ISSUED: February 28, 1994; REVISED: December 19, 1994, July 12, 1995;
August 18, 1995; May 15, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
parties' stipulation and order for settlement approved and filed by the
United States District Court for the Southern District of West Virginia on
August 17, 1992, in the Boring v. Sullivan class
action (see Attachment 1).
Adjudicators throughout the country must be familiar with this TI because
of case transfers and because Boring class members
who now reside outside of West Virginia must have their cases processed in
accordance with the requirements of the stipulation and order.
II. Background
On April 16, 1991, plaintiffs filed a complaint challenging the alleged
failure of West Virginia Disability Determination Section (DDS) medical
consultants to complete residual functional capacity (RFC) assessments,
and naming the Secretary and State officials as parties. Following
consideration of defendants' various motions to dismiss and plaintiffs'
motion for class certification, a magistrate judge recommended on November
27, 1991, that the motions to dismiss be denied and that the court certify
a class. On January 24, 1992, the district court adopted the magistrate
judge's recommendation and certified a class (see
Part IV. below, for class
definition).
Subsequently, the parties engaged in settlement negotiations, and, on
August 17, 1992, the district court approved the parties' proposed
stipulation and order for settlement. On October 5, 1992, following a
public hearing, the district court gave
final approval to the proposed
settlement.
III. Guiding Principles
Under the Boring stipulation and order for
settlement, 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. B. 2. below). The West Virginia
DDS will screen for class membership, unless a potential class member
claim is pending or stored at OHA. Regardless of the state of the
claimant's current residence, the West Virginia DDS will, in most cases,
perform the agreed-upon readjudication, irrespective of the administrative
level at which the claim was last decided. In readjudicating claims
pursuant to the stipulation and order, the DDS will apply the standards
applicable to determining RFC, as set forth in titles II and XVI of the
Social Security Act, 20 CFR §§ 404 and 416 and
Program Operations Manual System
provisions in effect at the time of readjudication.
The type of readjudication will be a “redetermination.” A
redetermination consists of 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 determination(s) or decision(s)
that forms the basis for the claimant's class membership. If the
redetermination results in a favorable decision, the adjudicator must also
determine whether the class member's eligibility has been continuous
through the date of the readjudication, i.e., the current date. The DDS
will also assess disability through the current date, if: 1) a class
member claim is pending a hearing or is associated with a common-issue
subsequent (current) claim that is pending a hearing, and the
Administrative Law Judge (ALJ) exercises discretion to dismiss the request
for hearing and return the claim(s) to the DDS (see
Parts VI. A. and B. below); or 2) a class
member claim is pending before the Appeals Council or is associated with a
common-issue subsequent (current) claim that is pending before the Appeals
Council, and the Appeals Council, under certain circumstances, remands the
claim(s) to the DDS (see
Parts VI. C. and D. below). Cases
readjudicated by the West Virginia DDS 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., ALJ hearing, Appeals
Council and judicial review.
Other than “waterfall” cases, i.e., cases received on appeal,
the primary implementation impact of the Boring
settlement on OHA will be the responsibility for screening when a
potential class member claim or subsequent (current) claim is pending or
stored at OHA. Under the terms of the stipulation and order for
settlement, cases will be consolidated for readjudication only at the DDS
level. However, the ALJ or the Appeals Council may consolidate a class
member claim and a subsequent (current) claim for the purpose of issuing a
decision that is fully favorable with respect to the class member
claim.
IV. Definition of Class
Subject to the exceptions referred to below, the
Boring class consists of individuals:
•
who had a claim for title II and/or title XVI disability benefits denied
at step 4 or 5 of the sequential evaluation at the initial or
reconsideration level by the Clarksburg area office of the West Virginia
DDS between January 1, 1986, and June 5, 1990, inclusive;
and
•
whose claim file contains an RFC assessment form which bears the signature
of either Hugh M. Brown, M.D., or J. Keith Pickens, M.D.
A person is not a class member eligible for class relief if he or
she
(1) pursued the potential class member claim to the OHA level and received
an administrative denial (other than a dismissal) from an ALJ that became
final; or
(2) had a primary diagnosis on the SSA-831 of a neoplastic disease;
or
(3) had primary and secondary diagnoses on the SSA-831 of a mental
impairment(s); or
(4) received a subsequent RFC assessment by a DDS medical consultant other
than Drs. Brown or Pickens, either on reconsideration of the potential
class member claim or on a subsequent claim which covered the period at
issue in the potential class member claim.
