Hooker v. U.S. Dept. of Health and Human Services

• Decision Date: 29 September 1988
• Docket Number: No. 86-5721,86-5721
• Citation: 858 F.2d 525
• Parties: , Unempl.Ins.Rep. CCH 14191A Barbara HOOKER; Estate of Laurence Hooker; Daniel Hooker; William D. Hooker, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; United States of America; Edward Siacunco; R. Girard; Eugene Erman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 525

858 F.2d 525

23 Soc.Sec.Rep.Ser. 295, Unempl.Ins.Rep. CCH 14191A

Barbara HOOKER; Estate of Laurence Hooker; Daniel Hooker William D. Hooker, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES United States of America; Edward Siacunco; R Girard; Eugene Erman, Defendants-Appellees.

No. 86-5721.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1988.

Decided Sept. 29, 1988.

Dan Stormer, Litt & Stormer, Los Angeles, Cal., for plaintiffs-appellants.

Roger E. West, Asst. U.S. Atty., Asst. Chief, Civ. Div., Los Angeles, Cal., for federal defendants-appellees.

Michael B. Hughes, Deputy Atty. Gen., State of Cal., Los Angeles, Cal., for state defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, Chief Judge, HALL, Circuit Judge, and SCHNACKE, District Judge. ^*

CYNTHIA HOLCOMB HALL, Circuit Judge:

Plaintiffs-appellants Barbara Hooker and her two sons appeal from the district court's order dismissing their claims based upon the Social Security Administration's allegedly wrongful termination of disability benefits to Laurence Hooker ("Hooker"), plaintiffs' husband and father, respectively. Plaintiffs allege that Hooker committed suicide as a proximate result of the termination.

Plaintiffs maintain two sets of claims against three sets of defendants: (1) state law tort claims against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 1346(b); (2) pendent state law tort claims against two state defendants; and (3) a federal due process claim against a federal defendant and the two state defendants. ¹

I

Hooker began receiving disability benefits under Title II of the Social Security Act (the "Act") in May 1977, retroactive to December 1975, the date Hooker became unable to work due to mental and emotional problems.

In 1980, Congress passed legislation to tighten review of Title II benefits by the Social Security Administration ("SSA"). Social Security Disability Amendments of 1980, Pub.L. No. 96-265 Sec. 311(a), 94 Stat. 460 (codified as amended at 42 U.S.C. Sec. 421(i) (1982 & Supp. III 1985)). The new law required that SSA or an appropriate state agency review "for purposes of continuing eligibility" every beneficiary's file once every three years. 42 U.S.C. Sec. 421(i)(1). In preparation to meet these new statutory requirements, SSA initiated the 1980-81 Continuing Investigation Redesign Study ("CDI"), a program to determine the level of continuing eligibility of those persons then receiving benefits. Under CDI, Hooker's case was selected for review at random, along with 25,000 others throughout the United States, to determine continuing eligibility for disability benefits.

On September 25, 1980, state defendant Edward Siacunco, a Disability Evaluation Analyst for the California Department of Social Services ("California DSS"), notified Hooker that his disability status was being reevaluated by California DSS pursuant to the state's agreement with SSA. California DSS acted under guidelines for disability determinations set out in the "Program Operations Manual System" ("POMS") published by SSA. The identical criteria are listed in 20 C.F.R. Part 404, subpt. P, app. 1 (1988).

In response to the enclosed questionnaire, Hooker listed Don de Francisco and Reed Boswell as his treating physicians. Dr. de Francisco was Hooker's psychiatrist for one year prior to the reevaluation of Hooker's disability, and Dr. Boswell was Hooker's psychiatrist at the time Hooker was initially determined to be disabled from working. Dr. de Francisco submitted a medical report to Siacunco that diagnosed Hooker as a paranoid schizophrenic. Because of the conclusory nature of that report, however, California DSS ordered a consultative examination by Dr. Chiong, a psychiatrist selected by California DSS, who diagnosed Hooker as having only a paranoid personality disorder. Dr. Chiong reported that although "at present [Hooker] was disabled from working," he could be rehabilitated to perform certain jobs involving minimal contact with people, such as gardening.

