I-5-4-26.Boyd, et al. v. Bowen
| Purpose | |
| Background | |
| Guiding Principles | |
| Definition of Class | |
| Determination of Class Membership and Preadjudication Actions | |
| Processing and Adjudication | |
| Inquiries | |
| - Boyd Screening Sheet | |
| - Boyd Court Case Flag/Alert | |
| - Boyd Case Flag For Screening | |
| - Class Membership Denial Notice — Title II | |
| - Class Membership Denial Notice — Title XVI | |
| - Route Slip for Non-Class Member Cases | |
| - Route Slip for Class Member Cases | |
| - Boyd Class Member Flag (for reopening) | |
| - ALJ Remand to DDS | |
| - Notice Transmitting ALJ Order of Remand |
ISSUED: July 6, 1990
I. Purpose
This Temporary Instruction (TI) contains instructions for implementing the September 26, 1989, order of the U.S. District Court for the Western District of Missouri in the Boyd, et al. v. Bowen class action. This order directs the reopening and readjudication of title II and XVI disability claims of certain Missouri residents and former residents which were denied in 1983 and 1984. The Boyd order requires the Secretary to reopen and reconsider the claims of most class members at the disability determination service (DDS) reconsideration level with full appeal rights to the next level of appeal, i.e., an Administrative Law Judge (ALJ) hearing. The only Boyd claims which will come directly to OHA for screening and readjudication are certain cases in which the claimant has a subsequent claim pending at the OHA level.
Adjudicators throughout the country must be familiar with this TI because Boyd class members who now reside outside Missouri must have their claims processed in accordance with the requirements of the court order.
II. Background
On July 17, 1984, the U.S. Court of Appeals for the Eighth Circuit accepted settlement language in Polaski, et al. v. Bowen, 739 F.2d 1320 (1984), regarding the evaluation of pain and other subjective complaints and ordered that this standard be followed in all administrative and judicial proceedings within the Eighth Circuit (including Missouri). The Secretary promptly notified adjudicators of the court-approved standard, and the court's order remains in effect for all administrative and judicial proceedings within the Eighth Circuit. The U.S. District Court for the District of Minnesota issued orders in the Polaski class action which specified relief for class members from all states in the Eighth Circuit except Missouri. TI 5-407 Contains OHA's instructions for implementing these orders, as well as a copy of the Eighth Circuit's July 17, 1984, Polaski order.
On September 26, 1989, the U.S. District Court for the Western District of Missouri approved a stipulated judgment submitted by the parties in the Boyd class action. The judgment outlines the manner in which the Secretary is to provide relief to certain current and former Missouri residents whose claims were denied before the Eighth Circuit issued its July 17, 1984, order in Polaski.
III. Guiding Principles
In its July 17, 1984, order in Polaski, the Eighth Circuit found the settlement language to be a correct restatement of Eighth Circuit case law concerning evaluation of pain and other subjective complaints. ALJs and the Appeals Council (AC) must continue to apply the court-approved standard in all Eighth Circuit cases, including the readjudications ordered by the Boyd court and the adjudication of current claims of Missouri residents.
The court-approved standard, as set forth in the Eighth Circuit's order in Polaski and quoted in Boyd, is as follows:
A claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment Symptoms such as pain, shortness of breath, weakness, or nervousness are the individual's own perceptions of the effects of a physical or mental impairment(s). Because of their subjective characteristics and the absence of any reliable techniques for measurement, symptoms (especially pain) are difficult to prove, disprove, or quantify. As a result of this difficulty, some adjudicators have misinterpreted the Secretary's policies as enunciated in SSR-82-58.
In particular, some adjudicators may have misinterpreted Example No. 2 in SSR-82-58 to allow allegations of pain to be disregarded solely because the allegations are not fully corroborated by objective medical findings typically associated with pain. The example should not be construed to be inconsistent with the text of SSR-82-58 which states in part:
The effects of symptoms must be considered in terms of any additional physical or mental restrictions they may impose beyond those clearly demonstrated by the objective physical manifestations of disorders. Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone.
While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant's subjective complaints need not be produced. The adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them.
The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
the claimant's daily activities;
the duration, frequency and intensity of the pain;
precipitating and aggravating factors;
dosage, effectiveness and side effects of medication;
functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.
As indicated above, all SSA adjudicators must use this standard when considering the claims of Eighth Circuit residents involving complaints of pain or other subjective complaints.
Note:
The court-approved language refers to SSR 82-58. However, that ruling has been superseded by SSR 88-13.
