I-5-4-36. State of New York v. Sullivan

Attachment 1. State of New York District Court Decision Dated January 12, 1987
State of New York Order and Judgment Dated December 4, 1989

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

This class action charges the Secretary of the Department of Health and Human Services (“the Secretary”)1 with an unlawful policy of withholding disability benefits. Specifically, plaintiffs allege that by applying certain per se rules, the Secretary has denied or terminated Social Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) to individuals disabled by cardiovascular impairments, in violation of the Social Security Act (“the Act”), 42 U.S.C. 301 et seq., its implementing regulations, and the due process clause of the Fifth Amendment. Plaintiffs also allege that defendants' failure to publish these rules violated the notice and comment provisions of the Administrative Procedures Act, 5 U.S.C. § 553.

In an earlier opinion, sub non. State of New York v. Heckler, 105 F.R.D. 118 (S.D.N.Y. 1985) (Carter, J.), with which familiarity is assumed, the court certified a class consisting of:

All New York State residents with cardiovascular impairments whose applications or eligibility for SSDI or SSI disability benefits have been or will be denied or terminated by the application of per se denial rules on or after June 1, 1980.

Id. at 122. The court further certified a subclass of individuals from the above class consisting of those: Who have ischemic heart disease, hypertensive vascular disease, myocardiopathies, or rheumatic or syphilitic heart disease and whose disability benefits have been or will be denied or terminated based on the application of per se denial rules pertaining to treadmill exercise tests.

Id. (footnote omitted). Twelve members of the subclass are joined as named plaintiffs by the State and City of New York, Suffolk County, and the New York State and Suffolk County Departments of Social Services.

Plaintiffs have moved for partial summary judgment or alternatively for a preliminary injunction to forbid the Secretary's use or enforcement of the allegedly per se rules in disability determinations. Defendants have cross-moved for partial summary judgment declaring the challenged policy valid.

BACKGROUND

Disability determinations in New York begin with initial consideration and reconsideration by an authorized state agency, the Office of Disability Determinations (“ODD”) of the New York State Department of Social Services. See 42 U.S.C. §§ 421(a), 1386(a).² Disappointed claimants may seek federal administrative review by the Social Security Administration, including a hearing before an administrative law judge and an appeal to the Appeals Council. 42 U.S.C. §§ 405(b)(1), 1383(c)(1), see Bowen v. City of New York, U.S. ___, ___, 106 S. Ct. 2022, 2025 (1986).

At all stages of this administrative process, a five-step sequence is followed in determining whether a claimant is entitled to SSDI or SSI benefits. 20 C.F.R. §§ 404.1520, 416.920 (1986), see Bowen v. City of New York, supra , ___ U.S. at ___, 106 S. Ct. at 2025. A claimant triggers the sequence by alleging a disability, that is, the “inability 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 continuing period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Once triggered, the sequence in brief is as follows:

(1) A claimant who is presently working is conclusively presumed not disabled. (2) A non-working claimant is presumed not disabled unless his impairment or combination of impairments exceeds a threshold level of severity.3 (3) A non-working claimant with an impairment of at least threshold severity is conclusively presumed disabled if his impairment “meets” or “equals” the Listing of Impairments (the “Listing”), 20 C.F.R. Part 404, Subpt. P, App. 1 (1986).4 (4) A claimant for whom no determination is made in the first three steps is found not disabled at this step in his residual functional capacity (“RFC”) enables him to perform the sort of work he has previously done. (5) If in step 4 a claimant is considered unable to perform his previous work, he will be found disabled if on the basis of his RFC, age, education, and work experience he is unable to do any other substantial work.

The dispute in this case concerns the procedures followed at steps 3, 4 and 5. At step 3, the Listings provide for various medical tests by which a claimant may meet or equal an enumerated cardiovascular impairment and thereby conclusively establish disability.

For the subclass members who complain of ischemic heart disease,5 “the primary basis for adjudicating claims” is the results of the treadmill exercise test. The treadmill test measures a patient's heart condition based on electrocardiographic responses, changes in blood pressure, chest pain, and other symptoms, as the individual walks or runs on a treadmill with progressively greater speed and steeper grade.

The treadmill test need not be the only basis for adjudicating claims, provided that the claimant can supply evidence of other impairments severe enough alone or in combination to equal the Listings.6 Affidavit of Marvin Lachman, Apr. 15, 1986, ¶ 7); Affidavit of Barbara G. Rodbart, Nov. 15, 1985, ¶ 33-35, Exh. M at 5. Nor can the results of the test be controlling if they are unreliable or unavailable. Listings § 1.00G4. They may be unreliable if the testing does not conform to an acceptable protocol. Id. § 4.00DG2, or took place more than a year ago, Affidavit of Marvin Lachman, Apr. 15, 1986, ¶ 6; Affidavit of Barbara G. Rodbart, Nov. 15, 1985, Exh. H at 3, or if the claimant's condition has subsequently deteriorated. Listings § 4.00G4. They may be unavailable because performance of the treadmill test itself poses a significant risk to the claimant's health. Id. § 4.00G3.

However, if the claimant has no additional impairments and “if there is documentation of an acceptable treadmill exercise test,” then only the results of that test are considered, and other medical reports such as angiographic, radio-isotopic ventriculographic, or resting electrocardiographic findings are dismissed as “not applicable.” Listings §§ 4.00G4, 4.04B, Defendants' Reply Memorandum at 8; Plaintiffs' Reply Memorandum at 3-5.

If the Secretary finds that a claimant's medical condition does not meet or equal the Listings so as to conclusively establish disability, the analysis proceeds to step 4 and, if necessary, step 5. At these steps, the Secretary considers the claimant's RFC—the range of activities that he still can do in spite of his impairment.

