I-5-4-18.Processing Pending Cases Under Samuels

Attachment A. Court Orders Dated August 19, 1986 and March 16, 1987

[DATE FILED 08/19/1986]

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ORDER ON PENDING MOTIONS

There are several motions presently before the Court in this class action consisting of persons who were either denied or terminated from disability benefits under Title II (Social Security) or Title XVI (Supplemental Security Income) of the Social Security Act. The defendants in this case are Margaret Heckler, Secretary of the Department of Health and Human Services (the Secretary) and Herbert Brown (Brown), Administrator of the Tennessee Disability Determination Section (TDDS). The Court will address each motion separately.

A. Motions for Summary Judgment

The Court will first address the plaintiffs' and the defendants' Motions for Summary Judgment. Plaintiffs raise seven separate challenges to the policies or practices of the TDDS and/or Secretary Heckler. No material issues of fact are in dispute, and therefore the issues are ripe for adjudication. Each claim, along with any appropriate relief, will be discussed separately.

This document entered on docket sheet in compliance with Rule 58
and/or Rule 79(a), F.R.Civ.P., on 8/20/86

1. General Background

A full understanding of the issues in this case requires a familiarity with the way the Social Security Administration (SSA) determines disability and how appeals are handled.

Determinations of disability are made using a five-step “sequential evaluation process.” At step one,

the Secretary determines whether an individual is engaged in “substantial gainful activity”, if so, benefits are denied. If not, the Secretary determines whether the claimant's medical condition or impairment is “severe”; if found “not severe,” benefits are denied. Third, the Secretary determines whether the claimant suffers from an impairment acknowledged to be so severe that the claimant is presumed to be incapable of pursuing any gainful activity. If so, then the claimant meets or equals the Listing of Impairments and benefits are awarded. However, if the claimant's impairment does not satisfy the Listing of Impairments, the fourth step requires the Secretary to determine whether the individual has a sufficient “residual functional capacity” (RFC) to perform his former work. If so, benefits are denied. If an individual still has not been ruled ineligible for benefits, the fifth step requires the Secretary to take into account the additional considerations of age, education, and past work experience to determine whether the individual is capable of performing any other work available in the economy.

Mental Health Assn. of Minn. v. Heckler, 720 F.2d 965, 969 (8th Cir. 1983) (citations omitted). At the fifth step a chart (called a grid) is employed which, based on a given RFC, take into account the claimant's age, education, and past work experience to determine whether jobs exist in the national economy which he can perform. This grid, based on RFC, is used to determine whether disability benefits are paid.

There are four levels of evaluation within the agency before an appeal to federal court will lie. The first two levels, the initial determination and reconsideration stages, are administered by the TDDS according to policy statements issued by the SSA. These policy statements are called Program Operation Manual System (POMS) directives and are binding upon the agency. A de novo hearing before an Administrative Law Judge (ALJ) and review by the Appeals Council are the latter two stages of review. To guide decisions at these levels, the Secretary issues Social Security Rulings (SSR's) which mirror the content of the corresponding POMS directives used at the preceding levels.

2. Failure to Obtain Proper Medical Assessments

As part of its duty to secure evidence necessary to make disability determinations, TDDS obtains medical reports from both consultative and treating physicians. 20 C.F.R. § 404.1614(a). By regulation, these reports are required to include a medical assessment of the claimant's ability to do such work-related activities as standing, walking, lifting, etc. 20 C.F.R. § 404.1513. This information is to be complete enough to allow TDDS to make a determination of the claimant's residual functional capacity (RFC). Id. At one time, physician assessments were directly relied upon to fix RFC; however, in l982, it was announced that ability to work would thereafter be determined by non-examining state agency medical doctors (SAMD), who were more familiar with the proper criteria. Although this change in policy ended the direct role of examining doctors in setting the RFC, their assessment of the claimants' ability to function is still required by 20 C.F.R. § 404.1513 (above), and Social Security Rulings and POMS continue to “stress the importance of obtaining evidence from medical sources identified by the claimant.” Defendants' Motion for Summary Judgment at p. 25 Contrary to the protestations of the defendants, plaintiffs do not challenge this change. Rather, plaintiffs only object to the response of TDDS.

In March 1982, TDDS began instructing its consulting physicians not only to refrain from making assessments of RFC, but also to exclude from their reports any comments on the claimant's abilities to walk, lift, etc. Request for Admissions, Brown's Response to No. 1, p. 5. Nor was any effort made to obtain this information from treating physicians. This results in making the conclusions of the non-examining agency doctor the only evidence of a claimant's work abilities. Consequently, erroneous determinations of RFC are difficult to overturn since there is no substantial evidence to the contrary. Such practices clearly violate Social Security regulations and the affected class members are entitled to relief. On remand, defendant Brown shall obtain the medical assessments required by 20 C.F.R. § 404.1513 and 416.913 from all treating and consulting physicians from whom they obtain evidence.

3. Failure to Obtain Consultative Examinations from Treating Physicians

Both Sixth Circuit law and SSA directives prefer reports from treating physicians over those of doctors merely consulted to examine a claimant for purposes of disability. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980); Miracle v. Celebrezze, 351 F.2d 361, 379 (6th Cir. 1965); 20 C.F.R. §§ 404.1517, 416.917. When the evidence is not sufficient to make a determination, TDDS is directed to obtain further information from attending physicians, whenever possible. POMS 401.085.

