Mullins v. Sullivan, Civ. A. No. 87-0077-B

Citation775 F. Supp. 198
Decision Date04 October 1991
Docket Number91-0035-B,91-0032-B,90-0123-B,91-0039-B and 88-0177-B.,87-0163-B,91-0003-B,91-0021-B,Civ. A. No. 87-0077-B,90-0160-A,91-0005-B
PartiesMack MULLINS, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Susie J. BARTON, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Betty Jo WELCH, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Jackie ADAMS, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Earl W. BRITTON, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Jerry BELL, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Glen D. STAPLETON, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Richard HAMLET, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Norman SUTHERLAND, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Elmer BOWMAN, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant. Calvin B. LAWSON, SSN: XXX-XX-XXXX, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant.
CourtU.S. District Court — Western District of Virginia

Larry G. Browning, Lebanon, Va., Joseph E. Wolfe, Norton, Va., H. Ronnie Montgomery, Jonesville, Va., for plaintiffs.

Jean M. Barrett, Kenneth Sorenson, E. Montgomery Tucker, Ray B. Fitzgerald, Jr., Roanoke, Va., for defendant.

MEMORANDUM OPINION

GLEN M. WILLIAMS, Senior District Judge and CYNTHIA D. KINSER, United States Magistrate Judge.

Plaintiffs filed these actions challenging the final decisions of the Secretary of Health and Human Services ("Secretary"), denying their claims for disability insurance benefits and/or supplemental security income benefits under Titles II and XVI of the Social Security Act ("Act"), respectively. 42 U.S.C. §§ 416(i) and 423, and 42 U.S.C. § 1381 et seq. respectively. Jurisdiction of this court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

In each case, plaintiff alleged that a mental impairment contributed to his or her disability. Consequently, the Secretary requested that each plaintiff undergo a consultative psychiatric or psychological evaluation. The Secretary provided the consultative examiners with a form on which to assess plaintiffs' mental abilities to perform work-related activities. Because the form was different from "Form SSA-1152 (4-84) Test" ("SSA-1152"), the court consolidated these cases in an order dated June 17, 1991 for consideration of whether the Secretary can use this "revised form."1 For the reasons stated hereinafter, the court finds that the plaintiffs have not been prejudiced by the use of the "revised form."2

I.

Form SSA-1152 (app. 1) is designed to assess a claimant's mental ability to perform work-related activities. It is divided into three sections, (1) making occupational adjustments, (2) making performance adjustments, and (3) making personal-social adjustments. Each section is subdivided into categories of work-related activities. For example, in the category making occupational adjustments, the psychiatrist or psychologist must evaluate a claimant's ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, deal with work stresses, function independently and maintain attention and concentration. In assessing each work-related activity, the medical evaluator has to indicate whether the claimant's ability is "unlimited/very good," "good," "fair," or "poor or none." These terms are defined as follows:

Unlimited or Very Good — Ability to function in this area is more than satisfactory.
Good — Ability to function in this area is limited but satisfactory.
Fair — Ability to function in this area is seriously limited, but not precluded.
Poor or None — No useful ability to function in this area.

Form SSA-1152. (app. 1).

The "revised form" (app. 2) has all the same sections and categories of work-related activities, but it contains five levels of rating a claimant's ability instead of four and defines some of the terms differently. On the "revised form," the terms are defined as follows:

Unlimited — Ability to function in this area is not limited by a mental impairment.
Good — Ability to function in this area is more than satisfactory.
Fair — Ability to function in this area is limited but satisfactory.
Poor — Ability to function in this area is seriously limited but not precluded.
None — No useful ability to function in this area.

"Revised Form." (app. 2). This form also contains a cautionary note to the evaluator that the definitions are different than those previously used. In all other respects, these two forms are identical.

