ISSUED: May 20, 1992; REVISED: May 14, 1993
I. Purpose
This Temporary Instruction (TI) sets forth the procedures for implementing
the April 20, 1990, November 19, 1990, February 25, 1991 and January 2,
1992 orders of the U.S. District Court for the Eastern District of
Tennessee in the Begley, et al. v. Sullivan class
action involving the standard for determining disability in surviving
spouse claims.
Adjudicators throughout the country must be familiar with this TI because
Begley class members who now reside outside
Tennessee must have their cases processed in accordance with the
requirements of the court's orders.
II. Background
On October 21, 1988, plaintiffs filed a class complaint challenging the
Secretary's listings-only policy of evaluating disability with respect to
the title II claims of widows, widowers and surviving divorced
spouses.[1] The U.S. District Court for the Eastern District of Tennessee
certified the class on September 25, 1989 (see
Part IV. below, for class
definition).
On April 20, 1990, the district court resolved the substantive issues when
it granted plaintiffs' class and individual motions for summary judgment.
The court held that adjudicators must consider residual functional
capacity when they find that a widow's impairment(s) does not meet the
specific criteria of the listings. The court reasoned that the stricter
statutory standard for surviving spouses did not justify the Secretary's
“inflexible” equivalency approach.
On November 19, 1990, the district court issued an order setting forth the
terms for implementation of class relief, but specifically declined to
announce a new disability evaluation standard for widows (Attachment 1).
The court noted that, “the Secretary and not this Court has the
duty, power and authority to make rules and regulations and to establish
procedures consistent with the provisions of the Social Security Act to
carry out its provisions.” The court directed the Secretary to
submit a new standard for evaluating disability in widows' claims. In
response, the Secretary submitted the Kier
Acquiescence Ruling (AR) as the disability evaluation standard. On
February 25, 1991, the court overruled plaintiffs' objections and approved
the Kier AR standard.
On November 5, 1990, Congress enacted the Omnibus Budget Reconciliation
Act of 1990 (OBRA 90) (Pub. L. 101-508). Section 5103 of OBRA 90 amended
section 223 of the
Social Security Act to repeal the special definition of disability
applicable in widows' claims and conform the definition of disability for
widows to that for all other title II claimants and title XVI adult
disability claimants. The amendment became effective for entitlement to
monthly benefits payable for January 1991, or later, based on applications
filed or pending on January 1, 1991,
or filed later.
On May 22, 1991, the Commissioner of Social Security rescinded the
Kier AR and published
Social Security Ruling (SSR)
91-3p to provide a uniform, nationwide standard for the evaluation
of disability in widows' claims for the pre-1991 period. On January 2,
1992, the district court approved the Secretary's motion to substitute
SSR 91-3p for the
previously court-approved Kier AR standard and
affirmed the Secretary's draft class relief processing instructions
(Attachment 2).
III. Guiding Principles
Adjudicators must use the disability evaluation standards reflected in
§ 5103 of OBRA 90 and SSR
91-3p for evaluating disability in Begley
class member claims. The disability evaluation standard enacted by OBRA 90
is effective for entitlement to monthly benefits payable for January 1991
or later. (See HALLEX
, issued
February 11, 1991, for further instructions on processing disabled widows'
claims under the provisions of § 5103 of OBRA 90.) The disability
evaluation standard announced in
SSR 91-3p must be used
for the evaluation of disability and entitlement to benefits payable for
the pre-1991 period.
The district court's November 19, 1990 order contains detailed provisions
for the implementation of class relief. The pertinent provisions are
summarized below.
•
The Secretary shall readjudicate all class member claims in accordance
with the instructions issued pursuant to the court's order, using the
standards described above.
•
The type of review and the period to be considered depend on whether the
claim subject to review was an initial claim or a cessation case (see
Part VI.B. below, for a more detailed
explanation).
—
If the claim subject to review is an initial claim, the type of review to
be conducted is a “redetermination.”
—
If the claim to be reviewed is a cessation case, the type of review to be
conducted is a reopening.
The Tennessee Disability Determination Section (DDS) will have review
jurisdiction for Begley cases, even if the claimant
no longer resides in Tennessee, except that:
•
if the Tennessee DDS issues a cessation determination, the claimant is
entitled to a face-to-face hearing and the “resident” DDS
will assume review jurisdiction;
•
if there is a subsequent claim pending adjudication in another state, a
DDS Disability Hearing Unit or in OHA, the Begley
claim folder(s) will be sent to the office with jurisdiction of the
pending claim for screening, consolidation consideration and
readjudication, if consolidated (see Part
VI.E. below, for OHA consolidation
instructions).
IV. Definition of Class
On September 25, 1989, the U.S. District Court for the Eastern District of
Tennessee certified a class consisting of:
“All Tennessee residents who have claimed, are claiming, or will
claim initial or continued disability benefits as a widow, widower or a
surviving divorced spouse under Title II of the Social Security Act, as
amended, whose claims were, are or will become subject to any policy or
practice on the part of the defendant Secretary of determining disability
without weighing the combined effects and impacts of the claimants'
multiple impairments, or without considering and assessing such multiple
impairments or the claimants' residual functional capacities, who received
or will receive from the defendant Secretary (or a responsible State
agency) adverse decisions concerning their claims for such Title II
disability insurance benefits, but limited to those Tennessee residents
whose notices of such adverse decisions concerning their claims for such
Title II disability insurance benefits are dated not earlier than 65 days
before October 21, 1988, and to any additional Tennessee residents who
received notices of such adverse decisions, regardless of the dates of the
notices, not earlier than 60 days before October 21, 1988.”
For purposes of implementing the November 19, 1990 order, the class
consists of all individuals who:
•
filed for or received title II benefits as a disabled widow, widower or
surviving divorced spouse; and
•
were residents of Tennessee at the time their claim was denied or ceased
for medical reasons; and
•
were issued a final adverse administrative determination or decision
between August 15, 1988, and May 22, 1991, inclusive, or did not receive
notice of such adverse determination or decision until on or after August
20, 1988.
The Begley class effectively closed with the
Secretary's publication of SSR
91-3p on May 22, 1991. Adjudications under the OBRA 90 and
SSR 91-3p standards
satisfy the Begley court's mandate.
In the rare instance in which a Begley class member
filed a subsequent claim raising issues identical to those raised in the
prior claim, the class member claim will be processed by the state DDS as
a res judicata denial if the subsequent claim was finally adversely
decided after May 22, 1991, adjudicated under the OBRA 90 and
SSR 91-3p standards and
resolved all class member relief issues (see
Part VI.E.4. below).
V. Determination of Class Membership and Preadjudication
Actions
Potential class members will be identified by computer run, and
system-generated notices will be mailed by first class mail. Individuals
have 60 days (unless extended for good cause) from the date of receipt of
the notice to request Begley review by returning a
Begley Court Case Review Request form in a
selfaddressed postage-paid envelope provided. A systems-generated
acknowledgment letter will be sent when a timely reply is received.
District offices will develop good cause in those cases where a reply is
not received timely. Unless there is a subsequent claim (current claim)
pending that could cause jurisdiction to shift to another state or OHA,
class membership screening will be done by the Tennessee DDS and a copy of
the screening sheet (Attachment 3) will be placed in the claim file. The
screening component will send notice of non-class membership and return
non-class member files, pending possible review in the event of a class
membership dispute, to:
Social Security Administration
530 Gay Street,
Suite 425
P.O. Box 1312
Knoxville, TN 37902
Class membership disputes will be resolved by negotiations between the
claimant or his or her counsel and the Secretary, or, if necessary, by the
court.
In general, the Office of Disability and International Operations (ODIO)
or the Program Service Centers (PSCs) will associate computer-generated
potential class member alerts with the potential class member claim
folder(s) and forward them to the Tennessee DDS for screening and
readjudication. However, if ODIO or the PSC determines that a current
claim is located in OHA (pending in the hearing office (HO) or
Headquarters, or stored at Headquarters), ODIO or the PSC will forward the
alert along with any potential class member claim files not in OHA's
possession to OHA for association and necessary action, i.e., screening,
consolidation consideration, and readjudication (if consolidated). All
potential OHA jurisdiction alerts, and related prior claim folders, will
be sent to the Office of Civil Actions (OCA), Division III, at the
following address:
Office of Hearings and Appeals
Office of Civil
Actions, Division III
5107 Leesburg Pike
Falls Church,
VA 22041-3200
ATTN: Begley Screening
Unit - Suite 704
In general, ODIO or the PSCs will coordinate any necessary reconstruction
of prior claim folders.
