I-5-4-36.State of New York v. Sullivan

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Inquiries
Attachment 1 State of New York District Court Decision Dated January 12, 1987
State of New York Order and Judgment Dated December 4, 1989
Attachment 2 Route Slip or Case FLag For Screening
Attachment 3 Screening Sheet
Attachment 4 Notice of Non-Class Membership
Attachment 5 Route Slip or Case Flag For Routing Non-Class Member Claim Folders to the Manhattan DDS
Attachment 6 Notice of Class Membership
Attachment 7 Route Slip or Case Flag for DDS Readjudication
Attachment 8 - Case Flag (for use by OAO after screening)
Attachment 9 - Route Slip or Case Flag (for DDS or HO readjudication)
Attachment 10 Route Slip or Case Flag (DDS or HO readjudication -- Court Case Remains Pending)
Attachment 11 Route Slip or Case Flag (for HO Readjudication)
Attachment 12 SAMPLE NOTICE LANGUAGE: CLAIMANT'S RIGHT TO OBJECT TO CONSOLIDATION OF A STATE OF NEW YORK CLAIM AT THE HEARING LEVEL
Attachment 13 Office of Disability Guidelines for DDS Evaluation of State of New York Claims

ISSUED: January 3, 1994; REVISED: January 30, 1996

I. Purpose

This Temporary Instruction (TI) sets forth the rules for implementing the December 4, 1989 order of the U.S. District Court for the Southern District of New York as affirmed by the United States Court of Appeals for the Second Circuit on June 27, 1990, in State of New York v. Sullivan. These rules govern the adjudication for New York State residents of disability claims involving ischemic heart disease, and certain other kinds of heart disease, when the file contains the results of an exercise test. These rules also describe the procedures for readjudicating class members' past claims for benefits and the processing of class members' claims pending as of February 2, 1994.

Adjudicators throughout the country must be familiar with this TI because State of New York class members who now reside outside of New York State must have their cases processed in accordance with the requirements of the court's order. With respect to the adjudication of disability claims of New York State residents in which evidence of a treadmill exercise test is considered, this instruction replaces any existing instructions that are not consistent with the district court's order.

II. Background

On March 11, 1985, the U.S. District Court for the Southern District of New York certified a class of individuals with cardiovascular impairments whose benefits “had been or will be” denied based on the Secretary's application of per se denial rules pertaining to treadmill exercise tests. On January 12, 1987, the district court granted plaintiffs' motion for partial summary judgment. State of New York v. Bowen, 655 F. Supp. 136 (S.D.N.Y. 1987). The court held that the Secretary's policy of giving priority to the results of treadmill exercise tests resulted in the exclusion of relevant medical evidence from both the consideration of whether a claimant's impairment meets or equals the Listings and the assessment of the claimant's residual functional capacity. The district court issued a final implementation order on December 4, 1989. State of New York v. Sullivan, No. 83 Civ. 5903 (RLC) (S.D.N.Y. Dec. 4, 1989). On June 27, 1990, the Second Circuit affirmed the district court's judgment and order. State of New York v. Sullivan, 906 F.2d 910 (2d Cir. 1990). The district court's December 4, 1989 order directs the Secretary to consider all relevant evidence in evaluating certain cardiovascular impairments, and requires the readjudication of class members' claims.

On August 30, 1990, the Secretary petitioned the Second Circuit for rehearing with a suggestion for rehearing in banc. On September 28, 1990, the circuit court denied the Secretary's petition. Accordingly, OHA is issuing these instructions to comply with the December 4, 1989 district court order as affirmed by the Second Circuit.

III. Guiding Principles

The district court's December 4, 1989 order sets forth detailed requirements, the pertinent parts of which are summarized below:

  • The Secretary is permanently enjoined from considering the results of a treadmill exercise test (TET) to the exclusion of other relevant evidence and from failing to consider all relevant evidence in assessing the disability of class members.

  • The Secretary shall fully develop and consider all relevant evidence, including newly-obtained evidence, in evaluating the disability claims of individuals with cardiovascular impairments.

  • The Secretary shall base his assessment of disability at steps two, three, four and five of the sequential evaluation process on an overall evaluation of the claimant's signs, symptoms and laboratory findings, and treating physicians' opinions.

  • The Secretary shall consider all signs, symptoms and laboratory findings demonstrated during treadmill exercise testing, irrespective of whether the test was completed.

  • In all cases in which an adjudicator, at any level, proposes to rely on the results of a TET to deny or terminate benefits, if the record contains inconsistent or contradictory signs, symptoms, laboratory findings, or treating physicians' opinions, the adjudicator shall provide a rationale justifying his reliance on the TET.

  • The Secretary is permanently enjoined from denying or terminating a claimant's disability benefits based primarily on the results of a TET which “shows the capacity for heavy work.” The Secretary shall base his assessment of disability for these claimants on all the relevant evidence in the claimant's claims file(s).

The district court's decision of January 12, 1987, and order of December 4, 1989, are reproduced in Attachment 1.

NOTE:

Attachment 13 excerpts guidelines prepared by the Office of Disability for evaluating State of New York claims at the lower administrative levels. These guidelines may or may not have direct applicability to the adjudicative questions arising in claims pending at the hearing office and Appeals Council levels. Those guidelines are nevertheless included as an attachment to provide information on how claims are developed and decided at the Disability Determination Service (DDS) level and because, in some instances, they may help illuminate a more general principle that also applies at the OHA level or provide guidance for developing and deciding disability claims involving ischemic heart disease and certain other kinds of heart disease. OHA decision makers are reminded that they must develop and consider all relevant evidence.

IV. Definition of Class

On March 11, 1985, the district court certified a class consisting of:

  • "All New York State residents with cardiovascular impairments whose applications or eligibility for SSDI or SSI disability benefits have been or will be denied or terminated by the application of per se denial rules on or after June 1, 1980."

The court further certified a subclass (henceforth referred to as the "State of New York class“ or ”class") of individuals from the above class consisting of those:

  • "Who have ischemic heart disease, hypertensive vascular disease, myocardiopathies, or rheumatic or syphilitic heart disease and whose disability benefits have been or will be denied or terminated based on the application of per se denial rules pertaining to treadmill exercise tests."

For purposes of implementing the court's December 4, 1989 order, the portion of the retroactive class entitled to receive notice consists of individuals:

  • whose title II or title XVI disability claims (including CDB, DWB, and SSI child) were: 1) denied or ceased at steps three, four, or five of the sequential evaluation process (including the corresponding medical improvement sequential evaluation process steps) at any level between June 1, 1980, and February 1, 1987; 2) coded “170” and denied or ceased at steps three, four, or five of the sequential evaluation process (including the corresponding medical improvement sequential evaluation process steps) from February 1, 1987, to February 2, 1994; 3) not coded “170,” but denied or ceased at steps three, four, or five of the sequential evaluation process (including the corresponding medical improvement sequential evaluation process steps) from February 1, 1987, to February 2, 1994 and who have been identified by the New York State Office of Disability Determinations to have had a TET; or 4) denied at step two between December 4, 1989, and February 2, 1994; and

  • who had ischemic heart disease, hypertensive vascular disease, myocardiopathies, or rheumatic or syphilitic heart disease; and

  • whose denial or cessation was based on an assessment of disability that considered the results of a TET; and

  • who resided in New York State at the time of the denial or cessation determination(s) which forms the basis for class membership.

The retroactive class entitled to readjudication generally consists of individuals who self-identify and request to have their claims reviewed under the terms of the district court's December 4, 1989 order, as well as those who respond to notices informing them of their right to readjudication. However, because the scope of the class entitled to readjudication relief effectively closes with the date of implementation of Agency instructions, individuals who receive an initial disability determination after February 2, 1994 — the date that training on the implementation instructions was completed in New York — are not class members and will not be entitled to readjudication.

NOTE:

Pursuant to Part VI.B.1. below, individuals determined to be class members who have claims pending at the hearing office level must be offered a supplemental hearing. Similarly, pursuant to Part VI.B.2. below, individuals determined to be class members who have claims pending before the Appeals Council are also entitled to a supplemental hearing.

Current claims must be processed according to these instructions and the injunction provisions of the district court's December 4 order.

For the following three categories of individuals, current claims must be screened for class membership (See Part V.D. below) and, as appropriate, processed accordingly (See Part VI.B. below).

  • OHA Identified Cases — Individuals entitled to receive notice who have claims pending at the OHA level are deemed to have requested relief under the district court's order. They are members of the retroactive class by virtue of having received a determination from DDS on or before February 2, 1994. Actual notice is not required.

  • Self Identified Cases — Individuals who self-identify as a potential State of New York class member have requested relief under the district court's order.

  • Alerted Cases — Individuals who respond to notices informing them of their right to readjudication have requested relief under the district court's order.

However, no other special class membership screening or identification is required for current claims.

NOTE:

  • Non-medical denials and cessations are excluded from the retroactive class.

  • Membership in another class does not preclude membership in the State of New York class.

  • The word “determination,” as used in this TI, includes both determinations made by the DDS and decisions made by an Administrative Law Judge or the Appeals Council.

  • For purposes of this TI, a current claim is defined as a claim that is still pending, or not otherwise administratively final, i.e., still within the appeal period, at the time action with respect to it is being considered. This includes claims with:

    • A hearing decision issued on or before February 2, 1994,

    • For which the appeals period had not expired as of February 2, 1994,

    • And the claimant perfects an appeal after February 2, 1994.

  • A federal court affirmation of an administrative determination rendered during the time period at issue in this class action will not affect a class member's right to relief under the district court's December 4 order.

V. Determination of Class Membership and Preadjudication Actions

A. Notices to Potential Class Members

Based on the foregoing class definition, SSA Central Office identified potential class members by computer run. In a mailing on May 17, 1993, SSA mailed notices to individuals in the retroactive class who were entitled to receive notices as described above in Part IV. The court has ordered SSA to use every good faith effort to complete screening and commence readjudication within a 24-month period.

Some potential State of New York class members had already requested relief in another class action, and thus SSA treated them as having already requested State of New York relief and did not send them separate State of New York notices. SSA will conduct multiple mailings.

B. Requests for Readjudication

Potential class members will have 120 days from the date of receipt of the notice to request a State of New York class membership determination and review by returning a reply form provided for this purpose. “Good cause” for missing the 120-day response deadline may be established and is provided for in the court's order. The order also provides that potential class members may demonstrate that they are responding within 120 days of their actual receipt of the notice. In addition, individuals may request relief at any field office, DDS office or OHA office, and may do so even without using the reply form. SSA Central Office will coordinate further efforts, as necessary, to locate the “undeliverables.”

C. Central Office Issuance of “Alerts” and Transfer of Files to Screening Component

SSA Central Office will generate potential class membership “alerts” on a monthly basis, in the order in which reply forms, and other requests for relief, are received. In general, the Office of Disability and International Operations (ODIO) or the program service centers (PSCs) will associate the alerts with any inactive folders and (1) screen for class membership or (2) forward them to OHA for screening if the most recent denial/cessation decision in the State of New York period was made at the OHA level (see D. below). If ODIO or the PSCs determine that a current claim is located in OHA (pending in the hearing office or Headquarters, or stored at Headquarters), they will forward the alert, along with any prior claim folder(s) not in OHA's possession, to OHA. All OHA jurisdiction alerts, and related prior claim folders, will be sent to the Office of Civil Actions (OCA), Division I, at the following address:

Office of Hearings and Appeals
Office of Civil Actions, Division I
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: State of New York Screening Unit Suite 601

NOTE:

In general, ODIO or the PSCs will coordinate any necessary reconstruction of prior claim folders.

A claim folder will be considered lost if it cannot be located within 120 days of the date the file search is initiated.

D. OHA Actions - Prescreening and Screening

In general, cases will be screened by ODIO or PSC, or OHA. The readjudicating component will be determined by the level of the most recent final administrative determination that makes the claimant a class member.

NOTE:

With limited exceptions, Administrative Law Judges will readjudicate class member claims last adjudicated by the Appeals Council.

  1. Pre-screening Actions

    1. Current claim Pending at the OHA Level as of February 2, 1994, No Determination Yet Issued

      • Class member claims pending at the OHA level as of February 2, 1994 must be adjudicated in accordance with these instructions and the State of New York injunction provisions. These claims are deemed to be the subject of a request for retroactive class relief. The pending claim must be formally screened for class membership, at the level at which the case is pending, in accordance with Part V.D.2. Claims screened-in as class member claims must be processed in accordance with Part VI.B.

    2. Current Claim Pending at the OHA level; Claimant Received a Determination Issued After February 2, 1994; No Alert; No Self-Identification or Request for Relief under State of New York

      • The current claim should be adjudicated or reviewed in accordance with the State of New York injunction provisions; however, no other special processing is required.

      • No class membership screening, identification, or reporting is necessary.

    3. Current Claim Pending at the OHA level; No Alert; but Claimant has Self-Identified as a Potential State of New York Class Member and Seeks Relief Under the Provisions of the District Court's December 4 Order

      • The current claim must be formally screened for class membership, at the level at which the case is pending, in accordance with Part V.D.2. Claims screened-in as class member claims must be processed in accordance with Part VI.B.

        NOTE:

        If claims in this category have already been screened in accordance with Part V.D.1.a. above, i.e., a claim pending at the OHA level as of February 2, 1994, no additional screening action would be necessary.

    4. Current Claim Pending at the OHA level; Alert Received; No Prior State of New York Claim(s)

      • If OCA determines that the current claim is pending in a hearing office, OCA will forward the alert to the hearing office for screening. (See Attachment 2.)

      • If OCA determines that a current claim is pending before the Appeals Council, OCA will forward the alert to the appropriate OAO branch for screening. (See Attachment 2.)

      • If OCA determines that the current claim folder is in an OAO branch minidocket or Dockets and Files Branch (DFB), OCA will request the folder, associate it with the alert, and perform the screening.

      • If OCA is unable to locate the current claim folder within OHA, OCA will broaden its claim file search and arrange for folder retrieval, alert transfer or folder reconstruction as necessary.

      Exception:

      OCA will arrange for future folder retrieval but will not immediately retrieve any folder for any claim in which a favorable decision has been authorized, but not yet effectuated. In such instances the current claim will first be processed for payment before readjudication. After payment is made on any partially favorable decision, the effectuating component will send the folder to OCA to coordinate any action necessary for readjudication.

      • If OCA determines that a current claim is pending in court, it will notify the Office of the General Counsel (OGC) for coordination of the claimant option described in Part VI.C.3.b. below.

      NOTE:

      If claims in this category have already been screened in accordance with Part V.D.1.a. above, i.e., a claim pending at the OHA level as of February 2, 1994, no additional screening action would be necessary.

    5. Current Claim Pending at the OHA level; Alert Received; Prior (Inactive) Potential State of New York Claim(s) Associated

      • If OCA determines that the current claim is pending in a hearing office, OCA will forward the alert and the prior claim folder(s) to the hearing office for screening. (See Attachment 2.)

      • If OCA determines that a current claim is pending before the Appeals Council, OCA will forward the alert and the prior claim folder(s) to the appropriate OAO branch for screening. (See Attachment 2.)

      • If OCA determines that the current claim folder is in an OAO branch minidocket or DFB, OCA will request the folder, associate it with the alert and prior claim folder(s), and perform the screening.

      • If OCA is unable to locate the current claim folder within OHA, OCA will broaden its claim file search and arrange for folder retrieval, alert transfer or folder reconstruction as necessary.

      Exception:

      OCA will arrange for future folder retrieval but will not immediately retrieve any folder for any claim in which a favorable decision has been authorized, but not yet effectuated. In such instances the current claim will first be processed for payment before readjudication. After payment is made on any partially favorable decision, the effectuating component will send the folder to OCA to coordinate action necessary for readjudication.

      • If OCA determines that a current claim is pending in court, it will notify the Office of the General Counsel (OGC) for coordination of the claimant option described in Part VI.C.3.b. below.

      NOTE:

      If claims in this category have already been screened in accordance with Part V.D.1.a. above, i.e., a claim pending at the OHA level as of February 2, 1994, no additional screening action would be necessary.

    6. No Current Claim Pending at the OHA level; Alert Received; Prior State of New York Claim(s) Only

      • If there is no current claim pending, and an Administrative Law Judge or the Appeals Council made the most recent final determination that makes the claimant a potential class member, OCA will perform the State of New York class membership screening.

