ISSUED: July 31, 1992; REVISED: November 19, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
December 4, 1989, October 3, 1990, and June 21, 1991 orders of the United
States District Court for the Eastern District of California in the
Smith, et al. v. Sullivan class action involving
the “not severe” impairment issue.
Adjudicators throughout the country must be familiar with this TI because
Smith class members who now reside outside of the
Ninth Circuit must have their cases processed in accordance with the
requirements of the court's orders.
II. Background
On June 6, 1984, the United States District Court for the Eastern District
of California certified a Ninth Circuit-wide class challenging the
Secretary's regulations, policies and practices for evaluating disability
claims at step two of the sequential evaluation. The court found the
Secretary's severity regulations facially invalid and enjoined the
Secretary from applying step two of the sequential evaluation. On November
27, 1984, the court ordered the Secretary to readjudicate, without regard
to the challenged regulations, all class member claims that were pending
on or after April 6, 1984 (60 days prior to the court's preliminary
injunction). After the court denied the Secretary's request for a stay and
denied the plaintiffs' request for retroactive relief back to February 26,
1979, the Secretary appealed to the Ninth Circuit.
The Ninth Circuit stayed further consideration of the case pending the
Supreme Court's decision on the jurisdictional issues in
Bowen v. Owens and Heckler
v. City of New York. Subsequently, after the Supreme Court
upheld the facial validity of the severity regulations in Bowen
v. Yuckert, 482 U.S. 137 (1987), the Ninth Circuit vacated the
preliminary injunction and remanded the case to the district court for
further proceedings in light of Yuckert.
On December 4, 1989, the district court entered an order finding that the
Secretary systematically misapplied the severity regulations by requiring
more than a de minimis standard at step two as
evidenced by the policies stated in Social Security Rulings (SSRs)
82-55 and
82-56. The court also
found that the Secretary's pre-December 1, 1984 policy of not considering
the combined effect of an individual's multiple “not severe”
impairments violated the Social Security Act. The court remanded the case
to a magistrate judge for further consideration of whether relief should
be granted to individuals who failed to exhaust administrative remedies
after the complaint was filed.
On October 3, 1990, the district court adopted the magistrate judge's
recommendation and found that waiver of exhaustion was appropriate and
that relief should be granted to all class members whose claims were
pending on the date the complaint was filed. On June 21, 1991, the
district court approved the parties' jointly submitted Stipulation and
Order setting forth the terms for the implementation of relief to class
members not yet afforded relief under the preliminary injunction
(Attachment 1).
III. Guiding Principles
Under Smith, the Secretary will redetermine the
claims of those persons who (1) respond to notice informing them of the
opportunity for review and (2) are determined to be class members after
screening (see Part V below). The
Disability Determination Service (DDS) that made the original
determination that forms the basis of the Smith
class membership will, in most cases, screen for class membership and
perform the court-ordered readjudications regardless of the level of
administrative review that last decided the claim.
The DDS servicing the claimant's current address will screen for class
membership and perform the readjudication if
(1) the claimant has moved since the original determination but is still
residing in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii,
Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington);
or
(2) a face-to-face review is appropriate; i.e., cessation cases.
OHA will screen cases and perform readjudications under limited
circumstances (see Part V.B.
below).
Cases readjudicated by the DDS will be processed at the reconsideration
level regardless of the final level at which the case was previously
decided. Class members who receive adverse readjudication determinations
will have full appeal rights (i.e., Administrative Law Judge (ALJ)
hearing, Appeals Council and judicial review).
Smith does not require any change in OHA's
adjudicatory policies or practices because
SSR 85-28 remains the
proper standard for adjudicating claims at step two of the sequential
evaluation.
IV. Definition of Class
Except as noted below, for purposes of implementing the June 21, 1991
order, the Smith class includes all persons who
resided in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii,
Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington),
between October 28, 1983, and April 5, 1984, inclusive, and had an
application for disability benefits under titles II or XVI denied, or had
disability benefits terminated, based upon a finding that the individual
did not have a severe impairment.
A person is not a class member if
(1) the last administrative denial or termination the individual received
on the claim was not based on a finding that the individual did not have a
severe impairment;
(2) the last administrative denial or termination the individual received
on the claim was issued after April 5, 1984; or
(3) the individual had a subsequent claim denied after April 5, 1984, and
the onset date alleged in connection with the subsequent claim is on or
before the onset date alleged in connection with the claim.
V. Determination of Class Membership and Preadjudication
Actions
1.
Notification
On October 23, 1991, SSA sent notices to all potential class members
identified by computer run. Individuals have 60 days from the date of
receipt of the notice to request that SSA readjudicate their claims under
the terms of the Smith Stipulation and Order.
Notices returned as undeliverable will be mailed a second time if SSA
obtains an updated address.
The Office of Disability and International Operations (ODIO) and the
Program Service Centers (PSCs) will send all untimely responses to the
servicing Social Security field office (FO) (i.e., district office or
branch office) to develop good cause for the untimely response. Good cause
determinations will be based on the standards in
20 CFR §§
404.911 and
416.1411.
2.
Alert and Folder Retrieval Process
Litigation Staff in the Office of Policy and Planning will track all
response forms and send alerts to ODIO and the PSCs to use in locating
claim folders. See Attachment 2 for a sample Smith
alert.
In most instances, ODIO or the PSCs will associate the Smith alert and the claimant's response form with the claim
folder(s) and forward the folder to the appropriate DDS (see
Part III above) for screening and
readjudication.
3.
Alerts Sent to OHA
If ODIO or the PSCs determine that a current claim, i.e., either a
potential class member claim or a subsequent claim, is pending appeal or
stored at OHA, it will forward the alert to OHA, along with any prior
claim file(s) not in OHA's possession, for screening, consolidation
consideration and readjudication (if consolidated).
