Attachment 1. Orders dated March 3, 1987; April 21, 1988; and December 16, 1988, with Appendix A, of the U.S. District Court for the Western District of Washington

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

The court, having considered the briefs, depositions and other documents submitted by the parties, and having previously ruled on these matters in orders dated March 3, 1987 and April 21, 1988, grants in part plaintiffs' motion for further relief, and orders that the defendant take the following actions:

1. 1. 

   Redetermine, and readjudicate if and to the extent necessary, according to the principles set out in Appendix A, all claims of class members for disability benefits which contain uncontradicted medical opinion evidence relevant to a determination of disability, from a treating physician, and which were denied between December 1, 1983 and January 31, 1985.

2. 2. 

   Distribute Appendix A to all Disability Determination Service ('DDS') staff and Social Security Administration ('SSA') staff members responsible for adjudicating the claims of class members.

3. 3. 

   File a report with the court within 60 days of the date of this order and another report within 180 days of this order, setting forth the steps he has taken to ensure compliance with this order, and attaching representative copies of all materials he has issued to DDS and SSA staff pursuant to this order.

The clerk is directed to send copies of this order to all counsel of record.

Dated: December 16, 1988

Appendix A

COURT CASES

DDS and HHS Application of Morrison, Doe and Decker
Criteria Involving Treating Physician Opinion

The following sets for the United States District Court's ruling in the Morrison, Doe and Decker case. The ruling must be followed by DDS and HHS personnel in deciding claims involving opinion(s) of one or more treating physicians who have examined the claimant. It is effective upon receipt and supersedes any prior discussion of the Day v. Weinberger or Rhodes v. Schweiker cases.

In order for a disability within the meaning of 42 U.S.C. 423 § (d)(1)(A) to be shown, there must be a medically determinable mental or physical impairment which creates an inability to engage in any substantial gainful activity and which can be expected to result in death or which has lasted or can be expected to last for a continuous twelve-month or longer period of time. The impairment must result from the type of abnormalities that are listed in 42 U.S.C. § 423(d)(3), and those abnormalities must be demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

Opinions of medical experts are not binding upon DDS and HHS personnel on the question of whether the claimant is entitled to a disability benefits, but they must, if they reject the opinion of a treating physician, state clear and convincing reasons for that rejection. In addition, it is the general rule that a physician's opinion is to be given weight in the disability determination process only to the extent that it is supported by objective medically accepted clinical diagnostic techniques or laboratory test results achieved by applying medically acceptable laboratory diagnostic techniques. See 20 C.F.R. § 404.1528.

The Ninth Circuit had adopted, however, an exception to the general rule for the weight to be given to the opinions of treating physicians. In Day v. Weinberger, 522 F.2d 1155, 1156 (9th Cir. 1975) and Rhodes v. Schweiker, 660 F.2d 722, 723-24 (9th Cir. 1981), the Ninth Circuit set forth the limits of this exception and its underlying reasons. The Secretary's position has been that the disability determinations of treating physicians opinions can be given weight only to the extent that they are supported by objective medical findings. The Ninth Circuit has ruled, however, that the lack of laboratory test results that fully support the treating physician's opinion is not in itself a “clear and convincing reason” for rejecting that opinion.

In addition, the court determined that a lack of clinical findings that fully support the treating physician's opinion is not in itself a clear and convincing reason for rejecting the opinion.

There are two reasons for the treating physician exception adopted by the Ninth Circuit. First, the court said that disability can be established through “medically acceptable clinical diagnoses.” Under the regulations the results of examinations are “clinical findings.” Thus, there is no requirement that a disability determination be supported by laboratory findings. A “medically acceptable clinical diagnosis” is necessarily supported by the results of a physical or mental examination. This examination provides at least some clinical findings so that the determination is no completely “unsupported.”

The second reason for the Day/Rhodes standards is that a treating physician will necessarily be more familiar with the condition of the claimant than the DDS or HHS personnel. Two consequences flow from this reason:

First, DDS and HHS personnel are required to give clear and convincing reason for rejecting the opinion of a treating physician. These reasons must be expressly stated and must be based on the medical evidence in the record or other permissible factors. This requirement is particularly important in situations like those governed by the Day/Rhodes standard where the opinion is not contradicted by any medical evidence or other medical opinions. Examples of such clear and convincing evidence could include a report by another examining physician which contradicts such opinion based upon independent clinical findings; proof of work options available to the claimant; a complete lack of any medical finding in support of the opinion of the treating physician; or the absence of any indication that the treating physician had employed medically acceptable clinical diagnostic techniques in reaching his or her conclusion.

Second, the treating physician's familiarity with the condition of the claimant provides an independent reason, apart from the supporting clinical and laboratory findings, for giving weight to the treating physician's opinion with regard to the severity of the claimant's impairment. If the treating physician's opinion is uncontradicted and supported by at least some clinical or laboratory findings, DDS and HHS personnel must either follow that opinion or at least clear and convincing reasons for reaching a different conclusion.