A person also is not a class member eligible for relief if the final
determination in file contains:
(1) an SSA-4734 prepared by Dr. Pickens which bears the symbol
“R” or “r” next to his signature; or
(2) an SSA-4734 completed during the period January 1, 1986, through
October 1, 1989, in which the handwriting, and accompanying signature
indicates that Drs. Brown or Pickens personally reviewed the evidence and
assessed the RFC; or
(3) a white abstract form completed during the period October 1, 1989,
through June 5, 1990, which indicates that Drs. Brown or Pickens
personally reviewed the evidence and assessed RFC.
V. Determination of Class Membership and Preadjudication
Actions
1.
Notification
Based on the foregoing class definition, SSA Central Office identified
potential class members by computer run and, in a single mailing on June
2, 1993, sent notices to all potential class members. Individuals had 60
days from the date of receipt of the notice to return a response form to
the Office of Disability and International Operations (ODIO), requesting
that SSA readjudicate their claims under the terms of the
Boring stipulation and order. Notices returned as
undeliverable receive no further action. ODIO will forward response forms
received more than 65 days after the mailing date to the SSA
Boring Coordinator in the Office of the Deputy
Commissioner for Programs' Litigation Staff. Litigation Staff will request
field offices (FOs) to develop good cause for the untimely reply forms, as
necessary.
2.
Alert and Folder Retrieval Process
ODIO will enter information from all response forms into the Civil Action
Tracking System (CATS). As appropriate, Litigation Staff will arrange for
CATS to generate alerts to ODIO (see Attachment 2 for a sample
Boring alert). ODIO will associate the alerts with
any ODIO-jurisdiction potential class member claim file(s). ODIO will then
coordinate with other processing (PCs), FOs and the Wilkes-Barre Data
Operations Center (DOC) to appropriately route the claim files and
non-ODIO jurisdiction alerts, so that all appropriate claim files within
the Boring timeframes are obtained prior to
screening.
3.
Alerts Sent to OHA
ODIO will forward alerts to OHA when a potential class member claim or a
current claim is pending or stored at OHA. If the claim is located in a
hearing office (HO), ODIO will forward the alert directly to the HO for
processing. If the claim is located in OHA Headquarters, ODIO will forward
the alert to the Office of Appellate Operations (OAO) at the following
address:
One Skyline Tower, Suite 701
5107
Leesburg Pike
One Skyline Tower, Suite 601
Falls
Church, VA 22041-3200
ATTN: OAO Class Action Coordinator
4.
Folder Reconstruction
After a thorough search not to exceed 120 days, the PC or the Wilkes-Barre
DOC will initiate folder reconstruction through the servicing FO. Because
the PC, FO and Wilkes-Barre DOC either obtain all appropriate claim files
within the Boring timeframes, or arrange for their
reconstruction prior to forwarding files for screening, OHA requests for
reconstruction should be rare. However, if it becomes necessary for OHA to
request reconstruction, the OHA component (the HO or the OAO branch) will
return the alert and any accompanying claim file(s) (if the claim file(s)
is not needed for adjudication purposes) to Litigation Staff and request
that folder reconstruction be initiated. The OAO branch will route
requests through the OAO Class Action Coordinator. HO personnel and the
OAO Class Action Coordinator will forward requests to Litigation Staff at
the following address:
Litigation Staff
Office
of the Deputy Commissioner for Programs, Policy,
Evaluation
and Communications
3-K-26 Operations Building
6401
Security Boulevard
Baltimore, MD 21235
ATTN:
Boring Screening Unit
HO personnel or 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 of the claim(s) involved.
1.
Pre-Screening Actions
a.
Current Claim Pending or Stored at OHA Headquarters
As provided in Part V. A. 3. above, if
there is a current claim pending or stored at OHA Headquarters, the OAO
Class Action Coordinator will receive the alert and related
Boring claim file(s). The Coordinator will
determine which OHA component has the current claim and forward for
screening as follows.
•
If the claim has been sent to an HO, the Coordinator will forward the
alert and the prior claim file(s) to the HO for screening, using
Attachment 3 (see Part V. B. 2. b. below
if the claim is no longer in the HO when the alert is received).
•
If the claim is before the Appeals Council, in an OAO branch mini-docket
or in an OAO Docket and Files Branch, the Coordinator will forward the
alert and the prior claim file(s) to the appropriate OAO branch for
screening, using Attachment 3 (see
Part V. B. 2. b. below if the claim is no
longer in OAO when the alert is received).