ODIO or the PSCs will send all alerts potentially within OHA jurisdiction
and related prior claim files, if any, to the Office of Appellate
Operations (OAO) at the following address (case locator code 5007):
Office of Hearings and Appeals
Office of Appellate
Operations
One Skyline Tower, Suite 701
5107 Leesburg
Pike
Falls Church, VA 22041-3200
ATTN:
OAO Class Action Coordinator
The OAO Class Action Coordinator is responsible for controlling and
reconciling the disposition of class alerts shipped to OHA Headquarters
for association with pending or stored claims. The OAO Class Action
Coordinator will maintain a record of all alerts received and the
location, if any, to which they are transferred. This information will be
necessary to do the final class membership reconciliation.
4.
Folder Reconstruction
Generally, ODIO or the PSCs will initiate any necessary reconstruction of
prior claim files through the servicing FO. Consequently, OHA requests for
reconstruction of potential Smith class member
cases should be rare. Prior to requesting reconstruction, OHA will
determine whether available systems data or other information provides
satisfactory proof that the claim would not confer class membership.
However, if it becomes necessary for OHA to request reconstruction, the
OHA component (the Hearing Office (HO) or the OAO Branch) will forward the
alert and any accompanying claim file(s) (if the claim file(s) is not
needed for adjudication purposes) to the servicing FO, along with
documentation of attempts to locate the file and a covering memorandum
requesting that the reconstructed file be forwarded to OHA. HOs will route
any reconstruction requests directly to the servicing FOs. The OAO branch
will also route reconstruction requests directly to the servicing FOs and
send copies of all requests to the OAO Class Action Coordinator. For Civil
Action Tracking System purposes, HO personnel and the OAO Class Action
Coordinator will forward a copy of the reconstruction request memorandum
to Litigation Staff at the following address:
Litigation Staff
Office of Policy and Planning
3-K-26
Operations Building
6401 Security Boulevard
Baltimore,
MD 21235
ATTN: Smith
CoordinatorThe HO or OAO will not delay action on a pending claim when a prior claim
is being reconstructed for screening purposes, unless the prior claim is
needed for the adjudication of the pending claim. If OHA completes action
on the pending claim prior to the receipt of the reconstructed file, the
HO or OAO, as appropriate, will forward the class action material,
including the alert, unneeded claim files, if any, and the reconstruction
request to the OAO Class Action Coordinator, along with a copy of the
action on the pending claim (see V.B.2.a.
below). For additional information on reconstruction procedures, see the
Generic Class Action Implementation Instructions,
HA 01170.005 C.
5.
Class Membership Denials
The Sacramento, California (Downtown) district office, located at 8351
Folsom Boulevard, P.O. Box 269048, Sacramento, California 95826, will hold
all non-class member claim folders pending review by class counsel. Upon
review of the folders, class counsel will contact the Office of the
General Counsel (OGC) directly to resolve class membership disputes.
1.
Pre-Screening Actions
a.
Current Claim in OHA
As provided in Part V.A.3 above, if there
is a current claim pending or stored at OHA, the OAO Class Action
Coordinator will receive the alert and related
Smith claim file(s). The OAO Class Action
Coordinator will determine OHA jurisdiction for screening and forward as
follows.
•
If the current claim is in an HO, the Coordinator will use Attachment 3 to
forward the alert and the prior claim file(s) to the HO for screening.
(Part V.B.2.a. below provides
instructions to the HOs regarding the action to be taken if they receive
an alert package but no longer have a current claim pending.)
•
If the current claim is before the Appeals Council, or is located in an
OAO branch mini-docket or in the OAO Docket and Files Branch, the
Coordinator will use Attachment 3 to forward the alert and prior claim
file(s) to the appropriate OAO branch for screening.
(Part V.B.2.a. below provides
instructions to the OAO branches regarding the action to be taken if they
receive an alert package from the OAO Class Action Coordinator but no
longer have a current claim pending.)
If the Coordinator (or designee) is unable to locate the current claim
file within OHA, the Coordinator (or designee) will broaden its claim file
search and arrange for alert transfer or file reconstruction, as
necessary.
b.
Current Claim Pending in Court
If the OAO Class Action Coordinator receives an alert for a claimant who
has a civil action pending, either on the alerted case or on another
claim, the Coordinator will forward the alert and any accompanying claim
file(s) to the appropriate Court Case Preparation and Review Branch
(CCPRB) for screening using Attachment 3. See
Part V.B.2.b. below for special screening
instructions when a civil action is involved.
2.
Screening
a.
General Instructions
The screening component will associate the alert, if any, and any prior
claim file(s) with the claim file(s) in its possession and complete the
screening sheet (see Attachment 4) as follows:
•
consider all applications denied (including res
judicata denials/dismissals) during the
Smith timeframe;
•
follow all instructions on the screening sheet and the screening sheet
instructions;
•
sign and date the original screening sheet, place it in the claim file (on
the top right side of the file); and,
•
if the screening component is an OHA Headquarters component, forward a
copy of the screening sheet to the OAO Class Action Coordinator at the
address in Part V.A.3. above. (The
Coordinator will enter information from the screening sheet into a
database and forward a copy of the screening sheet to the Division of
Litigation Analysis and Implementation (DLAI)). If the screening component
is an HO, forward a copy of the screening sheet directly to DLAI at the
following address:
Office of Hearings and Appeals
Division of Litigation
Analysis and Implementation
One Skyline Tower, Suite
702
5107
Leesburg Pike
Falls Church, VA 22041-3255HO personnel may also forward material by telefax to DLAI at (703)
305-0655. (DLAI will retain a copy of each screening sheet and forward a
copy to the OAO Class Action Coordinator and to Litigation Staff.)
