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WILSON v. HECKLER

October 28, 1985.

JOHN WILSON and MARY CHRISTOPHER, on their own behalf, and on behalf of others similarly situated, Plaintiffs,
v.
HON. MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: BROTMAN

{F. Supp. 659contd}

 [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

 SUPPLEMENTAL OPINION ACCOMPANYING ORDER

 BROTMAN, District Judge

 On October 9, 1985, this court certified a class of New Jersey residents whose claims for disability benefits under the Supplemental Security Income ("SSI") and Old Age Survivor and Disability Insurance ("OASDI") programs have been or could be denied or terminated since July 26, 1984 solely on the basis that their medical impairments are not severe. The court also granted a preliminary injunction barring the Secretary of Health and Human Services ("Secretary") from applying the severity regulation, 20 C.F.R. § 404.1520(c), to present and future claims for benefits under Title II and Title XVI of the Social Security Act, as amended, 42 U.S.C. § 301 et seq., and directing her to reopen past claims that were denied or terminated by application of that regulation. The court instructed the parties to confer and submit a joint proposed order incorporating the timetable and scope of injunctive relief.

 After issuance of the court's opinion, Wilson v. Heckler, 622 F. Supp. 649 (D.N.J. 1985), the parties submitted a partial joint proposed order for implementing preliminary relief. The parties could not agree on several points, so they have submitted separate versions of proposed paragraphs, along with supplementary letter briefs. The court has considered the options and arguments presented by the parties and is filing this supplemental opinion in order to clarify certain provisions of the accompanying final order.

 Plaintiffs have asked the court to impose mandatory time limits on the Secretary with respect to several prescribed actions: identification of class members (Order, para. 2);*notification of class members (para. 3, para. 8(a)); completion ob sequential evaluations of disability, including scheduling hearings (Plaintiffs' Proposed paras. 4, 5); and issuance of compliance instructions (para. 10). While the Secretary has submitted her estimates of reasonable time frames, which in every instance are longer than those proposed by plaintiffs, she maintains that all such mandatory deadlines are precluded by the Supreme Court's opinion in Heckler v. Day, 467 U.S. 104, 104 S. Ct. 2249, 81 L. Ed. 2d 88 (1984).

 In Heckler v. Day, the Court invalidated a statewide injunction issued by a district court which required the Secretary, inter alia, to issue reconsideration determinations within ninety (90) days of requests for reconsideration and to conduct hearings within ninety (90) days of requests for hearings. The Court held that because Congress repeatedly considered and rejected imposing mandatory deadlines on agency adjudication of disputed disability claims under Title II of the Social Security Act, "it would be an unwarranted judicial intrusion into this pervasively regulated area for federal courts to issue injunctions imposing deadlines with respect to future disability claims." 104 S. Ct. at 2258. The Court's 5-4 decision made clear that it applied to injunctions issued in class actions and that injunctive relief would still be proper to remedy individual violations of 42 U.S.C. § 405(b). Id. at n.33.

 The Circuit Courts of Appeals which have applied Heckler v. Day have generally followed its proscription of setting time limits on the Secretary's administrative process. See, e.g., Telecommunications Research & Action v. F.C.C., 242 U.S. App. D.C. 222, 750 F.2d 70, 81 n.44 (D.C. Cir. 1984) (granting injunctive relief in individual case); Sierakowski v. Heckler, 748 F.2d 115 (2nd Cir. 1984) (invalidating 165 day deadline for deciding Medicare appeals); Hyatt v. Heckler, 757 F.2d 1455, 1459 (4th Cir. 1985) (vacating injunction against Secretary's policy of nonacquiescence). But see Avery v. Sec'y of Health and Human Services, 762 F.2d 158, 164, 165 (1st Cir. 1985) (upholding mandatory time limits under 1984 Reform Act in absence of countervailing legislative history and demonstrable burden).

 In the case at bar the court is faced with two distinct types of time limits. Plaintiffs seek to require the Secretary to "make all good faith efforts to complete the sequential evaluation of disability within four weeks of the date a class member's case file . . . is received . . ." (Plaintiffs' Proposed para. 4(a)(3)); conduct redetermination hearings within forty-five (45) days of identification of class members entitled to have their claims reopened (Plaintiffs' Proposed para. 4(b)); and conduct hearings in cases of class members whose claims have been remanded from federal court within seventy-five (75) days of notice of remand or eighty-five (85) days of entry of the remand order, whichever is earlier (Plaintiffs' Proposed para. 4(b)). These proposed deadlines directly contradict the holding of Heckler v. Day because they would impose time limits on the Secretary's internal administrative procedures. "In light of Congress' continuing concern that mandatory deadlines would subordinate quality to timeliness, and its recent efforts to ensure the quality of agency determinations, it hardly could have contemplated that courts should have authority to impose the very deadlines it repeatedly has rejected." Heckler v. Day, supra, 104 S. Ct. at 2257.

