§402(j) to one year of benefits for the period before his application, assuming he was otherwise eligible but for the unconstitutional support test. The Social Security Administration has also indicated that it intends to pay the same benefits to similarly situated widowers, and that both groups would not be limited to persons denied before October 4, 1977. The estimate of the benefits at issue to husbands and widowers is $50 million for about 50,000 persons.

The government petitioned for certiorari on the grounds that (1) payment to the named plaintiff mooted the class action, (2) sovereign immunity bars back benefit claims based on constitutional challenges to the Social Security Act and (3) payment of back benefits would be an inequitable retroactive application of Califano v. Goldfarb and Califano v. Abbott. 430 U.S. 924 (1977). Plaintiffs argued that (1) named plaintiff's claim was not moot and even if it were, that did not make the class action moot; (2) sovereign immunity was waived by 42 U.S.C. §§402(c), 402(j)(1), 404(a), 405(g), 405(i) and 406(b); and (3) the relief was in large part not a retroactive application of Goldfarb and Abbott, thus the equitable retroactivity principles of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) should not apply to a section 405(g) case where Congress has predetermined the equities. Plaintiffs had filed a supplemental brief in opposition to the cert petition citing Cash v. Califano, No. 79-1279 (May 19, 1980) a case in which the Fourth Circuit agreed with the Seventh Circuit.

Plaintiff Challenges Use of Grid Regulations for Evaluating Vocational Factors in Determinations of Disability

29,959. Mingo v. Harris (S.D. Ala., filed May 30, 1980). Plaintiff represented by Marilyn Newhouse, Legal Services Corp. of Alabama, 207 Montgomery St., Montgomery, AL 36104, (205) 264-1471; Booker Forte. [Here reported: 29,959A Plf's Supp. Brief (17pp.).]

Plaintiff challenges the decision of the Department of Health and Human Services denying his claim for social security disability benefits. He complains that the administrative law judge (ALJ) failed to consider his testimony on pain and the cumulative effect of all of his illnesses on his ability to work. He also claims that the ALJ improperly applied the grid regulations, 20 C.F.R. §§404.1502 et seq., by failing to consider all relevant factors. He seeks an award of benefits.

background with a back injury requiring medication and four hours of traction daily. The administrative law judge found no disability under 20 C.F.R. §§404.1513 and 416.913 and Rule No. 201.23, Table No. 1 of Appendix 2, Subpart P, of the Social Security Regulations. Amicus argues that the findings were not based on substantial evidence, that use of the Medical-Vocational Guidelines ("grid regulations") effects a conclusive presumption which violates section 556(e) of the Administrative Procedure Act and the due process clause of the fifth amendment, and that the guidelines notice matters which could not be the subject of judicial or administrative notice absent inclusion in a rule. Amicus further argues that plaintiff made out a prima facie case of disability and that, despite the guidelines, the agency is required to make a particularized showing of claimant's ability to perform specific jobs and that pain and medication must be considered separately from the grids.

Widow's Disability Insurance Benefits Granted

29,796. Webb v. Harris (D. Conn., July 8, 1980). Plaintiff represented by Andrew Halpern, Connecticut Legal Services, 87 Main St., Norwich, CT 06360, (203) 889-1365. [Here reported: 29,796A Recommended Ruling on Cross Motion for Summary Judgment (18pp.); 29,796B Ruling on CrossMotions for Summary Judgment (13pp.); 29,796C Ruling on Motion for Reconsideration (2pp.)..]

Plaintiff was awarded Widow's Disability Insurance Benefits pursuant to a magistrate's report and recommendation. The administrative law judge (ALJ) had granted plaintiff's claim for Supplemental Security Income, but denied benefits under the widow's insurance program. The court ruled that the ALJ's findings that plaintiff could not do substantial gainful activity because she could not sit or stand for very long actually met the higher widow's disability standard of being unable to engage in any gainful activity. Thus, HHS (formerly HEW) was estopped from denying plaintiff's claim for widow's disability benefits. The court noted that, on other facts, a claim for widow's benefits could have been denied and a claim for SSI disability benefits granted without any inconsistency.