If the HO receives an alert only, or an alert associated with a prior
claim file(s), and the HO no longer has the current claim file, it will
return or forward the alert and any prior claim file(s) to the OAO Class
Action Coordinator (see address in
Part V.A.3. above) and advise the
Coordinator of the action taken on the current claim and its destination.
The Coordinator will determine the current claim file location and, if it
is located in OHA Headquarters, will forward the alert and any
accompanying prior claim file(s) to the responsible OAO branch for
screening, using Attachment 3. If the file(s) is no longer in OHA, the
Coordinator will use Attachment 5 to send the alert and any accompanying
prior claim file(s) to the non-OHA location and request that the file(s)
be forwarded to the appropriate DDS for screening.
If the OAO branch receives an alert only, or an alert associated with a
prior claim file(s), and the branch no longer has the current claim file
(and it is not located in an OAO branch mini-docket or in the OAO DFB), it
will determine the location of the current claim file. If the current
claim file is located within OHA, the OAO branch will use Attachment 3 to
forward the alert and any accompanying prior claim file(s) to the current
OHA location. If the file(s) is no longer in OHA, the OAO branch will use
Attachment 5 to forward the alert and any accompanying prior claim file(s)
to the non-OHA location and request that the file(s) be forwarded to the
appropriate DDS for screening. The OAO branch will also advise the OAO
Class Action Coordinator of its actions.
Final determinations or decisions made after April 5, 1984, on a claim
filed by a potential class member may adjudicate the same timeframe
covered by the Smith claim. Instead of applying
the doctrine of administrative res judicata to the
claim, these claims should be denied class membership.
b.
Special OAO Screening Instructions if a Civil Action Is Involved
As noted in Part V.B.1. above, the CCPRB
will screen for Smith class membership when a civil
action is involved. The CCPRB's class membership determination will
dictate the appropriate post-screening action.
•
If the current claim pending in court was adjudicated in accordance with
SSR 85-28 and resolved
all Smith issues, the claimant is not a
Smith class member. The CCPRB will follow the
instructions in Part V.B.3.a. below for
processing non-class member claims.
•
If the current claim pending in court was adjudicated in accordance with
SSR 85-28, but did not
resolve all Smith issue(s), e.g., there is a prior
(inactive) Smith claim and the current claim does
not include the entire period covered by the Smith
claim, the CCPRB will forward the Smith claim to
the appropriate DDS (see Part III above)
for separate review. The CCPRB will modify the case flag in Attachment 9
to indicate that the pending court case does not resolve all
Smith issues and that the
Smith class member claim is being forwarded for
separate processing. The CCPRB will notify the OAO Class Action
Coordinator of this action.
•
If the final administrative decision on the claim pending in court was not
adjudicated in accordance with
SSR 85-28 or is legally
insufficient for other reasons, the CCPRB will initiate voluntary remand
proceedings and consolidate the claims.
The CCPRB will immediately notify OGC if the pending court case is a th
class member claim so that OGC can notify the claimant of the option to
have the case remanded for readjudication.
3.
Post-Screening Actions
a.
Non Class Member Cases
If the screening component determines that the individual is not a class
member, the component will:
•
notify the individual, and representative, if any, of non-class membership
using Attachment 6 (modified as necessary to fit the circumstances and
posture of the case when there is a current claim);
Include the address and telephone number of the servicing Social Security
field office at the top of Attachment 6.
•
retain a copy of the notice in the claim file;
•
send a copy of the notice to:
Northern California Lawyers for Civil Justice
Attn:
Curtis L. Child, Esq.
Bess M. Brewer, Esq.
Eugenie
D. Mitchell, Esq.
604 12th Street
Sacramento, CA
95814•
retain the claim file(s) for 90 days pending a possible class membership
dispute;
•
if the screening component is not an OHA Headquarters component, and the
file(s) is not needed for adjudication, forward the file(s) for storage to
OAO at the address in Part V.A.3. above;
and,
•
if class counsel makes a timely request for review, send the non-class
member claim file(s) to the Sacramento, California (Downtown) district
office using the pre-addressed route slip in Attachment 7.
Photocopy any material in the prior file that is relevant to the current
claim and place it in the current claim file before shipping the prior
file.
•
if SSA, through OGC, resolves the dispute in the claimant's favor: 1) the
original screening component or Litigation Staff will prepare a revised
screening sheet; 2) OHA jurisdiction cases will proceed in accordance with
Part VI. below; 3) the rescreening
component will notify DLAI, at the at the address in
Part V.B.2. above, of the revised
screening determination by forwarding a copy of the revised screening
sheet to DLAI; and 4) DLAI will coordinate with the OAO Class Action
Coordinator, as necessary. OGC will notify class counsel of the reversal
of class membership, and class counsel will notify the claimant.
An individual who wishes to appeal a determination of non-class membership
may do so only through class counsel, as explained in the notice
(Attachment 6).
b.
Cases Determined To Be Class Members
If the screening component determines that the individual is a class
member, it will proceed with processing and adjudication in accordance
with the instructions in Part VI
below.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
The DDS will conduct the first Smith review except
for cases consolidated at the OHA level (see
Part VI.C below). The DDS determination
will be a reconsideration determination, regardless of the administrative
level at which the class member claim(s) was previously decided, with full
appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).
Except as otherwise noted in this instruction, ALJs should process and
adjudicate requests for hearing on Smith DDS review
cases in the same manner as for any other case.
B. OHA Adjudication of Class Member Claims
The following instruction applies to both consolidation cases in which the
ALJ or Appeals Council conducts the Smith
readjudication and to DDS readjudication cases in which the claimant
requests a hearing or Appeals Council review. Except as noted herein, HOs
and Headquarters will process Smith class member
cases according to all other current practices and procedures including
coding, scheduling, developing evidence, routing, etc.
