Salling v. Bowen

MEMORANDUM OPINION

This complaint was filed on November 12, 1982 by seven applicants for Social Security benefits, seeking injunctive and declaratory relief and challenging a proposed experiment whereby a government advocate appeared at their Social Security and Supplemental Security Income (SSI) disability hearings. The challenged program began operations October 12, 1982 and was considered a demonstration project under *1048 the supervision of the Office of Hearings and Appeals (OHA) called SSA Representation Project (SSARP). The court notes initially that it is contended by the plaintiffs in this case that this is an experimental program of the Social Security Administration (SSA); whereas, the Department of Health and Human Services (HHS) in the various memoranda regarding this matter refer to it as “Adjudicatory Improvement Project” (AIP), indicating that there is a difference between an experiment and a project. Initially this program was to be conducted in the SSA’s Offices of Hearings and Appeals (OHA) in Kingsport, Tennessee; Baltimore, Maryland; Columbia, South Carolina; Brentwood, Missouri; and Pasadena, California. However, for reasons which are not necessary to go into at this time, the Brentwood, Missouri Program has been discontinued. The Kings-port, Tennessee OHA serves the Southwest Virginia area and appeals from many of the decisions from the Kingsport office are therefore filed in this court. Thus, in the early stages of this program, this court was invited to attend a seminar-type hearing at which the program was explained for the edification of lawyers, the public and the court. This court was not able to attend in person but United States Magistrate Roy V. Wolfe, Jr. did attend this hearing as a representative of the court and informed the court of the general nature of the proceedings. As the exhibits in this case reveal, this program was to last for one year. 1a Since this suit was instituted on November 12, 1982, exactly one month after the program came into being, and since the original suit papers moved for a preliminary injunction, an immediate hearing was scheduled by the court. On March 16, 1983, twenty-one additional plaintiffs filed a complaint concerning this same matter, requesting leave to intervene in this case and alleging that they were parties who had hearings either scheduled or completed before the Kingsport, Tennessee OHA and had been adversely affected by the program. These plaintiffs were permitted to intervene by an Order dated March 28, 1983 and Margaret Heckler, the new Secretary of HHS, was named as the party defendant.

On March 28,1983, the court conducted a hearing on the motion for preliminary injunction, heard argument of counsel and evidence was presented in support of the respective positions of the parties. The court expressed the opinion at that time that since the program was for one year only and that the evidence needed to be further developed, the parties should proceed with discovery and an ample opportunity should be given to see how the program was working before the court arrived at any decision. Defendant filed a motion to dismiss and the plaintiffs renewed their motion for permanent injunction and for summary judgment. On October 4, 1983, approaching the end of the year’s experimental program the court entered an Order denying defendant’s motion to dismiss and overruling the plaintiffs’ motion for summary judgment and directing the defendant to file with the court certain statistical data from the Kingsport, Tennessee OHA and other reports pertaining to the effect of the program and the case was continued.

In the meantime, the plaintiffs instituted a discovery process which is now a part of the record. Also many documents have been submitted on behalf of the defendant. *1049 This court has continued to monitor this program through cases which have come before this court, through various documents which have come into the hands of this court from various sources, and in particular, from documents which have been obtained from the Kingsport, Tennessee OHA.

Among the early documents filed by the defendant in this case is a report dated September 28, 1983 filed by Joy Loving. Ms. Loving is identified as the Acting Director of the SSARP. Joy Loving is described further as a person who reports to AU Edward Steinman, Director of the Office of Field Administration, OHA. The Chief AU of OHA is Phillip P. Brown. The report of Joy Loving dated September 28, 1983 is directed to Louis B. Hayes, Associate Commissioner, OHA, and the subject of the report is “Status of SSA Representation Project — Decision.” In this document, Loving summarizes as follows:

I do not believe we yet have sufficient data to accurately assess the effects of the project. Of special significance is that a number of events and circumstances have occurred during the project’s initial implementation period which have significantly affected HO performance. These include: the increases in receipts of requests for hearings and in the proportion of project and non-project cases in which the issue is continuing disability; installation of the Wang equipment; staffing problems in part the result of the hiring of decision writers from the participating HO’s as SSAR’s and the publication of numerous Social Security rulings, to establish a single set of adjudicatory standards for SSA decision makers ... rulings which the SSAR’s have been using extensively in stating the SSA’s position in SSARP hearings.

