Morrison
redetermination (see sections V.B. and V.E. below).
II. Guiding Principles (Cross-Reference Section III. “Guiding Principles” of I-5-4-1-A)
The court-ordered standard for evaluating treating physician opinion
(Appendix A to the court's December 16, 1988, order — Attachment 1),
is consistent with SSA policy; however, Administrative Law Judges and
Appeals Council Members must specifically use and cite the court's
standard in the rationale when evaluating class member claims.
Pursuant to the settlement agreement (Attachment 2), Administrative Law
Judges and Appeals Council Members must continue to follow the appropriate
regulations and rulings, which are consistent with
Griffis, in evaluating claims involving alleged
alcoholism or drug addiction standing alone.
Griffis subclass redetermination processing is
the same as Morrison redetermination processing.
Administrative Law Judges and Appeals Council Members must also continue
to apply the provisions of the first and second injunctions to the claims
of all Washington State residents, as set forth below.
The May 27, 1983, injunction of the U.S. District Court for the Western
District of Washington required SSA to:
apply a medical-improvement standard in disability cessation cases;
(in accordance with Griffis v. Weinberger, 509
F.2d 837 (9th Cir. 1975)), evaluate alleged alcoholism or drug addiction
as an impairment which, standing alone, can, if severe enough, amount to
a disability under the Social Security Act; and
(in accordance with Day v. Weinberger, 522 F.2d
1154 (9th Cir. 1975) and Rhodes v. Schweiker, 660
F.2d 722 (9th Cir. 1981)), expressly state in its determinations and
decisions clear and convincing reasons for rejecting a treating
physician's uncontradicted opinion about a claimant's disability.
The court defined the class as follows:
“All persons who are Washington residents and who have filed
applications for Social Security Title II benefits (excluding applicants
for widow's, surviving divorced wives' or widower's disability benefits)
or SSI disability benefits and who have had their claims for disability
benefits evaluated by the DDS under the defendant's regulations, policies
and practices, and who have been found not disabled by defendant whether
in an initial determination or reconsideration determination, or who,
having been initially found eligible for disability benefits, have had
those benefits terminated in a continuing eligibility review.”
Originally, the class included those applicants and recipients who were
residents of Washington State and whose claims were administratively
active on or after a date sixty days prior to May 24, 1982. On June 16,
1983, the court amended its order to provide relief to class members whose
claims were administratively active on or after a date sixty days prior
to July 23, 1982.
Subsequently, on August 20, 1984, the court issued a second injunction
which required SSA to:
instruct physicians and adjudicators as to the specific meaning of the
words “occasionally” and “frequently” with
respect to an individual's physical capacity to carry out an activity;
stop applying the medical-vocational guidelines based on a residual
functional capacity that indicates only that the claimant can perform an
activity within the ranges described by the terms
“occasionally” or “frequently”
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, and purchase such examination only after making
efforts to purchase a consultative examination from the treating source,
and document reasons for purchasing a consultative examination from a
nontreating source; and
make individualized vocational assessments for class members with medical
impairments if vocational factors are being considered and the individual
has a problem with stress in a work-like setting.
III. Definition of Class
For purposes of implementing the December 16, 1988, order, the class
consists of individuals who:
“are Washington residents and who have filed applications for Social
Security Title II benefits (excluding applicants for widow's, surviving
divorced wives' or widower's disability benefits) or SSI disability
benefits and who have had their claims for disability benefits evaluated
by the DDS under the defendant's regulations, policies and practices, and
who have been found not disabled by defendant whether in an initial
determination or reconsideration determination, or who, having been
initially found eligible for disability benefits, have had those benefits
terminated in a continuing eligibility review”; and
had a disability claim denied between December 1, 1983, and January 31,
1985; and
the claim denied during that period included a treating physician's
uncontradicted opinion that was relevant to a determination of
disability.
For purposes of implementing the April 4, 1989, settlement, the
Griffis subclass consists of individuals who:
“are Washington residents and who have filed applications for Social
Security Title II benefits (excluding applicants for widow's, surviving
divorced wives' or widower's disability benefits) or SSI disability
benefits and who have had their claims for disability benefits evaluated
by the DDS under the defendant's regulations, policies and practices, and
who have been found not disabled by defendant whether in an initial
determination or reconsideration determination, or who, having been
initially found eligible for disability benefits, have had those benefits
terminated in a continuing eligibility review”, and
have alleged alcoholism or drug addiction as their only impairment;
and
were denied or ceased by the Washington DDS between December 1, 1983, and
November 7, 1988, and did not have an Administrative Law Judge hearing on
that denial or cessation.
IV. Determination of Class Membership and Preadjudication Actions
A. General
In May and July 1989, SSA sent notices to potential class members
identified by computer run. Individuals had 90 days from the date of
receipt of the notice to request a Morrison class
membership determination and review by returning a franked post card
provided for this purpose. Litigation Staff in the Office of the Deputy
Commissioner for Programs is generating 'alerts' for folder locations on a
monthly basis, in the order in which postcards are received.
Non-OHA actions
Litigation Staff will forward these alerts to the Office of Disability and
International Operations (ODIO) or the Program Service Center (PSC), as
appropriate, to obtain claims folders. In general, ODIO or the PSC will
send claims folders to the DDS for class membership determinations and
reviews, as necessary. However, if ODIO or the PSC determines that a
current claim is located in OHA (pending in the hearing office or
Headquarters, or stored in Headquarters), they will forward the alert
along with any prior folders not in OHA's possession to the hearing office
or Headquarters component for screening.
OHA actions
When a component sends an alert and prior folder to a hearing office or
OHA Headquarters for association with a current claim, the hearing office
or Headquarters staff must associate the folders and screen for class
membership. See Attachment 3 for the screening sheet and its
instructions.
In Headquarters, the Office of Appellate Operations (OAO) must screen the
folder if the claimant has filed a request for review on which the Appeals
Council has not completed its action. If the current claims folder(s) is
stored in Headquarters, either pending a request for review or
notification that a civil action has been filed, OAO must associate the
alert and folder with the current folder and forward to Division IV,
Office of Civil Actions (OCA), Room 705, for screening.
Item 2. of the screening sheet requests fill-in of the “BIC”.
This code is located in the “MFT” field at the top of the
Morrison alert. (If there is no entry in the
field, leave item 2. blank.)
The individual screening the folder must place a copy of the screening
sheet in the claims folder and forward the original to:
ODCP Litigation Staff
Attn:
Morrison, Doe and Decker
Coordinator
3-K-26 Operations Building
6401
Security Boulevard
Baltimore, Maryland 21235
If a component receives an alert and does not have the current claims
folder, it must determine the folder location and forward the alert and
any accompanying prior claims folders to that location.
