ISSUED: November 11, 1993; REVISED: August 2, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
parties' January 27, 1993 Joint Stipulation and Order, approved by the
United States District Court for the Western District of Louisiana on
January 29, 1993, in the Verla Turner v. Sullivan
class action involving the standard for determining disability in
surviving spouse claims.
Adjudicators throughout the country must be familiar with this TI because
of case transfers and because Verla Turner class
members who now reside outside of Louisiana must have their cases
processed in accordance with the requirements of the joint stipulation and
order.
II. Background
On April 17, 1990, plaintiff filed a class complaint challenging the
Commissioner's listings-only policy of evaluating disability with respect
to the title II claims of widows, widowers and surviving divorced
spouses.[1]
Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90)
(Pub. L. 101-508) on November 5, 1990. Section 5103 of OBRA 90 amended
§ 223 of the
Social Security Act to repeal the special definition of disability
applicable in widows' claims and conform the definition of disability for
widows to that for all other title II claimants and title XVI adult
claimants. The amendment became effective for entitlement to monthly
benefits payable for January 1991, or later, based on applications filed
or pending on January 1, 1991, or
filed later.
On May 22, 1991, the Commissioner of Social Security published
Social Security Ruling (SSR)
91-3p to provide a uniform, nationwide standard for the evaluation
of disability in widows' claims for the pre-1991 period.
The U.S. District Court for the Western District of Louisiana certified a
statewide class on July 1, 1991. On October 24, 1991, the district court
amended the class certification order (see
Part IV. below, for class
definition).
Because the merits of plaintiffs' challenge were resolved by the enactment
of § 5103 of OBRA 90 and the publication of
SSR 91-3p, the parties
agreed to settle the remaining class relief issues. On January 29, 1993,
the district court approved the parties' January 27, 1993 Joint
Stipulation and Order setting forth the terms for the implementation of
relief to class members (Attachment 1).
III. Guiding Principles
Under Verla Turner, the Secretary will readjudicate
the claims of those persons who: 1) respond to notice informing them of
the opportunity for review; and 2) are determined to be class members
after screening (see Part V. below). The
Disability Review Section in the Mid-America Program Service Center
(MAMPSC) will screen for class membership, unless there is a current claim
pending or stored at OHA. Regardless of the state of the claimant's
current residence, the Louisiana Disability Determination Service (LDDS)
will, in most cases, perform the agreed-upon readjudications, irrespective
of the administrative level at which the claim was last decided.
The DDS servicing the claimant's current address will perform the
readjudication if a face-to-face reviw is necessary; i.e., cessation
cases.
OHA will screen cases and perform readjudications under limited
circumstances (see Part V.B.
below).
Cases readjudicated by the LDDS will be processed at the reconsideration
level regardless of the final level at which the claim was previously
decided. Class members who receive adverse readjudication determinations
will have full appeal rights (i.e., Administrative Law Judge (ALJ)
hearing, Appeals Council and judicial review).
Adjudicators must use the disability evaluation standards reflected in
§ 5103 of OBRA 90 and SSR
91-3p for evaluating disability in Verla
Turner, class member claims. The disability evaluation
standard enacted by § 5103 of OBRA 90 is effective for entitlement to
monthly benefits payable for January 1991 or later.[2](See HALLEX TI 5-315, issued
February 11, 1991, for further instructions on processing disabled widows'
claims under the provisions of § 5103 of OBRA 90.) The disability
evaluation standard announced in
SSR 91-3p must be used
for the evaluation of disability and entitlement to benefits payable for
the pre-1991 period.
IV. Definition of Class
Except as noted below, for purposes of implementing the terms of the joint
stipulation and order, the Verla Turner class
consists of all Louisiana residents who:
•
filed for or received title II benefits as a disabled widow, widower or
surviving divorced spouse; and
•
were issued a less than fully favorable (i.e., later onset, closed period,
denied or terminated) final administrative determination or decision,
based on medical reasons, between February 13, 1990, and May 21, 1991,
inclusive; and
•
timely filed a request for reconsideration of the initial determination or
reapplied for disabled widow's benefits between the date of the initial
determination and May 21, 1991, inclusive.
A person is not a class member eligible for class relief if
(1) the last administrative denial or termination the individual received
on the potential Verla Turner claim was not based
on medical reasons (e.g., engaging in substantial gainful activity,
disability did not begin within the prescribed period, or other technical
reason); or
(2) the individual received an adverse decision on a worker's claim for
disability benefits under title II or title XVI (adult) at steps 4 or 5 of
the sequential evaluation and that decision covered the timeframe at issue
in the potential Verla Turner claim; or
(3) the individual's potential Verla Turner claim
was pending either administratively or in federal court on or after May
22, 1991; or
(4) the individual received an unfavorable determination or decision after
May 21, 1991, on a subsequent claim that raised the issue of disability
and covered the timeframe at issue in the potential Verla
Turner claim, i.e., the onset date alleged in connection with
the subsequent claim was on or before the onset date alleged in connection
with the potential Verla Turner claim.
V. Determination of Class Membership and Preadjudication
Actions
1.
Notification
SSA will send notices to all potential class members identified by
computer run. Individuals have 60 days from the date of receipt of the
notice to request that SSA readjudicate their claims under the terms of
the Verla Turner joint stipulation and order.
Notices returned as undeliverable will be mailed a second time if SSA
obtains an updated address.
The Office of Disability and International Operations (ODIO) and the
MAMPSC will retrieve the claim files of late responders and send them,
together with the untimely responses, to the servicing Social Security
field office (i.e., district 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.
2.
Alert and Folder Retrieval Process
All response forms will be returned to ODIO and the information will be
entered into the Civil Actions Tracking System (CATS). CATS will generate
alerts to ODIO. See Attachment 2 for a sample Verla
Turner alert.
In most instances, ODIO will associate the computer-generated alerts with
any ODIO-jurisdiction potential class member claim file(s) and forward
them to the MAMPSC for retrieval of any additional claim files and
screening (see Part III. above).
3.
Alerts Sent to OHA
If ODIO or MAMPSC determines that either a potential class member claim or
a subsequent claim is pending appeal or stored at OHA, it will forward the
alert to OHA, along with any prior claim file(s) not in OHA's possession,
for screening, consolidation consideration and readjudication (if
consolidated).
ODIO or MAMPSC will forward all alerts potentially within OHA jurisdiction
and related prior claim file(s), if any, to the Office of Appellate
Operations (OAO) at the following address (case locator code 5007):
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Office of Hearings
and Appeals
Office of Appellate Operations
One Skyline
Tower, Suite 701
5107 Leesburg Pike
Falls Church,
VA 22041-3200
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ATTN: OAO Class Action Coordinator
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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 Coordinator will
maintain a record of all alerts received and the location, if any, to
which they are transferred. This information will be necessary to do the
final class membership reconciliation.
4.
Folder Reconstruction
In general, ODIO and/or MAMPSC will coordinate any necessary
reconstruction of prior claim files. OHA requests for reconstruction of
potential 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 particular claim would
not confer class membership. OHA (the HO or the OAO branch) will direct
any necessary reconstruction requests to the servicing FO. The request
will be made by memorandum and will include the alert and any accompanying
claim file(s) (if the claim file(s) is not needed for adjudication
purposes) as attachments. The request will also include documentation of
the attempts to locate the file. The memorandum will request the FO to
send the reconstructed file to OHA after it completes its reconstruction
action. HOs will route any reconstruction requests directly to the
servicing FO. The OAO branch will route reconstruction requests through
the OAO Class Action Coordinator. For CATS 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:
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Office of the Deputy
Commissioner
for Programs and Policy
Litigation
Staff
3-K-26 Operations Building
6401 Security
Boulevard
Baltimore, MD 21235
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ATTN: Verla Turner Coordinator
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HO personnel and the OAO branch will identify in the reconstruction
request the OHA location of any existing claim file(s) being retained for
adjudication purposes, and the date(s) of the claim(s) involved.