Treadmill test results continue to be of weighty significance in this evaluation. Guidelines issued by the Secretary correlate the ability to perform work at a given level of exertion with electrocardiographic findings at specific intervals of the treadmill test. Department of Health and Human Services, Program Operations Manual System (“POMS”), ¶ DI 00401.590C. An irregular electrocardiographic response at any interval indicates the simple presence of a cardiovascular impairment. An individual's ability to work in spite of the impairment is inferred from the interval at which the irregular response is first registered. Thus, if a claimant registers an irregular electrocardiographic response before he reaches five “METS”7 on the treadmill test (or five times the approximate oxygen uptake required at rest), his impairment meets the Listing for ischemic heart disease, and he is presumed unable to work. Listings, § 4.04A. However, if an irregularity arises between five and seven METs, the Secretary assumes that the ability to do light work “ordinarily would be retained.” POMS, ¶ DI 00401.590C. If an irregularity is first detected at the interval between seven and ten METs, the ability to do medium work “ordinarily would be retained.” Id. If none is detected until after the claimant reaches ten METs (or if no irregularity is detected at all), the claimants is apparently deemed able to do heavy work. Affidavit of Marvin B. Lachman, Apr. 30, 1985, ¶ 32.

The parties appear to disagree on how conclusive the Secretary's presumption is as to an individual's ability to work at a given level of exertion. The Secretary's regulations provide that the RFC assessment “is based on all of the medical evidence we have, including any other assessments that may have been provided by treating or examining physicians, consultative physicians, or any other physician designated by the Secretary.” 20 C.F.R. §§ 404.1546, 415.946 (1986). Nevertheless, plaintiffs contend, in practice when a claimant has undergone a valid, up-to-date treadmill test and alleges only one impairment, no medical evidence apart from the results of the test are considered in the RFC assessment.8 Defendants assert, by contrast, that in accord with the regulations an ODD staff physician “must consider the medical findings and results of any and all diagnostic test in the record as well as any medical assessment that has been submitted by an examining physician,” including nuclear test studies, echocardiograms, and arteriography". Affidavit of Barbara G. Rodbart, Nov. 15, 1985, ¶ 38.

The same reliability and availability that is required of treadmill test reports used in the Listings analysis also is required for their use in RFC assessments. Listings § 4.00C. Thus, if a treadmill report is unacceptable or unavailable, other medical evidence may be considered in the assessment. Likewise, evidence of impairments over and beyond ischemic heart disease is again considered. For claimants alleging ischemic heart disease as their only Impairment, however, testimony given in depositions supports the view that acceptable treadmill results do take exclusive precedence in RFC assessments. Dr. Ralph Weber, a consultant in cardiology for the Social Security Administration, testified that the functional abilities of such a claimant will never be found restricted beyond what is directed by the POMS guidelines. Medical evidence (such as an angiogram) to the contrary cannot serve to rebut the directed result.9 Dr. Marvin Bierenbaum, at the time of his deposition the Social Security Administration's Regional Medical Advisor for the New York Region, similarly testified that the treadmill test (alternatively referred to as the screen test) takes precedence over other medical tests. Again, angiograms and other tests tending to a contrary result are of no effect.10

To summarize, plaintiffs argue that when a claimant alleging one impairment has an acceptable treadmill report in his file, the Secretary does not allow consideration of other medical evidence for purposes of either the Listings analysis or the RFC assessment. Defendants cite regulations calling for the consideration of all relevant medical evidence in both evaluations. However, they acknowledge that when acceptable treadmill results are on file, the Listings analysis proceeds according to criteria exclusively applicable to those results. In addition, two of the Secretary's medical experts have agreed that except where multiple impairments are alleged, acceptable treadmill test findings alone are determinative in RFC assessments.

DISCUSSION

Congress has entrusted the Secretary with exceptionally broad authority to prescribe standards for disability adjudication and the court may intervene only if the Secretary's standard exceeds his broad authority or is arbitrary and capricious. Heckler v. Campell, 461 U.S. 458, 466 (1983). Of course, the Secretary may exceed his authority not only by promulgating illegal regulations, see Dixon v. Heckler, 785 F.2d 1102, 1106 (2d Cir. 1986), but also by enforcing an illegal de facto policy not encompassed or authorized by his own regulations. See Stieberger v. Bowen, 615 P. Supp. 1315, 1349 (S.D.N.Y. 1985) (Sand, J.), vacated on other grounds, 801 F.2d 29 (2d Cir. 1986). Under the circumstances of this case, the Secretary's challenged policy does conflict with the provisions of the Social Security Act. Because the conflict in dispositive of the motions before the court, plaintiffs' contention that the policy violates the Fifth Amendment need not be considered. See Califano v. Yamasaki, 442 U.S. 682, 692 (1979).

Similarly, the court need not base its holding on violation of the Administrative Procedures Act, 5 U.S.C. § 553, resulting from the Secretary's failure to publish the policy in the Federal Register. That issue was raised but not entirely resolved in the court's previous opinion. State of New York v. Heckler, supra, 105 F.R.D. at 120-22. While the court finds that a sufficient showing of illegal non-publication has been made for jurisdictional purposes, the decision whether the Secretary's policy is valid does not otherwise depend on any violation of publication requirements.

The Act provides generally that:

An individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are 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 kind of substantial gainful work....

47 U.S.C. §§ 423(d)(2)(A), 1382c(a) (3) (B).

This language requires that a claimant be given the opportunity to present evidence relevant to disability before the Secretary decides his claim. See, e.g., Dixon v. Heckler, 589 F. Supp. 1494, 1502-06 (S.D.N.Y. 1984) (Lasker, J.) aff'd, 755 F.2d 1102 (2d Cir. 1986). The Secretary's regulation implementing the disability determination sequence opens with a like commitment to consideration of relevant evidence: “We consider all material facts to determine whether you are disabled.” 20 C.F.R. §§ 404.1520(a), 416.920(a) (1986).

