Attachment 1. - Bailey v. Sullivan Stipulation and Order Filed July 29, 1991.

IRVIN BAILEY, on behalf of

himself and all others                                                [Filed July 29, 1991]

similarly situated,                                                       Civil Action No. 83-1797

Plaintiff,

v.

Louis W. Sullivan, M.D.

Secretary of Health and Human Services,

Defendant.

STIPULATION AND ORDERS

IT IS STIPULATED by plaintiff and defendant, through their respective counsel, that relief to the plaintiff class, as defined in footnote one herein, shall be implemented as follows:

1. 1. 

   The Social Security Administration (SSA) shall, by means of its data processing systems, identify the name, Social Security numbers and last known addresses of potential class members, in accordance with the criteria set forth in the first paragraph of the definition of the class entitled to relief. This process of identification has begun, and shall be completed within 60 days of the Court's approval and entry of this Stipulation and Order.

2. 2. 

   Within 60 days of the issuance of the instructions described in ¶ 8 of this Stipulation and Order, SSA shall send a notice by first class mail to each potential class member so identified, at his or her last known address. This notice will instruct potential class members of their possible entitlement to a redetermination of their claims, and will further inform such individuals that they must return an enclosed pre-addressed and postage prepaid postcard or form, within 30 days of receipt of the notice, in the event that such redetermination is desired.

3. 3. 

   In the event that a notice mailed pursuant to the preceding paragraph is returned as undeliverable, SSA will attempt to obtain updated addresses by:

   1. a. 

      checking its own records:

   2. b. 

      providing, subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. §552a, computer tapes of potential class members’ names and last known addresses to various Pennsylvania and Delaware State agencies such as Welfare, Child Welfare, Mental Health, Aging, Child Support Enforcement and Revenue, requesting that said agencies search their records to secure current addresses, provided that the defendant shall not be required to institute legal proceedings to gain access to State data system records or to reimburse or compensate States for searching such records:

   3. c. 

      preparing and disseminating appropriate bilingual posters to all SSA district and field offices, SSA Offices of Hearings and Appeals and State welfare offices, in the States of Pennsylvania and Delaware, for posting in such offices, informing individuals of their potential right to review of their disability claims under appropriate standards, provided that the defendant shall not be required to institute legal proceedings to compel such posting by offices under State jurisdiction.

   SSA will thereafter mail a second notice to all potential class members for whom updated addresses are obtained.

4. 4. 

   If a potential class member receives a notice referred to in ¶¶ 2 or 3 and does not respond within the required 30 days, he or she may be denied review under this Stipulation and Order absent a finding of “good cause” as set forth in 20 C.F.R. §§ 404.911, 416.1411.

5. 5. 

   For those individuals who timely respond to the notice, SSA will screen the applicable claims files or other relevant SSA records to determine if they are class members entitled to relief. Those individuals who have been determined not to be class members entitled to relief will be notified in writing of such determination and will be further informed of their right to a review thereof, in accordance with the procedures set forth in ¶ 6 of this Stipulation and Order. Copies of said notices shall be sent contemporaneously to class counsel.

6. 6. 

   Individuals who disagree with a finding that they do not meet the criteria for class members entitled to relief may contact or write class counsel for additional review. In an effort to facilitate such contact, SSA will provide postage prepaid postcards or forms, addressed to class counsel, as an accompaniment to the non-class membership determination notices referred to in the preceding paragraph of this Stipulation and Order. Class counsel may, within 60 days of the date of the non-class membership determination notice, in turn notify in writing an individual to be designated in the Office of the General Counsel, Social Security Division, Department of Health and Human Services, Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235 that review of the individual's claims file or other records relied upon by SSA in making the non-class membership determination is desired. Within 30 days of the receipt of class counsel's written request to review such records, SSA will make available that individual's records at a designated SSA field office location in Pennsylvania or Delaware, and will notify class counsel in writing. Such records will be available for review by class counsel for a period of 30 days. At the expiration of the 30 days, if class counsel has still not reviewed the records, it shall be assumed that review is no longer desired, and SSA's non-clam membership determination shall become final and not subject to further review.

7. 7. 

   If class counsel's review of the relevant SSA records establishes that there is a dispute as to whether the individual is a class member entitled to relief, class counsel will notify the Office of the General Counsel, Social Security Division, Department of Health and Human Services, by telephone or in writing, within 30 days of such review. Both parties will then attempt to resolve the dispute. In the event the parties are unable to resolve the dispute, class counsel may submit any unresolved dispute to the Court for final resolution, by proper motion made within 30 days of the date of written reaffirmation, by the Office of the General Counsel, Social Security Division, of the prior non-class membership determination, and the defendant shall have the opportunity to respond thereto consistent with federal and local court rules. Failure of class counsel to request a judicial determination within the aforesaid 30 day period shall render SSA's non-class membership determination final and not subject to further review.