 Accordingly, the court will not impose the deadlines which plaintiffs proposed and to which defendant agreed. Instead, the accompanying order instructs the Secretary to use her "best efforts" to obtain, update and review vocational information and complete sequential evaluations within suggested time frames which the parties have already agreed are reasonable. Since compliance with the time frames is hoped for, but not required, the court has deleted proposed provisions that would tally cases received by the New Jersey Division of Disability Determinations ("NJDDD") in any given week as received in the following week if they exceeded a certain number. Order, para. 4(a). The order further directs the Secretary to use her best efforts to schedule hearings promptly and hold them within a reasonable period of time. Order, para. 4(b).

 The other time limits proposed by plaintiffs and incorporated into the accompanying order relate not to the Secretary's procedures but to implementation of preliminary injunctive relief. Timetables for identifying class members and notifying them of their status do not conflict with Heckler v. Day, supra. See Dixon v. Heckler, 83 Civ. 7001 (MEL), Letter Opinion of Lasker, J. (S.D.N.Y. July 20, 1984) (discussing proposed order to be issued under Dixon v. Heckler, 589 F. Supp. 1494 (S.D.N.Y. 1984)). Accordingly, the court will require the Secretary to identify all class members within 120 days and notify them within twenty-one (21) days of such identification. Order, paras. 2, 3. Plaintiffs propose that the Secretary be required to notify all class members within ninety-five (95) days. The Secretary argues that plaintiffs' proposed time frame would impose an undue administrative burden on the agency which could be alleviated if an additional twenty-five (25) days were granted. The court is mindful that the agency must issue benefit checks early in December due to the holiday mail crunch and that the Secretary is already working to comply with other court orders. The Secretary states that 120 days "2epresents a realistic deadline which SSA will be able to meet," Defendant's Letter Brief, Nov. 6, 1985 at 3, and the court will hold the Secretary to her proposal.

 The parties agreed that twenty-one (21) days was an appropriate time frame for notification, but clashed over whether the Secretary should be required to notify the claimant's representative as well as the claimant. The Secretary's own regulations provide that notice ". . . of any administrative action . . ." will be sent to a claimant's representative. 20 C.F.R. § 404.1715. In the face of the regulation's plain language, the Secretary's arguments that such a requirement would overburden her administrative staff are unavailing.

 The accompanying order will apply to claimants whose claims are currently in federal court as well as to those with claims pending at various administrative levels. The class encompasses both categories and the court believes claimants with claims pending in federal court are fully entitled to notification of their status as potential members of the certified class, in addition to any and all other rights granted to other class members. Any objection that such federal cases should not be subject to the proposed hearing deadlines is rendered moot by the court's decision, pursuant to Heckler v. Day, supra, not to impose deadlines at that stage.

 The Secretary and plaintiffs propose different timetables for issuing instructions for compliance with the accompanying order. Plaintiffs suggest that such instructions should be issued within fifteen (15) days of the date of the accompanying order. The Secretary contends that the delays inherent in the printing process make forty-five (45) days a more realistic projection. The printing process alone, the Secretary claims, can take as long as twenty-one (21) days. The court believes that the Secretary should be able to draft and review instructions within twenty-one (21) days and disseminate typewritten copies of those instructions by mail or telecopier pending issuance of the final, printed version. Therefore, the court will order that the Secretary disseminate instructions in provisional form within twenty-one (21) days and circulate a final, printed version within forty-five (45) days. Order, para. 10.

 The final issue on which the parties could not agree is monitoring. The basic monitoring information requested by plaintiffs is essential to track the Secretary's compliance efforts. Particularly in light of the court's inability to impose mandatory deadlines on the hearing process, plaintiffs' counsel must be supplied with frequent and accurate reports on the status of certain claims and the Secretary's progress. The court must rely on plaintiffs' counsel to alert it to any instances of apparent noncompliance with the accompanying order. For these reasons, the court will adopt the timetable suggested by plaintiffs, modified to reflect the court's adoption of defendant's 120 day limit for notifying potential class members.