1.
Type of Review and Period To Be Considered
a.
Pursuant to the Smith order, regardless of whether
the claim under review is an initial claim or cessation case, the type of
review to be conducted is a redetermination. The readjudication shall be a
de novo reevaluation of the class member's
eligibility for benefits based on all evidence in his or her file,
including newly obtained evidence, relevant to the period that was at
issue in the administrative decision(s) that forms the basis of the
Smith class membership.
b.
If the readjudication results in a favorable decision, the adjudicator
will determine, under the medical improvement standard, whether the class
member's disability has continued through the date of the readjudication
(or through the date of onset of disability established in any allowance
on a subsequent application).
c.
If the evidence establishes that disability began only at some point after
the administrative decision(s) that forms the basis of the
Smith class membership, the class member must file
a new application to establish eligibility. Use the standards in
20 CFR §§
404.621 and
416.335 in
determining whether a new application is timely filed.
2.
Step Two of the Sequential Evaluation
Smith does not require any change in OHA's current
adjudicatory policies or practices with respect to step two of the
sequential evaluation. Effective with the enactment of the 1984 Amendments
to the Social Security Act, OHA's adjudicators have considered the
combined effects of individual “not severe” impairments in
evaluating disability claims at step two. ALJs and the Appeals Council
may, if appropriate, continue to deny or cease the disability claims of
Ninth Circuit residents in accordance with
20 CFR §§
404.1520(c),
404.1521,
416.920(c) and
416.921, as well
as SSR 85-28. The then
Acting Associate Commissioner's memorandum, dated February 21, 1991,
(Attachment 8), regarding the proper standard for adjudicating claims at
step two, remains in effect.
3.
Class Member Is Deceased
If a class member is deceased, the usual survivor and substitute party
provisions and existing procedures for determining distribution of any
potential underpayment apply.
C. Claim in OHA But No Current Action Pending
If a claim file (either a class member or a subsequent claim file) is
located in OHA Headquarters but there is no claim actively pending
administrative review, i.e., Headquarters is holding the file awaiting
potential receipt of a request for review or notification that a civil
action has been filed, OAO will associate the alert with the file and
screen for class membership.
•
If the 120-day retention period for holding a claim file after an ALJ
decision or Appeals Council action has expired, OAO will attach a
Smith class member flag (see Attachment 9) to the
outside of the file and send the claim file(s) to the appropriate DDS (see
Part III above) for review of the
Smith class member claim.
•
If less than 120 days have elapsed, OAO will attach a
Smith class member flag to the outside of the file
(see Attachment 9) to ensure that the case is routed to the appropriate
DDS (see Part III above) after expiration
of the retention period. Pending expiration of the retention period, OAO
will also:
—
return unappealed ALJ decisions and dismissals to DFB, and
—
return unappealed Appeals Council denials to the appropriate OAO
minidocket.
The respective OAO components will monitor the retention period and, if
the claimant does not seek further administrative or judicial review,
route the file(s) to the appropriate DDS (see
Part III above) in a timely manner.
D. Processing and Adjudicating Class Member Claims in Conjunction with
Current Claims (Consolidation Procedures)
1.
General
If a class member has a current claim pending at any administrative level,
and consolidation is warranted according to the guidelines below, the
appropriate component will consolidate the Smith
class member claim(s) with the current claim at the level at which the
current claim is pending.
2.
Current Claim Pending in the Hearing Office
a.
Hearing Has Been Scheduled or Held, and All Remand Cases
Except as noted below, if a Smith class member has
a request for hearing pending on a current claim, and the ALJ has either
scheduled or held a hearing, and in all remand cases, the ALJ will
consolidate the Smith case with the appeal on the
current claim.
The ALJ will not consolidate the claims if
•
the current claim and the claim do not have any issues in common, or
•
a court remand contains a court-ordered time limit and it will not be
possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow
Part VI.D.2.c. below. If the claims are
not consolidated, follow Part VI.D.2.d.
below.
b.
Hearing Not Scheduled
Except as noted below, if a Smith class member has
an initial request for hearing pending on a current claim and the HO has
not yet scheduled a hearing, the ALJ will not consolidate the
Smith claim and the current claim. Instead, the ALJ
will dismiss the request for hearing on the current claim and forward both
the Smith claim and the current claim to the DDS
for further action (see Part VI.D.2.d.
below).
If the hearing has not been scheduled because the claimant waived the
right to an in-person hearing, and the ALJ is prepared to issue a fully
favorable decision on the current claim, and this decision would also be
fully favorable with respect to all issues raised by the application that
makes the claimant a Smith class member, the ALJ
will consolidate the claims.
If the claims are consolidated, follow
Part VI.D.2.c. below. If the claims are
not consolidated, follow Part VI.D.2.d.
below.
c.
Action if Claims Consolidated
If the ALJ decides to consolidate the current claim with the
Smith claim(s), the HO will:
•
give proper notice of any new issue(s) as required by
20 CFR §§
404.946(b) and
416.1446(b), if
the Smith claim raises an additional issue(s) not
raised by the current claim;
•
offer the claimant a supplemental hearing if the ALJ has already held a
hearing and the Smith claim raises an additional
issue(s), unless the ALJ is prepared to issue a fully favorable decision
with respect to the Smith claim;
•
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the Smith
claim (the ALJ's decision will clearly indicate that the ALJ considered
the Smith claim pursuant to the
Smith court order); and,
•
send copies of the consolidated hearing decision to both:
Office of Hearings and Appeals
Division of Litigation
Analysis and Implementation
One Skyline Tower, Suite
702
5107
Leesburg Pike
Falls Church, VA 22041-3255
d.