SSI Claimants Challenge New Medical-Vocational Guidelines

30,035. Patti v. Secretary of HEW (C.D. Cal., filed July 14, 1980). Plaintiff represented by Virginia Criste, Aurelia Wick, Paul Abram, Ronald Taylor, Michael Caballero (law student), Inland Counties Legal Services, 45-550 Grace St., Indio, CA 92201, (714) 342-1591. [Here reported: 30,035A Memo in Support of Motion for Summary Judgment (50pp.).]

30,036. Orozco v. Secretary of HEW (C.D. Cal., filed Aug. 1, 1980). Plaintiff represented by Modesto Rios, Virginia Criste, Aurelia Wick, Paul Abram, Ronald Taylor, Michael Caballero (law student), Inland Counties Legal Services, (ad

CLEARINGHOUSE REVIEW

dress above). [Here reported: 30,036A Memo in Support of Motion for Summary Judgment (54pp.).]

Both of these actions challenge the validity of the medical-vocational guidelines at 20 C.F.R. §§416.902 et seq. The plaintiff in Patti is appealing from the decision to terminate her SSI benefits; the plaintiff in Orozco appeals from a denial of SSI benefits. They argue that the medicalvocational guidelines are invalid because the guidelines (1) were never promulgated pursuant to 5 U.S.C. §553, (2) illegally shift the burden of proof of vocational testimony to the claimant, (3) create an irrebuttable presumption in violation of the fifth amendment, (4) deny claimants the right to cross-examination in violation of the sixth amendment, (5) rely on administrative notice, (6) deprive claimants of an individualized determination, and (7) discriminate on the basis of age in violation of equal protection and 42 U.S.C. §6102.

Both plaintiffs also argue that the agency's decisions were not supported by substantial evidence because, among other things, the administrative law judge (ALJ) arbitrarily disregarded the reports and opinions of treating physicians. In addition, plaintiffs challenge the decisions because no vocational testimony or report was offered into testimony.

In Patti, plaintiff argues further that she was not adequately advised of her right to obtain counsel at no charge if she was unable to afford private counsel. She also asserts that because she was unrepresented at the administrative hearing, the ALJ had a duty to ensure a fair hearing by assisting her in developing all the facts in her case pursuant to 20 C.F.R. §404.927.

the plaintiff and denied it to the defendant on the ground that the Secretary of HEW failed to provide substantial evidence in support of denial of benefits.

Plaintiff showed that his disabilities, which include chronic pancreatitis and cirrhosis, precluded him from engaging in his former employment. The Secretary found that claimant suffered only from pancreatitis and used the recently promulgated "grid" regulations to determine that claimant could perform other work in the economy. The court reversed the denial of benefits because (1) the Secretary had failed to consider all of claimant's disabilities in combination, (2) the Secretary had failed to adduce evidence from a vocational expert about jobs that were realistically within the claimant's physical and mental capabilities, (3) the Secretary had relied on medical evidence of the Social Security consulting physician in contradiction to all of the other medical evidence presented, and (4) the "grid" regulations cannot be used to manufacture evidence of ability to work. The court held that, before the Secretary can properly apply the new "grid" regulations to support a finding of "not disabled" in a particular case, she and the administrative law judge must first have particularized evidence relating to (1) the kinds of skills acquired through education and past work experience, (2) the transferability of those skills to other kinds of work, (3) the kinds of other jobs the claimant could perform, and (4) the availability of those other kinds of jobs in the region where the claimant resides or in other regions of the national economy.

The court reversed the denial of benefits and remanded to HEW for a new hearing.

Summary Judgment Granted to Plaintiff on Claim That Disability Had Not Ceased

30,030. Amarino, Jr. v. Califano (D. Hawaii, Aug. 20, 1980). [Here reported: 30,030A Decision & Order (15pp.).]

Plaintiff sought judicial review of an HEW decision denying his claim for reinstatement of SSI disability benefits. The court held that there was no substantial evidence that plaintiff's disability had ceased or that plaintiff was capable of performing gainful work on a sustained basis without endangering his health. The court granted plaintiff's motion for summary judgment.

