ISSUED: July 9, 1993; REVISED: November 20, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
October 22, 1991 Stipulation and Order of the United States District Court
for the District of New Jersey in the Wilson, et al. v.
Sullivan class action involving the “not severe”
impairment issue.
Adjudicators throughout the country must be familiar with this TI because
Wilson class members who now reside outside of New
Jersey must have their cases processed in accordance with the requirements
of the court's order.
II. Background
On October 9, 1985, the United States District Court for the District of
New Jersey certified a statewide class challenging the Secretary's
regulations, policies and practices for evaluating disability claims at
step two of the sequential evaluation.
On October 28, 1985, the court found that
Social Security Ruling (SSR)
85-28 represented a policy of constructive nonacquiescence and
granted plaintiffs' motion for a preliminary injunction enjoining the
Secretary from applying the severity regulation to present and future
claims. In reaffirming its class certification order, the court waived the
administrative exhaustion requirement for class members who had active
claims pending on or after July 26, 1984, and reserved the right to
broaden or narrow the scope of the class in the future. On November 14,
1985, the court issued a final order with detailed implementation
instructions and a supplemental clarifying opinion.
On July 14, 1986, the United States Court of Appeals for the Third Circuit
affirmed the district court's decision to issue a preliminary injunction.
Moreover, the appellate court found that the district court did not abuse
its discretion in establishing timetables for effecting class relief, but
emphasized that the injunction applied only to claims of New Jersey
residents and remanded the case to the district court for the limited
purpose of making this clarification. The circuit court declined to rule
on the Secretary's appeal of the exhaustion issue on jurisdictional
grounds.
On June 15, 1987, the Supreme Court granted the Secretary's petition for a
writ of certiorari, vacated the judgment of the
Court of Appeals and remanded for further consideration in light of
Bowen v. Yuckert, 482 U.S. 137 (1987). On August
27, 1987, the Court of Appeals remanded to the district court for
reconsideration in light of Yuckert, but refused to
vacate the preliminary injunction. On November 5, 1987, the district court
ordered that the preliminary injunction remain in force.
On March 31, 1989, after both parties filed motions for summary judgment,
the district court vacated its injunction and partially granted the
Secretary's motion for summary judgment.
On March 19, 1990, as amended March 29, 1990, the district court held that
the Secretary's pre-1984 policy of not considering the combined effect of
an individual's multiple “not severe” impairments violated
the Social Security Act. The court found that, although the policy was
“openly applied” after the promulgation of regulations on
August 20, 1980, the Secretary followed an illegal, clandestine,
non-combination policy between December 1978 and August 20, 1980.
Therefore, the court expanded the plaintiff class to include those
claimants whose benefits were denied between December 1, 1978, and August
20, 1980, at step two of the sequential evaluation. The court also waived
exhaustion of administrative remedies and tolled the 60-day statute of
limitations requirement embodied in §
205(g) of the Social
Security Act for class members from the filing date of the complaint and
for the December 1, 1978 through August 20, 1980 retroactive period.
On October 22, 1991, the district court approved the Stipulation of
Settlement and Consent Order of Dismissal setting forth the definition of
the subclasses and the terms for the implementation of relief (Attachment
1).
III. Guiding Principles
Under Wilson, the Secretary will redetermine the
claims of those persons who (1) respond to notice or to the public
information campaign informing them of the opportunity for review and (2)
are determined to be class members after screening (see
Part V. below). Regardless of the
claimant's current state of residence, the Northeastern Program Service
Center (NEPSC) will, in most cases, screen for class membership and the
New Jersey Disability Determination Service (DDS) will perform the
court-order 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 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 decided
previously. Class members who receive adverse readjudication
determinations will have full appeal rights (i.e., Administrative Law
Judge (ALJ) hearing, Appeals Council and judicial review).
Wilson does not require any change in OHA's current
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 October 22, 1991
order, the Wilson class includes two subclasses of
persons eligible for relief.
A. A “Non-Combination” Subclass
The “non-combination” subclass includes persons who between
December 1, 1978, and August 20, 1980, inclusive:
1.
received a final administrative decision denying or terminating their
title II or title XVI disability benefits based on a finding of “no
severe” impairment (i.e., a step two denial) under the Secretary's
policy not to consider impairments in combination as set forth in
Disability Insurance State Manual 321B;
2.
alleged the existence of more than one impairment;
3.
did not have their multiple impairments considered in combination;
4.
resided in the State of New Jersey at the time of the final administrative
decision; and
5.
did not appeal to or have a case pending in federal court
B. A “Non-Severe” Subclass
The “non-severe” subclass includes persons who between August
7, 1983, and July 25, 1984, inclusive:
1.
received a final administrative decision denying or terminating their
title II or XVI disability benefits based on a finding of “no
severe” impairment, i.e., a step two denial;
2.
resided in the State of New Jersey at the time of the final administrative
decision; and
3.
did not administratively or judicially appeal their step two denial or
cessation after July 25, 1984
A person is not a class member if:
(1) the last administrative denial or termination the individual received
on the potential Wilson claim was not based on step
two of the sequential evaluation; or
(2) for the non-severe subclass, the last administrative denial or
termination the individual received on the Wilson
claim was issued after July 25, 1984; or
(3) the individual had a subsequent claim denied after July 25, 1984, and
the onset date alleged in connection with the subsequent claim is on or
before the onset date alleged in connection with the potential
Wilson claim.