The report goes on to state that the data is so inconclusive that it cannot show any effect of the SSARP one way or the other. The report takes note of the fact that this particular lawsuit challenging the project is pending and discusses various options as to what should happen at the end of the one-year period of the project. The report considers the pros and cons of three options: (1) discontinuing the SSARP; (2) continuing the SSARP for one year; and (3) continuing the SSARP and expand it to additional offices. In discussing the cons of these various options, Loving states as follows: “Since there have been significant difficulties with three of the five current SSARP OHAs, continuation alone might not yield wholly useful data.” Loving goes on to note that if options (1) or (2) are selected, they could get by without any Federal Register notice; but option (3) would require a Federal Register notice. In keeping with a well-known dogma in the current world of bureaucratic operations, that a bureaucracy feeds upon itself, it is not surprising that Loving recommended option (3) That is, that the program be continued beyond its original year and that it be expanded to additional offices.

On December 18,1984, this court permitted nine more plaintiffs to intervene in this suit. In the meantime, various parties who had been permitted to intervene as plaintiffs had arrived at a position where their cases were pending before this court and were being delayed pending the outcome of this case. Therefore, this court opted to allow various plaintiffs to have their cases heard individually on the merits and permitted them to withdraw from this action. Many of the plaintiffs took advantage of this procedure. At that point in time, the court was still under the impression that this was a one-year program and that once the plaintiffs’ cases had been disposed of on their merits, and particularly assuming a favorable decision had been arrived at, the case would become moot. However, as we shall see, the program has fed upon itself and is now embarked upon a period of expansion. Therefore, the time has come when it is necessary for the court to consider this case on its merits.

Before going into the operation of SSARP, it is necessary to review the administrative procedures involving Social Security and the role of SSARP in the overall administrative procedure as it exists today.

*1050 JURISDICTION

The original plaintiffs and all intervening plaintiffs contend that this court has jurisdiction under § 205(g) of the Act, 42 U.S.C. § 405(g). The defendant Secretary of HHS conversely contends that this court lacks jurisdiction because none of the original plaintiffs nor intervening plaintiffs exhausted their administrative remedies before filing this action or intervening therein. This contention was also advanced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (Brennan, J. dissenting), the controlling Supreme Court decision in procedural due process cases involving exhaustion of administrative remedies as a jurisdictional prerequisite to district court appellate review. While it is all but axiomatic that in the usual case of appellate review of decisions of administrative agencies that exhaustion of administrative remedies is an essential prerequisite to appellate review, the Eldridge majority carved out an exhaustion exception in the following calculus:

Implicit ... is the principle that this condition [exhaustion of administrative remedies] consists of two elements, only one of which is purely ‘jurisdictional’ in the sense that it cannot be ‘waived’ by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary. Absent such a claim there can be no ‘decision’ of any type. And some decision by the Secretary is clearly required by the statute.

Id. at 328, 96 S.Ct. at 899 (emphasis added).

The Eldridge Court further concluded:

That this second requirement is an essential and distinct precondition for § 405(g) jurisdiction ... Eldridge [as have the original plaintiffs and intervening plaintiffs] has fulfilled this crucial prerequisite.

Id. at 329, 96 S.Ct. at 900.

Continuing, the Eldridge majority said:

Eldridge [as do the plaintiffs herein] concedes that he did not exhaust the full set of internal-review procedures provided by the Secretary____ [But the Court] ... recognized, the Secretary may waive the exhaustion requirement if he satisfies himself, at any stage of the administrative process, that no further review is warranted either because the internal needs of the agency are fulfilled or because the relief that is sought is beyond his power to confer____ the power to determine when finality has occurred ordinarily rests with the Secretary since ultimate responsibility for the integrity of the administrative program is his. But cases may arise where a claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate.

Id. at 330, 96 S.Ct. at 900 (emphasis added).

As the Court observed in Eldridge, “This is such a case,” we hold that this also is a case in which deference to the agency’s judgment is inappropriate.