The court's ruling that the lack of laboratory findings or clinical findings that fully support the treating physician's opinion is not in itself a clear and convincing reason for rejecting that opinion, is not intended to curtail full development of disability claims. Further, the ruling does not eliminate DDS or HHS discretion to judge the sufficiency of support for the medical opinion in each individual case in accordance with the terms of the court's order.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

The parties have been directed to submit proposed orders for distribution to Disability Determination Services (DDS) and Disability Quality Branch (DQB) personnel responsible for evaluating the applications of class members for disability benefits. In response, the parties have submitted slightly altered versions of that portion of the order issued March 3, 1987, in which the court discussed in detail the holdings and consequences of Day v. Weinberger, 522 F.2d 1154 (9th Cir. 1975) and Rhodes v. Schweiker, 660 F.2d 722 (9th Cir. 1981). See Order of March 3, 1987 (Day/Rhodes order). The parties disagree on the specific language to be included in the order and on whether the Secretary should be required to readjudicate the claims of certain class members. Defendant has also moved to strike one memorandum submitted by plaintiffs. The court's rulings on these issues follow.

I. Readjudication

The court finds that class member applications for disability benefits, containing medical opinion evidence from a treating physicians, that were denied between December 1, 1983, and January 31, 1985, must be readjudicated. The testimony of Nick Morical at the May 10, 1985, hearing and at his deposition taken after the Day/Rhodes order was issued makes clear that many such applications were denied because an incorrect interpretation of the Day/Rhodes standards was applied.

While these cases have been previously reviewed by the Secretary, the purpose of the preliminary injunctions entered earlier was to ensure the adjudication of class member applications for disability benefits under the correct standards. With respect to the class members identified above, this goal has not yet been achieved. Plaintiffs shall have access to such files as are reasonably necessary to monitor the outcome of the readjudications.

II. Form of Order

An order stating the proper standards for evaluating treating physician medical opinion evidence will be distributed to the appropriate DDS and DQB personnel prior to the readjudication of the applications discussed above. The parties are directed, however, to submit new proposed orders written in the formats generally used by DDS and DQB for internal memoranda. In drafting the new proposed orders, the parties are requested to keep the following guidelines:

1. 1. 

   The new versions should comply with the format generally used by DDS and DQB for instructions given to disability determination personnel regarding standards for making such determinations.

2. 2. 

   The last paragraph of defendant's first proposed order, the so-called 'documentation language', should be included.

3. 3. 

   Citations to and discussions of cases other than Day/Rhodes and Allen v. Weinberger, 552 F.2d 781, 785-86 (7th Cir. 1977) should not be included.

4. 4. 

   The order should reflect the court's previously stated understanding of the Day/Rhodes standards. They should be written clearly and with a minimum of legal jargon.

The parties are instructed to submit their new proposed order on May 6, 1988, and may submit memoranda not to exceed five pages in support of their proposed orders.

Defendant's motion to strike plaintiff's supplemental memorandum in support of their first proposed order is denied.

III. Status Conference

A status conference will be held in this case at 10:30 a.m. on June 3, 1989. Counsel should be ready to discuss the estimated time necessary for distribution of the order to DDS and DQS personnel, estimated time necessary to readjudicate the identified applications, and a schedule for completing this case.

The clerk is directed to send copies of this order to all counsel of record.

Dated: April, 20 1998.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

Having considered the motions of plaintiffs for further relief and/or contempt and for partial summary judgment, as well as the motion of defendant for partial summary judgment, together with the memoranda, affidavits and exhibits submitted by counsel, the Court now finds and rules as follows:

1. 1. 

   The dispute raised by the pending motions centers around one portion of one of the preliminary injunctions entered in this class action. In June, 1983, this Court enjoined the Secretary of Health and Human Services, defendant herein, from

   Failing to apply the standards enunciated in Day v. Weinberger, 522 F. 2d 1154 (9th Cir. 1975) and Rhodes v. Schweiker, 660 F.2d 722 (9th Cir. 1981) in evaluation of the claims and continued eligibility of class members. These cases held that the Secretary is not bound by an expert's opinion of disability, even if uncontradicted, but that rejection of such an opinion must be accompanied by clear and convincing reasons for doing so.

   The question presented by these motions involves the proper interpretation of the Day/Rhodes standard and a determination as to whether the Secretary has been correctly applying those standards in the disability determination process. Plaintiffs seek an order granting several types of further relief: (1) a finding that the Secretary is in contempt for failing to comply with this portion of the preliminary injunction, and (2) partial summary judgment that the Secretary's interpretation of the relevant standard is incorrect. The Secretary seeks partial summary judgment that his interpretation of the Day/Rhodes standards is correct. The Secretary opposes all of the plaintiffs' request for relief. The parties have filed voluminous briefs and exhibits in support of their positions.

2. 2. 