V. Determination of Class Membership and Preadjudication
Actions
Potential class members will be notified by written notice or by a public
information campaign.
(a) SSA will notify potential non-combination subclass members by
displaying bilingual posters in English and Spanish in all SSA field
offices serving residents of New Jersey, and by issuing a one-time press
release to New Jersey, New York and Philadelphia newspapers advising
potential non-combination class members of their rights under the
settlement agreement. SSA also will send up to 75 posters to New Jersey
state and county public service offices identified by plaintiffs' counsel.
Furthermore, SSA will request public service announcements on radio and
television stations that, in SSA's determination, serve New Jersey
residents.
(b) SSA will identify potential non-severe subclass members by computer
run, and send individual notice by first-class mail. Individuals will be
encouraged to respond within 60 days from the date of receipt of the
notice to request that SSA readjudicate their claims under the terms of
the Wilson Stipulation and Order. Notices returned
as undeliverable will not be sent a second time. In addition to the
one-time mailing, the one-time press release and public service
announcements referred to above will include notice to potential
non-severe subclass members of their rights under the settlement
agreement. However, the potential non-severe subclass members will not be
included in the poster notice.
All claimants seeking relief under the Wilson class
action must identify themselves as potential class members by February 28,
1994.
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 (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 the Deputy Commissioner for Programs
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
Wilson alert.
In most instances, ODIO or the PSCs will associate the
Wilson alert and the claimant's response form with
the claim file(s) and forward the file(s) to the NEPSC for screening and
to the New Jersey DDS for readjudication.
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 will send all alerts potentially within OHA jurisdiction and related
prior claim files(s), 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
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.
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 Wilson 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 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 route requests
to the servicing FO and will send a copy 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
2123
ATTN: Wilson Coordinator
The 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
Part V.B.2.a. below). For additional
information on reconstruction procedures, see the Generic Class
Implementation Instructions,
HA 01170.005 C.
5. Class Membership Denials
The Camden, New Jersey district office, located at Mt. Ephraim Office
Center, 2600 Mt. Ephraim Avenue, Camden, New Jersey 08104-3210, will hold
all non-class member claim files pending review by class counsel. Upon
review of the files, class counsel will contact the Office of the General
Counsel (OGC) directly to resolve class membership disputes.
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
Wilson claim file(s). The OAO Class Action
Coordinator will determine OHA jurisdiction for screening and forward as
follows.
•
If the current claim is in a hearing office (HO), the Coordinator will use
Attachment 3 to forward the alert and prior claim folder(s) to the HO for
screening. (Part V.B.2.a. below provides
instructions to 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 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
folder within OHA, the Coordinator (or designee) will broaden the 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 another claim,
the Coordinator will forward the alert and any accompanying claim file(s)
to the appropriate OAO 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.
The screening component will associate the alert, if any, and any prior
claim file with the claim file in its possession and complete the
screening sheet (see Attachment 4) as follows.
•
Consider all applications denied (including res
judicata denials/dismissals) during the
Wilson 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 22041-3255
ATTN:
Wilson Coordinator
HO 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 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 July 25, 1984, on a claim
filed by a potential Wilson class member, may
adjudicate the same timeframe covered by the Wilson
claim. Instead of applying the doctrine of administrative res
judicata to the Wilson 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 Wilson 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 Wilson issues, the claimant is not a
Wilson 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 Wilson issue(s), e.g., there is a prior
(inactive) Wilson claim and the claim pending in
court did not include the entire period covered by the
Wilson claim, and the claimant elects to have the
case remanded to the Commissioner for readjudication (instead of
proceeding in court), the CCPRB will forward the
Wilson claim to the New Jersey DDS for separate
review. The CCPRB will modify the case flag in Attachment 9 to indicate
that the pending court case does not resolve all
Wilson issues and that the
Wilson 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.
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 facts and posture of
the case when there is a current claim);
•
retain a copy of the notice in the claim folder;
•
send a copy of the notice to:
Richard E. Yaskin, Esq.