Congress's recent amendments to the Act are similarly unequivocal. Section 9(b)(1) of the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 stat. 1794, provides:

In making any determination with respect to whether an individual is under a disability or continues to be under a disability, the Secretary shall consider all evidence available in such individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under disability. In making any determination the Secretary shall make every reasonable effort to obtain from the individuals' treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis. 42 U.S.C. § 423(d) (5)(N), Section 2(c) likewise provides in part:

Any determination under this paragraph shall be made on the basis of all the evidence available in the individual's case file, including new evidence concerning the individual's prior or current condition which is presented by the individual or secured by the Secretary. Any determination made under this paragraph shall be made on the basis of the weight of the evidence and on a neutral basis with regard to the individual's condition.....

42 U.S.C. § 1382c(a)(5).

Congress's command to hear all of the evidence is not new. The amendments apply, with certain exceptions, only to those subclass members for whom the Secretary made or will make disability determinations on or after October 9, 1984. Pub. L. No. 98-460, §§ 2(d), 2(e). However, the basic rule of evidence applicable to administrative agencies generally is that “[a]ny oral or documentary evidence may be received and an agency is to exclude evidence only when it is ”irrelevant immaterial, or unduly repetitious.“ 5 U.S.C. [sect ] 556(d). ”A party is entitled to present his case or defend by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Id. The Social Security Act, since well before the recent amendments, likewise has called for “individualized determinations based on evidence adduced at a hearing.” Heckler v. Campbell, supra, 461 U.S. at 467 (citing 42 U.S.C. §§ 405(b) (1976 ed., Supp. V), 423 (d)(2)(A), Finally, the Secretary's own stated rule since at least as early as 1965 also shows a preference for full and true disclosure of the facts: “Whether or not an impairment in a particular case ... constitutes a disability .... is determined from all the facts of that case.” 20 C.F.R. § 404.1520(a) (1965), quoted in Chico v. Schweiker, 710 F.2d 947, 949 (2d Cir. 1983).

1. Listings Analysis

   It therefore comes as a surprise that once acceptable treadmill results are in the file of a claimant with ischemic heart disease, they control the Listings analysis to the exclusion of other medical evidence. Defendants assert that the Listings provide several approaches for evaluation of ischemic heart disease, and that absent an acceptable treadmill test report, other medical evidence may be considered under the criteria applicable to it, set forth in sections 4.04B and 4.04C of the Listings. Correlatively, however, when an acceptable treadmill test is available, the only approach permitted under the Listings is the criteria in section 4.04A, applicable exclusively to treadmill results.

   Defendants argue that there is substantial medical support for the use of the treadmill test in adjudicating claims of cardiovascular impairments. No doubt there is support for the test, though plaintiffs have significantly undercut defendants' representation of how accurate the test is.11 The issue, however, is not the test's accuracy, but whether there is any justification for supplanting admittedly material and objective medical findings with the results of a single test. Because defendants concede that the treadmill test is often inaccurate, see note 11 supra, they forego the argument that alternative medical tests are excludable as unduly repetitious or superfluous. Where no test is perfect, in other words, every test that is helpful ought to be considered.

   The Secretary's reliance on treadmill results in certain cases would be perfectly appropriate if the test measured a subject matter (such as jobs in the national economy) susceptible of resolution within a single rulemaking proceeding. See, e.g., Heckler v. Campbell, supra, 461 U.S. at 467-68 (1983). The determination of a claimant's medical condition, by contrast, is necessarily among the most individualized, case-by-case decisions that the Secretary makes. Id. at 467 (citing 42 U.S.C. § 423(d)(2)(A). To ignore all medical findings other than the treadmill test results deprives the claimant of the opportunity to prove his “particular limitations” not reflected in the latter results. See Heckler v. Campbell, supra, 461 U.S. at 462 n.5, 467 n.11. As the claimant bears the burden of making a prima facie case of disability, 42 U.S.C. § 423(d)(5), 1382c(a)(3), it is unfair thus to take away his means of proving his case.

   Exclusion of medical evidence has other impermissible ramifications. Findings and conclusions of a treating physician cannot be given the weighty consideration they are due, see Stieberger v. Bowen,801 F.2d 29, 31 (2d Cir. 1986), when treadmill results displace them. A claimant's subjective complaints of pain, with or without corroborating objective findings, also cannot be considered as is required. See Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984).

   In short, an administrative adjudicator cannot be expected to reach an independent judgment in applying the Listings when presented with only some of the facts.12 As there is no dispute about the exclusion of much medical evidence from the Listings analysis when an acceptable treadmill report is available, plaintiffs are entitled to judgment as a matter of law, See Empire Electronics Co. v. United States, 311 F.2d 175, 179 (2d Cir. 1962), Rule 56(c), F.R. Civ. P.

2. Residual Functional Capacity

   The exclusion of relevant medical evidence from the RFC evaluation at steps 4 and 5, if established, would also entitle plaintiffs to summary judgment for essentially the reasons set out above. The RFC assessment, like the determination whether a claimant's impairment meets or equals the Listings, is of necessity highly individualized. See Bowen v. City of New York, supra, ____ U.S. at ____. 106 S. Ct. at 2027. In other words, the claimant must be given the chance to show that the treadmill test should not apply to him, and to rebut the test results with other medical evidence of his particular limitations. See Heckler v. Campbell, supra, 461 U.S. at 462 n.5, 467 & n.11. This other evidence means any facts relevant to the claimant's own functional abilities, including but not limited to treating physicians' opinions and the claimant's subjective complaints of pain. Simply put, the claimant's RFC must be evaluated individually, not bureaucratically. See Bowen v. City of New York, supra, ___ U.S. at ____, 106 S. St. at 2027 see also Cabral v. Heckler, 604 F. Supp. 831, 835 (M.D. Cal. 1984).