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 receipt of the reconstructed folder, 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. The OAO Class
Action Coordinator will forward the class action material to the FO for
association with the reconstruction request. A covering route slip will
explain that OHA has completed its action on the pending claim, will
attach a copy of the final OHA decision and/or other disposition
documents, and will instruct the FO to forward the reconstructed file to
ODIO or the MAMPSC for screening. For additional information on
reconstruction procedures, see the Class Action Implementation
instructions in HALLEX
HA 01170.005 C.
5.
Class Membership Denials
The MAMPSC or OHA, as appropriate, will hold for 80 days all claim files
of individuals to whom SSA sends notice of non-class membership, pending
review by class counsel. If an individual wishes to dispute SSA's class
membership determination, he or she must contact class counsel. Class
counsel may dispute a denial within 30 days from the receipt of notice by
providing written notice of the disagreement to the Office of the General
Counsel, Dallas. Upon notification of a request by class counsel to review
claim files, MAMPSC or OHA will forward claim files to:
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SSA Field Office
Brandywine
I, Suite 100
825 Kaliste Saloom Road
Lafayette,
Louisiana 70508
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Tel. # (318) 261-0606
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1.
Determining Jurisdiction for Screening
a.
Current Claim in OHA
As provided in Part V. A. 3. above, if
there is a current claim pending or stored at OHA, the OAO Class Action
Coordinator will receive the Verla Turner alert and
related claim file(s). The Class Action Coordinator will determine OHA
jurisdiction for screening and forward as follows:
•
If the current claim is in an HO, the Coordinator will forward the alert
and any prior claim file(s) to the HO for screening using Attachment 3.
(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 (DFB), the
Coordinator will forward the alert and any prior claim file(s) to the
appropriate OAO branch for screening using Attachment 3.
(Part V. B. 2. a. below provides
instructions to the OAO branches regarding the action to be taken if they
receive an alert package but no longer have a current claim
pending.)
If the Coordinator (or designee) is unable to locate the current claim
file within OHA, the Coordinator (or designee) will broaden the claim file
search and arrange for alert transfer or folder reconstruction, as
necessary.
Do not screen pending cases in newly implemented class actions unless an
alert has been received. Claimants sometimes allege class membership
before their cases have been alerted. The presence of an alert is evidence
that the claimant has responded to notice of potential class membership
and that his or her case is ready for review. However, if class action
implementation is nearly complete and a claimant with a non-alerted
pending case should allege class membership, contact the Verla
Turner coordinator in the Division of Litigation Analysis and
Implementation (DLAI) for assistance in determining the claimant's status
at the following address
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Office of Hearings and Appeals
Division
of Litigation Analysis
and Implementation
Office
of Policy, Planning and
Evaluation
One Skyline
Tower, Suite 702
5107 Leesburg Pike
Falls Church,
VA 22041-3255
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The DLAI Verla Turner Coordinator's telephone
number is (703) 305-0721.
b.
Current Claim Pending in Court
If the OAO Class Action Coordinator receives an alert for a claimant who
has a civil action pending, either on the alerted case or on a subsequent
or prior claim, the Class Action 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.
2.
Screening
a.
General Instructions
The screening component will associate the alert and any prior claim
file(s) with the claim file(s) in its possession and then complete a
screening sheet (see Attachment 4) as follows:
If the claim pending at OHA is the potential class member claim, then the
individual is not a class member (see
Part IV. above). Complete the screening
sheet and follow the instructions in
Part V. B. 3. a. below for processing
non-class member claims.
•
Consider all applications denied (including
res judicata denials/dismissals)
during the Verla Turner timeframe;
Although not the “final decision of the Commissioner,” an
Appeals Council denial of a request for review is the last action of the
Commissioner, and the date of such a denial controls for class membership
screening purposes.
•
Follow all instructions on the screening sheet;
•
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 will forward the copy of the screening sheet to DLAI. If the
screening component is an HO, forward a copy of the screening sheet
directly to DLAI at the address in
Part V. B. 1. a. above. HO personnel may
also forward material to DLAI by telefax at (703) 305-0655. (DLAI will
retain a copy of each screening sheet and forward a copy 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 him of
the action taken on the current claim and its destination. The OAO Class
Action Coordinator will determine the current claim file location and, if
it is located in OHA Headquarters, will forward the alert and any
accompanying prior claim file(s) to the responsible OAO Branch for
screening, using Attachment 3. If the claim file(s) is no longer in OHA,
the OAO Class Action Coordinator will use Attachment 5 to send the alert
and any accompanying prior claim file(s) to the non-OHA location of the
current claim and request that the file(s) be forwarded to ODIO and/or
MAMPSC for screening.
If an 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 mini-dockets or the OAO DFB), it will determine
the location of the current claim file. If the current claim 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
files are 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 of the current claim and request that the file(s) be forwarded to
ODIO and/or MAMPSC for screening. The OAO branch will advise the OAO Class
Action Coordinator of its actions.
Final determinations or decisions made after May 21, 1991, on a subsequent
claim filed by a potential Verla Turner class
member may have adjudicated the entire time period at issue in the
Verla Turner claim. Instead of applying the
doctrine of administrative
res judicata to the Verla Turner
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. b. above, the
CCPRB will screen for Verla Turner class membership
when a civil action is involved. The CCPRB's class membership
determination will dictate the appropriate post-screening action.
•
If the claim pending in court is the potential class member claim, then
the individual is not a class member (see
Part IV. above). Complete the screening
sheet and follow the instructions in
Part V. B. 3. a. below for processing
non-class member claims.
•
If the claim pending in court is a subsequent claim and was adjudicated in
accordance with the disability evaluation standards reflected in §
5103 of OBRA 90 and SSR
91-3p and resolved all Verla Turner issues,
the claimant is not a Verla Turner class member.
The CCPRB will follow the instructions in
Part V. B. 3. a. below for processing
non-class member claims.
•
If the claim pending in court was adjudicated in accordance with the
disability evaluation standards reflected in § 5103 of OBRA 90 and
SSR 91-3p, but did not
resolve all Verla Turner issues, e.g., there is a
prior (inactive) claim and the current claim did not adjudicate the entire
period covered by the Verla Turner claim, the CCPRB
will forward the Verla Turner claim to the LDDS for
separate review. The CCPRB will modify the case flag in Attachment 12 to
indicate that the pending court case does not resolve all Verla
Turner issues and that the Verla Turner
class member claim is being forwarded for separate processing. The CCPRB
will notify the OAO Class Action Coordinator of its action.
•
If the final administrative decision on the claim pending in court was not
adjudicated in accordance with the disability evaluation standards
reflected in § 5103 of OBRA 90 and
SSR 91-3p, 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 circumstances and
posture of the case when there is a current claim);
Include the address and telephone number of the servicing Social Security
field office at the top of Attachment 6.
•
retain a copy of the notice in the claim file;
•
send a copy of the notice to:
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John D. Thompson, Jr.