Evans & Yaskin
Village
Greene East - Suite 8
152 Himmelein Road
Medford,
New Jersey 08055
ATTN: WilsonClass
Action Unit•
send the non-class member claim folder(s) to the Camden, New Jersey
district office using the pre-addressed route slip in Attachment 7.
Photocopy any material in the prior folder that is relevant to the current
claim and place it in the current claim folder before shipping the prior
folder.
•
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 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, the screening component 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 New Jersey DDS will conduct the first Wilson
review except for cases consolidated at the OHA level (see
Part VI.D. below). The DDS determination
will be a reconsideration determination regardless of the administrative
level at which the class member's claim(s) was decided previously, 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
Wilson 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 Wilson
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 Wilson 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 Wilson 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 re-evaluation 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 determination(s)/decision(s) that forms the basis of
the Wilson class membership. Evidence will be
reviewed as follows:
•
Title II denial cases - from the twelfth month prior to the date of the
original application, or the date of the earliest alleged onset of
disability, whichever is later, through the date of the latest
administrative decision resulting in class membership;
•
Title XVI denial cases - from the original date of application for the
earliest Wilson claim through the date of the
latest administrative decision resulting in class membership; and
•
Title II/title XVI cessation cases - from the date of termination of
disability benefits through the date of the latest administrative decision
resulting in 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 determination(s)/decision(s) that forms the basis of
the Wilson 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
Wilson 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 effect 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
New Jersey residents in accordance with
20 CFR §§
404.1520(c),
404.1521,
416.920(c) and
416.921, as well
as SSR 85-28. The
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 at OHA but No Current Action Pending
If the claim file (either a class member or a subsequent claim) 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. (See Part V.B.3., above, for
non-class member processing instructions.)
•
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
Wilson class member flag (see Attachment 9) to the
outside of the file and send the claim file(s) to the New Jersey DDS for
review of the Wilson class member claim.
•
If less than 120 days have elapsed, OAO will attach a
Wilson class member flag (see Attachment 10) to the
outside of the file to ensure that the case is routed to the New Jersey
DDS after expiration of the retention period. Pending expiration of the
retention period, OAO also will:
—
return unappealed ALJ decisions and dismissals to DFB, OAO; 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 folder(s) to the New Jersey DDS (see Part III. above) in a
timely manner.
D. Processing and Adjudicating Class Member Claims in Conjunction with
Current Claims (Consolidation Procedures)
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 all Wilson
class member claims with the current claim at the level at which the
current claim is pending.
2. Current Claim Pending in the Hearing Office
a. Hearing Scheduled or Held and all Remand Cases
Except as noted below, if a Wilson 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 Wilson case with the appeal on the
current claim.
The ALJ will not consolidate the claims if:
•
the current claim and the Wilson claim do not have
any common issues, 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.
Except as noted below, if a Wilson 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
Wilson claim and the current claim. Instead, the
ALJ will dismiss the request for hearing on the current claim and forward
both the Wilson claim and the current claim to the
New Jersey 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 Wilson 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 Are Consolidated
If the ALJ decides to consolidate the current claim with the
Wilson 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 Wilson claim raises an additional issue(s) not
raised by the current claim;
•
offer the claimant a supplemental hearing if the ALJ already has held a
hearing and the Wilson claim raises an additional
issue(s), unless the ALJ is prepared to issue a fully favorable decision
with respect to the Wilson claim;
•
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the Wilson
claim (the ALJ's decision will clearly indicate that the ALJ considered
the Wilson claim pursuant to the
Wilson court order); and
•
send copies of the consolidated hearing decision to both:
Office of Hearings and Appeals
Division
of Litigation Analysis and
Implementation
5107 Leesburg
Pike
Suite 702
Falls Church, VA
22014-3255
ATTN: Wilson
Coordinator
Suite
702
and
Litigation Staff
Office of Policy and Planning
3-K-26
Operations Building
Baltimore, Maryland
21235
ATTN: Wilson
Coordinator
d. Action if Claims Are Not Consolidated
If common issues exist but the ALJ decides not to consolidate the current
claim with the Wilson claim because a hearing has
not yet been scheduled, the HO will:
•
dismiss, without prejudice, the request for hearing on the current claim,
using the language in Attachment 10 and the covering notice in attachment
11; and
•
send both the Wilson claim and the current claim to
the New Jersey DDS for DDS consolidation and further action.