In 1983, the Social Security Administration's Office of Disability in conjunction with the Office of Hearings and Appeals ("OHA"), established a work group for the purpose of developing a means of obtaining medical assessments that would satisfy the requirements of 20 C.F.R. §§ 404.1513(c)(2) and 416.913(c)(2).3 These sections require a medical assessment of a mental impairment to include a description of claimant's "ability to reason or make occupational, personal, or social adjustments." This work group developed SSA-1152 which was to be tested in several state disability determination services offices, but "the number of test forms returned did not approach the number needed to represent a statistically valid study." (app. 3). Nevertheless, OHA advised ALJ's and the Appeals Council to use SSA-1152 instead of an older form implemented in 1982.

Thereafter, the OHA in Middlesboro, Kentucky developed the "revised form" and sent it to the psychiatrists and psychologists to whom they referred claimants for evaluation of mental impairments. Some psychiatrists and psychologists were receiving and using both forms depending upon to which OHA a particular case was assigned. Other OHA's continued to use SSA-1152.

Upon learning of the Middlesboro OHA's use of the "revised form", the Chief Administrative Law Judge directed this office to stop using the "revised form" and instead to utilize SSA-1152. This OHA responded by stating that the use of SSA-1152 was not mandatory and therefore this office would continue to use the "revised form" because it's definitions were less ambiguous.

Plaintiffs, either at the administrative level or before this court, have objected to the use of the "revised form." They argue that the Social Security Administration has failed to follow its own rules and regulations, that this "revised form" has created confusion on the part of the psychiatrists and psychologists, and that their claims have been prejudiced.

II.

Relying upon this court's decision in Salling v. Bowen, 641 F.Supp. 1046 (W.D.Va.1986), plaintiffs contend that the use of the "revised form" violates the rules and regulations of the Social Security Administration and therefore also infringes upon their due process rights. In Salling, the court stated:

Another requirement of due process is that administrative agencies must follow their own rules. As was stated by the Court of Appeals for the Ninth Circuit: When administrative bodies promulgate rules or regulations to serve as guidelines, these guidelines should be followed. Failure to follow such guidelines tends to cause unjust discrimination and deny adequate notice contrary to fundamental concepts of fair play and due process. (Citations omitted).

Id. at 1070 (quoting NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19, 20 (9th Cir.1971)). This argument is predicated upon the premise that the use of SSA-1152 is an official rule or regulation of the Social Security Administration. Not only is it not part of any rule or regulation, but SSA-1152 is also not an official form of the Social Security Administration.

The Secretary's regulations require the use of only two forms, the application for disability insurance benefits and supplemental security income, and the Psychiatric Review Technique (PRT), to be completed by disability adjudicators when a claimant has a mental impairment. 20 C.F.R. §§ 404.611, 404.1520(a), 416.310, 416.920(a). The regulations do not mandate the use of SSA-1152 nor do they preclude its use or the use of any other document that will assist in assessing a claimant's mental impairment. The regulations allow a claimant with a mental impairment to submit a medical assessment concerning his "ability to reason or make occupational, personal, or social adjustments," but the form of the assessment is not prescribed. 20 C.F.R. §§ 404.1513(c)(2) and 416.913(c)(2). The regulations also authorize the Secretary to schedule and pay for consultative mental examinations when the evidence is not sufficient, but the consultative examiner is not required to use a particular form upon which to report his findings. 20 C.F.R. §§ 404.1517 and 416.917. The ALJ can admit into the record any evidence that he deems material. 20 C.F.R. §§ 404.944, 404.950, 416.1444 and 416.1450.

Likewise, SSA-1152 is not an "official form". To collect information by using a specified form, an agency must obtain approval from the Office of Management and Budget (OMB), and the form must display an OMB control number. 5 C.F.R. §§ 1320.4 and 1320.7(e)(1). The Secretary never followed these procedures concerning SSA-1152. While SSA-1152 still has on it the designation of "Test," the application for disability insurance benefits is designated as OMB No. 0960-0060.

A further indication that the use of SSA-1152 is not required is in the language of the Interim Circular No. 175, a part of the Office of Hearings and Appeals Handbook. (app. 3). This...

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