If the Coordinator (or the designee) is unable to locate the current claim
file within OHA, the Coordinator (or the designee) will broaden the claim
file search and arrange for claim file retrieval, alert transfer or claim
file reconstruction, as necessary.
The OAO Class Action Coordinator is responsible for controlling and
reconciling the disposition of class alerts shipped to OHA for association
with pending or stored claims. Because this is a relatively small class,
the OHA alert workload will be minimal and a manual accounting should
suffice. The Coordinator should maintain a record of all alerts received
and the location, if any, to which alerts are transferred. This
information will be necessary to do the final class membership
reconciliation.
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 current or
prior claim, the Coordinator will forward the alert and any accompanying
claim file(s) to the appropriate OAO Court Case Preparation and Review
Branch (CCPRB) for screening, using Attachment 3.
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:
•
ensure that all appropriate claims denied within the
Boring timeframes have been retrieved and
considered;
•
read and follow all instructions on the screening sheet;
•
check item 2. of the SSA-831-U5 for code 511, indicating that the
Clarksburg DDS reviewed the case;
•
review the handwriting samples at Attachment 5;
•
sign and date the original screening sheet, place it in the claim file (on
the top right side of the file); and
•
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 onto a
database and forward the screening sheet to the Division of Litigation
Analysis and Implementation (DLAI) in the Office of Policy, Planning and
Evaluation. 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
send the alert and any prior claim file(s) to the OAO Class Action
Coordinator (see address in Part V. A. 3.
above) and advise the Coordinator of the action taken on the current claim
and its destination. The Coordinator will determine the current claim file
location and, if it is located in OHA Headquarters, will forward the alert
and any accompanying prior claim file(s) to the responsible Disability
Program Branch for screening, using Attachment 3. If the files are not in
OHA, the Coordinator will use Attachment 6 to send the alert and any
accompanying prior claim file(s) to the non-OHA location.
If an OAO branch receives an alert only, or an alert associated with a
prior claim file(s) and no longer has the current claim file, it will
determine the location of the current claim file. If the current claim
file is located within OHA, the OAO branch will use Attachment 3 to
forward the material to the OHA location. If the files are no longer in
OHA, the OAO branch will use Attachment 6 to forward the material to the
non-OHA location. The OAO branch will also advise the OAO Class Action
Coordinator of its actions.
b.
Screening Instructions if a Civil Action Is Involved
As indicated previously, the CCPRB will screen cases in which a civil
action is involved. If the claimant is a class member, the CCPRB will
notify the Office of the General Counsel (OGC) attorney having
responsibility for the civil action of the fact of class membership. OGC
will advise the CCPRB of the action to be taken. However, if the class
member claim is not the claim pending in court, i.e., the claim pending in
court was filed prior or subsequent to the class member claim, and the
claims do not have common issues, the CCPRB will forward the class member
claim to the DDS for readjudication, using Attachment 7. The CCPRB must
notify the OAO Class Action Coordinator of the transfer to the DDS. If the
claimant is not a class member, the CCPRB will proceed in accordance with
Part V. B. 3. a. below.
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 8;
•
retain a copy of the notice in the claim file;
•
send a copy of the notice to:
Michael G. Miskowiec
Suite
404A, 922 Quarrier Street
Charleston, WV 25301
•
hold the claim file(s) for 60 days to allow claimants the opportunity to
contest class membership determinations;
•
if the claimant or class counsel makes a timely review request (within 30
days from the date of receipt of notice), forward the non-class member
claim file to the Charleston, West Virginia District Office using the
pre-addressed route slip in Attachment 9;
Photocopy any material contained in the prior file that is relevant to the
current claim (if any) and place it in the current claim file before
shipping the prior file.
•
if SSA, through OGC, resolves the dispute in the claimant's favor: 1)
rescreen the case; 2) send the notice of revised class membership
(Attachment 10) to the claimant and representative, if any, and to the
class counsel; 3) proceed in accordance with
Part VI. below; and 4) notify the OAO
Class Action Coordinator at the address in
Part V. A. 3. above, for coordination
with DLAI, of the revised determination by forwarding a copy of the
revised screening sheet; and
•
if, after the 60-day holding period, the claimant or class counsel does
not contest the class membership determination, return the claim file to
its storage location if not otherwise needed for adjudication.
b.
