Turner v. Heckler, L 83-107.

• Citation: 592 F. Supp. 599
• Decision Date: 28 August 1984
• Docket Number: No. L 83-107.,L 83-107.
• Parties: Virgie TURNER, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Indiana

592 F. Supp. 599

Virgie TURNER, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

No. L 83-107.

United States District Court, N.D. Indiana, Hammond Division at Lafayette.

August 28, 1984.

Lesley M. Guyton, Legal Services Program, Lafayette, Ind., for plaintiff.

Christina McKee, Asst. U.S. Atty., Fort Wayne, Ind., Jason R. Baron, Trial Atty., Disability Litigation Branch, Social Security Div., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This action was brought under the provisions of 42 U.S.C. § 405(g) and 28 U.S.C. § 1361, and is now before the court upon the parties cross-motions for summary judgment.

The named plaintiff Virgie Turner was originally found entitled to disability benefits beginning February 3, 1971. Her benefits were subsequently terminated by the Secretary after it was determined that, by August 1982, plaintiff Turner had the capacity for light work and hence was no longer disabled. Plaintiff contends that this decision was not based on substantial evidence because there was no evidence to show either that her condition had improved or that the original decision finding her disabled was erroneous.

Plaintiff further argues that hers is not an isolated case of improper decision-making by the Secretary. Instead, plaintiff argues that the Secretary is using an inappropriate and unfair standard in determining when disability ceases under the Act. Thus, plaintiff seeked to expand her action to include all other disability claimants similarly situated. On May 13, 1984, this court certified a class which consists of:

The class consists of all persons in the State of Indiana (a) who have been found eligible to receive benefits under the Social Security Disability Insurance (SSDI) and the Supplemental Security Income (SSI) programs, (b) whose benefits have been terminated as a result of the "continuing disability investigation" (CDI) or "continuing disability review" (CDR) process, (c) who could have filed a timely request for either administrative or judicial review as of September 27, 1983, and (d) who have not filed for judicial review of the decision to terminate their disability benefits.

The issue in this case is whether the Secretary can properly terminate social security disability benefits without any showing that the claimant's condition has improved to the extent that she is no longer "disabled" under the Act.

Plaintiff argues that the Secretary has abandoned the "medical improvement" standard¹ for determining when social security benefits should be terminated and now applies the current disability standard² to cessation cases. Plaintiff believes that allowing termination of benefits without a showing of medical improvements is contrary to the Act, the Secretary's regulations, and numerous court decisions.

The Social Security disability program was enacted in 1956 as an insurance program to compensate individuals so disabled as to be unable to engage in any substantial work activity. As originally passed, the projected cost of the program was modest. Congress felt it could be financed "over its entire future history by a tax rate of less than one-half of one percent." 128 Cong.Rec. 513120 (daily ed. Oct. 1, 1982) (remarks of Sen. Long). The cost of the program escalated from 59 million dollars in 1956 to an estimated 18.5 billion in 1982. Id. Likewise, the number of disabled workers and beneficiaries rose from 149,850 in 1956 to an estimated 4,374,000 in 1982. Id.

Under Titles II and XVI of the Social Security Act benefits are paid to individuals who establish their "disability" under the Act. "Disability" under the Act means that the individual 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 be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A).

To satisfy this test, the individual must demonstrate that the "physical or mental impairment" is of such severity that

he 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 a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A).

Section 425(a) permits the Secretary to suspend disability benefits

On the basis of information obtained by or submitted to him if he believes that an individual entitled to benefits under section 423 of this title ... may have ceased to be under a disability .... For purposes of this subsection, the term "disability" has the meaning assigned to such title in section 423(d) of this term. (emphasis added).

Thus, the Act provides certain contingencies which, if occur, allow the Secretary to terminate benefits. Among the reasons for stopping payments is a finding that disability ceases, 42 U.S.C. §§ 423(a)(i) and 425.