Senior
Attorney/Director
Administrative Law Unit
Acadiana
Legal Service Corporation
1020 Surrey Street
P.O.
Box 4823
Lafayette, Louisiana 70502-4823
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•
retain the claim file(s) for 80 days pending possible class membership
dispute;
•
if class counsel makes a timely review request, send the non-class member
claim file to the Lafayette, Louisiana District Office using the
pre-addressed route slip in Attachment 7;
•
if after 80 days no review is requested, return the file(s) to the
appropriate location.
Photocopy any material contained in the prior file that is relevant to the
current claim and place it in the current claim file before shipping the
prior file.
An individual who wishes to appeal a determination of non-class membership
should do so through class counsel, as explained in the notice (Attachment
6).
b.
Cases Determined to be Class Members
If the screening component determines that the individual is a class
member, it will proceed with processing and adjudication in accordance
with the instructions in Part VI.
below.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
The LDDS, or any other DDS servicing Louisiana residents, will conduct the
first Verla Turner review except for cases
consolidated at the OHA level (see
Part VI. E. below). The DDS determination
will be a reconsideration determination, regardless of the administrative
level at which the class member claim(s) was previously decided, with full
appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).
Except as otherwise noted in this instruction, ALJs should process and
adjudicate requests for hearing on Verla Turner DDS
review cases in the same manner as for any other case.
B. Payment Reinstatement for Cessation Cases
If the Verla Turner claim involves a cessation, the
usual reinstatement provisions apply. Following an adverse DDS
readjudication determination, a class member may elect to have disability
benefits reinstated pending appeal. In general, the servicing Social
Security field office has responsibility for processing benefit
reinstatements.
If a class member contacts OHA requesting benefit reinstatement, OHA
will;
1.
contact the servicing field office by telephone and advise them of the
pending Verla Turner claim that may be eligible for
benefit reinstatement;
2.
document the file accordingly; and
3.
provide the servicing field office with identifying information and any
other information requested.
C. OHA Adjudication of Class Member Claims
The following instruction applies to both consolidation cases in which the
ALJ or Appeals Council conducts the Verla Turner
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 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
The type of review and the period to be considered depend on whether the
claim subject to review was an initial claim or a cessation case.
a.
If the claim subject to review is an initial claim, the type of review to
be conducted is a “redetermination.” The readjudication shall
be a de
novo reevaluation of the class
member's eligibility for benefits based on all evidence in his or her
file, including newly obtained evidence, relevant to the period of time at
issue in the administrative decision(s) that forms the basis of the
claimant's class membership. If the readjudication results in a favorable
decision, the adjudicator must determine whether the class member's
disability has been continuous through the date of the
readjudication.
b.
If the claim to be reviewed is a cessation case, the type of review to be
conducted is a reopening. The readjudication shall be an assessment of the
class member's disability from the date disability was previously ceased
through the date of the readjudication.
2.
Disability Evaluation Standards
Adjudicators must use the disability evaluation standards reflected in
§ 5103 of OBRA 90 and SSR
91-3p for evaluating disability in class member claims. The
disability evaluation standard enacted by § 5103 of OBRA 90 is
effective for entitlement to monthly benefits payable for January 1991 or
later. (See HALLEX TI 5-315, issued
February 11, 1991, for further instructions on processing disabled widows'
claims under the provisions of § 5103 of OBRA 90.) The disability
evaluation standard announced in
SSR 91-3p must be used
for the evaluation of disability and entitlement to benefits payable for
the pre-1991 period.
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.
D. Claim at OHA But No Current Action Pending
If a claim file (either a class member or a subsequent claim file) is
located in OHA Headquarters but there is no claim actively pending
administrative review, i.e., Headquarters is holding the file awaiting
potential receipt of a request for review or notification that a civil
action has been filed, OAO will associate the alert with the file and
screen for class membership. (The OAO Class Action Coordinator will
coordinate the necessary actions as explained in
Part V.) (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
Verla Turner class member flag (see Attachment 8)
to the outside of the file and forward the claim file(s) to the LDDS for
review of the Verla Turner class member
claim.
•
If less than 120 days have elapsed, OAO will attach a Verla
Turner class member flag (see Attachment 9) to the outside of
the file to ensure the case is routed to the LDDS, or other appropriate
DDS, after expiration of the retention period. Pending expiration of the
retention period, the OAO branch will also:
-- return unappealed ALJ decisions and dismissals to DFB; and
-- return unappealed Appeals Council denials to the appropriate OAO
mini-docket.
The respective OAO component will monitor the retention period and, if the
claimant does not seek further administrative or judicial review, route
the file(s) to the LDDS in a timely manner.
E. Processing and Adjudicating Class Member Claims in Conjunction with
Current Claims (Consolidation Procedures)
1.
General
If a class member has a current claim pending at any administrative level
and consolidation is warranted according to the guidelines below, the
appropriate component will consolidate all Verla
Turner 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 Has Been Scheduled or Held, and All Remand Cases
Except as noted below, if a Verla Turner 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 Verla Turner case with the
appeal on the current claim.
The ALJ will not consolidate the claims if
•
the current claim and the Verla Turner claim do not
have any issues in common, or
•
a court remand contains a court-ordered time limit, and it will not be
possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow
Part VI. E. 2. c. below. If the claims
are not consolidated, follow
Part VI. E. 2. d. below.
b.
Hearing Not Scheduled
Except as noted below, if a Verla Turner 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
Verla Turner claim and the current claim. Instead,
the ALJ will dismiss the request for hearing on the current claim and
forward both the Verla Turner claim and the current
claim to the DDS for further action (see
Part VI. E. 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 the issues raised by the application
that makes the claimant a Verla Turner class
member, the ALJ will consolidate the claims.
If the claims are consolidated, follow
Part VI. E. 2. c. below. If the claims
are not consolidated, follow
Part VI. E. 2. d. below.
c.
Actions If Claims Consolidated
When consolidating a Verla Turner claim with any
subsequent claim, the issue is whether the claimant was disabled at any
time from the earliest alleged onset date through the present (or through
the date the claimant last met the prescribed period requirements, if
earlier). If the ALJ decides to consolidate the current claim with the
Verla Turner 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 Verla Turner claim raises any additional
issue(s) not raised by the current claim;
•
offer the claimant a supplemental hearing if the ALJ has already held a
hearing and the Verla Turner claim raises an
additional issue(s), unless the ALJ is prepared to issue a fully favorable
decision with respect to the Verla Turner
claim;
•
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the Verla
Turner claim (the ALJ's decision will clearly indicate that
the ALJ considered the Verla Turner claim pursuant
to the Verla Turner joint stipulation and
order).
d.
Action If Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the current
claim with the Verla Turner claim because the
hearing has not yet been scheduled, the HO will:
•
dismiss the request for hearing on the current claim without prejudice,
using the language in Attachment 10 and the covering notice in Attachment
11;
•
send both the Verla Turner claim and the current
claim to the LDDS for consolidation and further action.
If the ALJ decides not to consolidate the current claim with the
Verla Turner 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 Verla Turner claim for DDS review using
Attachment 12; immediately route the it to the LDDS for adjudication (if
any part of the Verla Turner claim is retained as
evidence in the current claim, make photocopies and return them to the
LDDS with the Verla Turner claim); 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 determines the
disposition of the Verla Turner claim. Therefore,
OAO must keep the claim files together until the Appeals Council completes
its action on the current claim. The following sections identify possible
Appeals Council actions on the current claim and the corresponding action
on the Verla Turner claim.
a.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim -- No Verla Turner Issue(s)
Will Remain Unresolved.