Class Member Cases
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
As indicated previously, the West Virginia DDS will perform the class
member readjudications, irrespective of the administrative level at which
the claim was last decided. However, when the claimant is a class member
and OHA has responsibility for screening because the class member's claim
or a subsequent (current) claim is pending or stored at OHA, the following
process and adjudication procedures will apply.
A. Class Member Claim Is Associated with Current Claim Pending at Hearing Level
Because the receipt of a subsequent RFC assessment by a DDS medical
consultant other than J. Keith Pickens, M.D., or Hugh M. Brown, M.D., is a
basis for screen-out (item 11. of the screening sheet), a claimant who
filed a subsequent, common-issue claim is unlikely to be a class member.
However, for those individuals who may be class members, e.g., Drs.
Pickens or Brown prepared the RFC assessment on reconsideration of the
subsequent claim, or the claimant alleged a later onset date in the
subsequent claim, the following instructions will apply.
1.
Claims Have Common Issues; Hearing Scheduled or Held
In this situation, the appropriate HO action will depend on the ALJ's
consideration of the merits and disposition of the current claim.
a.
If the ALJ issues a decision on the current claim, and that decision is
fully favorable with respect to the class member claim, the ALJ
will:
•
notify the claimant and representative, if any, that the decision on the
current claim also resolves the class member claim; and
•
forward a copy of the decision, for coordination with DLAI, to the OAO
Class Action Coordinator at the address in
Part V. A. 3. above.
b.
If the ALJ issues a decision on the current claim that is not fully
favorable with respect to the class member claim, or dismisses the request
for hearing on the current claim, HO personnel will flag the class member
claim (see Attachment 11) for forwarding to the DDS on completion of all
OHA actions and expiration of any appeal period.
2.
Claims Have Common Issues; Hearing Not Scheduled
In this situation, the ALJ will dismiss the request for hearing on the
current claim and forward both the current and class member claims to the
DDS, for a consolidated reopening-type determination (see
Part III. above), at the following
address:
Division of Rehabilitation Services
Disability
Determination Section
Suite 200, 1206 Quarrier
St.
Charleston,
WV 25301.
The destination code for the DDS is S55.
The ALJ will not dismiss the request for hearing on the current claim when
a hearing has not been scheduled, if 1) the claimant has waived his or her
right to an in-person hearing and the current claim is ready for an
on-the-record decision; 2) the ALJ is otherwise prepared to issue a fully
favorable decision on the current claim; 3) the current claim is on remand
from the Appeals Council; or 4) the current claim involves terminal
illness.
If the ALJ is unable to dismiss the request for hearing on the current
claim because an exception applies, and the ALJ proposes to issue a
decision that is fully favorable with respect to the class member claim,
the ALJ will follow the guidance in
Part VI. A. 1. above. If the ALJ issues a
decision on the current claim that is not fully favorable with respect to
the class member claim, HO personnel will flag the class member claim (see
Attachment 11) for forwarding to the DDS on completion of all OHA actions
and expiration of any appeal period.
3.
Claims Do Not Have Common Issues
HO personnel will retain and process the current claim separately and
forward the class member claim to the DDS for redetermination without
delay, using Attachment 7.
B. Class Member Claim Is Pending at the Hearing Level
1.
Hearing Scheduled or Held
As in Part VI. A. 1. above, the
appropriate HO action with respect to class relief will depend on the
ALJ's disposition of the request for hearing.
a.
If the ALJ issues a decision that is fully favorable, this action provides
all class relief and the ALJ will:
•
notify the claimant and representative, if any, that the decision resolves
class relief; and
•
forward a copy of the decision, for coordination with DLAI, to the OAO
Class Action Coordinator at the address in
Part V. A. 3. above.
b.
If the ALJ issues a decision that is not fully favorable or dismisses the
request for hearing, HO personnel will flag the claim (see Attachment 11)
for forwarding to the DDS on completion of all OHA actions and expiration
of any appeal period.
2.
Hearing Not Scheduled
The ALJ will dismiss the request for hearing and forward the claim to the
DDS for reopening (see Part III. above)
at the address in Part VI. A. 2.
above.
The ALJ will not dismiss the request for hearing when a hearing has not
been scheduled, if 1) the claimant has waived his or her right to an
in-person hearing and the case is ready for an on-the-record decision; 2)
the ALJ is prepared to issue a fully favorable decision; 3) the claim is
on remand from the Appeals Council; or 4) the claim involves terminal
illness.