8. 8. 

   Within 120 days of the Court's approval and entry of this Stipulation and Order, SSA will issue instructions for its effectuation, including the notices referred to in ¶¶ 2 and 5, the posters referred to in ¶ 3(c), the cards or forms referred to in ¶ 6, and the proper standard for evaluating the eligibility of class members for disability benefits, to all adjudicators responsible for conducting adjudications hereunder. Copies of such instructions will be provided to class counsel for their comments prior to issuance. Should there be dispute as to the contents of the instructions, class counsel may file a written objection thereto with defendant's counsel within 10 days of their receipt, during which time the instructions will be held in abeyance, and the parties will thereafter attempt to resolve the dispute within 10 days of the receipt by defendant's counsel of such written objection. In the event the parties are unable to resolve the dispute, class counsel shall, within 5 days of the expiration of the 10 day period for settlement, submit the matter to the Court for resolution, and the defendant shall have the opportunity to respond to such submission consistent with federal and local court rules. Failure of class counsel to submit a written objection and/or request such a judicial resolution within the aforesaid periods shall render the instructions and notices proposed by SSA final and not subject to further review.

9. 9. 

   The claims of class members whose denial or termination resulted in class membership will be reviewed from:

   1. a. 

      the seventeenth month prior to the date of application or date of earliest alleged onset of disability, whichever is later, in cases where benefits under Title II were denied [Note: in those Title II cases where beginning review at the earlier point in time would benefit the class member consistent with statutory and regulatory requirements, review will be done from that earlier point):

   2. b. 

      the date of application, in cases where benefits under Title XVI were denied; or

   3. c. 

      the date of the termination of disability benefits;

   whichever is applicable. The review shall continue through the date of the latest denial or termination of benefits that made the class member entitled to relief under this Stipulation and Order.

10. 10. 

    In evaluating the severity of an individual's impairment or impairments during the period referenced in ¶ 9 of this Stipulation, SSA will afford class members the opportunity to provide evidence not previously included in the claims file which is relevant thereto and SSA will attempt to secure and/or develop any further evidence necessary to adequately evaluate the severity of the individual's impairment or impairments during the referenced period.

11. 11. 

    Where, upon the review referenced in ¶ 9 of this Stipulation and Order, an individual's impairment or impairments are considered to have been severe (either individually or in combination), SSA shall evaluate the individual's claim in accordance with the process of sequential evaluation set forth at 20 C.F.R. §§ 404.1520, 416.920 (in cessation cases, §§ 404.1594 and 416.994). Should this review result in a finding of disability, the claim of such individual will be reopened, with the individual's claim of entitlement to benefits being determined through the date of the new determination rendered hereunder. Upon such reopening, SSA shall attempt to obtain updated medical records, and the individual shall cooperate in this regard in accordance with the requirements of 20 C.F.R. §§ 404.1512 et. seq., 416.912 et. seq.

12. 12. 

    Except as noted in ¶¶ 15 and 16 of this Stipulation and Order, all reviews shall be conducted at the reconsideration level, with determinations being appealable to an Administrative Law Judge upon request made pursuant to the procedures set forth at 20 C.F.R. §§ 404.933, 416.1433. Appeal of an Administrative Law Judge decision will be to the Appeals Council, upon request made pursuant to the procedures set forth at 20 C.F.R. §§ 404.968, 416.1468. Class members will retain rights to judicial review as provided in 42 U.S.C. §§ 405(g) and 1383(c)(1) and (3).

13. 13. 

    In cases where SSA determines that individuals were confused by the notices sent pursuant to the provisions of 20 C.F.R. §§ 404.922, 404.953, 416.1422, and 416.1453, SSA shall extend the normal 60 day time limits for requesting administrative appeals upon a showing of good cause as set forth in 20 C.F.R. §§ 404.911 and 416.1411.

14. 14. 

    SSA shall not reopen any subsequent application that has been decided favorably to a class member solely because review results in denial of the prior application under the appropriate standards.

15. 15. 

    At the option of SSA, class members with subsequent disability claims active and simultaneously pending at any administrative level of review at the time the class claim is being evaluated may have all claims covered by this Stipulation and Order consolidated with the current claim.

16. 16. 