  2. Screening

    • The screening component must associate the alert, if any, and any prior claim folder(s), with the claim folder(s) in its possession. The screening component will then complete the screening sheet. (See Attachment 3.)

      NOTE:

      All cases requiring class membership screening should be associated with an alert, except for those cases pending at the OHA level as of February 2, 1994, and those cases in which potential class members self-identify and seek State of New York court-ordered relief.

    • The individual performing the screening must place a copy of the screening sheet in the claim folder on the top right side of the file and forward the original to:

      Office of Hearings and Appeals
      Office of Civil Actions
      Division of Litigation Analysis and Implementation
      5107 Leesburg Pike
      Falls Church, VA 22041-3200

      ATTN: State of New York Coordinator
      Suite 702

    • If the hearing office or OAO branch receives an alert only or an alert associated with prior claim folder(s) for screening, and no longer has the current claim folder, it will return the alert and prior claim folder(s) to OCA for their further efforts to locate the current claim folder or to arrange for a transfer of jurisdiction.

E. OHA Actions: Post-Screening Actions; Notice of Screening Decision

  1. Cases Determined Not to be Entitled to Relief as Class Members

    • Within 30 days of a determination that an individual is not entitled to relief as a class member, the hearing office or Headquarters staff must provide the individual and representative, if any, notice of nonclass membership (Attachment 4), and must place a copy of the notice in the claim folder.

      NOTE:

      In cases involving a current claim, screeners may need to modify the notice of nonclass membership to fit the circumstances and posture of the case.

    • An individual who has been determined “not entitled to relief as a class member” may dispute the determination, either directly or through legal services. The notice of nonclass membership explains how the individual may do this.

    • On completion of the screening component's actions, nonclass member claim folders must be retained for a 65-day hold period. (See Attachment 5.)

  2. Cases Determined to be Class Members

    • Within 30 days of a determination that an individual is a class member, the hearing office or Headquarters staff must mail the individual and representative, if any, notice of class membership (Attachment 6) and must place a copy of the notice in the claim folder. See Part VI. below for adjudication instructions.

      NOTE:

      In cases involving a current claim, the notice of class membership may need to be modified to fit the circumstances and posture of the case.

VI. Processing and Adjudication

A. General

As noted in Parts IV. and V.D.1., current claims must be processed in accordance with these instructions and the prospective injunction provisions of the district court's December 4 order.

B. Processing and Adjudicating Class Member Current Claims; No Class Member Prior Claims

  1. Hearing Office

    After a determination of class membership in accordance with Part V. above, in conjunction with an alert, self-identification, or because the claim was pending at the OHA level as of February 2, 1994, the class member claim must be adjudicated in accordance with the guiding principles set forth in Part III. above. If the claimant is not formally determined (i.e., pursuant to a formal screening determination) to be a State of New York class member until after a hearing has been held, the claimant must be offered the opportunity for a supplemental hearing on the State of New York issues, unless the Administrative Law Judge is prepared to issue a fully favorable decision. The claimant must also be offered the opportunity for a hearing if the claimant previously waived the right to an oral hearing, unless the Administrative Law Judge is prepared to issue a fully favorable decision.

    For class action reporting purposes, the hearing office must send copies of any decision issued in accordance with this TI to:

    Office of Hearings and Appeals
    Office of Civil Actions
    Division of Litigation Analysis and Implementation
    5107 Leesburg Pike
    Falls Church, VA 22041-3200

    ATTN: State of New York Coordinator
    Suite 702

    and
    Litigation Staff
    Office of the Deputy Commissioner for Programs
    3-K-26 Operations
    6401 Security Boulevard
    Baltimore, Maryland 21235
    ATTN: State of New York Coordinator

    and
    Legal Services for the Elderly
    Attention: "OHA decision"
    130 W. 42nd St., 17th Floor
    New York, NY 10036

    NOTE:

    For current claims, hearing offices need only forward copies of decisions in accordance with the foregoing instruction in cases in which the claimant has been formally determined to be a State of New York class member as a result of formal screening.

  2. Headquarters

    After a determination of class membership in accordance with Part V. above, in conjunction with an alert, self-identification, or because the claim was pending at the OHA level as of February 2, 1994, the class member claim must be processed in accordance with the guiding principles set forth in Part III. above.

    1. OAO/Appeals Council Action

      If the claimant is first formally determined to be a State of New York class member through OAO screening in conjunction with a pending request for review or pending request for reopening, the Appeals Council will remand his or her claim to an Administrative Law Judge for a supplemental hearing on the State of New York issues, unless the Appeals Council intends to issue a fully favorable decision. If the Appeals Council issues a decision, copies of the decision must be provided as described in B.1. above.

      If the claimant was previously formally determined to be a State of New York class member at the hearing office level, the Appeals Council must consider in conjunction with a pending request for review or pending request for reopening whether the claimant was appropriately offered the opportunity for a supplemental hearing on the State of New York issues. If the hearing office did not appropriately offer the opportunity for a supplemental hearing on the State of New York issues, the Appeals Council will remand the claim to an Administrative Law Judge for a supplemental hearing on the State of New York issues, unless the Appeals Council intends to issue a fully favorable decision.

    2. OCA Action

      If the claimant is first formally determined to be a State of New York class member through OCA screening of a claim folder stored pending expiration of an appeals period, the Appeals Council will remand the claim as described in a. above. If the claimant is first formally determined to be a class member through OCA screening of the transcript or claim folder of a case pending in court, the claimant will be offered the option described in C.3.b. below.

C. Processing and Adjudicating Class Member Prior and Current Claims (Consolidation Procedures)

  1. General

    If a class member has a current claim pending at any administrative level, all other State of New York claims may be consolidated with the current claim at the level at which the current claim is pending, if the criteria contained in this section C. are met.

    EXCEPTION:

    In general, consolidation will not occur at the Appeals Council Level (See Part VI.C.3.a. below for more specific instructions in this regard).

    NOTE:

    To the extent that inconsistent procedures for the handling of class members' claims are dictated by these consolidation procedures and by the general routing and screening procedures set forth in Part V.B., the consolidation procedures take precedence. In addition, unless formally screened and determined to be a class member, nothing in the order shall be construed to require the remand of an administrative appeal or request for judicial review.

  2. Hearing Office

    • If a current claim is pending in the hearing office and there is a prior State of New York claim as well, the prior claim and the current claim will be consolidated at the hearing level if there is a common issue. However, the claims will not be consolidated if the claimant objects to consolidation.

    The Administrative Law Judge must:

    • Review the claims to determine if a common issue exists.

    • If a common issue does not exist:

      • The hearing office must determine whether the prior State of New York claim is OHA or DDS jurisdiction. (See Parts VI.D. and F. below for guidance in determining jurisdiction.)

      • If the prior claim is also OHA jurisdiction, the hearing office shall schedule separate hearings for each claim and the ALJ shall issue separate decisions.

      • If the prior claim is DDS jurisdiction, the hearing office will route the prior claim to the servicing DDS for any necessary State of New York readjudication action (Attachment 7). The Administrative Law Judge will then take the action necessary to complete the record and issue a decision on the current claim.

    • If a common issue exists:

      • The Administrative Law Judge must follow the steps below:

      • Send a notice of hearing pursuant to 20 CFR §§ 404.946(b)(2) and/or 416.1446(b)(2), indicating that the Administrative Law Judge will review a new issue.

      • Inform the claimant in the notice that the Administrative Law Judge will: 1) consider whether the claimant was disabled at any time during the period considered in the prior determination(s) that is subject to readjudication, and 2) consider disability from the earliest alleged onset date through the effective life of the current application (date last insured or the date of the current administrative determination, as appropriate).

      • Provide the claimant with the opportunity to object to the proposed consolidation. (See Attachment 12.)

    If the claimant objects to the consolidation, the hearing office shall forward the prior State of New York claim (even if it is an OHA jurisdiction case) to the servicing DDS for any necessary readjudication action (Attachment 7). The Administrative Law Judge will then take the action necessary to complete the record and issue a decision on the current claim.

    If the claimant does not object to the consolidation, the Administrative Law Judge shall:

    • Proceed with consolidated hearing proceedings or offer a supplemental hearing if a hearing has already been held and the Administrative Law Judge is not prepared to issue a fully favorable decision which includes the State of New York time period.

    • Issue one decision which addresses both the issues raised by the request for hearing in the current claim and those raised by the State of New York readjudication.

    • Include in the notice of decision, if the decision is less than fully favorable, a statement that the claimant has the right to appeal the decision and/or reapply for benefits if he believes that his condition has worsened or will worsen. The notice must also include a statement explaining that filing a new application is not the same as appealing the decision because the claimant might lose benefits if he/she files a new application instead of pursuing an appeal.

    For class action reporting purposes, the hearing office must send copies of the decision to the addresses shown in Part VI.B.1. above.

  3. OHA Headquarters

    1. OAO/Appeals Council Action

      Consolidation will not occur at the Appeals Council level if a current claim is pending, except for consolidation in the circumstances identified under the second type of Appeals Council action described below, i.e., the Appeals Council intends to issue a favorable decision on the current claim and no State of New York issues will remain.

      The OAO branch will associate the alert and prior claim folders with the current claim folder and attach a flag (Attachment 8) to the outside of the combined folders.

      Appeals Council action on a prior class member claim will occur as follows, based on the nature of the action taken on the current claim:

      • The Appeals Council intends to dismiss, deny review, or issue a denial decision on the current claim

        • The Appeals Council will process the current claim using standard procedures unless the claimant has been formally determined to be a State of New York class member pursuant to Part V. in connection with the current claim.

        • If the claimant has been formally determined to be a State of New York class member in connection with the current claim, the Appeals Council will process the claim in accordance with Part VI.B.2.a. above. The remand order must direct the Administrative Law Judge to follow the State of New York consolidation procedures. (See Part VI.C.2. above.)

        • If the claimant has not been formally determined to be a State of New York class member in connection with the current claim, the Appeals Council should proceed with its intended action and OAO must attach a flag (Attachment 9) to the combined folders. If no civil action is filed, after expiration of the retention period, OAO must ship the combined folders to the appropriate readjudicating component (either a hearing office or DDS, as determined by other provisions of this instruction) for State of New York review of the prior class member claim.

      • The Appeals Council intends to issue a favorable decision on the current claim — no State of New York issues will remain

        • If the Appeals Council intends to issue a favorable decision on a current claim, and this decision will be fully favorable with respect to the prior State of New York claim, the Council should proceed with its intended action.

        • The Council's decision must advise the claimant that it includes the State of New York readjudication of the prior claim.

        • For class action reporting purposes, the Appeals Council must send copies of the decision to the addresses shown in Part VI.B.1. above.

      • The Appeals Council intends to issue a favorable decision on the current claim — State of New York issues will remain

        • If the Appeals Council intends to issue a favorable decision on the current claim which would not be fully favorable with respect to the prior State of New York claim, the Council should proceed with its intended action. OAO must include the following language on the transmittal sheet which forwards the case for effectuation:

          "State of New York readjudication needed — following effectuation, forward the attached combined folders to (insert address of the readjudicating component — New York State DDS, servicing DDS address if claimant now resides outside New York State, or hearing office)."

      • The Appeals Council intends to remand the current claim to an Administrative Law Judge

        • If the Appeals Council intends to remand the current claim to an Administrative Law Judge, it should proceed with its intended action.

        • The remand order must direct the Administrative Law Judge to follow the State of New York consolidation procedures. (See Part VI.C.2. above.)

    2. OCA/Court Level Action

      • If a current claim is pending at the district or circuit court level, the Assistant U.S. Attorney will offer the claimant the option of receiving administrative relief as a State of New York class member or proceeding with his individual court case. (The Assistant U.S. Attorney will provide each such class member with a notice explaining this option.)

      • If the claimant elects administrative relief as a State of New York class member, following remand from the court, OCA Division I will route the alert and all folders for both the current and prior claim(s) to the hearing office. OCA will direct the Administrative Law Judge to follow the State of New York consolidation procedures. (See Part VI.C.2. above.)

      • If the claimant chooses to remain in court with his current claim, OCA Division I will route the alert and prior class member claim folder(s) to the appropriate readjudicating component (either a hearing office or DDS, as determined by other provisions of this instruction) for State of New York readjudication. (See Attachment 10.) If a hearing office is the readjudicating component, the Administrative Law Judge shall issue a recommended decision. (See HALLEX I-2-8-15.)

        NOTE:

        If an individual decides to proceed separately with his or her individual court case, this decision will not affect his or her right as a State of New York class member to have any other State of New York claim(s) adjudicated.

D. Processing and Adjudicating Class Member Prior Claims; No Current Claim Pending

If there is no current claim pending, and an Administrative Law Judge or the Appeals Council made a decision on the most recent prior claim that forms the basis for class membership, an Administrative Law Judge will perform the State of New York readjudication.

After screening and a determination of class membership, OCA Division I will route the alert and claim folder(s) to the hearing office for State of New York readjudication. (See Attachment 11.)

NOTE:

If a class member has more than one administrative determination requiring readjudication, the claims will be consolidated and readjudicated at the level of adjudication of the most recent administrative determination which makes the individual a State of New York class member.

Class members retain all rights to further administrative and judicial review following readjudication.

E. Period to be Adjudicated

The period to be adjudicated will vary, depending on whether the claimant has a current claim pending and on whether a cessation is involved, as follows:

  1. No Current Claim or Consolidation

    1. Prior Claim — Initial Entitlement

      For claimants who are class members by virtue of a prior denial, the DDS or OHA readjudication must consider the period of time at issue in the administrative determination(s) that forms the basis of the claimant's class membership. If the DDS or OHA readjudication results in a favorable determination, the DDS or OHA must also consider, under the medical improvement review standard, whether the class member's disability continues through the date of the readjudication (or through the date of onset of disability established in any allowance on a subsequent application). OHA or DDS must fully develop the record for the relevant time period.

    2. Prior Claim — Cessation

      For claimants who are class members by virtue of a determination ceasing disability benefits, the DDS or OHA readjudication must consider eligibility for benefits from the date benefits were ceased through the date of the readjudication. The DDS or OHA must apply the medical improvement review standard and must fully develop the record.

    NOTE:

    In some cases, the claimant may have received an allowance on a subsequent claim after a prior claim for initial entitlement was denied or after a prior award of benefits was ceased. In these cases, in the absence of evidence to the contrary, SSA adjudicators will assume that the favorable decision on the subsequent claim was correct and will limit development and readjudication to the period up to the date of onset established in connection with the subsequent claim. However, if new evidence submitted or developed in connection with the State of New York readjudication raises a question of continuing disability, SSA adjudicators will not be barred from considering and deciding the issue under the normal continuing disability review procedures and standard. If OHA identifies a question of continuing disability in the course of adjudicating a State of New York claim, it will not attempt to introduce, develop or decide that issue in connection with the State of New York adjudication. Instead, OHA will separately complete its adjudication of the claim(s) that is pending before it and will then refer the issue of continuing disability to the appropriate SSA district or branch office for continuing disability review (CDR) action. Similarly, OHA will not stay its adjudication of a State of New York claim if a CDR is already pending. Instead, it will complete its action with respect to the State of New York readjudication and forward a copy of the result of its action to the SSA component conducting the CDR for that component's information.

  2. Prior and Current Claims Consolidated

    For class members with a current claim pending that will be consolidated with the State of New York readjudication of a prior claim(s), the DDS or OHA adjudication must consider the period from the earliest alleged onset date through the effective life of the current application (date last insured or the date of the current administrative determination, as appropriate).

F. Cases Readjudicated by DDS

Unless consolidated at the OHA level pursuant to the above-described consolidation instructions, DDS will have readjudication responsibility for class member cases in which DDS made the most recent final administrative determination that makes the individual a class member.

If no current claim is pending, the DDS will readjudicate at the reconsideration level and the individual will have the right to appeal directly to the hearing level. If a current claim and prior claim(s) are consolidated at DDS, the consolidation will occur at the level of the current claim (initial or reconsideration). Individuals retain full appeal rights and will have the right to appeal an adverse determination in their consolidated claims to the next administrative level (reconsideration or hearing).