Plaintiffs maintain that TDDS ignores these instructions and obtains supplemental information almost exclusively from consulting doctors. While admitting that treating physicians are rarely used, defendant Brown states that most such physicians lack the facilities to perform the necessary tests, or otherwise do not meet federal standards. Brown Deposition at pp. 98-100. However, he also admits that no inquiries are made to determine whether the qualifications of any particular doctor are inadequate. Although failure to meet federal standards is a legitimate excuse for using a non-attending physician, such a determination must not be made arbitrarily or simply out of a desire for expediency. The admissions of Director Brown make it clear that TDDS has not followed SSA directives. Therefore, on remand, the treating physicians of class members should be used for consultative examinations whenever possible, in accordance with POMS 401.085 and other applicable directives.

4. Comparative Weight Afforded Opinions of Attending Physicians

The plaintiffs contend that the defendants give insufficient weight to the medical reports of treating physicians, in violation of established, Sixth Circuit precedent. The parties agree that a treating physician's opinion is entitled to more weight than that of either an examining physician, consulted by the SSA or of a non-examining, state agency medical doctor (SAMD). See also, King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Stomper v. Harris, 650 F.2d 108, 111 (6th Cir. 1981); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Pointing to Social Security Ruling (SSR) 82-48(c), which notes that greater weight should be given to treating physician's testimony, the Secretary argues that she is already in compliance with this Sixth Circuit law. If all levels of the TDDS are applying SSR 82-48(c), then the Secretary would be correct; however, it is clear that such is not the case. Administrator Brown has admitted that TDDS gives no greater weight to the reports of treating or attending physicians than it gives to the statements of other physicians. Plaintiff's First Request for Admissions (First RFA) No. 20, p. 41. TDDS employees at the initial and redetermination levels have no indication of the superior weight reports of treating physicians should receive. Indeed, it appears that in certain situations, it is actually TDDS policy to accept the opinions of non-examining SAMD's over those of treating doctors. First RFA No. 17, p. 44.

Treating physicians are neither entitled nor competent to make ultimate determinations of disability since such decisions rest on both medical and non-medical considerations. King, 742 F.2d 968. However, in situations where there are conflicting medical opinions as to the extent or severity of a claimants impairment, the opinion of the treating physician, absent special circumstances, should prevail. Only where there are serious questions as to: 1) the treating physician's qualifications, 2) the nature or duration of his relationship to the claimant, or 3) the sufficiency of the treating physician's medical data, would a different result lie. King, 742 F.2d at 973; Montigo v. Secretary of Health and Human Services, 729 F.2d 599, 602 (9th Cir. 1984).

The plaintiffs have shown that injunctive relief is necessary. On remand, the opinions of treating physicians should be afforded the weight required by the Sixth Circuit precedent cited herein.

5.    Objective Evidence of the Severity of Pain

Originally, plaintiffs sought to enjoin the Secretary from applying POMS 401.570 and the identical SSR-82-58; both established agency policy for the evaluations of pain. However, on August 1, 1985, in response to the Social Security Disability Benefits Reform Act of 1984, the defendant replaced the contested directives with ones the plaintiffs do not find objectionable. Although the original issue is now moot, plaintiffs still seek relief in the form of an order requiring the Secretary to reconsider her denial of benefits in light of these new standards. Such an order would be appropriate only if POMS 401.570 and SSR 82-58 were illegal when applied.

POMS 401.570 provided that complaints of pain would not be considered for purposes of determining disability unless there was both 1) objective proof of a medical condition capable of producing the pain, and 2) objective proof of the severity of the pain. Consequently, complaints of pain out of proportion to the diagnosed medical condition were ignored. The plaintiffs maintain that such a standard violated the established precedent of the Sixth Circuit. The Court agrees. This circuit has repeatedly recognized that pain may be intense enough to disable without objective medical evidence to establish its severity. King v. Heckler, 742 F.2d 968, 974-5 (6th Cir. 1984); Beavers v. Sec. of H.E.W., 577 F.2d 383, 386 (6th Cir. 1978). The plaintiffs are therefore entitled to the relief sought. On remand defendants shall process plaintiffs' applications for disability benefits under standards consistent with the Sixth Circuit precedent cited herein.

6. Consideration of the Combined Effect of Nonsevere Impairments

The plaintiffs also attack the validity of the Secretary's decisions based on POMS 401.410 and its corresponding Social Security Ruling, SSR-82-55. These directives, which listed a number of impairments considered “nonsevere,” stated that “[lsqb ]i[rsqb ]nasmuch 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.” This policy was rescinded effective December 1, 1984. The defendants maintain that this rescision was made in response to changes made by the 1984 Disability Benefits Reform Act, and that their prior policy was legal. The Court disagrees. The plain wording of the Social Security Act itself undermines the defendants' arguments. In defining disability, it states that:

[a]n 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 engage in any other kind of substitute gainful work.

42 U.S.C. 423(d)(2)(A) (emphasis supplied); See also, Johnson v. Heckler, 593 F. Supp. 375, 381 (M.D. Ill. 1984), aff'd 769 F.2d 1202, 1213-15 (7th Cir. 1985). In addition, the rulings in this and other circuits make it clear that the combined effect of a claimant's multiple impairment must be considered in reaching a determination. Mowery v. Heckler, 771 F.2d 966, 971 (6th Cir. 1985) (impairments in this Circuit must be viewed in combination); Johnson v. Heckler, 769 F.2d 1202, 1213-15 (7th Cir. 1985); Allen v. Califano, 613 F.2d 139, 147 (6th Cir. 1980).

Because POMS 401.410 and SSR-82-55 violated the Social Security Act and the law of this Circuit, determinations based thereon must be reopened and reconsidered in light of the combined effect of nonsevere impairments.

