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TUSTIN v. HECKLER

July 12, 1984

GALE TUSTIN, ISMAEL SOTO, MILTON RUIZ, et al., Plaintiffs,
v.
MARGARET HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: BARRY

 The legal principles applicable to this case are easily stated and applied. On other levels, however, the case is difficult. In recent years, the Social Security Administration has had its share of problems, many of which have been the product of an earlier time and others which are the result of the profusion of social security claims filed and thereafter adjudicated both at the administrative level and in the courts. Determined and genuine efforts are now being undertaken to restore the agency to full compliance with its mandate of efficient and effective yet compassionate management of social welfare programs.

 Indeed, the very ruling by the Secretary of the Department of Health and Human Services which is the subject of this case, which temporarily restored disability benefits to a large class of persons, indicates that identifiable efforts are being made to implement that mandate. This court does not believe it appropriate to intrude into agency affairs, and is reluctant to do so. Nonetheless, this court has an independent obligation to assure itself that the efforts being made are in full compliance with constitutional principles. There is not compliance here.

 * * * *

 This is an action for declaratory and injunctive relief in which the named plaintiffs, Gale Tustin, Milton Ruiz and Ismael Soto, have brought on motions for certification of a nationwide class and for a mandatory preliminary injunction that would, in effect, temporarily restore terminated Social Security disability benefits to those persons who have appeals of terminations pending before United States courts. The defendant, Margaret Heckler, Secretary of the United States Department of Health and Human Services ("the Secretary") has suspended the Social Security Administration's periodic continuing disability review procedures and restored disability benefits to certain classes of persons whose benefits were terminated but who have not yet exhausted their administrative appeals, pending the anticipated passage of amendments to the Social Security Act, 42 U.S.C. ยง 402 et seq. ("the Act"), and the promulgation of concomitant regulations. The Secretary has declined to restore such benefits to persons who have exhausted their administrative appeals and have timely filed actions in District Courts seeking restoration of benefits, and plaintiffs complain on equal protection grounds. For the reasons stated below, the court will grant the preliminary injunction and will certify a nationwide class.

 I

 The Secretary is required by Section 221(i) of the Act to review every three years the continuing entitlement to disability benefits under Title II and to supplemental social security income benefits under Title XVI of the Act of all beneficiaries, except those determined to have a permanent impairment. *fn1"

 These periodic reviews have been controversial, principally because of the standard of review that has been employed by the Secretary. From 1954 until 1976, the Secretaries of Health, Education and Welfare would not find that disability had stopped unless medical evidence showed that a benefits recipient's condition had improved since it was last determined that he or she had a disability. In 1976, the then-Secretary 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 then-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 (3rd Cir. 1983). This policy came to be known as the "current disability standard," and was the policy being applied at the time defendant Secretary promulgated the ruling at issue here.

 A number of courts have held that the "current disability standard" is an improper standard for determining when a disability ceases. See, for example, DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir. 1984) (Secretary's "not currently disabled" standard not authorized by Act or regulations; "medical improvement" standard of finding that recipient's condition has improved to point that he is no longer disabled or that initial finding of disability was erroneous is proper); Kuzmin v. Schweiker, supra (in termination proceeding, once claimant has introduced evidence that her condition remains essentially the same as it was at the time of earlier determination, claimant has benefit of presumption that her condition remains disabling; Secretary then has burden of going forward with evidence of medical improvement to rebut presumption); Dotson v. Schweiker, 719 F.2d 80 (4th Cir. 1983) (initial determination of disability by Secretary gives rise to presumption at time of second hearing that claimant still disabled and Secretary required to come forth with evidence to rebut such presumption). *fn2"

 Congress took note of the conflict between the courts and the Secretary and both the House of Representatives and the Senate have passed bills which incorporate the "medical improvement" standard. The House passed the Social Security Disability Benefits Reform Act of 1984, H.R. 3755 on March 27, 1984. The Senate passed the Social Security Disability Amendments of 1984, S. 476, on May 14, 1984. The two bills have been referred to a conference committee, which presumably will attempt to reconcile differences when Congress reconvenes several weeks hence.

 The Secretary was, of course, well-aware of the adverse court decisions in termination cases and of the progress of H.R. 3755 and S. 476. On April 13, 1984, she announced a temporary suspension of the periodic continuing disability review process under both Title II and Title XVI of the Act and the continuation of benefits to all those affected by the suspension. On May 22, 1984, the Acting Commissioner of Social Security issued a ruling entitled "Titles II and XVI: Temporary Suspension of the Present Periodic Continuing Disability Review Process." The announced purpose of this ruling as stated in the ruling was

 
To implement the Secretary's policy concerning a temporary suspension of continuing disability reviews pursuant to section 221(i) of the Social Security Act (the Act), the continuation or restoration of benefits, as appropriate, to those who have not received an Appeals Council decision or notice denying a request to have the Appeals Council review the administrative law judge decision on their periodic review claim and who have such claims properly pending in the Department and to those who, as of the effective date of this policy, have received an agency determination under section 221 (i) which can still be appealed to the next administrative review level.

 The ruling went on to state that, in addition to suspending its reviews, the Social Security Administration would rescind determinations of disability cessation for medical reasons of individuals who had not received a ruling from the highest administrative review decisional body, the Appeals Council, or a notice denying a request for review by the Appeals Council of a decision made by an administrative law judge ("ALJ") on periodic review claims and who have such claims pending at the administrative level.

 The ruling went on to further state that those who still had time, as of April 13, 1984, to appeal to the next administrative review level the determination to stop their benefits would also have those determinations rescinded and benefits continued. The explanation, as contained in the ruling, was that:

 
Such individuals have not had the opportunity to pursue their periodic review claims through all administrative review levels. The absence of such an opportunity and of a final agency decision by the Appeals Council, coupled with the highly unusual circumstances surrounding the periodic review process, make the continuation or restoration of such benefits particularly justified. The policy in this Ruling is consistent with the Secretary's objective of ...

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