If the claimant files a request for hearing on the readjudicated claim, the hearing office must advise the claimant, in the notice of hearing, of the period at issue (See Part E. above) and the right to submit new evidence relating to that period. The claimant also must be advised, in the notice of the Administrative Law Judge's decision, of the opportunity to file a new application if the claimant believes that his or her alleged impairment(s) became worse after the readjudicated period or if he or she has a new impairment. The notice must also include a statement explaining that filing a new application is not the same as appealing the decision because the claimant might lose benefits if he/she files a new application instead of pursuing an appeal.

If new evidence is submitted which relates only to the period after the date ruled through in the State of New York readjudication and there is no current claim, and the Administrative Law Judge does not find the claimant disabled as of the ending date of the readjudicated period, the Administrative Law Judge must not consider the new evidence in the State of New York decision; rather, the decision should explain why the new evidence was not considered and the notice of the State of New York decision must advise the claimant of the right to file a new application. Again, the notice must also include a statement explaining that filing a new application is not the same as appealing the decision because the claimant might lose benefits if he/she files a new application instead of pursuing an appeal.

VII. Case Coding

The hearing office should code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as reopenings. If the prior claim is consolidated with a current claim already pending at the hearing level (See Part VI.C.), it should not be coded as a separate hearing request. Instead, the hearing type on the current claim should be changed to a reopening.

To identify class member cases in HOTS, the hearing office must code “NY” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Inquiries

Hearing office personnel should contact 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.

Attachment 1. State of New York District Court Decision Dated January 12, 1987
State of New York Order and Judgment Dated December 4, 1989

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE STATE OF NEW YORK, CESAR PERALES, as Commissioner of the New York State Department of Social Services, THE CITY OF NEW YORK, THE COUNTY OF SUFFOLK, PETER F. COHALAN, as County Executive of the County of Suffolk, ANITA ROMERA, as Commissioner of the Suffolk County Department of Social Services, and WALTHON WHITE, HAYDEE GUZMAN, ANIBAL VILLANUEVA, RAFAEL RIVERA, GLADYS DOMINGUEZ, HECTOR MUNIZ, LUIS DIAZ, CATHRYN GIBBONS, MARIA GONZALEZ, JORGE PEREZ, EDWARDA RIVERA, AND HERMINA GONZALEZ, and all others similarly situated,  
Plaintiffs,

OPINION

83 Civ. 5903 (RLC)

- against -

[Field January 13, 1987]

OTIS R. BOWEN, M.D., as Secretary of the United States Department of Health and Human Services, MARTHA McSTEEN, as Commissioner of the Social Security Administration and THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,  
Defendants.  
   
APPEARANCES  
   

ROBERT ABRAMS
Attorney General of the State of New York
Plaintiff Pro Se and
Attorney for Plaintiff Cesar Perales
Two World Trade Center
New York, New York 10047

 

PAUL M. GLICKMAN
EVELYN M. TENNENBAUM
MARLA TEPPER
Assistant Attorneys General
- Of Counsel -
FREDERICK A.O. SCHWARTZ,
Corporation Counsel
Attorney for Plaintiff
The City of New York
100 Church Street
New York, New York 10007

 

LOIS MAY
Assistants Corporation Counsel
- Of Counsel -
SUFFOLK COUNTY ATTORNEY
Attorney for the County of
Suffolk, Peter F. Cohalan,
as County Executive of the
County of Suffolk, and
Anita Romao, As Commissioner
of the Suffolk County Department of Social Services
Veterans Memorial Highway
Hauppauge, New York, 11788

 

ROBERT CIMINO
Assistant County Attorney
- Of Counsel -
BRONX LEGAL SERVICES
Attorney for Individual
Plaintiffs Cathryn Gibbons,
Maria Gonzalez, Hector
Muniz, Jorge Perez, Edwarda
Rivera, and Class Representative
579 Courtlandt Avenue
Bronx, New York 10431

 

LUCY BILLINGS
Director of Litigation
- Of Counsel -
MFY LEGAL SERVICES, INC.
Attorney for Individual
Plaintiffs Maydee Guzman,
Anibal Villanueva, Rafael
Rivera, Gladys Dominquez,
Luis Diaz, Hermina
Gonzalez, and Class Representative
41 Avenue A
New York, New York 10009

 

MARGARET SANDERCOCK
- Of Counsel -
NEW YORK LAWYERS FOR
PUBLIC INTEREST
Attorney for Class Representative
36 West 44th Street
Suite 316
New York, New York 10036

 

LEWIS GOLINKER
- Of Counsel -
LEGAL SERVICES FOR THE ELDERLY
Attorney for Individual
Plaintiff Walthon White
and Class Representative
132 West 43rd Street, 3d floor
New York, New York 10036

 

TOBY GOLICK
Senior Attorney
-Of Counsel-
RUDOLPH W. GIULIANI
United States Attorney for the
Southern District of New York
Attorney for Defendants
One St. Andrew's Plaza
New York, New York 10007

 

FREDERICK M. LAWRENCE
Assistant United States Attorney
ANNETTE H. BLUM
Chef Counsel - Region II
GAIL N. MANCHER
Assistant Regional Counsel
Office of the General Counsel
Department of Health and Human Services
- Of Counsel -

 
CARTER, District Judge  

This class action charges the Secretary of the Department of Health and Human Services (“the Secretary”)1 with an unlawful policy of withholding disability benefits. Specifically, plaintiffs allege that by applying certain per se rules, the Secretary has denied or terminated Social Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) to individuals disabled by cardiovascular impairments, in violation of the Social Security Act (“the Act”), 42 U.S.C. 301 et seq., its implementing regulations, and the due process clause of the Fifth Amendment. Plaintiffs also allege that defendants' failure to publish these rules violated the notice and comment provisions of the Administrative Procedures Act, 5 U.S.C. § 553.

In an earlier opinion, sub non. State of New York v. Heckler, 105 F.R.D. 118 (S.D.N.Y. 1985) (Carter, J.), with which familiarity is assumed, the court certified a class consisting of:

All New York State residents with cardiovascular impairments whose applications or eligibility for SSDI or SSI disability benefits have been or will be denied or terminated by the application of per se denial rules on or after June 1, 1980.

Id. at 122. The court further certified a subclass of individuals from the above class consisting of those: Who have ischemic heart disease, hypertensive vascular disease, myocardiopathies, or rheumatic or syphilitic heart disease and whose disability benefits have been or will be denied or terminated based on the application of per se denial rules pertaining to treadmill exercise tests.

Id. (footnote omitted). Twelve members of the subclass are joined as named plaintiffs by the State and City of New York, Suffolk County, and the New York State and Suffolk County Departments of Social Services.

Plaintiffs have moved for partial summary judgment or alternatively for a preliminary injunction to forbid the Secretary's use or enforcement of the allegedly per se rules in disability determinations. Defendants have cross-moved for partial summary judgment declaring the challenged policy valid.

BACKGROUND

Disability determinations in New York begin with initial consideration and reconsideration by an authorized state agency, the Office of Disability Determinations (“ODD”) of the New York State Department of Social Services. See 42 U.S.C. §§ 421(a), 1386(a).2 Disappointed claimants may seek federal administrative review by the Social Security Administration, including a hearing before an administrative law judge and an appeal to the Appeals Council. 42 U.S.C. §§ 405(b)(1), 1383(c)(1), see Bowen v. City of New York, U.S. ___, ___, 106 S. Ct. 2022, 2025 (1986).

At all stages of this administrative process, a five-step sequence is followed in determining whether a claimant is entitled to SSDI or SSI benefits. 20 C.F.R. §§ 404.1520, 416.920 (1986), see Bowen v. City of New York, supra , ___ U.S. at ___, 106 S. Ct. at 2025. A claimant triggers the sequence by alleging a disability, that is, the “inability 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 continuing period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Once triggered, the sequence in brief is as follows:

(1) A claimant who is presently working is conclusively presumed not disabled. (2) A non-working claimant is presumed not disabled unless his impairment or combination of impairments exceeds a threshold level of severity.3 (3) A non-working claimant with an impairment of at least threshold severity is conclusively presumed disabled if his impairment “meets” or “equals” the Listing of Impairments (the “Listing”), 20 C.F.R. Part 404, Subpt. P, App. 1 (1986).4 (4) A claimant for whom no determination is made in the first three steps is found not disabled at this step in his residual functional capacity (“RFC”) enables him to perform the sort of work he has previously done. (5) If in step 4 a claimant is considered unable to perform his previous work, he will be found disabled if on the basis of his RFC, age, education, and work experience he is unable to do any other substantial work.

The dispute in this case concerns the procedures followed at steps 3, 4 and 5. At step 3, the Listings provide for various medical tests by which a claimant may meet or equal an enumerated cardiovascular impairment and thereby conclusively establish disability.

For the subclass members who complain of ischemic heart disease,5 “the primary basis for adjudicating claims” is the results of the treadmill exercise test. The treadmill test measures a patient's heart condition based on electrocardiographic responses, changes in blood pressure, chest pain, and other symptoms, as the individual walks or runs on a treadmill with progressively greater speed and steeper grade.

The treadmill test need not be the only basis for adjudicating claims, provided that the claimant can supply evidence of other impairments severe enough alone or in combination to equal the Listings.6 Affidavit of Marvin Lachman, Apr. 15, 1986, ¶ 7); Affidavit of Barbara G. Rodbart, Nov. 15, 1985, ¶ 33-35, Exh. M at 5. Nor can the results of the test be controlling if they are unreliable or unavailable. Listings § 1.00G4. They may be unreliable if the testing does not conform to an acceptable protocol. Id. § 4.00DG2, or took place more than a year ago, Affidavit of Marvin Lachman, Apr. 15, 1986, ¶ 6; Affidavit of Barbara G. Rodbart, Nov. 15, 1985, Exh. H at 3, or if the claimant's condition has subsequently deteriorated. Listings § 4.00G4. They may be unavailable because performance of the treadmill test itself poses a significant risk to the claimant's health. Id. § 4.00G3.

However, if the claimant has no additional impairments and “if there is documentation of an acceptable treadmill exercise test,” then only the results of that test are considered, and other medical reports such as angiographic, radio-isotopic ventriculographic, or resting electrocardiographic findings are dismissed as “not applicable.” Listings §§ 4.00G4, 4.04B, Defendants' Reply Memorandum at 8; Plaintiffs' Reply Memorandum at 3-5.

If the Secretary finds that a claimant's medical condition does not meet or equal the Listings so as to conclusively establish disability, the analysis proceeds to step 4 and, if necessary, step 5. At these steps, the Secretary considers the claimant's RFC—the range of activities that he still can do in spite of his impairment.

Treadmill test results continue to be of weighty significance in this evaluation. Guidelines issued by the Secretary correlate the ability to perform work at a given level of exertion with electrocardiographic findings at specific intervals of the treadmill test. Department of Health and Human Services, Program Operations Manual System (“POMS”), ¶ DI 00401.590C. An irregular electrocardiographic response at any interval indicates the simple presence of a cardiovascular impairment. An individual's ability to work in spite of the impairment is inferred from the interval at which the irregular response is first registered. Thus, if a claimant registers an irregular electrocardiographic response before he reaches five “METS”7 on the treadmill test (or five times the approximate oxygen uptake required at rest), his impairment meets the Listing for ischemic heart disease, and he is presumed unable to work. Listings, § 4.04A. However, if an irregularity arises between five and seven METs, the Secretary assumes that the ability to do light work “ordinarily would be retained.” POMS, ¶ DI 00401.590C. If an irregularity is first detected at the interval between seven and ten METs, the ability to do medium work “ordinarily would be retained.” Id. If none is detected until after the claimant reaches ten METs (or if no irregularity is detected at all), the claimants is apparently deemed able to do heavy work. Affidavit of Marvin B. Lachman, Apr. 30, 1985, ¶ 32.

The parties appear to disagree on how conclusive the Secretary's presumption is as to an individual's ability to work at a given level of exertion. The Secretary's regulations provide that the RFC assessment “is based on all of the medical evidence we have, including any other assessments that may have been provided by treating or examining physicians, consultative physicians, or any other physician designated by the Secretary.” 20 C.F.R. §§ 404.1546, 415.946 (1986). Nevertheless, plaintiffs contend, in practice when a claimant has undergone a valid, up-to-date treadmill test and alleges only one impairment, no medical evidence apart from the results of the test are considered in the RFC assessment.8 Defendants assert, by contrast, that in accord with the regulations an ODD staff physician “must consider the medical findings and results of any and all diagnostic test in the record as well as any medical assessment that has been submitted by an examining physician,” including nuclear test studies, echocardiograms, and arteriography". Affidavit of Barbara G. Rodbart, Nov. 15, 1985, ¶ 38.

The same reliability and availability that is required of treadmill test reports used in the Listings analysis also is required for their use in RFC assessments. Listings § 4.00C. Thus, if a treadmill report is unacceptable or unavailable, other medical evidence may be considered in the assessment. Likewise, evidence of impairments over and beyond ischemic heart disease is again considered. For claimants alleging ischemic heart disease as their only Impairment, however, testimony given in depositions supports the view that acceptable treadmill results do take exclusive precedence in RFC assessments. Dr. Ralph Weber, a consultant in cardiology for the Social Security Administration, testified that the functional abilities of such a claimant will never be found restricted beyond what is directed by the POMS guidelines. Medical evidence (such as an angiogram) to the contrary cannot serve to rebut the directed result.9 Dr. Marvin Bierenbaum, at the time of his deposition the Social Security Administration's Regional Medical Advisor for the New York Region, similarly testified that the treadmill test (alternatively referred to as the screen test) takes precedence over other medical tests. Again, angiograms and other tests tending to a contrary result are of no effect.10

To summarize, plaintiffs argue that when a claimant alleging one impairment has an acceptable treadmill report in his file, the Secretary does not allow consideration of other medical evidence for purposes of either the Listings analysis or the RFC assessment. Defendants cite regulations calling for the consideration of all relevant medical evidence in both evaluations. However, they acknowledge that when acceptable treadmill results are on file, the Listings analysis proceeds according to criteria exclusively applicable to those results. In addition, two of the Secretary's medical experts have agreed that except where multiple impairments are alleged, acceptable treadmill test findings alone are determinative in RFC assessments.

DISCUSSION

Congress has entrusted the Secretary with exceptionally broad authority to prescribe standards for disability adjudication and the court may intervene only if the Secretary's standard exceeds his broad authority or is arbitrary and capricious. Heckler v. Campell, 461 U.S. 458, 466 (1983). Of course, the Secretary may exceed his authority not only by promulgating illegal regulations, see Dixon v. Heckler, 785 F.2d 1102, 1106 (2d Cir. 1986), but also by enforcing an illegal de facto policy not encompassed or authorized by his own regulations. See Stieberger v. Bowen, 615 P. Supp. 1315, 1349 (S.D.N.Y. 1985) (Sand, J.), vacated on other grounds, 801 F.2d 29 (2d Cir. 1986). Under the circumstances of this case, the Secretary's challenged policy does conflict with the provisions of the Social Security Act. Because the conflict in dispositive of the motions before the court, plaintiffs' contention that the policy violates the Fifth Amendment need not be considered. See Califano v. Yamasaki, 442 U.S. 682, 692 (1979).

Similarly, the court need not base its holding on violation of the Administrative Procedures Act, 5 U.S.C. § 553, resulting from the Secretary's failure to publish the policy in the Federal Register. That issue was raised but not entirely resolved in the court's previous opinion. State of New York v. Heckler, supra, 105 F.R.D. at 120-22. While the court finds that a sufficient showing of illegal non-publication has been made for jurisdictional purposes, the decision whether the Secretary's policy is valid does not otherwise depend on any violation of publication requirements.

The Act provides generally that:

An 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, considering his age, education, and work experience, engage in any kind of substantial gainful work....

47 U.S.C. §§ 423(d)(2)(A), 1382c(a) (3) (B).

This language requires that a claimant be given the opportunity to present evidence relevant to disability before the Secretary decides his claim. See, e.g., Dixon v. Heckler, 589 F. Supp. 1494, 1502-06 (S.D.N.Y. 1984) (Lasker, J.) aff'd, 755 F.2d 1102 (2d Cir. 1986). The Secretary's regulation implementing the disability determination sequence opens with a like commitment to consideration of relevant evidence: “We consider all material facts to determine whether you are disabled.” 20 C.F.R. §§ 404.1520(a), 416.920(a) (1986).