Denial of Disability Benefits Reversed and Remanded

29,963. Schmidt v. Harris (N.D. Iowa, June 19, 1980). Plaintiff represented by Marsha Weinerman, Legal Services Corp. of Iowa, 9th & Main, Dubuque, IA 52001, (319) 588-4653. [Here reported: 29,963A Complaint (3pp.); 29,963B Answer (2pp.); 29,963C Def's Memo for Summary Judgment (14pp.); 29,963D Plf's Memo for Summary Judgment (24pp.); 29,963E Plf's Reply Memo (7pp.); 29,963F Order & Judgment (20pp.).]

Plaintiff was denied disability benefits and sought judicial review. The court has granted summary judgment to

NOVEMBER 1980

Claimant Receives Remand for Determination of Whether His Pain Is Disabling

30,067. Williams v. Califano (D. Md., Aug. 13, 1980). Plaintiff represented by Kevin Noland, Legal Aid Bureau, P.O. Box 187, Mt. Rainier, MD 20822, (301) 277-7830. [Here reported: 30,067A Memo in Support of Plf's Motion for Summary Judgment (13pp.); 30,067B Memo & Order (10pp.).]

Claimant sought review of the denial of his application for social security disability benefits. The court remanded the case for a determination of whether claimant's pain, either alone or in combination with his other ailments, is disabling. It found that the administrative law judge should have more explicitly evaluated the pain's impact on claimant, even though its intensity was shown only by subjective evidence.

Denial of SSI Benefits Reversed

30,119. Fuller v. Secretary of HEW (W.D. Mich., Aug. 22, 1980). Plaintiff represented by William Coash, Legal Aid Society of Calhoun County, 37 Capital Ave., NE, Battle Creek, MI 49014, (616) 965-3951. [Here reported: 30,119A Opinion (7pp.).]

The court ruled that the administrative law judge had

erroneously required claimant to show that there were no jobs in the national economy which she could perform after claimant had shown that she could not perform her usual work. The court reviewed the record and held that claimant was entitled to SSI disability benefits under the medicalvocational guidelines at 20 C.F.R. §§416.902 et seq. because of her advancing age, limited education, and history of unskilled employment.

Social Security Administration and Railroad Retirement Board Policy of Recouping Excess Earnings from Persons Receiving Benefits from Both Programs Is Challenged

30,109. Linquist v. Harris (W.D. Mo., filed July 31, 1980). Plaintiff represented by Gill Deford, Neal Dudovitz, Al Chiplin, National Senior Citizens Law Ctr., 1636 W. 8th St., Los Angeles, CA 90017, (213) 388-1381; Jacqueline Guidry, Eileen Sweeney. [Here reported: 30,109A Complaint (14pp.).]

This action challenges the policy of the Social Security Administration and the Railroad Retirement Board which requires persons who receive benefits from both programs to forfeit 100 percent of their excess earnings; a 50-percent benefit reduction is imposed by SSA, and an additional 50percent reduction is imposed by the board. Plaintiffs allege that this policy violates equal protection, due process, the principles of equitable estoppel, the Social Security Act (42 U.S.C. §§403(b), (f)(1), (f)(3) and (f)(8)), and the Railroad Retirement Act (45 U.S.C. §§231a(f) and (g)(2)). Plaintiffs seek declaratory and injunctive relief and a refund of all amounts recouped which exceed 50 percent of the exempt earnings amount.

Validity of Medical-Vocational Guidelines Upheld for Determining Eligibility for Disability Benefits

29,023. Stallings v. Harris (W.D. Tenn., July 14, 1980). Plaintiff represented by Michael Tabor, West Tennessee Legal Services, P.O. Box 2066, Jackson, TN 38301, (901) 423-0616. [Here reported: 29,023E Order (13pp.); 29,023F Judgment (1p.). Previously reported at 14 CLEARINGHOUSE REV. 391 (July 1980).]

Plaintiff filed this action alleging that the administrative law judge (ALJ) erred in finding that he was not entitled to disability insurance benefits and challenging the propriety of applying new medical-vocational guidelines as the basis for determining whether he was entitled to benefits. (The guidelines appear at 20 C.F.R. §§404. 1502 to 1513.) The district court upheld the validity of the regulations. The court found that (1) HEW did not exceed its statutory authority under 42 U.S.C. §405(a) in promulgating the regulations, (2) the regulations did not create an irrebuttable presumption because claimants are given a full opportunity to submit proof on each of the underlying adjudicative facts, and (3) the regulations do not apply an "average" person standard. The court concluded that the regulations were rationally designed to meet Congress' desire for a more orderly, comprehensible and uniform disability program.