   At a hearing held on May 10, 1985, this Court instructed the parties to return if problems arose regarding the Disability Assessment Branch's (now called the Disability Quality Branch or DQB) interpretation of the Ninth Circuit cases cited in the preliminary injunction. Since that time, plaintiffs have deposed several Social Security Administration officials. They rely to a great extent upon those depositions to establish that the Secretary is not complying with the injunction, i.e., that he is applying an incorrect interpretation of the Day/Rhodes standards in the disability determination process. The Secretary argues that the deposition testimony is of little probative value because plaintiffs' counsel used misleading and confusing terminology in the questions. The Secretary further argues that his interpretation of Day and Rhodes is fully consistent with the requirements of the relevant statutes and with the Ninth Circuit precedent. Plaintiffs summarize their position in this fashion:

   Plaintiffs' position on the principles of resolution of [cases where the objective evidence does not conclusively support nor conclusively disprove the medical opinion] is that the plain language of Day and Rhodes should be followed, that is:

   1. 1. 

      Uncontroverted opinion evidence that a claimant is disabled cannot be rejected unless there are actual and convincing reasons for doing so; Day, 522 F.2d at 1156.

   2. 2. 

      Disability can be proved by medically acceptable clinical diagnoses as well as by objective laboratory findings; Day, 522 F.2d at 1156.

   3. 3. 

      When the Secretary agrees that a claimant suffers from an impairment, disability under the Social Security act can be established by medical opinion evidence standing alone; Rhodes, 660 F.2d at 723.

   Plaintiffs' Reply Memorandum in Support of Motion for Partial Summary Judgment (Plaintiffs' Third Memo) at 2 (emphasis in original) (footnote omitted).

1. 3. 

   The Secretary summarizes his position as follows:

   We submit that plaintiffs' argument is not consistent with the holdings of Day and Rhodes. Rather Day and Rhodes mean that the disability determination in a case must be in accordance with the treating physician's opinion of disability, or that there must be “clear and convincing” reasons for reaching a different conclusion. However, we believe Day, Rhodes and other Ninth Circuit decisions are clear that treating physicians opinions are not binding, that opinions and diagnoses should be evaluated by considering supporting medical findings, and that a disability determination cannot be based on an unsupported opinion “standing alone.” The Secretary's policies and instructional procedures require adjudicators to develop cases fully, including asking for medical findings to support opinions or diagnoses in relation to all evidence.

   Defendant's Memorandum in Support of Motion for Partial Summary Judgment and in Opposition to Plaintiffs' Motion for Further Relief and/or Contempt (Defendant's First Memo) at 5-6. The proper interpretation of the Day/Rhodes standards is a question of law, properly determined on a motion for partial summary judgment.

2. 4. 

   The relevant statues and regulations are a proper starting point in this inquiry. The term “disability” means:

   [I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

   42 U.S.C.§ 423 (d)(1)(A). The impairment, be it mental or physical, must result from:

   anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

   42 U.S.C.§ 423 (d)(3). In considering claims for disability benefits, the secretary reviews the 'medical findings' and other evidence that support statements by physicians that the claimant is disabled. 20 C.F. R. § 404.1527. 'Medical findings' include 'symptoms, signs, and laboratory findings.' 20 C.F.R.§404.1528. Symptoms are the claimant's own descriptions of the impairment. Id. §404.1528(a). Signs are abnormalities which can be observed apart from the statements of the claimant and can be shown by medically acceptable clinical diagnostic techniques. Id., § 404.1528(b); cf. 20 C.F. R. § 404.1513(b)(2) (clinical findings include results of physical or mental status examinations). Laboratory findings are anatomical, physiological or psychological phenomena which are demonstrable by the use of medically acceptable laboratory diagnostic techniques. 20 C.FR. §404.1528(C). These techniques include, but are not necessarily limited to, chemical tests, x-rays, electroencephalograms and electrocardiograms. Id. It is the general rule that physician opinions are not binding on the Secretary with regard to the ultimate determination of disability, 20 C.F.R. § 404.1527: Bilby v. Schweiker, 762 F.2d 716, 718 (9th Cir. 1985). It is also the general rule that the weight accorded to a doctor's opinion depends on the extent to which it is supported by medical findings. 20 C.F.R. § 404.1527; Coats v. Heckler, 733 F. 2d 1338, 1340 n.4 (9th cir. 1984).

3. 5. 

   In Day and Rhodes, the Ninth Circuit faced appeals by claimants who had been denied disability benefits under the standards stated above. See generally Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986) (claimant has burden of proving an impairment that prevents him from returning to his former occupation: burden then shifts to the Secretary to show that claimant can still perform other types of work, existing in the national economy, given his personal circumstances). In Day, five doctors had treated the claimant, since her injury, and none had been able to determine the cause of her pain through the use of laboratory test. Two of the treating doctors opined that she was disabled, and these opinions were not contradicted by other opinions or medical evidence of record. The hearing examiner denied Day's claim, relying, in part, on the fact that the cause of pain had not been identified through “objective diagnostic techniques.” Day 522 F.2d at 1156. The Ninth Circuit reversed this decision, and stated:

   Disability may be proved by medically-acceptable clinical diagnoses, as well as by objective laboratory findings.