On December 1, 1980, Siacunco notified Hooker that pursuant to SSA's request for redetermination of his eligibility, the evidence in the state's file indicated that he had been able to perform substantial gainful work since November 1980 and was no longer entitled to benefits. Siacunco concluded that "with continued appropriate medication you can do jobs which are simple and non-stressful." The letter invited submission of further information for reconsideration by California DSS of its preliminary determination of ineligibility, and stated that Hooker would be notified of the final decision by SSA. Subsequently, Barbara Hooker and Dr. de Francisco submitted letters detailing Hooker's personality disorders, work habits, and suicide attempts. While Dr. de Francisco stated that Hooker's paranoid schizophrenia was of extreme severity and long duration, he concluded that if certain specific work conditions were met, he would agree with California DSS's determination that Hooker was able to work. Dr. de Francisco doubted, however, whether a job involving "simple" and "non-stressful" work could be found to suit Hooker's particular impairment.

On December 26, 1980, California DSS sent to SSA a cessation of benefits letter signed by Siacunco. California DSS concluded that Hooker had a paranoid personality disorder but that his "current condition does not meet or equal listing[s] and is not of such severity to preclude simple work involving minimum contact with others." The letter listed various simple jobs, assertedly available within the regional economy, that Hooker was capable of undertaking. Relying on the reports of Drs. de Francisco and Chiong and the POMS, the letter concluded that Hooker's disability had ceased as of November 1980.

Hooker's file was subsequently transmitted to federal defendant Robert Girard's unit in Baltimore, Maryland for review of conformity with federal law. Girard was the Manager of Module 43, Branch 15 of SSA. The Office of Disability Programs, charged with evaluation of medical-based cessation determinations under CDI, reviewed the evidence relied upon by California DSS in its determination. Dr. Werner A. Kohlmeyer, Psychiatric Consultant for the Office of Disability Programs, concluded that Hooker's psychiatric condition was "moderately severe," and that his condition would impair his ability both to carry out instructions in a consistent manner and to work under normal job stress. Accordingly, on March 17, 1981, SSA submitted Hooker's file to California DSS for consideration of a continuance and for reconsideration based on SSA's finding that although Hooker did not meet the listings for impairment he still was unable to work in routine settings under "customary work pressures."

On March 31, 1981, Drs. Kleinman and Nemeth, psychiatrists employed by California DSS, reviewed Hooker's file. Dr. Kleinman noted that Hooker did not meet the listings for psychological impairment contained in the POMS. Both doctors referred to Dr. de Francisco's conclusion that Hooker could do simple, non-stressful work and Dr. Chiong's conclusion that Hooker could do work involving little contact with people. In addition, both Kleinman and Nemeth concluded that while Hooker was not prime employment material, the decision of the doctors who saw Hooker that he could work was "obviously judgmental." Accordingly, California DSS denied the continuance and returned Hooker's file to SSA in Baltimore without changing its decision to terminate Hooker's benefits.

Stanley Webber, a disability examiner for SSA, approved the cessation determination by California DSS, signing Girard's name on the same cessation letter that Siacunco had signed. The SSA sent a letter of acquiescence to California DSS. The letter concluded that based on SSA's "independent review of all the evidence in this case," Hooker was able to engage in "unskilled, non-stressful work at a [substantial gainful activity] level."

According to Barbara Hooker's uncontroverted declaration, Hooker's benefits ceased without prior notice in early September 1981. She first learned of the cessation by calling Hooker's bank and she became aware of Hooker's right to appeal by calling California DSS. Later that September, Hooker received a letter from California DSS demanding that he repay $6,000 in benefits accrued since January 1981, when his benefits purportedly should have ceased.

On November 6, 1981, Hooker requested reconsideration of the decision to terminate the benefits and to charge him for benefits already paid. He submitted no further evidence. On December 18, 1981, Disability Examiner K. Rasmussen and state defendant Dr. Eugene Erman, a physician employed by California DSS, concluded that Siacunco's original determination should be "affirmed as written." Hooker was notified on January 23, 1982 of the denial of his request for reconsideration and of his right to appeal the Secretary's determination to an Administrative Law Judge ("ALJ") within sixty days. He was informed of the basis for the decision to terminate his benefits and the criteria for eligibility.

Subsequently, Hooker's mental state allegedly deteriorated and he hanged himself on April 17, 1982. After Hooker's death, Barbara Hooker obtained a waiver of the time limit for appealing the Secretary's decision to an ALJ. On appeal, the ALJ ruled that the Secretary had incorrectly terminated Hooker's benefits because Hooker had met the listings for impairment set out in the POMS. See 20 C.F.R. Sec. 404.1520(d) (1987). The ALJ also ruled that Hooker's disability continued until the date of his death.

This suit followed. The district court ruled that 42 U.S.C. Sec. 405(h) and 28 U.S.C. Sec. 2680(a) barred jurisdiction over plaintiffs' FTCA claim against the United States. The court refused to...