The court held further that the agency's decision to apply the medical-vocational guidelines in this case was not erroneous and that there was substantial evidence to support the ALJ's conclusion that plaintiff's physical impairments allow him to perform light work and that his nonexertional problems do not limit that work capacity. Plaintiff is appealing to the Sixth Circuit.

Disability Claimant Obtains Remand Because ALJ Gave Too Much Weight to Vocational Expert's Opinion of Medical Evidence

30,059. Villaneuva v. Secretary of Health & Human Services (E.D.N.Y., Aug. 28, 1980). Plaintiff represented by John Gray, Ruben Nazario, Da Laurie Forsyth (law student), Brooklyn Legal Services, 105 Court St., Brooklyn, NY 11201, (212) 855-8003. [Here reported: 30,059A Memo in Support of Plf's Motion for Judgment on the Pleadings (28pp.); 30,059B Memo & Order (6pp.).]

The court ruled that the administrative law judge (ALJ) had erred in denying social security disability benefits to claimant because he had given too much weight to the explanation of the medical evidence by the vocational expert (who was also a clinical psychologist). The court noted that the vocational expert was qualified to explain the medical evidence to the ALJ but that he was not qualified to offer his own diagnosis of claimant's mental condition which was based almost entirely on his own observations of claimant during the hearing. The case was remanded for a medical determination of whether claimant's physical ailments were the result of a conversion reaction to psychological problems.

Railroad Retirement Board Approves Survivors' Benefits for Surviving Spouse and Stepchild Who Were Not Living with Employee at Time of His Death

29,477. In re Barnett (Railroad Retirement Bd., May 12, 1980). For further information contact Fred Augenstern, Connecticut Legal Services, P.O. Box 1208, New London, CT 06320, (203) 447-0323. [Here reported: 29,477A Memo of Law (13pp.); 29,477B Decision (1p.).]

An appeals referee of the Railroad Retirement Board has determined that a surviving wife and stepchild of a deceased railroad employee who were not living with the employee at the time of his death are entitled to receive survivors' benefits under the Railroad Retirement Act, 45 U.S.C. §2(dX1X(ii) and (iii).

After her husband's retirement and while she was still living with him, claimant applied for and received retirement benefits for herself and social security dependency benefits for herself and her child based on her husband's work records. After claimant and her husband separated, she continued to receive these benefits.

To be eligible for survivor's benefits, the surviving spouse has to have in her care the deceased's dependent

minor child. A stepchild must have lived with her stepfather for at least nine months. In addition, the child must have been living with her stepfather or receiving half of her support from him at the time he died. Claimant had argued that the retirement benefits that she and the child received constituted support from the stepfather because the benefits were based on his work records.

Disability Findings Should Date to Beginning of Disability

30,039. In re Miranda (Soc. Sec. Admin., Bureau of Hearings & App., Aug. 20, 1980). Claimant represented by William Ware, John Cunningham, Legal Aid Society, 11 Park Pl., New York, NY 10007, (212) 227-2755. [Here reported: 30,039A Order of Appeals Council Remanding Case to ALJ (2pp.).]

An administrative law judge found the claimant to be disabled but dated her disability to the effective date of the grid regulations which were used to determine her eligibility. The Appeals Council has held that the correct date is the date when claimant's work capability became limited, not the date of the grid regulations; those regulations merely consolidated and elaborated on preexisting policies for adjudicating disability claims when an individual's age, education and work experience must be considered in addition to her medical condition.

SSI Benefits Awarded Solely on Basis of Claimant's Subjective Pain Caused by Herbicide

30,026. In re Seaver (Soc. Sec. Admin., Bureau of Hearings & App., July 29, 1980). Claimant represented by David Ramp, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802, (218) 722-5390. [Here reported: 30,026A Decision (11 pp.).]

An administrative law judge (ALJ) has awarded SSI benefits solely on the basis of claimant's allegation of pain and other subjective symptoms such as fatigue. Claimant was homesteading land which the Forest Service sprayed with a herbicide containing dioxin. After the spraying, claimant noticed pain in his joints, abnormal fatigue, headaches and loss of memory. However, from a medical standpoint, no physical or mental basis was found for claimant's disorders. The ALJ denied disability insurance benefits, however, because there was no evidence of the impairments prior to the period for which claimant met the special earnings requirement.