Action if Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the current
claim with the Smith claim because a hearing has
not yet been scheduled, the HO will:
•
dismiss the request for hearing on the current claim without prejudice,
using the language in Attachment 11 and the covering notice in Attachment
12; and
•
send both the Smith claim and the current claim to
the appropriate DDS (see Part III above)
for DDS consolidation and further action.
If the ALJ decides not to consolidate the current claim with the
Smith claim because: 1) the claims do not have any
issues in common, or 2) there is a court-ordered time limit, the ALJ
will:
•
flag the Smith claim for DDS review using
Attachment 10; immediately route it to the appropriate DDS (see
Part III above) for adjudication; and
retain a copy of Attachment 10 in the current claim file; and
•
take the necessary action to complete the record and issue a decision on
the current claim.
3.
Current Claim Pending at the Appeals Council
The action the Appeals Council takes on the current claim dictates the
disposition of the Smith claim. Therefore, OAO must
keep the claim folders together until the Appeals Council completes its
action on the subsequent claim. The following sections identify the
possible Appeals Council action on the current claim and the appropriate
corresponding action on the Smith claim.
a.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim — No Smith Issue(s) Will
Remain Unresolved.
This will usually arise when the current claim duplicates the
Smith review claim, i.e., the
Smith claim raises an issue of disability for a
period covered by the current claim, and the current claim has been
adjudicated in accordance with the provisions of
SSR 85-28 and the
current severity regulations, i.e.,
20 CFR §§
404.1520(c),
404.1521,
404.1523,
416.920(c),
416.921 and/or
416.923. In this
instance, the Appeals Council will consolidate the claims and proceed with
its intended action.
The Appeals Council's order, decision or notice of action will clearly
indicate that the ALJ's or Appeals Council's action resolves both the
current claim and the Smith
claim.
b.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim — Smith Issue(s) Will
Remain Unresolved.
This will usually arise when the current claim does not duplicate the
Smith claim, e.g., the current claim raises the
issue of disability but does not cover the entire period adjudicated in
the Smith claim. For example, the
Smith claim raises the issue of disability for a
period prior to the period adjudicated in the current claim. In this
instance, the Appeals Council will proceed with its intended action on the
current claim in accordance with the provisions of
SSR 85-28.
OAO staff will attach a Smith case flag (Attachment
9) to the Smith claim, immediately route it to the
appropriate DDS (see Part III above) for
adjudication, and retain a copy of Attachment 9 in the current claim file.
OAO will modify Attachment 9 to indicate that the Appeals Council action
on the current claim does not resolve all Smith
issues and that the Smith class member claim is
being forwarded for separate processing. OAO staff will include copies of
the ALJ or Appeals Council decision or order on the current claim and the
exhibit list used for the ALJ or Appeals Council decision.
c.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim
— No Smith Issue(s) Will Remain
Unresolved.
If the Appeals Council intends to issue a fully favorable decision on a
current claim, and this decision would be fully favorable with respect to
all issues raised by the application that makes the claimant a
Smith class member, the Appeals Council will
proceed with its intended action. In this instance, the Appeals Council
will consolidate the claims, reopen the final determination or decision on
the Smith claim, and issue a decision that
adjudicates both applications. The Appeals Council's decision will clearly
indicate that the Appeals Council considered the
Smith claim pursuant to the
Smith court order. For class action reporting
purposes, the Appeals Council will send copies of its decision to the
Smith coordinators listed in
Part VI.D.2.c. above.
d.
d. Appeals Council Intends to Issue a Favorable Decision on the Current
Claim — Smith Issue(s) Will Remain
Unresolved.
If the Appeals Council intends to issue a favorable decision on a current
claim and this decision would not be fully favorable with respect to all
issues raised by the Smith claim, the Appeals
Council will proceed with its intended action. In this instance, the
Appeals Council will request the effectuating component to forward the
claim folders to the appropriate DDS (see
Part III above) after the Appeals
Council's decision is effectuated.
OAO staff will include the following language on the transmittal sheet
used to forward the case for effectuation: "Smith
court case review needed — following effectuation forward the
attached combined folders to (insert address of the DDS having
jurisdiction for review of the Smith class member
claim)."
e.
e. Appeals Council Intends to Remand the Current Claim to an ALJ.
If the Appeals Council intends to remand the current claim to an ALJ, it
will proceed with its intended action unless one of the exceptions below
applies.
In its remand order, the Appeals Council will direct the ALJ to
consolidate the Smith claim with the action on the
current claim pursuant to the instructions in
Part VI.D.2.a. above.
The Appeals Council will not direct the ALJ to consolidate the claim
if
•
the current (subsequent) claim and the claim Smith
do not have any issues in common, or
•
a court remand contains a court-ordered time limit and it will not be
possible to meet the time limit if the claims are consolidated.
If the claims do not share a common issue or a court-ordered time limit
makes consolidation impractical, OAO will forward the
Smith class member claim to the appropriate DDS
(see Part III above) for separate review.
The case flag in Attachment 10 should be modified to indicate that the
Appeals Council, rather than an ALJ, is forwarding the class member claim
for separate processing.
For all cases in which OHA is the first level of review for the
Smith claim (i.e., the Appeals Council or an ALJ
consolidates the Smith claim with action on a
current claim or a class member only claim is pending at OHA), HO or OAO
personnel, as appropriate, must send a copy of any OHA decision to the
Smith coordinators at the addresses listed in
Part VI.D.2.c. above.
VII. Case Coding
HO personnel will code prior claims into the Hearing Office Tracking
System (HOTS) and the OHA Case Control System (OHA CCS) as
“reopenings.” If the prior claim is consolidated with a
current claim already pending at the hearing level (see
Part VI. above), HO personnel will not
code the prior claim as a separate hearing request but will change the
hearing type on the current claim to a “reopening.”