7. Individualized Assessments of the Severity of an Impairment and of Residual Functional Capacity (RFC)

The plaintiffs next attack six of the Secretary's disability directives on the basis that they prevent an individualized assessment of each claimant's disability. It is clear that determinations of disability must be made on a case by case basis. Heckler v. Campbell, 461 U.S. 458, 467 (1983); Beavers v. Sec. of HEW, 577 F.2d 383 (6th Cir. 1979); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). The effect of a given impairment on a hypothetical “average man” is not sufficient since “different people can react in markedly different ways to the same injury.” Landess v. Weinberger, 490 F.2d 1187 1190 (8th Cir. 1974); Walston v. Gardner, 381 F.2d 580 (6th Cir. 1967).

Plaintiffs first attack POMS 401.410 and its corresponding SSR-82-55, which contain a list of twenty (20) impairments always considered nonsevere. However, in April of 1985, these directives were rescinded and replaced with standards which actually consider the degree an impairment interferes with a claimant's ability to work. Although the present standards are not objectionable, the Court recognizes that this change was of little benefit to affected class members denied benefits under the prior illegal standards. Therefore on remand, plaintiffs who were excluded from benefits due to a reliance on POMS 401.410 or SSR-82-55 shall have their cases redetermined under the new standards.

Plaintiffs next challenge POMS 401.545 and Informational Digest (ID) 82-5. These directives involve the determination of an applicant's residual functional capacity (RFC) — the level of work a claimant can perform in spite of his severe impairment. RFC is divided into five categories of work ability: sedentary, light, medium, heavy and very heavy. POMS 40l.655, see Plaintiff Motion, n.5 p. 147. Once RFC is determined, it is evaluated along with the claimant's age, education and work experience to reach an ultimate decision as to disability. The more limited the RFC, the more likely an applicant will be found disabled. The challenged directives, however, provide that a person with obstructive airway disease, who does not automatically qualify as disabled under the Listing of Impairments, (Step 3 of the sequential evaluation), is always precluded from receiving a RFC for sedentary work. Obviously these rules do not allow for the individualized assessment required by law and therefore are unacceptable. Claimants who were affected by these directives are entitled to a redetermination which includes an individualized assessment of their RFC.

Finally, plaintiffs attack POMS 401.590 and SSR-82-51, which set RFC guidelines for sixteen (16) musculoskeletal and cardiovascular impairments. Plaintiffs maintain that these directives make required findings of RFC without assessing the claimant individually. The Court disagrees. RFC levels are cumulative; each succeeding level includes the ability to do work at the preceding level unless there are additional limiting factors. POMS 401.655, Plaintiffs' Motion, FNS at pp. 147-48. Thus the ability to do heavy work generally includes the ability of perform sedentary, light and medium work as well. The guidelines challenged here are not objectionable since they only operate to exclude RFC levels at the upper ends of the scale.

POMS 401.590(b)(5), which the plaintiffs specifically challenge in their brief states:

5. Amputation of lower extremity at or above the tarsal region, but below the knee, with ability to use prothesis effectively. Heavy work activity would be preluded. Usually there is no significant restriction in the ability to walk or stand unless there is a complication of the amputation site. There would be a limitation on excessive climbing of stairs and walking on grossly uneven terrain and operating foot controls with the affected extremity.

(emphasis supplied.) It is clear that this POMS only precludes a claimant from being found fit to do heavy work. It therefore operates in his favor since it automatically prevents him from being considered for heavy work. This differs from the POMS previously discussed, which automatically excluded claimants from the most favorable RFC rating. Moreover, these guidelines do not make standardized assessments of a claimant's remaining capacity is clear from the wording of (b)(5) and its companion sections that subjective differences are taken into account. In describing an individual's expected remaining ability, the directives speak in indefinite terms, using such words as “usually” (b)(5) or “ordinarily” (b)(10), or stating that consideration must be given to the way in which the impairment actually affects the claimant.

Because POMS 401.490 and SSR-82-51 do allow for an individualized assessment of the affect of the claimant's impairments, plaintiffs' Motion for Summary Judgment is denied and defendants' Motion for Summary Judgment is granted.

8. Publication of POMS Directives in the Federal Register

The plaintiffs next challenge the validity of several POMS directives on the basis that they are substantive rules requiring publication in the Federal Register. Only the validity of POMS 401.490 is at issue since the other challenged directives have either been rescinded by the SSA (POMS 401.410 and 401.570) or previously addressed and voided by the Court (401.545).

Although the Administrative Procedures Act (APA) requires most rules to first be published in the Federal Register, it does make an exception for “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). The defendants invoke this exception, maintaining that POMS 401.490 merely interprets the underlying regulation. The Court disagrees. Sections 20 C.F.R. 404.1546 and 416.946 (the identical SSR provision) state that RFC is to be determined by a state agency medical doctor (SAMD) based upon all available “medical evidence.” In contrast, POMS 401.590 excludes a finding of certain RFC levels at the outset, no matter what the available medical evidence may show. The Court cannot say that this is merely an interpretation of the regulation. Unlike cases which have found a rule interpretative, there is no word or phrase which is being more precisely defined by the agency. See, American Postal Workers Union v. United State Postal Service, 707 F.2d 548, 559 (D.C. Cir. 1983) (interpreted the phrase “annual basic salary”); Allen v. Bergland, 661 F.2d 1001 (4th Cir. 1981) (interpreting the word “income”). Therefore the Court finds that POMS 401.590 is void since, as a substantive rule, it was not published for notice and comment under 4 U.S.C. § 553. However, since the Court believes this POMS to have been beneficial to applicants, since it operated to automatically exclude claimants from less favorable RFC ratings, no injunctive relief will be ordered.