This will usually arise when the current claim duplicates the
Verla Turner review claim, i.e., the current claim
raises the issue of disability and covers the period adjudicated in the
Verla Turner claim, and the current claim has been
adjudicated in accordance with the provisions of § 5103 of OBRA 90
and SSR 91-3p. 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
resolved or resolves both the current claim and the Verla
Turner claim.
b.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim -- Verla Turner Issue(s) Will
Remain Unresolved.
This will usually arise when the current claim does not duplicate the
Verla Turnerr claim, e.g., the current claim raises
the issue of disability but does not cover the entire period adjudicated
in the Verla Turner claim. For example, the
Verla Turner claim raises the issue of disability
for a period prior to the period adjudicated in the current claim. In this
instance, the Appeals Council will proceed with its intended action on the
current claim.
OAO staff will attach a Verla Turner case flag
(Attachment 12; appropriately modified) to the Verla
Turner claim, immediately forward the Verla
Turner claim to the LDDS for adjudication, and retain a copy
of Attachment 12 in the current claim file. OAO will modify Attachment 12
to indicate that the Appeals Council's action on the current claim does
not resolve all Verla Turner issues and that the
Verla Turner class member claim is being forwarded
for separate processing. OAO staff will include copies of the ALJ's or
Appeals Council's decision or order or notice of denial of request for
review on the current claim and the exhibit list used for the ALJ's or
Appeals Council's decision.
c.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim
-- No Verla Turner 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
Verla Turner class member, the Appeals Council
should proceed with its intended action. In this instance, the Appeals
Council will consolidate the claims, reopen the final determination or
decision on the Verla Turner claim and issue a
decision that adjudicates both applications. The Appeals Council's
decision will clearly indicate that the Appeals Council considered the
Verla Turner claim pursuant to the Verla
Turner joint stipulation and order.
d.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim
-- Verla Turner 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 Verla Turner claim, the
Appeals Council will proceed with its intended action. In this situation,
the Appeals Council will request the effectuating component to forward the
claim files to the LDDS 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:
"Verla Turner court case review needed -- following
effectuation forward the attached combined folders to Louisiana Health and
Human Resources, Office of Family Security, Disability Determinations, 530
Lakeland Drive, Baton Rouge, Louisiana 70802."
e.
Appeals Council Intends to Remand the Current Claim to an Administrative
Law Judge.
If the Appeals Council intends to remand the current claim to an
Administrative Law Judge, 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 Verla
Turner claim with the action on the current claim pursuant to
the instructions in Part VI.E.2.a.
above.
The Appeals Council will not direct the ALJ to consolidate the claim
if
•
the current claim and the Verla Turner claim do not
have any issues in common, or
•
a court remand contains a court-ordered time limit and it will not be
possible to meet the time limit if the claims are consolidated.
If the claims do not share a common issue or a court-ordered time limit
makes consolidation impractical, OAO will forward the Verla
Turner class member claim to the LDDS, or other appropriate
DDS, for separate review. The case flag in Attachment 12 should be
modified to indicate that the Appeals Council, rather than an
Administrative Law Judge, is forwarding the Verla
Turner class member claim for separate processing.
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. E. 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
“VT” in the “Class Action” field. No special
identification codes will be used in the OHA CCS.
VIII. 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. OHA Headquarters personnel should contact the Division of
Litigation Analysis and Implementation at 305-0708.
Attachment 1. Joint Stipulation and Order Dated January 27, 1993; Approved by the
Court on January 29, 1993, and Filed on February 1, 1993
|
UNITED STATES DISTRICT COURT |
|
FOR THE WESTERN DISTRICT OF LOUISIANA |
|
LAFAYETTE-OPELOUSAS DIVISION |
|
VERLA TURNER, INDIVIDUALLY |
* |
CIVIL ACTION 90-0688 |
|
AND ON BEHALF OF ALL OTHERS |
* |
[Field February 1, 1993] |
|
SIMILARLY SITUATED, |
* |
|
|
|
* |
|
|
|
* |
JUDGE DOHERTY |
|
vs. |
* |
MAGISTRATE JUDGE METHVIN |
|
|
* |
|
|
LOUIS W. SULLIVAN, M.D. |
* |
|
|
SECRETARY OF HEALTH |
* |
|
|
AND HUMAN SERVICES |
* |
|
|
|
|
|
|
ORDER |
The foregoing stipulation of the parties having been considered,
IT IS HEREBY ORDERED that judgment be entered in conformity
therewith.
Thus done and signed this 29th day of January 1993, in Lafayette
Louisiana.
|
UNITED STATES DISTRICT COURT |
|
FOR THE WESTERN DISTRICT OF LOUISIANA |
|
LAFAYETTE-OPELOUSAS DIVISION |
|
|
|
|
|
VERLA TURNER, individually |
) |
|
|
And on behalf of all others |
) |
|
|
similarly situated, |
) |
|
|
|
) |
|
|
Plaintiffs, |
) |
|
|
|
) |
|
|
|
) |
[Field Janaury 27, 1993] |
|
vs. |
) |
CIVIL ACTION NO. 90-0688 |
|
|
) |
|
|
|
) |
STIPULATION AND ORDER |
|
LOUIS W. SULLIVAN, M.D. |
) |
|
|
SECRETARY OF HEALTH |
) |
JUDGE SHAW |
|
AND HUMAN SERVICES |
) |
MAGISTRATE JUDGE METHVIN |
|
|
) |
|
|
Defendant. |
) |
|
|
|
|
|
|
JOINT STIPULATION AND ORDER |
COME NOW the Plaintiff, VERLA TURNER, individually and on behalf of all
other similarly situated, and the Defendant, LOUIS W. SULLIVAN, M.D., the
Secretary of Health and Human Services, by and thorough their respective
counsel of record, to stipulate to settlement of their above-numbered
class action in accordance with the provisions below.
1.
The class members who shall be entitled to relief under the terms of this
stipulation and order shall be limited to those defined as follows:
a.
all Louisiana state residents who:
1.
applied for or were receiving widows, widowers or surviving divorced
spouses Title II benefits based on disability (“DWB”),
2.
were finally determined between February 12, 1990 and May 22, 1991, to be
not disabled under 42 U.S.C. § 423 (d) (2) (B) by either the
Louisiana State Disability Determination Services (“DDS”) or
an office of the Office of Hearing and Appeals (“OHA”) of the
Social Security Administration (“SSA”) which adjudicates
claims of Louisiana state residents, and who
3.
timely filed a request for reconsideration of the initial determination or
reapplied for DWB between the date of the initial determination and May
22, 1991.
b.
SSA need not readjudicate any DWB claims which were pending
administratively or pending in individual civil actions in federal court
on or after May 22, 1991.
c.
DWS claim(s) shall not be readjudicated of there was a denial of Title II
or Title XVI disability benefits at step four or step five of the
sequential evaluation on a concurrent claim or on a claim which covered
the entire period of time covered by the DWB claim(s) subject to this
stipulation and order.
2.
In readjudicating claims pursuant to this stipulation and order, and in
adjudicating all DWB claims, SSA shall apply: (1) the standard set forth
in SSR 91-3p to claims
for DWB payable for any months prior to January 1, 1991; and (2) the
standards set forth in § 5103 of the Omnibus Budget Reconciliation
Act of 1990, 42 U.S.C. § 423(d), to claim for DWB payable for any
months on or after January 1, 1991.
