Samuels v. Heckler, 82-2827-M.

• Decision Date: 19 August 1986
• Docket Number: No. 82-2827-M.,82-2827-M.
• Citation: 668 F. Supp. 656
• Parties: Sam SAMUELS, et al., Plaintiffs, v. Margaret HECKLER and Herbert Brown, Defendants.
• Court: U.S. District Court — Western District of Tennessee

668 F. Supp. 656

Sam SAMUELS, et al., Plaintiffs, v. Margaret HECKLER and Herbert Brown, Defendants.

No. 82-2827-M.

United States District Court, W.D. Tennessee, W.D.

August 19, 1986.

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Donald Donati, Memphis, Tenn., Frank S. Bloch, Stephen F. Palevitz, Vanderbilt Legal Clinic, David Ettinger, Russell J. Overby, Legal Services of Middle Tennessee, Nashville, Tenn., Karen Dennis, Memphis Area Legal Services, Memphis, Tenn., for plaintiffs.

Lewis K. Wise, Susan Riley, Attys., Dept. of Justice, Civ. Div., Washington, D.C., W. Hickman Ewing, U.S. Atty., Memphis, Tenn., Frank J. Scanlon, Sr. Asst. Atty. Gen., Nashville, Tenn., for defendants.

ORDER ON PENDING MOTIONS

McRAE, District Judge.

There are several motions presently before the Court in this class action consisting of persons who were either denied or terminated from disability benefits under Title II (Social Security) or Title XVI (Supplemental Security Income) of the Social Security Act. The defendants in this case are Margaret Heckler, Secretary of the Department of Health and Human Services (the Secretary) and Herbert Brown (Brown), Administrator of the Tennessee Disability Determination Section (TDDS). The Court will address each motion separately.

A. Motions for Summary Judgment

The Court will first address the plaintiffs' and the defendants' Motions for Summary Judgment. Plaintiffs raise seven separate challenges to the policies or practices of the TDDS and/or Secretary Heckler. No material issues of fact are in dispute, and therefore the issues are ripe for adjudication. Each claim, along with any appropriate relief, will be discussed separately.

1. General Background

A full understanding of the issues in this case requires a familiarity with the way the Social Security Administration (SSA) determines disability and how appeals are handled.

Determinations of disability are made using a five-step "sequential evaluation process." At step one,

the Secretary determines whether an individual is engaged in "substantial gainful activity"; if so, benefits are denied. If not, the Secretary determines whether the claimant's medical condition or impairment is "severe"; if found "not severe," benefits are denied. Third, the Secretary determines whether the claimant suffers from an impairment acknowledged to be so severe that the claimant is presumed to be incapable of pursuing any gainful activity. If so, then the claimant meets or equals the Listing of Impairments and benefits are awarded. However, if the claimant's impairment does not satisfy the Listing of Impairments, the fourth step requires the Secretary to determine whether the individual has a sufficient "residual functional capacity" (RFC) to perform his former work. If so, benefits are denied. If an individual still has not been ruled ineligible for benefits, the fifth step requires the Secretary to take into account the additional considerations of age, education, and past work experience to determine whether the individual is capable of performing any other work available in the economy.

Mental Health Assn. of Minn. v. Heckler, 720 F.2d 965, 969 (8th Cir.1983) (citations omitted). At the fifth step a chart (called a grid) is employed which, based on a given RFC, takes into account the claimant's age, education, and past work experience to determine whether jobs exist in the national economy which he can perform. This grid, based on RFC, is used to determine whether disability benefits are paid.

There are four levels of evaluation within the agency before an appeal to federal court will lie. The first two levels, the initial determination and reconsideration stages, are administered by the TDDS according to policy statements issued by the SSA. These policy statements are called Program Operation Manual System (POMS) directives and are binding upon the agency. A de novo hearing before an Administrative Law Judge (ALJ) and review by the Appeals Council are the latter two stages of review. To guide decisions at these levels, the Secretary issues Social Security Rulings (SSR's) which mirror the content of the corresponding POMS directives used at the preceding levels.

