Hyatt v. Sullivan
| Decision Date | 25 May 1990 |
| Docket Number | Nos. 88-2983,89-2671,s. 88-2983 |
| Citation | 899 F.2d 329 |
| Parties | , Unempl.Ins.Rep. CCH 15326A Patrick H. HYATT, SSN 248-50-1848; Herman O. Caudle; Mary P. Lovingood, on Behalf of themselves and all others similarly situated; North Carolina Department of Human Resources # 14, Plaintiffs-Appellees, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellant. Patrick H. HYATT, SSN 248-50-1848; Herman O. Caudle; Mary P. Lovingood, on Behalf of themselves and all others similarly situated; North Carolina Department of Human Resources # 14, Plaintiffs-Appellees, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Howard Stanley Scher (argued), U.S. Dept. of Justice, Washington, D.C., Stuart Schiffer, Acting Asst. Atty. Gen., William Kanter, Civil Div., U.S. Dept. of Justice, Washington, D.C.; Thomas J. Ashcraft, U.S. Atty., Charlotte, N.C., on brief, for appellant.
John Robbins Wester (argued), Dan T. Coenen, Jane S. Ratteree, Robinson, Bradshaw & Hinson, P.A., Charles McB. Sasser, Cox, Gage & Sasser, on brief, Charlotte, N.C., for appellees.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
In this consolidated appeal, the Secretary of Health and Human Services challenges three orders in a class action suit which challenged the Secretary's policy of non-acquiescence in this circuit's law with respect to pain. The district court ordered the Secretary to issue a specific regulation with regard to the decision of pain cases in North Carolina under Fourth Circuit law. It additionally extended the class to include claimants whose claims were denied up until the point when the Secretary issued the new regulation. The district court also ordered the Secretary to keep the plaintiffs' counsel apprised of any new regulations dealing with pain cases for the next five years. The Secretary appeals, arguing that his pre-Hyatt regulation, SSR 82-58, was a correct statement of the law; that even if SSR 82-58 was not correct, the district court improperly expanded the class to include later claimants because his post-Hyatt regulations were consistent with Fourth Circuit law; that even if they were not consistent, the district court acted improperly in drafting a regulation; and that requiring the Secretary to report new regulations to the plaintiffs' counsel interferes too much with the Secretary's administrative processes. We affirm in part, require amendments, vacate in part, and remand.
The present case began as a class action which alleged that the Secretary did not follow the decisional law of the Fourth Circuit in adjudicating cases within the Fourth Circuit. The district court certified the class, enjoined the Secretary from not acquiescing in Fourth Circuit law, and granted attorneys' fees. Hyatt v. Heckler, 579 F.Supp. 985 (W.D.N.C.1984); Hyatt v. Heckler, 586 F.Supp. 1154 (W.D.N.C.1984). The Secretary appealed to this court. In the interim, Congress passed the Disability Benefits Reform Act of 1984 (DIBRA) 1 which had significant impact on the case. We vacated the district court's decision to allow the Secretary to reconsider his policy of non-acquiescence in light of DIBRA and held that the district court's class certification should not have included claimants for initial benefits who had not exhausted administrative remedies. Hyatt v. Heckler, 757 F.2d 1455 (4th Cir.1985) (Hyatt I ). The Supreme Court vacated our decision and remanded for us to further consider in light of Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). Hyatt v. Bowen, 476 U.S. 1167, 106 S.Ct. 2886, 90 L.Ed.2d 974 (1986). On remand, we noted that "the separation of powers doctrine requires that administrative agencies follow the law of the circuit whose courts have jurisdiction over the cause of action." Hyatt v. Heckler, 807 F.2d 376, 379 (4th Cir.1986), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 41 (1987) (Hyatt II ). We found not clearly erroneous the district court's finding of fact as to the Secretary's refusal to follow Fourth Circuit law regarding diabetes, hypertension, and pain. We compared the Hyatt claimants to the claimants in Bowen in that "they could not know that those adverse decisions had been made on the basis of a systematic unpublished irregularity." We declined, though, to affirm the injunctive relief, believing that such an action would be outside the remand order. We did note that the plaintiffs were the prevailing party because they achieved their principal goal of having their claims evaluated free of the Secretary's non-acquiescence policy.