3.
Within 120 days of the date that this stipulation and order is entered by
the court, the Secretary shall release to adjudicators final instructions
implementing this settlement. Within 30 days after the issuance of final
instructions to adjucators, SSA shall send notices by first class mail to
the last known address of all potential class members. The notice will
advise then that they maybe entitled to have their DWB claims
readjudicated. All notice required by this paragraph shall be mailed with
a request for review form and a postage-paid envelope pre-addressed to a
SSA office designated to receive written requests for readjudication. A
statement written in French, instructing French-speaking individuals to
contact the local SSA field office (“FO”), will appear in
bold letters on each notice.
4.
SSA shall attempt to obtain current addresses for potential class members
whose notices are mailed pursuant to paragraph 3 of this stipulation and
order and returned as undeliverable by requesting that Louisiana State
provide current addresses through a computerized match with public
assistance, food stamp, or other like retards. SSA requests for computer
matches with state agencies' data systems will be subject to the
requirements of the Privacy Act, as amended by the Computer Matching and
Privacy Protection Act, 5 U.S.C. § 552a. SSA shall not be obligated
to bring any legal proceedings to gain access to such records. SSA shall
not be required to reimburse Louisiana State for this matching operation.
SSA shall send a second notice by first class mail to all individuals for
whom the computerized match produces a more recent address. The second
notices will me be sent promptly after SSA's receipt of Louisiana State
computer information. No later than 30 days after the expiration of the
timeframe for response to the second notices, SSA shall, provide
plaintiffs' counsel with a list of the names of all individuals whom SSA
is still unable to locate. The list shall be organized in alphabetical
order by last name and contain the date(s) and address(es) of each notice
mailed. Plaintiff's counsel shall have 320 days after their receipt of
this list to furnish more recent addresses for the listed individuals. SSA
shall then mail a final notice to all individuals for whom a new address
is furnished by plaintiffs' counsel.
5.
Potential class members shall have 60 days to request readjudication of
their DWB claim(s) from the date on which they receive a notice pursuant
paragraphs 3 and 4 of this stipulation and order. SSA wi11 presume that
the notices are received five (5) days after mailing, unless it is
established that receipt actually occurred later, in which case the 60
days to request readjudication shall be counted from the date of actual
receipt. The 60 day period for requesting readjudication may be extended
for “good cause” as set forth in
20 C.F.R. §
404.9111 and SSR 91-sp.
6.
Potential class members must request readjudication of their DWB claim(s)
by returning the request for review form. All individuals who request
readjudication will be provided with written confirmation of
receipt.
7.
SSA shall determine whether each individual who requests readjudication
meets the criteria in paragraph 1 and has properly requested
readjudication in accordance with paragraphs 5 and 6. SSA shall make this
determination within a reasonable time.
8.
a.
If SSA determines that an individual who responded to the notice
procedures, set forth above, is not a class member as described in
paragraph 1 or is not otherwise entitled to relief as provided by the
terms of paragraph 1 of this stipulation and order, SSA will send notice
of this determination to class counsel and to the claimant.
b.
The notice described in paragraph 8 (a) will state that:
1.
class counsel will have 30 days from the receipt of notice to notify, in
writing, the Office of the General Council (OGC), Department of Health and
Human Services, Dallas, if class counsel disagrees with the determination.
An extension of time to respond may be granted upon a showing of good
cause;
2.
class counsel may request inspection of the claimant's administrative
record upon which a determination was based and, as needed, the relevant
claim file; and
3.
class counsel will have 45 days to review the record, measured from the
day they are notified that the record is available for inspection at an
SSA office mutually agreeable to the parties.
c.
The parties will attempt to resolve the question of an individual class
membership by negotiations between class counsel, and the Office of the
General Counsel. If, after negotiation, the parties cannot resolve the
question of an individuals class membership, OGC will send to class
counsel a written confirmation of denial of class membership.
d.
Class counsel, may submit, by duly noticed motion, the resolved matter to
the Court for resolution. Such notice mast be filed no later than 60 days
after OGC's written confirmation to class counsel that the dispute cannot
be resolved. If class counsel does not notify OGC in writing that they
disagree with the determination within 60 days of receipt of the notice,
the determination shall become final and shall not be subject to further
review.
9.
All DWB claim(s) entitled to readjudication under the terms of this
stipulation under the terms of this stipulation and order shall be
readjudicated at the reconsideration level of administrative review.
20 C.F.R. §
404.907. At the option of SSA, class members with subsequent
disability claim(s) which are active and simultaneously pending at any
administrative level of review at the time the class claim(s) is being
evaluated may have the current claim consolidated with all claims covered
by this stipulation and order. If a class member has more than one (1) DWB
claim subject to readjudication pursuant to this stipulation and order,
all such claims may be consolidated and shall be readjudicated at the
reconsideration level of review. Class members shall retain all rights to
seek administrative and judicial review of determinations made on
readjudicatian under the procedures specified in 20 C.F.R. Part 404,
subpart J, and 42 U.S.C. § 405(g).
10.
SSA shall use its best efforts to maintain by computerized tracking system
a record of the following information:
a.
the number of class notices sent;
b.
the number of individuals responding to the notices;
c.
the number of individuals returned as undeliverable;
d.
the number of individuals determined not to be members of the class;
e.
the number of individua1s who received favorable determinations by
DDS;
f.
the number of individuals who received unfavorable determinations by
DDS.
SSA shall provide reports containing the information maintained in this
computerized tracking system to plaintiffs' counsel once every three (3)
months commencing 180 days after this stipulation and order is entered by
the court. Once the readjudications of DWS required by this stipulation
and order have bean substantially completed and input, into the
computerized tracking system, SSA shall so advise plaintiffs' counsel by
providing them a final report.
11.
The relief order herein to the class members as define in paragraph 1 of
this stipulation and order is in no way to be construed as an admission of
wrongdoing by the Secretary or be offered in any proceeding as evidence of
any past violation of, or failure to comply with federal law, rules, and
regulations at issue in this action. This stipulation and order is agreed
to by the Secretary solely to settle the case and to avoid the cost of
further litigation.
12.
Plaintiffs are the prevailing parties for purposes of an award of
attorney's fees under the Equal Access to Justice Act, 28 U.S.C. §
2412. Plaintiff's entitlement to, and the amount of such fees shall be
determined at a later date by the parties or the court, upon timely
application made pursuant to 28 U.S.C. § 2412.
13.
The Secretary shall bear the cost of implementing this stipulation and
order.
14.
The court shall retain jurisdiction over this action solely for the
enforcement of the specific provisions of this stipulation and order and
to resolve disputes pursuant to paragraph 8. The claims of all persons who
were included in the class certified by the court, but who are not
entitled to readjudication pursuant to paragraph 1, will be
dismissed.
15.
This stipulation and order resolves all claims by plaintiffs that the
Secretary applied an incorrect standard in evaluating DWB claims.
16.
Plaintiff's council and defendant's counsel, by their signatures below,
warrant that they are sole counsel to the plaintiff class or to the
defendant whose interests were represented in this action and that they
are authorized to stipulate to the settlement of issues in this
action.
17.