As in Eldridge, the constitutional challenge of the original plaintiffs and the intervening plaintiffs is entirely collateral to his (their) substantive claim(s) of entitlement. Without exception each of the plaintiffs has raised a colorable constitutional claim that because of their physical condition or dependency upon disability benefits, an erroneous determination brought about or contributed to by the SSARP would deprive him of due process, and would damage him in a way not recompensable through retroactive payments. See, Id. at 331, 96 S.Ct. at 900. The court, therefore, holds that it does have 405(g) jurisdiction in this case. Cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (where the Court held that a pretermination evidentiary hearing is necessary to provide a welfare recipient with procedural due process; the Eldridge Court differentiated Goldberg primarily on the basis of the dire economic circumstances of a welfare recipient as contrasted to those of a social security disability insurance benefits recipi *1051 ent); 1 and Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (where the Court held that 42 U.S.C. § 405(h) requires exhaustion of administrative remedies before seeking district court appellate review in a social security § 405(g) appeal but found that the Secretary had waived the exhaustion requirement. The Eldridge Court distinguished claimant Salfi’s situation from that of claimant Eldridge and construed Salfi in the process).

AN OVERVIEW OF THE ADMINISTRATIVE PROCESSES AND COURT PROCEEDINGS AVAILABLE TO PLAINTIFFS SEEKING SOCIAL SECURITY BENEFITS

Because almost every wage earner and self-employed person in the United States are required by law to pay into the Social Security system, these citizens have every right to expect that, when the time comes for them to be recipients of the Social Security fund, they will be treated fairly by those administering the program. Therefore, the administrative processes in the SSA should be the fairest in any of the various administrative procedures of government. It should be simple, efficient, streamlined and speedy within due process limitations. In actuality, the administrative procedures for obtaining Social Security are the most cumbersome, unfair, contradictory, inefficient to be found in all the various government agencies in all the bureaucracy. Every person who applies for disability Social Security benefits should be considered to be an honest citizen until shown to the contrary. Instead, the process appears to infer that the applicant is viewed with suspicion and the burden is on him or her to prove to the contrary. The administrative processes which are conducted in Social Security cases should be designed to seek out the truth; instead, the hearing processes from the time a person applies for disability Social Security benefits through the Appeals Council procedures are geared to deny claims rather than pursue truth wherever it leads. If it is true in the criminal process that it is better for several guilty people to go free than that one innocent be put behind bars, it seems better for a few people to obtain disability Social Security benefits who may not be entitled to them or who may be borderline cases than that deserving disabled people be stripped of benefits or denied benefits because of cumbersome bureaucratic proceedings. This court has no doubt that in every city and hamlet that there are people on the street who are drawing disability Social Security benefits and are as able to work as anyone. On the other hand, it is just as easy to look to the other side of the street and see an individual near death, from common observation, completely unable to perform any kind of *1052 function and yet, his or her claim has been pending four or five years or more, or been completely and finally denied. Of course, perfect justice is elusive, but something is wrong in this society where this particular process is so lengthy, the procedures so cumbersome, and the rules and regulations so subject to change.

There are four essential steps in the Social Security claims procedure before a case is brought to this court: (1) the initial stage; (2) reconsideration; (3) hearing; and (4) Appeals Council review. Since the procedure is practically identical, the court will discuss the initial stage and reconsideration under the same heading.