   Id. (citation omitted). The Ninth Circuit, declining to make an initial determination regarding Day's condition, remanded the case for a new hearing where both parties could present additional evidence. Compare Bilby v. Schweiker, 762 F.2d 716, 720 (9th Cir. 1985) (where uncontroverted medical testimony established total disability, court remanded for entry of judgment ordering the payment of benefits). The Day court also held that the Secretary, while not bound to accept uncontradicted medical expert opinions, must expressly state clear and convincing reasons for not doing so. Day, 522 F.2d at 1156.

4. 6. 

   In Rhodes the existence of an impairment was conceded by the Secretary. The issue was over the severity of the impairment and whether it qualified the claimant for disability benefits. The court reiterated its holding in Day that, while not bound by uncontradicted medical expert opinion regarding disability, the Secretary must state clear and convincing reasons for reaching a different conclusion. Rhodes, 660 F.2d at 723. The only doctor to examine Rhodes since the onset of his alleged disability had consistently concluded that Rhodes was disabled. Id. Given the familiarity of the treating physician with the claimant's condition, the court ruled that his opinion “entitled to more than passing consideration.” Id. at 724 (relying on Allen v. Weinberger, 552 F 2d 781, 785-86 (7th cir. 1977)). The court ruled that the uncontradicted opinion of the examining the doctor was enough to meet the claimant's initial burden of proof. It then remanded the matter for hearing where the Secretary could attempt to show that the claimant could still engage some work in the national economy. Rhodes, 660 F.2d at 725.

5. 7. 

   Plaintiffs argue that, according to ninth Circuit precedent, the uncontradicted medical opinion of an examining physician may establish disability even if unaccompanied by laboratory findings (See, e.g., Day, 522 F.2d at 1156; Bilby 762 F.2d at 719) and that if the existence of an impairment is admitted, the uncontradicted opinion of an examining physician that the claimant is disabled may, standing alone, establish disability. See, e.g., Rhodes, 660 F.2d at 723; Coats, 733 F.2d at 1340-41. They then rely on the depositions of several Social Security Administration (SSA) officials to show that these standards are not being applied by the Secretary. Robert Doran, Director of the Disability Programs Branch for Region X, was shown a copy of the Day opinion during his deposition and asked whether he agreed with the holding that medical diagnoses might establish disability even in the absence of laboratory findings. He replied 'That was not my understanding. I thought that had to be more to it then just the diagnosis' Doran deposition at 41. He had earlier testified that 'its my understanding that you need some objective findings to go along with the diagnosis.'Id. at 39. Plaintiffs also rely on the following exchange between their counsel and Mary Buskirk, head of the Disability Quality Branch (DQB), in Seattle:

   Q. In order to avoid a confusion, let me ask you: If it is only a diagnosis, but it is a medically acceptable clinical diagnosis in the absence of objective laboratory findings, can disability be proven by such medically acceptable clinical diagnosis alone?

   A. No.

   Buskirk deposition at 37-38. Ms. Buskirk also testified that while the DQB would generally give more weight to a treating physician's opinion than to a one-time examining physician's opinion, the weight given to the treating physician's opinion would still depend upon the objective clinical and laboratory evidence of record that supported the opinion. See Buskirk deposition at 32-33. See also Deposition of Dr. Roy Brown, Seattle DQB's Chief Medical consultant, at 243-45 (diagnosis does not convey any impairment for disability benefits purposes with the exception of impending death in malignant disease cases); Deposition of Albert Harrison, Deputy Director of the SSA Division of Medical and Vocational Policy, at 114-17 (diagnosis can establish disability only in certain rare circumstances; disagreeing with the statement from Day, but concurring in the result in Bilby, since the opinion indicated facts that could establish disability).

6. 8. 

   Plaintiffs used a similar questioning technique with respect to the Rhodes opinion. The following exchange is representative of the questioning:

   Q. For my next question I'd like you to assume that the Secretary agrees that a claimant for disability suffers from physical impairment. Based on that assumption, do you believe that the opinion of the claimant's treating doctor that the person is disabled, standing alone, without objective clinical signs and findings, may establish total incapacity for substantial gainful activity within the meaning of the Social Security Act?

   A. Not an unsubstantiated opinion. The weight to be given a treating physician's opinion depends upon the extent to which it's substantiated by medical findings.

   Brown deposition at 67. See also Doran deposition at 34: Buskirk deposition at 39. Plaintiffs also contend that the SSA, in practice, gives no weight to the opinion of a treating physician:

   Q. In that case, would it be fair to say that you have never seen a case in which a decision was made based upon the opinion of the treating physician that would not have been made in any event in light of the objective evidence that you would base the decision on?

   A. That's correct.

   Buskirk deposition at 33-34. Compare Transcript of May 10, 1985, Hearing at 69-71 (Testimony of Nick Morical Washington State Disability Determination Service Area Manager) (DDS received writebacks from DQB that indicated that allowing benefits on the basis of uncontradicted medical opinion evidence with some support in the record's medical information was incorrect because of a lack of objective support).