   Defendants argue that the treadmill test is the only commonly available test that can provide information directly pertinent to RFC assessments. The answer to this contention, to the extent it remains unaddressed, is that claimants have the right to present pertinent evidence indirectly as well as directly. Much medical evidence, which defendants imply is not directly pertinent, reflects a diagnosis for the presence of ischemic heart disease rather than a measure of the “graded functional loss” resulting from the disease. Defendant's Reply Memorandum at 13-14. No one argues, however, that diagnostic evidence of heart disease is not probative of a claimant's capacity to function and to work. Indeed, certain medical findings such as an angiogram may by themselves establish heart disease of such severity that under the Listings analysis a claimant's disability is conclusive. Yet if the claimant's file includes treadmill results indicating a capacity to work, and if such results are in fact given exclusive precedence, other medical findings are effectively ignored no matter how severe they reflect an impairment to be. Such an arbitrary outcome is inconsistent with the individualized scheme of disability adjudication that the Social Security Act requires. See Heckler v. Campbell, supra, 461 U.S. at 467, Cabral v. Heckler, 604 F. Supp. At 835.13

   As already noted, however, the parties have taken sides in a debate matching the purport of the Secretary's regulations against the testimony of his medical experts. If the debate raises a genuine issue as to some material fact, partial summary judgment for either party will be improper and resolution of the debate will have to await trial. Rule 56(c), F.R. Civ. P., see Empire Electronics Co. supra, 311 F. 2J at 180-81.

   At the same time, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., U.S. , , 106 B. Ct. 2505, 2511 (1986). The evidence must be significantly probative, not just colorable, id., because the summary judgment rule is aimed at isolating and disposing of factually unsupported claims or defenses. Celotex Corp. v. Catrett, _____ U.S. ______, _______, 106 S. Ct. 2548, 2553 (1986).

   In the instant case, plaintiff has carried its initial burden — as a party moving for partial summary judgment — of informing the court of the basis for the motion and identifying those portions of the affidavits, depositions, and like materials which demonstrate the absence of a genuine issue of material fact. See id, Specifically, plaintiffs point to the deposition testimony of Drs. Weber and Bierenbaum as indicative of an undisputed policy in fact of precedence for treadmill results and exclusion of other medical evidence from RFC assessments. See notes 9-10 supra.

   At this point, it is incumbent upon defendants to come forth, by affidavits or other discovery materials, with “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, supra, _____ U.S. at ______, 106 S. Ct. at 2553 (quoting Rule 56(e), F.R. Civ. P.). Defendants obviously have alleged that, contrary to plaintiffs' contentions, the Secretary's policy for RFC assessments is consistent with what the regulations require. They so allege in their pleadings and in affidavits of Barbara G. Rodbart, the Social Security Administration's Director of Disability Programs for the New York Region.

   However, rather than designating “specific facts” to substantiate their version of the Secretary's policy, defendants' assertions in their pleadings and affidavits are based almost entirely on the rules themselves; that is, regulations and other guidelines such as the POMS and Social Security rulings, which reiterate the regulations. Significantly, defendants neither attempt to impeach nor address the deposition testimony of the Secretary's medical experts, Drs. Weber and Bierenhaum. Rather, they rely on interpretations of the Secretary's rules by Ms. Rodbart, an official responsible for implementing disability policy. Invocation of what the rules require is insufficient to show that the Secretary's actions meet those requirements.

   Moreover, even if bare citation of regulations and guidelines could for present purposes constitute a sufficient factual showing, defendants' rendering of the relevant rules is itself equivocal. Ms. Rodbart's affidavit states that POMS guidelines do not require exclusion of other relevant medical evidence:

   The suggested RFC set forth in the POMS (¶ DI 00401.590C) is based solely on the performance of the treadmill exercise test to certain exercise (MET) levels without positive signs of ischemia and reflects SSA's (the Social Security Administration's) policy to give priority to exercise test results and their measure of function in adjudicating ischemic heart disease. . . . SSA recognizes, however, that such RFC, as reflected by the exercise test results, may not be retained where the individual is restricted by other cardiac impairments or where the claimant has any other documented limitations.

   Affidavit of Barbara C. Rodbart, Nov. 15, 1985, v. 43. Though implying that non-treadmill evidence may be considered in RFC assessment of multiple impairments, the affidavit remains consistent with plaintiffs' position that whenever possible the evaluation of ischemic heart disease alone relies exclusively on treadmill results.

   Similarly equivocal is the assertion that the presumptions set forth in the POMS "were intended to facilitate the adjudication of disability claims but should not take precedence over the conclusions that flow from findings of fact in a given case. Id. ¶ 44 (citing State Agency Memorandum 44-81 (Saut. 17, 1981)). The memorandum itself from which Ms. Rodbart paraphrases reveals that treadmill test results are the only conclusive “findings of fact” in a given case and that they are overriding when they indicate an ability to do heavy work, though other signs, such as evidence of myocardial infarction or coronary bypass may reflect a more restricted functional capacity:

   If a properly performed treadmill exercise test ... has been performed, and the results show the capacity for heavy work activity, this evidence would override any presumption raised by a history of myocardial infarction or coronary bypass concerning the individual's [in]ability to perform heavy work. In no instance should guides take precedence over the conclusions that flow from findings of fact in a given case. Hence, for a claimant who has had a myocardial infarction or a coronary bypass and who has demonstrated, by a properly performed treadmill test, a capacity for heavy work, it would be appropriate and consistent with (certain POMS guidelines) to conclude that the individual has a nonsevere impairment.

   State Agency Memorandum 44-81 (Sept. 17, 1981), reproduced in Defendants' Memorandum, Exh. O at 2. In the same interagency memorandum, Ms. Rodbart herself summarizes this policy:

   The Social Security Administration's Central Office advises that post-[myocardial infarction] and post-bypass surgery cases are always more than non-severe (i.e. moderate to moderately severe) and preclude heavy work unless subsequent treadmill testing shows a capacity for heavy work in which case the impairment would be non-severe.

   Id. at 1 (emphasis in original).