2. Failure to Obtain Proper Medical Assessments

As part of its duty to secure evidence necessary to make disability determinations, TDDS obtains medical reports from both consultative and treating physicians. 20 C.F.R. § 404.1614(a). By regulation, these reports are required to include a medical assessment of the claimant's ability to do such work-related activities as standing, walking, lifting, etc. 20 C.F.R. § 404.1513. This information is to be complete enough to allow TDDS to make a determination of the claimant's residual functional capacity (RFC). Id. At one time, physician assessments were directly relied upon to fix RFC; however, in 1982, it was announced that ability to work would thereafter be determined by non-examining state agency medical doctors (SAMD), who were more familiar with the proper criteria. Although this change in policy ended the direct role of examining doctors in setting the RFC, their assessment of the claimants' ability to function is still required by 20 C.F.R. § 404.1513 (above), and Social Security Rulings and POMS continue to "stress the importance of obtaining evidence from medical sources identified by the claimant." Defendants' Motion for Summary Judgment at p. 25. Contrary to the protestations of the defendants, plaintiffs do not challenge this change. Rather, plaintiffs only object to the response of TDDS.

In March 1982, TDDS began instructing its consulting physicians not only to refrain from making assessments of RFC, but also to exclude from their reports any comments on the claimant's abilities to walk, lift, etc. Request for Admissions, Brown's Response to No. 1, p. 5. Nor was any effort made to obtain this information from treating physicians. This results in making the conclusions of the non-examining agency doctor the only evidence of a claimant's work abilities. Consequently, erroneous determinations of RFC are difficult to overturn since there is no substantial evidence to the contrary. Such practices clearly violate Social Security regulations and the affected class members are entitled to relief. On remand, defendant Brown shall obtain the medical assessments required by 20 C.F.R. § 404.1513 and 416.913 from all treating and consulting physicians from whom they obtain evidence.

3. Failure to Obtain Consultative Examination from Treating Physicians

Both Sixth Circuit law and SSA directives prefer reports from treating physicians over those of doctors merely consulted to examine a claimant for purposes of disability. Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980); Miracle v. Celebrezze, 351 F.2d 361, 379 (6th Cir.1965); 20 C.F.R. §§ 404.1517, 416.917. When the evidence is not sufficient to make a determination, TDDS is directed to obtain further information from attending physicians, whenever possible. POMS 401.085.

Plaintiffs maintain that TDDS ignores these instructions and obtains supplemental information almost exclusively from consulting doctors. While admitting that treating physicians are rarely used, defendant Brown states that most such physicians lack the facilities to perform the necessary tests, or otherwise do not meet federal standards. Brown Deposition at pp. 98-100. However, he also admits that no inquiries are made to determine whether the qualifications of any particular doctor are inadequate. Although failure to meet federal standards is a legitimate excuse for using a non-attending physician, such a determination must not be made arbitrarily or simply out of a desire for expediency. The admissions of Director Brown make it clear that TDDS has not followed SSA directives. Therefore, on remand, the treating physicians of class members should be used for consultative examinations whenever possible, in accordance with POMS 401.085 and other applicable directives.

4. Comparative Weight Afforded Opinions of Attending Physicians

The plaintiffs contend that the defendants give insufficient weight to the medical reports of treating physicians, in violation of established, Sixth Circuit precedent. The parties agree that a treating physician's opinion is entitled to more weight than that of either an examining physician, consulted by the SSA, or of a non-examining, state agency medical doctor (SAMD). See also, King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984); Stamper v. Harris, 650 F.2d 108, 111 (6th Cir.1981); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). Pointing to Social Security Ruling (SSR) 82-48(c), which notes that greater weight should be given to treating physician's testimony, the Secretary argues that she is already in compliance with this Sixth Circuit law. If all levels of the TDDS are applying SSR 82-48(c), then the Secretary would be correct; however, it is clear that such is not the case. Administrator Brown has admitted that "DDS gives no greater weight to the reports of treating or attending physicians than it gives to the statements of other physicians." Plaintiff's First Request for Admissions (First RFA) No. 20, p. 41. TDDS employees at the initial and redetermination levels have no indication of the superior weight reports of treating physicians should receive. Indeed, it appears that in certain situations, it is actually TDDS policy to accept the opinions of non-examining SAMD's over those of treating doctors. First RFA No. 17, p. 44.

Treating physicians are neither entitled nor competent to make ultimate determinations of disability since such decisions rest on both medical and non-medical considerations. King, 742 F.2d 968. However, in situations where there are conflicting medical opinions as to the extent or severity of a claimant's impairment, the opinion of the treating physician, absent special circumstances, should prevail. Only where there are serious...