If the ALJ is unable to dismiss the request for hearing because an
exception applies, and the ALJ proposes to issue a decision that is fully
favorable, the ALJ will follow the guidance in
Part VI. A. 1. If the ALJ issues a
decision that is not fully favorable, HO personnel will flag the claim
(see Attachment 11) for forwarding to the DDS on completion of all OHA
actions and expiration of any appeal period.
C. Class Member Claim Is Associated with Current Claim Pending at Appeals Council Level
1.
Claims Have Common Issues
Because the receipt of a subsequent RFC assessment by a DDS medical
consultant other than J. Keith Pickens, M.D., or Hugh M. Brown, M.D., is a
basis for screen-out (item 11. of the screening sheet), a claimant who
filed a subsequent, common-issue claim is unlikely to be a class member.
However, for those individuals who may be class members, e.g., Drs.
Pickens or Brown prepared the RFC assessment on reconsideration of the
subsequent claim, or the claimant alleged a later onset date in the
subsequent claim, the appropriate Appeals Council action will depend on
the Appeals Council's consideration of the merits and disposition of the
current claim.
a.
If the Appeals Council issues a decision on the current claim and that
decision is fully favorable with respect to the class member claim, the
Council will:
•
notify the claimant and representative, if any, that the decision on the
current claim also resolves the class member claim; and
•
forward a copy of the decision, for coordination with DLAI, to the OAO
Class Action Coordinator at the address in
Part V. A. 3. above.
b.
If the Appeals Council issues a decision on the current claim and that
decision is not fully favorable with respect to the class member claim,
OAO personnel will flag the claim for forwarding to the DDS (see
Attachment 11) following effectuation and expiration of any appeal
period.
c.
If the Appeals Council finds a basis for remand unrelated to the fact of
Boring class membership, it will combine the claims
and forward them to the DDS at the address in
Part VI. A. 2. above for a consolidated
reopening-type determination (see
Part III. above) (see sample remand
language at Attachment 12).
d.
In all other situations, i.e., after consideration of the merits, if the
Appeals Council would otherwise dismiss or deny the request for review or
issue an unfavorable decision, OAO personnel will combine the claims and
forward them to the DDS at the address in
Part VI. A. 2. above for redetermination
(see Part III. above) through the date of
the ALJ's decision on the pending claim (or, if the ALJ dismissed, through
the date of reconsideration) (see sample remand language at Attachment
12).
2.
Claims Do Not Have Common Issues
a.
If the class member claim file is not needed for adjudication of the
current claim, OAO personnel will forward the class member file to the
DDS, using Attachment 7.
b.
If the class member claim file is needed for adjudication of the current
claim, OAO personnel will flag the class member claim (see Attachment 11)
for forwarding to the DDS on completion of all OHA actions and expiration
of any appeal period.
D. Class Member Claim Is Pending at the Appeals Council Level
The Appeals Council's action with respect to class relief will depend on
the Council's consideration of the merits of the request for review.
1.
Appeals Council Decides To Issue a Fully Favorable Decision OAO personnel
will:
a.
notify the claimant and representative, if any, that the decision resolves
class relief; and
b.
forward a copy of the decision, for coordination with DLAI, to the OAO
Class Action Coordinator at the address in
Part V. A. 3. above.
2.
Appeals Council Decides To Issue a Partially Favorable Decision
OAO personnel will flag the claim for forwarding to the DDS (see
Attachment 11) following effectuation and expiration of any appeal
period.
3.
Appeals Council Finds a Basis for Remand Unrelated to the Fact of
Boring Class Membership
The Council will remand the claim to the DDS at the address in
Part VI. A. 2. above, for a
reopening-type determination, using Attachment 13.
4.
Appeals Council Would Otherwise Dismiss or Deny the Request for Review or
Issue an Unfavorable Decision
The Council will remand the claim to the DDS at the address in
Part VI. A. 2. above, for redetermination
through the date of the ALJ's decision or, if the ALJ dismissed through
the date of reconsideration, using Attachment 13.
E. Class Member Claim Is Stored Pending Appeal
OAO will flag the case (see Attachment 11) for forwarding to the DDS at
the expiration of the appeal period.