To identify class member cases in HOTS, HO personnel will code
“SM” in the “Class Action” field. No special
identification codes will be used in the OHA CCS.
VIII. Reconciliation of Implementation
At an appropriate time, Litigation Staff will request SSA components to
reconcile their screening activity and disposition of class member claims
with information available on CATS. within OHA, the OAO Class Action
Coordinator is responsible for maintaining a personal computer-based
record of OHA implementation activity (e.g., a record of alerts processed
by OHA, and a record of cases screened and consolidated by OHA), as
reported by HOs and OAO to the Coordinator. See
Part V.B.2.a. and
HALLEX
HA 01170.012 with respect
to the reporting requirements.
IX. Inquiries
HO personnel should direct any questions to their Regional Office.
Regional Office personnel should contact the Division of Field Practices
and Procedures in the Office of the Chief Administrative Law Judge at
(703) 305-0022.
Attachments
1—
Stipulation and Order Dated June 21, 1991
2—
Smith Court Case Flag/Alert
3—
Route Slip or Case Flag for Screening
5—
Route Slip for Routing Class Member Alert (and Prior Claim Folder(s)) to
ODIO or PSC — OHA No Longer Has Current Claim
6—
Smith Non-Class Membership Notice
7—
Route Slip for Non-class Membership Cases
8—
Acting Associate Commissioner's Memorandum Dated February 21, 1991,
Entitled “The Standard for Evaluating 'Not Severe'
Impairments.”
9—
Smith Class Member Flag for Headquarters Use (DDS
Readjudication)
10—
Smith Class Member Flag for HO Use (DDS
Readjudication)
11—
ALJ Dismissal Order to DDS
12—
Cover Notice for ALJ Dismissal Order
Revised November 19, 1996
Attachment 2. Smith COURT CASE FLAG/ALERT
TITLE:
CATEGORY:
REVIEW OFFICE
PSC MFT
DOC ALERT
DATE
BOAN OR PAN
NAME
CAN
OR HUN
RESP
DTETOE
FOLDER LOCATION
INFORMATION
TITLE CFL CFL DATE
ACN
PAYEE
ADDRESS
SCREENING OFFICE ADDRESS:
Los Angeles West Region
Department of Social
Services
Disability Evaluation Division
P.O. Box
60999
Terminal Annex
Los Angeles, California
90060
ATTN:
Smith Screening Unit
IF CLAIM IS PENDING OR STORED IN OHA, THEN SHIP TO:
Office of Hearings and Appeals
Office
of Appellate Operations (OAO)
One Skyline Tower, Suite
701
5107
Leesburg Pike
Falls Church, VA 22041-3200
ATTN:
OAO Class Action Coordinator
(Case locator code 5007)
Attachment 3. Route Slip or Case Flag for Screening
Smith
Class Action Case
SCREENING NECESSARY
Claimant’s Name: ___________________________________________
SSN: ____________________________________________________
This claimant may be a Smith class member. The
attached folder location information indicates that a current folder is
pending in your office. Accordingly, we are forwarding the attached alert
[and prior claim folder(s)] for association, screening for class
membership, consolidation consideration and possible readjudication.
Please refer to HALLEX Temporary Instruction 5-4-8-B for additional
information and instructions.
TO:_______________________________
__________________________________
__________________________________
__________________________________
Smith SCREENING SHEET
|
1. SOCIAL SECURITY NUMBER |
BIC |
|
2. NAME (First Name, Middle Initial, Last Name) |
|
3. DATE (Month, Day, Year — Example: October 9,1991 would be 10-09-91) |
|
4. a. MEMBERSHIP DETERMINATION
MEMBER (J) NONMEMBER (F)
|
b. SCREENOUT CODE
(see Item 10 for screenout codes)
|
|
5. Did the claimant reside in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington) at any time between October 28, 1983, and April 5, 1984, inclusive? |
Yes No
(if No, go to 10)
|
|
6. Were benefits denied or terminated at any administrative level between October 23, 1983 and April 5, 1984, inclusive, by an SSA office serving the Ninth Circuit? |
Yes No
(if No, go to 10)
|
|
7. Was the denial or termination made on the basis of a finding of “no severe” impairment(s) (step 2 denial)? |
Yes No
(if No, go to 10)
|
|
8. Did any of the “not severe” (step two) denials or terminations between October 28, 1983, and April 5, 1984, inclusive, become the final denial decision of the Secretary? |
Yes No
(if No, go to 10)
(if Yes go to 9)
|
|
9. Even if the claimant was issued or received a final adverse determination/decision between October 28, 1983, and April 5, 1984, inclusive, did the individual receive a final adverse decision after April 5, 1984, on a subsequent claim which raised issues identical to the potential Smith claim? |
Yes No
(if Yes, go to 10)
(If No, claimant is a class member)
|
|
10. Enter the screenout code in item 4.b. as follows:
Enter 05 if question 5 was answered “NO.”
Enter 06 if question 6 was answered “NO.”
Enter 07 if question 7 was answered “NO.”
Enter 08 if question 8 was answered “NO.” Enter 09 if question 9 was answered “YES.”
|
No other screenout code entry is appropriate.