A. INITIAL STAGE AND RECONSIDERATION

When a person files a Social Security claim involving disability, it is first filed in the SSA District Office and is then forwarded from the District Office to the state Disability Determination Service (DDS). The DDS of each individual state therefore makes the initial determination of whether or not a person is disabled. In 1981, the average denial at the first stage of state review was 60%. 2 The percentage of allowances on initial claims varied from 41.5% in Rhode Island to 19.3% in Puerto Rico. 3 Neither at the initial stage nor at the reconsideration stage is the individual ever seen by any of the persons who make the decision in the DDS. When a person is denied benefits at the initial stage, he has a right to ask for reconsideration within sixty days. This simply means that the DDS reexamines the file by placing it in the hands of a new adjudicator who is not familiar with the case. Usually, no additional evidence is acquired at this point and the decision is made solely upon the application and medical records in the file. Under the most recent statistics, the reconsideration affirms 87% of the initial denials. 4 The SSA’s ALJs use the Act, as amended, and the Federal Regulations promulgated by the SSA to determine disability and these same standards are also used by the Appeals Council and by United States District Courts and Courts of Appeals. In contrast, the states do not use either the statute or the regulations. They use a manual provided by SSA named Social Security Program Operation Manual System (POMS). The POMS completely ignores federal court decisions interpreting the Act and in many instances are in direct conflict with the Social Security statutes and regulations. 5 Some of the examples of the differences between the POMS and other regulations are: (1) The POMS does not have any guidelines for pain so that pain is simply ignored by state disability analysts, even though the decisions by the courts are in complete unanimity that pain within itself may be a disabling condition. (2) The SSA regulations have a specific definition of a non-severe impairment, while the POMS lists twenty examples of conditions which are considered non-severe; therefore, the examples which are used by the states are arbitrary standards which do not have any standing in law and prevent each case from being decided on its own merits. These rules have been adopted without any opportunity for public comment and do not have any standing in law whatsoever. (3) The Social Security regulations and the POMS also have a different perspective concerning the determination of residual functional capacity. The POMS use their own medical criteria in deciding what a person can do despite his limitations and these cover only three impairment areas of an individual, musculoskeletal, cardiovascular and pulmonary. The POMS is therefore arbitrary in nature and gives no consideration to the possibility that two people may have different limitations based upon the same impairment. Furthermore, the *1053 state agencies do not even have the same classifications for work and do not give any consideration to the classification of sedentary work. (4) The POMS does not recognize alcoholism and drug addiction as being disabling in and of themselves, despite the fact that Social Security regulations recognize and define alcoholism and drug addiction. In other words, before one who has an alcoholic or drug condition can be found disabled by a state agency, he must have another impairment which constitutes a disability. (5) The POMS has a different standard for determining a rehabilitation exemption by allowing only persons who are not expected to improve to continue to receive benefits until their rehabilitation process has been completed. Furthermore, the POMS has a time in which recovery is expected in a rehabilitation program and one does not receive disability under the POMS once this period of time has been reached regardless of the condition of the person. (6) The POMS provide an entirely different standard with regard to consultative medical examinations. The state agency gives far more weight to its own consultative examinations than it does to the evidence which is in the claimant’s file. Court decisions require that great weight be given to the existing medical evidence and in particular, the reports of treating physicians. The state agency regards its own consultative examinations as conclusive and is inclined to completely ignore the data which is presented by the claimant. Even if there is sufficient medical evidence already in the file to make a determination of the person’s disability, the POMS requires a mandatory consultative examination before Social Security benefits are granted; therefore at this early stage, conflicting medical reports enter the claimant’s file, which hamper or prevent obtaining medical benefits. 6

B. THE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE

The first face-to-face meeting that an applicant for Social Security disability benefits has after application is with an AU. There are approximately eight hundred AUs within the SSA which makes the SSA-AU corps more numerous than Article III judges. The total number of AUs for all agencies of government is authorized at approximately thirteen hundred and generally, the Social SSA’s corps makes up about 60% of all AUs. 7 When the claimant appears before an AU, he or she will appear before a person not wearing a judicial robe, who is required by law to act with three hats, (1) a judge, (2) a representative of the government who cross examines the claimant, and, (3) an adviser to the claimant, required by regulation to fully develop the case to see that the claimant has a fair hearing regardless of whether the claimant is represented by counsel or otherwise. The proceeding is informal and a hearing assistant will be present to make a tape of the hearing. The AU always begins a hearing by explaining his or her impartiality and the fact that he or she is not paid by the SSA but by the Office of Personnel Management. The hearing by the administrative law judge is a de novo hearing, meaning that all previous decisions are not binding. Thus, AUs’ decisions are not reversals because the AU .looks at the matter from a fresh perspective and, for the first time, hears oral testimony and looks at a live person, rather than reviewing a stale record. The testimony is taken under oath. However, the AU has no contempt power nor very little other powers that ordinary judges possess. The burden of exploring all pertinent facts and issues rests with the AU and in many cases, the person is not represented by counsel nor by any other person. Under mandates of the SSA, not only is the hearing before the administrative law judge informal but it is non-adversarial in nature and the AU must develop the case record on behalf of the SSA and the claimant; informal rules of evidence *1054 apply and are much more lenient than in court proceedings. Thus, in seeking justice, an AU may accept into evidence an old scrap of paper by a long-deceased physician as long as it is germane to the claimant’s case. This is the only proceeding in which a claimant is heard and seen by anyone who even claims to be disinterested in his case until such time as his case may be taken to court. Sixty percent of the persons who were denied disability benefits at the reconsideration stage appealed their decisions to an AU 8 and by 1980, the reversal rate had reached 60% overall and 65% in cases involving cessation of benefits for individuals once declared disabled by SSA.