If the ALJ decides not to consolidate the current claim with the
Wilson 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 Wilson claim for DDS review using
Attachment 12; immediately route it to the New Jersey DDS for
adjudication; and retain a copy of Attachment 12 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 Wilson 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 Wilson claim.
a. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial
Decision on the Current Claim — No Wilson
Issue(s) Will Remain Unresolved
This usually will occur when the current claim duplicates the
Wilson review claim, i.e., the
Wilson 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. 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 Wilson claim.
b. Appeals Council Intends To Dismiss, Deny Review or Issue a Denial
Decision on the Current Claim — Wilson
Issue(s) Will Remain Unresolved
This usually will occur when the current claim does not duplicate the
Wilson claim, e.g., the
Wilson claim raises an issue of potential
entitlement to disability benefits 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 Wilson case flag
(Attachment 9) to the Wilson claim, immediately
forward the Wilson claim to the New Jersey DDS 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 Wilson
issues and that the Wilson 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 Wilson 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
Wilson 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 Wilson claim, and issue a decision that
adjudicates both applications.
The Appeals Council's decision will indicate clearly that the Appeals
Council considered the Wilson claim pursuant to the
Wilson court order. For class action reporting
purposes, the Appeals Council will send copies of its decision to the
Wilson coordinators listed in
Part VI.D.2.c. above.
d. Appeals Council Intends To Issue a Favorable Decision on the
Current Claim —Wilson 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 Wilson claim, the Appeals
Council will proceed with its intended action. The Appeals Council will
request the effectuating component to forward the claim folders to the New
Jersey DDS 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:
“Wilson court case review needed —
following effectuation forward the attached combined folders to the
Division of Disability Determinations, Department of Labor, P.O Box 649,
Newark, New Jersey 07101.”
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 Wilson 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 claim and the Wilson claim do not have
any common issues, 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
Wilson class member claim to the New Jersey DDS for
separate review. The case flag in Attachment 9 should be modified to
indicate that the Appeals Council, rather than an ALJ, is forwarding the
Wilson class member claim for separate
processing.
For all cases in which OHA is the first level of review for the
Wilson claim (i.e., the Appeals Council or an ALJ
consolidates the Wilson 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
Wilson 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. Instead, HO personnel
will change the hearing type on the current claim to a
“reopening.”
To identify class member cases in HOTS, HO personnel will code
“WL” 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.
Attachment 1. Wilson v. Sullivan Stipulation and Order
Filed October 22, 1991.
[DATE FILED 10/22/1991]
MICHAEL CHERTOFF
United States Attorney
970 Broad
Street
Room 502
Newark, NJ 07102
(201)
621-2921
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
|
JOHN WILSON, and MARY CHRISTOPHER, on
their own behalf and on behalf of
others similary situated
Plaintiffs,
|
|
|
v.
|
Hon. Stanley Brotman
Civil Action
No. 83-3771
|
|
LOUIS W. SULLIVAN, M.D.,
SECRETARY OF HEALTH,
AND HUMAN SERVICES,
Defendant.
|
|
STIPULATION OF SETTLEMENT
AND CONSENT ORDER OF DISMISSAL
IT IS HEREBY STIPULATED by plaintiffs and defendant, through their
respective counsel, that the following terms are agreed to in full
settlement of the above-captioned civil action:
1.
This settlement shall apply to:
A.
a non-combination subclass which includes:
those persons whose permanent residence was in the State of New Jersey at
the time of their most recent administrative decision prior to 8/20/80
denying or terminating their Social Security disability benefits or
Supplemental Social Security Income disability payments under the
Secretary's policy not to consider impairments in combination as set forth
in Disability Insurance State Manual 321B who a) alleged the existence of
more than one impairment, b) whose impairments were not considered in
combination, and c) who between December 1, 1978 and August 20,
1980:
1.
had received a final decision of the Secretary and either did not appeal
to federal court or had a pending case challenging the denial of benefits;
or
2.
had not exhausted administrative remedies but had received an unfavorable
result due to the application of the Secretary's policy not to consider
impairments in combination, including all persons denied as a result of
the Secretary's application of the policy not to consider impairments in
combination who had not taken an appeal to the federal courts.
This subclass includes only claimants who were denied at Step Two
(non-severe) of the sequential evaluation procedure (as set forth in
20 C.F.R.
§§404.1520,
416.920). The
“final decision” in subparagraph (a) means the decision of
the Secretary which is subject to judicial review as set forth in 42
U.S.C. §405(g).
B.
a “non-severe” subclass, which is defined as those persons
whose permanent residence was in the State of New Jersey at the time they
received a denial or cessation at Step Two of the sequential evaluation
process, which was issued between August 7, 1983 and July 25, 1984. This
subclass shall not include those persons who administratively or
judicially appealed their Step 2 denials or cessations after July 25,
1984.1
2.
Any claimant who meets either of the subclass definitions, but whose claim
was adjudicated by a federal court, shall not be included in either
subclass.
3.
The disability claims of subclass members shall be redetermined in
accordance with the applicable statutory and regulatory standards for
disability adjudication and the standards set forth in
Social Security Ruling (SSR)
85-28.
4.