After completing 4.b. check the appropriate box in 4.a. |
|
SIGNATURE OF SCREENER |
COMPONENT |
DATE |
Enter dates of all applications screened
________________ _________________ ________________ _________________ |
Attachment 5. Route Slip for Routing Class Member Alert (and Prior Claim
Folder(s) to ODIO or PSC — OHA No Longer Has Current Claim
|
ROUTING AND TRANSMITTAL SLIP |
DATE: |
|
TO: |
INITIALS |
DATE |
|
1. |
|
|
|
2. |
|
|
|
3. |
|
|
|
4. |
|
|
|
5. |
|
|
|
6. |
|
|
|
7. |
|
|
|
XX |
ACTION |
|
FILE |
|
NOTE AND RETURN |
|
|
APPROVAL |
|
FOR CLEARANCE |
|
PER CONVERSATION |
|
|
AS REQUESTED |
|
FOR CORRECTION |
|
PREPARE REPLY |
|
|
CIRCULATE |
|
FOR YOUR
INFORMATION |
|
SEE ME |
|
|
COMMENT |
|
INVESTIGATE |
|
SIGNATURE |
|
|
COORDINATION |
|
JUSTIFY |
|
|
REMARKS
SMITH CASE
Claimant:_____________________________
SSN: ________________________________
OHA received the attached alert [and prior claim folder(s)] for screening
and no longer has the current claim folder. Our records show that you now
have possession of the current claim. Accordingly, we are forwarding the
alert and any accompanying prior claim folder(s) for association with the
current claim. After associating the alert with the current claim, please
forward to the appropriate DDS for screening and possible readjudication.
SEE POMS DI 42523.001ff OR DI 12523.001ff.
Attachment
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clerances, and similar actions.
|
FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
|
PHONE NUMBER |
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020
Prescribed by GSA
FPMR (41 CFR) 101-11.206
Attachment 6. Smith Non-Class Membership Notice
SOCIAL
SECURITY Important Information
NOTICE
__________________________________________________________________________
From: Social Security Administration
__________________________________________________________________________
___________________________ DATE: ________________________
___________________________ CLAIM NUMBER: __________________
___________________________
We are writing to tell you that we received your request to review your
earlier claim for disability benefits under the Smith, et al.
v. Sullivan court decision. We have looked at your case and
have decided that you are not a class member. This means that we will not
review our earlier decision that you were not disabled. The reason you are
not a class member under the Smith court decision
is checked below.
Why You Are Not a Class Member
You are not a Smith class member because:
|
_______ |
You did not reside in the Ninth Circuit* at any time between October 28, 1983, and April 5, 1984, inclusive. |
|
_______ |
As a Ninth Circuit resident, you did not receive a decision denying or terminating disability benefits at any administrative level between October 28, 1983, and April 5, 1984, inclusive. |
|
_______ |
You appealed the decision denying you disability benefits, and the appeal was decided after April 5, 1984. |
|
_______ |
There was no final denial or termination decision made on the basis of a finding that you did not have a severe impairment(s). |
|
_______ |
Your benefits were denied for some reason other than your medical condition. The reason was:
______________________________________________. |
*Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada,
Northern Mariana Islands, Oregon, Washington.
We Are Not Deciding If You Are Disabled
It is important for you to know that we are not making a decision about
whether you are disabled. We are deciding only that you are not a
Smith class member.
If You Are Disabled Now
If you think you are disabled now, you should fill out a new application
at any Social Security office.
If You Have Any Questions
If you have any questions, you may contact your local Social Security
office. If you call or visit an office, please have this letter with you.
It will help us answer your questions.
Additionally, if you have someone helping you with your claim, you should
contact him or her.
A copy of this letter is being sent to attorneys for the class. If they
think that we are wrong, we may change our minds and look at your case
again. If you think we are wrong, you may write or call class counsel, who
will answer your questions about class membership without charge. The
name, address and telephone number of class counsel is:
Northern California Lawyers for Civil Justice
604
12th Street
Sacramento, CA 95814
Curtis L. Child,
Esq.
Bess M. Brewer, Esq.
Eugenie D. Mitchell,
Esq.
(916)
554-3310 (telephone)
(916) 554-3319 (fax)
Si usted no entiende esta carta, llevela a la oficina de Seguro Social arriba mencionada para que se la expliquen.
Attachment 7. Route Slip for Non-Class Membership Cases
|
ROUTING AND TRANSMITTAL SLIP |
DATE: |
|
TO: |
INITIALS |
DATE |
|
1. Social Security Administration |
|
|
|
2. 8351 Folsom Boulevard |
|
|
|
3. P.O. Box 269048 |
|
|
|
4. Sacramento, California 95826 |
|
|
|
5. |
|
|
|
6. |
|
|
|
7. |
|
|
|
XX |
ACTION |
|
FILE |
|
NOTE AND RETURN |
|
|
APPROVAL |
|
FOR CLEARANCE |
|
PER CONVERSATION |
|
|
AS REQUESTED |
|
FOR CORRECTION |
|
PREPARE REPLY |
|
|
CIRCULATE |
|
FOR YOUR
INFORMATION |
|
SEE ME |
|
|
COMMENT |
|
INVESTIGATE |
|
SIGNATURE |
|
|
COORDINATION |
|
JUSTIFY |
|
|
REMARKS
SMITH CASE
Claimant: ___________________________
SSN: ________________________________
We have determined that this claimant is not a
Smith class member. (See screening sheet and copy
of non-class membership notice in the attached claim folder(s).)
SEE POMS DI 12523.001ff and 32523.001ff.
Attachment
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
|
FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
|
PHONE NUMBER |
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020
Prescribed by GSA
FPMR (41 CFR) 101-11.206
Attachment 8. Acting Associate Commissioner's Memorandum Dated February 21, 1991,
Entitled “The Standard for Evaluating 'Not Severe'
Impairments.”
|
Refer to: FEB 21, 1991
|
Social Security Administration
Office
of Hearings and Appeals
PO Box 3200
Arlington
VA 22203
|
|
MEMORANDUM TO: |
Headquarters Executive Staff
Appeals Council Members
Regional Chief Administrative Law Judges
Hearing Office Chief Administrative Law Judges
Administrative Law Judges
Supervisory Staff Attorneys
Decision Writers
|
|
FROM: |
Acting Associate Commissioner |
|
SUBJECT: |
The Standard for Evaluating “Not Severe” Impairments — ACTION |
During the past few months, the Office of the General Counsel (OGC) has
requested voluntary remand in a number of cases, denied by the Secretary
at step two of the sequential evaluation, on the grounds that the
decisions have not been fully consistent with SSA policy and the Supreme
Courts opinion in Bowen v. Yuckert, 482 U.S. 137
(1987).