9. Relief

The Court has found that defendants have: 1) failed to obtain proper medical assessments of claimants' work-related abilities; 2) failed to obtain consultative examinations from treating physicians; 3) failed to place appropriate weight on the opinions of treating physicians; 4) employed standards which improperly required objective evidence of the severity of pain; 5) employed standards which improperly failed to consider the combined effects of nonsevere impairments; and 6) employed standards which failed to allow individualized assessments of RFC and of the actual severity of impairments. The Court has already stated that affected plaintiffs are entitled to new determinations based upon proper standards. See Branham v. Gardener, 383 F.2d 614, 626-27 (6th Cir. 1967).

Plaintiffs are also entitled to the following relief:

1. full retroactive benefits if the re-evaluation shows that benefits were improperly denied. See Johnson v. Heckler, 593 F. Supp. 375, 382 (N.D. I11. 1984) aff'd 769 F.2d 1202, 1215 (7th Cir. 1985).

2. notification by certified mail informing class members both of their right to request a redetermination and their responsibility for making such a request within 120 days of receipt of their notice.

3. defendants shall issue written instructions to the affected personnel, informing them of the contents of this Court's order and instructing them on the procedures to be used in its implementation.

B. Defendant's Motion to Remand and Dismiss

Also pending before the Court is the defendants' motion to remand and dismiss the claims of class members who were terminated from the disability rolls. Under the terms of the Agreed Order for Remand, the cases of terminated class members have recently been sent back to the Secretary for redetermination according to the medical improvement standards set forth by Congress in the Social Security Disability Benefits Act of 1984 (1984 Act). However, the defendants continue to seek the dismissal of all remanded claims, maintaining that such a result is mandated by the 1984 Act. The terminated plaintiffs oppose dismissal since they have raised other claims not related to medical improvement.

It is well settled that a court does not normally lose jurisdiction of remanded cases. Avery v. Secretary of HHS, 762 F.2d 158 (1st Cir. 1985); Zambrona v. Califano, 651 F.2d 842, 844 (2d. Cir. 1981). Likewise, “[a]bsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction” Califano v. Yamasaki, 442 U.S. 682, 705 (1979). The portion of the 1984 Act which requires remand addresses medical improvement cases only; it does not speak to the plaintiffs' other claims. Presented with the same question, the First Circuit stated: “The conclusive answer to this argument, however, is that the act says the court shall “remand” the case; it does not say the court must dismiss the action.” Avery, 762 F.2d at 163. See also, Heckler v. Kuehner, 105 S.Ct. 376 (1984) (the Court ignored an opportunity to dismiss and only remanded instead); Lopez v. Heckler, 753 F.2d 1464 (9th Cir. 1985); Holder v. Heckler, 615 F. Supp. 682 (M.D. Ohio 1985). Standards for redetermination should not vary according to whether the case was previously remanded. Absent pre-emption by Congress, the Court has a duty to award the same relief for each plaintiff. Therefore, on re-evaluation, the remanded cases shall be reviewed in light of both: 1) the new medical improvements standards embodied in the 1984 Act, and 2) the injunctive relief granted in response to the parties' motions for summary judgment.

C. Motion to Decertify the Class

Also before the Court is defendants' Motion to Decertify the Class. The defendants argue that plaintiffs have met neither the commonality nor typicality requirements of Rule 23 and that the need for the class has been mooted by passage of the Social Security Disability Benefits Reform Act of 1984 (1984 Act). All of these contentions are without merit.

Two of the requirements for maintaining a class action are that there be “questions of law or fact common to the class” and that the “claims or defenses of the representative parties are typical of the claims and defenses of the class.” Fed. R. Civ. P. 23(a)(2) and (3). The plaintiffs clearly meet both of these criteria. The plaintiffs claim that the policies and practices of the defendants have resulted in the wrongful denial or termination of class members' disability benefits. The admissions of defendant Brown and the policies of the defendant Heckler speak for themselves. The acts complained of were uniformly applied throughout Tennessee and this obviously raises common questions of law for the entire class.

The typicality requirement is also satisfied. The defendants complain that each of the named plaintiffs attack different rules or practices. However, this misses the point. Rule 23 requires that the claims of the class representatives be similar to those of the class members not that the claims of the class representatives themselves be similar. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 142 (1982) (the class representatives must possess the same interest and suffer the same injury as the class). As the plaintiffs point out, defendants have confused the requirements for joinder with those for class action.

As a final justification for decertification, the defendants raise the 1984 Act. They claim that “in large part, Congress has mooted the class claims in this case.” Defendants' Motion to Decertify at 4. However, this very statement exposes the fallacy of defendants' argument since it admits that the 1984 Act does not address all of the plaintiffs' claims. The plaintiffs' case has not been mooted.

The defendants' Motion to Decertify is denied.

D. The Payment of Interim Benefits

The final controversy before the Court concerns the payment of interim benefits and stems from the plaintiff's “Notice” of December 23, 1985.

On December 13, 1985, the Court remanded all “medical improvement” claims to the Secretary for redeterminations pursuant to the Social Security Disability Benefits Reform Act of 1984 (1984 Act). The 1984 Act allows “any individual whose case is remanded” to elect to receive interim benefits “beginning with the month in which he makes such election,” Sec. 2(e). On December 18, 1985, counsel for the plaintiffs made a blanket election for the class, thereby attempting to lock in December benefits for the class. The defendants object to this “protective filing date,” maintaining that the 1984 Act requires individual class members, not the class action attorney, to make the election. The Court agrees.