The non-combination subclass and the non-severe subclass shall be treated
the same with respect to retroactivity of benefits and redetermination
procedures.
5.
Members of the non-combination subclass shall be given notice by the
Social Security Administration (SSA) as follows:
A.
SSA will conduct a public relations campaign consisting of bilingual
posters in English and Spanish, a one-time press release to New Jersey,
New York City and Philadelphia newspapers, and a request for a public
service announcement on radio and television stations which in SSA's
determination serve New Jersey. SSA will compose and distribute the
posters, press releases and requests for public service announcements.
Class counsel will provide a list of newspaper and TV and radio stations
which SSA will consider in determining appropriate distribution. SSA will
prominently display posters in all SSA field offices serving residents of
the State of New Jersey to which the public has access. Class counsel will
provide a list of the addresses, not to exceed 75, of New Jersey's county
offices of Social Services, Legal Aid and Legal Services offices and
Office on Aging. SSA will send a poster to each address on class counsel's
list.
6.
Members of the non-severe subclass shall be given notice by SSA as
follows:
A.
SSA shall, by means of its data processing systems, identify the names,
Social Security numbers, and last known addresses of potential class
members. SSA shall send a notice by first-class mail to the last know
address of each claimant identified by SSA as a potential non-severe
subclass member. The notice will instruct potential class members of their
possible entitlement to a redetermination of their claims and will further
inform them that they should return an enclosed letter or form within 60
days of receipt in order to expedite their claims and in the event that a
redetermination is desired. If a claimant does not respond to the notice,
or the notice is undeliverable, there will be no follow-up to this
one-time notice.
B.
The one-time press release to New Jersey, New York City and Philadelphia
newspapers, and the request for a public service announcement on radio and
television stations which in SSA's determination serve New Jersey
residents referred to in subparagraph 5) A) will include the non-severe
subclass. However, notice to the non-severe sub-class will not be provided
by poster.
7.
Claimants seeking relief under this stipulation and order shall have one
year and six months from the date of entry of this stipulation and order
to identify themselves as subclass members by means of the following
procedure:
A.
Claimants shall make a threshold showing that they are entitled to such
relief during the relevant time periods as set forth in ¶1 by
presenting at an SSA field office, by mail or in person, one of the
following:
i.
a denial letter from the relevant time period;
ii.
a modified Form SSA-795, “Statement of the Claimant”,
containing a checklist of eligibility criteria which is completed, signed
by the claimant, and affirms that: a) (for non-severe subclass members)
they were denied at the non-severe step during the relevant time period or
b) (for non-combination subclass members) they were denied at the
non-severe step during the relevant period and that they had alleged more
than one impairment. The affirmation paragraph will be identical to that
in Form SSA-795 appended hereto. The form will be available at SSA field
offices. Claimants may obtain the form in person or by telephone
request.
8.
When a claimant identifies himself as a potential subclass member to an
SSA field office by means of the “threshold showing” set
forth above in ¶7) A) and class membership cannot be determined
through SSA records other than the claimant's file, a determination on
class membership will be based on a review of the claimant's file. If the
claimant's file cannot be located, and is needed for a class membership
determination, SSA shall make best efforts to reconstruct the file. In the
absence of contrary evidence in either the file or other agency records, a
claimant's threshold allegations of subclass membership shall be
accepted.
9.
After SSA determines that a claimant is a class member, SSA shall conduct
a redetermination of the evidence in the claimant's file at the
reconsideration level and shall consider any additional medical evidence
the class member submits which relates to the relevant period of time. If
a claimant cannot, for good and sufficient reason, obtain such medical
evidence, SSA shall make reasonable efforts to obtain that evidence.
However, the evidence and its location must be identified with specificity
by a claimant and SSA must deem the evidence necessary to make a
redetermination. A redetermination does not include a review of evidence
to determine whether the claimant became disabled for different or
subsequent periods of time. A claim will not be favorably redetermined
unless the evidence pertaining to the relevant time period supports an
allowance or continuance. In cases decided favorably to the subclass
member, retroactive benefits shall be payable based on the application
that resulted in the denial which established the subclass membership,
assuming that all other non-disability factors of entitlement are met.
When a claim has been favorably redetermined, any subsequant medical
termination must meet the standard in 42 U.S.C §423 (f).
10.
If the redetermination results in a decision that is less than fully
favorable, the claimant will be informed of his right to pursue
administrative review. Claimants whose claims are denied at the
reconsideration level shall have the right of appeal directly to an
Administrative Law Judge. Appeal rights on redetermination shall apply as
set forth in 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N.
11.