NOVEMBER 1980

TAXATION

Blind Person Entitled to Real Estate Tax Exemption for Home Even Though He Is Temporarily Residing in Nursing Home

30,058. Hayes v. City of Haverhill (Mass. App. Tax Board, July 25, 1980). Appellant represented by Howard Friedman, Merrimack Valley Legal Services, 46 Amesbury St., Lawrence, MA 01840, (617) 687-1177. [Here reported: 30,058A Appellant's Brief (10pp.); 30,058B Decision (1p.).]

This was an appeal from a city assessor's denial of a real estate tax exemption for a blind person. Appellant, who has been in a nursing home since 1978, was denied the exemption for his home because he allegedly no longer occupied the property as his domicile. Appellant argued that he met the requirement that he occupy the property as his domicile because the issue is his intent, not his physical presence, and he intends to return to his home as soon as he is able. He also urged that the exemption be read in light of its purpose. The Appellate Tax Board granted the exemption.

UNEMPLOYMENT COMPENSATION

Third Circuit Denies Plaintiffs' Request for Second Level Unemployment Compensation Appeal Decisions Within Time Limits

21,278. Wilkinson v. Abrams (3rd Cir., July 1, 1980). For further information contact Alan Phillips, Community Legal Services, Juniper & Locust Sts., Philadelphia, PA 19107, (215) 893-5300. [Here reported: 21,278K Opinion & Judgment (27pp.). Previously reported at 13 CLEARINGHOUSE REV. 914 (Mar. 1980).]

The Third Circuit has upheld the validity of 20 C.F.R. $650.3(a), which requires that second level unemployment compensation appeals must be decided "with the greatest promptness that is administratively feasible." This case and Hower v. Smith (Clearinghouse No. 21,279) were brought to challenge the failure of the Pennsylvania unemployment compensation board to process promptly first and second level appeals from the denial of benefits. Plaintiffs sought decisions within specific time limits. The claims against the state defendants in the consolidated action were settled as a result of stipulations of dismissal, providing time tables for first and second level decisions. The lower court then granted summary judgment for the Department of Labor (DOL) on the causes of action based on the federal regulations; the Hower (first level) plaintiffs did not appeal.

The Wilkinson plaintiffs appealed, arguing that 20 C.F.R. §650.3(a) was invalid because (1) it lacked a rational basis, (2) 42 U.S.C. §503 required establishment of specific time limits, and (3) it deprived unemployment compensation claimants of due process in violation of the fifth amendment.

The Third Circuit rejected DOL's argument that the case was moot, because the relief sought against DOL was distinguishable from that obtained against the state defen

dants. The court held that section 650.3(a) was rational and consistent with the Social Security Act, because (1) DOL had broad statutory authority to promulgate regulations; (2) the regulation tracks the Supreme Court's construction of 42 U.S.C. §503(a)(1) in California Human Resources Dept. v. Java, 402 U.S. 121 (1971); (3) provision of second level appeals is discretionary with each state; (4) establishing specific requirements would be difficult due to the variety of state procedures; and (5) first and second level appeals can rationally be distinguished.

The regulation does not violate due process, the court held, because (1) the private interest in the prompt disposition of second level appeals is significantly weaker than the interest in a prompt initial hearing and (2) the risk of erroneous deprivation is not high. The court noted that promulgation of unduly burdensome time regulations might prompt the states to decide not to provide second level appeals.

Regulation Limiting Extended Benefits Declared Invalid

29,957. AFL-CIO v. Marshall (D. D.C., filed Aug. 7, 1980). Plaintiffs represented by Deborah Bachrach, Terry Meginniss, Steven Savner, National Employment Law Project, 475 Riverside Dr., New York, NY 10027, (212) 870-2121; Geri Palast, Fred Altshuler, Stephen Berzon, Evelyn Frank. [Here reported: 29,956A Complaint (16pp.); 29,957B Memo in Support of Plfs' Motion for Summary Judgment (33pp.); 29,957C Memo & Judgment & Order (6pp.).]