If a component receives an alert for a claimant who has a civil action
pending, either on the alerted case, or on a subsequent or prior claim,
the component will associate the alert with the claims folder(s) and flag
the case for screening by the DDS after the completion of court action,
using the flag in Attachment 4. If the claimant currently resides outside
Washington State, the component will revise the flag to forward the
folder(s) to the servicing DDS. Additionally, unless the court has
remanded, the component will notify the appropriate party, e.g., the
Answer Unit or the Office of the General Counsel, that the claimant has
been identified as a potential Morrison class
member.
The component must screen cases associated with court remands, and process
them in accordance with section V.B. or V.E. below, as appropriate.
B. Processing
Cases Determined Not to be Class Members
After determining that an individual is not a class member, the hearing
office or Headquarters staff must prepare and send a notice (Attachment 5)
of nonclass membership to the individual and representative, if any, and
must place a copy of the notice in the claims folder. Components must
route or retain nonclass member claims folders in accordance with normal
operating procedures.
C. Processing
Cases Determined to be Class Members
After determining that an individual is a class member:
Hearing office staff must follow the consolidation instructions in section
V.B., below.
OAO must proceed in accordance with section V.E., below.
OCA must attach a flag (Attachment 6) to the outside of the combined
folders and return them to the storage location in OAO.
V. Processing and Adjudication
A. Period
to be Redetermined
As indicated in section I. above, the DDS must perform the redetermination
except when a Morrison class member case is
consolidated with a subsequent claim pending at OHA.
The DDS and OHA must redetermine class member cases for the period from
the alleged onset date through the date of the last administrative
determination or decision on the prior Morrison
claim. If the class member filed multiple applications which were denied
during the Morrison timeframes, the DDS or OHA
must redetermine from the alleged onset date through the date of the
final administrative determination or decision on the most recent claim
subject to Morrison.
If the DDS or OHA finds that the claimant was disabled during the period
being redetermined, the DDS or OHA must also consider whether the
disability has continued through the current date (or to the date of any
allowance on a subsequent application).
B. Consolidation
Procedures
Consolidation will occur at the Appeals Council level only under certain
conditions as discussed in section V.E. below.
The hearing office must consolidate inactive
Morrison cases with current claims pending as the
hearing level as described below. (Ordinarily res
judicata may not be applied to dismiss the request for hearing on the
current claim.)
The DDS will perform the Morrison redetermination
if the current claim is not a court or Appeals Council remand and has not
been scheduled for hearing. The Administrative Law Judge must dismiss the
request for hearing (see Attachment 7) on the current claim and forward
all folders to:
Office of Disability Insurance
Department of Social and Health
Services
P.O. Box 9303, M.S. LN-11
Olympia, Washington
98504
The destination code is 1500. (If the claimant now resides outside
Washington State, forward the folders to the servicing DDS.)
In all other cases, including Appeals Council or court remand cases, the
Administrative Law Judge must consolidate the
Morrison redetermination with action on the
current claim. (If a court remand is time-limited and consolidation is
not feasible within the timeframes, the hearing office must flag the case
for Morrison screening by the DDS and
redetermination, if appropriate, after the completion of court action,
using the flag in Attachment 4.)
For cases consolidated at the hearing level, the Administrative Law Judge
must:
Send the customary notice that he or she will review a new issue, i.e.,
the Morrison redetermination.
The notice must also inform the claimant that the Administrative Law Judge
will consider whether the claimant was disabled at any time during the
period considered in the prior decision(s) that is subject to
redetermination.
Additionally, the notice must inform the claimant that if the
Administrative Law Judge finds that the claimant was disabled during that
period, he or she will also consider whether the disability has continued
through the current date (or to the date of any allowance on a subsequent
application).
Offer a supplemental hearing if a hearing has already been held and if the
Administrative Law Judge is not prepared to issue a wholly favorable
decision which includes the Morrison period.
Issue one decision which addresses both the issues raised by the current
request for hearing and those raised by the
Morrison redetermination.
Send a copy of the decision, for class action reporting purposes,
to:
Office of Hearings and Appeals
Office of Civil Actions
Division of
Litigation Analysis and Implementation
P.O. Box 10723
Arlington, VA
22210
Attn: Morrison Coordinator
Room 702
C. Reinstated
Requests for Hearing
When an Administrative Law Judge dismisses a current request for hearing
and sends the folders to the DDS for the Morrison
redetermination and the DDS does not take fully favorable action, the DDS
must return all folders to the hearing office for automatic reinstatement
of the request for hearing. (See section VI. below for case coding
information.) The DDS must notify the claimant of the result of its
Morrison redetermination.
On return of the folders, the Administrative Law Judge must acknowledge
receipt, notify the claimant of the reinstatement, and advise the claimant
that the request for hearing on the subsequent (current) claim includes a
request for hearing on the Morrison
redetermination (see Attachment 8).
The hearing office must consolidate the Morrison
redetermination with the request for hearing on the current claim and
issue a notice of combined hearing.
The Administrative Law Judge must issue one decision which addresses both
the issues raised by the current request for hearing and those raised by
the Morrison redetermination.
D. Cases
Redetermined by DDS
The instructions in this section pertain to cases in which there is no
request for hearing pending on a subsequent claim.
Individuals whose cases are redetermined by the DDS will have full appeal
rights. Their first appeal will be directly to the hearing level.
If the claimant files a request for hearing on the redetermined claim, the
hearing office must advise the claimant of the period to be reviewed (see
section V.A. above), the right to submit new evidence relating to that
period, and the opportunity to file a new application if the claimant
believes that his or her alleged impairment(s) became worse after that
period or if he or she has a new impairment (see Attachment 9).
If new evidence is submitted which relates only to the period after the
date ruled through in the Morrison
redetermination, and the Administrative Law Judge does not find the
claimant disabled as of that date, the Administrative Law Judge must not
consider the evidence in the decision; rather, the decision must advise
the claimant of the right to file a new application.
E. OHA
Headquarters Action
The Appeals Council will not consolidate a
Morrison redetermination with action on a
request for review on a current claim, except in the circumstance
identified in item 2. below. Appeals Council action on a class member
case will occur as follows, based on its processing of the current
claim:
Appeals Council dismisses, denies review, or issues a denial decision
OAO will attach a flag (Attachment 6) to the combined folders of a class
member. If no civil action is filed, after expiration of the retention
period OAO must ship the combined folders to the Washington State DDS for
the Morrison redetermination, to the address in
section V.B. above. (If the claimant now resides outside Washington State,
OAO must ship the combined folders to the servicing DDS.)
Appeals Council issues a favorable decision — no
Morrison issues remain
If the Appeals Council proposes to issue a favorable decision on a current
claim, and this decision is also fully favorable with respect to the
application which makes the claimant a Morrison
class member, the Council must consolidate the claims. The Council's
decision must advise the claimant that it includes the
Morrison redetermination.
The Appeals Council must forward a copy of the decision to the
Morrison coordinator in the Division of
Litigation Analysis and Implementation, for class action reporting
purposes.