 The accompanying order will be entered and should be interpreted in light of this opinion.

 ORDER CERTIFYING CLASS AND GRANTING PRELIMINARY INJUNCTION

 This matter being brought before the court by Richard E. Yaskin, Esquire, of Jacobs & Schwalbe, P.C., attorneys for the plaintiff class, and the court having considered the submissions and arguments of the parties:

 It is on this 14th day of November, 1985, hereby ORDERED that plaintiffs may maintain this action as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the class being defined as follows:

 
All persons in the State of New Jersey who have filed or will file applications for disability benefits under Title II and/or Title XVI of the Social Security Act, as amended, and whose benefits have been or will be denied or terminated based upon a finding of no severe impairment pursuant to the policies set forth in 20 C.F.R. §§ 404.1520(c) and .1521, 416.920(c) and 921 (1983), and Social Security Ruling 82-55 (1982).
 
The plaintiff class does not include, at this time, any such persons who received decisions of the Secretary on or before July 25, 1984 and who failed either to file a complaint in federal district court or to appeal to the next level of administrative review within 60 days after the date of receipt of such decision.
 
For purposes of determining class membership, the term "person in the State of New Jersey" is defined as an individual who was domiciled in the State of New Jersey at the time of his or her most recent administrative decision.
 
For purposes of determining whether disability was denied or terminated based on a finding of no severe impairment, the rationale of the final agency denial shall be controlling except that the rationale of the Administrative Law Judge shall be controlling where the Appeals Council denies review and has not initiated review on its own motion pursuant to 20 C.F.R. § 404.969 (1983).

 It is FURTHER ORDERED that plaintiffs' motion for a preliminary injunction is GRANTED and that, pending a final determination of this action, defendant, her agents, servants, employees and their successors:

 1. Are enjoined from denying or terminating Social Security Disability or Supplemental Security Income benefits due to the policies set forth in 20 C.F.R. §§ 404.1520(c) and .1521, 416.920(c) and .921 (1983), and Social Security Ruling 82-55 (1982); and

 2. Shall immediately commence identification of all members of the plaintiff class. Defendant shall complete identification of the members of the class within 120 days of the date of this order; and

 3. Shall send to each class member whose application for benefits was denied and his/her representative, a copy of the notice appended hereto as Attachment "A". Notification of class members shall be completed within twenty-one (21) days of the date defendant identifies the class member; and

 4. Are directed to reopen the applications of all class members whose applications for benefits have been denied or terminated by the Secretary at any stage of the administrative process, since July 26, 1984 and thereafter, and to redetermine those applications without reference to the threshold severity test, provided that any action pending in federal court based upon the denial of a class member's application for benefits has been remanded to the Secretary for redetermination.

 (a) With respect to class members whose applications for disability benefits have been denied at the initial administrative stage or on reconsideration and who have not requested review by an Administrative Law Judge:

 
(1) Defendant shall forthwith obtain information on the individual's vocational history, including completion of Form SSA-3369 if appropriate or updating the prior vocational history on file. Defendant shall use its best efforts to obtain or update vocational information within one week after the class member responds to the notice appended hereto as Attachment "A" or is otherwise determined to be a class member.
 
(2) Defendant shall forward the class member's file to the New Jersey Division of Disability Determinations ("NJDDD") for a new initial determination within three days of (i) obtaining appropriate vocational information pursuant to sub-paragraph (a)(1), or (ii) receipt of the claims folder by the District Office with jurisdiction over the claim, whichever is later. Defendant shall make its best efforts to deliver to the District Office fifty percent (50%) of the claims files within two weeks, sixty-five percent (65%) of the claims files within three weeks and eighty percent (80%) of the claims files within thirty days after the class member responds to Attachment "A" or is determined to be a class member. Defendant shall begin reconstructing the files of all class members whose claims files are not received by the appropriate District Office within four months after the class member responds to Attachment "A" or is determined to be a class member, whichever is earlier.
 
(3) Defendant shall make all good faith efforts to complete the sequential evaluation of disability within four weeks of the date a class member's case file and completed Form SSA-3369 are received by NJDDD unless the class member submits new medical evidence, requests a full redevelopment of evidence and reevaluation of disability, or defendant determines that a full redevelopment is required. Nothing in this order shall preclude defendant from employing the quality assurance process set forth in 42 U.S.C. § 421(c)(3) in each individual class member's case to the extent defendant seems appropriate.