   Far from contradicting plaintiffs' contention that treadmill test results displace other relevant medical evidence in RFC assessments, these examples of the priority given to treadmill results, read in context, support plaintiffs' contention. In other words, there is no real conflict in what the parties say, and no genuine issue of material fact.14

   Because the exclusion of evidence from RFC assessments, like the exclusion from the Listings analysis, is not genuinely in dispute, plaintiffs are entitled to partial summary judgment. See Empire Electronics Co., supra, 311 F.2d at 179.

3. Conclusion

   The Secretary's policy of giving priority to treadmill test results has resulted in the exclusion of relevant medical evidence from both the consideration of whether a claimant's impairment meets or equals the Listings and the assessment of the claimant's RFC. Enforcement of the policy has denied plaintiff subclass members their right to present such evidence in support of their disability claims. There being no genuine factual issue as to the existence of the policy, plaintiffs' motion for partial summary judgment is granted and defendants' cross motion for partial summary judgment is denied.

IT IS SO ORDERED.

Dated: New York, New York

January 12, 1987

                                                                                                                     /s/                                                                                                     ROBERT L. CARTER                                                                                                               U.S.D.J.

NOTES

1. Otis R. Bowen, M.D., succeeded Margaret Heckler as the Secretary of the Department of Health and Human Services on December 13, 1985, and is substituted as a defendant herein. Rule 25(d), F.R. Civ. P.

2. ODD's federal funding and its authority to make determinations depend on its compliance with the Secretary's regulations and guidelines, and its decisions are directly reviewable by the Secretary. 42 U.S.C. §§ 421(a)(2), 421(c), 421(e), 13835(a); see Bowen v. City of New York, _____ U.S. _____, _____, 106 S. Ct. 2022, 2025 (1986). Plaintiffs accordingly bring this action to challenge the Secretary's alleged enforcement of ODD's compliance with per se rules, as well as his own alleged use of such rules in determinations at the federal level. Subsequent discussion of the Secretary's disability adjudication policy should be understood to encompass both his own determinations and his enforcement of state determinations.

3. Judge Lasker has preliminarily enjoined the Secretary from applying this “threshold severity” regulation, 20 C.F.R. §§ 404.1520(c), 416.920(c), to the class of New York State residents whose SSDI or SSI benefits the Secretary has withheld or would withhold on the basis of the restriction. Dixon v. Heckler, 589 F. Supp. 1494, 1502-06, 1511 (S.D.N.Y. 1984) (Lasker, J.), aff'd, 785 F.2d 1102 (2d Cir. 1986). Although some of the plaintiff subclass members in the instant case may also be members of the Dixon class, plaintiffs do not rely on the Secretary's application of the unlawful regulation as a ground for challenging other policies in this case. Accordingly, the court expresses no opinion whether, independent of the violations alleged herein, the Secretary has wrongfully withheld disability benefits from plaintiff subclass members on the ground that their impairments are not severe.

4. An impairment “meets” the Listings if it is specifically included therein, and “equals” the Listings if, though not itself included, it is equal in severity to at least one impairment that is enumerated. 20 C.F.R. §§ 404.1520(d), 404.1526, 416.920(d), 416.926 (1986).

5. Apparently, all of the named subclass members suffer from ischemic heart disease, although the subclass is defined also to include individuals impaired by hypertensive vascular disease, myochardiopathies, or rheumatic or syphilitic heart disease. The parties largely confine their discussion to the Secretary's disability determinations for claimants with ischemic heart disease. However, the Secretary may incorporate the procedures at issue here in adjudicating the claims of unnamed subclass members with other of these impairments. See Listing §§ 4.03, 4.09. The court's conclusion as to the challenged procedures should therefore control the validity of the Secretary's adjudication of the latter group of claims insofar as he does in fact incorporate the challenged procedures.

6. Similarly, a claimant who does not undergo a treadmill test can establish disability if other medical evidence in the record shows that his impairment or combination of impairments meets or equals the Listings. See Listings §§ 4.00G1, 4.00G4. 4.04B.

7. The intervals are measured in multiples of METs, one MET representing the estimated oxygen uptake of an individual at rest.

8. Plaintiffs agree, however, that at least as of late the Secretary allows evidence of two additional factors, namely, the effects of work-related stress and environmental restrictions (such as temperature) on the claimant. Plaintiffs' Surreply Memorandum at 8.

9. Dr. Weber's deposition reads in part:

   Q. Suppose that the claimant has had an angiogram and that the results meet the [L]istings. Can the claimant be found capable of performing only light work based on the results of the angiogram if he has also had a stress test (i.e., a treadmill test) and has completed 7 METs without significant positive (irregular) findings?

   A. No.

   Q. Is there any set of circumstances absent other types of heart impairments under which a claimant can be found to meet or equal the [L]istings for ischemic heart disease or to be capable of performing only light work if he has completed 7 METs on the stress test without significant positive findings?

   A. No heart disease other than ischemic heart disease completes 7 METs, are there any circumstances under which —

   Q. —can be found capable of performing only light work.

   A. Not if there is no other disease or impairment.

   Q. Is there any set of circumstances under which a claimant without other heart impairments can be found to meet or equal the [L]istings for ischemic heart disease or to be capable of performing only light or medium working [sic] who has completed 10 METs on the stress test without significant positive findings?

   A. No.

   Affidavit of Marla Tepper, Apr. 17, 1986, Exh. A at 122-23.

10. Dr. Bierenbaum's deposition reads in part:

    Q. In the absence of a non-cardiovascular complaint, could the individual be found solely on the basis of his ischemic heart disease to be capable of performing only light work if he had completed seven [MET]s on the stress test without any significant positive findings?

    A. No, the presumption would be that he should be able to do medium work.

    Q. Suppose the claimant has ischemic heart disease and has had an angiogram; suppose that the result of the angiogram meets the [L]istings. Can the claimant be found to meet the [L]istings based on the results of the angiogram if he has also had a stress test and he has completed seven METs without any significant positive findings?