Appeals Council issues a favorable decision —
Morrison issues remain
If the decision is not fully favorable with respect to the application
which makes the claimant a Morrison class member,
the Appeals Council must include the following language on the
transmittal sheet which forwards the case for effectuation:
Morrison redetermination needed — upon
effectuation forward combined folders to (insert address of Washington
State DDS from section V.B. or servicing DDS address if claimant now
resides outside Washington State).
Appeals Council issues a remand
The remand order must direct the Administrative Law Judge to consolidate
the Morrison redetermination with the current
claim.
VI. Case Coding
There may be circumstances when the DDS redetermines class member cases
independently of any current claim pending at the DDS level. Therefore,
the hearing office may receive concurrent requests for hearing. Since
these cases must be consolidated at the hearing level, the hearing office
must enter only one request for hearing into the system.
The hearing office must code requests for hearing which are reinstated
after unfavorable DDS action (see section V.C. above) as new requests for
hearing, using the date of the DDS action as the request for hearing
date.
VII. Inquiries
Field Office personnel should call the Division of Field Practices and
Procedures on FTS 305-0022.
Attachments:
Orders dated March 3, 1987; April 21, 1988; and December 16, 1988, with
Appendix A, of the U.S. District Court for the Western District of
Washington
Stipulation of settlement and compromise dated April 4, 1989
Screening sheet
Case flag (for screening)
Notice of nonclass membership
Case flag (for redetermination)
Sample dismissal order
Sample acknowledgment notice — reinstated request for hearing
Sample acknowledgment notice — request for hearing on
Morrison redetermination
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
The court, having considered the briefs, depositions and other documents
submitted by the parties, and having previously ruled on these matters in
orders dated March 3, 1987 and April 21, 1988, grants in part plaintiffs'
motion for further relief, and orders that the defendant take the
following actions:
Redetermine, and readjudicate if and to the extent necessary, according to
the principles set out in Appendix A, all claims of class members for
disability benefits which contain uncontradicted medical opinion evidence
relevant to a determination of disability, from a treating physician, and
which were denied between December 1, 1983 and January 31, 1985.
Distribute Appendix A to all Disability Determination Service ('DDS')
staff and Social Security Administration ('SSA') staff members responsible
for adjudicating the claims of class members.
File a report with the court within 60 days of the date of this order and
another report within 180 days of this order, setting forth the steps he
has taken to ensure compliance with this order, and attaching
representative copies of all materials he has issued to DDS and SSA staff
pursuant to this order.
The clerk is directed to send copies of this order to all counsel of
record.
Dated: December 16, 1988
Appendix A
COURT CASES
DDS and HHS Application of Morrison, Doe and
Decker
Criteria Involving Treating Physician Opinion
The following sets for the United States District Court's ruling in the
Morrison, Doe and Decker case. The ruling must be
followed by DDS and HHS personnel in deciding claims involving opinion(s)
of one or more treating physicians who have examined the claimant. It is
effective upon receipt and supersedes any prior discussion of the
Day v. Weinberger or Rhodes
v. Schweiker cases.
In order for a disability within the meaning of 42 U.S.C. 423 §
(d)(1)(A) to be shown, there must be a medically determinable mental or
physical impairment which creates an inability to engage in any
substantial gainful activity and which can be expected to result in death
or which has lasted or can be expected to last for a continuous
twelve-month or longer period of time. The impairment must result from the
type of abnormalities that are listed in 42 U.S.C. § 423(d)(3), and
those abnormalities must be demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.
Opinions of medical experts are not binding upon DDS and HHS personnel on
the question of whether the claimant is entitled to a disability benefits,
but they must, if they reject the opinion of a treating physician, state
clear and convincing reasons for that rejection. In addition, it is the
general rule that a physician's opinion is to be given weight in the
disability determination process only to the extent that it is supported
by objective medically accepted clinical diagnostic techniques or
laboratory test results achieved by applying medically acceptable
laboratory diagnostic techniques. See
20 C.F.R. §
404.1528.
The Ninth Circuit had adopted, however, an exception to the general rule
for the weight to be given to the opinions of treating physicians. In
Day v. Weinberger, 522 F.2d 1155, 1156 (9th Cir.
1975) and Rhodes v. Schweiker, 660 F.2d 722,
723-24 (9th Cir. 1981), the Ninth Circuit set forth the limits of this
exception and its underlying reasons. The Secretary's position has been
that the disability determinations of treating physicians opinions can be
given weight only to the extent that they are supported by objective
medical findings. The Ninth Circuit has ruled, however, that the lack of
laboratory test results that fully support the treating physician's
opinion is not in itself a “clear and convincing reason” for
rejecting that opinion.
In addition, the court determined that a lack of clinical findings that
fully support the treating physician's opinion is not in itself a clear
and convincing reason for rejecting the opinion.
There are two reasons for the treating physician exception adopted by the
Ninth Circuit. First, the court said that disability can be established
through “medically acceptable clinical diagnoses.” Under the
regulations the results of examinations are “clinical
findings.” Thus, there is no requirement that a disability
determination be supported by laboratory findings. A “medically
acceptable clinical diagnosis” is necessarily supported by the
results of a physical or mental examination. This examination provides at
least some clinical findings so that the determination is no completely
“unsupported.”
The second reason for the Day/Rhodes standards is
that a treating physician will necessarily be more familiar with the
condition of the claimant than the DDS or HHS personnel. Two consequences
flow from this reason:
First, DDS and HHS personnel are required to give clear and convincing
reason for rejecting the opinion of a treating physician. These reasons
must be expressly stated and must be based on the medical evidence in the
record or other permissible factors. This requirement is particularly
important in situations like those governed by the
Day/Rhodes standard where the opinion is not
contradicted by any medical evidence or other medical opinions. Examples
of such clear and convincing evidence could include a report by another
examining physician which contradicts such opinion based upon independent
clinical findings; proof of work options available to the claimant; a
complete lack of any medical finding in support of the opinion of the
treating physician; or the absence of any indication that the treating
physician had employed medically acceptable clinical diagnostic techniques
in reaching his or her conclusion.
Second, the treating physician's familiarity with the condition of the
claimant provides an independent reason, apart from the supporting
clinical and laboratory findings, for giving weight to the treating
physician's opinion with regard to the severity of the claimant's
impairment. If the treating physician's opinion is uncontradicted and
supported by at least some clinical or laboratory findings, DDS and HHS
personnel must either follow that opinion or at least clear and convincing
reasons for reaching a different conclusion.
The court's ruling that the lack of laboratory findings or clinical
findings that fully support the treating physician's opinion is not in
itself a clear and convincing reason for rejecting that opinion, is not
intended to curtail full development of disability claims. Further, the
ruling does not eliminate DDS or HHS discretion to judge the sufficiency
of support for the medical opinion in each individual case in accordance
with the terms of the court's order.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
The parties have been directed to submit proposed orders for distribution
to Disability Determination Services (DDS) and Disability Quality Branch
(DQB) personnel responsible for evaluating the applications of class
members for disability benefits. In response, the parties have submitted
slightly altered versions of that portion of the order issued March 3,
1987, in which the court discussed in detail the holdings and consequences
of Day v. Weinberger, 522 F.2d 1154 (9th Cir.
