Caswell v. Califano, Civ. No. 76-25-ND.

• Decision Date: 19 July 1977
• Docket Number: Civ. No. 76-25-ND.
• Citation: 435 F. Supp. 127
• Parties: Leonard CASWELL, Paula Cox, Charlotte Jackson, Jean LaForest, Arlene Philbrick, Arthur Shepard, Mildred Smith, George W. Snow, Individually and on behalf of all others similarly situated, Plaintiffs, v. Joseph A. CALIFANO, Jr., as Secretary of the Department of Health, Education and Welfare of the United States, Defendant.
• Court: U.S. District Court — District of Maine

435 F. Supp. 127

Leonard CASWELL, Paula Cox, Charlotte Jackson, Jean LaForest, Arlene Philbrick, Arthur Shepard, Mildred Smith, George W. Snow, Individually and on behalf of all others similarly situated, Plaintiffs, v. Joseph A. CALIFANO, Jr., as Secretary of the Department of Health, Education and Welfare of the United States, Defendant.

Civ. No. 76-25-ND.

United States District Court, D. Maine, N. D.

July 19, 1977.

John Whitehouse Cobb, Bangor, Me., for plaintiffs.

George J. Mitchell, U.S. Atty., Portland, Me., Lawrence E. Burstein, Asst. Regional Atty., Dept. of HEW, Boston, Mass., for defendant.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

Leonard Caswell and seven other named plaintiffs¹ have brought this action on behalf of themselves and all others similarly situated against the Secretary of the Department of Health, Education, and Welfare seeking an end to extensive delays in the scheduling of the administrative hearings afforded to applicants for Social Security disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 405(b), 423, and its implementing regulation, 20 C.F.R. § 404.917. The complaint sets forth three causes of action against the Secretary: (1) Count I alleges that failure to provide a prompt hearing to challenge the denial of benefits violates 42 U.S.C. §§ 405(b), 423; (2) Count II asserts a violation of the sections of the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 706(1), which provide that agency action must be taken "within a reasonable time" and that a federal court may compel agency action unreasonably delayed; and (3) Count III alleges a deprivation of a statutory benefit without due process of law in violation of the Fifth Amendment. Jurisdiction is variously asserted pursuant to 28 U.S.C. §§ 1331 and 1361; 5 U.S.C. §§ 701-704, 706; and 42 U.S.C. § 405(g). The amount in controversy is alleged to exceed $10,000, exclusive of interest and costs. Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and injunctive relief mandating a time limit within which the statutory hearings must be held. They also request that defendant be directed to provide interim disability benefits to those applicants for whom hearings are not scheduled in accordance with the Court's order. Ninety days is advanced as the optimum time period in which a hearing should be scheduled.²

By order of May 5, 1976, and without objection, plaintiffs' class was certified as all residents of the District of Maine who have applied for Social Security disability benefits pursuant to 42 U.S.C. § 423; who have received a notice of initial determination from defendant denying their applications; who have received a notice of reconsideration determination from defendant affirming the initial denial; who have filed a timely request for hearing pursuant to 42 U.S.C. § 405; whose request for hearing has been pending for sixty days or longer; and for whom a hearing date has not been scheduled. Plaintiffs and defendant have attempted over the past year to achieve an informal reconciliation and settlement that would dispose of the pending backlog of Social Security disability cases and assure timely disposition of future requests for hearing. These efforts have, however, reached an impasse.

Presently before the Court is plaintiffs' motion for summary judgment. Concurring with the views expressed by the three district courts which have granted relief in analogous cases (Barnett v. Weinberger, Civ. No. 74-270 (D.Vt. opinions of May 5, 1975, January 13, 1976) and Barnett v. Mathews (D.Vt. opinion of February 22, 1977); White v. Mathews, 434 F.Supp. 1252 (D.Conn.1976); Blankenship v. Mathews, Civ. No. C 75-0185 L(A) (W.D.Ky. opinion of May 6, 1976), the Court holds that it has jurisdiction of the action; that the pleadings, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact; and that plaintiffs are entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). Plaintiffs' motion for summary judgment is therefore granted.

I. Factual Background

A. Statutory and Regulatory Provisions

The Title II disability insurance program is administered jointly by state and federal agencies. The initial determination whether a covered worker is disabled is made by the state agency pursuant to standards and procedures prescribed by the Secretary, 42 U.S.C. § 421(a), (b).³ To establish an initial entitlement to disability benefits under Title II, a wage earner must demonstrate that he is unable

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 expected to last for a continuous period of not less than 12 months . . ..