Generally, a claim folder will be considered lost if it cannot be located
within 120 days of the date the file search is initiated.
In general, cases will be screened by the same component (DDS or OHA) that
readjudicates the case.
1.
Pre-Screening Actions
a.
Current Claim Pending; No Class Member Prior Claims
•
Absent evidence to the contrary, all claims adjudicated subsequent to the
May 22, 1991 publication of SSR
91-3p are presumed to have been adjudicated under standards that
comply with the mandates of the Begley court
orders. Claims adjudicated under the provisions of OBRA 90 and
SSR 91-3p are not class
member claims. No formal screening of these claims is necessary.
b.
Current Claim Pending; Alert Received; Prior (Inactive) Potential
Begley Claim(s) Associated
•
If OCA determines that the current claim is pending in a HO, OCA will
forward the alert and the prior claim folder(s) to the HO for screening.
(See Attachment 4.)
•
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 4.)
•
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.
•
If OCA determines that a current claim is pending in court, it will notify
OGC. (See Part VI.E.4. below.)
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.)
•
The individual performing the screening must place the original screening
sheet in the claim folder (on the top right side of the file) and forward
a copy of the screening sheet to:
Office of Hearings and Appeals
Office of Civil
Actions
Division of Litigation Analysis
and
Implementation
P.O.
Box 10723
Arlington, VA 22210
ATTN:
Begley Coordinator
- Suite 702•
If the hearing office or OAO branch receives an alert only or an alert
associated with a 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, Division III (see address in
Part V.A. above), and advise as to what
action was taken on the current claim. OCA will determine the folder
location and forward the alert and any accompanying prior claim folder(s)
to that location. (See Attachment 5.)
3.
Post-Screening Actions
a.
Cases Determined Not to be Class Members
•
On determining that an individual is not a class member, the HO or
Headquarters screening component must provide the individual, and
representative, if any, with notice of non-class membership (Attachment
6), and must place a copy of the notice in the claim folder.
•
The HO or Headquarters screening component must also provide class counsel
with a copy of the notice of non-class membership. Send such notice
to:
Rural Legal Services of Tennessee, Inc.
P.O. Box
5209
Oak Ridge, TN 37831
ATTN: Lenny L. Croce
In cases involving a current claim, screeners may need to modify the
notice of non-class membership to fit the circumstances and posture of the
case.
•
An individual who has been determined “not a class member”
may appeal the determination, either directly or through class counsel.
The notice of non-class membership explains the individual's appeal
options.
•
On completion of the screening component's actions, non-class member claim
folders must be routed to:
Social Security Administration
530 Gay Street,
Suite 425
P.O. Box 1312
Knoxville, TN 37902Attach a copy of the case flag provided in Attachment 7.
b.
Cases Determined to be Class Members
•
On determining that an individual is a class member, the responsible HO or
Headquarters component will proceed with processing and adjudication in
accordance with the instructions in
Part VI. below.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
The Tennessee DDS will conduct the first Begley
review except for cases consolidated at the OHA level (see
Part VI.E. below). The DDS determination
will be an initial determination, regardless of the administrative level
at which the class member claim(s) was previously decided, with full
appeal rights (i.e., reconsideration, Administrative Law Judge hearing,
Appeals Council and judicial review). Administrative Law Judges should
process and adjudicate requests for hearing on
Begley DDS review cases in the same manner as for
any other case.
B. Type of Review and Period to be Considered in
Begley Claims
The type of review and the period to be considered depend on whether the
claim subject to review was an initial claim or a cessation case.
1.
If the claim subject to review is an initial claim, the type of review to
be conducted is a “redetermination.” The readjudication shall
be a de
novo reevaluation of the class
member's eligibility for benefits based on all evidence in his or her
file, including newly obtained evidence, relevant to the period of time at
issue in the administrative decision(s) that forms the basis of the
claimant's class membership. If the readjudication results in a favorable
decision, the adjudicator must determine whether the class member's
disability has been continuous through the date of the
readjudication.
2.
If the claim to be reviewed is a cessation case, the type of review to be
conducted is a reopening. The readjudication shall be an assessment of the
class member's disability from the date disability was previously ceased
through the date of the readjudication.
C. Processing and Adjudicating Current Claims; No Class Member Prior
Claims
All claims adjudicated subsequent to the May 22, 1991 publication of
SSR 91-3p are presumed
to have been adjudicated under standards that comply with the mandates of
the Begley court orders, absent evidence to the
contrary. Claims adjudicated under the provisions of OBRA 90 and
SSR 91-3p are not class
member claims.
D. Claim at OHA But No Current Action Pending
If a claim folder (either a class member or a subsequent claim folder) is
located in OHA Headquarters but there is no claim actively pending
administrative review, i.e., Headquarters is holding the folder awaiting
potential receipt of a request for review or notification that a civil
action has been filed, OCA will associate the alert with the folder and
screen for class membership.
1.
If the 120-day retention period for holding a claim folder after an ALJ
decision or Appeals Council action has expired, OCA will attach a
Begley class member flag (see Attachment 8) to the
outside of the folder and send the claim folder(s) to the Tennessee DDS
for review of the Begley class member claim (see
Part III. above).
2.
If less than 120 days has elapsed, OCA will attach a
Begley class member flag to the outside of the
folder (see Attachment 8) to ensure that the case is routed to the
Tennessee DDS after expiration of the retention period (see
Part III. above). Pending expiration of
the retention period, OCA will also:
a.
return the unappealed ALJ decisions and dismissals to DFB, OAO; and
b.
return unappealed Appeals Council denials to the appropriate OAO
minidocket.
The respective OAO component will monitor the retention period and, if the
claimant does not seek further administrative or judicial review, route
the folder(s) to the Tennessee DDS in a timely manner.
E. Processing and Adjudicating Class Member Claims in Conjunction
with Current Claims (Consolidation Procedures)
1.
General
If a class member has a current claim pending at any administrative level,
all Begley class member claims will be consolidated
with the current claim at the level at which the current claim is
pending.
In general, consolidation will not occur at the Appeals Council Level (see
Part VI.E.3. below for more specific
instructions in this regard).
2.
Current Claim Pending in the Hearing Office
Disposition of a Begley review claim that is first
associated with a current claim pending at the hearing level depends on
whether a hearing has been scheduled or held and on whether the claims
share a common issue.
a.
Request for Hearing Cases in Which a Hearing Has Been Scheduled or Held,
and All Remand Cases
If a Begley class member has a request for hearing
pending on a current claim and the Administrative Law Judge
has scheduled or held a hearing, the
Administrative Law Judge must consolidate the
Begley review with action on the current claim. The
Administrative Law Judge must also consolidate the claims if the
Begley class member's current claim is before the
Administrative Law Judge on remand from the Appeals Council or a
court.
If the Begley review claim raises any additional
issue(s) not raised by the current claim, the Administrative Law Judge
must give proper notice of the new issue(s) as required by
20 CFR §
404.946(b). If the Administrative Law Judge has already held a
hearing and the Begley review claim raises an
additional issue(s), the Administrative Law Judge must offer the claimant
a supplemental hearing unless the Administrative Law Judge is prepared to
issue a decision that is wholly favorable with respect to the
Begley claim.
In all instances in which claims are consolidated, the Administrative Law
Judge must issue one decision that addresses both the issues raised by the
current request for hearing and those raised by the
Begley review. The decision must reflect
consideration of the Begley claim pursuant to the
Begley court orders. Thus, if the Administrative
Law Judge is prepared to issue a favorable decision on a
Begley initial claim, or if the
Begley claim is a cessation case, the new decision
must clearly indicate that the Administrative Law Judge is
reopening the final determination or
decision on the Begley claim. If the Administrative
Law Judge plans to issue an unfavorable decision on a
Begley initial
claim, the decision must reflect that the Administrative Law Judge is
readjudicating the
Begley claim pursuant to the
Begley court orders, i.e., adjudicating only
through the date of the latest determination/decision subject to
Begley review. For class action reporting purposes,
the HO must send copies of all consolidated hearing decisions to
both:
Office of Hearings and Appeals
Office of Civil
Actions
Division of Litigation Analysis
and
Implementation
P.O.