Congress's recent amendments to the Act are similarly unequivocal. Section 9(b)(1) of the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 stat. 1794, provides:

In making any determination with respect to whether an individual is under a disability or continues to be under a disability, the Secretary shall consider all evidence available in such individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under disability. In making any determination the Secretary shall make every reasonable effort to obtain from the individuals' treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis. 42 U.S.C. § 423(d) (5)(N), Section 2(c) likewise provides in part:

Any determination under this paragraph shall be made on the basis of all the evidence available in the individual's case file, including new evidence concerning the individual's prior or current condition which is presented by the individual or secured by the Secretary. Any determination made under this paragraph shall be made on the basis of the weight of the evidence and on a neutral basis with regard to the individual's condition.....

42 U.S.C. § 1382c(a)(5).

Congress's command to hear all of the evidence is not new. The amendments apply, with certain exceptions, only to those subclass members for whom the Secretary made or will make disability determinations on or after October 9, 1984. Pub. L. No. 98-460, §§ 2(d), 2(e). However, the basic rule of evidence applicable to administrative agencies generally is that “[a]ny oral or documentary evidence may be received and an agency is to exclude evidence only when it is ”irrelevant immaterial, or unduly repetitious.“ 5 U.S.C. [sect ] 556(d). ”A party is entitled to present his case or defend by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Id. The Social Security Act, since well before the recent amendments, likewise has called for “individualized determinations based on evidence adduced at a hearing.” Heckler v. Campbell, supra, 461 U.S. at 467 (citing 42 U.S.C. §§ 405(b) (1976 ed., Supp. V), 423 (d)(2)(A), Finally, the Secretary's own stated rule since at least as early as 1965 also shows a preference for full and true disclosure of the facts: “Whether or not an impairment in a particular case ... constitutes a disability .... is determined from all the facts of that case.” 20 C.F.R. § 404.1520(a) (1965), quoted in Chico v. Schweiker, 710 F.2d 947, 949 (2d Cir. 1983).

  1. Listings Analysis

    It therefore comes as a surprise that once acceptable treadmill results are in the file of a claimant with ischemic heart disease, they control the Listings analysis to the exclusion of other medical evidence. Defendants assert that the Listings provide several approaches for evaluation of ischemic heart disease, and that absent an acceptable treadmill test report, other medical evidence may be considered under the criteria applicable to it, set forth in sections 4.04B and 4.04C of the Listings. Correlatively, however, when an acceptable treadmill test is available, the only approach permitted under the Listings is the criteria in section 4.04A, applicable exclusively to treadmill results.

    Defendants argue that there is substantial medical support for the use of the treadmill test in adjudicating claims of cardiovascular impairments. No doubt there is support for the test, though plaintiffs have significantly undercut defendants' representation of how accurate the test is.11 The issue, however, is not the test's accuracy, but whether there is any justification for supplanting admittedly material and objective medical findings with the results of a single test. Because defendants concede that the treadmill test is often inaccurate, see note 11 supra, they forego the argument that alternative medical tests are excludable as unduly repetitious or superfluous. Where no test is perfect, in other words, every test that is helpful ought to be considered.

    The Secretary's reliance on treadmill results in certain cases would be perfectly appropriate if the test measured a subject matter (such as jobs in the national economy) susceptible of resolution within a single rulemaking proceeding. See, e.g., Heckler v. Campbell, supra, 461 U.S. at 467-68 (1983). The determination of a claimant's medical condition, by contrast, is necessarily among the most individualized, case-by-case decisions that the Secretary makes. Id. at 467 (citing 42 U.S.C. § 423(d)(2)(A). To ignore all medical findings other than the treadmill test results deprives the claimant of the opportunity to prove his “particular limitations” not reflected in the latter results. See Heckler v. Campbell, supra, 461 U.S. at 462 n.5, 467 n.11. As the claimant bears the burden of making a prima facie case of disability, 42 U.S.C. § 423(d)(5), 1382c(a)(3), it is unfair thus to take away his means of proving his case.

    Exclusion of medical evidence has other impermissible ramifications. Findings and conclusions of a treating physician cannot be given the weighty consideration they are due, see Stieberger v. Bowen,801 F.2d 29, 31 (2d Cir. 1986), when treadmill results displace them. A claimant's subjective complaints of pain, with or without corroborating objective findings, also cannot be considered as is required. See Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984).

    In short, an administrative adjudicator cannot be expected to reach an independent judgment in applying the Listings when presented with only some of the facts.12 As there is no dispute about the exclusion of much medical evidence from the Listings analysis when an acceptable treadmill report is available, plaintiffs are entitled to judgment as a matter of law, See Empire Electronics Co. v. United States, 311 F.2d 175, 179 (2d Cir. 1962), Rule 56(c), F.R. Civ. P.

  2. Residual Functional Capacity

    The exclusion of relevant medical evidence from the RFC evaluation at steps 4 and 5, if established, would also entitle plaintiffs to summary judgment for essentially the reasons set out above. The RFC assessment, like the determination whether a claimant's impairment meets or equals the Listings, is of necessity highly individualized. See Bowen v. City of New York, supra, ____ U.S. at ____. 106 S. Ct. at 2027. In other words, the claimant must be given the chance to show that the treadmill test should not apply to him, and to rebut the test results with other medical evidence of his particular limitations. See Heckler v. Campbell, supra, 461 U.S. at 462 n.5, 467 & n.11. This other evidence means any facts relevant to the claimant's own functional abilities, including but not limited to treating physicians' opinions and the claimant's subjective complaints of pain. Simply put, the claimant's RFC must be evaluated individually, not bureaucratically. See Bowen v. City of New York, supra, ___ U.S. at ____, 106 S. St. at 2027 see also Cabral v. Heckler, 604 F. Supp. 831, 835 (M.D. Cal. 1984).

    Defendants argue that the treadmill test is the only commonly available test that can provide information directly pertinent to RFC assessments. The answer to this contention, to the extent it remains unaddressed, is that claimants have the right to present pertinent evidence indirectly as well as directly. Much medical evidence, which defendants imply is not directly pertinent, reflects a diagnosis for the presence of ischemic heart disease rather than a measure of the “graded functional loss” resulting from the disease. Defendant's Reply Memorandum at 13-14. No one argues, however, that diagnostic evidence of heart disease is not probative of a claimant's capacity to function and to work. Indeed, certain medical findings such as an angiogram may by themselves establish heart disease of such severity that under the Listings analysis a claimant's disability is conclusive. Yet if the claimant's file includes treadmill results indicating a capacity to work, and if such results are in fact given exclusive precedence, other medical findings are effectively ignored no matter how severe they reflect an impairment to be. Such an arbitrary outcome is inconsistent with the individualized scheme of disability adjudication that the Social Security Act requires. See Heckler v. Campbell, supra, 461 U.S. at 467, Cabral v. Heckler, 604 F. Supp. At 835.13

    As already noted, however, the parties have taken sides in a debate matching the purport of the Secretary's regulations against the testimony of his medical experts. If the debate raises a genuine issue as to some material fact, partial summary judgment for either party will be improper and resolution of the debate will have to await trial. Rule 56(c), F.R. Civ. P., see Empire Electronics Co. supra, 311 F. 2J at 180-81.

    At the same time, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., U.S. , , 106 B. Ct. 2505, 2511 (1986). The evidence must be significantly probative, not just colorable, id., because the summary judgment rule is aimed at isolating and disposing of factually unsupported claims or defenses. Celotex Corp. v. Catrett, _____ U.S. ______, _______, 106 S. Ct. 2548, 2553 (1986).

    In the instant case, plaintiff has carried its initial burden — as a party moving for partial summary judgment — of informing the court of the basis for the motion and identifying those portions of the affidavits, depositions, and like materials which demonstrate the absence of a genuine issue of material fact. See id, Specifically, plaintiffs point to the deposition testimony of Drs. Weber and Bierenbaum as indicative of an undisputed policy in fact of precedence for treadmill results and exclusion of other medical evidence from RFC assessments. See notes 9-10 supra.

    At this point, it is incumbent upon defendants to come forth, by affidavits or other discovery materials, with “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, supra, _____ U.S. at ______, 106 S. Ct. at 2553 (quoting Rule 56(e), F.R. Civ. P.). Defendants obviously have alleged that, contrary to plaintiffs' contentions, the Secretary's policy for RFC assessments is consistent with what the regulations require. They so allege in their pleadings and in affidavits of Barbara G. Rodbart, the Social Security Administration's Director of Disability Programs for the New York Region.

    However, rather than designating “specific facts” to substantiate their version of the Secretary's policy, defendants' assertions in their pleadings and affidavits are based almost entirely on the rules themselves; that is, regulations and other guidelines such as the POMS and Social Security rulings, which reiterate the regulations. Significantly, defendants neither attempt to impeach nor address the deposition testimony of the Secretary's medical experts, Drs. Weber and Bierenhaum. Rather, they rely on interpretations of the Secretary's rules by Ms. Rodbart, an official responsible for implementing disability policy. Invocation of what the rules require is insufficient to show that the Secretary's actions meet those requirements.

    Moreover, even if bare citation of regulations and guidelines could for present purposes constitute a sufficient factual showing, defendants' rendering of the relevant rules is itself equivocal. Ms. Rodbart's affidavit states that POMS guidelines do not require exclusion of other relevant medical evidence:

    The suggested RFC set forth in the POMS (¶ DI 00401.590C) is based solely on the performance of the treadmill exercise test to certain exercise (MET) levels without positive signs of ischemia and reflects SSA's (the Social Security Administration's) policy to give priority to exercise test results and their measure of function in adjudicating ischemic heart disease. . . . SSA recognizes, however, that such RFC, as reflected by the exercise test results, may not be retained where the individual is restricted by other cardiac impairments or where the claimant has any other documented limitations.

    Affidavit of Barbara C. Rodbart, Nov. 15, 1985, v. 43. Though implying that non-treadmill evidence may be considered in RFC assessment of multiple impairments, the affidavit remains consistent with plaintiffs' position that whenever possible the evaluation of ischemic heart disease alone relies exclusively on treadmill results.

    Similarly equivocal is the assertion that the presumptions set forth in the POMS "were intended to facilitate the adjudication of disability claims but should not take precedence over the conclusions that flow from findings of fact in a given case. Id. ¶ 44 (citing State Agency Memorandum 44-81 (Saut. 17, 1981)). The memorandum itself from which Ms. Rodbart paraphrases reveals that treadmill test results are the only conclusive “findings of fact” in a given case and that they are overriding when they indicate an ability to do heavy work, though other signs, such as evidence of myocardial infarction or coronary bypass may reflect a more restricted functional capacity:

    If a properly performed treadmill exercise test ... has been performed, and the results show the capacity for heavy work activity, this evidence would override any presumption raised by a history of myocardial infarction or coronary bypass concerning the individual's [in]ability to perform heavy work. In no instance should guides take precedence over the conclusions that flow from findings of fact in a given case. Hence, for a claimant who has had a myocardial infarction or a coronary bypass and who has demonstrated, by a properly performed treadmill test, a capacity for heavy work, it would be appropriate and consistent with (certain POMS guidelines) to conclude that the individual has a nonsevere impairment.

    State Agency Memorandum 44-81 (Sept. 17, 1981), reproduced in Defendants' Memorandum, Exh. O at 2. In the same interagency memorandum, Ms. Rodbart herself summarizes this policy:

    The Social Security Administration's Central Office advises that post-[myocardial infarction] and post-bypass surgery cases are always more than non-severe (i.e. moderate to moderately severe) and preclude heavy work unless subsequent treadmill testing shows a capacity for heavy work in which case the impairment would be non-severe.

    Id. at 1 (emphasis in original).

    Far from contradicting plaintiffs' contention that treadmill test results displace other relevant medical evidence in RFC assessments, these examples of the priority given to treadmill results, read in context, support plaintiffs' contention. In other words, there is no real conflict in what the parties say, and no genuine issue of material fact.14

    Because the exclusion of evidence from RFC assessments, like the exclusion from the Listings analysis, is not genuinely in dispute, plaintiffs are entitled to partial summary judgment. See Empire Electronics Co., supra, 311 F.2d at 179.

  3. Conclusion

    The Secretary's policy of giving priority to treadmill test results has resulted in the exclusion of relevant medical evidence from both the consideration of whether a claimant's impairment meets or equals the Listings and the assessment of the claimant's RFC. Enforcement of the policy has denied plaintiff subclass members their right to present such evidence in support of their disability claims. There being no genuine factual issue as to the existence of the policy, plaintiffs' motion for partial summary judgment is granted and defendants' cross motion for partial summary judgment is denied.

IT IS SO ORDERED.

Dated: New York, New York

January 12, 1987

                                                                                                                     /s/                                                                                                     ROBERT L. CARTER                                                                                                               U.S.D.J.

NOTES

  1. Otis R. Bowen, M.D., succeeded Margaret Heckler as the Secretary of the Department of Health and Human Services on December 13, 1985, and is substituted as a defendant herein. Rule 25(d), F.R. Civ. P.

  2. ODD's federal funding and its authority to make determinations depend on its compliance with the Secretary's regulations and guidelines, and its decisions are directly reviewable by the Secretary. 42 U.S.C. §§ 421(a)(2), 421(c), 421(e), 13835(a); see Bowen v. City of New York, _____ U.S. _____, _____, 106 S. Ct. 2022, 2025 (1986). Plaintiffs accordingly bring this action to challenge the Secretary's alleged enforcement of ODD's compliance with per se rules, as well as his own alleged use of such rules in determinations at the federal level. Subsequent discussion of the Secretary's disability adjudication policy should be understood to encompass both his own determinations and his enforcement of state determinations.

  3. Judge Lasker has preliminarily enjoined the Secretary from applying this “threshold severity” regulation, 20 C.F.R. §§ 404.1520(c), 416.920(c), to the class of New York State residents whose SSDI or SSI benefits the Secretary has withheld or would withhold on the basis of the restriction. Dixon v. Heckler, 589 F. Supp. 1494, 1502-06, 1511 (S.D.N.Y. 1984) (Lasker, J.), aff'd, 785 F.2d 1102 (2d Cir. 1986). Although some of the plaintiff subclass members in the instant case may also be members of the Dixon class, plaintiffs do not rely on the Secretary's application of the unlawful regulation as a ground for challenging other policies in this case. Accordingly, the court expresses no opinion whether, independent of the violations alleged herein, the Secretary has wrongfully withheld disability benefits from plaintiff subclass members on the ground that their impairments are not severe.

  4. An impairment “meets” the Listings if it is specifically included therein, and “equals” the Listings if, though not itself included, it is equal in severity to at least one impairment that is enumerated. 20 C.F.R. §§ 404.1520(d), 404.1526, 416.920(d), 416.926 (1986).

  5. Apparently, all of the named subclass members suffer from ischemic heart disease, although the subclass is defined also to include individuals impaired by hypertensive vascular disease, myochardiopathies, or rheumatic or syphilitic heart disease. The parties largely confine their discussion to the Secretary's disability determinations for claimants with ischemic heart disease. However, the Secretary may incorporate the procedures at issue here in adjudicating the claims of unnamed subclass members with other of these impairments. See Listing §§ 4.03, 4.09. The court's conclusion as to the challenged procedures should therefore control the validity of the Secretary's adjudication of the latter group of claims insofar as he does in fact incorporate the challenged procedures.

  6. Similarly, a claimant who does not undergo a treadmill test can establish disability if other medical evidence in the record shows that his impairment or combination of impairments meets or equals the Listings. See Listings §§ 4.00G1, 4.00G4. 4.04B.

  7. The intervals are measured in multiples of METs, one MET representing the estimated oxygen uptake of an individual at rest.

  8. Plaintiffs agree, however, that at least as of late the Secretary allows evidence of two additional factors, namely, the effects of work-related stress and environmental restrictions (such as temperature) on the claimant. Plaintiffs' Surreply Memorandum at 8.

  9. Dr. Weber's deposition reads in part:

    Q. Suppose that the claimant has had an angiogram and that the results meet the [L]istings. Can the claimant be found capable of performing only light work based on the results of the angiogram if he has also had a stress test (i.e., a treadmill test) and has completed 7 METs without significant positive (irregular) findings?