This stipulation and order shall be submitted to the court and shall be
effective only upon entry of the order by the court.
|
_____________________________ |
_____________________________ |
|
JOHN D. THOMPSON
|
JOHN A. BROADWELL
|
|
|
Assistant United States Attorney
|
|
|
|
|
_____________________________ |
_____________________________ |
|
GREGORY L. LANDRY
Attorneys for Plaintiffs
|
Rodney A. Johnson
|
|
|
Assistant Regional Counsel
|
|
|
Office of the General Counsel
|
|
|
U.S. Department of H.H.S.
|
|
|
Attorneys for Defendant
|
Attachment 2. Verla Turner Court Case Flag/Alert
|
CTWALT01 |
Verla Turner Court Case Flag/Alert |
|
|
REVIEW OFFICE
|
PSC |
DOC |
TOE |
ALERT DATE |
RESPONSE DATE |
OLD BOAN/PAN |
|
SSN |
(BOAN or PAN) |
NAME |
BIRTH DATE |
REFERENCE # |
|
|
|
FOLDER LOCATION INFORMATION |
|
CAN/HUN |
BIC/MFT |
CATG |
TITLE |
CFL |
CFL DATE |
ACN |
PAYEE ADDRESS
SHIP TO SCREENING OFFICE ADDRESS:
|
|
SSA
Mid-America
PSC
Disability Review Section
P.O. Box 15608
601
East 12th Street
Kansas City, Missouri 64106
|
|
|
ATTN: Verla Turner Screening Unit |
SPECIAL INSTRUCTIONS:
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
|
|
Verla Turner Class Action Case |
SCREENING NECESSARY
|
Claimant's name |
___________________________ |
|
|
|
SSN |
___________________________ |
|
|
This claimant may be a Verla Turner class member.
The attached folder location information indicates that a current claim
file is pending in your office. Accordingly, we are forwarding the
attached alert [and prior claim file(s)] for association, screening for
class membership, consolidation consideration and possible
readjudication.
Please refer to HALLEX Temporary
Instruction 5-4-34 for additional information and instructions.
|
|
TO: |
____________________________ |
|
|
|
____________________________ |
|
|
|
____________________________ |
|
|
|
____________________________ |
Attachment 4. Verla Turner Screening Sheets and Screening
Sheet Instructions
VERLA TURNER SCREENING SHEET
|
1. CLASS ACTION CODE: V T
|
|
2. WAGE EARNER'S SSN
______ - ____ - ______
BIC
___ ___
|
|
3. CLAIMANT'S NAME
|
|
4. SCREENING DATE
____-____-____
|
|
5. a. MEMBERSHIP DETERMINATION
____MEMBER (J) ____NONMEMBER (F)
b. SCREENOUT CODE
____-____(see item 12 for screenout codes)
|
|
6. Is this a title II disabled widow/widower or surviving divorced spouse claim?
Yes___No___
(if No go to 15)
|
|
7. Was a less than fully favorable determination/decision issuedon this claim at the reconsideration level by the Louisiana DDS, Or at a higher level by an OHA office servicing residents of the State of Louisiana, from February 13, 1990, through May 21, 1991, inclusive, and did this decision become the final decision of the Commissioner? (Note: Although not the “final decision of the Commissioner,” an Appeals Council denial of a request for review is the last action of the Commissioner, and the date of such a denial controls for class membership purposes.)
or
Did the claimant file a second application for DWB from February 13, 1990, through May 21, 1991, inclusive?
Yes___No___
(if No go to 15)
|
|
8.Did the claimant reside in the State of Louisiana at the time the potential Verla Turner determination/decisionwas issued?
Yes___No___
(if No go to 15)
|
|
9.Was the denial/cessation of benefits on the potential Verla Turner claim for some reason other than the claimant's medical condition (e.g. SGA)?
Yes___No___
(if No go to 15)
|
|
10.Did the claimant receive a subsequent fully favorable determination/decision with entitlement to benefits commencing with the earliest possible month of the potential Verla Turner claim?
Yes___No___
(if No go to 15)
|
|
11.Was the potential Verla Turner claim pending administratively or in federal court on or after May 22, 1991?
Yes___No___
(if No go to 15)
|
|
12.Did the claimant receive a final adverse disability (medical) determination/decision after May 21, 1991, on a subsequent claim which raised the issue of disability and covered the timeframe at issue in the potential Verla Turner claim?
Yes___No___
(if No go to 15)
|
|
13.Was a claim for title XVI or title II worker's disability denied/ceased at one of the last two steps of the sequential evaluation process on a concurrent claim or on a claim which covered the timeframe at issue in the potential Verla Turner claim?
Yes___No___
(if No go to 15)
|
|
14.Did the individual file a claim for DWB on or after January 1, 1991, which was denied/ceased under the Omnibus Budget Reconciliation Act of 1990 (OBRA) and had no claim for entitlement to DWB for any month(s) before January 1991?
Yes___No___
(if No go to 15)
|
|
15. The responder is not a Verla Turner class member. Enter the screenout code in item 5 b. as follows:
Enter 06 if question 6 was
answered "NO".
Enter 07 if question 7 was answered
"NO".
Enter
08 if question 8 was answered "NO".
Enter 09 if question
9 was answered "YES"
Enter 10 if question 10 was answered
"YES".
Enter 11 if question 11 was answered "YES".
Enter
12 if question 12 was answered "YES".
Enter 13 if question
13 was answered "YES".
Enter 14 if question 14 was answered
"YES"
No other screenout code entry is appropriate.
|
|
16 .On the lines below, please enter the date(s) of all applications screened the date(s) of all final decision considered in the screening process and the administrative level at which the final decision was made (i.e., DDS, ALJ, AC).
Date of Application(s) Date of Decisions Level of Final Decision
_______________ __________________ ________________
_______________ __________________ ________________
_______________ __________________ ________________
|
|
SIGNATURE OF SCREENER |
COMPONENT
DATE
|
TEL.
|
|
INSTRUCTIONS FOR COMPLETING VERLA TURNER SCREENING
SHEET
The VERLA TURNER case involves only claims for
title II disabled widow(er)'s or surviving divorced spouse's benefits, for
individuals who were denied. The individual must have resided in
Louisiana, during the period February 13, 1990, through May 21, 1991,
inclusive. Only one screening sheet and one screen-out notice should be
prepared for each claimant. Answer questions 1-14 in sequence until the
case is either screened-in or screened-out. Be sure the fill-ins are
legible.
Questions 1-4:
Fill in the identifying information as requested. Make sure SSN and BIC of
DWB claim are correct and legible.
DO NOT USE THE WIDOW'S OWN SSN.
Question 5:
Complete this information last. Do not fill in the information in blocks
5.a. and 5.b. until the screening process is completed.
Question 6:
Screen for claim type. If this question is answered “NO,”
enter the appropriate screen-out code in item 5.b. as directed in item 15
on the screening sheet and check the “nonmember” block in
item 5.a.
Question 7:
Individuals are potential class members if they received a denial or less
than fully favorable decision (e.g., later onset, closed period, payment
of benefits beginning January 1, 1991, under OBRA 90 despite an earlier
onset) between February 13, 1990, and May 21, 1991, inclusive, which
became the final decision of the Commissioner. Individuals are also
potential class members if they received a denial or less than fully
favorable decision prior to February 13, 1990, and reapplied for DWB
between February 13, 1990, and May 22, 1991, instead of pursuing an
appeal. Be sure to consider earlier eligibility for Medicare and
retroactive benefits when determining if the decision is fully favorable.
For DDS final determinations, the DDS code should be one of the following:
191/S75, 192/S76, or 193/S77. If the determination was not prepared by a
DDS in Louisiana, OHA or any office servicing residents of the state of
Louisiana on or after February 13, 1990, but before May 21, 1991, the
individual is not a Verla Turner class member.