Box 10723
Arlington, VA 22210
ATTN:
Begley Coordinator
- Suite 702AND
Litigation Staff
Office of the Deputy Commissioner
for Programs
3-K-26 Operations
6401 Security
Boulevard
Baltimore,
MD 21235
ATTN: Begley
Coordinator
The Administrative Law Judge will not consolidate prior and current claims
if a court remand contains a time limit and it will not be possible to
meet the time limit if the claims are consolidated.
If the Administrative Law Judge does not consolidate the claims, the HO
will route the Begley review claim to the Tennessee
DDS for any necessary Begley readjudication action
(Attachment 8). The Administrative Law Judge will then take the necessary
action to complete the record and issue a decision on the current
claim.
b.
Request for Hearing Cases — Hearing Not Scheduled
If a Begley class member has a request for hearing
pending on a current claim and the HO has
not scheduled a hearing, the
Administrative Law Judge must dismiss the request for hearing without
prejudice and send the current claim to the Tennessee DDS for
consolidation with the Begley review claim unless
the exception below applies. (See Attachment 9 for sample dismissal order
language.)
The Administrative Law Judge must not dismiss the current claim if the
Administrative Law Judge is prepared to issue a fully favorable,
on-the-record decision on the current claim.
If the decision on the current claim would be fully favorable with respect
to all the issues raised by the Begley claim, the
Administrative Law Judge must consolidate the claims as described in
Part VI.E.1. above, and issue a
consolidated decision. If the decision would be fully favorable with
respect to the current claim only, the decision will be issued and the
Begley claim forwarded to the Tennessee DDS for
processing.
3.
Current Claim Pending at the Appeals Council
Disposition of a Begley review claim that is first
associated with a current claim pending at the Appeals Council level
depends on the action the Appeals Council takes on the current claim.
Therefore, OAO must keep the claim files together until the Appeals
Council completes its action on the current claim. Appeals Council actions
on current claims and the corresponding actions on
Begley review claims are as follows.
a.
Appeals Council intends to dismiss, deny review or issue a denial decision
on the current claim — no Begley issue(s)
will remain.
This situation will usually arise when the current claim duplicates the
Begley review claim, i.e., the claims present
identical facts and issues, and the current claim has been processed in
full accordance with the provisions of
and
SSR 91-3p. In this
instance, the Appeals Council must consolidate the claims and proceed with
its intended action. The Appeals Council's order, decision or notice of
action must clearly indicate that the Council's action resolves both the
current claim and the Begley review claim.
b.
Appeals Council intends to dismiss, deny review or issue a denial decision
on the current claim — Begley issue(s) will
remain.
This situation will usually arise when the current claim does not
duplicate the Begley review claim. In this
instance, the Appeals Council will proceed with its intended action on the
current claim in accordance with the provisions of TI 5-315 and
SSR 91-3p. OAO staff
must attach a Begley flag (Attachment 10) to the
combined class member files. If the claimant does not file a civil action,
at the end of the retention period OAO staff must forward the combined
files to the Tennessee DDS for review of the Begley
class member claim. If the claimant files a civil action, OCA staff will
coordinate with OGC, separate the files and forward the
Begley class member claim to the Tennessee DDS for
separate review. (See Part VI.E.4. for
additional instructions with respect to coordination with OGC.)
c.
Appeals Council intends to issue a favorable decision on the current claim
— no Begley issue(s) will remain
•
If the Appeals Council intends to issue a favorable decision on the
current claim, and the decision will be fully favorable with respect to
the Begley claim, the Council should proceed with
its intended action.
•
In this instance, the Appeals Council must consolidate the claims. The
Appeals Council's decision must clearly indicate that the Council is
reviewing the final determination or decision on the
Begley claim, issuing a decision that considers
both applications and considering the Begley claim
pursuant to the Begley court orders.
•
For class action reporting purposes, the Appeals Council must send copies
of the decision to the Begley coordinators listed
in Part VI.E.2.a. above.
d.
The Appeals Council intends to issue a favorable decision on the current
claim — Begley issue(s) will remain
•
If the Appeals Council intends to issue a favorable decision on the
current claim that would not be fully favorable with respect to the
Begley claim, the Council should proceed with its
intended action.
•
OAO staff must include the following language on the transmittal sheet
that forwards the case for effectuation:
“Begley readjudication needed —
following effectuation, forward the attached combined folders to (insert
address of the Tennessee DDS).”
e.
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 consolidate
the Begley review with the current claim pursuant
to the instructions in Part VI.E.2.a.
above.
The Appeals Council must not direct the Administrative Law Judge to
consolidate the claims if the claims do not share a common issue. If the
claims do not share a common issue, OAO must forward the Begley class
member claim to the servicing DDS for separate review. (The Route Slip (or
Case Flag) in Attachment 8 should be modified to indicate that the Appeals
Council, rather than an Administrative Law Judge is forwarding the Begley
class member claim for separate processing.)
4.
Current Claim Pending in Court
Disposition of a Begley review claim when a current
claim is pending in federal court will depend on the nature of the final
administrative decision.
a.
If the current claim pending in court was adjudicated in accordance with
the provisions of OBRA 90 and
SSR 91-3p, and no
Begley issue(s) will remain, OCA staff must forward
the Begley review claim to DDS for separate review
and processing as a res judicata denial. Modify the
Route Slip (or Case Flag) in Attachment 8 to indicate that: 1) the class
member received a determination or decision on a subsequent claim that was
adjudicated in accordance with the provisions of OBRA 90 and
SSR 91-3p; 2) the
subsequent decision applied the proper standard to the entire time period
at issue in the retroactive Begley case; and 3) the
Begley case is being forwarded for separate
processing in accordance with POMS
DI
32598.015B.9.
OCA personnel may determine whether the current claim was adjudicated
pursuant to the provisions of OBRA 90 and
SSR 91-3p and whether it
covered the entire time period at issue in the
Begley case by reviewing the current claim court
transcript or claim file.
b.
If the current claim pending in court was adjudicated in accordance with
the provisions of OBRA 90 and
SSR 91-3p, but
Begley issue(s) will remain, i.e., the claims do
not present identical issues, e.g., the retroactive periods adjudicated or
to be adjudicated are not identical, OCA staff must forward the
Begley review claim to DDS for separate review.
Modify the Route Slip (or Case Flag) in Attachment 8 to indicate that
there is not complete identity of issues with the pending court case and
that the Begley class member claim is being
forwarded for separate processing.
c.
If the final administrative decision on the claim pending in court was not
adjudicated in accordance with the provisions of OBRA 90 and
SSR 91-3p or is
otherwise legally insufficient, initiate voluntary remand proceedings and
consolidate the claims. (See
Part VI.E.3.e. above.)
F. Copy Requirements in Consolidation Cases
For all cases in which OHA is the first level of review for the
Begley claim, i.e., the Appeals Council or an
Administrative Law Judge consolidates the Begley
review with action on a current claim, HO, OAO or OCA personnel, as
appropriate, must send a copy of any OHA decision to the
Begley coordinators at the addresses listed in
Part VI.E.2.a. above.
VII. Case Coding
HO personnel 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. above),
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, HO personnel must code
“BE” 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 on FTS
365-0022.
Attachment 1. - District Court Order dated November 19, 1990
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF
TENNESSEE
NORTHERN DIVISION
[Filed November 19, 1990]
|
JAYNELL BEGLEY, et al.,
|
)
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|
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Plaintiffs,
|
)
|
|
|
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)
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|
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v,
|
)
|
NO. CIV-3-88-0841
|
|
LOUIS W. SULLIVAN
|
)
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|
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Secretary of the United
|
)
|
|
|
States Department of
|
)
|
|
|
Health and Human Services,
|
)
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|
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Defendant.
|
)
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and
|
)
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MARGARET THACKER,
|
)
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Plaintiff,
|
)
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)
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|
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v.
|
)
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NO. CIV-3-89-0157
|
|
LOUIS W. SULLIVAN
|
)
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Secretary of the United
|
)
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|
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States Department of
|
)
|
|
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Health and Human Services,
|
)
|
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Defendant,
|
)
|
|
MEMORANDUM OPINION
On April 20, 1990, this Court entered a Memorandum Opinion [doc. 140] and
Order [doc. 141] in Begley v. Sullivan, No.