    A. The answer to that would be no, because a stress test takes precedence.

    Q. Suppose, again, that the claimant has had an angiogram and that the results meet the [L]istings. Can the claimant be found capable of performing only light work based on the result of the angiogram if he has also had a stress test and has completed seven [MET]s without significant positive findings?

    A. The answer, so as not to be redundant on the other one, is that he would be found to be capable of doing medium work.

    Q. I believe you have answered this, but just so we are completely clear, is there any set of circumstances under which the claimant can be found to meet or equal the [L]istings for ischemic heart disease or to be capable of performing only light work if he has completed seven [MET]s on the stress test without any significant positive findings?

    A. No.

    Q. Suppose a claimant has ischemic heart disease and has had an angiogram; suppose the results of the angiogram meet the [L]istings. Can the claimant be found to meet the [L]istings based on the results of the angiogram if he has also had a stress test and has completed ten [MET]s without significant positive findings?

    A. The answer is that he cannot be found to meet the [L]istings.

    Q. Can he be found capable of performing only light work based on the results of an angiogram that meets the [L]isting [sic] if he has performed ten METs?

    A. No.

    Q. Can he be found capable of performing only medium or light work based on the results of an angiogram that meets the [L]istings?

    A. No.

    Q. And just for the record, is there any set of circumstances under which the claimant can be found to meet or equal the [L]istings for ischemic heart disease, or be capable of performing only light or medium work if he has completed ten [MET]s on the stress test without significant positive findings?

    A. The answer would be yes, again, should there be a second condition.

    Q. In the absence of a second condition?

    A. No.

    Affidavit of Marla Tepper, May 7, 1985, Exh. A at 24-27.

11. As plaintiffs point out, the study on which defendants place primary reliance for the accuracy of the treadmill test concludes that the test fails to identify the presence of ischemic heart disease 38 percent of the time, rather than 11 percent as defendants assert. Compare Plaintiffs' Reply Memorandum at 15 & n.*, 16 & n.*, with Affidavit of Peter Chodoff, M.D., Nov. 14, 1985, ¶ 19 (citing Bruce, Values and Limitations of Exercise Electrocardography, 50 Circulation (July 1974)).

12. The exclusiveness of the Secretary's reliance on treadmill results is not mitigated by the general proposition that a claimant with an unlisted impairment can “equal the Listings” by proving that his impairment is equal in severity to a listed impairment, 20 C.F.R. §§ 404.1526(a), 416.926(a). That proposition has no bearing on the issue here because, quite simply, ischemic heart disease is a listed impairment. Listings, §§ 4.00D, 4.04. Plaintiffs' assertion that treadmill results supplant other relevant evidence in the adjudication of claims of this listed impairment remains uncontradicted.

13. Defendant also cite regulations and other guidelines calling for consideration of work-related stress and environmental restrictions, e.g., 20 C.F.R. §§ 404.1545, 416.945, as examples of the Secretary's policy of hearing evidence other than treadmill test results. These “examples” are not particularly helpful. They do not contradict or even address plaintiff's assertion — confirmed by Drs. Weber and Bierenbaum — that claimants are being precluded from presenting medical findings to rebut treadmill test results.

14. Speculation remains over the inferences to be drawn from “returns,” cases returned to ODD by the Secretary with accompanying instructions for correction. The parties offer conflicting interpretations. However, such speculation does not suffice to defeat a motion for summary judgment and, in any event, in view of the lack of disagreement over the Secretary's policy as outlined above, the significance of the returns is immaterial. Knight v. U.S. Fire Insurance Co., 804 F.2d 11-12 (2d Cir. 1986).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE STATE OF NEW YORK, CESAR PERALES, as
Commissioner of the New York State Department of Social
Services, THE CITY OF NEW YORK, THE COUNTY OF
SUFFOLK, PETER F. COHALAN, as County Executive of the
County of Suffolk, ANITA ROMERA, as Commissioner of the
Suffolk County Department of Social Services, and WALTHON
WHITE, HAYDEE GUZMAN, ANIBAL VILLANUEVA,
RAFAEL RIVERA, GLADYS DOMINGUEZ, HECTOR
MUNIZ, LUIS DIAZ, CATHRYN GIBBONS, MARIA
GONZALEZ, JORGE PEREZ, EDWARDA RIVERA, AND
HERMINA GONZALEZ, and all others similarly situated,

Plaintiffs,

- against -

LOUIS W. SULLIVAN, M.D., as Secretary of
the United States Department of Health
and Human Services; DORCAS HARDY, as

Commissioner of the Social Security
Administration; and THE UNITED STATES

DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants.

THE COURT having certified a class on March 11, 1985, consisting of:

All New York State residents with cardiovascular impairments whose applications or eligibility for SSDI or SSI disability benefits have been or will be denied or terminated by the application of per se denial rules on or after June 1, 1980;

AND the Court having further certified a subclass of individuals from the above class consisting of those:

Who have ischemic heart disease, hypertensive vascular disease, myocardiopathies, or rheumatic or syphilitic heart disease and whose disability benefits have been or will be denied or terminated based on the application of per se denial rules pertaining to treadmill exercise tests;

AND plaintiffs, having moved the Court for partial summary judgment, or alternatively for a preliminary injunction, and defendants having cross-moved for partial summary judgment, and this Court having issued an opinion dated January 12, 1987, filed by the Clerk of the Court on January 13, 1987, IT IS HEREBY ORDERED THAT plaintiffs' motion for partial summary judgment is granted, and defendants' cross-motion for partial summary judgment is denied and that:

1. Substantive Relief

   1. Defendants shall readjudicate subclass members' cases. In readjudicating those cases, defendants shall fully develop and consider all relevant evidence, including newly-obtained evidence, in each subclass member's claims file(s). Defendants are permanently enjoined from considering the results of a treadmill exercise test (“TET”) to the exclusion of other relevant evidence and from failing to consider all relevant evidence in assessing the disability of subclass members. Defendants shall base their assessment of disability of subclass members at steps 2, 3, 4 and 5 of the sequential evaluation process upon an overall evaluation of the claimant's signs, symptoms and laboratory findings, and the treating physicians' opinions.