 (b) In conducting the redetermination of those applications in which a hearing has been held or in which a request for hearing is pending, defendant shall conduct a hearing before an Administrative Law Judge unless a determination of entitlement can be made on the basis of the record. The Secretary shall use her best efforts to schedule such hearings promptly and hold them within a reasonable period of time.

 5. With respect to those class members who have actions pending in federal court and either have informed the Secretary that they want their case remanded to the Secretary for a reevaluation or have failed to so inform the Secretary by responding to the notice appended hereto as Attachment "A" within thirty (30) days of the date of the notice, the Secretary shall move the court for or otherwise agree to a remand of the case; and

 6. Shall provide to any person who presents him/herself in person, by telephone or by letter to the Social Security Administration for relief under this order and, at the time of such presentment provides his/her name, Social Security number, telephone number and current address, a copy of the notice appended hereto as Attachment "B", stamped by the Social Security Administration personnel to indicate the date of his/her presentment. A copy of the notice shall be placed in that person's file if that person in fact has applied for or been terminated from benefits. Upon such presentment, defendant shall within thirty (30) days, determine whether such person is a class member and shall provide a written rationale for such determination; and

 7. Shall reproduce, in both the English and Spanish languages, the notice appended hereto as Attachment "C" as a 17 inch by 22 inch poster and cause equal numbers of English and Spanish language copies of such poster to be prominently displayed in all Social Security Administration field, district, and hearing offices in the State of New Jersey to which the public has access, shall supply plaintiffs' attorneys with fifty (50) copies of said poster in the English language and twenty-five (25) copies of said poster in the Spanish language; and

 8. (a) In the event a class member fails to respond to notice "A" and said notice is not returned by the Post Office, defendant shall make all good faith efforts to send a final notice to the class member advising him or her of the availability of relief under this order within seventy-five (75) days of the date notice "A" is sent. Said final notice shall contain a form which will allow the class member to indicate whether he or she intends to pursue the relief provided for by this order and shall be accompanied by an addressed, postage-paid envelope. Upon sending the final notice, defendant shall have no further obligation to contact the class member.

 (b) In the event that a notice sent to a class member is returned by the Post Office, defendant shall follow standard operating procedures in the Program Operations Manual (POMS, DI 00504.047) to ascertain the individual's current address or whereabouts for purposes of sending a final notice. If still unsuccessful upon completing these efforts, defendant may cease efforts to locate the class member. Should the class member come to defendant's attention, defendant shall provide the class member with all the rights under the order for class members who respond to Attachment "A"; and

 9. Shall immediately issue instructions to the Social Security offices in the State of New Jersey, to the Office of Hearings and Appeals, to the Appeals Council, to the Regional Office, having jurisdiction over New Jersey, and to the New Jersey Division of Disability Determinations, requiring compliance with paragraph (1).

 10. Shall, within twenty-one (21) days of the date of this order, issue provisional instructions for compliance with this order, including procedures to be used in identifying class members, responding to inquiries from asserted class members and their representatives, for reevaluating initial claims of plaintiff class members who have been denied or terminated at the initial administrative state or on reconsideration. Such provisional instructions shall be disseminated in typewritten form by mail or telecopier. Final printed instructions shall be issued within forty-five (45) days of the date of this order, but they shall not differ in content from the provisional instructions; and

 11. Shall immediately provide plaintiffs' counsel with copies of all memoranda, notices, instructions, directives and like documents issued to effect compliance with this order as those documents are issued; and

 12. Plaintiffs seek the following reports to be provided within the time frames specified:

 (a) An alphabetized list of the names and Social Security numbers of class members who have been identified (within 130 days and supplemented every forty-five (45) days until defendant's efforts to identify class members have ceased); and

 
(b)-(1) An alphabetized list of the names and Social Security numbers of persons who cannot be notified because their notices were returned by the Post Office (within 155 days and supplemented every forty-five (45) days until defendant's efforts to notify class members pursuant to Paragraph 8(b) have ceased); and
 
(2) An alphabetized list of the names and Social Security numbers of persons who have been notified, but failed to respond to Attachment "A" (within 175 days and supplemented every forty-five (45) days until the District Office ceases to maintain an active file due to the class member's failure to respond ...

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