3-88-841, a Social Security class action, in which it adopted the Report
and Recommendation of United States Magistrate Robert P. Murrian [docs.
111,132]. The plaintiffs have prevailed on the merits of their claims. The
Order entered in Begley v. Sullivan included a Show
Cause Order to require the defendant Secretary of Health and Human
Services to show cause why the same result should not occur in
Thacker v. Sullivan, No. 3-88-157, which has been
consolidated with the class action in 3-88-841, to which a response has
never been filed by the defendant.
Subsequent to the April 20, 1990, Memorandum Opinion and Order, on April
30, 1990, the individual plaintiff Jaynell Begley filed a motion for
additional findings and amendment of the judgment [doc. 171] was entered
resolving this individual plaintiff's claims. Left unresolved and
presently pending before this Court for disposition at this time are two
motions: (1) the plaintiffs' petition for an award of attorney's fees
[docs.144, 14 , 162], to which the defendant has replied [doc. 165]; and
(2) the plaintiffs' motion for additional class relief [docs. 149, 149A,
166, 168], to which the defendant has filed responses [docs. 163,
172].
I.
Plaintiffs' Motion for Additional Class Relief
The plaintiffs seek further relief from this Court in the form of an
injunction to require the Secretary to conform to the orders of this Court
concerning the proper standard to be applied to disability determinations,
to require him to readjudicate the plaintiffs' claims for benefits, to
reinstate disability benefits unlawfully terminated, and to grant other
relief in the way of oversight by the plaintiffs' counsel in the
development and implementation of a new standard for disability
determinations, including participation in the revision of this standard
as well as in the drafting of regulatory and subregulatory directives and
attendance and participation in training of agency employees. The
plaintiffs, in short, seek extensive injunctive relief of a sort rarely,
if ever, seen in this Court. The plaintiffs also contend that the
Secretary has indicated that he will not voluntarily comply with the
orders of this Court. The defendant has opposed much of the relief sought
and made a counter-proposal as to the relief appropriate.
Although some of the documents in this record could be construed to
indicate that the Secretary is apparently reluctant to apply a revised or
different disability standard in determinations of eligibility of
surviving spouses under Title II of the Social Security
Act,1 under 42 U.S.C § 405(a), the
Secretary and not this Court has the duty, power and authority to make
rules and regulations and to establish procedures consistent with the
provisions of the Social Security Act to carry out its provisions. The
Court is of the opinion that it does not have the power to order the
extensive and intrusive oversight of an executive agency proposed by the
plaintiffs and nothing in the record presently before the Court indicates
that the defendant will not in fact comply with the law as construed and
ordered by this Court. If the Secretary should fail to do so, adequate
remedies exist. The presumption that administrators comply with the law is
certainly not rebutted on this record and such a finding seems premature
before the Secretary is actually given the opportunity to comply with the
orders of this Court. See
Citizens to Preserve Overton Park, Inc. v. Volpe,
91 S.Ct. 814, 823 (1971). The Secretary's statements appear to be in the
nature of preserving for appeal his consistently asserted contention that
this Court was erroneous in its conclusions about the requirements of the
Social Security Act in this case — something that this Court thinks
he is entitled to do. Cf.
Wyandotte Savings Bank v. National Labor Relations
Board, 682 F.2d 119 (6th Cir. 1982) (agency may attempt to
persuade an appellate court to reconsider precedent contrary to agency's
position on a question of law).
The Secretary's proposed remedial order contains provisions that to a
great extent appear reasonable to this Court. The Secretary agrees to make
good faith and timely efforts to submit to this Court a disability
determination standard consistent with the Court's April 20, 1990,
Memorandum Opinion and Order and to develop instructions regarding the
determination of eligibility of surviving spouse claimants for disability
benefits under the new standard after the submission of the new standard
to this Court. The Secretary will then redetermine the claims of the
plaintiff class members.
In implementing the order of this Court, the Secretary has proposed
providing the plaintiff's counsel with drafts of proposed instructions for
readjudicating the class claims and to allow counsel for the plaintiffs to
submit objections to the instructions within 10 days. If any objections
are unresolved, they can be submitted to this Court for resolution. The
defendant further would provide counsel with documentation of compliance
with the Court's order and would allow the plaintiffs' counsel to attend,
but not participate in, any training sessions held concerning
implementation of instructions. The Secretary also agrees to provide
notices to all potential class members, including the names and addresses
of plaintiffs' counsel, and will inform any claimant that he or she may
contact plaintiffs' counsel for assistance. Copies of these notices will
be provided to counsel for the plaintiffs, who may then object to the
notices, and unresolved objections can be submitted to this Court for
resolution. Other proposed provisions of the Secretary's remedial order
appear to be just as reasonable. The Court will enter a modified version
of this proposed order as it finds it reasonable and fair for the most
part.
One aspect of the plaintiffs' proposed injunctive relief relates to
interim reinstatement of benefits for those claimants whose benefits were
improperly terminated based on the application of the standard invalidated
in this case. The Secretary contends that no authority exists for this
Court to order payment of interim benefits to claimants pending
redetermination of eligibility as required by the orders of this
Court.
In Taylor v. Heckler, 769 F.2d 201 (4th Cir. 1985)
the Fourth Circuit reversed the judgement of a district court awarding a
claimant interim benefits during the pendency of the remand of the action
to the Secretary because it found no authority for such an order of
interim benefits. The Fourth Circuit noted that “42 U.S.C. [sect ]
423(g) authorizes interim benefits to individuals appealing the
termination of their disability benefits on account of an official
determination that they are no longer disabled.”
Id., at 202 (citations omitted). Any
person who has not been a recipient of benefits is not eligible for
interim benefits under this provision. The Fourth Circuit also rejected
the contention that the district court had the remedial authority to order
such benefits under its power to award injunctive relief.
Id.
See also Doughty v.
Bowen, 839 F.2d 644 (10th Cir. 1988).
If any member of the class in this case was a recipient of benefits that
were terminated by the defendant as a result of the application of the
standard invalidated by this Court, then those persons would be eligible
for interim benefits, but no person whose eligibility was denied upon
initial application is entitled to interim benefits. An award of back
benefits would be the only appropriate relief in the cases of claimants
whose eligibility was improperly denied in the first instance. This Court
has no authority to make a general award interim benefits as a part of the
relief for any claimant who had not been receiving benefits at the time of
the determination of ineligibility. Neither the definition of the class
certified in this case [doc. 64], which includes “[a]ll Tennessee
residents who have claimed, are claiming, or will claim initial or
continued disability benefits as a widow, a widower or a surviving
divorced spouse,” not the record made before this Court permits the
Court readily to identify who among the class would be eligible for
interim benefits.
Moreover, 42 U.S.C. § 423(g) does not require the payment of such
benefits; rather, this section permits claimants whose benefits have been
terminated to elect to receive continued payments during appeal but if the
appeal should ultimately fail these payments are considered overpayments,
the repayment of which the Secretary may waive under 42 U.S.C §
423(g)(2)(B). The Court is of the opinion that payment of back benefits to
all claimants who are determined to be eligible will provide an adequate
remedy. Any appropriate member of the class may of course elect to
exercise the statutory option available under 42 U.S.C § 423(g), with
its attendant risk of liability for any overpayment.
II. Motion for Attorneys' Fees
The plaintiffs' counsel, Lenny Croce, Donna Lefebvre (both of Rural Legal
Services of Tennessee, Inc.), and Kenneth Miller, seek attorneys' fees and
costs under the Equal Access to Justice Act, 28 U.S.C §
2412(d)(1))(A)(Cum. Supp. 1990), which provides that “[e]xcept as
otherwise specifically provided by statute, a court shall award a
prevailing party other than the United States fees and other expenses
...incurred by that party in any civil action (other than cases sounding
in tort), including proceedings for judicial review of agency action,
brought by or against the United States in any court having jurisdiction
of that action, unless the court finds that the position of the United
States was substantially justified or that special circumstances make an
award unjust.” Fees are awardable only if the party prevails, the
position of government was no substantially justified, and no special
circumstances make an aware unjust.
See Commissioner,
Immigration and Naturalization Service v. Jean, 110 S.Ct.
2316, 2319 (1990).