(Note: Although not the “final
decision of the Commissioner,” an Appeals Council denial of a
request for review is the last action of the Commissioner, and the date of
such a denial controls for screening purposes.)
Question 8:
For DDS final determinations, review the SSA-831-U3 to determine if the
individual resided in Louisiana at the time the determination/decision
described in question 7 was issued. For OHA final decisions, review the
file. If the answer to question 8 is “YES,” go to question 9;
if “NO,” the individual is not a class member in the
Verla Turner case, go to item 15.
Question 9:
For DDS final determinations, check item 33 of the SSA-831-U3. If the
reg-basis codes are N1, N2, L1, L2, M7 or M8, a non-medical denial is
involved. A reg-basis code of S1 reflects that the prescribed period
requirements were not met. For a complete list of DWB denial codes see
POMS SM 00380.270.
For OHA final decisions, the answer can be found in the Administrative Law
Judge or Appeals Council decision. If the answer to question 9 is
“YES,” enter the appropriate screen-out code in item 5.b. as
directed in item 15 on the screening sheet and check the
“nonmember” block in item 5.a.
Question 10:
Review the file and case control queries to determine whether benefits
were subsequently allowed from the earliest possible entitlement date. Be
sure to consider earlier eligibility for Medicare and retroactive benefits
when determining if the subsequent decision is fully favorable. If the
answer to question 10 is “YES,” enter the appropriate
screen-out code in item 5.b. as directed in item 15 on the screening sheet
and check the “nonmember” block in item 5.a.
Question 11:
Check file(s) and OHA query (OHAQ) to determine whether the potential
Verla Turner claim was pending administratively or
in a Federal court on or after May 22, 1991. NOTE: A remand by a Federal
court under sentence four section
405(g) of the Social
Security Act is a “final” judgment for screening purposes. If
necessary, OHA screeners should contact the appropriate CCPRB (if not the
screening component), to determine the status of any complaint filed. If
the answer to question 11 is “Yes,” enter the appropriate
screen-out code in item 5.b. as directed in item 15 on the screening sheet
and check the “nonmember” block in item 5.a.
Question 12:
If the claimant received a final adverse disability (medical)
determination/decision on a DWB claim after May 21, 1991, the claimant
already received the same relief as he/she would receive under the
Verla Turner settlement agreement, and, therefore,
is not entitled to further review. If the answer to question 12 is
“YES,” enter the appropriate screen-out code in item 5.b. as
directed in item 15 on the screening sheet and check the
“nonmember” block in item 5.a.
Question 13:
Review the file(s) and queries (AACT, SSID, etc.) for the individual's SSN
to determine if the individual received a denial determination/decision on
a concurrent or subsequent claim for SSI or worker's disability which
covered the entire timeframe at issue in the potential
Turner claim. For DDS final determinations, the
following codes in block 22 of the SSA-831-U3 indicate DDS denial at steps
4 or 5: H1, H2, J1, J2, E3 and E4 for title II claims, or N31, N32, N42
and N43 for title XVI claims. For OHA final decisions, review the
Administrative Law Judge or Appeals Council decision to determine the
basis for denial. If the answer to question 13 is “YES,”
enter the appropriate screen-out code in item 5.b. as directed in item 15
on the screening sheet and check the “nonmember” block in
item 5.a.
Question 14:
For DDS final determinations in claims in which the individual did not
allege entitlement before January 1, 1991, review the file to determine if
the potential Verla Turner claim filed on or after
January 1, 1991, was denied with the reg-basis codes H1, H2, J1 or J2. For
OHA final decisions, review the Administrative Law Judge or Appeals
Council decision to determine if the claimant's residual functional
capacity was assessed. If the answer to question 14 is “YES,”
enter the appropriate screen-out code in item 5.b. as directed in item 15
on the screening sheet and check the “nonmember” block in
item 5.a.
Instructions for Class Members
a.
If “YES” to questions 6, 7 and 8, and “NO” to
questions 9, 10, 11, 12, 13 and 14, the individual is a class member.
Check the “class member” block (J) in item 5.a. of the
screening sheet.
b.
Sign and date the screening sheet and retain the original in the claim
folder. Enter the name of the screening component, e.g., OHA, OAO, Branch
10, and the screener's phone number.
c.
Send a copy of the screening sheet to:
|
|
Office of Hearings and Appeals
Division
of Litigation Analysis and
Implementation
One Skyline
Tower, Suite 702
5107 Leesburg Pike
Falls Church,
VA 22041-3200
ATTN: Verla Turner Coordinator
|
d.
Follow Part V. B. 3. b. for screened-in
cases.
Instructions for Non-Class Members
a.
If “NO” to question(s) 6, 7 or 8, or “YES” to
questions 9, 10, 11, 12, 13 or 14, the individual is not a class member.
Check the “nonmember” block (F) in item 5.a. of the screening
sheet and fill in the screen-out code in item 5.b.
b.
In determining that the individual is not a class member, fill in the
information requested in item 16, i.e., the dates of the applications
screened, the dates of the decisions considered and the level of
adjudication reached.
c.
Sign and date the screening sheet. Enter the name of the screening
component, e.g., OHA, OAO, Branch 10, and the screener's phone
number.
d.
Retain the original screening sheet in the folder. Send a copy to:
|
|
Office of Hearings and Appeals
Division
of Litigation Analysis and
Implementation
One Skyline
Tower, Suite 702
5107 Leesburg Pike
Falls Church,
VA 22041-3200
ATTN: Verla Turner Coordinator
|
e.
Prepare and send the “Non-Class Member Notice” (Attachment 6)
to the individual with a copy to his or her representative, if any. Retain
a copy in the file.
f.
Follow Part V. B. 3. a. for screened-out
cases.
Attachment 5. Route Slip for Routing Class Member Alert and Prior Claim File(s)
to ODIO or PSC -- OHA No Longer Has Current Claim
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ROUTING AND TRANSMITTAL SLIP |
DATE |
|
TO: |
Initials |
Date |
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1. |
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|
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2. |
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|
3. |
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4. |
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5. |
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6. |
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7. |
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_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 |
____OTHER |
REMARKS
Claimant: ___________________________
SSN: ______________________________
OHA received the attached alert [and prior claim file(s)] for screening
and no longer has the current claim file. Our records show that you now
have possession of the current claim. Accordingly, we are forwarding the
alert and any accompanying prior claim file(s) for association with the
current claim. After associating the alert with the current claim, please
forward to the Mid-America Program Service Center (using the address
indicated on the alert) for screening and possible readjudication.
SEE POMS DI 42561.005 OR DI 12561.005
Attachment
|
FROM: |
SUITE / BUILDING |
|
|
|
|
Office of Hearings and Appeals
__________________________
|
PHONE NUMBER
_______________
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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 NOTICE
Important Information
|
From: |
Department of Health and Human
Services
Social Security Administration
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____________________________Date:____-____-____ |
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____________________________Claim Number:____________________ |
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____________________________DOC___________________________ |
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY BENEFITS
PLEASE READ IT CAREFULLY
You asked us to review your case under the terms of the Verla
Turner v. Sullivan court decision. We have looked at your case
and decided that you are not a Verla Turner class
member. This means that we will not review our earlier decision to deny or
cease your benefits.