VII. Case Coding
If the class member claim is pending at the hearing level, and the ALJ: 1)
dismisses the request for hearing for the purpose of DDS readjudication of
the class member claim; or 2) issues a fully favorable decision, HO
personnel will change the hearing type on the claim to a
“reopening.” For any other ALJ action on the pending class
member claim, the hearing type, as a new request for hearing, will remain
unchanged. However, in all situations, to identify class member cases in
the Hearing Office Tracking System (HOTS), HO personnel will code
“BO” in the “Class Action” field. No special
identification codes will be used in the OHA Case Control System (CCS).
Additionally, HO personnel will code dismissal cases as
“OTDI.” HOTS users will need to bypass the automated case
routing capability and manually route dismissal cases through the special
case disposition/routing function. Only the systems administrator can
access this function. The individual will need to enter the DDS address
(see Part VI. A. 2.) and destination code
“S55.”
If the class member claim is associated with a current claim pending at
the hearing level, and the ALJ: 1) dismisses the request for hearing for
the purpose of DDS readjudication because the current claim and class
member claim have common issues; or 2) issues a decision on the current
claim that is fully favorable with respect to the class member claim, HO
personnel will change the hearing type on the current claim to a
“reopening.” For any other ALJ action on the current claim,
the hearing type, as a new request for hearing, will remain unchanged.
However, in all situations, to identify class member cases in HOTS, HO
personnel will code “BO” in the “Class Action”
field. No special identification codes will be used in the OHA CCS.
Additionally, HO personnel will code dismissal cases as
“OTDI.” HOTS users will need to bypass the automated case
routing capability and manually route dismissal cases through the special
case disposition/routing function. Only the systems administrator can
access this function. The individual will need to enter the DDS address
(see Part VI. A. 2.) and destination code
“S55.”
VIII. Inquiries
If OHA receives a written or oral inquiry concerning the
Boring case because a claimant either lost the
court case reply form or was never notified, OHA will obtain a signed
statement with respect to the claimant's intent to pursue class
membership. The statement should contain the following:
•
name, Social Security number and claim number (if any);
•
specific request for Boring review;
•
address and telephone number; and
•
name, address and telephone number of representative, if any.
OHA will not delay action on a pending claim to determine the claimant's
status under Boring. Rather, OHA will place a copy
of the statement in the claim file and forward the original to Litigation
Staff at the address in Part V. A. 4.
above.
Hearing office personnel should direct any questions concerning this
instruction to their Regional Office. Regional Office personnel should
contact the Division of Field Practices and Procedures in the Office of
the Chief Administrative Law Judge at (703) 305-0022.
Attachment 1. Stipulation and Order Entered by the Court on August 17, 1992;
Finally Approved by the Court on October 5, 1992, Following a Public
Hearing.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
WEST VIRGINIA
CHARLESTON
LOWILLA BORING, FAIRY FOSTER
and PHYLLIS D. BONON,
Individually and on behalf of
all others similarly
situated,
Plaintiffs,
v. Civil
Action No. 2:91-0429
LOUIS W. SULLIVAN, M.D., Secretary
of Health and Human Services;
JANE JOHNSTONE, in her official
capacity as the Director of the
West Virginia Disability
and Determination Section; and John
PANZA, in his
official capacity
as the Director of the West
Virginia
Division of Rehabilitation of Service,
Defendants.
STIPULATION AND ORDER
Scope of the Class
1.
Individuals who shall be entitled to seek relief under this Stipulation
and Order shall include, subject to the exclusions provided in Paragraph 2
and the requirements of Paragraph 7, the named Plaintiffs and any other
individual:
(a) who had a claim for: (i) disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C.
§§ 401-433 (1991 and Supp. 1992); (ii) a claim for supplemental
security income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1382-1383d (1992); or (iii) a
concurrent DIB and SSI benefits claim, denied at step 4 or 5 of the
sequential evaluation process,
20 C.F.R. §§
404.1520(e)-(f),416.920(e)-(f) (1991), at the initial or
reconsideration level of administrative review,
20 C.F.R. §§
404.900(a) (l)-(Z), 404.902-.906,416.1400(a)(l)-(2),
416.1402-.1406(1991), by the Clarksburg area offices of the West Virginia
Disability Determination Services (“DDS”) during the period
January 1, 1986, through June 5, 1990; and
(b) whose claims file contains a residual functional capacity
(“RFC”) assessment form which bears the signature of either
Hugh M. Brown, M.D., or J. Keith Pickens, H.D., of the Clarksburg area
office of the DDS.
2.