On remand the district court ordered that the Secretary reevaluate the claims under Fourth Circuit law. Hyatt v. Heckler, 711 F.Supp. 837 (W.D.N.C.1989). The Secretary suggested reevaluation under a myriad of rulings including Social Security Ruling (SSR) 88-13, Program Operation Manual System (POMS) Secs. DI 24501.025, DI 24510.030, and DI 24515.060. The district court found that these instructions embodied "no meaningful change" from the Secretary's earlier non-acquiescence position. On August 8, 1988, the plaintiffs filed a motion for enforcement of the judgment. On October 21, 1988 2, the district court issued an order which found that the Secretary continued to deny, in violation of Fourth Circuit law, claims for disability in North Carolina because claimants could not present objective evidence of the degree of pain. In a March 31, 1989, order, the district court decided that the questioned POMS, SSR 88-13, and the Secretary's proposed Hyatt instructions do not conform to Fourth Circuit law because they do not state the rule in Myers v. Califano, 611 F.2d 980 (4th Cir.1980), do not acknowledge the Secretary's past policy of non-acquiescence, and retain part of SSR 82-58. The district court ordered the Secretary to cancel and rescind for North Carolina SSR 88-13, POMS Secs. DI 24515.060, DI 24501.025, and DI 24510.030. The district court drafted a new SSR on pain for the Secretary to distribute to North Carolina adjudicators and ordered the Secretary to give any new pain regulations to plaintiffs' counsel for the next five years. It also extended the closing date of the class from May 31, 1987, to the future date when the new SSR would be issued. The Secretary appeals from the orders of October 21, 1988, and March 31, 1989.
The Secretary begins by arguing that SSR 82-58 was ratified by Congress in DIBRA and therefore supersedes Fourth Circuit pain law. There is nothing in DIBRA, however, to support the Secretary's assertion that SSR 82-58 was codified by Congress when it enacted DIBRA. The fatal flaw in SSR 82-58 is that it goes beyond the requirements in DIBRA in requiring objective evidence. DIBRA requires objective medical evidence of an underlying condition that could reasonably produce the pain alleged. SSR 82-58 requires not only objective findings as to the underlying condition but requires objective findings as to the pain's intensity, persistence, and effect on the individual's work capacity. Such a position is contrary to Fourth Circuit case law. See Walker v. Bowen, 889 F.2d 47 (4th Cir.1989); Foster v. Heckler, 780 F.2d 1125 (4th Cir.1986); Myers v. Califano, 611 F.2d 980 (4th Cir.1980). 3 The Secretary's continuing effort to stand by SSR 82-58 is difficult to understand given our opinions in Hyatt I and Hyatt II. We remanded this case in order for the claims to be reconsidered free of the Secretary's policy of non-acquiescence. If, indeed, SSR 82-58 was a correct statement of the law, there would have been no need to reconsider the claims. Additionally, in Hyatt II, we found not clearly erroneous the district court's finding of fact that "a number of claimants were denied a complete evaluation of their actual ability to engage in substantial gainful activity solely because of the Secretary's regulation SSR 82-58." Hyatt v. Heckler, 807 F.2d 376, 379-80 (4th Cir.1986) (emphasis added). SSR 82-58 was and continues to be rejected by this court.
The Secretary further argues that DIBRA changed Fourth Circuit pain law. That argument is disposed of by the fact that we have previously found "the Disability Reform Act standard for evaluating pain to be consistent with prior case law of this Circuit." Foster v. Heckler, 780 F.2d 1125, 1129 n. 7 (4th Cir.1986). 4
The Secretary next argues that the district court improperly found that he continued to apply the improper pain standard after DIBRA and therefore improperly expanded the class after May 31, 1987. The Secretary offers excerpts from POMS Sec. DI 24515.060, circulars sent to Office of Hearing and Appeals (OHA) adjudicators, his Hyatt instructions, and SSR 88-13 attempting to show compliance with circuit precedent. The district court found that the new pain instructions were insufficient to prevent further confusion and "inadequate to achieve compliance" with circuit precedent. It concluded that the Secretary's pain instructions issued since DIBRA convey the message to North Carolina adjudicators that there has been "no meaningful change" from his policy of non-acquiescence. We fail to see how this ruling is erroneous.
The district court based its conclusions on various factors including the fact that the Secretary's new pain regulation, SSR 88-13, states that its purpose is "to reiterate our policy on the evaluation of pain." That court also considered that the Secretary's refusal to inform social security adjudicators that its past policy regarding pain was improper needlessly confuses adjudicators. Such a refusal would seem to indicate the Secretary has not firmly decided to abandon his policy of non-acquiescence in circuit law. 5
The district court also relied on the fact that...
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