Counsel seek fees in the following amounts: $47,925.00 for Mr. Croce, for
355 hours at $135 per hour; $6006.50 for Ms. Lefebvre, for 73.25 hours at
$82.00 per hour; and $2532.08 for Mr. Miller, for 24.5 hours at $103.35
per hour. Counsel each claims that the hourly rate of $75.00 provided in
the statute should be adjusted for increases in the cost of living.
Under subsection (d)(1)(C)(2)(A), “attorney fees shall not be
awarded in excess or $75 per hour unless the court determines that an
increase in the cost of living or a special factor such as the limited
availability of qualified attorneys for the proceedings involved,
justifies a higher fee . . . .” The Sixth Circuit has held that
under the terms of the stature the $75.00 per hour rate is a ceiling and
not a floor and that cost of living increases are not automatically added.
See Chipman v. Secretary
of Health and Human Services, 781F.2d 545, 547 (6th Cir.
1986). The stature contemplates the reasoned exercise of a court's
discretion in the determination of the proper award of such fees.
See Pierce v.
Underwood, 108 S.Ct. 2541, 2553 (1988).
Considering the consistent rejection of the Secretary's position by a
number of circuits and for practical purposes by the Supreme Court of the
United States itself, the Court is of the opinion that the Secretary's
position was not substantially justified.
See Pierce v.
Underwood, supra at 2552.
Cf. Keasler v. United
States 766 F.2d 1227 (8th Cir 1985). Futhermore, this Court
found that the standard employed by the Secretary in these cases was not
supported by case law or by the terms of the Social Security Act and that
this standard ignored the severity of the claimant's impairment,
manifestly contrary to the mandate of the statute. Although the simple
fact that some circuits have not agreed with the Secretary's position does
not of itself mean that the Secretary's position was not substantially
justified or justified to a degree that could satisfy a reasonable person,
Commissioner, I.N.S. v. Jean, supra, at 2319, n.6,
the consistent rejection of that position by essentially every Court that
has addressed it does indicate that the Secretary was not justified in his
position.
Nevertheless, although no circumstances appear that would make an award of
attorneys' fees unjust, the Court must reject the amount of the hourly
fees sought by the plaintiffs' counsel under the terms of the statute and
the controlling precedent. Moreover, the Court does not find that in the
market in this locality an hourly fee of $75.00 is reasonable. In view of
the extensive amount of Social Security litigation that passes through
this Court, no shortage of attorneys exists for the representation of
claimants in this area. The Court has concluded that, the experience and
effort of each attorney in this case, the hourly rates should be reduced
as follows: Lenny Croce shall be awarded $65.00 per hour for 355 hours,
totaling $23,075.00; Donna LeFebvre is awarded $50.00 per hour for 73.25
hours, a total of $3,662.50; and Kenneth Miller shall be awarded $65.00
per hour for 24.5 hours, totaling $1,837.50. Costs and expenses in the
amount of $3,853.41 shall be awarded. The total attorneys' fees, costs,
and expenses awarded come to $32,428.41.
III. Conclusion
Accordingly, the Court ORDERS:
1.
That the plaintiffs' claims for benefits in Begley v.
Sullivan, civil action number 3-88-841, and in
Margaret A. Thacker v. Louis W. Sullivan, civil
action number 3-89-157, are REMANDED to the Secretary of Health and Human
Services for action consistent with the Memorandum Opinions and Orders of
this Court;
2.
That the plaintiffs' attorneys' motion for attorneys' fees [docs. 144,
148, 162] is GRANTED and they are AWARDED attorneys' fees in the amounts
of $23,075.00 to Lenny Croce, $3,662.50 to Donna Lefebvre, and $1,837.50
to Kenneth Miller, together with costs and expenses totaling
$3,853.41;
3.
That the motion of the plaintiffs for further relief [docs. 149, 149A,
166, 168] is DENIED IN PART and GRANTED IN PART and all prior decisions of
the Secretary denying or terminating disability benefits for the members
of the class in Begley v. Sullivan, No. 3-88-841,
and in Thacker v. Sullivan, No. 3-89-159, are VACATED pursuant to 5 U.S.C
§ 706(2)(A) and the defendant Secretary of Health and Human Services
(“the Secretary”) shall make all good faith efforts to submit
to the Court a disability determination standard that is consistent with
this Court's Order and Opinion of April 20, 1990 regarding the
determination of eligibility for disability benefits for widow, widower
and surviving divorced spouse claimants (hereinafter referred to
collectively as surviving spouses) within 14 days of the entry of this
Memorandum Opinion and Order. The secretary shall make all good faith
efforts to develop, within 60 days of the submission to this Court of the
new standard, instructions regarding the determination of eligibility of
surviving spouse claimants for disability benefits under the new standard
to be used in adjudicating all class members' claims.
4.
That upon development of the disability determination process described in
¶ 3, the Secretary shall redetermine the claims of plaintiff class
members, as defined by this Court's order dated September 25, 1989 [doc.
64], to wit:
All Tennessee residents who have claimed, are claiming, or will claim
initial or continued disability benefits as a widower or a surviving
divorced spouse under Title II of the Social Security Act, as amended,
whose claims were, are or will become subject to any policy or practice on
the part of the defendant Secretary of determining disability without
weighing the combined effects and impacts of the claimants' multiple
impairment, or without considering and assessing such multiple impairments
or the claimants' residual functional capacities, who received or will
receive from the defendant Secretary (or a responsible State agency)
adverse decisions concerning their claims for such Title II disability
insurance benefits, but limited to those Tennessee residents whose notices
of such adverse decisions concerning their claims for such Title II
disability insurance benefits, but limited to those Tennessee residents
whose notices of such adverse decisions concerning their claims for such
Title II disability insurance benefits are dated not earlier than 65 days
before October 21, 1988, and to any additional Tennessee residents who
received notices of such adverse decisions, regardless of the dates of the
notices, not earlier than 60 days before October 21, 1988.
5.
That the Secretary shall draft instructions for redetermining the
eligibility of class members for surviving spouse benefits. The Secretary
shall provide plaintiffs' counsel with a copy of his proposed instructions
for readjudicating cases of class members. Plaintiffs' counsel then shall
have 10 days to submit any objections to those instructions to counsel for
the Secretary. In the event the parties cannot resolve their differences
with 10 days thereafter, the proposed instructions and objections will be
submitted to this Court for resolution of the dispute.
6.
That the Secretary shall provide plaintiffs' counsel with copies of all
teletypes, program operations manual system (“POMS”)
instructions, program circulars and temporary instructions issued to
effect compliance with this Order as such documents are issued.
7.
That if the Secretary conducts formal training sessions regarding
implementation of the instruction, plaintiffs' counsel may attend but not
participate in or otherwise interrupt such training.
8.
a.
Once instructions are issued pursuant to ¶ 3, above, the Secretary
shall send a notice (“the notice”) to all potential class
members identified by Social Security Administration (“SSA”)
records who received a final decision of the Secretary denying or
terminating them from entitlement to surviving spouse disability benefits
between August 15, 1988, and the date new adjudicative instructions are
issued pursuant to ¶3. The notice will instruct the claimant to
return an enclosed postage paid postcard (or form) if he or she elects to
have his or her claim reviewed pursuant to the Court's Order and Opinion
of April 20, 1990 [docs. 141, 140], and this Order. The notice also will
contain the name and address of counsel for plaintiffs, and will inform
the claimant that he may contact plaintiffs' counsel if he has any
questions. Counsel for the plaintiffs may participate in the
identification and location of members of the class. The Secretary shall
provide plaintiffs' counsel with lists of potential class members derived
from Social Security Administration records.
b.
The Secretary shall provide plaintiffs' counsel with copies of his
proposed notice to claimants identified under sub-¶ 8(a) above and
the accompanying postcard (or form). Plaintiffs' counsel then shall have
10 days to submit any objections to this notice to counsel for the
Secretary. The Secretary then shall have 10 days to revise the notice.
Thereafter, the notice will be submitted to this Court for approval.
c.
Once the contents of the notice and postcard (or form) in sub-¶¶
8(a) and 8(b) above have been approved by the Court, and once instructions
have been issued pursuant to ¶ 3, the Secretary will begin mailing
the notice to potential class members.
d.
Claimants will have 60 days from receipt of the notice to respond to the
mailing. The Secretary shall presume that the notice was received 5 days
after the date of mailing and the mailing date shall be marked on the
notice. Claimants who respond to the notice more than 65 days after date
of mailing shall receive full relief as class members if they demonstrate
that they responded within 60 days of their actual receipt of the notice,
or if they demonstrate that they had “good cause” as defined
in 20 C.F.R. §
404.911 (1989) for missing the 60-day deadline.