1975) and Rhodes v. Schweiker, 660 F.2d 722 (9th
Cir. 1981). See Order of March 3, 1987
(Day/Rhodes order). The parties disagree on the
specific language to be included in the order and on whether the
Secretary should be required to readjudicate the claims of certain class
members. Defendant has also moved to strike one memorandum submitted by
plaintiffs. The court's rulings on these issues follow.
I. Readjudication
The court finds that class member applications for disability benefits,
containing medical opinion evidence from a treating physicians, that were
denied between December 1, 1983, and January 31, 1985, must be
readjudicated. The testimony of Nick Morical at the May 10, 1985, hearing
and at his deposition taken after the Day/Rhodes
order was issued makes clear that many such applications were denied
because an incorrect interpretation of the
Day/Rhodes standards was applied.
While these cases have been previously reviewed by the Secretary, the
purpose of the preliminary injunctions entered earlier was to ensure the
adjudication of class member applications for disability benefits under
the correct standards. With respect to the class members identified above,
this goal has not yet been achieved. Plaintiffs shall have access to such
files as are reasonably necessary to monitor the outcome of the
readjudications.
II. Form of Order
An order stating the proper standards for evaluating treating physician
medical opinion evidence will be distributed to the appropriate DDS and
DQB personnel prior to the readjudication of the applications discussed
above. The parties are directed, however, to submit new proposed orders
written in the formats generally used by DDS and DQB for internal
memoranda. In drafting the new proposed orders, the parties are requested
to keep the following guidelines:
The new versions should comply with the format generally used by DDS and
DQB for instructions given to disability determination personnel regarding
standards for making such determinations.
The last paragraph of defendant's first proposed order, the so-called
'documentation language', should be included.
Citations to and discussions of cases other than
Day/Rhodes and Allen v.
Weinberger, 552 F.2d 781, 785-86 (7th Cir. 1977) should not be
included.
The order should reflect the court's previously stated understanding of
the Day/Rhodes standards. They should be written
clearly and with a minimum of legal jargon.
The parties are instructed to submit their new proposed order on May 6,
1988, and may submit memoranda not to exceed five pages in support of
their proposed orders.
Defendant's motion to strike plaintiff's supplemental memorandum in
support of their first proposed order is denied.
III. Status Conference
A status conference will be held in this case at 10:30 a.m. on June 3,
1989. Counsel should be ready to discuss the estimated time necessary for
distribution of the order to DDS and DQS personnel, estimated time
necessary to readjudicate the identified applications, and a schedule for
completing this case.
The clerk is directed to send copies of this order to all counsel of
record.
Dated: April, 20 1998.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
Having considered the motions of plaintiffs for further relief and/or
contempt and for partial summary judgment, as well as the motion of
defendant for partial summary judgment, together with the memoranda,
affidavits and exhibits submitted by counsel, the Court now finds and
rules as follows:
The dispute raised by the pending motions centers around one portion of
one of the preliminary injunctions entered in this class action. In June,
1983, this Court enjoined the Secretary of Health and Human Services,
defendant herein, from
Failing to apply the standards enunciated in Day v.
Weinberger, 522 F. 2d 1154 (9th Cir. 1975) and
Rhodes v. Schweiker, 660 F.2d 722 (9th Cir. 1981)
in evaluation of the claims and continued eligibility of class members.
These cases held that the Secretary is not bound by an expert's opinion of
disability, even if uncontradicted, but that rejection of such an opinion
must be accompanied by clear and convincing reasons for doing so.
The question presented by these motions involves the proper interpretation
of the Day/Rhodes standard and a determination
as to whether the Secretary has been correctly applying those standards
in the disability determination process. Plaintiffs seek an order
granting several types of further relief: (1) a finding that the
Secretary is in contempt for failing to comply with this portion of the
preliminary injunction, and (2) partial summary judgment that the
Secretary's interpretation of the relevant standard is incorrect. The
Secretary seeks partial summary judgment that his interpretation of the
Day/Rhodes standards is correct. The Secretary
opposes all of the plaintiffs' request for relief. The parties have filed
voluminous briefs and exhibits in support of their positions.
At a hearing held on May 10, 1985, this Court instructed the parties to
return if problems arose regarding the Disability Assessment Branch's (now
called the Disability Quality Branch or DQB) interpretation of the Ninth
Circuit cases cited in the preliminary injunction. Since that time,
plaintiffs have deposed several Social Security Administration officials.
They rely to a great extent upon those depositions to establish that the
Secretary is not complying with the injunction, i.e., that he is applying
an incorrect interpretation of the Day/Rhodes
standards in the disability determination process. The Secretary argues
that the deposition testimony is of little probative value because
plaintiffs' counsel used misleading and confusing terminology in the
questions. The Secretary further argues that his interpretation of
Day and Rhodes is fully
consistent with the requirements of the relevant statutes and with the
Ninth Circuit precedent. Plaintiffs summarize their position in this
fashion:
Plaintiffs' position on the principles of resolution of [cases where
the objective evidence does not conclusively support nor conclusively
disprove the medical opinion] is that the plain language of
Day and Rhodes should be
followed, that is:
Uncontroverted opinion evidence that a claimant is disabled cannot be
rejected unless there are actual and convincing reasons for doing so;
Day, 522 F.2d at 1156.
Disability can be proved by medically acceptable clinical diagnoses as
well as by objective laboratory findings; Day,
522 F.2d at 1156.
When the Secretary agrees that a claimant suffers from an impairment,
disability under the Social Security act can be established by medical
opinion evidence standing alone; Rhodes,
660 F.2d at 723.
Plaintiffs' Reply Memorandum in Support of Motion for Partial Summary
Judgment (Plaintiffs' Third Memo) at 2 (emphasis in original) (footnote
omitted).
The Secretary summarizes his position as follows:
We submit that plaintiffs' argument is not consistent with the holdings of
Day and Rhodes. Rather
Day and Rhodes mean that
the disability determination in a case must be in accordance with the
treating physician's opinion of disability, or that there must be
“clear and convincing” reasons for reaching a different
conclusion. However, we believe Day,
Rhodes and other Ninth Circuit decisions are
clear that treating physicians opinions are not binding, that opinions
and diagnoses should be evaluated by considering supporting medical
findings, and that a disability determination cannot be based on an
unsupported opinion “standing alone.” The Secretary's
policies and instructional procedures require adjudicators to develop
cases fully, including asking for medical findings to support opinions or
diagnoses in relation to all evidence.
Defendant's Memorandum in Support of Motion for Partial Summary Judgment
and in Opposition to Plaintiffs' Motion for Further Relief and/or Contempt
(Defendant's First Memo) at 5-6. The proper interpretation of the
Day/Rhodes standards is a question of law,
properly determined on a motion for partial summary judgment.