While an AU tells a claimant who appears before him that he is an independent person, charged with making an independent decision, and despite the fact that the history of the appointment of AUs and court decisions support the view that an AU is an entirely independent entity, the efforts to control the independence of judges in the last ten years by upper echelon bureaucrats is astounding. The job description of an AU and the fact that he or she is divorced from the SSA itself by being placed over in another agency and paid by another agency would tend to establish the independence of the AU. Furthermore, the Administrative Procedures Act (APA) guarantees the independence of AUs. The United States Supreme Court has made it clear that a hearing examiner’s findings and conclusions should be given weight independent of higher agency evaluation. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Nevertheless, in recent days, the United States Court of Appeals for the Fourth Circuit has held that Universal Camera does not apply to Social Security AUs. Thus, this court reviews the decision of the higher agency, in this case, the Appeals Council, rather than the AU. Kellough v. Heckler, 785 F.2d 1147 (4th Cir.1986); Gross v. Heckler, 785 F.2d 1163 (4th Cir.1986). Furthermore, in 1978, the United States Supreme Court supported the independence of all AUs throughout the bureaucracy by ruling that AUs within federal agencies are entitled to absolute immunity from damage liability. Butz v. Economu, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In 1980, in Nash v. Califano, 613 F.2d 10 (2nd Cir., 1980), it was held that an AU with the SSA OHA had standing to sue upon the alleged invasion of his statutory right of decisional independence and the case was reversed and remanded to the United States District Court for the Western District of New York for trial on the merits. Despite these decisions, because of high AU reversal rates, both Congress and the Executive Branch of government have carried on a campaign to control the independence of AUs, in theory, to hold down the number of people who are placed on disability Social Security. To understand the thrust of the SSARP it is helpful to review the prior and continuing restraints on AUs.

THE QUOTA SYSTEM

In 1975, the Bureau of Hearings and Appeals, now the OHA, commenced procedures designed to increase the productivity of AUs. This was accomplished by offering incentives to those AUs who had high production by increasing their support staff, by treating them more favorably in transfers and by providing them trips to the National Judicial College at Las Vegas. On the other hand, productivity was pushed through threats of firing. In 1978, one of the issues in a law suit filed by five AUs against the SSA concerned threats of firing for low productivity. Bono et al v. Social Security Administration et al, No. 77-0819-CVW-4 (W.D.Mo.1979). This case was eventually settled, one of the terms being that OHA would not issue directives or memoranda setting any specific number of dispositions by AUs as quotas or goals. During hearings before a subcommittee on Social Security in 1979 before the House Committee on Ways and Means, the subcommittee staff concluded:

*1055 The greater emphasis in all phases of the process has been placed on ‘moving the cases’ rather than rendering fair and sound decisions. Up to now, in BHA’s continuing struggle to achieve a balance between quantity and quality, the definite winner has been quantity. 9

The Bono settlement and hearings by Congress however did not end the quota system. In 1982, the Director of Field Administration directed regional chief administrative law judges to take appropriate adverse action against under — achieving administrative law judges. At least one result of this was that four administrative law judges had low productivity charges leveled against them. One of these retired before going to a full hearing, while the other three eventually received exonerating decisions from the hearing board. 10

In 1981, Louis Hayes, Associate Commissioner, told Congress that he had set a goal of forty-five dispositions per month for the administrative law judges. In 1982, in testifying before the Senate Subcommittee on Oversight of Government Management, administrative law judge Francis J. O’Byrne, Sr. testified as follows:

Meeting the heavy and ever-increasing caseload has not been without cost. My decisional quality is not as good as it once was. I do not have time to polish decisions. Instead of striving for good to very good decisions, I have to settle for good enough. ... I cannot maintain this level of monthly decisions for any extended period of time. In order to close 166 cases through April 1982, I have come to the office early, have worked on Saturday, traveled to out of state hearing sites on my own time and worked a 70-hour week on a hearing trip to Wisconsin. Judges all over the country have been making this extra effort because we wish to accommodate claimants waiting for a hearing. The judges do not get paid for overtime or receive compensatory time.