Both the wording and the structure of the 1984 Act indicate Congress' intent to require individual claimants to make the election. The 1984 Act itself states that “Any individual ... may elect ... to have payments made beginning with the month in which he makes such election,” Sec. 2(e) (emphasis supplied). Likewise, Sec. 2(d), which mandates the terms of the remand, requires the Secretary to notify each “individual” that he may request a review of the previous determination. Sec. 2(d)(4). Moreover, the Court is mindful that the very purpose of the remand was to end class action litigation on the subject of medical improvement. Congress intended each individual redetermination to be “regarded as a new decision.” Sec. 2(d)(4). Continued orchestration by class attorneys is inconsistent with this goal.

In support of their position, plaintiffs' attorney point to 20 C.F.R. § 404.630 and 416.340 which they claim “directly address the issue.” Plaintiffs' Memorandum of January 17, 1986. These regulations adopt the date of filing as the date of application in cases where third parties have applied for benefits on behalf of another. However, these general regulations, which are apparently intended to apply only to the initial application process, 20 C.F.R. § 404.601, are in direct conflict with the specific terms of the 1984 Act. Under the plaintiffs' theory, 20 C.F.R. § 404.630(c) allows a claimant six (6) months following the protective filing of the class attorney to make his individual filing for benefits. However, the 1984 Act specifies that an individual has 120 days to request review after he has been notified of the remand. See also, 416.340(c) (requires submission of application within sixty (60) days). It is clear that these regulations were not designed to apply in this situation.

The defendant need only pay interim benefits from the month in which an individual's request is received.

E. Conclusion

Plaintiff's Motion for Summary Judgment is granted in part and denied in part (see part A). Defendants' Motion to Dismiss and Motion for Decertification are denied (see parts B and C, respectively). Interim benefits need only be paid from the month an individual's request is received (see part D).

IT IS SO ORDERD

ENTER: This 14th day of August, 1986.

_______________/s/____________

ROBERT M. McRAE, JR.
UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURTS
FOR THE WESTERN DISTRICT OF TENNESSE
WESTERN DIVISION

[DATE FILED 03/16/1987

This document entered on docket in compliance with Rule 58
and/or 79(a), F.R.Civ.P., on 3/16/87

JUDGMENT

On August 19, 1986, this Court entered an order granting in part plaintiffs' Motion for Summary Judgment. This judgment is entered to implement the Court's August 19, 1986 order, which is incorporated herein by reference.

A. Notice Procedures

On December 13, 1985, an agreed order was entered in this cause setting forth the notice procedures applicable to members of the plaintiff class who had been terminated from disability benefits. Those same procedures are adopted herein and shall be followed by the Secretary of Health and Human Services (the Secretary) in providing notice to all class members of this Court's order of August 19, 1986, except those class members who previously requested reevaluation pursuant to this Court's order of December 13, 1985.

The defendants shall prepare a notice clearly informing class members of their rights under this judgment. In addition, plaintiffs' counsel will also be allowed to include a notice of their own in the mailing to be sent out by the defendants.

B. Substantive Standards

1. Duty to Obtain Medical Assessments

The Tennessee Disability Determinations Section (TDDS) shall obtain the medical assessments required by 20 C.F.R. §§ 404.1513 and 416.913 from each treating and consulting physician from whom evidence is acquired. These assessments shall be complete enough to allow a determination of residual functional capacity and, at a minimum, shall request how many hours in an eight-hour day a claimant can walk, stand and sit and how much weight can be lifted for one-third and two-thirds of a work day.

2. Duty To Obtain Consultative Examinations From Treating Physicians

When the medical evidence is not sufficient to make a disability determination, TDDS shall obtain consultative examinations from treating physicians whenever possible, in accordance with POMS 401.085 and other applicable directives.

3. Duty to Give Greater Weight to the Opinion of Treating Physicians

TDDS shall give greater weight to the testimony of treating physicians when there are conflicting medical opinions as to the extent of severity of claimant's impairments. See King v. Heckler, 742 F .2d 968, 973 (6th Cir. 1984). Only where there are serious questions as to: 1) the treating physicians' qualifications; 2) the nature or duration of his relationship to the claimant; or 3) the sufficiency of the treating physicians' medical data, would a different result lie. King at 973.

4. Duty to Evaluate Pain

Complaints of pain, even if not supported by objective medical evidence, shall be considered by TDDS in evaluating disability claims. See King v. Heckler, 742 F.2d 968 (6th Cir. 1984), Beavers v. Secretary of H.E.W., 577 F.2d 383 (6th Cir. 1978).

5. Duty to Consider the Combined Effect of Non-Severe Impairments

TDDS, in determining whether a claimant has a severe impairment, shall consider the combined effect of all non-severe impairments in reaching a disability decision.

6. Duty to Individually Assess Severity of Impairments and Residual Functional Capacity

TDDS shall make decisions on a case by case basis in determining the severity of impairments or the residual functional capacity of claimants.

C. Implementation of Substantive Standards

The Secretary and TDDS shall issue written instructions to the affected personnel, informing them of this Court's order and instructing them on the procedures to be used in its implementation.

Affected plaintiffs are entitled to new determinations based upon the standards outlined in this judgment and full retroactive benefits if reevaluation shows that benefits were improperly denied.

