III. Class Certification
Plaintiffs seek certification of a class, pursuant to Rule 23(a) and (b)(2), Fed. R. Civ. P., including all claimants for Social Security benefits whose claims have been or will be assigned to ALJ Anyel for decision, and all claimants who have received an adverse decision from ALJ Anyel, not reversed on any subsequent appeal.
Rule 23 governs the certification of class actions and has as its main objectives the efficient resolution of the claims or liabilities of many individuals in a single action, as well as the elimination of repetitions litigation and possibly inconsistent adjudications. See C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 1754.
Pursuant to Rule 23(a), one or more members of the class may sue or be sued upon the meeting of four requirements:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims and defenses of the class and; (4) the representative parties will fairly and adequately protect the interests of the class.
Once these criteria have been satisfied, plaintiffs must also satisfy the requirement of Rule 23(b)(2) that:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
According to plaintiffs, the proposed class numbers in the hundreds, if not thousands. Although the individual identities of the proposed class members are known only to defendant, plaintiffs point out that according to defendant's own records, ALJ Anyel was assigned 678 claims in 1988, of which she denied 416. Affidavit of Toby Golick, filed June 26, 1990 at para. 4. Court decisions reviewing ALJ Anyel's denials of claims reflect that she had been sitting from at least 1984 until her suspension in 1991.
Plaintiffs claim that questions of law and fact common to the class include whether ALJ Anyel is biased against all disability claimants and whether her misconduct, uncorrected by the Secretary, deprives claimants of their right to a fair hearing. The named plaintiffs had their claims decided adversely by ALJ Anyel and assert that ALJ Anyel was biased against them, predisposed to deny their claims and unwilling to follow applicable law.
The Secretary raises a host of objections to class certification, which when reduced to their essentials, can be restated as two principal arguments: first, that the proposed class is overbroad and, when defined in an appropriately narrow way, fails to meet the numerosity requirement of Rule 23(a)(1); and second, that the claims of the proposed class members do not contain common questions of law and fact sufficient to meet the requirements of Rule 23(a)(2).
The Secretary's first objection to certification concerns the inclusion of claimants in the proposed class who have not met the requirements for federal court review of the Secretary's denial of their claim as outlined in 42 U.S.C. § 405(g).
The Secretary contends that most if not all of the proposed class members fail to meet the requirements of § 405(g) and are therefore ineligible for federal court redress of their claims. According to the Secretary, once these ineligible individuals are excluded from the proposed class, the remaining members are too few in number to satisfy the numerosity requirement.
Section 405(g) sets forth two prerequisites to federal court review of the Secretary's decisions. First, claimants are normally required to exhaust administrative remedies before seeking relief in federal court. For the reasons stated above, in the discussion of plaintiffs' bias claim, the Court is of the view that waiver of the exhaustion requirement is warranted here. Therefore, the Court will confine its discussion here to the second requirement of § 405(g), that claims be presented to the district court within 60 days of the Secretary's final decision.
The 60-day appeal requirement has been held to be a limitations period and not a jurisdictional limitation. Mathews v. Eldridge, supra, 424 U.S. at 328, n. 9; Bowen v. City of New York, supra, 476 U.S. at 478. Equitable tolling of this limitations period "is not infrequently appropriate as Congress intended to be unusually protective of claimants in this area." Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991). While in most cases the decision concerning whether it is proper to extend the limitations period is left to the Secretary, in certain cases the equities in favor of tolling are "so great that deference to the agency's judgment is inappropriate." State of New York v. Sullivan, supra, 906 F.2d at 917 (quoting Mathews v. Eldridge, supra, 424 U.S. at 330)).