7. 9. 

   Defendant argues that the deposition testimony relied upon by plaintiffs does not demonstrate noncompliance with relevant Ninth Circuit case law, that plaintiffs have quoted the testimony out of context, and that plaintiffs' counsel created confusion in the depositions by using improper terminology in the questions, thereby rendering the testimony unpersuasive. Defendant then goes on to argue that plaintiff's interpretation of the Day/Rhodes standards conflicts with the Ninth Circuit case law and the relevant statutes. Defendant cites regulations and cases that state that the opinion of medical experts is not binding on the Secretary with regard to the disability determination. See 20 C.F.R. § 404.1527. The Secretary also relies on the legislative history of the 1967 Amendments to the Social Security Act to support his position that the medical expert opinions are to be given weight only to the extent that they are supported by objective medical findings. See S. Rep. No. 744, 90th Cong., 1st Sess. 30, reprinted in 1967 U.S. Code Cong. & Ad. News 2834, 2882-83 (statements or conclusions of applicant or others not adequate to establish disability unless supported by clinical or laboratory findings or other medically acceptable evidence). The Secretary characterizes the Rhodes case thusly:

   The Court's point in Rhodes was not that the plaintiff had met the burden of proof on the ultimate issue of disability, but that the uncontradicted opinion of a treating source precluded a denial of disability entitlement without further development.

   Defendant's First Memo at 19. In addition, the Secretary argues that the Social Security Disability Reform Act, Pub. L. No. 98-460, §§3, 9, 98 Stat. 1794 (1984), reflects Congressional intention that objective evidence in the form of clinical and laboratory findings always be obtained before a finding of disability is entered. See also Defendant's Second Memo at 12-13 (discussing draft nationwide ruling which would make treating physician opinions determinative of medical issues 'when fully supported and uncontroverted; this ruling reflects current policy' (emphasis added).

8. 10. 

   The Court finds that neither of the parties position is entirely correct. In the following discussion, the Court will set forth its understanding of the Day/Rhodes standards. In order for a disability within the meaning of 42 U.S.C. §423 (d) (1) (A), to be shown, there must be a medically determinable mental or physical impairment which creates an inability to engage in any substantial gainful activity and which can be expected to result in death or which has lasted or can be expected to last for a continuous twelve month or longer period of time. The impairment must result from the type of abnormalities that are listed in 42 U.S.C. §423 (d) (3), and those abnormalities must be demonstrable by medically acceptable clinical and laboratory diagnostic techniques. Opinions of medical experts are not binding upon the Secretary on the question of whether the claimant is entitled to disability benefits, 20 C.F.R. § 404.1527, but the Secretary must, if he rejects the opinion of an examining physician, state clear and convincing reasons for that rejection. Day, 522 F.2d at 1156. In addition, it is the general rule that a physician's opinion is to be given weight in the disability determination process only to the extent that it is supported by objective medical findings. 20 C.F.R. § 404.1527. Objective medical findings may consist of clinical findings arrived at by applying medically accepted clinical diagnostic techniques or laboratory test results achieved by applying medically acceptable laboratory diagnostic techniques. See 20 C.F.R. § 404.1528.

9. 11. 

   The Ninth Circuit has adopted, however, an exception to the general rule for the weight to be given to the opinions of treating physicians. In Day v. Weinberger, 522 F.2d 1155, 1156 (9th Cir. 1975) and Rhodes v. Schweiker, 660 F.2d 722, 723-24 (9th Cir. 1981), the Ninth Circuit set forth the limits of this exception and its underlying rationale. The Secretary's primary argument, appearing repeatedly in the briefs is that the disability determinations of treating physician opinions can be given weight only to the extent that they are supported by objective medical findings. This position misses, however, the point of the treating physician exception adopted in Day and Rhodes. The holdings in those cases make clear that they lack of laboratory test results that fully support the treating physician's opinion is not a “clear and convincing reason” for rejecting that opinion. Day, 522 F2d at 1156-57: see also Bilby, 762 F.2d at 719: Montijo v. Secretary of HHS, 729 F.2d 599, 601-02 (9th Cir. 1984). In addition, the Rhodes court relied on Allen v. Weinberger, 522 F.2d 781, 785-86 (7th Cir. 1977). The Allen court reversed a denial of benefits where the ALJ rejected the examining doctor's opinion “because the statements were not supported by any clinical findings.” Rhodes, 660 F.2d at 724 (discussing Allen, 552 F.2d at 785-86). It appears, therefore, that a lack of clinical findings that fully support the treating physician's opinion is also not a clear and convincing reason for rejecting the opinion.

10. 12. 

    There appear to be two rationales underlying the treating physician exception adopted by the Ninth Circuit. First, the Day holding allows disability to be shown through “medically acceptable clinical diagnoses.” Each of the physicians in Day who stated that the claimant was disabled had examined her. Under the regulations the results of the examinations are “clinical findings.” Thus, the court's statement in Day should be taken to mean that there is no requirement that a disability determination be supported by laboratory findings. A “medically acceptable clinical diagnosis” is necessarily supported by the results of a physical or mental examination. This examination provides at least some clinical findings so that the determination is not completely “unsupported.”