The relevant statues and regulations are a proper starting point in this
inquiry. The term “disability” means:
[I]nability 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 U.S.C.§ 423 (d)(1)(A). The impairment, be it mental or physical,
must result from:
anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.
42 U.S.C.§ 423 (d)(3). In considering claims for disability benefits,
the secretary reviews the 'medical findings' and other evidence that
support statements by physicians that the claimant is disabled.
20 C.F. R. §
404.1527. 'Medical findings' include 'symptoms, signs, and laboratory
findings.' 20
C.F.R.§404.1528. Symptoms are the claimant's own descriptions of
the impairment. Id.
§404.1528(a).
Signs are abnormalities which can be observed apart from the statements
of the claimant and can be shown by medically acceptable clinical
diagnostic techniques. Id.,
§
404.1528(b); cf.
20 C.F. R. §
404.1513(b)(2) (clinical findings include results of physical or
mental status examinations). Laboratory findings are anatomical,
physiological or psychological phenomena which are demonstrable by the use
of medically acceptable laboratory diagnostic techniques.
20 C.FR.
§404.1528(C). These techniques include, but are not necessarily
limited to, chemical tests, x-rays, electroencephalograms and
electrocardiograms. Id. It is the general rule that physician
opinions are not binding on the Secretary with regard to the ultimate
determination of disability,
20 C.F.R. §
404.1527: Bilby v. Schweiker, 762 F.2d 716,
718 (9th Cir. 1985). It is also the general rule that the weight accorded
to a doctor's opinion depends on the extent to which it is supported by
medical findings. 20
C.F.R. § 404.1527; Coats v. Heckler,
733 F. 2d 1338, 1340 n.4 (9th cir. 1984).
In Day and Rhodes, the
Ninth Circuit faced appeals by claimants who had been denied disability
benefits under the standards stated above. See generally
Green v. Heckler, 803 F.2d 528, 530 (9th Cir.
1986) (claimant has burden of proving an impairment that prevents him
from returning to his former occupation: burden then shifts to the
Secretary to show that claimant can still perform other types of work,
existing in the national economy, given his personal circumstances). In
Day, five doctors had treated the claimant,
since her injury, and none had been able to determine the cause of her
pain through the use of laboratory test. Two of the treating doctors
opined that she was disabled, and these opinions were not contradicted by
other opinions or medical evidence of record. The hearing examiner denied
Day's claim, relying, in part, on the fact that
the cause of pain had not been identified through “objective
diagnostic techniques.” Day 522 F.2d at
1156. The Ninth Circuit reversed this decision, and stated:
Disability may be proved by medically-acceptable clinical diagnoses, as
well as by objective laboratory findings.
Id. (citation omitted). The Ninth Circuit, declining to make an
initial determination regarding Day's condition,
remanded the case for a new hearing where both parties could present
additional evidence. Compare Bilby v. Schweiker,
762 F.2d 716, 720 (9th Cir. 1985) (where uncontroverted medical testimony
established total disability, court remanded for entry of judgment
ordering the payment of benefits). The Day court
also held that the Secretary, while not bound to accept uncontradicted
medical expert opinions, must expressly state clear and convincing
reasons for not doing so. Day, 522 F.2d at
1156.
In Rhodes the existence of an impairment was
conceded by the Secretary. The issue was over the severity of the
impairment and whether it qualified the claimant for disability benefits.
The court reiterated its holding in Day that,
while not bound by uncontradicted medical expert opinion regarding
disability, the Secretary must state clear and convincing reasons for
reaching a different conclusion. Rhodes, 660
F.2d at 723. The only doctor to examine Rhodes since the onset of his
alleged disability had consistently concluded that Rhodes was disabled.
Id. Given the familiarity of the treating physician with the
claimant's condition, the court ruled that his opinion “entitled to
more than passing consideration.” Id. at 724 (relying on
Allen v. Weinberger, 552 F 2d 781, 785-86 (7th
cir. 1977)). The court ruled that the uncontradicted opinion of the
examining the doctor was enough to meet the claimant's initial burden of
proof. It then remanded the matter for hearing where the Secretary could
attempt to show that the claimant could still engage some work in the
national economy. Rhodes, 660 F.2d at 725.
Plaintiffs argue that, according to ninth Circuit precedent, the
uncontradicted medical opinion of an examining physician may establish
disability even if unaccompanied by laboratory findings (See,
e.g., Day, 522 F.2d at 1156;
Bilby 762 F.2d at 719) and that if the existence
of an impairment is admitted, the uncontradicted opinion of an examining
physician that the claimant is disabled may, standing alone, establish
disability. See, e.g., Rhodes,
660 F.2d at 723; Coats, 733 F.2d at 1340-41. They
then rely on the depositions of several Social Security Administration
(SSA) officials to show that these standards are not being applied by the
Secretary. Robert Doran, Director of the Disability Programs Branch for
Region X, was shown a copy of the Day opinion
during his deposition and asked whether he agreed with the holding that
medical diagnoses might establish disability even in the absence of
laboratory findings. He replied 'That was not my understanding. I thought
that had to be more to it then just the diagnosis' Doran deposition at 41.
He had earlier testified that 'its my understanding that you need some
objective findings to go along with the diagnosis.'Id. at 39.
Plaintiffs also rely on the following exchange between their counsel and
Mary Buskirk, head of the Disability Quality Branch (DQB), in Seattle:
Q. In order to avoid a confusion, let me ask you: If it is only a
diagnosis, but it is a medically acceptable clinical diagnosis in the
absence of objective laboratory findings, can disability be proven by such
medically acceptable clinical diagnosis alone?
A. No.
Buskirk deposition at 37-38. Ms. Buskirk also testified that while the DQB
would generally give more weight to a treating physician's opinion than
to a one-time examining physician's opinion, the weight given to the
treating physician's opinion would still depend upon the objective
clinical and laboratory evidence of record that supported the opinion.
See Buskirk deposition at 32-33. See also Deposition of Dr. Roy
Brown, Seattle DQB's Chief Medical consultant, at 243-45 (diagnosis does
not convey any impairment for disability benefits purposes with the
exception of impending death in malignant disease cases); Deposition of
Albert Harrison, Deputy Director of the SSA Division of Medical and
Vocational Policy, at 114-17 (diagnosis can establish disability only in
certain rare circumstances; disagreeing with the statement from
Day, but concurring in the result in
Bilby, since the opinion indicated facts that
could establish disability).
Plaintiffs used a similar questioning technique with respect to the
Rhodes opinion. The following exchange is
representative of the questioning:
Q. For my next question I'd like you to assume that the Secretary agrees
that a claimant for disability suffers from physical impairment. Based on
that assumption, do you believe that the opinion of the claimant's
treating doctor that the person is disabled, standing alone, without
objective clinical signs and findings, may establish total incapacity for
substantial gainful activity within the meaning of the Social Security
Act?
A. Not an unsubstantiated opinion. The weight to be given a treating
physician's opinion depends upon the extent to which it's substantiated by
medical findings.