9.
That in the event that a notice mailed pursuant to ¶ 8(a) is returned
as undeliverable, the Secretary shall remail the notice to the same
address. In the event a second notice is returned as undeliverable, the
Secretary shall attempt to obtain better addresses by providing a computer
tape to the Tennessee Department of Social Services (“TDSS”),
so that TDSS can perform a match with its public assistance, food stamps,
and other records. If an updated address is not obtained, the defendant
shall then attempt to obtain a better address by contacting the post
office, checking the Secretary's automated records, and working with the
claimants' servicing Social Security Administration (“SSA”)
district office for reasonable leads for the purpose of locating the
claimant. The Secretary shall mail a third notice to all claimants for
whom other addresses are obtained. Counsel for the plaintiffs may assist
the Secretary in the location and identification of such claimants.
10.
That upon receipt of a postcard (or form) from a claimant electing review,
the Secretary shall screen for class membership, and shall readjudicate
class members' claims de novo, using the revised standard disability
determinations developed under ¶ 3 above.
a.
A class member with a current claim that is active and pending at any
administrative level of review will have all other claims covered by the
Court's Order and Opinion of April 20, 1990, consolidated with the current
claim.
b.
If a class member does not have a current claim that is active and pending
at any administrative level of review, his or her claim shall be returned
to the DDS for readjudication. In the event of an adverse decision, the
claimant may seek reconsideration. In the event of an adverse decision
upon reconsideration, the claimant may appeal to the Administrative Law
Judge (“ALJ”). In the event of an adverse ALJ decision, the
claimant may petition for review by the Appeals Council. Class members
shall retain the right to judicial review as provided in 42 U.S.C §
405(g).
c.
The Secretary shall mail to any claimant determined not to be a class
member a notice of that determination. The Secretary also will send a copy
of each class membership denial to class counsel. The notice will provide
that the claimant will have 60 days from receipt to request that the
Secretary reexamine the class membership denial decision. The notice also
will contain a telephone number for class counsel that the claimant may
call for assistance in requesting review of the denial decision. The
parties will attempt to resolve the question of class membership by
negotiations between the claimant or his or her counsel and the Secretary.
If the parties cannot resolve the question of class membership through
negotiations, the claimant may submit the unresolved matter to the Court
for resolution.
11.
That class members' readjudication shall be performed in accordance with
the instructions issued pursuant to ¶ 3 of this Order.
a.
For claimants who are class members by virtue of a decision denying their
application(s) for surviving spouse benefits, the readjudication shall be
a de novo reevaluation of the class member's eligibility for benefits
based on all evidence in his or her 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 class membership. In
the case of any readjudication that results in a favorable decision (i.e.,
an award of benefits), the Secretary shall determine whether the class
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). For class members who request relief under this Order and
whose claims are active and pending at any administrative level as of the
date that instructions are issued pursuant to ¶ 3, the period to be
adjudicated shall be calculated in accordance with
20 C.F.R. §
404.620(a) (1989).
b.
For claimants who are class members by virtue of a decision terminating
surviving spouse disability benefits, the readjudication shall be an
evaluation of the class member's eligibility for benefits from the date
benefits were ceased until the date of the readjudication.
12.
That for any readjudication that results in a partially or fully favorable
decision for the claimant, the Secretary shall find that claimant disabled
and restore benefits retroactively, consistent with 42 U.S.C. §
423(a). The Secretary shall find that a class member no longer is disabled
(or no longer was 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 class member no longer is (or was) entitled to receive benefits
pursuant to 42 U.S.C. § 423(f), provided that such class member shall
retain all rights, if any, to continued receipt of benefits during an
administrative appeal, pursuant to 42 U.S.C. § 423(g).
13.
That on a quarterly basis, beginning 90 days after the notices in ¶
8(a) are sent, the Secretary will provide plaintiffs' counsel with
reports, which shall include the following:
a.
The number of notices sent;
b.
The number of responses received;
c.
The number of notices returned as undeliverable;
d.
The number of individuals whose claims were favorably readjudicated;
and
e.
The number of individuals whose claims were unfavorably
readjudicated.
14.
That the Secretary shall provide plaintiffs' counsel with copies of all
class members' unfavorable redeterminations, to be sent on a flow basis
contemporaneous with the issuance of the actual redetermination(s). Also
upon written request submitted within 60 days of a claimant's receipt of
an unfavorable decision, the Secretary will make available to plaintiffs'
counsel or other counsel designated by the claimant, at a mutually
agreeable Social Security Administration office, the case files of that
claimant.
15.
That the jurisdiction of this Court over this action shall cease upon full
implementation of this Order.
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ENTER:
_______/s/_____________
Leon Jordon
United States District Judge
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________________________________________________________________
1 For example, in the Secretary's motion for
leave to file a reply filed in the United States Court of Appeals for the
Sixth Circuit [attachment 1 to doc. 168], the defendant stated the his
“compliance with these adverse orders should not, however, be
construed as an abandonment of the current surviving spouse disability
standard.” Id., at p. 4.
Attachment 2. - District Court Order dated January 2, 1992
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
[Filed January 2, 1992]
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JAYNELL BEGLEY, et al.,
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Plaintiffs,
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v,
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NO. CIV-3-88-0841
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LOUIS SULLIVAN, M.D.
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Secretary of Health and
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Human Services,
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Defendant,
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) |
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MARGARET THACKER,
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Plaintiff,
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v.
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NO. CIV-3-89-0157
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LOUIS SULLIVAN, M.D.
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) |
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Secretary of Health and
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) |
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Human Services,
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) |
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Defendant,
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O R D E R
On August 28, 1991, this Court referred these Social Security cases to
United States Magistrate Judge Robert P. Murrian [doc. 197] for a report
and recommendation of the disposition of the potion of the defendant to
confirm new process and implementing instructions [docs, 193, 193A, 194].
On September 13, 1991, magistrate Judge Murrian entered his Report and
Recommendation [doc.200] to which the plaintiffs filed their objections on
September 20, 1991 [doc 201], and to which objections the defendant filed
a response on October 11, 1991 [doc. 201]. The matter is now ripe for
disposition.
This Court previously found in these cases that the prior policies and
practices of the defendant for determining benefit eligibility for certain
non-wage earner claimants were arbitrary and capricious and consequently
required the defendant to revise the determination standard consistent
with the rulings of this Court. Since the Court's original rulings on this
case, the Social Security Act has been amended to provide that surviving
spouse disability claims are considered for benefits under the same
standard as disabled wage earners. 42 U.S.C. § 423(d)(2)(A) and (B)
(1990), as amended. On May 22, 1991, the commissioner of Social Security
issued Social Security Ruling
91-3p, 56 Fed. Reg. 23589, which controls the determination of
entitlement to disability benefits for surviving spouses for the months
prior to the effective date of the 1990 amendment to the Social Security
Act.
The Secretary's proposed standard of eligibility determination expressly
considers residual functional capacity (RFC) to determine whether a
claimant is disabled and is “patterned after the existing disability
determination process (i.e., the sequential evaluation process) to avoid
the creation of entirely new and untested methodologies.” 56 Fed.
Reg. 23590. A five-step process is used, which is described in
20 CFR §
404.1520. “If application of this process results in a
finding of disability at step three (meets or equals a listed impairment
in appendix 1), the widow will be found entitled to benefits for all
months ..., including those before January 1991 ...,” Id.
Furthermore,
“[I]f application of the five-step sequential evaluation process
results, at step five, in a finding that the widow is unable to engage in
substantial gainful activity, an additional determination will be needed
regarding the widow's entitlement to disability benefits for months prior
to January 1991, i.e., her ability to engage in any gainful activity. SSA
will make this additional determination utilizing the residual functional
capacity assessment used in conjunction with steps four and five of the
sequential evaluation process, but without considering age, education, and
work experience.”
56 Fed. Reg. 23591. Magistrate Judge Murrian's Report and Recommendation
is a thorough explanation of the defendant's proposed standard and an
exhaustive consideration of the plaintiffs' contentions in regard to the
proposed standard and the Court will not restate them here. The Court does
note, however, that one of the main contentions of the plaintiffs has been
the defendant's failure to make an individualized, functional inquiry into
the effect of medical problems on a person's ability to work.