   2. Defendants shall consider all signs, symptoms and laboratory findings demonstrated during treadmill exercise testing irrespective of whether the test was completed.

   3. In all cases in which an adjudicator, at any level, proposes to rely on the results of a TET to deny or terminate benefits, if the record contains inconsistent or contradictory signs, symptoms, laboratory findings, or treating physicians' opinions, the adjudicator shall provide a rationale justifying his reliance on the TET.

   4. Defendants are permanently enjoined from denying or terminating a claimant's disability benefits based primarily on the results of a TET which “shows the capacity for heavy work.” See State Agency Memorandum 44-81 (Sept. 17, 1981). Defendants shall base their assessments of disability for these claimants upon all the relevant evidence in the claimants' claims file(s) as set forth in paragraphs 1 and 2 herein.

2. Instructions

   5. Defendants shall draft instructions for properly evaluating the eligibility of subclass members for benefits. These instructions shall be provided to plaintiffs' counsel and all offices adjudicating cases of subclass members (“the adjudicating offices”), including the New York State Office of Disability Determinations (“ODD”), the Social Security Administration's Office of Hearings and Appeals (“OHA”), the Appeals Council and the New York Regional Office. These instructions shall be consistent with the language of this Court's January 12, 1987 opinion and shall contain the substance of the provisions set forth in paragraphs 1 through 4 of this Order and Judgment. These instructions shall replace any existing instructions regarding adjudications based on TETs that are not consistent with this Order and Judgment.

   6. Defendants shall provide plaintiffs' counsel with a copy of their proposed instructions for readjudicating cases of subclass members within 90 days of the date that this Order and Judgment is entered. Plaintiffs' counsel shall then have 30 days to submit any objections to those instructions to defendants' counsel. In the event that the parties cannot resolve their differences within 30 days thereafter, the proposed instructions and objections will be submitted to this Court for its resolution of the dispute.

   7. Defendants shall provide plaintiffs' counsel with a copy of their proposed instructions for screening subclass members within 90 days of the date that this Order and Judgment is entered. Plaintiffs' counsel shall then have 30 days to submit any objections to these instructions to defendants' counsel. In the event that the parties cannot resolve their differences within 30 days thereafter, the proposed instructions and objections will be submitted to this Court for its resolution of the dispute.

   8. After the substance of the instructions in paragraphs 5, 6, and 7, above, has been agreed to by the parties or has been decided by the Court, the instructions shall be sent to New York State Social Security Administration offices and to ODD within 30 days.

   9. Defendants shall provide plaintiffs' attorneys with copies of all teletypes, program operations manual system (“POMS”) instructions, program circulars and temporary instructions and other documents issued to effect compliance with this Order and Judgment as these documents are issued.

   10. Defendants shall also provide training to the staff of ODD concerning the implementation of the instructions upon the specific request by ODD for such training.

3. Identification of Subclass Members

   11. (a) Once instructions are issued pursuant to paragraph 8 above, defendants shall send a notice to all potential subclass members identified by Social Security Administration (“SSA”) records whose disability claims were denied or who were terminated from entitlement to Social Security Disability Insurance (“SSDI”) benefits or Supplemental Security Income (“SSI”) benefits at Step 3, 4, or 5 of the sequential evaluation process, set forth in 20 C.F.R. §§ 404.1520 and 416.920 (1988), between June 1, 1980 and February 1, 1987 and those whose records were coded “170” and were denied or who were terminated from entitlement to SSDI or SSI benefits at Step 3, 4, or 5 of the sequential evaluation process from February 1, 1987 to the date that the new adjudicative instructions are issued pursuant to paragraph 8. Defendants also shall send a notice to all claimants whose disability claims were denied or who were terminated from entitlement to SSDI or SSI benefits at Step 3, 4 or 5 of the sequential evaluation process from February 1, 1987 to the date that the new adjudicative instructions are issued pursuant to paragraph 8 and who have been identified by ODD to have had a treadmill exercise test, but whose records were not coded “170.” These notices will instruct the potential subclass member to return an enclosed postage paid postcard (or envelope) if he wishes to receive relief under this Order and Judgment. If a potential subclass member responds to the notice, SSA will issue him a written acknowledgement of receipt of the response.

       (b) Defendants shall provide plaintiffs' counsel with a copy of their proposed notice to potential subclass members and proposed postcard (or envelope) within 60 days after this Order and Judgment is entered by the Clerk of the Court. Plaintiffs' counsel shall then have 30 days to submit any objections to this notice to defendants' counsel. Defendants shall then have 30 days to revise the notice. In the event that the parties cannot resolve their differences within 30 days thereafter, the matter will be submitted to this Court for its resolution of the dispute.

       (c) After the substance of the notice and postcard (or envelope) in subsections (a) and (b) above has been agreed to by the parties or has been decided by the Court, and once instructions are issued pursuant to paragraph 8 above, defendants will immediately begin mailing the notice in staggered increments representing twenty percent (20%) of the total potential subclass size. Mailing of notices will be completed within 24 months of the date that instructions are issued pursuant to paragraph 8. Defendants shall use every good faith effort to screen for subclass membership on a continuous flow basis and as expeditiously as possible, and shall attempt in good faith to complete the screening of all potential subclass members' and to commence readjudications of all subclass members' cases within 24 months after the initial notice is mailed. Potential subclass members will have 120 days from receipt of the notice to respond to the mailing. Defendants shall presume that the notice was received 5 days after the date of mailing and the mailing date shall be marked on the notice. Subclass members who respond to the notice after 125 days from the date of mailing shall receive full relief as subclass members if they demonstrate that they are responding within 120 days of their actual receipt of the notice, or if they demonstrate that they have “good cause” as defined in 20 C.F.R. §§ 404.911 and 416.1411 (1988) for missing the 120-day deadline.