Despite the Yuckert decision, extensive litigation,
both in individual cases and in significant class actions, continues on
the issue of how the Agency applies the step two standard expressed in
Social Security Ruling (SSR)
85-28. Because the courts continue to give step two denials close
scrutiny, I am asking all adjudicators and decision writers to carefully
review SSR 85-28 to
ensure that they are applying the proper standard for adjudicating claims
at step two.
In accordance with SSR
85-28, a step two denial is appropriate only in very limited
situations. The evidence must establish that the claimants impairment, or
combination of impairments, is so slight that it does not have more than a
minimal effect on the individual's ability to perform basic work
activities. When the medical evidence is inconclusive and does not clearly
establish the effect of a claimant impairment(s), or when the evidence
shows more than a minimal effect, the claim may not be denied at step
two.
Decisions denying claims at step two must include a comprehensive analysis
of all the evidence of record and a decisional rationale consistent with
SSR 85-28. Even when
the medical evidence of record clearly fails to establish that the
claimant has more than a slight mental or physical abnormality, the
decision must clearly show that the or evaluated all the evidence and must
articulate the reasons for finding that the impairment(s) is not severe.
Furthermore, when the claimant has a medically determinable impairment
which might reasonably be expected to cause pain or other symptoms, the
decision must include an evaluation of the claimant's subjective
complaints using the factors outlined in
SSR 88-13 or its
equivalent, i.e., SSR
90-1p for Fourth Circuit cases.
If hearing office personnel have questions or need copies of applicable
instructions, they should contact the appropriate Regional Office
personnel should direct their questions to the Division of Field Practices
and Procedures, Office of the Chief Administrative Law Judge.
Lawrence W. Mason for
Andrew J. Young
Attachment 9. Smith Class Member Flag for Headquarters Use
(DDS Readjudication)
Smith Class Action Case
READJUDICATION NECESSARY
Claimant's Name: __________________________________
SSN: __________________________________
This claimant is a Smith class member. After
expiration of the retention period, forward claim folder(s) to the
____________________ DDS for readjudication.
If the claimant has filed a civil action and elected to remain in court
for review of the subsequent claim, forward the
Smith claim folder(s) without delay to the
____________________ DDS for readjudication.
Send folders to: (Insert name and address of appropriate DDS)
______________________________
______________________________
______________________________
______________________________
(Destination code: ____)
Attachment 10. Smith Case Member Flag for Headquarters Use
(DDS Readjudication)
Smith Class Action Case
READJUDICATION NECESSARY
Claimant's Name: __________________________________
SSN: __________________________________
This claimant is a Smith class member. The
attached Smith claim folder was forwarded to this
hearing office for possible consolidation with a current claim.
|
_________ |
The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.
OR
|
|
_________ |
The claims have not been consolidated because:
___________________________________________
___________________________________________
|
|
Accordingly, we are forwarding the attached alert and prior claim folder(s) to your location for any necessary Smith readjudication action.
|
|
|
TO: ____________________________
________________________________
________________________________
________________________________
|
(Insert name and address of appropriate DDS)
(Destination code: ____)
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
ORDER OF DISMISSAL
|
IN THE CASE OF
|
CLAIM FOR
|
|
__________________________ |
__________________________ |
|
__________________________ |
__________________________ |
This case is before the Administrative Law Judge pursuant to a request for
hearing filed on _________________ with respect to the application(s)
filed on _________________.
In accordance with an order of the United States District Court for the
Eastern District of California in the case of Smith, et al. v.
Sullivan, No. S-83-1609 EJM-EM (E.D. California June 21,
1991), the claimant has requested review of the final
(determination/decision) on the prior application(s) filed on
______________. The claimant has been identified as a
Smith class member and is entitled to have the
final administrative denial of the prior application(s) reviewed under the
terms of the Smith final judgment order. Because
the claimant's current claim shares certain common issues with the prior
claim, the undersigned hereby dismisses without prejudice the request for
hearing.
The claimant's current application(s) will be associated with the prior
claim(s) and forwarded to the __________________ Disability Determination
Service which will conduct the Smith
readjudication.
The disability determination service will notify the claimant of its new
determination and, if unfavorable, give notice of the claimant's right to
file a new request for hearing.
|
|
______________________ |
|
|
Administrative Law Judge
|
|
|
______________________ |
|
|
Date
|
Attachment 12. Notice Transmitting ALJ Order of Dismissal
NOTICE OF DISMISSAL
Claimant's Name
Address
City, State Zip
Enclosed is an order of the Administrative Law Judge dismissing your
request for hearing and returning your case to the _______ ________
Disability Determination Service which makes disability determinations for
the Social Security Administration. Please read this notice and Order of
Dismissal carefully.
What This Order Means
The Administrative Law Judge has sent your current claim and your
Smith class member claim back to the
_________________ Disability Determination Service for further processing.
The enclosed order explains why.
The Next Action on Your Claim
The ____________________ Disability Determination Service will contact you
to tell you what you need to do. If you do not hear from the
______________ Disability Determination Service within 30 days, contact
your local Social Security office.
Do You Have Any Questions?
If you have any questions, contact your local Social Security office. If
you visit your local Social Security office, please bring this notice and
the Administrative Law Judge's order with you.
Enclosure
cc:
(Name and address of representative, if any)
(Social Security Office (City, State))