The class shall not include any individual who:
(a) had his or her RFC for the same period covered by the claim described
in Paragraph 1 assessed by a DDS medical consultant other than Hugh M.
Brown, M.D., or J. Keith Pickens, M.D., subsequent to the RFC assessment
made by Dr. Brown or Dr. Pickens; or
(b) has in his; or her claims file an RFC assessment form prepared at the
initial level of administrative review by Dr. Pickens which has the symbol
“R” or “r” next to his signature on the RFC
assessment form and which was not reviewed at the reconsideration level of
review; or
(c) has in his or her claims file an RFC assessment form prepared at the
initial level of administrative review by Dr. Pickens which has the symbol
“R” or “r” next to his signature on the RFC
assessment form and which was reviewed at the reconsideration level of
review by a medical consultant other than Dr. Brown; or
(d) has in his or her claims file a RFC assessment form prepared at the
reconsideration level of administrative review by Dr. Pickens which has
the symbol “R” or “r” next to his signature on
the RFC assessment form; or (e) has in his or her claims file a RFC
assessment form executed during the period January 1, 1986, to October 1,
1989, on which the handwriting indicates that Dr. Brown or Dr. Pickens, as
the case may be, personally reviewed the evidence and assessed RFC;
or
(f) has in his or her claims file a white abstract form executed during
the period October 1, 1989, to June 5, 1990, which indicates that Dr.
Brown or Dr. Pickens, as the case may be, personally reviewed the evidence
and assessed RFC; or
(g) received an administrative denial (other than a dismissal) from an
Administrative Law Judge on the claim described in Paragraph 1, which
became final because the individual did not seek Appeals Council review,
or became final on Appeals Council denial of review of the decision of the
Administrative Law Judge, or became final on Appeals Council's issuance of
its own decision on review of the decision of the Administrative Law
Judge, 42 U.S.C. §§ 405 (b) (1) or 1383 (c) (1) (A);
20 C.F.R. §§
404.953,
404.979, 404.981,
416.1453, 416.1479, 416.1481 (1991); or
(h) filed a complaint in a federal district court pursuant to 42 U.S.C.
§§ 405 (g) or 1383 (c ) (3) based on a final administrative
denial of a claim described in Paragraph 1; or
(i) received a final judgment of a federal district court on the claim
described in Paragraph 1; or
(j) filed an appeal in a federal appellate court on the claim described in
Paragraph 1; or
(k) received a final judgment from a federal appellate court on the claim
described in Paragraph 1; or
(l) received a primary diagnosis designation of meoplastic in Field 16A of
SSA Form 831 on the claim described in Paragraph 1; or
(m) had mental impairments described in the primary and secondary
diagnosis designation in Field 16 of SSA Form 831.
Preservation of Rights
1.
This Stipulation and Order shall not be construed as modifying the rights
of any individual excluded from the class under Paragraph 2 to request
reopening of a decision pursuant to
20 C.F.R. §§
404.988 and
416.1488.
Identification of Potential Class Members
1.
The Social Security Administration (“SSA”) shall, by means of
its data processing systems and to the extent the data exists in those
systems, identify the names, Social Security Numbers and last known
addresses of potential class members who satisfy the criteria of Paragraph
1(a).
Notices to Potential Class Members
1.
SSA shall promulgate instructions to all personnel charged with
implementing this stipulation and order with responding to inquires
concerning this Stipulation and Order. SSA shall provide class counsel
with a copy of these instructions prior to distributing the instructions
to SSA and DDS personnel.
2.
After issuing the instructions described in Paragraph 5, SSA shall mail
notices to potential class member identified in accordance with paragraph
4 to the addresses last shown in SSA records. The notice shall be prepared
by SSA in consultation with class counsel. The notice shall be mailed
within 240 days of the entry of this Stipulation and Order. The notice
shall inform the potential class member that she or he may be entitled to
have her or his DIB or SSI claim redetermined. SSA shall enclose with the
notice a request for review form and a postage-paid, pre-addressed
envelope.
3.
Potential class members who wish to seek relief under this Stipulation and
Order shall request a redetermination of their claims by mailing the
request for review form, properly addressed and postage prepaid within
sixty (60) days of the date on which they receive the notice referred to
in Paragraph 6. The failure of a potential class member to timely request
review in accordance with the preceding sentence shall result in his or
her exclusion from the class. SSA may presume that a potential class
member received the notice five (5) days after mailing, unless the
potential class member establishes that he or she actually received the
notice at a later date, in which case the sixty (60) days to request
redetermination shall be counted from the date of actual receipt. SSA
shall presume that a request for review was mailed five (5) days before it
is received by SSA unless the potential class member establishes that the
request was mailed earlier, in which case the date of actual mailing will
be used in determining whether the request is timely.