Brown deposition at 67. See also Doran deposition at 34: Buskirk
deposition at 39. Plaintiffs also contend that the SSA, in practice,
gives no weight to the opinion of a treating physician:
Q. In that case, would it be fair to say that you have never seen a case
in which a decision was made based upon the opinion of the treating
physician that would not have been made in any event in light of the
objective evidence that you would base the decision on?
A. That's correct.
Buskirk deposition at 33-34. Compare Transcript of May 10, 1985,
Hearing at 69-71 (Testimony of Nick Morical Washington State Disability
Determination Service Area Manager) (DDS received writebacks from DQB
that indicated that allowing benefits on the basis of uncontradicted
medical opinion evidence with some support in the record's medical
information was incorrect because of a lack of objective support).
Defendant argues that the deposition testimony relied upon by plaintiffs
does not demonstrate noncompliance with relevant Ninth Circuit case law,
that plaintiffs have quoted the testimony out of context, and that
plaintiffs' counsel created confusion in the depositions by using improper
terminology in the questions, thereby rendering the testimony
unpersuasive. Defendant then goes on to argue that plaintiff's
interpretation of the Day/Rhodes standards
conflicts with the Ninth Circuit case law and the relevant statutes.
Defendant cites regulations and cases that state that the opinion of
medical experts is not binding on the Secretary with regard to the
disability determination. See
20 C.F.R. §
404.1527. The Secretary also relies on the legislative history of the
1967 Amendments to the Social Security Act to support his position that
the medical expert opinions are to be given weight only to the extent
that they are supported by objective medical findings. See S. Rep.
No. 744, 90th Cong., 1st Sess. 30, reprinted in 1967 U.S. Code Cong.
& Ad. News 2834, 2882-83 (statements or conclusions of applicant or
others not adequate to establish disability unless supported by clinical
or laboratory findings or other medically acceptable evidence). The
Secretary characterizes the Rhodes case
thusly:
The Court's point in Rhodes was not that the
plaintiff had met the burden of proof on the ultimate issue of disability,
but that the uncontradicted opinion of a treating source precluded a
denial of disability entitlement without further development.
Defendant's First Memo at 19. In addition, the Secretary argues that the
Social Security Disability Reform Act, Pub. L. No. 98-460, §§3,
9, 98 Stat. 1794 (1984), reflects Congressional intention that objective
evidence in the form of clinical and laboratory findings always be
obtained before a finding of disability is entered. See also
Defendant's Second Memo at 12-13 (discussing draft nationwide ruling
which would make treating physician opinions determinative of medical
issues 'when fully supported and uncontroverted; this ruling
reflects current policy' (emphasis added).
The Court finds that neither of the parties position is entirely correct.
In the following discussion, the Court will set forth its understanding of
the Day/Rhodes standards. In order for a
disability within the meaning of 42 U.S.C. §423 (d) (1) (A), to be
shown, there must be a medically determinable mental or physical
impairment which creates an inability to engage in any substantial
gainful activity and which can be expected to result in death or which
has lasted or can be expected to last for a continuous twelve month or
longer period of time. The impairment must result from the type of
abnormalities that are listed in 42 U.S.C. §423 (d) (3), and those
abnormalities must be demonstrable by medically acceptable clinical and
laboratory diagnostic techniques. Opinions of medical experts are not
binding upon the Secretary on the question of whether the claimant is
entitled to disability benefits,
20 C.F.R. §
404.1527, but the Secretary must, if he rejects the opinion of an
examining physician, state clear and convincing reasons for that
rejection. Day, 522 F.2d at 1156. In addition, it
is the general rule that a physician's opinion is to be given weight in
the disability determination process only to the extent that it is
supported by objective medical findings.
20 C.F.R. §
404.1527. Objective medical findings may consist of clinical findings
arrived at by applying medically accepted clinical diagnostic techniques
or laboratory test results achieved by applying medically
acceptable laboratory diagnostic techniques. See
20 C.F.R. §
404.1528.
The Ninth Circuit has adopted, however, an exception to the general rule
for the weight to be given to the opinions of treating physicians. In
Day v. Weinberger, 522 F.2d 1155, 1156 (9th Cir.
1975) and Rhodes v. Schweiker, 660 F.2d 722,
723-24 (9th Cir. 1981), the Ninth Circuit set forth the limits of this
exception and its underlying rationale. The Secretary's primary argument,
appearing repeatedly in the briefs is that the disability determinations
of treating physician opinions can be given weight only to the extent
that they are supported by objective medical findings. This position
misses, however, the point of the treating physician exception adopted in
Day and Rhodes. The
holdings in those cases make clear that they lack of laboratory test
results that fully support the treating physician's opinion is not a
“clear and convincing reason” for rejecting that opinion.
Day, 522 F2d at 1156-57: see also
Bilby, 762 F.2d at 719:
Montijo v. Secretary of HHS, 729 F.2d 599,
601-02 (9th Cir. 1984). In addition, the Rhodes
court relied on Allen v. Weinberger, 522 F.2d
781, 785-86 (7th Cir. 1977). The Allen court
reversed a denial of benefits where the ALJ rejected the examining
doctor's opinion “because the statements were not supported by any
clinical findings.” Rhodes, 660 F.2d at
724 (discussing Allen, 552 F.2d at 785-86). It
appears, therefore, that a lack of clinical findings that fully support
the treating physician's opinion is also not a clear and convincing
reason for rejecting the opinion.
There appear to be two rationales underlying the treating physician
exception adopted by the Ninth Circuit. First, the
Day holding allows disability to be shown through
“medically acceptable clinical diagnoses.” Each of the
physicians in Day who stated that the claimant
was disabled had examined her. Under the regulations the results of the
examinations are “clinical findings.” Thus, the court's
statement in Day should be taken to mean that
there is no requirement that a disability determination be supported by
laboratory findings. A “medically acceptable clinical
diagnosis” is necessarily supported by the results of a physical or
mental examination. This examination provides at least some clinical
findings so that the determination is not completely
“unsupported.”
The second rationale underlying the Day/Rhodes
standards is that a treating physician will necessarily be more familiar
with the condition of the claimant that the Administrative Law Judge or
other factfinder. Two consequences flow from this rationale. First, the
Secretary is required to give clear and convincing reasons for rejecting
the opinion of a treating physician. These reasons must be expressly
stated and must be based on the medical evidence in the record or other
permissible factors. This requirement is particularly important in
situations like those governed by the Day/Rhodes
standard where the opinion is not contradicted by any medical evidence or
other medical opinions. See Cotton v. Bowen, 799
F.2d 1403, 1408 (9th Cir. 1986): Day, 522 F.2d at
1156 (ALJ could consider appearance of claimant as well as medical
evidence); cf. Miller v. Heckler, 770
F.2d 845,849 (9th Cir. 1985) (treating physician's opinion can be
disregarded if contradicted by another physician's report based on
independent clinical findings): see also
Lombardo v. Schweiker, 749 F.2d 565, 566-67 (9th
Cir. 1984) (where treating physician's opinion was controverted by the
opinions of a neurologist and a reviewing physician, ALJ properly
disregarded treating physician's opinion and properly supported his
decision with specific findings based on substantial evidence). Second,
the treating physician's familiarity with the condition of the claimant
provides an independent reason, apart from the supporting clinical and
laboratory findings, for giving weight to the treating physician's
opinion with regard to the severity of the claimant's impairment. This
opinion is entitle to weight in the disability determination process even
in the absence of clinical or laboratory findings which fully support it.