    A. No.

    Q. Is there any set of circumstances absent other types of heart impairments under which a claimant can be found to meet or equal the [L]istings for ischemic heart disease or to be capable of performing only light work if he has completed 7 METs on the stress test without significant positive findings?

    A. No heart disease other than ischemic heart disease completes 7 METs, are there any circumstances under which —

    Q. —can be found capable of performing only light work.

    A. Not if there is no other disease or impairment.

    Q. Is there any set of circumstances under which a claimant without other heart impairments can be found to meet or equal the [L]istings for ischemic heart disease or to be capable of performing only light or medium working [sic] who has completed 10 METs on the stress test without significant positive findings?

    A. No.

    Affidavit of Marla Tepper, Apr. 17, 1986, Exh. A at 122-23.

  10. Dr. Bierenbaum's deposition reads in part:

    Q. In the absence of a non-cardiovascular complaint, could the individual be found solely on the basis of his ischemic heart disease to be capable of performing only light work if he had completed seven [MET]s on the stress test without any significant positive findings?

    A. No, the presumption would be that he should be able to do medium work.

    Q. Suppose the claimant has ischemic heart disease and has had an angiogram; suppose that the result of the angiogram meets the [L]istings. Can the claimant be found to meet the [L]istings based on the results of the angiogram if he has also had a stress test and he has completed seven METs without any significant positive findings?

    A. The answer to that would be no, because a stress test takes precedence.

    Q. Suppose, again, that the claimant has had an angiogram and that the results meet the [L]istings. Can the claimant be found capable of performing only light work based on the result of the angiogram if he has also had a stress test and has completed seven [MET]s without significant positive findings?

    A. The answer, so as not to be redundant on the other one, is that he would be found to be capable of doing medium work.

    Q. I believe you have answered this, but just so we are completely clear, is there any set of circumstances under which the claimant can be found to meet or equal the [L]istings for ischemic heart disease or to be capable of performing only light work if he has completed seven [MET]s on the stress test without any significant positive findings?

    A. No.

    Q. Suppose a claimant has ischemic heart disease and has had an angiogram; suppose the results of the angiogram meet the [L]istings. Can the claimant be found to meet the [L]istings based on the results of the angiogram if he has also had a stress test and has completed ten [MET]s without significant positive findings?

    A. The answer is that he cannot be found to meet the [L]istings.

    Q. Can he be found capable of performing only light work based on the results of an angiogram that meets the [L]isting [sic] if he has performed ten METs?

    A. No.

    Q. Can he be found capable of performing only medium or light work based on the results of an angiogram that meets the [L]istings?

    A. No.

    Q. And just for the record, is there any set of circumstances under which the claimant can be found to meet or equal the [L]istings for ischemic heart disease, or be capable of performing only light or medium work if he has completed ten [MET]s on the stress test without significant positive findings?

    A. The answer would be yes, again, should there be a second condition.

    Q. In the absence of a second condition?

    A. No.

    Affidavit of Marla Tepper, May 7, 1985, Exh. A at 24-27.

  11. As plaintiffs point out, the study on which defendants place primary reliance for the accuracy of the treadmill test concludes that the test fails to identify the presence of ischemic heart disease 38 percent of the time, rather than 11 percent as defendants assert. Compare Plaintiffs' Reply Memorandum at 15 & n.*, 16 & n.*, with Affidavit of Peter Chodoff, M.D., Nov. 14, 1985, ¶ 19 (citing Bruce, Values and Limitations of Exercise Electrocardography, 50 Circulation (July 1974)).

  12. The exclusiveness of the Secretary's reliance on treadmill results is not mitigated by the general proposition that a claimant with an unlisted impairment can “equal the Listings” by proving that his impairment is equal in severity to a listed impairment, 20 C.F.R. §§ 404.1526(a), 416.926(a). That proposition has no bearing on the issue here because, quite simply, ischemic heart disease is a listed impairment. Listings, §§ 4.00D, 4.04. Plaintiffs' assertion that treadmill results supplant other relevant evidence in the adjudication of claims of this listed impairment remains uncontradicted.

  13. Defendant also cite regulations and other guidelines calling for consideration of work-related stress and environmental restrictions, e.g., 20 C.F.R. §§ 404.1545, 416.945, as examples of the Secretary's policy of hearing evidence other than treadmill test results. These “examples” are not particularly helpful. They do not contradict or even address plaintiff's assertion — confirmed by Drs. Weber and Bierenbaum — that claimants are being precluded from presenting medical findings to rebut treadmill test results.

  14. Speculation remains over the inferences to be drawn from “returns,” cases returned to ODD by the Secretary with accompanying instructions for correction. The parties offer conflicting interpretations. However, such speculation does not suffice to defeat a motion for summary judgment and, in any event, in view of the lack of disagreement over the Secretary's policy as outlined above, the significance of the returns is immaterial. Knight v. U.S. Fire Insurance Co., 804 F.2d 11-12 (2d Cir. 1986).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE STATE OF NEW YORK, CESAR PERALES, as
Commissioner of the New York State Department of Social
Services, THE CITY OF NEW YORK, THE COUNTY OF
SUFFOLK, PETER F. COHALAN, as County Executive of the
County of Suffolk, ANITA ROMERA, as Commissioner of the
Suffolk County Department of Social Services, and WALTHON
WHITE, HAYDEE GUZMAN, ANIBAL VILLANUEVA,
RAFAEL RIVERA, GLADYS DOMINGUEZ, HECTOR
MUNIZ, LUIS DIAZ, CATHRYN GIBBONS, MARIA
GONZALEZ, JORGE PEREZ, EDWARDA RIVERA, AND
HERMINA GONZALEZ, and all others similarly situated,

Plaintiffs,

- against -

LOUIS W. SULLIVAN, M.D., as Secretary of
the United States Department of Health
and Human Services; DORCAS HARDY, as

Commissioner of the Social Security
Administration; and THE UNITED STATES

DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants.

THE COURT having certified a class on March 11, 1985, consisting of:

All New York State residents with cardiovascular impairments whose applications or eligibility for SSDI or SSI disability benefits have been or will be denied or terminated by the application of per se denial rules on or after June 1, 1980;

AND the Court having further certified a subclass of individuals from the above class consisting of those:

Who have ischemic heart disease, hypertensive vascular disease, myocardiopathies, or rheumatic or syphilitic heart disease and whose disability benefits have been or will be denied or terminated based on the application of per se denial rules pertaining to treadmill exercise tests;

AND plaintiffs, having moved the Court for partial summary judgment, or alternatively for a preliminary injunction, and defendants having cross-moved for partial summary judgment, and this Court having issued an opinion dated January 12, 1987, filed by the Clerk of the Court on January 13, 1987, IT IS HEREBY ORDERED THAT plaintiffs' motion for partial summary judgment is granted, and defendants' cross-motion for partial summary judgment is denied and that:

  1. Substantive Relief

    1. Defendants shall readjudicate subclass members' cases. In readjudicating those cases, defendants shall fully develop and consider all relevant evidence, including newly-obtained evidence, in each subclass member's claims file(s). Defendants are permanently enjoined from considering the results of a treadmill exercise test (“TET”) to the exclusion of other relevant evidence and from failing to consider all relevant evidence in assessing the disability of subclass members. Defendants shall base their assessment of disability of subclass members at steps 2, 3, 4 and 5 of the sequential evaluation process upon an overall evaluation of the claimant's signs, symptoms and laboratory findings, and the treating physicians' opinions.

    2. Defendants shall consider all signs, symptoms and laboratory findings demonstrated during treadmill exercise testing irrespective of whether the test was completed.

    3. In all cases in which an adjudicator, at any level, proposes to rely on the results of a TET to deny or terminate benefits, if the record contains inconsistent or contradictory signs, symptoms, laboratory findings, or treating physicians' opinions, the adjudicator shall provide a rationale justifying his reliance on the TET.

    4. Defendants are permanently enjoined from denying or terminating a claimant's disability benefits based primarily on the results of a TET which “shows the capacity for heavy work.” See State Agency Memorandum 44-81 (Sept. 17, 1981). Defendants shall base their assessments of disability for these claimants upon all the relevant evidence in the claimants' claims file(s) as set forth in paragraphs 1 and 2 herein.

  2. Instructions

    1. Defendants shall draft instructions for properly evaluating the eligibility of subclass members for benefits. These instructions shall be provided to plaintiffs' counsel and all offices adjudicating cases of subclass members (“the adjudicating offices”), including the New York State Office of Disability Determinations (“ODD”), the Social Security Administration's Office of Hearings and Appeals (“OHA”), the Appeals Council and the New York Regional Office. These instructions shall be consistent with the language of this Court's January 12, 1987 opinion and shall contain the substance of the provisions set forth in paragraphs 1 through 4 of this Order and Judgment. These instructions shall replace any existing instructions regarding adjudications based on TETs that are not consistent with this Order and Judgment.

    2. Defendants shall provide plaintiffs' counsel with a copy of their proposed instructions for readjudicating cases of subclass members within 90 days of the date that this Order and Judgment is entered. Plaintiffs' counsel shall then have 30 days to submit any objections to those instructions to defendants' counsel. In the event that the parties cannot resolve their differences within 30 days thereafter, the proposed instructions and objections will be submitted to this Court for its resolution of the dispute.

    3. Defendants shall provide plaintiffs' counsel with a copy of their proposed instructions for screening subclass members within 90 days of the date that this Order and Judgment is entered. Plaintiffs' counsel shall then have 30 days to submit any objections to these instructions to defendants' counsel. In the event that the parties cannot resolve their differences within 30 days thereafter, the proposed instructions and objections will be submitted to this Court for its resolution of the dispute.

    4. After the substance of the instructions in paragraphs 5, 6, and 7, above, has been agreed to by the parties or has been decided by the Court, the instructions shall be sent to New York State Social Security Administration offices and to ODD within 30 days.

    5. Defendants shall provide plaintiffs' attorneys with copies of all teletypes, program operations manual system (“POMS”) instructions, program circulars and temporary instructions and other documents issued to effect compliance with this Order and Judgment as these documents are issued.

    6. Defendants shall also provide training to the staff of ODD concerning the implementation of the instructions upon the specific request by ODD for such training.

  3. Identification of Subclass Members

    1. (a) Once instructions are issued pursuant to paragraph 8 above, defendants shall send a notice to all potential subclass members identified by Social Security Administration (“SSA”) records whose disability claims were denied or who were terminated from entitlement to Social Security Disability Insurance (“SSDI”) benefits or Supplemental Security Income (“SSI”) benefits at Step 3, 4, or 5 of the sequential evaluation process, set forth in 20 C.F.R. §§ 404.1520 and 416.920 (1988), between June 1, 1980 and February 1, 1987 and those whose records were coded “170” and were denied or who were terminated from entitlement to SSDI or SSI benefits at Step 3, 4, or 5 of the sequential evaluation process from February 1, 1987 to the date that the new adjudicative instructions are issued pursuant to paragraph 8. Defendants also shall send a notice to all claimants whose disability claims were denied or who were terminated from entitlement to SSDI or SSI benefits at Step 3, 4 or 5 of the sequential evaluation process from February 1, 1987 to the date that the new adjudicative instructions are issued pursuant to paragraph 8 and who have been identified by ODD to have had a treadmill exercise test, but whose records were not coded “170.” These notices will instruct the potential subclass member to return an enclosed postage paid postcard (or envelope) if he wishes to receive relief under this Order and Judgment. If a potential subclass member responds to the notice, SSA will issue him a written acknowledgement of receipt of the response.

      (b) Defendants shall provide plaintiffs' counsel with a copy of their proposed notice to potential subclass members and proposed postcard (or envelope) within 60 days after this Order and Judgment is entered by the Clerk of the Court. Plaintiffs' counsel shall then have 30 days to submit any objections to this notice to defendants' counsel. Defendants shall then have 30 days to revise the notice. In the event that the parties cannot resolve their differences within 30 days thereafter, the matter will be submitted to this Court for its resolution of the dispute.

      (c) After the substance of the notice and postcard (or envelope) in subsections (a) and (b) above has been agreed to by the parties or has been decided by the Court, and once instructions are issued pursuant to paragraph 8 above, defendants will immediately begin mailing the notice in staggered increments representing twenty percent (20%) of the total potential subclass size. Mailing of notices will be completed within 24 months of the date that instructions are issued pursuant to paragraph 8. Defendants shall use every good faith effort to screen for subclass membership on a continuous flow basis and as expeditiously as possible, and shall attempt in good faith to complete the screening of all potential subclass members' and to commence readjudications of all subclass members' cases within 24 months after the initial notice is mailed. Potential subclass members will have 120 days from receipt of the notice to respond to the mailing. Defendants shall presume that the notice was received 5 days after the date of mailing and the mailing date shall be marked on the notice. Subclass members who respond to the notice after 125 days from the date of mailing shall receive full relief as subclass members if they demonstrate that they are responding within 120 days of their actual receipt of the notice, or if they demonstrate that they have “good cause” as defined in 20 C.F.R. §§ 404.911 and 416.1411 (1988) for missing the 120-day deadline.

      (d) In addition, defendants shall reproduce in both the English and Spanish languages a 17 inch by 22 inch poster, the language of which will be agreed upon by the parties or submitted to the Court for resolution of any dispute. The poster shall also serve as a notice to potential subclass members. Equal numbers of English and Spanish language copies of this poster will be prominently displayed in all SSA offices in the State of New York to which the public has access and plaintiffs' attorneys will be supplied with 1100 copies of this poster. Plaintiffs may specify what percentage of the 1100 posters they wish to have prepared in the Spanish language. Potential subclass members will have either 120 days to respond to SSA's release of these posters or 120 days to respond to the mailing in paragraph 11(a) and (c) above, whichever is later.

    2. Upon entry of this Order and Judgment, defendants are directed to make good faith efforts to immediately inform all SSA district offices and all adjudicating offices that they are required to maintain a list of all individuals who identify themselves as subclass members (“walk-ins”), and defendants shall ensure that such notice is received by those offices no later than ten (10) days after entry of this Order and Judgment by the Clerk of the Court. Defendants shall be deemed to have fully complied with this paragraph of the Order and Judgment if they have so informed SSA district offices and adjudicating offices within one (1) month prior to the entry of this Order and Judgment by the Clerk of the Court. Walk-ins will receive a written acknowledgment that they have elected to have their case reviewed under this Order and Judgment.

    3. SSA will respond, in writing, to any written inquiry from an individual concerning the status of his subclass membership claim.

    4. For those individuals who respond to a notice or walk in and identify themselves as potential subclass members to an SSA district office or any other adjudicating office, a screening process will be conducted to determine if they are subclass members. In doing so, SSA's records will be reviewed to determine if: (1) the individual was denied benefits or terminated from entitlement to benefits between June 1, 1980 and the date that the instructions in paragraph 5 are issued, and (2) the results of a TET were considered in adjudicating his claim. After screening each file, the adjudicating office will readjudicate the cases of those individuals determined to be subclass members. ODD will screen the cases of the individuals claiming subclass membership whose application(s) or termination(s) was last adjudicated by ODD and will readjudicate the cases of those subclass members who are included in paragraph 19(a) and/or paragraph 20(a)(1), but defendants shall have the right to relieve any backlog or overflow of cases by distributing or shifting cases to an adjudicating office other than ODD. The defendants will adjust ODD's workload, including the processing of initial claims, reconsiderations and Continuing Disability Reviews (“CDRs”), as necessary in order to achieve the time goals set forth in paragraph 11(c).

    5. If it is determined that an individual is a subclass member, defendants shall mail a notice to such subclass member within 30 days of that determination. If it is determined that an individual is not a subclass member, defendants shall provide a notice with an explanation of why he is not a subclass member to the individual within 30 days of that determination. Such notice shall advise the individual that he may contact the “Cardiac Case Membership Unit,” c/o Legal Services for the Elderly, if he is dissatisfied with defendants' determination. If the Cardiac Case Membership Unit establishes that there is a dispute between the parties as to whether an individual is a subclass member, it shall refer such dispute in writing to the Social Security Division of the Office of the General Counsel, United States Department of Health and Human Services, Altmeyer Building, 6401 Security Blvd., Baltimore, Maryland 21235 (“OGC”), for resolution. Individuals claiming to be subclass members retain the right to contact OGC without the assistance of the Cardiac Case Membership Unit. Either party or any individual claiming subclass membership may submit any unresolved dispute concerning an individual's subclass membership to the Court for resolution.