If SSA determines that a claimant who responded to the notice procedure
set forth above is not a class member as described in 1 and 2 of this
settlement, SSA will send notice of this determination to the claimant and
class counsel: Richard E. Yaskin, Esq., Evans & Yaskin, Village Greene
East - Suite 8, 152 Himmelein Road, Medford, New Jersey 08055; ATTN:
Wilson Class Action Unit. Claimants will be informed that if they disagree
with the determination, they may contact class counsel within 60
days.
A.
Class counsel may, within 60 days of the date following receipt of SSA's
determination denying class membership, write the Office of the General
Counsel (OGC), Region II, Department of Health and Human Services, New
York, explaining any disagreement. Any delay by class counsel beyond the
sixty days may be excused for another 60 days, only if OGC determines that
he meets the criteria set forth in
20 C.F.R.
§404.911. A claimant's delay in contacting class counsel may
also be excused if OGC determines that the claimant has satisfied the
criteria set forth at 20 C.F.R §404.911. The parties will attempt to
resolve the dispute. If they cannot do so within 90 days after OGC
receives the written disagreement, OGC will send a letter to class counsel
stating that a resolution cannot be reached. Within 45 days of the receipt
of the non-resolution letter, class counsel may, upon duty noticed motion,
submit the matter to the Court for resolution.
B.
Class counsel may request to review the folder or other material upon
which the class membership denial was based. SSA will make the folders or
other materials available at one Social Security field office designated
by class counsel. The file or other material will remain at the designated
SSA field office for thirty days. Class counsel will use this information
solely for the purpose of pursuing the individual's claim.
C.
If OGC does not receive written notification from class counsel disputing
the class membership determination within the 60 days described in
subparagraph A, it is final and not subject to further review.
D.
If class counsel receives the non-resolution letter and does not submit
the matter to the Court for resolution within 45 days of receipt, SSA's
determination is final and not subject to further review.
12.
Beginning 150 days after the commencement of the public relations
campaign, and on a quarterly basis thereafter, defendant will provide to
plaintiffs' counsel the following:
A.
The number of claimants who have requested subclass membership.
B.
The number of claimants who have been screened into the subclass.
C.
The number of claimants who have been screened out of the subclass.
D.
The number of claimants whose claims were favorably (or partially
favorably) redetermined.
E.
The number of claimants whose claims were unfavorably redetermined.
13.
SSA shall promulgate instructions to all personnel charged with
implementing this order and with responding to inquiries from potential
subclass members as described in this order. The advance copies of all
final instructions, including POMs instructions, will be provided to class
counsel. Class counsel will have seven days from the date on which he
received the instructions to comment on them.
14.
This Court will retain jurisdiction over this action solely for the
implementation of the specific provisions of this stipulation and order
and to ensure that individual subclass members are properly identified for
purposes of obtaining relief pursuant to this stipulation and order. The
Court shall not monitor or review the Secretary's adjudication of any
individual claim. However, no claimant is barred by this settlement from
exercising their judicial appeal rights by filing an individual civil
action pursuant to 42 U.S.C. §405(g).
15.
The relief offered herein is in no way to be construed as an admission of
wrongdoing by the defendant and is agreed to by the defendant solely to
settle the case and to avoid the cost of further litigation.
16.
This settlement waives the rights of both parties to appeal this Court's
March 19, 1990 decision and its April 11, 1990 order.
IT IS FURTHER STIPULATED that all claims in the amended complaint for
which relief has not been granted in this order are dismissed with
prejudice, except that plaintiffs may apply for counsel fees and costs
pursuant to 28 U.S.C. §2412 (d).
|
EVANS & YASKIN
A Professional Corporation
/s/
_________________
RICHARD E. YASKIN
Attorney for Plaintiffs
|
MICHAEL CHERTOFF
United States Attorney
/s/
_________________
PETER G. O'MALLEY
Attorney for Defendant
|
|
SO ORDERED:
/s/
_________________
STANLEY S. BROTMAN
Senior U.S.D.J.
DATE: 10/15/91
|
|
_______________
Persons who had administrative or judicial appeals pending on or after
July 26, 1984 were entitled to the remedies provided by the court's order
of November 14, 1985. Wilson v. Heckler, 622 F.Supp. 649, 661
(D.N.J.1985).
Attachment 2. WILSON COURT CASE FLAG/ALERT
WILSON
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:
Social Security
Administration
Northeastern Program Service
Center
P.O. Box
4100
Jamaica, NY
11432
OR
Appropriate
DDS
ATTN: Wilson 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
Wilson Class
Action Case
SCREENING NECESSARY
Claimant's Name: __________________________________
SSN: __________________________________
This claimant may be a Wilson class member. The
attached folder location information indicates that a current claim 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 5-4-16, Supp. A, (Revised) for additional information and
instructions.