Stated another way, if the treating physician's opinion is uncontradicted
and supported by at least some clinical or laboratory findings, the
Secretary must either follow that opinion or state clear and convincing
reasons for reaching a different conclusion.
As noted above, the uncontradicted opinions of treating physicians
regarding disability are not necessarily binding on the Secretary. In
Rhodes the court found such an opinion adequate
to establish the claimant's prima facie case of impairment which
prevented him from returning to his former occupation. The case was then
remanded for a new hearing at which the Secretary could attempt to show
that the claimant was still able to perform other types of work existing
in the national economy. Rhodes, 660 F.2d at
725.
If the Secretary is able to establish work options available to the
claimant, the ALJ then has clear and convincing reasons for rejecting the
treating physician's uncontradicted opinion. It also appears to the Court
that a complete lack of any medical findings in support of the
uncontradicted opinion of the treat physician would authorize the ALJ to
reject the physician's opinion. Most challengeable, would be a statement
by the treating physician that the person is disabled, but the statement
is accompanied by no indication that the treating physician had employed
medically acceptable clinical diagnostic techniques in order to reach that
conclusion.
In light of the foregoing, it is clear that the Secretary's present policy
regarding the uncontradicted opinions of treating physicians is not in
compliance with the standards set forth in
Day/Rhodes. The Court finds, therefore, that a
further order should be directed by it to the DDS and DQB personnel which
reflects the proper interpretation of the
Day/Rhodes standards. The Court has set forth in
this order its understanding of those standards. The plaintiffs are
directed to prepare a proposed order which they feel to be appropriate in
light of the Court's findings. This proposed order shall be filed within
20 days of the date of this order. Defendant's counsel shall file their
objections, if any to the plaintiffs' proposed order within 15 days after
receiving that order. Plaintiffs' counsel shall then have 10 days to
respond to defendant's reaction. The Court shall then issue an order which
it feels is appropriate.
The Court declines to make a finding at this time that the Secretary is in
contempt.
Accordingly, the motion of plaintiff for further relief and/or contempt is
GRANTED IN PART AND DENIED IN PART. The motion of plaintiffs for
partial summary judgment is DENIED. The motion of defendant for
summary judgment is also DENIED.
The Clerk of this Court is instructed to send uncertified copies of this
order to all counsel of record.
Dated this 3rd day of March, 1987.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
WASHINGTON
AT SEATTLE
Whereas the Court has ordered defendant to provide relief pursuant to
plaintiff s' requests in this action in accordance with:
An amended preliminary injunction (first injunction) dated June 16, 1963
as amended;
The second preliminary injunction dated August 7, 1984, as amended;
and
An order for readjudication of certain first injunction cases dated
December 16, 1988.
Whereas, the defendant has afforded class members relief under the first
and second injunction, except for the relief ordered in the order of
December 14, 1988.
Whereas, the parties wish to avoid further litigation in this matter.
Therefore, all parties to this civil action by their undersigned counsel,
hereby atipulate to the settlement of plaintiffs' claims for relief in
this litigation, in accordance with the following terms and
conditions:
The defendant agrees to comply with the terms of the above described Court
orders. However, in the event of a change in controlling precedent,
governing statute or applicable valid regulation, defending reserves the
right to seek a modification of the Court's order.
The parties agree that the only remaining relief to be afforded to class
members consists of the following:
Defendant shall promptly readjudicate class member claims pursuant to the
December 16, 1988 order.
Defendant shall readjudicate class member claims which were denied
initially or on reconsideration by the Washington Disability Determination
Service (DDS) between December 1, 1983, and November 7, 1988, without a
subsequent hearing in the Office of Hearings and Appeals, and which
involved the Griffis issue as set forth in paragraph B of the first
injunction.
Upon learning of any class member whose claim has inadvertently not
already been reviewed in accordance with the terms of the court's orders,
defendant shall immediately send a notice to said class member with a copy
to the undersigned attorney Kristin Houser and William Rutzick advising
of the availability of review and requesting the class member to respond
within ninety (90) days. Upon receipt of said response, defendant shall
promptly readjudicate the claim in accordance with the terms of the relief
ordered and notify the class member of the results.
In any event, defendant will have no obligation to furnish relief under
this action to class members whose benefits were ceased or whose
application for benefits was denied after October 31, 1991. This is
without prejudice to such class members right to relief in a subsequent
action.
The enumeration of the measures set out in this paragraph is not intended
to alter the Secretary's obligations as described in paragraph 1, and the
provisions of this Stipulation, including paragraph 1, may be enforced by
court order on application of either party.
The parties understand that individual class members retain all regulatory
and statutory rights to full administrative and judicial review of their
disability determinations under the Court's orders including
redeterminations performed in connection with this settlement. Such
administrative and judicial review is not a part of the relief afforded
under this settlement.
Defendant shall allow plaintiffs' counsel to have reasonable access to the
claims files of the class members until December 31, 1991, in order that
they might verify compliance with the Court ordered relief with this
action. Such inspection shall, however, be solely for the purpose of
verifying compliance with the Court ordered relief and shall not be used
for any other purpose. In the event that plaintiffs' counsel obtains
evidence of non-compliance with the Court's orders after December 31,
1991, plaintiffs' counsel may at any time seek a Court order to inspect
claims files of class members entitled to relief under this stipulation in
order to verify compliance with Court ordered relief.
Defendant shall provide plaintiffs' counsel, on plaintiffs' counsel's
request, copies of any instructional materials after they are issued by
defendant or his representatives to implement this stipulation.
This stipulation shall not be construed, nor shall it be offered in any
proceeding, as evidence of an admission by the defendant of any pattern or
practice that violates or fails to comply with any law, rule, or
regulation dealing with any matter within the scope of the allegations
contained in the complaint or otherwise raised by the plaintiffs in this
action. This stipulation shall not be construed as an admission by the
defendant thrt its position in this litigation was not substantially
justified. Nor shall this stipulation be construed as an admission of
liability for attorneys' fees on the part of the defendant, its agents or
employees. Plaintiffs may move for attorneys fees from defendant within 30
days of the date this stipulation is signed by the court.
Plaintiffs' counsel and defendant's counsel, by their signatures below,
warrant that they are sole counsel to the plaintiff class or to the
defendant whose interests where represented in this action and that they
are authorized to stipulate to the settlement of issues in this
action.
It is agreed that this stipulation shall be submitted to the District
Court and shall be binding upon order of the Court.