    Class members having individual actions pending in federal court with respect to the unfavorable administrative decision resulting in class membership may elect either to seek a remand of their claim(s) for review by an Administrative Law Judge (with the Court retaining jurisdiction to review final decisions) or to have the action proceed in federal court pursuant to, and subject to the limitations contained in, 42 U.S.C. § 405(g). Nothing in this Stipulation and Order shall be construed to avoid or preclude the res judicata of a final court decision where a class member decides to proceed with his or her individual action in federal court or to authorize the relitigation in such individual actions of issues previously determined by the United States Court of Appeals for the Third Circuit in the instant case.

17. 17. 

    All individuals who received partially favorable decisions and who otherwise fall within the class parameters as defined above at footnote one shall receive the benefit of the provisions of this Stipulation and Order, where such claims are affirmatively brought to the attention of SSA and/or the Office of the General Counsel, Social Security Division, by such individuals or class counsel, in writing, within two years of the Court's approval and entry of this Stipulation.

18. 18. 

    SSA shall provide class counsel with the following:

    1. a. 

       an alphabetical list of the names, Social Security numbers and last known addresses of all potential class members identified pursuant to the procedures set forth in ¶ 1 of this Stipulation, within 90 days of the Court's approval hereof;

    2. b. 

       a quarterly report, categorized by State and number, of allowances and denials, which reporting shall commence four months after the sending of the notices referred to in ¶ 2 of this Stipulation and shall continue for a period of two years, provided that the parties may agree to, or the Court may order, an extension thereof if circumstances warrant;

    3. c. 

       an alphabetical list of class members denied at each stage of administrative review;

    4. d. 

       an alphabetical list of potential class members whose notices were undeliverable despite the efforts undertaken in accordance with ¶ 3 of this Stipulation and Order; and

    5. e. 

       the opportunity for a quarterly sampling of case files after administrative decisions have been rendered, at mutually acceptable times and locations and in accordance with procedures to be agreed upon by the parties.

19. 19. 

    The resort by class counsel to the dispute resolution or written objection procedures set forth in ¶¶ 7 and 8 of this Stipulation and Order shall serve to stay SSA's duty to comply with any time limitations otherwise set forth herein. The stay shall be continued until resolution of such dispute or objection, at which time SSA shall have the benefit of the unexpired remainder of the time limitation or 10 additional days, whichever is, longer, subject to the Court's expansion or modification thereof.

20. 20. 

    The time limitations set forth in this Stipulation and Order shall be subject to modification by mutual agreement of the parties at any time, or at the request of either of the parties hereto, by motion duly served, upon a showing of one or more of the following reasons:

    1. a. 

       due to a material change in circumstances, compliance with the provisions(s) sought to be modified would impose an undue or unreasonable burden not reasonably contemplated by the party seeking such modification at the time this Stipulation was executed;

    2. b. 

       despite good faith efforts by the party seeking such modification, the time limitation caught to be modified is impractical or unworkable in practice: or

    3. c. 

       any other reason justifying relief from the operation thereof pursuant to Rule 60 of the Federal Rules of Civil Procedure.

21. 21. 

    Within 30 days of receipt by SSA of this Stipulation and Order following the Court's approval and entry thereof, defendant shall make good faith efforts to pay to class counsel attorney fees, expenses and costs in the amount of $104,240.70 in full and final settlement of any and all claims in this action for attorney fees, expenses or costs pursuant to any statute or other basis for services that have been performed or that will be performed in the future in this action or in any administrative or court proceeding arising thereunder or relating to this action or this Stipulation. No other claims for attorney fees, expenses or costs by any counsel for the plaintiffs or plaintiff class will be allowed in this action. This does not preclude requests for attorney fees by class members who subsequently purse appeals of benefit denials on their individual claims, for legal services rendered in the pursuit of such appeals.

22. 22. 

    The defendant and his successors, and the United States of America and any department, agency or establishment thereof and any officers, employees, agents, successors or assigns of such department, agency or establishment (hereinafter referred to as the “releasees”) are released from any additional liability for attorney fees, expenses or costs based on any and all claims and causes of action which have been, could have been or will be asserted in this case by reason of, or with respect to, any of the matters alleged in this action, which the plaintiffs or the plaintiff class, or any of them, or their heirs, executors, successors or assigns had, now have, or may subsequently have against the releasees, including, without limitation, any and all claims for attorney fees, expenses or costs for services that will be performed in the future in this action or in any administrative or court proceeding arising under or related to this Stipulation and Order, except as provided in the preceding paragraph.

23. 23. 