D. Monitoring of Compliance

The defendants shall provide plaintiffs' counsel copies of instructions and Program Operations Manual System (POMS) directives, issued to TDDS and Social Security Administration (SSA) components for use in determining whether individuals are class members and in processing their claims in accordance with the Court's judgment at least ten days prior to their effective date. However, when instructions are issued on an emergency basis, the ten-day requirement shall not apply. In such cases, SSA will send copies to plaintiffs' counsel as far in advance as is possible and not later than the effective date of the instructions.

In addition, the defendants shall provide statistical information to plaintiffs' counsel on a quarterly basis regarding: the number of notices sent to potential class members; and the number of claims reviewed by the defendants pursuant to the August 19, 1986 order. The defendants shall also provide plaintiffs' counsel a copy of the screening sheet used to determine class membership for each individual claiming membership in the Samuels class but not found to be a class member.

IT IS SO ORDERED

Entered this 16th day of March, 1987, at the direction of Robert M. McRae, Senior United States District Judge, Western District of Tennessee

______________/s/___________

O. Franklin Reid, Clerk
United States District Court
Western District of Tennessee

Attachment B. POMS DI 24515.060 Regarding Pain

TN 
4     10-86                                 DI 

24515.060

24515.060 Evaluation of Pain and Other Symptoms

A. General

Proper consideration of the effect of pain (and other symptoms) on an individual's ability to work is an important part of the disability evaluation process. Because pain is subjective, the existence of pain and the extent to which pain affects the individual's functional ability to do basic work activities is difficult to evaluate.

The Social Security Disability Benefits Reform Act of 1984, included statutory language which, as explained by Congress, mirrors the basic policies for the evaluation of pain in disability cases. The legislation also called for the establishment of a commission on the Evaluation of Pain to conduct a study, in consultation with the National Academy of Sciences, concerning the evaluation of pain in determining disability. The report of this Commission may lead to changes in our policy for evaluating pain.

B. Need to Establish a Medically Determinable Impairment

Under existing guidelines (see DI 24501.025), pain cannot be found to have a significant effect on a disability determination or decision unless medical signs or findings show that a medically determinable physical or mental impairment is present that could reasonably be expected to produce the pain alleged. This policy has now been codified by the legislative language in Pub. L. 98-460, section 3(a)(1), which states, in part, “there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged....”

When medical findings do not substantiate any physical impairment capable of producing the alleged pain (and a favorable determination cannot be made on the basis of the total record), the possibility of a mental impairment as the basis for the pain should be investigated.

C. Consideration of Pain in Establishing the Severityof a Medically Determinable Impairment

Once a medically determinable physical or mental impairment is documented, the effects of pain must be considered as you proceed through each step of the sequential evaluation.

1. IS THE CONDITION SEVERE?

To be found disabled, an individual must have a medically determinable severe impairment(s). To be considered severe the impairment, or combination of impairments, must significantly limit the individual's physical or mental ability to do basic work activities. In determining whether an impairment is severe, full consideration is given to all material evidence, including signs, symptoms (such as pain), and laboratory findings. Where the degree of pain reported is consistent with a level that can reasonably be associated with the objective findings presented, the conclusion that the impairment is severe must be based on a determination that the total evidence, including the alleged pain, establishes that the individual's ability to do basic work activities is significantly limited. However, where the degree of pain alleged is significantly greater than that which can be reasonably anticipated based on the objective physical findings, the allegation of pain must be carefully explored further in terms of any additional limitation(s) imposed by the pain on the individual's functional ability beyond those limitations indicated by the objective findings before any conclusions about severity can be reached (See DI 24501.025.)

2. ARE THE FINDINGS ABOUT THE INDIVIDUAL'S IMPAIRMENT IDENTICAL TO THOSE IN THE LISTING?

Disability may be established on a medical basis alone if the criteria of an impairment cited in the Listing of Impairments are met or equaled. Some listed impairments include symptoms among the requisite criteria. For example, Listing 1.04 requires a history of joint pain and stiffness. When a symptom, such as pain, appears as a criterion (as in Listing 1.04), it is ordinarily essential only that the symptom be present in combination with the remaining criteria. Unless specifically indicated (as in Listing 1.04A, which requires that abduction of both arms at the shoulders, including scapular motion, be restricted to less than 90 degrees), quantification or evaluation of the intensity or of the functionally limiting effects of that symptom is not required to determine whether the documented findings meet the requisite criteria. (See DI 2450.025.)

3. ARE THE FINDINGS ABOUT THE INDIVIDUAL'S IMPAIRMENT(S) EQUIVALENT TO THOSE FOR AN IMPAIRMENT(S) IN THE LISTING?

In considering whether documented findings and symptoms are of equivalent severity to the requisite findings and symptoms of a listed impairment, look to see whether the set of symptoms, signs, and findings present are of equal or greater significance than those in the listed criteria. However, an alleged or reported increase in the intensity of a symptom, cannot be substituted no matter how severe, for a missing or deficient sign or finding to elevate impairment severity to equivalency to the listed impairment. For example, a history of severe, persistent joint pain cannot be substituted for the required x-ray evidence of either joint space narrowing with osteophytosis or bony destyruction (with erosions or cysts) in Listing 1.04 to draw a conclusion of “equal”.

D. Consideration of the Intensity and Persistence of Pain in Determining Functional Capacity

If the listing is not met or equaled, a residual functional capacity (RFC) assessment is necessary to determine the effects of the impairment, including any additional limitations imposed by pain, on the claimant's capacity to perform former work or other work. Medical history and objective medical findings, such as evidence of muscle atrophy, reduced joint motion, muscle spasm, sensory and motor disruption, are usually reliable indicators from which to draw reasonable conclusions about the intensity and persistent of pain and the effect such pain may have on the individual's work capacity. Whenever available, this type of objective medical evidence must be obtained and, as expressed in Pub. L. 98-460 “must be considered in reaching a conclusion as to whether the individual is under a disability.”