TO: ______________________________
___________________________________
___________________________________
___________________________________
|
WILSON SCREENING SHEET
|
|
1. SOCIAL SECURITY NUMBER
___ ___ ___ - ___ ___ - ___ ___ ___ ___
|
BIC
___ ___
|
|
2. NAME (First Name, Middle Initial, Last Name) |
|
3. SCREENING DATE (Month, Day, Year) -- Example: August 8, 1992 would be: 08-08-92)
___ ___ - ______ - ___ ___
|
|
4. a. MEMBERSHIP DETERMINATION
[___] MEMBER (J) [___] NONMEMBER (F)
|
b. SCREENOUT CODE:
___ ___ (See item 11 for screenout codes)
|
|
5. Is this a DIB, CDB claim or a SSID adult claim? |
__Yes __No
(if Yes, go to 6)
(if No, go to 11)
|
|
6. Did the individual reside in New Jersey the final decision of the Secretary was made, i.e., December 1, 1978 - August 20, 1980 or August 7, 1983 - July 25, 1984? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.) |
__Yes __No
(if Yes, go to 7)
(if No, go to 11)
|
|
7. Was a claim for disability benefits denied or terminated at any administrative level between December 1, 1978, and August 20, 1980, inclusive (1) based on a finding of non-severe impairment(s), (2) did the claimant allege more than one impairment, and (3) did this denial/cessation become the final decision of the Secretary? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.) |
__Yes __No
(if Yes, go to 9)
(if No, go to 8)
|
|
8. Was a claim for disability benefits denied or terminated at any administrative level between August 7, 1983, and July 25, 1984, inclusive, based on a finding of non-severe impairment(s) and did this denial/cessation become the final decision of the Secretary? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.) |
__Yes __No
(if Yes, go to 9)
(if No, go to 11)
|
|
9. Even if the claimant was issued or received a final adverse determination/decision within the timeframes listed in questions No. 7 or 8, did the individual receive a final adverse decision (i.e., a denial at step two, step four or step five of the sequential evaluation) on or after July 26, 1984, on a subsequent claim with an alleged date of onset on or before the onset date alleged in connection with the Wilson claim? |
__Yes __No
(if Yes, go to 11)
(if No, go to 10)
|
|
10. Was the claim decided by a Federal Court? |
__Yes __No
(if Yes, go to 11)
(if No, claimant is a class member)
|
|
11.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 08 if question 8 was answered “NO.”
Enter 09 if question 9 was answered “YES.”
Enter 10 if question 10 was answered “NO.”
|
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
WILSON 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 the NEPSC for screening.
SEE POMS DI 42523.001ff OR DI 12523.001ff.
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 6. Non-Class Membership Notice
SOCIAL
SECURITY Important Information
NOTICE
______________________________________
From: Department of Health and Human Services
Social Security Administration
______________________________________
___________________________ DATE: ______________________
___________________________ CLAIM NUMBER: __________________
___________________________ DOC: ___________________________
We are writing to tell you that we received your request to review your
earlier claim for disability benefits under the
Wilson case. 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.
A copy of this letter is being sent to the attorney for the
Wilson class. If you think we are wrong, you should
write or call the class attorney, who will answer your questions about
class membership. If the attorney thinks that we are wrong, we may look at
your case again. The name and address of the attorney is:
Richard E. Yaskin, Esq.
EVANS & YASKIN
Village
Green East
Suite 8, 152 Himmelein Road
Medford,
NJ 08055
ATTN: WilsonCLASS ACTION
UNIT
(609) 654-7912
REASON FOR UNFAVORABLE DECISION
You are not a Wilson class member because:
|
_________ |
You did not receive a denial or termination decision from Social Security between December 1, 1978,and August 20, 1980, nor between August 7, 1983, and July 25, 1984. |
|
_________ |
You received a denial or termination decision from Social Security between December 1, 1978, and August 20, 1980, inclusive, but it was not based on a not severe impairment(s). |
|
_________ |
You received a denial or termination from Social Security between August 7, 1983, and July 25, 1984,inclusive, but it was not based on a not severe impairment. |
|
_________ |
You received a denial or termination decision from Social Security Administration between August 7, 1983, and July 25, 1984, based on a not severe impairment, but you appealed that decision and the appeal was decided on or after July 26, 1984. |
|
_________ |
You received a decision during one of the timeframes above, but you did not reside in New Jersey at the time the decision was made. |
|
_________ |
Your case was decided by a Federal Court. |
|
_________ |
Your benefits were denied for some reason other than your medical condition. The reason was:
_______________________________________________
_______________________________________________
________________________________________________
|
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
Wilson class member. If you do not agree with this
decision, you have 60 days after receiving this notice to notify the class
attorney, listed on page 1, that you want to protest this decision.
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 one of our offices, please have this letter
with you. It will help us answer your questions.
cc: Richard E. Yaskin, Esq.