IV. Definition of Class
As stated in the Boyd court order, potential Boyd class members are:
all persons residing in Missouri who have applied for Title II or Title XVI (Supplemental Security Income) benefits, who allege that they are unable to work in whole or in part as a result of pain or other subjective complaints, and who have received an adverse administrative decision at any level in the administrative process between July 15, 1483, and July 17, 1984, inclusive.
The court order also contains a prescribed screening sheet for making class membership determinations (Attachment A). To be a class member under the screening sheet criteria, an individual must:
have been a resident of Missouri at the time of filing a claim, and
have had a claim finally denied (either in whole or in part) between July 15, 1983, and July 17, 1984, as follows:
at the initial or reconsideration levels, of the Missouri DDS, or
at the ALJ hearing level, if the claimant was a Missouri resident at the time of the ALJ's action, or
at the AC level, if the claimant was a Missouri resident at the time of the AC's action.
Only those individuals who received adverse determinations or decisions based on medical or medical-vocational grounds can qualify for class membership. A res judicata dismissal qualifies a person for class membership so long as all of the other requirements are met with respect to that dismissal, i.e., it was issued within the timeframe for class membership, and the prior determination or decision was based on medical or medical-vocational grounds.
Excluded from class membership are individuals who received adverse determinations or decisions based on reasons other than medical or medical-vocational grounds, such as work activity, failure to cooperate, whereabouts unknown, or technical reasons such as lack of insured status.
In order to be a class member, the individual must have received a determination or decision on his or her claim which was issued within the timeframe for class membership, i.e., between July 15, 1983, and July 17, 1984, and which the final determination or decision of the Secretary.
Example 1:
A potential Boyd class member received an ALJ denial decision issued before July 15, 1983. In this instance, neither an AC denial of review nor a judicial affirmation issued during the timeframe for class membership would make the person a class member. However, an AC denial decision issued in this timeframe would make the person a class member.
If an individual received a determination or decision issued within the timeframe for class membership, appealed that determination or decision, and received a final determination or decision issued after July 17, 1984, that person would not be a Boyd class member.
Example 2:
A potential Boyd class member received an ALJ decision issued April 17, 1984, that would establish class membership. However, the claimant requested AC review and the AC issued a final decision on the merits on July 29, 1984. This claimant would not be a Boyd class member. However, if the AC had denied the claimant's request for review on July 29, 1984, rather than issuing a decision on the merits, the ALJ decision of April 17, 1984, would have become the final decision of the Secretary and the claimant would be a Boyd class member.
If an individual received a final determination or decision during the timeframe for class membership, and SSA, either at the claimant's request or on its own initiative, reopened and revised that otherwise final determination or decision after July 17, 1984, then the individual would not be a class member.
V. Determination of Class Membership and Preadjudication Actions
A. General
In November 1989, SSA sent notices to all potential class members identified by computer run. Individuals had 30 days from the date of receipt of the notice to request that SSA review their cases under the terms of the Boyd court order.
Litigation Staff in the Office of the Deputy Commissioner for Programs is tracking all of the responses and sending folder alerts to the Office of Disability and International Operations (ODIO) and Program Service Centers (PSCs) to use in locating claim files.
ODIO, PSC, DDS and Field Office Actions
ODIO or the PSC will associate the Boyd folder alert and the claimant's reply card with the claim file and forward the file to the DDS servicing the responder's current address for screening.
If ODIO or the PSC determines that a claim file which needs to be screened for class membership is located In OHA because there is a pending subsequent claim, it will forward the alert to OHA and request that OHA screen the case. See Attachment B for a sample Boyd folder alert.
ODIO and the PSCs will send all untimely responses to the Servicing Social Security field office to develop good cause for the untimely response. The field office will deem that good cause exists for a late response if the claimant alleges a mental impairment or the record reflects a mental impairment. If a mental impairment is not involved, the field office will develop good cause for the late response and apply the same regulatory standard (20 CFR §§ 404.911 and 416.1411) for finding good cause as that applied to any other missed deadline for requesting review. The field office will send a notice to those claimants who do not show good cause for failing to respond timely to the potential class membership notice. The notice will explain that SSA will not review the claim under Boyd because the claimant did not respond timely. SSA will afford plaintiffs' counsel an opportunity to review its actions on these untimely filed requests in the same manner as for any other class membership denial. Section C., below, describes how plaintiffs' counsel may review class membership denials. If the field office finds good cause for the late response, it will forward the folder to the appropriate DDS for class membership screening.