11. 13. 

    The second rationale underlying the Day/Rhodes standards is that a treating physician will necessarily be more familiar with the condition of the claimant that the Administrative Law Judge or other factfinder. Two consequences flow from this rationale. First, the Secretary is required to give clear and convincing reasons for rejecting the opinion of a treating physician. These reasons must be expressly stated and must be based on the medical evidence in the record or other permissible factors. This requirement is particularly important in situations like those governed by the Day/Rhodes standard where the opinion is not contradicted by any medical evidence or other medical opinions. See Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986): Day, 522 F.2d at 1156 (ALJ could consider appearance of claimant as well as medical evidence); cf. Miller v. Heckler, 770 F.2d 845,849 (9th Cir. 1985) (treating physician's opinion can be disregarded if contradicted by another physician's report based on independent clinical findings): see also Lombardo v. Schweiker, 749 F.2d 565, 566-67 (9th Cir. 1984) (where treating physician's opinion was controverted by the opinions of a neurologist and a reviewing physician, ALJ properly disregarded treating physician's opinion and properly supported his decision with specific findings based on substantial evidence). Second, the treating physician's familiarity with the condition of the claimant provides an independent reason, apart from the supporting clinical and laboratory findings, for giving weight to the treating physician's opinion with regard to the severity of the claimant's impairment. This opinion is entitle to weight in the disability determination process even in the absence of clinical or laboratory findings which fully support it. Stated another way, if the treating physician's opinion is uncontradicted and supported by at least some clinical or laboratory findings, the Secretary must either follow that opinion or state clear and convincing reasons for reaching a different conclusion.

12. 14. 

    As noted above, the uncontradicted opinions of treating physicians regarding disability are not necessarily binding on the Secretary. In Rhodes the court found such an opinion adequate to establish the claimant's prima facie case of impairment which prevented him from returning to his former occupation. The case was then remanded for a new hearing at which the Secretary could attempt to show that the claimant was still able to perform other types of work existing in the national economy. Rhodes, 660 F.2d at 725.

13. 15. 

    If the Secretary is able to establish work options available to the claimant, the ALJ then has clear and convincing reasons for rejecting the treating physician's uncontradicted opinion. It also appears to the Court that a complete lack of any medical findings in support of the uncontradicted opinion of the treat physician would authorize the ALJ to reject the physician's opinion. Most challengeable, would be a statement by the treating physician that the person is disabled, but the statement is accompanied by no indication that the treating physician had employed medically acceptable clinical diagnostic techniques in order to reach that conclusion.

14. 16. 

    In light of the foregoing, it is clear that the Secretary's present policy regarding the uncontradicted opinions of treating physicians is not in compliance with the standards set forth in Day/Rhodes. The Court finds, therefore, that a further order should be directed by it to the DDS and DQB personnel which reflects the proper interpretation of the Day/Rhodes standards. The Court has set forth in this order its understanding of those standards. The plaintiffs are directed to prepare a proposed order which they feel to be appropriate in light of the Court's findings. This proposed order shall be filed within 20 days of the date of this order. Defendant's counsel shall file their objections, if any to the plaintiffs' proposed order within 15 days after receiving that order. Plaintiffs' counsel shall then have 10 days to respond to defendant's reaction. The Court shall then issue an order which it feels is appropriate.

15. 17. 

    The Court declines to make a finding at this time that the Secretary is in contempt.

    Accordingly, the motion of plaintiff for further relief and/or contempt is GRANTED IN PART AND DENIED IN PART. The motion of plaintiffs for partial summary judgment is DENIED. The motion of defendant for summary judgment is also DENIED.

    The Clerk of this Court is instructed to send uncertified copies of this order to all counsel of record.

    Dated this 3rd day of March, 1987.

Attachment 2. Stipulation of Settlement and Compromise Dated April 4, 1989

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Whereas the Court has ordered defendant to provide relief pursuant to plaintiff s' requests in this action in accordance with:

1. a. 

   An amended preliminary injunction (first injunction) dated June 16, 1963 as amended;

2. b. 

   The second preliminary injunction dated August 7, 1984, as amended; and

3. c. 

   An order for readjudication of certain first injunction cases dated December 16, 1988.

Whereas, the defendant has afforded class members relief under the first and second injunction, except for the relief ordered in the order of December 14, 1988.

Whereas, the parties wish to avoid further litigation in this matter.

Therefore, all parties to this civil action by their undersigned counsel, hereby atipulate to the settlement of plaintiffs' claims for relief in this litigation, in accordance with the following terms and conditions:

1. 1. 

   The defendant agrees to comply with the terms of the above described Court orders. However, in the event of a change in controlling precedent, governing statute or applicable valid regulation, defending reserves the right to seek a modification of the Court's order.

2. 2. 

   The parties agree that the only remaining relief to be afforded to class members consists of the following:

   1. a. 