Medford, NJ 08055
Attachment 7. Route Slip for Non-Class Membership Cases
|
ROUTING AND TRANSMITTAL SLIP |
DATE: |
|
TO: |
INITIALS |
DATE |
|
1. SSA District Office |
|
|
|
2. MT. Ephraim Office Center |
|
|
|
3. 2600 Mt. Ephraim Avenue |
|
|
|
4. Camden, New Jersey 08104-3210 |
|
|
|
5. |
|
|
|
6. |
|
|
|
7. |
|
|
|
XX |
ACTION |
|
FILE |
|
NOTE AND RETURN |
|
|
APPROVAL |
|
FOR CLEARANCE |
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PER CONVERSATION |
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REMARKS
WILSON CASE
Claimant: ___________________________
SSN: ________________________________
We have determined that this claimant is not a
Wilson class member. (See screening sheet and copy
of non-class membership notice in the attached claim folder(s).)
SEE POMS DI 12531.001ff.
Attachment
DO NOT use this form as a RECORD of approvals, concurrences,
disposals,
clearances, and similar actions.
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FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
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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.”
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DEPARTMENT OF HEALTH & HUMAN SERVICES |
Social Security Administration
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___________________________________________________________________________ |
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Refer to:
FEB 21 1991
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Office of Hearings and Appeals
PO Box 3200
Arlington, VA 22203 |
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MEMORANDUM TO: |
Headquarters Executive Staff
Appeals Council Members
Regional Chief Administrative Law Judges
Hearing Office Chief Administrative Law Judges
Supervisory Staff Attorneys
Decision Writers
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FROM: |
Acting Associate Commissioner |
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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
Court's 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 claimant's 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's 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 adjudicator 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(s) 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.
Regional Office personnel should direct their questions to the Division of
Field Practices and Procedures, Office of the Chief Administrative Law
Judge.
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/s/
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Lawrence W. Mason for Andrew J. Young |
Attachment 9. Wilson Class Member Flag for Headquarters Use (DDS
Readjudication)
Wilson Class Action Case
READJUDICATION NECESSARY
Claimant's Name: __________________________________
SSN: __________________________________
This claimant is a Wilson class member. After
expiration of the retention period, forward claim folder(s) to the New
Jersey DDS for readjudication.
[If there is a current claim pending in court, but that claim does not
resolve all Wilson issue(s), e.g., there is a prior
inactive) Wilson claim and the current claim does
not include the entire period covered by the Wilson
claim, forward the Wilson claim to the New Jersey
DDS for separate review; modify this flag pursuant to the instruction in
Part V.B.2.b.]
Send folders to:
Division of Disability Determinations
Department
of Labor
P.O. Box 649
Newark, New Jersey 07101
(Destination code: ____)
DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social
Security
Administration
OFFICE OF HEARINGS AND APPEALS
ORDER OF DISMISSAL
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IN THE CASE OF |
CLAIM FOR |
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__________________________ |
__________________________ |
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__________________________ |
__________________________ |
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
District of New Jersey in the case of Wilson, et
al. v. Sullivan, No. 83-3771 (D.N.J. October 22, 1991), the claimant has
requested a redetermination of the final (determination/decision) on the
prior application(s) filed on ______________. The claimant has been
identified as a Wilson class member and is entitled
to have the final administrative denial of the prior application(s)
reviewed under the terms of the Wilson final
judgment order. Because the claimant's current claim shares certain issues
in common 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 New Jersey Disability Determination Service
which will conduct the Wilson
redetermination.
The disability determination service will notify the claimant of its new
determination and of the claimant's right to file a new request for
hearing.
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_________________________
Administrative Law Judge
_________________________
Date
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Attachment 11. 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 New Jersey 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
Wilson class member claim back to the New Jersey
Disability Determination Service for further processing. The enclosed
order explains why.
The Next Action on Your Claim
The New Jersey Disability Determination Service will contact you to tell
you what you need to do. If you do not hear from the New Jersey 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))
Attachment 12. Wilson Class Member Flag for Headquarters Use (DDS
Readjudication)
Wilson Class Action Case
READJUDICATION NECESSARY
Claimant's Name: __________________________________
SSN: __________________________________
This claimant is a Wilson class member. The
attached Campbell claim folder was forwarded to
this hearing office for possible consolidation with a current claim.
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__________
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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
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__________
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The claims have not been consolidated because:
______________________________________________
______________________________________________
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Accordingly, we are forwarding the attached alert and prior claim
folder(s) to your location for any necessary Wilson
readjudication action.
We are sending the alert and prior folder(s) to:
Division of Disability Determinations
Department
of Labor
P.O. Box 649
Newark, New Jersey 07101
(Destination code: ____ )