Equitable tolling is appropriate in situations where plaintiffs could not have been aware of the susceptibility of the Secretary's decision to court challenge at the time they allowed their judicial remedies to expire. In State of New York v. Sullivan, supra, 906 F.2d at 917, the Court of Appeals held that equitable tolling was proper where the Secretary adopted, but failed to make public, rules governing the evaluation of disability claims involving certain forms of heart disease. The Supreme Court similarly held in Bowen v. City of New York, supra, 476 U.S. 467, that tolling was warranted in the cases of mentally impaired disability plaintiffs whose claims were denied pursuant to an unstated government policy. In arriving at its holding, the Court relied in part on the following point:
All of the class members who permitted their administrative or judicial remedies to expire were entitled to believe that their Government's determination of ineligibility was the considered judgment of an agency faithfully executing the laws of the United States. Though they knew of the denial of benefits, they did not and could not know that those adverse decisions had been made on the basis of a systematic procedural irregularity that rendered them subject to court challenge.
Id. at 480-81 (quoting City of New York v. Heckler, supra, 742 F.2d at 738)). This reasoning applies equally in the instant action. This case does not resemble Pittston Coal Group v. Sebben, 488 U.S. 105, 123, 102 L. Ed. 2d 408, 109 S. Ct. 414 (1988), where agency action was taken pursuant to a published regulation of which the parties should have been aware. If, as plaintiffs allege, ALJ Anyel was biased against disability claimants in all cases, none of the individual members of the proposed class could have been aware of such a generalized bias at the time of his or her hearing. Therefore, equitable tolling of the limitations period is warranted here, and those individuals whose claims were denied by ALJ Anyel and allowed the 60-day period to lapse are appropriately included in the proposed class.
The second ground on which the Secretary objects to class certification is his contention that the claims of the proposed class members do not present sufficient common questions of law and fact to warrant treatment of this case as a class action. According to the Secretary, in Social Security disability cases, the facts underlying each claim are different and each hearing is unique. Thus, the Secretary contends, each claim turns on its specific factual circumstances and is so individualized that certification would be improper here.
The Secretary's argument fundamentally misapprehends the nature of plaintiffs' claims. While the proposed class members' individual claims for benefits are indeed fact specific, in this case plaintiffs raise a more general claim concerning the nature of the hearing accorded the proposed class members. Plaintiffs do not seek to prove that ALJ Anyel committed errors in one or more of her decisions but instead that she is predisposed to deny claims in each and every one of her cases. In order to prevail, plaintiffs must establish that ALJ Anyel's bias is so pervasive that all of her decisions are presumptively tainted. While this may be a difficult hurdle to overcome, the difficulty goes to the merits of plaintiffs' claim and not to its amenability to class treatment.
Accordingly, because the Court determines that the action satisfies the prerequisites of subdivisions (a) and (b)(2) of Rule 23, Fed. R. Civ. P., plaintiffs' motion for class certification is granted.
IV. The Cross-Motions Regarding Almonte's Individual Claim for Benefits
The Secretary has moved to remand the individual claim of named plaintiff Almonte for further administrative proceedings. Plaintiffs do not oppose defendant's motion for the period of time prior to January 25, 1988, but cross-move for judgment on the pleadings with respect to the period beginning on that date. Plaintiffs argue that the application of controlling law to the administrative record establishes that Almonte is disabled and entitled to an award of benefits.
A court's function in reviewing the Secretary's findings is a limited one. The court must assess whether substantial evidence in the record supports the Secretary's findings, and if so, these findings are conclusive. Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). Substantial evidence in this context has been defined as "more than a mere scintilla; it is such relevant evidence as a reasonable person might accept to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)). The Secretary's decision must be affirmed if supported by substantial evidence and not the product of legal error.
A disability claimant is considered legally disabled if he is incapable of substantial gainful activity due to a physical impairment that has lasted or can be expected to last for a period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(3)(A). To qualify for disability benefits, the claimant must be unable to perform his previous work or any other kind of substantial work. Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981).
