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

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

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

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

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

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

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

BACKGROUND

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

At all stages of this administrative process, a five-step sequence is followed in determining whether a claimant is entitled to SSDI or SSI benefits. 20 C.F.R. §§ 404.1520, 416.920 (1986), see Bowen v. City of New York, supra , ___ U.S. at ___, 106 S. Ct. at 2025. A claimant triggers the sequence by alleging a disability, that is, the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuing period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Once triggered, the sequence in brief is as follows:

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

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

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

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

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

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

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

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

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

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

DISCUSSION

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

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

The Act provides generally that:

An individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any kind of substantial gainful work....

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

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

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

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

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

42 U.S.C. § 1382c(a)(5).

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

1. A. 

   Listings Analysis

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

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

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

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

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

2. B. 

   Residual Functional Capacity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   Id. at 1 (emphasis in original).

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

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

3. C. 

   Conclusion

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

IT IS SO ORDERED.

Dated: New York, New York

January 12, 1987

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

NOTES

1. 1. 

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

2. 2. 

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

3. 3. 

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

4. 4. 

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

5. 5. 

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

6. 6. 

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

7. 7. 

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

8. 8. 

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

9. 9. 

   Dr. Weber's deposition reads in part:

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

   A. No.

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

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

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

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

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

   A. No.

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

10. 10. 

    Dr. Bierenbaum's deposition reads in part:

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

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

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

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

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

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

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

    A. No.

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

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

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

    A. No.

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

    A. No.

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

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

    Q. In the absence of a second condition?

    A. No.

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

11. 11. 

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

12. 12. 

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

13. 13. 

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

14. 14. 

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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

 

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

 

Plaintiffs,

- against -

 

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

Commissioner of the Social Security
Administration; and THE UNITED STATES

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants.

 

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

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

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

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

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

1. A. 

   Substantive Relief

   1. 1. 

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

   2. 2. 

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

   3. 3. 

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

   4. 4. 

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

2. B. 

   Instructions

   1. 1. 

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

   2. 2. 

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

   3. 3. 

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

   4. 4. 

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

   5. 5. 

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

   6. 6. 

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

3. C. 

   Identification of Subclass Members

   1. 1. 

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

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

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

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

   2. 2. 

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

   3. 3. 

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

   4. 4. 

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

   5. 5. 

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

   6. 6. 

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

   7. 7. 

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

   8. 8. 

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

4. D. 

   Readjudications

   1. 1. 

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

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

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

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

   2. 2. 

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

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

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

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

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

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

   3. 3. 

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

   4. 4. 

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

   5. 5. 

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

   6. 6. 

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

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

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

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

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

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

   7. 7. 

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

5. E. 

   The Named Plaintiffs

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

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

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

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

   Cathryn Gibbons	Gladys Dominguez
   Luis Diaz	Haydee Guzman
   	Rafael Rivera

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

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

6. F. 

   Miscellaneous Provisions

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

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

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

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

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

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

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

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

Dated: New York, New York

December 4, 1989

 

                                                                                                                /s/                                                                                                ROBERT L. CARTER                                                                                     UNITED STATES DISTRICT JUDGE

 

Attachment 2. Route Slip or Case FLag For Screening

State of New York CLASS ACTION CASE

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN : __________________________________

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

Attachment 3. Screening Sheet

STATE OF NEW YORK

(THE EXERCISE TEST CASE) SCREENING SHEET

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

Attachment 4. Notice of Non-Class Membership

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

NON-CLASS MEMBER NOTICE

1. A. 

   WE HAVE DETERMINED THAT YOU ARE NOT ENTITLED TO RECEIVE A NEW DECISION IN THE STATE OF NEW YORK V. SULLIVAN (THE EXERCISE TEST CASE).

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

2. B. 

   WHY YOU WILL NOT RECEIVE A NEW DECISION

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

   1. 1. 

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

   2. 2. 

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

   3. 3. 

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

   4. 4. 

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

   5. 5. 

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

            _________________________________________________.

   6. 6. 

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

   7. 7. 

          [  ]  Other:___________________________________________.

          We looked at the decisions(s) dated:

            ________________________________________________.

3. C. 

   WE ARE NOT DECIDING WHETHER YOU ARE DISABLED

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

4. D. 

   WHAT YOU MAY DO IF YOU DISAGREE WITH THIS DETERMINATION

   1. 1. 

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

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

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

   2. 2. 

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

      The Office of the General Counsel
      Department of Health and Human Services
      Rm. 639 Altmeyer Bldg.
      6401 Security Blvd.
      Baltimore, MD 21235
      ATTN: The Exercise Test Case
   3. 3. 