A federal court has declared invalid a Department of Labor regulation which had the effect of substantially limiting the availability of extended unemployment insurance benefits. The regulation, at 20 C.F.R. §615.12 (45 Fed. Reg. 797, Jan. 3, 1980), required that unemployed workers claiming 13 weeks of extended benefits under the FederalState Extended Unemployment Compensation Act of 1970, 26 U.S.C. §3304n, or additional benefits under state law be excluded from the calculation of the rate of insured unemployment. As a result, the national and state programs would become operative more slowly and would cease more quickly. The change had been forced by President Carter, over Labor Secretary Marshall's objection, in order to further the Administration's budget balancing goal. The court noted that the previous regulation interpreting "individuals filing claims" to include persons filing claims for extended benefits had been in effect for 10 years, during which time Congress had reenacted the Act several times. Thus, the original regulation was deemed to have had congressional approval and to have the effect of law.

New Hampshire Officials Ordered to Comply with Injunction Barring Use of State-Imposed Eligiblity Criteria for Trade Act Benefits

29,922. Dusik v. Adams (D. N.H., filed 1980). Plaintiffs

represented by Margaret Popkin, New Hampshire Legal Assistance, 134 Pleasant St., Berlin, NH 03570, (603) 7521102; David Alexander, Mark Furman, Alan Cronheim. [Here reported: 29,922A Complaint (27pp.); 29,922B Motion for Prelim. Inj. (7pp.); 29,922C Memo in Support of Motion for Prelim. Inj. (21pp.); 29,922D Opp'n of Defs to Class Action (5pp.); 29,922E Petition for Temporary Inj. (11pp.); 29,922F Answer (7pp.); 29,922G Answer of Def Sec'y of Labor (4pp.); 29,922H Motion to Show Cause & Motion to Enforce Prelim. Inj. (16pp.); 29,922-I Objection to Motion to Show Cause (4pp.); 29,922J Amendment to Defs' Motion (2pp.); 29,922K Plfs' Memo in Support of Motion to Show Cause (25pp.); 29,922L Proposed Order (5pp.); 29,922M Order (1p.); 29,922N Order on Motion to Show Cause (1p.); 29,922-O Plfs' 1st Set of Interrogatories (19pp.).]

In a class action suit by unemployed New Hampshire residents who receive benefits under the Trade Act of 1974, 19 U.S.C. §§2101 et seq. (because they lost their jobs due to increased foreign imports), the court has ordered defendant state officials who administer the Trade Act program to comply with the court's preliminary injunction order or face sanctions. The preliminary injunction ordered defendants to: (1) give meaningful notice to all persons who are eligible for benefits of their potential rights to assistance, including training and job search and relocation allowances; (2) provide all claimants with written determinations concerning their eligibility and notice of their right to appeal; (3) provide prompt administrative hearings to review determinations; and (4) stop using, as a condition to receipt of training benefits, criteria not specifically included in the Trade Act or its regulations. The court further ordered defendants to immediately approve training programs for five named class members. The case is now in the discovery stage.

Reliance on Union Representative's Advice Was Good Cause for Claimant's Late Filing of Administrative Appeal

27,383. Devine v. Washington Employment Security Department (Wash. App. Ct., July 14, 1980). Respondent represented by Randy Beitel, Ada Shen-Jaffe, Evergreen Legal Services, 1718 Hewitt, Everett, WA 98201, (206) 258-2681. [Here reported: 27,383C Brief of Appellant (19pp.); 27,383D Brief of Respondent (25pp.); 27,383E Reply Brief of Appellant (7pp.); 27,383F Opinion (3pp.). Previously reported at 13 CLEARINGHOUSE REV. 471 (Oct. 1979).]

A Washington appellate court has held that reliance on the advice of a union business representative was good cause for claimant's one-day delay in filing her administrative appeal of the denial of her claim for unemployment compensation benefits. The court ruled that the provision of the state's unemployment statute which allows a waiver of the time limitation for filing administrative appeals for good cause should be liberally construed in favor of claimant. Applying a three-pronged test consisting of (1) the shortness of the delay, (2) the absence of prejudice of the parties, and (3) the excusableness of the error, the court affirmed the decision of the trial court, which found that good cause

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