In fact the Secretary is required by Section 221(i)³ of the Act to review every three years the continuing entitlement to disability benefits under Title II and to supplemental social security income benefit under XVI of the Act of all beneficiaries. These periodic reviews have been controversial, principally because of the standard of review that has been used by the Secretary. From 1954 until 1976, the Secretary of Health, Education and Welfare would not find that disability had stopped unless medical evidence showed that a claimant's condition had improved since it was last determined that he or she had a disability. The courts have consistently followed this standard. Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996 (1st Cir.1975); Hayes v. Secretary, 656 F.2d 204 (6th Cir.1981); Finnegan v. Matthews, 641 F.2d 1340 (9th Cir.1981); Leyva v. Harris, 514 F.Supp. 1313 (D.C.N.Y.1981); Timblin v. Harris, 498 F.Supp. 1107 (W.D.Pa.1980); Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973).

Faced with an expensive and nearly unmanageable program. Congress passed a series of amendments in 1980 designed to slow or halt the skyrocketing number of beneficiaries. Social Security Disability Amendments Act of 1980, P.L. No. 96-265, 94 STAT. 441, codified in part at 42 U.S.C. § 421(h). The 1980 amendments authorized the Secretary to review previously granted benefits to determine whether the claimants were still disabled. 42 U.S.C. § 421(h)(1).

In 1980, the Social Security Administration adopted a policy of finding that disability had stopped if it were found, based on new evidence, that the person was not disabled, as defined in law. In other words, the Secretary's position in determining that a disability had ceased became akin to an initial finding of no disability. Kuzmin v. Schweiker, 714 F.2d 1233, 1236 & n. 1 (3d Cir.1983). This policy is known as the "current disability standard."

In a statement contained in 45 Fed.Reg. 55566 (1980), the Secretary explained the revisions made in subpart P of Part 404 of the Regulations and included mention of "policies which we are now following in evaluating disability and blindness." Included among the 1980 policy changes were the following:

In §§ 404.1579, 404.1594 and 416.994 we explain a new policy on when disability is considered to stop. At one time we would not find that disability or blindness had stopped unless the medical evidence showed that the person's condition had improved since we last determined that he or she was disabled. About three years ago, we changed this policy and began to find that disability or blindness had stopped if we found, on the basis of new evidence, that the person was not disabled or blind as defined in the law. (emphasis added). 45 Fed.Reg. 55566.

Likewise, in responding to public comments regarding social security cessation cases the Secretary stated:

* * * * * *

These recodified regulations make it clear that disability ends when current evidence shows that the individual is able to engage in SGA regardless of whether actual improvement can be demonstrated. 45 Fed.Reg. 55583.

It is clear that the Secretary has abandoned the medical improvement standard in favor of the current disability standard. The question becomes whether use of this new standard is legally permissible.

The Secretary was more successful at eliminating recipients then Congress ever anticipated. Instead of the 20 percent termination rate projected by the Social Security Administration, benefit terminations exceeded 40 percent. 128 Cong.Rec. S7558. In 1979 and 1980 the Social Security Administration reviewed 160,000 cases for continuing eligibility. The number rose to 357,000 in 1981, and to an estimated 567,000 in 1982 and 840,000 in 1983. Congress and the review process came under fire as a result. To alleviate some of the resultant hardship, Congress passed additional legislation in 1983, which continued the payment of benefits during the pendency of an appeal to an Administrative Law Judge. Pub.L. No. 97-455, 96 STAT. 2498, Jan. 12, 1983, 42 U.S.C. § 423(g).

Following recognition of the 1980 policy change of the Secretary, many of the federal courts were confronted with the issue of the propriety of the Secretary abandoning the medical improvement standard. Courts addressing the conflict have overwhelmingly held the Secretary must base a decision to terminate benefits upon evidence that the condition of the beneficiary has improved. Haynes v. Secretary of Health and Human Services, 734 F.2d 284 (6th Cir.1984). This presumption of continuing disability requires that the Secretary produce evidence that the claimant's condition has improved, and in the absence of such evidence the claimant will be deemed to be still disabled; Rivas v. Weinberger, 475...