There are situations in which an individual's alleged on reported symptoms, such as pain, suggest the possibility of a greater restriction of the individual's ability to function than can be demonstrated by objective medical findings alone (see DI 24501.025). In such cases, reasonable conclusions as to any limitation on the individual's ability to do basic work activities can be derived from the consideration of other information in conjunction with medical findings. This is consistent with recent court decisions, as well as with the statutory language which requires that statements of the claimant or his/her physician as to the intensity and persistence of pain or other symptoms “which may reasonably be accepted as consistent with the medical signs and findings” are to be included in the evidence to be considered in making a disability determination.

When the claimant indicates that pain is a significant factor of his/her alleged inability to work, and the allegation is not supported by objective findings in file, the adjudicator shall obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant, his/her physicians from whom medical evidence in being requested, and other third parties who would be likely to have such knowledge.

In developing evidence of pain or other symptoms, it is essential to investigate all avenues presented that relate to subjective complaints, including the claimant's prior work record and information and observations by treating and examining physicians and third parties, regarding such matters as:

1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;

2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);

3. Type, dosage, effectiveness, and adverse side effects of any pain medication;

4. Treatment, other than medication, for relief of pain;

5. Functional restrictions; and

6. The claimant's daily activities.

E. Importance of Considering Allegations of Pain and Explaining Conclusions Reached

In evaluating a claimant's subjective complaints of pain, the adjudicator must give full consideration to all of the available evidence, medical and other, that reflects on the impairment and any attendant limitations of function.

In the SSA-4734-F4 RFC assessment, the medical consultant is to describe the relationship between the medically determinable impairment and his/her conclusions of RFC which have been derived from the evidence, including a discussion of why reported daily activity restrictions are or are not reasonably consistent with the medical evidence.

In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individual's subjective complaints solely on the basis of such personal observations. Rather, in all cases in which pain is alleged, the determination rationale is to contain a thorough discussion and analysis of the objective medical and nonmedical evidence, including the individual's subjective complaints and the adjudicator's personal observations. The rationale is then to provide a resolution of any inconsistencies in the evidence as a whole and set forth a logical determination of the individual's capacity to work.

F. Consideration of Pain In Determining RFC

The following two examples show the kind of information and discussion which should be included in RFC assessment in cases involving pain.

Example 1 presents a picture of an individual with a severe medically determinable impairment who alleges pain with attendant limitations of function as reflected in his stated restrictions in daily activities. In this example, the clinical findings are consistent with both the complaints of pain and with the individual's stated limitations. Thus, the adjudicator, in reviewing all of the available evidence, including the statements of the claimant and his treating physician, is free to conclude that the individual's allegations of pain are reasonably consistent with the medical signs and findings and would result in the stated restrictions in the individual's ability to work in consideration of his RFC, and his age, education, and work experience.

In example 2, a different situation is presented. In this example, the objective medical evidence supports a finding that the claimant has a severe physical impairment but does not substantiate the alleged degree of limitation due to pain. As is proper, consideration has been given to the possibility of a mental impairment, but the treating physician states there is no psychiatric condition and the evidence supports this statement. A further review of the medical evidence fails to establish the presence of any objective findings. (e.g., muscle spasm, sensory or motor loss, leg pain, or muscle wasting), typically associated with the type of functionally limiting back pain alleged by the claimant. Thus, the evidence does not support a reasonable conclusion that additional pain-related physical or functional restrictions exist beyond those imposed by the effects of the documented spinal fusion.

However, the adjudicator, as explained in DI 24501.025, must be aware that symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder. Thus, before a complete evaluation of this individual's RFC can be made, a full description of the individual's prior work record, daily activities and any additional statement from the claimant, his or her treating physician or other third party relative to the alleged pain must be considered. Only then is it possible to fully assess whether the pain is reasonably consistent with the objective medical findings and to determine RFC.

1. Effects of Pair Supported by the Evidence

History of a ruptured disc, with a hemilaminectomy and disc excision at L4-5. Postoperatively, continues to have back pain. Repeated examination to date reveal consistent findings, including limitation of forward bending of the spine to 45 degrees, extension to 5 degrees, no limp on walking or significant difficulty in heel or toe walking, difficulty in climbing on to examining table, with back pain when lying flat; straight-leg raising positive at 30 degrees on right; 70 degrees on left; depressed right achilles reflex; marked tenderness over right lumbar spine, with marked spasm of the paraspinal muscles; increased back pain on forward flexion, with splinting of lower spine to the left; no motor or sensory loss or other neurological abnormality. Wears a chairback brace and takes 8-10 aspirin daily and codeine occasionally.

Treating physician states that pain is a significant factor in the individual's current activity restrictions and that he advised the claimant to avoid lifting heavy or bulky objects. In addition, claimant states that the continued pain prevents walking more than two blocks, prevents his lifting his two-year-old grandson, and limits him to light household chores.

The objective findings, by themselves, support a conclusion that the individual should not lift or carry more than 50 lbs or frequently lift or carry more than 25 lbs. Frequent bending is also precluded. The clinical findings are consistent with both the complaints of pain and with the individual's stated limitations. Therefore, it is concluded that, due to pain, the individual's functional capacity to stand and walk is restricted to less than 6 hours (but more than 2 hours) per day. Sitting is unlimited.