      Defendant shall promptly readjudicate class member claims pursuant to the December 16, 1988 order.

   2. b. 

      Defendant shall readjudicate class member claims which were denied initially or on reconsideration by the Washington Disability Determination Service (DDS) between December 1, 1983, and November 7, 1988, without a subsequent hearing in the Office of Hearings and Appeals, and which involved the Griffis issue as set forth in paragraph B of the first injunction.

   3. c. 

      Upon learning of any class member whose claim has inadvertently not already been reviewed in accordance with the terms of the court's orders, defendant shall immediately send a notice to said class member with a copy to the undersigned attorney Kristin Houser and William Rutzick advising of the availability of review and requesting the class member to respond within ninety (90) days. Upon receipt of said response, defendant shall promptly readjudicate the claim in accordance with the terms of the relief ordered and notify the class member of the results.

   4. d. 

      In any event, defendant will have no obligation to furnish relief under this action to class members whose benefits were ceased or whose application for benefits was denied after October 31, 1991. This is without prejudice to such class members right to relief in a subsequent action.

   The enumeration of the measures set out in this paragraph is not intended to alter the Secretary's obligations as described in paragraph 1, and the provisions of this Stipulation, including paragraph 1, may be enforced by court order on application of either party.

3. 3. 

   The parties understand that individual class members retain all regulatory and statutory rights to full administrative and judicial review of their disability determinations under the Court's orders including redeterminations performed in connection with this settlement. Such administrative and judicial review is not a part of the relief afforded under this settlement.

4. 4. 

   Defendant shall allow plaintiffs' counsel to have reasonable access to the claims files of the class members until December 31, 1991, in order that they might verify compliance with the Court ordered relief with this action. Such inspection shall, however, be solely for the purpose of verifying compliance with the Court ordered relief and shall not be used for any other purpose. In the event that plaintiffs' counsel obtains evidence of non-compliance with the Court's orders after December 31, 1991, plaintiffs' counsel may at any time seek a Court order to inspect claims files of class members entitled to relief under this stipulation in order to verify compliance with Court ordered relief.

1. 6. 

   Defendant shall provide plaintiffs' counsel, on plaintiffs' counsel's request, copies of any instructional materials after they are issued by defendant or his representatives to implement this stipulation.

2. 7. 

   This stipulation shall not be construed, nor shall it be offered in any proceeding, as evidence of an admission by the defendant of any pattern or practice that violates or fails to comply with any law, rule, or regulation dealing with any matter within the scope of the allegations contained in the complaint or otherwise raised by the plaintiffs in this action. This stipulation shall not be construed as an admission by the defendant thrt its position in this litigation was not substantially justified. Nor shall this stipulation be construed as an admission of liability for attorneys' fees on the part of the defendant, its agents or employees. Plaintiffs may move for attorneys fees from defendant within 30 days of the date this stipulation is signed by the court.

3. 8. 

   Plaintiffs' counsel and defendant's counsel, by their signatures below, warrant that they are sole counsel to the plaintiff class or to the defendant whose interests where represented in this action and that they are authorized to stipulate to the settlement of issues in this action.

4. 9. 

   It is agreed that this stipulation shall be submitted to the District Court and shall be binding upon order of the Court.

So Ordered:
Dated: 4/4/89

/s/
HONORABLE WILLIAM DWYER
UNITED STATES DISTRICT JUDGE

Attachment 3. Screening Sheet

THE CASE MUST BE READJUDICATED IF QUESTION 9 OR QUESTION 11 IS ANSWERED “YES.” THIS IS TRUE EVEN IF THE CASE HAS ALREADY BEEN REVIEWED UNDER MORRISON, DOE AND DECKER CRITERIA.

Attachment 4. Case Flag for Screening

MORRISON Class Action Case

SCREENING NECESSARY

Claimant's name _____________________________

SSN _____________________________

After completion of court action, forward claims folder(s) for screening to:

(Destination code 1500.)

Attachment 5. Notice of Nonclass Membership

You asked us to review your case under the terms of the Morrison, Doe & Decker court decisions. You are not eligible to have your claim reviewed because your claim did not meet the requirements for review. The reason is checked below.

•     

  Your claim was not for the type of disability benefits covered by the court order.

•     

  You did not reside in the State of Washington at the time your claim was denied.

•     

  Your claim was denied in the State of Washington for some reason not related to your medical condition.

•     

  The denial of your claim did not take place during the period between December 1, 1983 and November 7, 1988.

•     

  Your claim involved neither drug addiction nor alcoholism as your only medical condition, and it did not involve a treating physician's opinion of the type that Social Security is supposed to review.

•     

  Your claim involved drug addiction and/or alcoholism, but you had a subsequent hearing before an Administrative Law Judge.

•     

  Other _________________________________________________________
             _______________________________________________________

We Are Not Deciding Whether You Are Disabled

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not eligible to have your claim reviewed under the terms of the Morrison, Doe & Decker court case.

