I-5-4-18-B.Implementation of the Regulations Governing the Standards for Consultative Examinations and Existing Medical Evidence and the Evaluation of Symptoms, Including Pain, in Tennessee Disability Cases

I. Purpose

This Temporary Instruction (TI) provides guidance for implementing the regulations governing the standards for consultative examinations and existing medical evidence (“the CE/MER regulations”), and the evaluation of symptoms, including pain (“the pain regulations”), in Tennessee disability cases. The TI also provides information with respect to the effect of the regulations on the order and final judgment in the Samuels class action.

Although the TI affects only decision makers processing cases of Tennessee residents, decision makers throughout the country must be familiar with the TI because of potential case transfers.

II. Background

On August 1, 1991, the Secretary published the CE/MER regulations in final. Among other things, these regulations govern the evaluation of treating source opinion. Additionally, on November 14, 1991, the Secretary published the pain regulations in final. The subject regulations address issues that the parties and the district court addressed in the Samuels litigation.

On July 6, 1992, based on discussions with plaintiffs' counsel concerning the scope of the Samuels court's previous August 19, 1986 order and March 16, 1987 judgment, and the effect thereof on the Secretary's authority to implement the regulations referenced above, the Secretary moved the court for clarification or, in the alternative, for modification of its previous order and judgment. In the July 6 filing, the Secretary announced his intention to implement the CE/MER and pain regulations for Tennessee residents. The Secretary requested the court to clarify that its previous order and judgment did not prohibit prospective implementation of the regulations in Tennessee disability cases.

On July 8, the court issued a memorandum and order in which it held that there was nothing unclear about its previous orders and judgment and that, therefore, there was no need for clarification or modification. Further, the court noted that there is currently no case or controversy that would give it jurisdiction to render an opinion as to the legality of the Secretary's proposed actions.

III. Guiding Principles

Based on the Secretary's interpretation of the district court's order and judgment in Samuels, the plaintiff class entitled to relief under Samuels is a finite and closed group of claimants. While the development and adjudication of Samuels class member claims will be governed by the provisions of the 1986 and 1987 Samuels order and judgment, the Secretary will apply the CE/MER and pain regulations to the claims of Tennessee residents who are not Samuels class members. Accordingly, except as noted below, OHA decision makers processing claims of Tennessee residents who are not Samuels class members, will apply the CE/MER regulations, published on August 1, 1991, and the pain regulations, published on November 14, 1991, in their entirety.

There is no change in the processing of any Samuels class member case. For OHA decision or dismissal cases, the Samuels class closed August 23, 1987, the day before the date OHA's Samuels instructions in HALLEX I-5-4-18 were implemented. For Tennessee Disability Determination Section (TDDS) determination cases, the class closed November 16, 1986, the day before the date Samuels Program Operations Manual System (POMS) instructions were partially implemented. (The TDDS listed for subsequent review under Samuels those cases that it processed from November 17, 1986, to February 1, 1987, when the Samuels POMS instructions were fully implemented. Cases processed during this timeframe are considered “pipeline” cases and are not Samuels class members. Nevertheless, they will be processed under the Samuels instructions. A separate TI with respect to OHA processing of the pipeline cases will be issued shortly.) OHA decision makers will continue to apply all provisions of HALLEX I-5-4-18, A, to Samuels class member cases, whether they are OHA-jurisdiction cases received directly for redetermination or TDDS-jurisdiction cases received on appeal.

IV. Inquiries

Hearing office personnel should direct any questions concerning this supplemental instruction 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.