    The terms set forth in this Stipulation and Order shall be in full settlement and satisfaction of any and all claims and demands, of whatever nature, the plaintiffs had or may hereafter acquire against the defendant, Secretary of Health and Human Services, and any of his agencies, agents, servants, employees or instrumentalities on account of and with respect to the incidents, claims or circumstances giving rise to and/or alleged in the pleadings filled herein. Upon the Court's approval and entry of this Stipulation and Order, the Complaint herein and any amendments thereto and claims included therein shall be dismissed with prejudice, and the Court shall retain continuing jurisdiction of this matter solely for the purpose of interpreting and enforcing the terms of this Stipulation and Order.

24. 24. 

    Since this Stipulation is entered by agreement of the parties, as a means of avoiding further litigation, the terms of this Stipulation and Order shall not be cited as precedent in any other case. This Stipulation and Order is not an admission or finding that the position of the defendant was not substantially justified or that the defendant is liable as a matter of law for the payment of any attorney fees, expenses or costs.

_________________________

¹The class entitled to relief is defined as follows: All Pennsylvania or Delaware applicants for or recipients of Social Security disability benefits or Supplemental Security Income benefits based upon disability who received unfavorable administrative decisions resulting in denial or termination of such benefits because their impairment or impairments were considered not were and who, between August 7, 1983 and November 30, 1984,

1. a. 

   had received a final decision of the Secretary: or

2. b. 

   had received an unfavorable administrative decision but had not exhausted administrative remedies.

The class shall exclude those individuals who subsequently received a final decision in federal court with respect to the unfavorable administrative decision or who have previously been notified of their entitlement to readjudication of their claims pursuant to court order in another class action, or who have received a subsequent administrative award of benefits with respect to the same period at issue.

Attachment 2. BAILEY COURT CASE FLAG/ALERTS

TITLE: CATEGORY: 





REVIEW OFFICE PSC MFT DOC ALERT DATE



BOAN OR PAN NAME

CAN OR HUN RESP DTE TOE





FOLDER LOCATION INFORMATION
TITLE CFL CFL DATE ACN PAYEE
ADDRESS

SCREENING OFFICE ADDRESS:

ATTN: Bailey Screening Unit

IF CLAIM IS PENDING OR STORED IN OHA, THEN SHIP TO:

Attachment 3. Route Slip or Case Flag For Screening

Bailey Class Action Case

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant may be a Bailey 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 5-4-17 for additional information and instructions.

TO: _______________________________
__________________________________
__________________________________
__________________________________

Attachment 4. BAILEY SCREENING SHEET

Attachment 5. Route Slip For Routing Class Member Alert (and Prior Claim Foodless)) to ODIO In PSC — OHA No longer Has Correct Claim

REMARKS

BAILEY 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 42525.005 OR DI 12525.005

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

OPTIONAL FORM 41 (Rev. 7-76)
* U.S.GPO:1985-0-461-274/200020 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: __________________

___________________________

We are writing to tell you that we received your request to review your earlier claim for disability benefits under the Bailey, 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 Bailey court decision is checked below.

Why You Are Not a Class Member

You are not a Bailey class member because:

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 Bailey 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 one of our offices, 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 the attorneys for the class. If they disagree, we may change our minds and look at your case again. If you disagree, 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:

To help you contact Mr. Macky, we have enclosed a postage prepaid postcard addressed to him.

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

REMARKS

BAILEY CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Bailey class member. (See screening sheet and copy of non-class membership notice in the attached claim folder(s).) SEE POMS DI 12525.005

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

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.”

	DEPARTMENT OF HEALTH AND HUMAN SERVICES	Social Security Administration
Refer to: FEB 21, 1991		Office of Hearings and Appeals P.O. Box 3200 Arlington, VA 22203

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. Bailey Class Member Flag For Headquarters Use (DDS Readjudication)

Bailey Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Bailey 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 Bailey claim folder(s) without delay to the ____________________ DDS for readjudication.

Send folders to: (Insert name and address of appropriate DDS)

__________________________________
__________________________________
__________________________________
__________________________________

(Destination code: ____ )

Attachment 10. ALJ Dismissal to DDS

DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

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 Middle District of Pennsylvania in the case of Bailey, et al. v. Sullivan, No. 83-1797 (M.D. Pa. July 29, 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 Bailey class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Bailey 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 that will conduct the Bailey 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 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 ______________ Disability Determination Service that 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 Bailey 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))

Attachment 12. Bailey Class Member Flag For HO Use (DDS Readjudication)

Bailey Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Bailey class member. The attached Bailey claim folder was forwarded to this hearing office for possible consolidation with a current claim.

Accordingly, we are forwarding the attached alert and prior claim folder(s) to your location for any necessary Bailey readjudication action.

We are sending the alert and prior folder(s) to:

(Insert name and address of appropriate DDS)

______________________________
______________________________
______________________________
______________________________

(Destination code: ____)