The plaintiffs continue to complain that the failure of the Secretary to
consider RFC at step three, the equivalency stage, fails to comply with
this Court's previous rulings and merely continues the defendant's illegal
equivalency policy, depriving the claimant of an individualized assessment
of disability. The plaintiffs make rather speculative arguments concerning
the application of this standard, as revised, as it would apply to
claimants such as Laymance and Thacker, contending that “[t]his
process will result in the denial of many class members' claims without an
indi vidualized assessment of whether their impairments resulting in
functional consequences are equal in severity to listed
impairments.” [Doc 201, at p.6, emphasis in original.]
In reviewing the proposed standard, the Court is rather puzzled by the
plaintiffs' objections since a good faith application of the proposed
standard would provide an individualized consideration and clearly does
not prevent each consideration of create a sham method of consideration.
Magistrate Judge Murrian reached essentially the same conclusion. Absent a
showing that in a particular case the defendant is not actually engaging
in an individualized evaluation, this Court will not entertain merely
speculative arguments concerning the manner in which the defendant may or
may not comply with the orders of this Court. The Court is of the opinion
that Magistrate Judge Murrian's Report and Recommendation properly
determined that SSR
91-3p “corrects the previous inadequacies of the Secretary's
process for evaluating surviving spouse disability claims; that the policy
and process set forth therein is consistent with the orders of this court,
sixth circuit precedent, and the Social Security Act ... .” [Doc
200, at p.22]
Accordingly the Court AFFIRMS the Report and Recommendation of the United
States Magistrate Judge Robert P. Murrian [doc.200] and ADOPTS this Report
and Recommendation as the opinion of this Court and therefore ORDERS that
the objections of the plaintiffs to this Report and Recommendation and to
the new process and implementing instructions are OVERRULED. The Court
further ORDERS that the defendant's motion to confirm new process and
implementing instructions [docs. 193, 193A, 194] is GRANTED.
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ENTER:
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_______/s/_____________
Leon Jordon
United States District Judge
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1. CLASS ACTION CODE: B G
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2. SOCIAL SECURITY NUMBER
[____] [____] [____] - [____] [____] - [____] [____] [____] [____]
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3. BIC [___] [___] |
DATE (Month, Day, Year)
Example: May 19, 1992 is 05-19-92
____ - ____ - ____
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MEMBER (J) ____
NONMEMBER (F)____
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4. NAME (First Name, Middle Initial, Last Name)
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5. SCREENOUT CODE
[____]-[____]] (see item 13 for screenout codes)
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6. Is this a Title II disabled widow/widower or surviving divorced spouse claim?
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Yes___No___
(if No go to 13)
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7. Did the individual reside in the State of Tennessee at the time the decision was issued?
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Yes___No___
(if No go to 13)
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8. Was a less than fully favorable determination/decision issued on this claim at any administrative level by the Tennessee DDS or OHA after August 14, 1988, or was notice of such decision received after August 19,1988? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.)
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Yes___No___
(if No go to 13)
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9. Was the denial/cessation of benefits for some reason other than claimant's medical condition (e.g., SGA)?
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Yes___No___
(if No go to 13)
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10. Did the claimant receive a subsequent fully fully favorable decision which covered the timeframe at issue in the potential Begley claim and forestalls receipt of any additional benefits?
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Yes___No___
(if No go to 13)
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11. Was a claim for title XVI or title II worker's disability covering the timeframe at issue in the potential Begley claim, concurrently denied/ceased at steps 4 or 5 of the sequential evaluation process?
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Yes___No___
(if No go to 13)
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12. Did the claimant receive a final adverse disability (medical) determination/decision after May 22, 1991,on the potential Begley claim or a subsequent claim, which covered the timeframe at issue in the potential Begley claim?
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Yes___No___
(if No go to 13)
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13. The responder is not a Begley class member. Check the NONMEMBER block in item 3 and enter the screenout code in item 5 as follows:
Enter 06 if question 6 was answered “NO”.
Enter 07 if question 7 was answered “NO”.
Enter 08 if question 8 was answered “NO”.
Enter 09 if question 9 was answered “YES”.
Enter 10 if question 10 was answered “YES”.
Enter 11 if question 11 was answered “YES”.
Enter 12 if question 12 was answered “YES”.
No other screenout code entry is appropriate.
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SIGNATURE OF REVIEWER
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DATE
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Enter dates of all applications screened.
_______________ _______________ _______________ _______________
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BEGLEY SCREENING SHEET INSTRUCTIONS
Questions 2 - 5
Fill in wage earner's SSN, widow(er)'s or surviving divorced spouse's
name, and current date. Also, enter the member/non-member information, and
the screenout code, if appropriate, once screening has been
completed.
Question 6
Screen for claim type. If question is answered “No”, enter
the appropriate screenout code in item 5 as directed in item 13 on the
screening sheet and check the non-member block in item 3.
Question 7
Screen for residency. If question is answered “No”, enter the
appropriate screenout code in item 5 as directed in item 13 on the
screening sheet. Remember to check the non-member block found in item 3 of
the screening sheet.
Question 8
Screen for date of decision, not application. Individuals are class
members if they received a denial, cessation or less than fully favorable
decision (e.g., later onset, closed period, payment of benefits beginning
1/1/91 under OBRA despite an earlier onset) which became the final
decision of the Secretary. (Note: Although not the “final decision
of the Secretary” an Appeals Council denial of a request for review
is the last action of the Secretary, and the date of such a denial
controls for class membership screening purposes.) If the answer to 8 is
“No”, enter the appropriate screenout code in item 5 as
directed in item 13 on the screening sheet and check the non-member block
in item 3.
Question 9
To answer this question look for non-medical denial codes in item 22 of
the SSA-831-U3 or SSA-833-U3, or on the SSA-3687-U2 or the SSA-3428-U2.
The non-medical denial codes are: N1, N2, L1, L2, M7, M8. (For a complete
list of DWB denial codes see
SM 00380.270.C.)
For cases previously decided at the OHA level, the answer can be found in
the Administrative Law Judge or Appeals Council decision. If the answer to
question 9 is “Yes”, enter the appropriate screenout code in
item 5 as directed in item 13 on the screening sheet. Remember to check
the non-member block found in item 3 of the screening sheet.
Question 10
Review the file to determine whether benefits were subsequently allowed or
continued from the earliest alleged onset date, cessation date, or control
date within the timeframes for class membership (decision issued after
8/14/88, or notice of such decision received after 8/19/88).
The allowance or continuance could have been either on the same claim or
on a subsequent application. If the answer to question 10 is
“Yes”, enter the appropriate screenout code in item 5 as
directed in item 13 on the screening sheet. Remember to check the
non-member block found in item 3 of the screening sheet.
Question 11
Check file(s) and queries (e.g., ACT, SSID) to determine whether claimant
received a denial/cessation decision on a concurrent claim for SSI, or
worker's disability which covered the timeframe at issue in the
Begley claim. If so, review file(s) to determine
whether the claimant's residual functional capacity (RFC) was assessed.
The following codes in block 22 of the SSA-831-U3 and SSA-833-U3 indicate
denial/cessation on the basis that claimant retained the RFC to perform
SGA: H1, H2, J1, J2 and sometimes E3. For cases previously decided at the
OHA level, review the Administrative Law Judge or Appeals Council decision
to determine if the claimant's RFC was assessed. If the answer to question
11 is “Yes”, enter the appropriate screenout code in item 5
as directed in item 13 on the screening sheet and check the non-member
block in item 3 of the screening sheet.
Question 12
Check the file(s) to determine if claimant received a decision after May
22, 1991 on the Begley claim or a later DWB claim
which provided claimant with all relief to which he/she would be entitled
under Begley (i.e., adjudication of the entire
period at issue in the potential Begley class
member claim under the appropriate standard (i.e., OBRA 90 and
SSR 91-3p)). If the
answer to question 12 is “Yes”, enter the appropriate
screenout code in item 5 as directed in item 13 on the screening sheet. Be
sure to check the non-member block in item 3 of the screening sheet.
After signing the screening sheet, please remember to list the dates of
all applications for which determinations/decisions were screened to
determine class membership.
Instructions if Claimant is Determined to be a Class Member
a.