      If you write or call to disagree with this determination, please do so as soon as possible. If you tell us about your disagreement within 60 days of the date of this notice, we will be able to review our records concerning your case much more quickly. If you have specific information regarding why you believe this determination is wrong, include that information in your written disagreement. Also, be sure to include your Social Security claim number, or a copy of this notice.

5. E. 

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

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

   1. 1. 

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

      (a)    In the New York city area call:

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

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

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

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

   2. 2. 

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

6. F. 

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

7. G. 

   IF YOU HAVE OTHER QUESTIONS

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

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

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

STATE OF NEW YORK CLASS ACTION
NONCLASS MEMBER CASE
65-DAY HOLD NECESSARY

Claimant's Name __________________________________

 

SSN                        __________________________________

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

Attachment 6. Notice of Class Membership

STATE OF NEW YORK CLASS MEMBER NOTICE

1. A. 

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

2. B. 

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

3. C. 

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

   1. 1. 

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

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

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

   2. 2. 

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

4. D. 

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

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

   [NOTE: 

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

Attachment 7. Route Slip or Case Flag for DDS Readjudication

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION NECESSARY

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

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION NECESSARY

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

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION   NECESSARY

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

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

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION NECESSARY

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

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

STATE OF NEW YORK CLASS ACTION CASE

READJUDICATION   NECESSARY

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

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

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

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

DETERMINING DISABILITY FOR CARDIOVASCULAR IMPAIRMENTS

1. A. 

   Policy

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

   1. 1. 

      Determinations at Step 2

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

      1. a. 

         myocardial infarction;

      2. b. 

         status post coronary artery bypass grafting;

      3. c. 

         status post coronary angioplasty;

      4. d. 

         heart transplant;

      5. e. 

         heart valve replacement;

      6. f. 

         valvuloplasty;

      7. g. 

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

   2. 2. 

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

      1. a. 

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

      2. b. 

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

      3. c. 

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

      4. d. 

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

         • •

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

         • •

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

         • •

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

         • •

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

      5. e. 

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

         • •

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

         • •

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

         • •

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

         • •

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

         • •

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

         • •

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

         • •

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

   3. 3. 

      Determinations at Steps 4 and 5 of the Sequential Evaluation Process

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

   Note: 

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

2. B. 

   Procedure

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

   1. 1. 

      Medical Evidence

      1. a. 

         Clinical history of impairment:

         • •

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

         • •

           clinical course since onset of illness;

         • •

           diagnosis;

         • •

           treatment and results of treatment;

         • •

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

         • •

           ability to perform work-related activity.

      2. b. 

         Physical examination findings (signs).

      3. c. 

         Results of laboratory tests available in evidence of record:

         • •

           resting electrocardiogram (ECG);

         • •

           chest x-ray;

         • •

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

         • •

           arteriogram;

         • •

           radionuclide studies (MUGA, thallium);

         • •

           echocardiogram;

         • •

           ambulatory ECG monitoring.

      4. d. 

         Treating physicians' opinions about a person's condition:

         • •

           clinical findings and diagnostic impression;

         • •

           what person can still do despite impairment;

         • •

           prognosis for improvement;

         • •

           presence of other relevant factors.

   2. 2. 

      Other Relevant Factors

      Consider:

      1. a. 

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

      2. b. 

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

      3. c. 

         Psychological stress.

      4. d. 

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

   3. 3. 

      Determination Rationale

      1. a. 

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

      2. b. 

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

         • •

           what specific evidence was considered;

         • •

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

         • •

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

         • •

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

         • •

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

      3. c. 

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

EVALUATING THE RESULTS OF TESTS

1. A. 

   Policy

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

   1. 1. 

      Coronary Arteriogram

      1. a. 

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

      2. b. 

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

      3. c. 

         Defines structural or anatomical abnormalities.

   2. 2. 

      Myocardial Perfusion Scan (Thallium Stress Test)

      1. a. 

         Images regional myocardial blood flow.

      2. b. 

         May provide data useful for confirming ischemia.

      3. c. 

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

   3. 3. 

      Ventriculography (Radionuclide MUGA Scans and Echocardiogra-phy)

      1. a. 

         Provides information on heart chamber size and valve anatomy.

      2. b. 

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

      3. c. 

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

      4. d. 

         Detects abnormalities such as cardiomyopathies and intracardiac tumors or masses.

      5. e. 

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

   4. 4. 

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

      1. a. 

         Provides a record to determine presence of dysrhythmias.

      2. b. 

         May provide suggestive evidence for ischemia.

   5. 5. 

      Exercise Test

      1. a. 

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

      2. b. 

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

      3. c. 

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

         • •

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

         • •

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

         • •

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