If You Have a Representative

If a representative is handling your Social Security claim and he or she is identified in your record, we have sent a copy of this letter to him or her. However, you might want to tell him or her about this letter anyway.

If You Have Any Questions

Call or visit any Social Security office. If you do not have a representative, you may contact one of the Legal Aid offices in your area. If you visit an office, please bring this letter with you. It will help us answer your questions.

Attachment 6. Case Flag for Redetermination

MORRISON Class Action Case

REDETERMINATION NECESSARY

Claimant's name __________________________________

SSN __________________________________

This claimant is a Morrison class member. After expiration of the retention period, forward the claims folder(s) to the address below:

(Destination code 1500.)

Attachment 7. Sample Diswmissal Order

On ______________, the claimant filed a request for hearing on the issues raised by (his/her) application(s) dated ____________. The claimant has now been identified as a member of the Morrison class entitled to have the final administrative denial of (his/her) prior application(s) reviewed under the terms of the stipulation of settlement and compromise approved by the court on April 4, 1989. Accordingly, the undersigned hereby dismisses without prejudice the request for hearing filed on __________, on the application(s) dated ___________.

The claimant's (date of current application(s)) application(s) (is/are) being associated with (his/her) prior claim(s) and forwarded to the Washington State Disability Determination Service, which will conduct the Morrison review. If the Disability Determination Service issues a determination which is unfavorable, either in whole or in part, it will return the folders to this office for automatic reinstatement of the (date of hearing request) request for hearing.

Attachment 8. Sample Acknowledgment Notice — Reinstated Request for Hearing

The Disability Determination Service has returned your claim to this office for further action on your request for hearing dated _________. The Disability Determination Service did not take (fully) favorable action in its redetermination of your prior claim under the Morrison court order. Accordingly, I have reinstated your request for hearing and will notify you of the time and place of the hearing at least twenty (20) days before the date of the hearing. The reinstatement of your request for hearing dated _______ includes a request for hearing on the Morrison redetermination.

Submitting Additional Evidence

You have the right to submit new evidence regarding your condition as it was on or before __________, the date through which the Morrison redetermination ruled. If you have additional evidence you want the Administrative Law Judge to consider, send it to us now or call us within the next seven days to tell us when you will submit it. If you need help gathering evidence, you should immediately contact our office, your local Social Security Office, or your representative if you appoint one.

You May See the Evidence in Your File

If you wish to see the evidence in your file, you may do so on the date of the hearing. If you wish to review your file before the date of the hearing, telephone this office.

(Add the following language for unrepresented claimants:

You May Choose to Have a Person Represent You

You are not required to have a representative, but you have the right to have one. A representative can help you obtain evidence, prepare for the hearing, and present your case at the hearing. If you wish to have an attorney or other qualified person represent you, you should appoint the representative immediately so that he or she can start preparing your case.

If you want a representative but do not know how to obtain one, we have enclosed a list of groups that may be able to provide or help you obtain representation. Some private attorneys do not charge a fee unless you receive benefits. If you cannot afford to pay for representation, some organizations may be able to represent you without charging a fee. If your representative charges a fee, we must approve it.

The enclosed leaflet, 'Social Security and Your Right to Representation,' provides more information about representation. If you obtain a representative, you or your representative should call this office to give us his or her name, address, and telephone number. You will also need to complete a form that we provide for appointing a representative. Any local Social Security Office can give you this form.)

Attachment 9. Sample Acknowledgment Notice — Request for Hearing on Morrison Redetermination

We have received your request for hearing on the Morrison redetermination on your claim(s). This office will notify you of the time and place of the hearing at least twenty (20) days before the date of the hearing.

Submitting Additional Evidence

You have the right to submit new evidence regarding your condition as it was on or before __________, the date through which the Morrison redetermination ruled. If you have additional evidence you want the Administrative Law Judge to consider, send it to us now or call us within the next seven days to tell us when you will submit it. If you need help gathering evidence, you should immediately contact our office, your local Social Security Office, or your representative if you appoint one.

You May See the Evidence in Your File

If you wish to see the evidence in your file, you may do so on the date of the hearing. If you wish to review your file before the date of the hearing, telephone this office.

(Add the following language for unrepresented claimants:

You May Choose to Have A Person Represent You

You are not required to have a representative, but you have the right to have one. A representative can help you obtain evidence, prepare for the hearing, and present your case at the hearing. If you wish to have an attorney or other qualified person represent you, you should appoint the representative immediately so that he or she can start preparing your case.

If you want a representative but do not know how to obtain one, we have enclosed a list of groups that may be able to provide or help you obtain representation. Some private attorneys do not charge a fee unless you receive benefits. If you cannot afford to pay for representation, some organizations may be able to represent you without charging a fee. If your representative charges a fee, we must approve it.

The enclosed leaflet, 'Social Security and Your Right to Representation,' provides more information about representation. If you obtain a representative, you or your representative should call this office to give us his or her name, address, and telephone number. You will also need to complete a form that we provide for appointing a representative. Any local Social Security Office can give you this form.)