Retain the original screening sheet in the folder. Send a copy to
Begley Coordinator at:
3-K-26 Operations Building
Baltimore, Maryland
21235
NOTE: OHA screeners, see TI 5-429 for instructions.
Instructions if Claimant is Determined to be a Non-class Member
a.
Retain the original screening sheet in the folder. Send a copy to
Begley Coordinator at:
3-K-26 Operations Building
Baltimore, Maryland
21235
NOTE: OHA screeners, see TI 5-429 for instructions.
Attachment 4. - Route Slip or Case Flag for Screening
BEGLEY CLASS ACTION CASE
SCREENING NECESSARY
Claimant's name
___________________________
SSN ___________________________
The above-identified claimant may be a Begley 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, consolidation consideration and possible
readjudication. Please refer to TI 5-429 for additional information and
instructions.
Attachment 5. - Route Slip for Routing Class Member Alert and Prior Claim
Folder(s) to ODIO or PSC (OHA No Longer Has Current Claim)
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ROUTING AND TRANSMITTAL SLIP
|
DATE:
|
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TO:(Name/Office Symbol/Room Number/Building/Agency)
1.
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Initials
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Date
|
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2.
|
|
|
|
3.
|
|
|
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4.
|
|
|
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5.
|
|
|
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______
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ACTION |
______
|
FILE |
______
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NOTE AND RETURN |
|
___XX_
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APPROVAL |
______
|
FOR CLEARANCE |
______
|
PER CONVERSATION |
|
______
|
AS REQUESTED |
______
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FOR CORRECTION |
______
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PREPARE REPLY |
|
______
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CIRCULATE |
______
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FOR YOUR INFORMATION |
______
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SEE ME |
|
______
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COMMENT |
______
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INVESTIGATE |
______
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SIGNATURE |
|
______
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COORDINATION |
______
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JUSTIFY |
______
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OTHER |
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REMARKS
BEGLEY CASE
Claimant:___________________________
SSN:________________________________
OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records indicate that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the Tennessee DDS for screening and possible readjudication. SEE POMS DI 42598.005 A.5.
ATTACHMENT
|
|
FROM: (Name, Org. Symbol, Agency/Post)
Office of Hearings and Appeals
__________________________________________
|
SUITE/BUILDING
|
|
PHONE NUMBER
|
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020
Prescribed by GSA
FPMR (41 CFR) 101-11.206
Attachment 6. - Notice of Non-Class Membership
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY BENEFITS
PLEASE READ IT
CAREFULLY!
YOU ASKED US TO REVIEW YOUR CASE UNDER THE TERMS OF THE BEGLEY
V. SULLIVAN COURT DECISION. WE HAVE LOOKED AT YOUR CASE AND
DECIDED THAT YOU ARE NOT A BEGLEY CLASS MEMBER.
THIS MEANS THAT WE WILL NOT REVIEW OUR EARLIER DECISION TO DENY OR CEASE
YOUR BENEIFTS. THE REASON YOU ARE NOT A CLASS MEMBER UNDER THE
BEGLEY COURT DECISION IS CHECKED BELOW.
WHY YOU ARE NOT A CLASS MEMBER
YOU ARE NOT A BEGLEY CLASS MEMBER BECAUSE:
YOU DID NOT RESIDE IN THE STATE OF TENNESSEE.
YOU DID NOT RECEIVE A DECISION BY THE TENNESSEE DISABILITY DETERMINATION
SERVICE (DDS) OR THE OFFICE OF HEARINGS AND APPEALS DENYING/CEASING
DISABILITY BENEFITS AFTER AUGUST 19, 1988 OR YOUR NOTICE BY THE TENNESSEE
DDS OR THE OFFICE OF HEARINGS AND APPEALS DENYING/CEASING DISABILITY
BENEFITS WAS NOT DATED AFTER AUGUST 14, 1988.
YOUR BENEFITS WERE DENIED/CEASED FOR SOME REASON OTHER THAN YOUR MEDICAL
CONDITION. THAT REASON WAS
_____________________________________________________________________
YOU HAVE RECEIVED A SUBSEQUENT FULLY FAVORABLE REVERSAL OF THE PRIOR
DENIAL/CESSATION DECISION. WE WILL BE IN TOUCH WITH YOU IF YOU ARE OWED
ANY ADDITIONAL RETROACTIVE BENEFITS.
OTHER ______________________________________________________
__________________________________________________________________
WE ARE NOT DECIDING IF 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 A
BEGLEY CLASS MEMBER.
IF YOU DISAGREE WITH THIS DETERMINATION
IF YOU WANT US TO REVIEW THE DETERMINATION THAT YOU ARE NOT A CLASS
MEMBER, YOU MUST ASK US TO DO SO WITHIN 60 DAYS OF THE DATE OF THIS
NOTICE.
IF A REPRESENTATIVE IS HANDLING YOUR SOCIAL SECURITY CLAIM, YOU MAY WANT
TO TELL HIM OR HER ABOUT THIS LETTER. IF YOU DO NOT HAVE A LAWYER OR
REPRESENTATIVE YOU MAY WANT TO CONTACT THE FOLLOWING:
RURAL LEGAL SERVICES OF TENNESSEE, INC.,
P.O.
BOX 5209
OAK RIDGE, TN 37831
ATTN: MR. LENNY L.
CROCE
TELEPHONE: (615) 483-8454
IF YOU HAVE ANY QUESTIONS, YOU MAY CALL, WRITE OR VISIT ANY SOCIAL
SECUTIRY OFFICE. IF YOU WISH TO CALL OR VISIT YOUR LOCAL OFFICE, THE
ADDRESS AND TELEPHONE NUMBER APPEAR ON THE TOP OF THIS NOTICE. IF YOU
VISIT A SOCIAL SECURITY OFFICE, PLEASE BRING THIS LETTER WITH YOU. IT WILL
HELP US ANSWER YOUR QUESTIONS.
cc:
Lenny L. Croce
Class Counsel
Attachment 7. - Route Slip or Case Flag for Routing Non-Class Member Claim
Folders to a Servicing Field Office
BEGLEY CLASS ACTION
NON-CLASS MEMBER CASE
75-DAY HOLD NECESSARY
Claimant's name___________________________
SSN___________________________
The above-identified claimant has been determined to be a non-class
member. Accordingly, we are forwarding the attached claim folder(s) to
your location to be held for 75 days pending possible appeal of the
non-class member determination. We are forwarding the attached claim
folder(s) to:
Social Security Administration
530 Gay Street,
Suite 425
P.O. Box 1312
Knoxville, TN 37902
(Destination Code H38)
Attachment 8. - Route Slip or Case Flag for HO Use (for DDS
Readjudication)
BEGLEY CLASS ACTION CASE
READJUDICATION NECESSARY
Claimant's name___________________________
SSN___________________________
The above-identified claimant is a Begley class
member. The attached Begley prior claim folder was
forwarded to this hearing office for possible consolidation with a current
claim.
_____ The Administrative Law Judge has determined that the prior and
current claims do not share a common issue and, therefore, should not be
consolidated.
or
_____ The claims have not been consolidated because
(state reason(s))
___________________________________.
Accordingly, we are forwarding the attached alert and prior claim
folder(s) to your location for any necessary Begley
readjudication action.
We are sending the alert and prior file(s) to:
Disability Determination Section
Division of Rehabilitation
Services
400 Deadrick Street, 11th Fl.
P.O. Box
77
Nashville, Tennessee 37202
(Destination code S48.)
Attachment 9. -
Sample Dismissal Order Language
On ___________, the claimant filed a request for hearing on the issue(s)
raised by (his/her) application(s)
dated ___________. The claimant has now been identified as a member of the
Begley class and is entitled to have the final
administrative denial of (his/her)
prior application(s) reviewed under the terms of the district court's
November 19, 1990 order. Because the claims share common issues, 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 Tennessee State Disability Determination
Section, which will conduct the Begley
review.
Attachment 10. - Route Slip or Case Flag for Headquarters Use (DDS
Readjudication)
BEGLEY CLASS ACTION
READJUDICATION NECESSARY
Claimant's name
___________________________
SSN ___________________________
The above-identified claimant is a Begley class
member. The attached Begley 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:
Disability Determination Section
Division of Rehabilitation
Services
400 Deadrick Street, 11th Fl.
P.O. Box
775
Nashville, Tennessee 37202
(Destination code S48.)