OHA Actions
If the folder alert shows that a prior claim file which needs to be screened for class membership is associated with a subsequent claim pending anywhere in OHA, the PSC will send the folder alert to the Docket and Files Branch (DFB) in the Office of Appellate Operations (OAO) for association with the file. If the claim is pending at the AC level, DFB must forward the folder alert to the OAO Program Review Branch which is processing the subsequent claim. If the claim file is in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, DFB must associate the alert with the file and send the file to the Office of Civil Actions (OCA), Division II, for screening. If the claim is pending in court, DPB must forward the folder alert to OCA to associate with the file. If there is a subsequent claim pending at the ALJ level, DFB must send the folder alert to the hearing office (HO) processing the subsequent claim.
If OCA receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, OCA will associate the alert with the claim folder(s) and flag the case for screening by the DDS after completion of court action, using the flag in Attachment C. Additionally, unless the court has remanded the case, OCA must notify the appropriate component of the Office of General Counsel that the claimant has been identified as a potential Boyd class member.
Exception:
OHA components must screen cases associated with court remands, and process them in accordance with section V1.B. or V1.C. below, as appropriate.
If an OHA component receives a folder alert from DPB but does not have the prior folder, it must annotate the alert that it does not have the file and send the alert to the Division of Litigation Analysis and Implementation (DLAI) at the following address:
Office of Civil Actions
Division of Litigation Analysis and Implementation
P.O. Box 10723
Room 702, Skyline
Arlington, VA 22210
Attn: Boyd CoordinatorDCAI will return the folder alert to ODIO or the PSC to locate or reconstruct the prior folder for a class membership determination. The HO or OAO must not suspend action on the subsequent claim awaiting the prior claim file.
Similarly, the HO or OAO must continue to process a subsequent claim for any claimant who is a potential Boyd class member but for whom the HO or OAO has not yet received a folder alert.
B. Screening
In OCA, operating division staff will make the class membership determination. In OAO, the analyst to whom the claim is assigned will make the class membership determination. In the HO, the Supervisory Staff Attorney, or his or her designee, will make the class membership determination.
OHA adjudicators must not take any action on a subsequent claim until the claimant's class membership status is resolved, unless, as indicated above, the necessary file is not available.
The individual making the class membership determination must use the Boyd screening sheet at Attachment A. In completing the sheets, the screener must:
Consider all applications denied (including res judicata denials) during the period covered by the court order when making the class membership determination.
In item 1, enter the Social Security number under which the claim is filed, not a child's or widow's own account number.
In item 2, under “BIC”, enter the same two-character code shown under the “MFT” column on the Boyd folder alert. (See Attachment B, second column.) If the “MFT” column is blank, the screener must not make any entry under “BIC”.
In item 2, enter the date the case is screened.
In item 4, enter the screenout code if the responder is not a class member. If the answer to any question in items 5 through 9 is “no”, the responder is not a class member. The screenout codes are listed in item 10.
Sign the original screening sheet and file it in the claim file.
Screeners in OHA Headquarters must send a copy of the screening sheet via interoffice mail to:
Office of the Deputy Commissioner for ProgramsLitigation Staff
Attn: Boyd Coordinator
3-K-26 operations Building Baltimore
HO screeners must mail a copy of the screening sheet to:
Office of the Deputy Commissioner for Programs Litigation StaffAttn: Boyd Coordinator P.O. Box 17729
Baltimore, Maryland 21235
Litigation Staff will compile the screening sheet data and use this information to generate reports as required by the court order.
C. Processing Cases Determined Not to be Class Members
Screeners must use Attachment D (title II claims) and Attachment E (title XVI claims) to notify individuals that they are not class members. In concurrent claims, screeners must send two separate notices. Screeners must also send a copy of each notice to the responder's representative, if any, and file a copy in the claim file.
Send all non-class member claim files to the Kansas City, Missouri field office using the pre-addressed route slip in Attachment F. If there is a subsequent class pending, photocopy any material contained in the prior folder which is pertinent to the subsequent claim and place the copies in the subsequent claim folder before shipping the non-class member folder to the field office. After completing these actions, resume processing the subsequent claim.
The Kansas City, Missouri field office will hold all non-class member claim files for 120 days pending review by the plaintiffs' counsel and will serve as a contact point for Class membership issues. Upon review of the files, plaintiffs' counsel will contact the Office of the General Counsel directly if there is any class membership dispute.
The district court will resolve any disputes that the parties are unable to resolve. OHA personnel must refer any inquiries from claimants or representatives concerning non-class membership determinations to DLAI at the address shown on page seven.
D. Processing Cases Determined to be Class Members
Hearing Office
After determining that an individual is a class member, HO personnel must follow the instructions in section VI.B., below.