    6. Defendants shall provide to plaintiffs' counsel a draft of the notices that will be used to notify claimants of subclass membership decisions within 60 days of the date of entry of this Order and Judgment by the Clerk of the Court. Plaintiffs' counsel shall then have 30 days to advise defendants' counsel of any objections or comments. Defendants shall then have 30 days to revise the notice. In the event that the parties cannot resolve their differences, any dispute regarding the language in the notices shall be submitted to this Court for final resolution.

    7. In the event that a notice mailed pursuant to paragraph 11(a) is returned as undeliverable, the defendants shall remail the notice to the same address. If the second mailing is also unsuccessful, the defendants shall attempt to obtain a better address by contacting the post office, checking defendants' automated records, and working with the potential subclass member's servicing SSA district office for reasonable leads for the purpose of locating the potential subclass member. Defendants shall also attempt to obtain better addresses by providing a computer tape to the New York State Department of Social Services' (“NYSDSS”) so that NYSDSS can perform a match with its public assistance, food stamp, and other records. The defendants shall mail a third notice to all potential subclass members for whom other addresses are obtained.

    8. If a potential subclass member's claims file(s) must be reviewed for a subclass membership determination and cannot be located within 120 days from the date on which the folder is called up for review, and if SSA's records confirm that the individual applied for or had been receiving SSDI or SSI disability benefits and his entitlement to such benefits was denied or terminated on or after June 1, 1980, the defendants shall reconstruct the evidence that is necessary to make a subclass membership determination and shall contact the potential subclass member so that the individual can aid in reconstructing the evidence. If an individual's claim was been coded “170,” SSA shall consider that individual to be a subclass member entitled to receive a readjudication under this Order and Judgment, irrespective of whether SSA is able to locate the actual claim folder, if the individual has timely responded to the notice provided by defendants in paragraph 11, unless evidence that is later adduced demonstrates that the individual is not, in fact, a subclass member.

  4. Readjudications

    1. The readjudication of subclass members' claims will be handled as follows:

      (a) Subclass members whose benefits application(s) or termination(s) that forms that basis of subclass membership was last adjudicated by ODD, will receive a readjudication, for all claims, appealable to an Administrative Law Judge (“ALJ”) and will retain all rights to further administrative and judicial review as provided in 42 U.S.C. §§ 405(g) and 1383(c)(3) and 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N (1988).

      (b) Subclass members whose benefits application(s) or termination(s) that forms the basis of subclass membership was last adjudicated by an ALJ or by the Appeals Council will have a readjudication by an ALJ, for all claims, and will retain all rights to further administrative and judicial review as provided in 42 U.S.C. §§ 405(g) and 1383(c)(3) and 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N (1988).

      (c) If a subclass member has more than one administrative determination or decision requiring readjudication under this Order and Judgment, the level of adjudication of the most recent administrative determination or decision will control the handling of those cases, which shall be consolidated, under the aforementioned procedures.

    2. (a) A subclass member with a current claim active and pending at any administrative level will have all other claims covered by this Order and Judgment consolidated with that current claim at the level at which the current claim is pending unless the current claim is pending at the ALJ (hearing) level and the subclass member or the ALJ refuses consolidation or unless the current claim is pending at the Appeals Council level. This consolidation will be accomplished according to the following procedures:

      (1) If there is a claim pending at the initial or reconsideration level at the time the readjudication under this Order and Judgment is undertaken and a common issue exists, that claim and the claim under this Order and Judgment will be consolidated at the initial or reconsideration level.

      (2) If there is a claim pending at the ALJ (hearing) level at the time the readjudication under this Order and Judgment is undertaken and a common issue exists, that claim and any claim under this Order and Judgment will be consolidated at the ALJ (hearing) level. However, the claims will not be considered at that level if the ALJ does not agree that a common issue between the claims exists or if the claimant objects to the consolidation of the claims. Claimants shall be expressly informed of any proposed consolidation and provided the opportunity to object to the consolidation. Instructions for the effectuation of the provisions in this subparagraph will be part of the package of instructions issued pursuant to paragraph 6.

      (3) If there is a claim pending at the Appeals Council level at the time the readjudication under this Order and Judgment is undertaken, that claim will not be consolidated with any claim under this Order and Judgment.

      To the extent that inconsistent procedures for the handling of subclass members' claims are dictated by these consolidation procedures and by the readjudication procedures set forth in paragraph 19, the consolidation procedures set forth in paragraph 20 shall take precedence. To the extent that inconsistent procedures for the handling of subclass members' claims are dictated by these consolidation procedures and by the provisions of paragraph 30, the provisions of paragraph 30 shall take precedence.

      (b) Subclass members with civil actions pending pursuant to 42 U.S.C. § 405(g) or § 1383(c)(3) in one of the four United States District Courts situated in the State of New York or in the United States Court of Appeals for the Second Circuit as of the date of entry of this Order and Judgment will be given the option of proceeding with their individual court case or receiving relief in that case under this Order and Judgment. Defendants shall provide each such subclass member with a notice (“choice notice”) explaining this option. Defendants shall provide plaintiffs' counsel with a draft of the notice within 14 days of the date that this Order and Judgment is entered by the Clerk of the Court. Plaintiff's counsel shall then have 10 days to submit any objections to the notice to defendants' counsel. In the event that the parties cannot resolve their differences within 10 days thereafter, the proposed notice and objections will be submitted to this Court for its resolution of the dispute. Defendants shall provide each such subclass member with this choice notice within 10 days after the language of the choice notice is agreed to by the parties or resolved by this Court. If any such subclass member does not receive the choice notice, he will have the right to have his claim administratively reopened, even after the issuance of an adverse federal court decision after the date of entry of this Order and Judgment. If a subclass member elects relief under this Order and Judgment, after remand the readjudication will be handled pursuant to paragraph 19(b) above. If an individual decides to proceed with his individual court case, his decision will not affect his right to receive a readjudication under this Order and Judgment of any other claim(s). Nothing in this Order and Judgment, however, shall be construed to preclude the res judicata effect of a court decision where a subclass member decides to proceed with his individual court case.

    3. Defendants' readjudication shall be performed according to the instructions issued pursuant to paragraphs 5 and 6 of this Order and Judgment. For claimants who are subclass members by virtue of a decision denying their application(s) for SSDI or SSI benefits, the readjudication shall be a reevaluation of the subclass member's eligibility for benefits based on all evidence in file, including newly obtained evidence, relevant to the period of time at issue in the administrative decision(s) that form(s) the basis of the claimant's subclass membership. In the case of any readjudication that results in a favorable decision (i.e., an award of benefits), defendants shall proceed to determine whether the subclass member's disability continues as of the date of the readjudication in accordance with the standards and procedures set forth in 42 U.S.C. §§ 423(f) and 1382c(a). For applicant subclass members who request relief under this Order and Judgment and whose claims are active and pending at any administrative level as of the date that instructions are issued pursuant to paragraphs 5 and 6 the period to be adjudicated shall be the period in accordance with 20 C.F.R. §§ 404.620(a) and 416.330 (1988). For claimants who are subclass members by virtue of a decision ceasing disability benefits, the readjudication shall be an evaluation of the subclass member's eligibility for benefits from the date benefits were ceased through the date of the readjudication. Every notice in less than a fully favorable readjudication shall contain a statement that the claimant has the right to appeal the decision and/or reapply for benefits if he believes that his condition has worsened or will worsen.

    4. The fact that an individual has filed multiple claims shall not be used by SSA as a basis for unreasonably delaying either the issuance of a final decision or effectuation of payment of benefits (due to a final decision) in any claim that has not yet been identified for consolidation pursuant to paragraph 20(a).

    5. For any readjudication that results in a partially or fully favorable decision for the claimant, defendants shall find such individual disabled for any applicable period and restore benefits retroactively, consistent with 42 U.S.C. §§ 423(a) and 1382. Defendants shall make good faith efforts to restore benefits by certifying checks to those subclass members found eligible to the Department of the Treasury within 60 days of the date SSA determines that the individual is eligible for benefits. Defendants shall find that a subclass member is no longer disabled (or was no longer disabled for the purpose of finding a “closed” period of disability) and shall terminate benefits (or render a closed period decision) only upon finding that the subclass member is (or was) no longer entitled to receive benefits pursuant to 42 U.S.C. §§ 423(f) and 1382c(a), provided that such subclass member shall retain all rights, if any, to continued receipt of benefits during an administrative appeal, pursuant to 42 U.S.C. §§ 423(g) and 1383(a)(7).

    6. On a quarterly basis, beginning 90 days after the notices in paragraph 11 are sent, defendants will provide to plaintiffs' counsel reports, which will include the following:

      (a) The number of individuals who have requested subclass membership.

      (b) The number of individuals who have been screened into the subclass.

      (c) The number of individuals who have been screened out of the subclass.

      (d) The number of individuals whose claims were favorable readjudicated.

      (e) The number of individuals whose claims were unfavorably readjudicated.

    7. Defendants shall provide to plaintiffs' counsel information about subclass members that is reasonably available to the defendants as plaintiffs' counsel may reasonably request including, but not limited to, the following: (a) copies of all subclass members' readjudications at every level, to be sent on a flow basis contemporaneous with the issuance of the actual readjudication(s); (b) a computer tape including identifying data for all cases coded “170,” (c) the systems specifications used to identify potential subclass members, and (d) the number of individuals whose notices were returned as undeliverable after the first mailing and after the second mailing and the number of individuals who were sent a third mailing and the number whose responded to the third mailing.

  5. The Named Plaintiffs

    26. The following named plaintiffs, who may or may not be subclass members, shall be entitled to the same relief provided to subclass members, except that these named plaintiffs shall have their case readjudications expedited:

    Maria Gonzales Anibal Villaneuva
    Edwarda Rivera Herminia Gonzalez
    Jorge Perez Walthon White
    Hector Muniz  

    This Court shall retain jurisdiction over the claims of Herminia Gonzalez and Anibal Villaneuva.

    27. The following named plaintiffs shall not be entitled to any relief pursuant to this Order and Judgment because defendants have represented that they have already received fully favorable decisions on their claims for disability benefits. In the event that these plaintiffs are determined to have received less than fully favorable decisions, defendants shall provide the same relief to these plaintiffs as is provided by this Order and Judgment to the subclass members:

    Cathryn Gibbons Gladys Dominguez
    Luis Diaz Haydee Guzman
      Rafael Rivera

    28. Nothing in this Order and Judgment shall be construed to preclude the named plaintiffs from obtaining on alternative grounds relief greater than that provided herein.

    29. Defendants shall provide all named subclass members, except those who have already obtained all relief from a federal district court or court of appeals, the rights provided by this Order and Judgment.

  6. Miscellaneous Provisions

    30. Except in cases where a subclass member has availed himself of relief under this Order and Judgment, nothing in this Order and Judgment shall be construed to require the remand of an administrative appeal or a request for judicial review. Nothing in this Order and Judgment shall be construed to preclude members of the class and subclass from obtaining on alternative grounds relief greater than is provided herein.

    31. The subclass includes every person who otherwise meets the subclass requirements and who lived in New York State at the time of the denial or termination which forms the basis of the individual's subclass membership.

    32. For purposes of this Order and Judgment, steps 2 through 5 of the sequential evaluation found in 20 C.F.R. §§ 404.1520 and 416.920 (1988) will be deemed to include the parallel steps for Continuing Disability Reviews found in 20 C.F.R. §§ 404.1594 and 416.994 (1988).

    33. All subclass members' case readjudications shall be made in accordance with current law.

    34. This Court shall retain jurisdiction over this action solely for the implementation of the specific provisions of this Order and Judgment and to ensure that the named plaintiffs and the individual subclass members are properly recognized for purposes of obtaining relief pursuant to this Order and Judgment and for the purpose of adjudicating plaintiffs' claims for attorneys fees, if any, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Any claim for attorney's fees and costs under the EAJA must be filed with thirty (30) days after this Order and Judgment becomes final under 28 U.S.C. § 2412(d)(2)(G), and nothing herein shall be construed as waiving or extending that statutory deadline. The Court shall not retain jurisdiction to provide judicial review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of final administrative decisions that result from the readjudication of individual claims following remand. The provisions of this paragraph are without prejudice to the subclass members' rights to seek timely review of the final decisions of the Secretary on remand in their respective judicial districts in separate actions pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

    35. Subclass members who are members of any other certified class in a class action shall be entitled to all rights provided in this Order and Judgment.

    36. Subclass members shall retain all rights to administrative and judicial review of the decisions made as a consequence of this Order and Judgment.

    37. All claims in the amended complaint for which relief has not been granted in this Order and Judgment are hereby dismissed without prejudice.

Dated: New York, New York

December 4, 1989

                                                                                                                /s/                                                                                                ROBERT L. CARTER                                                                                     UNITED STATES DISTRICT JUDGE

Attachment 2. Route Slip or Case FLag For Screening

State of New York CLASS ACTION CASE

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN : __________________________________

The above-identified claimant may be a State of New York class member. The attached folder location information indicates that a current claim folder is pending in your location. Accordingly, we are forwarding the attached alert [and prior claim folder(s)] for association, screening for class membership and any additional necessary action. Please refer to TI 5-436 for additional information and instructions.

Attachment 3. Screening Sheet

STATE OF NEW YORK

(THE EXERCISE TEST CASE) SCREENING SHEET

PLEASE BE AWARE THAT YOU MUST CONSIDER ALL CLAIMS DECIDED DURING THE PERIOD COVERED BY THE COURT ORDER (i.e., June 1, 1980, through February 2, 1994) WHEN MAKING THE CLASS MEMBERSHIP DETERMINATION.

1.

SSN ___ ___ ___ - ___ ___ - ___ ___ ___ ___

   
 

( ) TITLE II    ( ) TITLE XVI    ( ) CONCURRENT

   

2.

CLAIMANT'S NAME ___________________________________

   

3.

BIC ___ ___ or ID ___

   
 

DATE OF SCREENING ___ ___ - ___ ___ - ___ ___

   
 

MEMBER (J)  ____      NON-MEMBER (F)  ____       ___ ___

   
 

SCREEN-OUT CODE (04, 05, 06, 07, 08, 11, 12 or 13 — enter as appropriate on lines above)

I. CLASS MEMBERSHIP DETERMINATION
     
4. Did the claimant file an application for disability benefits under Title II or Title XVI of the Social Security Act? (NOTE: Regardless of the absence of any documentation on the computer, DO NOT screen the claimant out if they have provided evidence of a denial or cessation decision issued between June 1, 1980, and February 2, 1994.)
     
    ____  04
  If yes: Go to 5.
  If no : Stop here. Check block 04 and follow II below.
     
5. Did the claimant live in New York State at the time of any final denial or cessation decision of the Secretary made between 6/1/80 and 2/2/94?
     
    ____  05
  If yes: Go to 6.
  If no : Stop here. Check block 05 and follow II below.
     
6. Did the claimant receive a subsequent fully favorable decision for the earliest alleged onset date for Title II or the earliest application date for Title XVI?
     
    ____  06
  If yes: Stop here. Check block 06 and follow II below.
  If no : Go to 7.
     
7. Was the claim(s) finally decided after 2/2/94?
     
    ____  07
  If yes: Stop here. Check block 07 and follow II below.
  If no : Go to 8.
     
8. Was the claim(s) decided by a judgment of a district court that became final and unappealable before December 4, 1989?
     
    ____  08
  If yes: Stop here. Check block 08 and follow II below.
  If no : Go to 9.
     
9. Is any case a “170” case?
  (Generally found by referring to Item 26 on the SSA 831 or Item 34 on the SSA 832/833.)
     
  If yes: Go to 12.
  If no : Go to 10.
     
10. Was any claim(s) finally denied or ceased at step 3 (Title II widow/widower or Title XVI disabled children), 4 or 5 of the sequential evaluation process (or the equivalent steps of the CDR process) by the New York DDS, by a hearing office servicing the State of New York or by the Appeals Council between 6/1/80 and 12/3/89, inclusive?
     
  If yes: Go to 12.
  If no : Go to 11.
     