This AU was disposing of cases at the rate of 41 per month.

It matters not whether one calls this “quotas” or “goals.” The net result is that according to Congressional findings and according to AUs and certainly from the viewpoint of this court, the increase of productivity has resulted in harm to the claimants. When one places a goal of numbers rather than the pursuit of truth and justice, then the emphasis is misplaced, particularly in Social Security hearings. The sole emphasis should be on a fair hearing. It is the observation of this court from reviewing opinions of 25 to 30 different AUs per year, that their biggest single failure has been in properly developing the case from the claimant’s standpoint. This duty is specifically charged to the AU and when he is threatened with production goals, he has an inclination to accept the cases as he finds them without obtaining additional reports.

QUALITY CONTROL

Beginning in 1975, or early 1976, a quality assurance program was instituted in three parts: (1) quality review system; (2) appellate appraisal system; and (3) regional chiefs peer review system. All three of these programs were aimed at picking out those AUs with a high reversal rate of state DDS denials. This program exists in one form or another right on down to the present day. It is basically a system whereby the higher authorities in the OHA continue to monitor the opinions of those judges who render decisions favorable to the claimants. This program operates under the presumption that if an AU is rendering too many decisions in favor of the claimants, he is more inclined to be wrong than those who are denying claims. *1056 Among other things that were done to the judges was to send them to school where they were given additional instruction in regulations. As part of the settlement in the Bono case, OHA promised to prepare a memorandum to the AUs describing the operation of the quality assurance program, including the quality review system and to issue a memorandum clarifying the status of the regional peer review and the hearing office manager program. Pursuant to the Bono settlement, the Acting Associate Commissioner for Hearings and Appeals issued a memorandum to the AUs emphasizing that the quality review system was not designed to assess individual AUs or the particular decisions rendered. If, however, there was ever intention to cease the review of those AUs who had a high reversal rate, it was short-lived. In the disability amendments of 1980, the Bellmon amendment (Section 304(g)) called for a pre-effectuation sample review of AU allowances over state denials. These were implemented and without going into details as to the review, the AUs with a high allowance rate were reviewed and if an AU had a proven decisional accuracy as determined by the Bellmon review, then he would be taken out of the review system. The Bellmon review was designed to provide data on the overall percentage of “defective cases” meaning those which had some sort of deficiency as determined by higher authorities. If the AUs did not meet the standards which were set out by the Bellmon review, they would be called in for counselling, or given additional training and were threatened that if improvement did not occur, that is, if the number of reversals did not decline, other steps would be considered. Beginning in October, 1981, 65 AUs who had the highest individual allowance rates received an own-motion recommendation by the Appeals Council. The AUs involved received a memorandum from the Chief AU informing them that they had been selected for review and in essence, was telling the AUs that their rate of reversal decisions was too high and that they would continue under review until this was corrected. If there ever was a chilling of judicial independence, this is it. This is like threatening a lawyer with disbarment if he takes a case of a controversial nature. This is the same as saying that every law judge in the country should be deciding a certain percentage of cases against the claimant.