Headquarters
After determining that an individual is a class member, Headquarters personnel must follow the instructions in sections V1.A. or VI.C., below, as appropriate.
VI. Processing and Adjudication
A. No Subsequent Claim Pending
If the 120-day retention period for holding the claim file after the ALJ's or AC's action has expired, OCA must send the claim file to the DDS servicing the claimant's current address (see Attachment G for a sample route slip). If less than 120 days has elapsed, OCA must attach a Boyd class member flag to the outside of the combined folders (see Attachment H), to direct the case to the appropriate DDS after expiration of the retention period. OCA must:
return unappealed ALJ affirmations and dismissals to DFB, and
return unappealed AC denials to the appropriate OAO mini-docket.
B. Subsequent Claim Pending at ALJ Level
Request for Hearing Cases in Which a Hearing Has Been Scheduled or Held, and All Remand Cases
If a Boyd class member has a request for hearing pending on a subsequent claim and the ALJ has scheduled a hearing, the ALJ must consolidate the Boyd review with action on the subsequent claim. The ALJ must also consolidate claims if the Boyd class member's subsequent claim is before the ALJ on remand from the AC or a court.
Exceptions:
The ALJ must not consolidate the claims if
the subsequent claim and the Boyd review claim have no issues in common, or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.
If the ALJ does not consolidate the claims, the HO staff must flag the Boyd claim for DDS review after completion of all administrative actions on the subsequent claim (see Attachment H).
If the Boyd review claim raises any additional issues not raised by the subsequent claim, the ALJ must give proper notice of the new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b). If the AL3 has already held a hearing and the Boyd review claim raises additional issues, the ALJ must offer the claimant a supplemental hearing unless the ALJ is prepared to issue a decision which is wholly favorable with respect to the Boyd claim.
Because the Boyd court order requires the Secretary to reopen fully the claims of class members, the issue in a title II Boyd review claim is whether the claimant was disabled a any time from the alleged onset date through the present (or, if the claimant is no longer insured, through the date the claimant last met the insured status requirements). If a title II Boyd claim involves an earlier alleged onset date than the subsequent claim, the Boyd claim would raise an additional issue of disability between the two alleged onset dates. Similarly, consolidation of a title XVI Boyd review claim with a subsequent title XVI claim will always raise a new issue of disability between the dates the claims were filed.
In all instances, the ALJ must issue one decision which addresses both the issues raised by the current request for hearing and those raised by the Boyd review.
Request for Hearing Cases — Hearing Not Scheduled
If a Boyd class member has a request for hearing pending on a subsequent claim and the HO has not scheduled a hearing, the ALJ must remand the subsequent claim to the DDS servicing the claimant's current address for consolidation with the Boyd review claim unless one of the exceptions listed below applies. The ALJ must use the language in Attachment I to remand the claim to the DDS. Attachment J is a covering notice transmitting the ALJ's remand order.
Exceptions:
The ALJ must not remand the subsequent claim if
the subsequent claim and the Boyd review claim have no issues in common; or
the reason a hearing has not been scheduled is that the claimant has waived his or her right to an oral hearing and the case is ready for a decision; or
(the ALJ is prepared to act fully favorably on the subsequent claim.
If the ALJ does not remand for consolidation of the claims and does not issue a decision which is wholly favorable with respect to all issues raised by the Boyd claim, the HO staff must flag the Boyd claim for DDS review after completion of all administrative actions on the subsequent claim (Attachment H).
If the ALJ proposes to issue a fully favorable decision on the subsequent claim, and this decision would be fully favorable with respect to all issues raised by the application which makes the claimant a Boyd class member, the ALJ must consolidate the claims. The ALJ must reopen the final determination or decision on the Boyd claim and issue a decision which considers both applications. The ALJ's decision must clearly indicate that the ALJ considered the Boyd claim pursuant to the Boyd court order.
C. Subsequent Claim Pending at the AC
Disposition of the Boyd claim depends on the action the AC takes on the subsequent claim. Therefore, OAO must keep the claim files together until the AC completes its action on the subsequent claim. The AC will act on the Boyd review claim as follows.
AC dismisses, denies review, or issues a denial decision
OAO staff must attach a Boyd flag (Attachment H) to the combined folders of a class member. If the claimant does not file a civil action, at the end of the retention period OAO staff will forward both files to the DDS servicing the claimant's current address. If the claimant does file a civil action, the Boyd flag (Attachment H) directs the component with the claim file to forward it to the servicing DDS after completion of court action.