11. Was any claim(s) finally denied or ceased at step 2, 3 (Title II widow/widower or Title XVI disabled children), 4 or 5 of the sequential evaluation process (or the equivalent steps of the CDR process) by the New York DDS, by a hearing office servicing the State of New York or by the Appeals Council between 12/4/89 and 2/2/94?
    ____  11
  If yes: Go to 12.
  If no : Stop here. Check block 11 and follow II below.
     
12. On any claim(s) did the claimant allege, or is there evidence in file of ischemic heart disease, hypertensive vascular disease, myocardiopathies, rheumatic or syphilitic heart disease?
    ____  12
  If yes: Go to 13.
  If no : Stop here. Check block 12 and follow II below.
     
13. On any claim(s) does the medical evidence in file include the results of an exercise test (e.g., treadmill, bicycle, arm ergometry)?
    ____  13
  If yes: Follow III below.
  If no : Stop here. Check block 13 and follow II below.
     
     
II. NON-MEMBERS OR MEMBERS WHO HAVE ALREADY RECEIVED RELIEF
     
  If you checked block 04, 05, 06, 07, 08, 11, 12 or 13 the claimant is not entitled to relief as a class member. Check “NON-MEMBER (F)” in item 3, and fill in the screen-out code (04, 05, 06, 07, 08, 11, 12 or 13). Proceed to IV.
     
     
III. CLASS MEMBERS
     
  If you have no blocks checked, the claimant is entitled to relief as a class member. Check “MEMBER (J)” in item 3. Proceed to IV.
     
     
IV. DATES
     
  On the lines below, please enter the date(s) of all final decisions considered in the screening process, and indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC). Also record the dates of any determinations after February 2, 1994 that you considered in the screening process, and indicate the administrative level at which the determination was made (i.e., DDS, ALJ, or AC).
  ________________________ _________________________
  ________________________ _________________________
  ________________________ _________________________
V. SCREENER IDENTIFICATION  
  (NOTE: BEFORE SIGNING, PLEASE COMPLETE ITEM 3.)
  _________________________________________________________
  Print name, phone number and component
  _________________________________________________________
  Signature  

Attachment 3A. Screening Sheet Instructions

STATE OF NEW YORK

SCREENING SHEET INSTRUCTIONS

  1. Consider all title II and title XVI claims (initials or cessations) finally decided during the period June 1, 1980 to February 2, 1994, inclusive.

  2. Review the State of New York alert, related queries (FACT, SSIRD, etc.) and claim file(s).

    Whenever a claim file has been destroyed or declared lost, determine if the case may be screened out solely on the basis of information shown or on the queries.

    EXAMPLE 1. The SSIRD shows that the title XVI claim(s) was denied for excess income and resources; the FACT shows that the title II claim(s) was denied because insured status was not met at any point, or that the alleged onset date occurred more than one year after insured status was last met (disallowance code 90): Check block 11.

    EXAMPLE 2. The SSIRD shows a title XVI claim that was denied initially but subsequently allowed at the reconsideration or ALJ level with no change in the date of eligibility: Check block 6. Any case which cannot be conclusively screened out on the basis of the queries must be sent the FO for reconsideration.

  3. Complete Questions 1 through 3 and Part I of the screening sheet as follows:

    Question 1. Enter the SSN under which the claim was filed and check title II, title XVI or concurrent.

    Question 2. Enter the claimant's name.

    Question 3.

    1. Enter BIC (title II) or ID (title XVI)

      • Concurrent title II and title XVI claims:

        • Enter the BIC or ID for the claim that was a medical-vocational denial. If both claims were medical-vocational denials, always enter the BIC.

      • Concurrent DIB and DWB or CDB claims:

        • Enter the BIC for the claim that was a medical-vocational denial. If both claims were medical-vocational denials, always enter the DIB claim BIC.

      • Multiple claims filed at different times:

        • When all claims are screened out, enter the BIC or ID of the earliest claim screened. When at least one claim has been screened in, enter the BIC or ID of the earliest claim that makes the responder a class member.

    2. Enter the date that the case was screened.

    3. Check the class membership determination block.

      • Check block J when one or more claims are screened in for DDS/OHA review.

      • Check block F and enter the screen out code of the earliest claim screened when none of the claims are screened in for DDS/OHA review.

    Question 4.

    1. Determine if the claimant filed an application for title II or title XVI disability insurance benefits.

    2. The absence of FACT or SSIRD information does not necessarily mean the claimant did not file an application. When both the FACT and SSIRD queries show no record, obtain a numident query to determine if the claimant has a cross-reference SSN. If the numident does not disclose a possible title II or title XVI claim number, send the claimant a SSN verification notice if the FO has not already done so.

    3. If the FO has previously verified the claim number and there is no evidence of a disability application, check block 4; check block F and fill in the screen out code in Question 3; sign the screening sheet.

    Question 5.

    1. Screen for residency as of the date of the final determination or decision, not the date of the application.

    2. If the date of the final decision was between June 1, 1980 and February 2, 1994, inclusive, go to Question 6.

    3. If the answer to Question 5 is no for all decisions, check block 5; check block F and fill in the screen out code in Question 3; sign the screening sheet.

    Question 6.

    1. Review the file(s) and queries (e.g., FACT, SSIRD) to determine if benefits were subsequently allowed or continued. If yes:

      • in title II cases, check the subsequent award/continuation for the first month of entitlement.

      • in title XVI cases, check the subsequent award/continuation for the first month of eligibility.

    2. Identify the earliest State of New York claim/termination. Determine the earliest month that benefits could have been paid based on the State of New York alleged onset and the State of New York application or termination date.

    3. Compare the earliest possible State of New York benefit date with the subsequent award or continuation dates. If the dates are the same and the allowance or continuation was fully favorable (not a closed period allowance), check block F and fill in the screen out code in Question 3; sign the screening sheet.

      • In title II cases, if full retroactive benefits were not paid, also check to see if the later award established an onset that would allow payment back to the first possible month under the State of New York claim. If the earliest possible onset was established, but full retroactive benefits were not paid:

        • Change the application date on the later SSA-831/832/833 to reflect the State of New York application date, enter "State of New York Court Case, retroactive benefits due based on earlier application," and sign and date the form. Then forward the case to the appropriate effectuating component.

    Question 7.

    1. Screen for the date of the final determination or decision, not the date of the application.

    2. If the date of the final decision was between June 1, 1980 and February 2, 1994, inclusive, go to Question 8.

    3. If the answer to Question 7 is yes for all applications, check block 7; check block F and fill in the screen out code in Question 3; sign the screening sheet.

    Question 8.

    1. Screen to determine if the judgment of the district court was actually appealed or if the district court issued a final, i.e., unappealed, decision on the State of New York application(s) on or before October 5, 1989.

      NOTE:

      The period within which an appeal of a district court decision may be filed is 60 days from the date of entry of judgment. Therefore, a district court decision entered on October 2, 1989 became final and unappealable on December 2, 1989, the 61st day after entry of judgment if no appeal was filed.

    2. If the answer to Question 8 is yes and no other claims qualify for State of New York DDS/OHA review, check block 8; check block F and fill in the screen out code in Question 3; sign the screening sheet.

    Question 9.

    1. Review Item 26 on the SSA-831 or Item 34 on the SSA-832/833 to determine if the case was listed under code “170.”

    2. If the answer to Question 9 is yes, skip Questions 10 and 11 and continue with Question 12.

    3. If the answer to Question 9 is no, Question 10 must be answered.

    Question 10.

    1. Review the file(s) and queries (e.g., FACT, SSIRD) to determine whether the claimant received a denial/cessation decision on any claim(s) between June 1, 1980 and February 2, 1994, inclusive, by the New York DDS, a hearing office servicing NY residents or the Appeals Council at steps 3, 4 or 5 of the sequential evaluation process. (Look for basis denial codes for title II of E1, E2, E3, E4, G1, G2, H1, H2, J1, J2, K1, K2, L1, L2, M5, M6; for title XVI, N31, N32, N34, N35, N37, N39, N40, N42, N43, N45, N46, N51 on the SSA-831.) In a CDR case, read the rationale to determine the reason for the cessation on the SSA-832/833. In a DHU or ALJ case, read the decision to determine the basis for the denial or cessation.

    2. If the answer to Question 10 is no, you must answer Question 11.

    3. If the answer to Question 10 is yes, skip Question 11 and continue with Question 12.

    Question 11.

    1. Review the file(s) and queries (e.g., FACT, SSIRD) to determine whether the claimant received a denial/cessation decision on any claim(s), between December 4, 1989, and February 2, 1994, inclusive, by the New York DDS, a hearing office servicing NY residents or the Appeals Council at steps 2, 3, 4 or 5 of the sequential evaluation process. (Look for basis denial codes for title II of E1, E2, E3, E4, F1, F2, G1, G2, H1, H2, J1, J2, K1, K2, L1, L2, M5, M6; for title XVI, N30, N31, N32, N34, N35, N37, N39, N40, N41, N42, N43, N44, N45, N46, N51 on the SSA-831.) In a CDR case, read the rationale on the SSA-832/833 to determine the reason for the cessation. In a DHU or ALJ case, read the decision to determine the basis for the denial or cessation.

    2. If the answer to Question 11 is yes, you must answer Question 12.

    3. If the answer to Question 11 is no, check block 11; check block F and fill in the screen out code in Question 3; sign the screening sheet.

    Question 12.

    1. Review the file(s) for evidence of ischemic heart disease, hypertensive vascular disease, myocardiopathies, rheumatic or syphilitic heart disease. There are many pieces of evidence in a file that can provide allegations/evidence of cardiovascular disease. The following are some common sources but are not intended to be all inclusive:

      • Items 16A and 16B of any prior SSA-831 for the primary and secondary diagnosis, body system and code number.

      • Items 21 and 32 of any prior SSA-832/833 for the primary and secondary diagnosis, body system and code number.

      • Any prior SSA-3820 (Medical History Disability Report for Widows, Widowers, Surviving Divorced Spouses).

      • SSA-3441 Reconsideration Disability Report (it updates information previously obtained or identifies additional impairments).

      • SSA-3368 (Disability Report) Item D lists disabilities alleged.

      • The disability application may provide an allegation of a cardiovascular impairment.

      • Reports of the results of various tests such as TET, echocardiogram, cardiac catheterization, Doppler exercise test, radionuolide studies, resting electrocardiogram.

      • Reports from sources such as treating physician, consultative examination, hospital emergency room, or inpatient hospitalization.

      • Reports of contact prepared by the DDS based on conversations with the claimant or a treating/consulting physician.

      • Any decision issued by an ALJ or the Appeal Council.

        NOTE:

        If an exercise test (see Question 13) was done in conjunction with a cardiovascular diagnosis, such as hypertension, congenital heart disease, etc., not mentioned above, answer Question 12 “yes.” (If there is any doubt about the cardiovascular nature of a diagnosis or alleged impairment, consult a physician. Any remaining doubt about the cardiovascular nature of a diagnosis or alleged impairment should be resolved in the claimant's favor with a “yes” response.)

    2. If the answer to Question 12 is yes, you must answer Question 13.

    3. If the answer to Question 12 is no, check block F and fill in the screen out code in Question 3; sign the screening sheet.

    Question 13.

    1. Review the file(s) for a report on the results of an exercise test (e.g., treadmill (TET), bicycle, arm ergometry, etc.) and/or the tracings.

    2. If the answer to Question 13 is yes, the claimant is entitled to relief as a class member. Follow the instructions at Part III on the screening sheet.

    3. If the answer to Question 13 is no, check block 13; check block F and enter the screen out code in Question 3.

  4. Complete Part IV of the screening sheet by entering

    the dates and administrative review level (initial, recon, ALJ or Appeals Council) of all final determinations/decisions issued during the period June 1, 1980 to February 2, 1994, inclusive, that were considered during the screening process, as well as the dates and administrative review level of all final determinations/decisions issued after February 2, 1994.

  5. Complete Part V, “Screener Identification.”

    Place a copy of the completed screening sheet in the claim folder (on the top right side of the file) and forward the original to:

                    (See TI 5-4-36 Part V.D.2.)

Attachment 4. Notice of Non-Class Membership

STATE OF NEW YORK V. SULLIVAN  (The Exercise Test Case)

NON-CLASS MEMBER NOTICE

    Date:
    Claim Number:
     
     
  THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY/SSI BENEFITS.
  PLEASE READ IT CAREFULLY!
     
  1. WE HAVE DETERMINED THAT YOU ARE NOT ENTITLED TO RECEIVE A NEW DECISION IN THE STATE OF NEW YORK V. SULLIVAN (THE EXERCISE TEST CASE).

    You asked us to review your case under the terms of the exercise test case, or under another of the New York court cases (i.e., Stieberger, Dixon, and/or Hill), or we identified you as a potential State of New York class member through some other means. We have looked at your case and decided that you are not entitled to relief as a State of New York class member. The reason you are not entitled to relief is checked below. (If we are also looking at your claim in connection with other New York court cases, Stieberger, Dixon, and/or Hill, you will be getting separate notice regarding class membership in those cases).

  2. WHY YOU WILL NOT RECEIVE A NEW DECISION

    YOU ARE NOT ENTITLED TO RELIEF AS A STATE OF NEW YORK CLASS MEMBER BECAUSE:

    1.     [  ]  You were not issued a decision by the New York Disability Determination Service (DDS) or the Office of Hearings and Appeals, for New York state, denying or ceasing disability benefits between June 1, 1980, and February 2, 1994.

    2.     [  ]  You did not live in the state of New York at the time your claim for disability benefits was finally denied or ceased.

    3.     [  ]  Your claim did not involve in any way the problems of heart disease or a heart condition.

    4.     [  ]  There were no exercise test results in your file.

    5.     [  ]  Your benefits were denied or ceased for some reason other than your medical condition. That reason was       _________________________________________________

            _________________________________________________.

    6.     [  ]   You have received a subsequent fully favorable decision awarding you either title II benefits based on the earliest date that you said you were disabled, or title XVI disability benefits based on the earliest date on which you applied. We will be in touch with you if you are owed any additional retroactive benefits.

    7.     [  ]  Other:___________________________________________.

          We looked at the decisions(s) dated:

            ________________________________________________.

  3. WE ARE NOT DECIDING WHETHER YOU ARE DISABLED

    It is important for you to know that we are not deciding whether you are or were disabled. We are deciding only that we will not make a new decision, based on the exercise test case, on your past claim(s) for disability benefits.

  4. WHAT YOU MAY DO IF YOU DISAGREE WITH THIS DETERMINATION

    1. You can write Legal Services for the Elderly, one of the offices that represents the plaintiff class in this action. Their address is:

      Legal Services for the Elderly
      130 W. 42nd St., 17th Fl.
      New York, NY 10036
      ATTN: The Exercise Test Case

      If it is difficult for you to write, you may call Legal Services For The Elderly at: (212) 391-0120.

    2. If you prefer, you may send your written disagreement directly to:

      The Office of the General Counsel
      Department of Health and Human Services
      Rm. 639 Altmeyer Bldg.
      6401 Security Blvd.
      Baltimore, MD 21235
      ATTN: The Exercise Test Case
    3. If you write or call to disagree with this determination, please do so as soon as possible. If you tell us about your disagreement within 60 days of the date of this notice, we will be able to review our records concerning your case much more quickly. If you have specific information regarding why you believe this determination is wrong, include that information in your written disagreement. Also, be sure to include your Social Security claim number, or a copy of this notice.

  5. IF YOU HAVE A LEGAL REPRESENTATIVE OR WOULD LIKE TO OBTAIN ONE

    If you have a legal representative, you should show this notice to that person. If you would like to obtain a legal representative, you may call:

    1. Legal Services, which will refer you for free assistance if you are financially eligible.

      (a)    In the New York city area call:

              Legal Services for New York city at (212) 431-7200

              OR The Legal Aid Society at (718) 722-3100.

      (b)    In the rest of New York State call:

              Greater Upstate Law Project, at 1-800-724-0490.

    2. The National Organization of Social Security Claimant's Representatives will refer you to an attorney who will charge a fee for representation; call 1-800-431-2804.

  6. YOU ALSO HAVE THE RIGHT TO FILE A NEW APPLICATION FOR BENEFITS. FILING A NEW APPLICATION IS NOT THE SAME AS CHALLENGING OUR CLASS MEMBERSHIP DECISION AND OBTAINING A NEW DECISION ON A PAST APPLICATION.