THE GRID SYSTEM

This is a system whereby the Secretary has established tables known as the “grids” which outline major functional and vocational patterns in order to assess a claimant’s ability to work relative to that of an able-bodied person. It is applied in a sequential evaluation whereby the AU begins by determining if the individual is engaged in substantial gainful activity and if he or she is, they are not disabled. Next, there is a determination of whether a person has a severe impairment. Then whether he or she has an impairment which meets or equals a listed impairment in App. 1, Subpt. P, Pt. 4, 20 C.F.R. See 20 C.F.R. §§ 404.1520 and 416.920. If it is found that a person does not meet a listing, the question comes, whether or not the individual can return to his or her past relevant work. As this court has pointed out, the grids focus upon a mechanical non-human type of determination to place everyone in the same type of disability mold. It does not take into account that a problem which might handicap one person might not handicap another. This was another device arrived at by the SSA to decrease the number of reversals which were occurring from the AUs’ reversals of state DDS findings. This court has discussed the grids in detail in Phillips v. Harris, 488 F.Supp. 1161 (W.D.Va.1980). The United States Supreme Court has upheld the grid regulations, however, it found that the grids cannot be applied where there are both exertional and non-exertional impairments present in a claimant, but that a vocational expert should be called to address the issue of transferability of skills if pertinent to the case. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). When the grids were implemented, the SSA *1057 thought that there would be a decrease in reversals by AUs. However, the statistics show that the effect has been just the opposite. The new regulations require findings of disability in many cases that would have previously been denied because the grids group individuals by age, education and work skills. This arbitrary grouping of classifications does not allow the AUs to consider the claimant as an individual, that is, a separate human being. This arbitrary grouping by classification of the grids requiring the AU to find disability was in direct conflict with the state judgment made under the POMS. Therefore, in 1980, reconsideration denial under the state POMS had grown to 82.2%, whereas, the AU allowance rate was increasing because of the use of the grids. The primary result of the grids was to increase the number of people over age 50 being entitled to an automatic finding of disabled.

DOCTRINE OF NON-ACQUIESCENCE The Second Circuit stated in an opinion in 1980:

The position of any administrative tribunal whose hearings, findings, conclusions and orders are subject to direct judicial review is much akin to that of the United States district court ... and as must a district court, an agency is bound to follow the law of the circuit.

Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir.1980); cert. denied 449 U.S. 975, 101 S.Ct. 386, 66 L.Ed.2d 237 (1980). This, of course, is simply a restatement of the historic and fundamental doctrine of Marbury v. Madison, 1 Cranch. 137, 2 L.Ed. 60 (1803). The lower federal court rulings are laws which an agency must follow. In one of many decisions in which federal courts of the United States have expressed concerns by the failure of the Appeals Council to follow decisions of the courts {stare decisis), the courts have chastized the Appeals Council for its actions. In Finnegan v. Mathews, 641 F.2d 1340 (9th Cir.1981), it was held that an SSI recipient could not have his benefits terminated unless there had been an improvement in the medical condition or the prior state determination had been clearly erroneous. The SSA reacted to this decision by non-acquiescence and openly stated that its own policy provided that the claimant could be taken from the disability rolls at any time that he was found not to meet the requirements, meaning that even if they had not changed, the SSA could change the ruling at any time. Likewise, in Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982), a similar ruling was made by the Fifth Circuit and again, the SSA refused to acquiesce to the decision. In a memo dated May 23, 1984, the Deputy Commissioner of Programs and Policies, SSA, announced that the SSA was persisting in its policy of non-acquiescence to circuit and district court decisions. Recently, it has been publicly announced that the SSA is reviewing and is inclined to acquiesce, however, even to this date, AUs are in an untenable role and do not know what position to take. This court has interviewed many AUs from five or six different cities and all of them have expressed concern about orders which they receive to follow the policy of the administration rather than to acquiesce in court decisions, while other judges will openly state that they are attempting to follow court decisions and the rule of precedent in order to make an effort toward consistency in the application of law. All AUs with whom this court has spoken on the subject agree that each separate individual seeking benefits through federal court must file a suit simply because the Secretary of HHS refuses to administer precedent throughout the United States. AUs are also concerned by the selectivity of cases for appeal to the various circuit courts and to the United States Supreme Court in order to establish a definite precedent. Therefore, AUs are torn between two masters and cannot comfortably follow court precedent which has been properly indexed and formally reported in cases. If AUs would follow precedent, a reduction in their caseload would immediately occur. This court finds it necessary to remand many, many cases simply because AUs do not follow *1058 the precedent of the United States Court of Appeals for the Fourth Circuit. This makes it very difficult for this court. It appears that the purpose of the doctrine of non-acquiescence is to bar deserving claimants from receiving their Social Security benefits. This court recently had a case before it which was remanded in 1982 after having first come on the docket of this court in 1979. This case remained for four years in the administrative system below and the court was shocked at what had occurred while the case had been on remand. The court had remanded the case for reconsideration because of improper interpretation of the grids. Upon remand, the Appeals Council sent the case to an AU and when the AU made a favorable decision, the Appeals Council again reversed and sent it to another AU. Eventually, f