Although the individual's lifting and carrying ability is part of medium work, the vast majority of medium jobs also would require being on one's feet for a total of about 6 hours of an 8-hour workday, with frequent bending at the waist as well as bending of the knees. Since the individual cannot do frequent bending and further can stand and walk only between 2 and less than 6 hours a day, most jobs at both the medium and light levels of exertion are ruled out by the effects of the impairment. Jobs compatible with the RFC would be those at the sedentary level of exertion, as well as light and medium jobs which are performed in a sealed position.

2. Effects of Pain Unsupported by the Evidence

History of disc excision at L3-4 2 years ago; subsequent disc excisions at L4-5 and L5-SI, with spinal fusion of L3-S1. Current examination by treating physician, shows forward bending of the spine to 50 degrees, extension to 10 degrees; all movements guarded but no actual difficulty in heel and toe walking or climbing on to the examining table, complaints of back pain on straight-leg raising at 60 degrees bilaterally, but no radiation of pain into legs; moderate tenderness to deep palpation of lumbar paraspinous muscles, but no muscle spasm; no sensory or motor loss, absent left achilles reflex, but no other neurological deficit, leg circumferences equal; X-rays show solid fusion with no movement; wears chairback brace and takes 15-20 aspirin daily, Darvon 4X daily.

Treating physician states that there is no psychiatric condition (the evidence supports this) and that spinal fusion and continued complaints of back pain alone prevent all work activity indefinitely. Claimant states that he has constant pain, worse on walking or standing, and is unable to do any household chores.

On the basis of the spinal fusion, lifting and carrying is limited to 50 pounds. Frequent lifting and carrying is limited to 50 pounds. Activities involving frequent bending of the back are precluded. In spite of the claimant's statements and the physician's opinion, the objective medical evidence establishes the absence of any findings (e.g., muscle spasm, sensory or motor loss, leg pain, or muscle wasting, etc.) that are typically associated with functionally limiting back pain. Although claimant does have back pain, the medical evidence, including physical examination, demonstrates no pain related physical or functional limitations beyond those imposed by the effects of the spinal fusion. The capacity to stand, walk, and sit is unlimited.

Here, again, the capacity to lift 50 pounds maximum with frequent lifting or carrying of objects weighing up to 25 pounds is part of medium work capacity. However, this is compromised by inability to bend the back frequently. Having unlimited capacity to stand, walk, and sit, and being able to meet the lifting and carrying demands of light work, where frequent bending of the back is not required for the majority of light jobs, the individual can be expected to do sedentary work and substantially all light jobs. He could also do medium jobs which are performed in a seated position or which do not require frequent stooping or bending (such a might have been the case in a past job.

Attachment C. Samuels Checklist

32555.020 Exhibit - SAMUELS COURT ORDER CHECKLIST

(TO BE COMPLETED ON ALL DENIALS AND CESSATIONS)

Name_________________________________ SSN______________________________

________________________ _________________________ ______________________

Signature                                        Title                              Date

Attachment D. Order for Return of Case to Tennessee Disability Determination Section

ORDER

On March 16, 1987, the U.S. District Court for the Western District of Tennessee issued a final judgment in Samuels, et al. v. Bowen, et al., which incorporated by reference its previous order of August 19, 1986. This court action affects certain Tennessee residents who have filed disability claims and includes specific requirements for obtaining medical development. The claimant has been found to be a member of the class certified under Samuels, and (his/her) pending claim must be adjudicated under the terms of the court's order.

Substantial development is needed to satisfy the requirements of the Samuels order. Accordingly, the case is being returned to the Tennessee Disability Determination Section for this purpose in accordance with Samuels. In view of the foregoing, the prior determination dated _________, finding that the claimant is not disabled, and any subsequent determinations or decisions on this issue are hereby vacated. A new determination will be made as to whether the claimant is disabled. The claimant will be notified of this new determination and of the right to a hearing if (he/she) thinks the decision is wrong.

Notice of this action is hereby given by mailing a copy to the claimant (and the representative).

__________/s/_______________

Administrative Law Judge

Date:

Claimant's Name and Address:

Representative's Name and Address

Attachment E. Sample Medical Development Form

REQUEST FOR TENNESSEE DISABILITY DETERMINATION SECTION ASSISTANCE
UNDER Samuels COURT ORDER

Attachment F. Sample Appeals Council Remand Order

ORDER OF APPEALS COUNCIL

Remanding Case to Administrative Law Judge

This case is before the Appeals Council based on the claimant's request for review of the Administrative Law Judges's decision issued on _______________.

On August 19, 1986, the U.S. District Court for the Western District of Tennessee issued an order in Samuels, ate al. v. Bowen, et al., which was incorporated by reference in a final judgment issued on March 16, 1987. This order applies statewide in Tennessee for disability claims under titles II and XVI. The court required that specific criteria and procedures be followed in evaluating disability claims for members of the class. Since the claimant is a member of the Samuels class, (his/her) claim must be adjudicated under the provisions of the court's order.

[Describe problem(s) with hearing decision.] (Further, the Appeals Council is of the opinion that is/are needed before a decision can be reached in this case.) The Appeals Council, therefore, in accordance with the court's order and pursuant to (20 CFR 404.970 and 404.977,) OR (20 CFR 416.1470 and 416.1477,) OR (20 CFR 404.970, 404.977, 416.1470, and 416.1477,) grants the request for review, vacates the hearing decision and remands this case to the Administrative Law Judge for further proceedings, including a new decision which will address all the pertinent adjudicative criteria of the Samuels order.

[Add any special instructions to the Administrative Law Judge.]

The Administrative Law Judge may take any action not inconsistent with this order of remand.