42 U.S.C. § 423(d)(1)(A). The evidence presented by the applicant must establish the existence of a disability by means of "medically acceptable clinical and laboratory diagnostic techniques," id. § 423(d)(3), and that the disability is of such severity that

the applicant is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether specific job vacancy exists for him, or whether he would be hired if he applied for work.

Id. § 423(d)(2)(A). Eligibility for disability benefits is not based directly on financial need. The level of benefit payments is based on several factors, including age and the prior average monthly earnings of the applicant while employed.

Once a wage earner files an application for benefits under § 423, an initial determination of eligibility is made by the Social Security Administration (SSA). 20 C.F.R. §§ 404.905-404.908. If the result is adverse to the applicant, he may request de novo reconsideration of the decision and submit additional evidence. 20 C.F.R. §§ 404.909-404.916. This review includes no face-to-face meeting and is based upon forms completed by the applicant and affidavits. Idem. If the initial decision is affirmed, the applicant has a right to a hearing before an SSA Bureau of Hearings and Appeals administrative law judge. 42 U.S.C. §§ 405(b), 421(d); 20 C.F.R. §§ 404.917-404.941. At this stage a full evidentiary hearing is held with the applicant present, and the record of this proceeding forms the basis for any subsequent review. Idem. Continued denial of benefits may be reviewed by the SSA Appeals Council in its discretion. Judicial review of the "final decision" of the Secretary is guaranteed by statute. 42 U.S.C. § 405(g). Plaintiffs do not challenge the statutory scheme but seek only the opportunity to avail themselves of its procedures within a reasonable time frame.

B. The Backlog and Remedial Action Taken

The backlog of Title II disability cases following request for hearing before an administrative law judge is national in scope. The situation reached "crisis" proportions in April 1975 with a national backlog of pending hearing requests of 113,000, an increase from 36,780 in 1973. Requests for hearings substantially increased in the years immediately preceding the commencement of this litigation due to the large volume of "black lung" cases filed under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 901 et seq. and the enactment of Title XVI of the Social Security Act, Supplemental Security Income for the Aged, Blind and Disabled (SSI), 42 U.S.C. §§ 1381-1383c. "Black lung" and SSI appeals have substantially increased the work load of the Title II judges. Congressional hearings were held on the backlog throughout 1975 and remedial legislation to provide greater flexibility in the use of SSA resources for administrative hearings was signed into law in January 1976. Public Law 94-202, Section 3, 42 U.S.C. § 1383, note (1977 Supp.), provides temporary authority to the Secretary to shift SSI hearing examiners to consider Title II appeals. The expressed hope of the legislation's sponsors was that by mid-1977 the backlog of Title II cases would be brought under control and hearings before administrative law judges could be scheduled within 90 days. S. Rep. No. 94-550, 94th Cong., 1st Sess., 1975 U.S. Code Cong. & Admin. News 2349.⁴

Congress was overly optimistic. The following statistics relevant to this particular litigation are undisputed. As of May 1976 the average waiting time between request for hearing and the scheduled date of hearing was 11.5 months for the New England Region, which includes the State of Maine. Within this State, persons who had hearings scheduled in March 1976 had filed requests for hearing an average of 334 days, or roughly 11 months, earlier. The median elapsed time between request and hearing was 367 days, or 12 months.⁵ The named plaintiffs in this action had an average elapsed time from request to hearing of 398 days, or 13 months, ranging from 369 to 439 days. The average elapsed time from request to date of decision was 569 days, or nearly nineteen months, ranging from 513 to 694 days. Title II cases within this State for which requests for hearing have been received by the Administration but without hearing scheduled after 180 days have decreased over time but were still substantial as of November 1976: 90 cases in January 1976, 144 cases in April 1976, 50 cases in October 1976, 57 cases in November 1976.

Within the New England Region, 45 percent of those claimants for disability benefits who choose to appeal an adverse reconsideration decision achieve reversal and a favorable outcome following hearing. Thus, as a result of these lengthy delays, nearly half of plaintiff class is subjected to prolonged deprivation of benefits to which they are legitimately entitled.

Defendant has attempted to reduce the backlog of cases. A new hearing...