So Ordered:
Dated: 4/4/89
/s/
HONORABLE WILLIAM DWYER
UNITED STATES DISTRICT
JUDGE
THE CASE MUST BE READJUDICATED IF QUESTION 9 OR QUESTION
11 IS ANSWERED “YES.” THIS IS TRUE EVEN IF THE CASE
HAS ALREADY BEEN REVIEWED UNDER MORRISON, DOE
AND DECKER CRITERIA.
MORRISON Class Action Case
SCREENING NECESSARY
Claimant's name _____________________________
SSN _____________________________
After completion of court action, forward claims folder(s) for
screening to:
Office of Disability Insurance
Dept. of Social and Health
Services
P.O. Box 9303, M.S. LN-11
Olympia, Washington
98504
(Destination code 1500.)
You asked us to review your case under the terms of the
Morrison, Doe & Decker court decisions. You
are not eligible to have your claim reviewed because your claim did not
meet the requirements for review. The reason is checked below.
Your claim was not for the type of disability benefits covered by the
court order.
You did not reside in the State of Washington at the time your claim was
denied.
Your claim was denied in the State of Washington for some reason not
related to your medical condition.
The denial of your claim did not take place during the period between
December 1, 1983 and November 7, 1988.
Your claim involved neither drug addiction nor alcoholism as your only
medical condition, and it did not involve a treating physician's opinion
of the type that Social Security is supposed to review.
Your claim involved drug addiction and/or alcoholism, but you had a
subsequent hearing before an Administrative Law Judge.
Other
_________________________________________________________
_______________________________________________________
If more than one of the above categories applies to you, we might not have
checked all of the applicable categories.
We Are Not Deciding Whether 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 eligible
to have your claim reviewed under the terms of the
Morrison, Doe & Decker court case.
If You Have a Representative
If a representative is handling your Social Security claim and he or she
is identified in your record, we have sent a copy of this letter to him or
her. However, you might want to tell him or her about this letter
anyway.
If You Have Any Questions
Call or visit any Social Security office. If you do not have a
representative, you may contact one of the Legal Aid offices in your area.
If you visit an office, please bring this letter with you. It will help
us answer your questions.
MORRISON Class Action Case
REDETERMINATION NECESSARY
Claimant's name __________________________________
SSN __________________________________
This claimant is a Morrison class member.
After expiration of the retention period, forward the claims folder(s)
to the address below:
Office of Disability Insurance
Dept. of Social and Health
Services
P.O. Box 9303, M.S. LN-11
Olympia, Washington
98504
(Destination code 1500.)
On ______________, the claimant filed a request for hearing on the issues
raised by (his/her) application(s) dated ____________. The
claimant has now been identified as a member of the
Morrison class entitled to have the final
administrative denial of (his/her) prior application(s) reviewed
under the terms of the stipulation of settlement and compromise approved
by the court on April 4, 1989. Accordingly, the undersigned hereby
dismisses without prejudice the request for hearing filed on __________,
on the application(s) dated ___________.
The claimant's (date of current application(s)) application(s)
(is/are) being associated with (his/her) prior claim(s)
and forwarded to the Washington State Disability Determination Service,
which will conduct the Morrison review. If the
Disability Determination Service issues a determination which is
unfavorable, either in whole or in part, it will return the folders to
this office for automatic reinstatement of the (date of hearing
request) request for hearing.
The Disability Determination Service has returned your claim to this
office for further action on your request for hearing dated _________. The
Disability Determination Service did not take (fully) favorable action in
its redetermination of your prior claim under the
Morrison court order. Accordingly, I have
reinstated your request for hearing and will notify you of the time and
place of the hearing at least twenty (20) days before the date of the
hearing. The reinstatement of your request for hearing dated _______
includes a request for hearing on the Morrison
redetermination.
Submitting Additional Evidence
You have the right to submit new evidence regarding your condition as it
was on or before __________, the date through which the
Morrison redetermination ruled. If you have
additional evidence you want the Administrative Law Judge to consider,
send it to us now or call us within the next seven days to tell us when
you will submit it. If you need help gathering evidence, you should
immediately contact our office, your local Social Security Office, or your
representative if you appoint one.
You May See the Evidence in Your File
If you wish to see the evidence in your file, you may do so on the date of
the hearing. If you wish to review your file before the date of the
hearing, telephone this office.
(Add the following language for unrepresented claimants:
You May Choose to Have a Person Represent You
You are not required to have a representative, but you have the right to
have one. A representative can help you obtain evidence, prepare for the
hearing, and present your case at the hearing. If you wish to have an
attorney or other qualified person represent you, you should appoint the
representative immediately so that he or she can start preparing your
case.
If you want a representative but do not know how to obtain one, we have
enclosed a list of groups that may be able to provide or help you obtain
representation. Some private attorneys do not charge a fee unless you
receive benefits. If you cannot afford to pay for representation, some
organizations may be able to represent you without charging a fee. If your
representative charges a fee, we must approve it.
The enclosed leaflet, 'Social Security and Your Right to Representation,'
provides more information about representation. If you obtain a
representative, you or your representative should call this office to give
us his or her name, address, and telephone number. You will also need to
complete a form that we provide for appointing a representative. Any local
Social Security Office can give you this form.)
We have received your request for hearing on the
Morrison redetermination on your claim(s). This
office will notify you of the time and place of the hearing at least
twenty (20) days before the date of the hearing.
Submitting Additional Evidence
You have the right to submit new evidence regarding your condition as it
was on or before __________, the date through which the
Morrison redetermination ruled. If you have
additional evidence you want the Administrative Law Judge to consider,
send it to us now or call us within the next seven days to tell us when
you will submit it. If you need help gathering evidence, you should
immediately contact our office, your local Social Security Office, or your
representative if you appoint one.
If you believe your condition has worsened or if you believe you have a
new impairment which began after (repeat date previously given),
you may wish to contact your Social Security Office about filing a new
application.
You May See the Evidence in Your File
If you wish to see the evidence in your file, you may do so on the date of
the hearing. If you wish to review your file before the date of the
hearing, telephone this office.
(Add the following language for unrepresented claimants:
You May Choose to Have A Person Represent You
You are not required to have a representative, but you have the right to
have one. A representative can help you obtain evidence, prepare for the
hearing, and present your case at the hearing. If you wish to have an
attorney or other qualified person represent you, you should appoint the
representative immediately so that he or she can start preparing your
case.
If you want a representative but do not know how to obtain one, we have
enclosed a list of groups that may be able to provide or help you obtain
representation. Some private attorneys do not charge a fee unless you
receive benefits. If you cannot afford to pay for representation, some
organizations may be able to represent you without charging a fee. If your
representative charges a fee, we must approve it.
The enclosed leaflet, 'Social Security and Your Right to Representation,'
provides more information about representation. If you obtain a
representative, you or your representative should call this office to give
us his or her name, address, and telephone number. You will also need to
complete a form that we provide for appointing a representative. Any local
Social Security Office can give you this form.)