WHY YOU ARE NOT A CLASS MEMBER
You are not a Verla Turner class member
because:
|
[ ] |
You did not file a claim for title II disabled widow's, widower's or surviving divorced spouse's (DWB) benefits.
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|
[ ] |
You did not reside in the State of Louisiana between February 13, 1990, and May 21, 1991, inclusive.
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|
[ ] |
Between February 13, 1990, and May 21, 1991, inclusive, you did not request reconsideration of a less than fully favorable initial determination/cessation or file a second application for disabled widow's, widower's or surviving divorced spouse's benefits.
|
|
[ ] |
Your claim was denied or ceased for some reason other than your medical condition. That reason was: _________________________________________________________________.
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|
[ ] |
You received a subsequent fully favorable decision which covered the timeframe at issue in the potential Verla Turner claim, and all benefits have been paid.
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|
[ ] |
You received a final adverse decision after May 21, 1991, on a subsequent claim which covered the timeframe at issue in the potential Verla Turner claim. Thus, you have already received the relief that you would otherwise be entitled to under Verla Turner.
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|
[ ] |
Your claim was pending administratively or in federal court on or after May 22, 1991.
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|
[ ] |
You had a concurrent claim for title XVI or title II worker's disability benefits denied or ceased at steps 4 or 5 of the sequential evaluation process, and that claim covered the period at issue in the potential Verla Turner claim.
|
|
[ ] |
Other _________________________________________________
|
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 currently disabled. We are deciding only that you are not
a Verla Turner class member.
IF YOU DO NOT AGREE WITH THIS DETERMINATION
If you want us to review the determination that you are not a class
member, you must ask us to do so within 30 days of the date of this
notice.
A copy of this letter is being sent to the attorney for the
Verla Turner class. If you disagree with this
determination, you should write or call the class attorney, who will
answer your questions about class membership. If the attorney thinks that
this determination is incorrect, we may look at your case again. The name
and address of the attorney is:
|
|
John D. Thompson, Jr.
Acadiana
Legal Service Corporation
1020 Surrey Street
P.O.
Box 4823
Lafayette, Louisiana 70502-4823
Telephone (318) 237-4320
|
You may also contact your personal legal representative, if you have one
or if you obtain one.
IF YOU HAVE ANY QUESTIONS
If you have any questions, you may contact the class attorney or your
local Social Security Office. The address and phone number are printed at
the top of this letter. If you call or visit an office, please have this
letter with you. It will help us answer your questions.
SI VOUS AVEZ BESOIN D'ASSISTANCE POUR COMPRENDRE CET AVIS, VOUS DEVEZ VOUS METTRE EN CONTACT AVEC LE BUREAU DE SECURITE SOCIALE LE PLUS PROCHE. IL Y A QUELQU'UN LA QUI VOUS AIDERA VOLONTIERS.
cc: John D. Thompson, Jr.
Lafayette, LA
70502-4823
Attachment 7. Route Slip for Non-Class Membership Cases
|
ROUTING AND TRANSMITTAL SLIP |
DATE |
|
TO:
1. SSA District Office
|
Initials |
Date |
|
2. Brandywine I, Suite 100 |
|
|
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3. 825 Kaliste Saloom Road |
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4. Lafayette, Louisiana 70508 |
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5. |
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6. |
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7. |
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_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 |
____OTHER |
REMARKS
Claimant: ___________________________
SSN: ______________________________
We have determined that this claimant is not a Verla
Turner class member.
(See Screening sheet and copy of non-class membership notice in the
attached claim file(s).) This file has been transferred to your office
because class counsel has requested review of the non-class membership
determination.
SEE POMS DI 12561.010
Attachment
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
|
FROM: |
SUITE / BUILDING |
|
|
|
|
Office of Hearings and Appeals
__________________________
|
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. Turner Class Member Flag for Headquarters USe (DDS Readjudication
-- retention period expired)
Verla Turner Class Action Case
READJUDICATION NECESSARY
|
Claimant's name: |
___________________________ |
|
|
|
SSN: |
___________________________ |
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|
This claimant is a Verla Turner class member.
Accordingly, we are forwarding the attached claim file(s) to the Louisiana
DDS for readjudication.
Send folders to:
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|
Louisiana Health and Human Resources
Office
of Family Security
Disability Determinations
530
Lakeland Drive
Baton Rouge, Louisiana 70802
(Destination code: S21)
|
Attachment 9. Turner Class Member Flag for Headquarters Use (DDS Readjudication
-- retention period has not expired)
Verla Turner Class Action Case
READJUDICATION NECESSARY
|
Claimant's name: |
___________________________ |
|
|
|
SSN: |
___________________________ |
|
|
This claimant is a Verla Turner class member. After
expiration of the retention period, forward claim file(s) to the Louisiana
DDS for readjudication.
Send folders to:
|
|
Louisiana Health and Human Resources
Office
of Family Security
Disability Determinations
530
Lakeland Drive
Baton Rouge, Louisiana 70802
(Destination code: S21)
|
If the claimant has filed a civil action and elected to remain in court
for review of the current claim, forward the Verla
Turner claim file(s) without delay to the Louisiana DDS for
readjudication.
DEPARTMENT OF HEALTH AND HUMAN SERVICES OFFICE OF HEARINGS AND APPEALS ORDER OF DISMISSAL
ORDER OF DISMISSAL
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IN THE CASE OF |
CLAIM FOR |
|
__________________________ |
___________________________ |
|
__________________________ |
___________________________ |
This case is before the Administrative Law Judge pursuant to a request for
hearing filed on _________________ with respect to the application(s)
filed on _________________.
In accordance with the Joint Stipulation of the parties and an order of
the United States District Court for the Western District of Louisiana in
the case of Verla Turner v. Sullivan, No. 90-0688
(W.D. Louisiana, January 29, 1993), the claimant has requested
readjudication of the final (determination/decision) on the prior
application(s) filed on ______________. The claimant has been identified
as a Verla Turner class member and is entitled to
have the final administrative denial of the prior application(s) reviewed
under the terms of the Joint Stipulation and 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 Louisiana Disability Determination Service
which will conduct the Verla Turner
readjudication.
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.
|
|
_____________________________
Administrative
Law Judge
|
|
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_____________________________
Date
|
Attachment 11. Notice Transmitting ALJ Order 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 Louisiana 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
Verla Turner class member claim back to the
Louisiana Disability Determination Service for further processing. The
enclosed order explains why.
The Next Action on Your Claim
The Louisiana Disability Determination Service will contact you to tell
you what you need to do. If you do not hear from the Louisiana 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. Turner Class Member Flag for HO Use (DDS Readjudication)
Verla Turner Class Action Case
READJUDICATION NECESSARY
|
Claimant's name: |
___________________________ |
|
|
|
SSN : |
___________________________ |
|
|
This claimant is a Verla Turner class member. The
attached Verla Turner claim file was forwarded to
this hearing office for possible consolidation with a current claim.
_______ The Administrative Law Judge has determined that the prior and
current claims do not share a common issue and, therefore, should not be
consolidated.
|
_______ |
The claims have not been consolidated because |
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|
|
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[state reason(s)]________________________________________________ |
|
|
_____________________________________________________________________. |
Accordingly, we are forwarding the attached alert and prior claim file(s)
to your location for any necessary Verla Turner
readjudication action.
We are sending the alert and prior file(s) to:
|
|
Louisiana Health and Human Resources
Office
of Family Security
Disability Determinations
530
Lakeland Drive
Baton Rouge, Louisiana 70802
(Destination code: S21)
|