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June 29, 1983

Ramon RIVERA, et al., Plaintiffs,
Margaret HECKLER,* etc., et al., Defendants

The opinion of the court was delivered by: LACEY

 Before the court are: defendants' motions to dismiss for lack of subject matter jurisdiction and for non-justiciability; William Fitzpatrick's motion to intervene as a plaintiff; and plaintiffs' motion to certify a class.


 Plaintiffs are present and former recipients of Social Security disability benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-85 (hereinafter "the Act"). They bring this action on their own behalf and as representatives of a putative class of all persons similarly situated. Plaintiffs challenge defendants' use of criteria for evaluating disability claims that allegedly are inconsonant with the definition of disability established in the Act, as interpreted by the federal courts. Plaintiffs claim that defendants' refusal to follow judicial precedent violates their right to due process of law.

 Social Security disability determinations are governed by procedures coordinated by the state and federal governments. In New Jersey, claims initially are referred to the state Division of Disability Determinations (DDD) for review. If the claim is denied, a claimant may request reconsideration by DDD. If that is denied, a claimant may request a hearing before an Administrative Law Judge (ALJ). 42 U.S.C. § 421(d); 20 C.F.R. §§ 404.930, 416.1429. The ALJ's decision may be appealed to the Social Security Administration (SSA) Appeals Council, 20 C.F.R. §§ 404.967, 416.1467, and, thereafter, a claimant may pursue his remedies in the federal courts. 42 U.S.C. §§ 405(g), 1383(c)(3).

 A favorable decision at any stage entitles the claimant to benefits. Eligibility, however, continues only so long as the disability exists. 20 C.F.R. §§ 404.1590, 416.990. Each successful claim is subject to a "continuing disability investigation" (CDI), to occur at least once every three years. 42 U.S.C. § 421(i) [§ 421(h)]. If a claimant is found to be no longer eligible, benefits may be terminated.

 The review process for initial determinations also applies to determinations of continuing eligibility. Prior to the 1983 amendments to the Act, Pub.L. No. 97-455, 96 Stat. 2497 (1983), benefits were suspended after the initial decision to terminate and could be recouped only by appeal. Now, however, terminated claimants have an option of continuing benefits until an ALJ reviews the state agency's determination. If the ALJ affirms, the continued benefits will be considered overpayments subject to recoupment at the discretion of the Secretary of Health & Human Services (Secretary). *fn1"

 The New Jersey DDD initially awarded benefits to all the named plaintiffs and then terminated these benefits. Plaintiffs designated as "Group A" subsequently have had their benefits reinstated after a hearing before an ALJ. Some in Group A have twice repeated the cycle of award, termination, and reinstatement. "Group B" plaintiffs have not yet had their terminations passed on by an ALJ. Eight of the nine named plaintiffs are now in Group A, having had their benefits restored. The ninth, Theresa Fabricatore, is a Group B plaintiff who has not yet had a hearing before an ALJ.

  Plaintiffs primarily challenge the Secretary and DDD's alleged refusal to adhere to Third Circuit precedent. Plaintiffs allege that in evaluating disability claims DDD is directed to follow, inter alia, guidelines contained in the Secretary's Program Operating Manual System (POMS). These allegedly reflect the Secretary's policy of nonacquiescence in controlling judicial precedent. *fn2" ALJs, who are not guided by the directives in the POMS, on the other hand, follow the law as announced by the circuit court. Plaintiffs allege that this inconsistent procedure and more particularly defendants' refusal to follow controlling caselaw subjects the plaintiffs to needless administrative review and, over time, to "administrative looping."

 Plaintiffs identify two principal conflicts between the standards applied by DDD and the law of this circuit. First, and contrary to Third Circuit precedent, see, e.g., Smith v. Schweiker, 671 F.2d 789, 792-93 (3d Cir.1982); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981), DDD allegedly refuses to give substantial weight to the opinion of a claimant's treating physician, even when this opinion is uncontradicted by substantial evidence.

 Second, plaintiffs allege that DDD gives inadequate weight to claimant's subjective complaints of pain and therefore will not find a claimant to be disabled on the basis of subjective complaints alone. According to the Third Circuit, pain alone may be disabling. See, e.g., Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981).

 Plaintiffs seek declaratory and injunctive relief directed toward having the Secretary promulgate regulations for evaluating disability that accord with federal precedent. *fn3"

 Subject Matter Jurisdiction

 1. Federal Defendants

 Defendants Heckler and John Svahn, Commissioner of the SSA, move to dismiss for lack of subject matter jurisdiction. Jurisdiction with respect to Group A plaintiffs (and their putative class) is premised on 28 U.S.C. § 1361 and, with respect to Group B plaintiffs (and their putative class), on 42 U.S.C. §§ 405(g) and 1383(c)(3) as well as on § 1361. We will first consider the Group B plaintiffs, those persons whose benefits have been terminated but whose terminations have not been ruled on by an ALJ.

 42 U.S.C. § 405(g) provides for judicial review "after any final decision of the Secretary made after a hearing to which . . . [the claimant] was a party. . . ." *fn4" The "final decision" requirement has two elements, one nonwaivable, the other waivable. The nonwaivable requirement is that the plaintiff have presented a claim for benefits to the Secretary. The waivable requirement is that that plaintiff have exhausted the administrative review procedures prescribed by the Secretary. The exhaustion requirement may be waived either by the Secretary or, under appropriate circumstances, by the court on its own determination. Mathews v. Eldridge, 424 U.S. 319, 328, 96 S. Ct. 893, 899, 47 L. Ed. 2d 18 (1976); Liberty Alliance of the Blind v. Califano, 568 F.2d 333, 344 (3d Cir.1977); see Weinberger v. Salfi, 422 U.S. 749, 763-64, 95 S. Ct. 2457, 2465-66, 45 L. Ed. 2d 522 (1975).

 Clearly, by filing a claim with the Secretary, Theresa Fabricatore has satisfied § 405(g)'s nonwaivable element. Equally clearly, she has not exhausted her administrative remedies, and the Secretary has not voluntarily waived them. This court therefore has jurisdiction under § 405(g) only if it finds it appropriate to waive the exhaustion requirement.

 The basic inquiry is whether a claimant's interest in having a particular issue resolved promptly is so great that deference to agency procedures is inappropriate. See Mathews v. Eldridge, supra, 424 U.S. at 330, 96 S. Ct. at 900; Mattern v. Mathews, 582 F.2d 248, 253 (3d Cir.1978). Waiver of exhaustion may properly be inferred when plaintiffs' legal claims are collateral to their demand for benefits, when the harm suffered in the interim would not be recompensable by retroactive relief, or when exhaustion would be a pro forma or futile gesture. Smith v. Schweiker, 709 F.2d 777 at 780 (2d Cir.1983); see Mathews v. Eldridge, supra, 424 U.S. at 330-31, 96 S. Ct. at 900-01; Liberty Alliance, supra, 568 F.2d at 344-46. *fn5"

 Admittedly, unlike the Eldridge plaintiffs' claim to a right to a pretermination hearing, the claim here, involving as it does the Secretary's standards for determining disability, is not wholly divorced from any claim to entitlement to benefits. Nevertheless, we find the reasoning of the court in Aldrich v. Schweiker, 555 F. Supp. 1080 (D.Vt.1982), a case involving an ...

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