In order to establish a prima facie case of disability, the claimant must show that his impairment prevents his return to his prior employment. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984). The burden then shifts to the Secretary to "produce evidence to show the existence in the national economy of alternative substantial gainful work which the plaintiff could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
After Almonte's first hearing in December, 1986, ALJ Ashley found that Almonte could not return to her past relevant work. Tr. 20. Thus the remaining issue to be determined was whether she could engage in any substantial gainful activity that existed in the national economy. To make this determination, the administrative law judge was required to consider Almonte's "residual functional capacity" and her "age, education and work experience." 20 C.F.R. § 404.1505(a); Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir. 1990). The Secretary has prepared a medical-vocational grid which governs such determinations and reflects an analysis of the effect of the factors listed above on what type of work, if any, an individual is capable of performing. 20 C.F.R. Pt. 404, Subpt. P, App. 2; Vargas v. Sullivan, supra, 898 F.2d at 294.
ALJ Ashley found that Almonte was capable of performing a full range of light work. Tr. 20. The medical-vocational grid applicable to a person who is capable of light work mandates a finding of "not disabled" for a person under the age of 50 who is illiterate or unable to communicate in English and who is unskilled or has no previous work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, Rule 202.16. Since Almonte was under age 50 at the time ALJ Ashley considered her claim, he ruled that she was not disabled. Tr. 21. Because Almonte did not appeal this decision, it became final and binding. 20 C.F.R. § 404.955
Plaintiffs argue that it was error for ALJ Anyel to find that Almonte was not disabled, since in her decision ALJ Anyel formally adopted the findings of ALJ Ashley. In so doing, they contend, she necessarily adopted the finding that Almonte was limited to "light work." While ALJ Anyel ultimately found that Almonte had no impairments which significantly limited her work-related activities, plaintiffs argue that ALJ Anyel arrived at this conclusion without providing any justification for departing from the findings made by ALJ Ashley. Since Almonte turned 50 on January 25, 1988, plaintiffs argue that the medical-vocational guidelines mandate a finding that she was disabled as of that date.
The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly in the administrative setting than in a judicial one. See Union Mfg. Co. v. Han Baek Trading Co., Ltd., 763 F.2d 42, 44-46 (2d Cir. 1985). A final decision of the Secretary may be reopened under certain limited circumstances, such as when new and material evidence is furnished or when there is a clear error on the face of the decision. 20 C.F.R. § 404.989. Here, ALJ Anyel cited no reason for departing from the finding that Almonte was incapable of performing more than light work. Nor does any of the evidence presented at the second hearing support such a departure. Moreover, the language of the decision itself precludes such an interpretation. The decision states unequivocally: "This case is not being reopened. The previous Administrative Law Judge's findings are incorporated by reference." Tr. 12.
It was error for ALJ Anyel to disregard the finding of ALJ Ashley that Almonte was limited to light work in the absence of new evidence at the second hearing that would support such a departure. Instead, ALJ Anyel should have considered the change in Almonte's age status as a changed circumstance warranting a departure from ALJ Ashley's ultimate finding of no disability. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The table applicable to individuals with a residual functional capacity for light work requires a finding of "disabled" for individuals over 50 who are illiterate in English and are unskilled or have no prior work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, Rule 202.09. Since both ALJ Ashley and ALJ Anyel found that Almonte is unskilled and unable to communicate in English, a finding that she is disabled and entitled to benefits as of January 25, 1988 was mandated.
"Where application of correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). Accordingly, the Secretary's decision is reversed as to the period beginning January 25, 1988. The case is remanded for further administrative proceedings with respect to the period prior to January 25, 1988, and for the purpose of calculating benefits to which Almonte is entitled.
For the foregoing reasons, defendant's motion to dismiss is denied, without prejudice to renewal solely with respect to that portion of the complaint that seeks to prevent the assignment of cases to ALJ Anyel in the future. Plaintiffs' motion for class certification is granted, as is their motion for judgment on the pleadings regarding Almonte's individual claim for benefits for the period beginning January 25, 1988. Defendant's motion to remand Almonte's claim is granted with respect to the period prior to January 25, 1988, and is otherwise denied. The parties are directed to file a status letter with the Court on or before February 28, 1992.
Settle order on notice.
Dated: New York, New York
February 13, 1992
Robert J. Ward