AC issues a favorable decision — no Boyd issues remain
If the AC proposes to issue a fully favorable decision on a subsequent claim, and this decision would-be fully favorable with respect to all issues raised by the application which makes the claimant a Boyd class member, the Council must consolidate the claims. The AC must reopen the final determination or decision on the Boyd claim and issue a decision which considers both applications. The AC's decision must clearly indicate that the AC considered the Boyd claim pursuant to the Boyd court order.
AC issues a favorable decision — Boyd issues remain
If its decision is not fully favorable with respect to all issues raised by the Boyd review claim, the AC must request the effectuating component to forward the claim files to the DDS servicing the claimant's current address after the AC's decision is effectuated. OAO staff must include the following language on the transmittal sheet used to forward the case for effectuation: “Boyd review needed — forward both claim files to the ___________ DDS after effectuation.”
AC Remands
In its remand order, the AC must direct the ALJ to consolidate the Boyd review with action on the subsequent claim.
Exceptions:
The AC must not direct the ALJ to consolidate the claim if
the subsequent claim and the Boyd review claim have no issues in common, or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.
D. OHA Adjudication of Class Member Claims
The following sections apply both to consolidation cases in which the AL3 or AC conducts the initial Boyd readjudication and to DDS readjudication cases in which the claimant requests a hearing or AC review.
General Considerations
All decisions in Boyd class member claims, as well as all other decisions within the jurisdiction of the Eighth Circuit, must indicate that we have applied Polaski v. Bowen, 739 F.2d 1320 (8th Cir. 1984), when deciding claims involving allegations of pain or other subjective complaints. The decision rationale must reflect careful consideration of all pertinent facts in accordance with the pain standard enunciated in Polaski.
Pursuant to the Boyd court order, we must fully reopen the claim of each class member to determine whether the claimant was disabled at any time from the date of onset alleged in the Boyd review claim through the present (or, in title II cases in which the claimant is no longer insured, through the date last insured). Under the terms of the court order, the ALJ must ensure that the medical record is fully documented for the entire period at issue, using treating physicians when possible and employing consultative examiners when necessary. The ALJ must fully elicit and consider the subjective complaints of class members.
Except as noted herein, HOs and the AC must process Boyd review claims according to all other current adjudicatory practices and procedures including coding, scheduling, developing evidence, adjudicating, routing, etc. The ALJ and the AC must use current medical listings and other current criteria when adjudicating class member claims.
Effect of a Previously Decided Subsequent Claim
SSA may have made a final determination or decision on a subsequent claim by a Boyd class member before the DDS or OHA reopens and readjudicates the Boyd review claim. Under the terms of the court order, SSA, in reopening and issuing new determinations or decisions on Boyd review member claims, must apply the normal rules, SSA, in reopening and issuing new determinations or decisions on Boyd class member claims, must apply the normal rules of administrative res judicata as described in the regulations with respect to any final determinations or decisions made after July 17, 1984.
Examples
A claimant received a March 1984 ALJ hearing decision which qualifies him for Boyd relief. The ALJ's decision ruled on the period from the alleged onset data in July 1982 through the date of the decision in March 1984. The claimant filed a new application in August 1984, alleging the same onset date; a second ALJ considered the entire period from the alleged onset date in July 1982 through the date of the decision in July 1986. A third ALJ now has a request for hearing following DDS action on the first claim pursuant to the Boyd court order. If the claimant has submitted no additional evidence which changes the facts of the case, and all other conditions res judicata dismissal are present, the request for hearing on the Boyd class member claim can be dismissed entirely for res judicata because the entire period has already been considered under the Polaski standard.
If, instead, the second ALJ had dismissed the request for hearing with respect to the issue of disability during the previously adjudicated period from July 1982 through March 1984 on the basis of res judicata, an ALJ currently conducting the Boyd review must reopen the first claim and consider the period from July 1982 to March 1984 because the second ALJ did not issue a decision on the merits with respect to the period prior to the March 1984 decision. However, the request for hearing with respect to the issue of disability after March 1984 can be dismissed on the basis of res judicata (if all other conditions for a res judicata dismissal are present) because that period has already been considered under the Polaski standard.
Substantial Gainful Activity Denials
The court order directs that no class member shall be denied benefits on the-basis of substantial gainful activity unless the record conclusively shows that the person actually engaged in substantial gainful activity for the entire period of his or her alleged disability or for such a period as would preclude him or her from establishing a 12-month period of disability.
Class Member is Deceased
If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.
VII. Inquiries
HO personnel may call the Regional Office. Regional Office personnel may call the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge on FTS 756-5022.