  7. IF YOU HAVE OTHER QUESTIONS

    You may also contact the Social Security Administration at 1-800-772-1213. If you visit a Social Security office, please bring this letter with you. It will help us answer your questions.

    Si usted habla espanol y no entiende esta carta, favor de llevarla a la oficina de Seguro Social arriba mencionada para que se la expliquen.

Attachment 5. Route Slip or Case Flag For Routing Non-Class Member Claim Folders to the Manhattan DDS

STATE OF NEW YORK CLASS ACTION
NONCLASS MEMBER
CASE

65-DAY HOLD NECESSARY

Claimant's Name __________________________________

SSN                        __________________________________





The above-identified claimant has been determined to be a nonclass member. Accordingly, we are retaining the attached claim folder(s) for 65 days pending possible appeal by the claimant of the nonclass member determination. We are maintaining the attached claim folder(s) at (indicate location):



Attachment 6. Notice of Class Membership

STATE OF NEW YORK CLASS MEMBER NOTICE

  Date:
  Claim Number:
   
  1. We are writing to let you know that we have decided you are entitled to a new decision because of the State of New York v. Sullivan case (the exercise test case).

  2. We will contact you when we start reviewing your claim and ask you if you have additional evidence. You will be told where to send any additional evidence at that time.

  3. If you have a legal representative, you should show this notice to that person. If you would like to obtain a legal representative, you may call:

    1. Legal Services, which will refer you for free assistance if you are financially eligible.

      (a)In the New York City area call: Legal Services for New York City at (212) 431-7200 or The Legal Aid Society at (212) 577-3300.

      (b)In the rest of New York State call: Greater Upstate Law Project, at 1-800-724-0490.

    2. The National Organization of Social Security Claimant's Representatives will refer you to an attorney who will charge a fee for representation, call 1-800-431-2804.

  4. If you have other questions, you may also contact the Social Security Administration at 1-800-772-1213. If you visit a Social Security office, please bring this letter with you. It will help us answer your questions.

    Si usted habla espan~ol y no entiende esta carta, favor de lleverla a la officina de Seguro Social arriba mencionada para que se la expliquen.

    [NOTE:

    See the “NOTE” instruction following Part V.E.2.; if the class member case is an active, current claim (as opposed to an “inactive” class member claim that has been “revived”), this notice of class membership needs to be revised to reflect that the period at issue will be through the current date (and not limited to some previously adjudicated period), unless cessation or “date last insured” issues limit consideration.]

Attachment 7. Route Slip or Case Flag for DDS Readjudication

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION NECESSARY

Claimant's Name: __________________________________
   
SSN : __________________________________
   
The above-identified claimant is a State of New York class member. The attached State of New York prior claim folder was forwarded to this hearing office for possible consolidation with a current claim.
________ The claimant has objected to the proposed consolidation.
   
  or
   
________ The ALJ has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.
   
Accordingly, we are forwarding the attached alert and prior claim folder(s) to your location for any necessary State of New York readjudication action.
   
  [Enter the Servicing DDS address]

Attachment 8. - Case Flag (for use by OAO after screening)

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION NECESSARY

Claimant's Name: __________________________________
   
SSN : __________________________________
   
The above-identified claimant is a State of New York class member. The prior State of New York class member claim(s) associated with the current claim must be addressed. However, Appeals Council action on the current claim must be completed first. The nature of the Appeals Council action on the current claim will determine the type of action necessary on the prior claim(s). See TI 5-4-36, Part VI.C.3.a., for further information and instructions.

Attachment 9. - Route Slip or Case Flag (for DDS or HO readjudication)

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION   NECESSARY

Claimant's Name: __________________________________
   
SSN : __________________________________
   
The above-identified claimant is a State of New York class member. The attached State of New York prior claim folder was forwarded to the Appeals Council because a current claim was pending before the Appeals Council. The Appeals Council has now completed its action on the current claim. After expiration of the retention period, forward the attached claim folders to:
   

[Servicing DDS Office's Name and Address if DDS jurisdiction]

   

or

   

[Servicing HO's Name and Address if OHA jurisdiction]

for State of New York readjudication. Please refer to TI 5-4-36 for additional information and instructions.

Attachment 10. Route Slip or Case Flag (DDS or HO readjudication -- Court Case Remains Pending)

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION NECESSARY

Claimant's Name: __________________________________
   
SSN : __________________________________
   
The above-identified claimant is a State of New York class member. Readjudication of the claimant's prior (inactive) class member claim(s) is necessary.
   

NOTE:

The claimant has a current claim pending in court. However, the claimant has opted not to have his court case remanded to the Secretary for consolidation with the prior claim(s). The claimant's option decision with respect to the court case does not affect his or her right as a State of New York class member to readjudication relief with respect to the attached prior claim(s).

Please refer to TI 5-4-36 for additional information and instructions.

Attachment 11. Route Slip or Case Flag (for HO Readjudication)

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION   NECESSARY

Claimant's Name: __________________________________
   
SSN : __________________________________
   
The above-identified claimant is a State of New York class member. Court-ordered readjudication is OHA's jurisdiction in this case. Accordingly, we are forwarding the attached prior (inactive) claim folder(s) to your location for State of New York readjudication action. See TI 5-4-36 for further information and instructions.
   

[Enter servicing HO address]

Attachment 12. SAMPLE NOTICE LANGUAGE: CLAIMANT'S RIGHT TO OBJECT TO CONSOLIDATION OF A STATE OF NEW YORK CLAIM AT THE HEARING LEVEL

You have been identified as a class member in the case of State of New York v. Sullivan. Because common issues exist, I will be consolidating your prior case with the case concerning your application filed on   (Insert Date)  . Thus, I will consider whether you have been under a disability from ___________ to ___________.

You have the right to object to the consolidation of your case. If you wish to do so, please contact my office at   (Telephone Number)   as soon as possible.

Name
Administrative Law Judge

Attachment 13. Office of Disability Guidelines for DDS Evaluation of State of New York Claims

DETERMINING DISABILITY FOR CARDIOVASCULAR IMPAIRMENTS

  1. Policy

    This is a new POMS to implement the State of New York decision in New York. In determining disability, all evidence is considered at each step of the sequential evaluation process (20 CFR §§ 404.1520 and 416.920). Adjudicators may not determine that a claim is denied (or ceased) based exclusively on the results of an exercise test (ET). Adjudicators must also give appropriate weight to treating source opinion, as well as other signs, symptoms, and laboratory findings, in determining whether any cardiac impairment is disabling.

    1. Determinations at Step 2

      Do not deny at step 2 of the sequential evaluation process exclusively on the results of an ET, even where the ET suggests the capacity for heavy work. All medical evidence must be considered, including all signs, symptoms, laboratory findings, and treating source opinion evidence. The combined effects of multiple impairments must also be considered. Additionally, do not deny at step 2 when the claimant has any of the following cardiac impairments:

      1. myocardial infarction;

      2. status post coronary artery bypass grafting;

      3. status post coronary angioplasty;

      4. heart transplant;

      5. heart valve replacement;

      6. valvuloplasty;

      7. organic heart disease with documented heart failure of less than listed severity (see Listing 4.02)

    2. Determinations at Step 3 (Meets or Equals the Listing) of Sequential Evaluation Process

      1. In evaluating heart disease at step 3, the criteria in Listings 4.02 (congestive heart failure), 4.03 (hypertensive vascular disease), 4.04 (ischemic heart disease), 4.05 (recurrent arrhythmias), 4.09 (myocardiopathies, rheumatic or syphilitic), and 4.11 (aneurysm of the aorta or major branches) apply.

      2. Consider all medical evidence to determine if findings meet or equal a listing. If a listing is not met, an equals assessment must be made.

      3. You must not presume that ET results, or any other test results, are entitled to primary or extra weight in determining disability in the “equals” analysis. You may find an impairment of cardiac origin equal to Listing 4.04, even where the file contains “documentation of an acceptable treadmill exercise test” (TET), as defined in 4.00G of the Listings, that does not meet the criteria in Listing 4.04A. Depending upon the actual case record in a given case, and the reliability, comprehensiveness and source of the evidence, it may sometimes be appropriate to give more weight to certain findings as opposed to other findings. For equals determinations, all evidence must be considered.

      4. The following list provides a number of examples of findings that can be substituted for a missing finding(s) in equals determinations:

        • chest pain, discomfort, or tightness not precisely as described in 4.00E, but which is likely to be of cardiac origin (e.g., chest discomfort or tightness occurring with exposure to environmental stressors, such as extremes of temperature, humidity, or fumes, or occurring with exposure to psychological stress, or occurring during performance of an ET);

        • other symptoms (e.g., fatigue, dyspnea) when considered to be of cardiac origin;

        • results of ETs other than TET (e.g., bicycle or arm ergometer);

        • results of arteriograms, echocardiograms, radionuclide ventriculography (e.g., MUGA), or other studies of record whose findings demonstrate a level of severity upon which a presumption of inability to work can be made.

      5. The listings are designed to screen in (i.e., allow) individuals who are so severely disabled that they cannot do any gainful activity. The following list provides a number of examples that can be used to screen in (i.e., allow) as equal to the ischemic heart disease or congestive heart failure listings individuals with listing-level impairments (i.e., individuals who are symptomatic on ordinary physical activity).

        • Cyanosis at rest documented by PO2 of 65 Torr or less at sea level.

        • Pulmonary hypertension secondary to heart disease with a mean pulmonary arterial pressure elevated to 70 percent or more of the mean systemic arterial pressure.

        • Cyanosis at a workload equivalent to 5 METs or less with PO2 of 65 Torr or less at sea level.

        • Failure to increase systolic pressure by 10 mm Hg compared to resting pressure, or decrease in systolic pressure below usual clinical resting level at a workload equivalent to 5 METs or less.

        • Positive thallium 201 perfusion study indicative of ischemia at an exercise level equivalent to 5 METs or less.

        • Markedly symptomatic exercise intolerance at a workload equivalent to 5 METs or less with signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental confusion.

        • Symptoms of ischemia or heart failure, and findings on arteriograms, echocardiograms, MUGA, or other studies of record demonstrating a threshold level of coronary stenosis or ventricular dysfunction indicative of listing-level impairment (even where there is a TET in file that does not meet the criteria in Listing 4.04A).

    3. Determinations at Steps 4 and 5 of the Sequential Evaluation Process

      All evidence of record is considered in determining residual functional capacity (RFC).

    Note:

    The TET provides an estimate of aerobic capacity for walking on a grade in an environmentally controlled laboratory. Therefore, TET results do not correlate with the ability to perform several other types of exertional activities and do not provide an estimate of the ability to perform throughout a workday activities required for gainful work in all possible work environments. A TET (or other ECG modality) is not to be relied on as the sole basis for rejecting a claim. You must consider other signs, symptoms, laboratory findings, treating source opinions, environmental restrictions, susceptibility to psychological stress, or other evidence that may establish the claimant's disability.

  2. Procedure

    Consider all the medical evidence (20 CFR §§ 404.1508 and 416.908) including, but not limited to:

    1. Medical Evidence

      1. Clinical history of impairment:

        • symptoms, including frequency and character of pain, dyspnea, fatigue, palpitations, syncope;

        • clinical course since onset of illness;

        • diagnosis;

        • treatment and results of treatment;

        • impact of the impairment on activities of daily living (e.g., self-care, household, occupation, recreational, and social);

        • ability to perform work-related activity.

      2. Physical examination findings (signs).

      3. Results of laboratory tests available in evidence of record:

        • resting electrocardiogram (ECG);

        • chest x-ray;

        • TET or other ETs (e.g., bicycle or arm ergometer), including the development of chest pain, fatigue, blood pressure changes, arrhythmias, and other signs of ischemia that occur during the test. Consider all signs, symptoms, and laboratory findings demonstrated during exercise testing, irrespective of whether the test is completed;

        • arteriogram;

        • radionuclide studies (MUGA, thallium);

        • echocardiogram;

        • ambulatory ECG monitoring.

      4. Treating physicians' opinions about a person's condition:

        • clinical findings and diagnostic impression;

        • what person can still do despite impairment;

        • prognosis for improvement;

        • presence of other relevant factors.

    2. Other Relevant Factors

      Consider:

      1. Capacity for pushing, pulling, or lifting above the shoulders.

      2. Effect of work-related environmental stressors (e.g., extremes of temperature, humidity, fumes, noise, hazardous machinery).

      3. Psychological stress.

      4. Any adverse effects of prescribed medication, activity, or therapy.

    3. Determination Rationale

      1. Where disability is found to exist or to continue, i.e., where a fully favorable decision is warranted, no decision rationale is needed.

      2. Where disability is denied or ceased, state clearly the reasons for the determination including, but not limited to:

        • what specific evidence was considered;

        • what weight was given to findings (e.g., exercise test results) which were considered;

        • what weight was given to observations and opinions from the treating sources;

        • which cardiovascular listings were evaluated and were found not met or equaled;

        • what and how other relevant factors were considered, including what weight was given to the claimant's subjective complaints (e.g., pain, fatigue), or other complaints of functional restrictions.

      3. Where the determination is partly unfavorable, explain the basis for establishing a period of disability different than that alleged by the claimant.

EVALUATING THE RESULTS OF TESTS

  1. Policy

    Consider results of a test in context with all symptoms, signs, and other laboratory findings (20 CFR §§ 404.1508 and 416.908) and any treating or consulting source opinion.

    1. Coronary Arteriogram

      1. Generally, the arteriogram is superior to the ET for establishing the diagnosis of IHD and extent of coronary artery obstruction, while the ET is superior to the arteriogram for estimating functional loss. However, neither the results of an arteriogram, nor the results of an ET necessarily correlates accurately with the true degree of a claimant's functional loss. For this reason, all evidence must be considered.

      2. Useful with clinical assessment to determine the feasibility of and need for revascularization procedures.

      3. Defines structural or anatomical abnormalities.

    2. Myocardial Perfusion Scan (Thallium Stress Test)

      1. Images regional myocardial blood flow.

      2. May provide data useful for confirming ischemia.

      3. May be useful for assessing severity (e.g., a positive stress thallium study at a low workload indicates substantial restriction of exertional capacity).

    3. Ventriculography (Radionuclide MUGA Scans and Echocardiogra-phy)

      1. Provides information on heart chamber size and valve anatomy.

      2. Provides data on ejection fraction (EF) and ventricular function.

      3. Detects ventricular wall motion abnormalities resulting from ischemia or necrosis of myocardium.

      4. Detects abnormalities such as cardiomyopathies and intracardiac tumors or masses.

      5. May be useful for assessing severity (e.g., a fall in EF on exercise at a low workload indicates substantial restrictions of exertional capacity).

    4. Ambulatory Electrocardio-gram Monitoring (e.g., Holter Monitor)

      1. Provides a record to determine presence of dysrhythmias.

      2. May provide suggestive evidence for ischemia.

    5. Exercise Test

      1. Markedly limited peak aerobic capacity (i.e., 5 METs or less) is useful for the identification and allowance of individuals who are so functionally impaired they cannot be expected to work.

      2. A TET (or other exercise ECG modality) should be considered along with all other evidence and treating source opinion in determining the severity of the impairment(s). Adjudicators may not place exclusive weight on the results of an ET in denying (or ceasing) a claim.

      3. The ET is valuable for estimating maximal aerobic capacity in an individual with a cardiovascular impairment. However, for a number of reasons, there are limits to the use and reliability of the ET in evaluating an individual's ability to perform work-related activities. These include:

        • The ET has a substantial incidence of false negative results indicating no IHD in some individuals who actually have this disorder. Furthermore, the ET has a certain incidence of false positive results indicating ischemia in some individuals who actually do not have this disorder.

        • Individuals with regional dyskinesia may demonstrate an elevation of the ST segment that cancels the ischemic depression of the ST segment.

        • The TET provides an estimate of aerobic capacity for walking on a grade in an environmentally controlled laboratory. Therefore, TET results do not correlate with the ability to perform several other types of exertional activities and do not provide an estimate of ability to perform throughout a workday activities required for gainful work in all possible work environments. A TET (or other ECG modality) is not to be relied on as the sole basis for rejecting a claim. You must consider other signs, symptoms, laboratory findings, treating source opinions, environmental restrictions, susceptibility to psychological stress, or other evidence that may establish the claimant's disability.