       (d) In addition, defendants shall reproduce in both the English and Spanish languages a 17 inch by 22 inch poster, the language of which will be agreed upon by the parties or submitted to the Court for resolution of any dispute. The poster shall also serve as a notice to potential subclass members. Equal numbers of English and Spanish language copies of this poster will be prominently displayed in all SSA offices in the State of New York to which the public has access and plaintiffs' attorneys will be supplied with 1100 copies of this poster. Plaintiffs may specify what percentage of the 1100 posters they wish to have prepared in the Spanish language. Potential subclass members will have either 120 days to respond to SSA's release of these posters or 120 days to respond to the mailing in paragraph 11(a) and (c) above, whichever is later.

   12. Upon entry of this Order and Judgment, defendants are directed to make good faith efforts to immediately inform all SSA district offices and all adjudicating offices that they are required to maintain a list of all individuals who identify themselves as subclass members (“walk-ins”), and defendants shall ensure that such notice is received by those offices no later than ten (10) days after entry of this Order and Judgment by the Clerk of the Court. Defendants shall be deemed to have fully complied with this paragraph of the Order and Judgment if they have so informed SSA district offices and adjudicating offices within one (1) month prior to the entry of this Order and Judgment by the Clerk of the Court. Walk-ins will receive a written acknowledgment that they have elected to have their case reviewed under this Order and Judgment.

   13. SSA will respond, in writing, to any written inquiry from an individual concerning the status of his subclass membership claim.

   14. For those individuals who respond to a notice or walk in and identify themselves as potential subclass members to an SSA district office or any other adjudicating office, a screening process will be conducted to determine if they are subclass members. In doing so, SSA's records will be reviewed to determine if: (1) the individual was denied benefits or terminated from entitlement to benefits between June 1, 1980 and the date that the instructions in paragraph 5 are issued, and (2) the results of a TET were considered in adjudicating his claim. After screening each file, the adjudicating office will readjudicate the cases of those individuals determined to be subclass members. ODD will screen the cases of the individuals claiming subclass membership whose application(s) or termination(s) was last adjudicated by ODD and will readjudicate the cases of those subclass members who are included in paragraph 19(a) and/or paragraph 20(a)(1), but defendants shall have the right to relieve any backlog or overflow of cases by distributing or shifting cases to an adjudicating office other than ODD. The defendants will adjust ODD's workload, including the processing of initial claims, reconsiderations and Continuing Disability Reviews (“CDRs”), as necessary in order to achieve the time goals set forth in paragraph 11(c).

   15. If it is determined that an individual is a subclass member, defendants shall mail a notice to such subclass member within 30 days of that determination. If it is determined that an individual is not a subclass member, defendants shall provide a notice with an explanation of why he is not a subclass member to the individual within 30 days of that determination. Such notice shall advise the individual that he may contact the “Cardiac Case Membership Unit,” c/o Legal Services for the Elderly, if he is dissatisfied with defendants' determination. If the Cardiac Case Membership Unit establishes that there is a dispute between the parties as to whether an individual is a subclass member, it shall refer such dispute in writing to the Social Security Division of the Office of the General Counsel, United States Department of Health and Human Services, Altmeyer Building, 6401 Security Blvd., Baltimore, Maryland 21235 (“OGC”), for resolution. Individuals claiming to be subclass members retain the right to contact OGC without the assistance of the Cardiac Case Membership Unit. Either party or any individual claiming subclass membership may submit any unresolved dispute concerning an individual's subclass membership to the Court for resolution.

   16. Defendants shall provide to plaintiffs' counsel a draft of the notices that will be used to notify claimants of subclass membership decisions within 60 days of the date of entry of this Order and Judgment by the Clerk of the Court. Plaintiffs' counsel shall then have 30 days to advise defendants' counsel of any objections or comments. Defendants shall then have 30 days to revise the notice. In the event that the parties cannot resolve their differences, any dispute regarding the language in the notices shall be submitted to this Court for final resolution.

   17. In the event that a notice mailed pursuant to paragraph 11(a) is returned as undeliverable, the defendants shall remail the notice to the same address. If the second mailing is also unsuccessful, the defendants shall attempt to obtain a better address by contacting the post office, checking defendants' automated records, and working with the potential subclass member's servicing SSA district office for reasonable leads for the purpose of locating the potential subclass member. Defendants shall also attempt to obtain better addresses by providing a computer tape to the New York State Department of Social Services' (“NYSDSS”) so that NYSDSS can perform a match with its public assistance, food stamp, and other records. The defendants shall mail a third notice to all potential subclass members for whom other addresses are obtained.

   18. If a potential subclass member's claims file(s) must be reviewed for a subclass membership determination and cannot be located within 120 days from the date on which the folder is called up for review, and if SSA's records confirm that the individual applied for or had been receiving SSDI or SSI disability benefits and his entitlement to such benefits was denied or terminated on or after June 1, 1980, the defendants shall reconstruct the evidence that is necessary to make a subclass membership determination and shall contact the potential subclass member so that the individual can aid in reconstructing the evidence. If an individual's claim was been coded “170,” SSA shall consider that individual to be a subclass member entitled to receive a readjudication under this Order and Judgment, irrespective of whether SSA is able to locate the actual claim folder, if the individual has timely responded to the notice provided by defendants in paragraph 11, unless evidence that is later adduced demonstrates that the individual is not, in fact, a subclass member.

4. Readjudications

   19. The readjudication of subclass members' claims will be handled as follows:

       (a) Subclass members whose benefits application(s) or termination(s) that forms that basis of subclass membership was last adjudicated by ODD, will receive a readjudication, for all claims, appealable to an Administrative Law Judge (“ALJ”) and will retain all rights to further administrative and judicial review as provided in 42 U.S.C. §§ 405(g) and 1383(c)(3) and 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N (1988).

       (b) Subclass members whose benefits application(s) or termination(s) that forms the basis of subclass membership was last adjudicated by an ALJ or by the Appea