Determination of Class Membership
1.
SSA shall decide whether an individual who requests redetermination
qualifies for class membership under the criteria of Paragraph 1, the
exclusions of Paragraph 2 and the requirements of Paragraph 7.
2.
If SSA decides that an individual who requests redetermination under this
Stipulation and Order is not a class member, SSA shall send a notice of
its decision to the individual, the individual's representative of record
in any proceeding described in Paragraph 16, if known, and to the class
counsel. The notice shall be prepared by SSA in consultation with class
counsel. The notice shall be prepared by SSA in consultation with class
counsel. The notice shall specify the reason(s) for SSA's decision to
exclude the individual from the class and shall notify the individual of
his or her right to contest the decision. The notice shall also contain
the name and address of class counsel and shall inform the individual that
she or he may obtain assistance from class counsel if she or he wishes to
contest the denial of class membership.
3.
If an individual disagrees with a class membership decision made under
Paragraph 8, he or she shall, within thirty (30) days of receipt of the
notice described in Paragraph 9, notify the Chief Counsel, Office of the
General Counsel (OGC), Department of Health and Human Services, 3535
Market Street, Philadelphia, Pennsylvania 19104, in writing of the
disagreement and specify the reasons for the disagreement. SSA, through
OGC, shall respond to the notification of disagreement within thirty (30)
days of receipt of OGC in Philadelphia.
4.
If an individual fails to contest a class membership decision in
accordance with Paragraph 10, the decision shall take immediate effect and
shall not be subject to further review.
5.
Class counsel may request inspection of the date or documents relied upon
by SSA in making the retermination of an individual's class membership,
but must do so in writing. To protect the privileged information contained
in the claims file, class counsel may not use or disclose any information
obtained from the claims file except for the purpose of pursuing the
individual's claim pursuant to this Stipulation and Order or as otherwise
authorized by the claimant. Class counsel and SSA shall arrange for a
mutually agreeable time and place for inspection of the data, documents
and claims file.
6.
OGC and class counsel shall negotiate in good faith to resolve any
disputes concerning an individual's class membership. If after
negotiation, counsel cannot resolve the question of an individual's class
membership, OGC will send to class counsel and the putative class member a
written confirmation of denial of class membership. Subject to the
provisions of Paragraph 10, class counsel may, by duly noticed motion,
submit the unresolved matter to this court for resolution. Such motion
must be filed not later than sixty (60) days after class counsel's receipt
of the written confirmation sent by OGC that the dispute over class
membership cannot be resolved. The procedure outlined in this paragraph 13
shall constitute the sole method of challenging the denial of class
membership.
Procedures for Redetermination
1.
All claims entitled to redetermination under the terms of this Stipulation
and Order shall be redetermined at the reconsideration level of
administrative review, 20
C.F.R. §§ 404.907,
416.1407
(1991).
2.
If a class member has more than one claim subject to redetermination
pursuant to this Stipulation and Order, SSA may, at its option,
consolidate all such claims and redetermine them at the reconsideration
level of review, 20
C.F.R. §§ 404.907,
416.1407
(1991).
3.
If a class member has another active DIB or SSA disability claim
simultaneously pending before SSA at any administrative level, SSA may, at
its option, consolidate that claim (S) with the claim being redertminted
under this Stipulation and Order. The consolidated claims will be
redertmined at the reconsideration level of administrative review,
20 C.F.R. §§
404.907,
416.1407
(1991).
Standard for Redetermination
1.
In redetermining claims pursuant to this stipulation and Order, SSA shall
apply the standards applicable to determining RFC set forth in Titles II
and XVI of the Social Security Act, 20 C.F.R. Parts 404 and 416, and the
Programs Operations Manual System in affect at the time the redetmination
is made.
2.
Redetermination of claims of class members pursuant to this Stipulation
and Order shall be based on the record that was before Hugh M. Brown, M.D.
or J. Keith Pickens, M.D., at the time those physicians signed the RFC
assessment forms. The redetermination shall consist of an assessment of a
class member's RFC by a medical consultant other than Hugh M. Brown, M.D.,
or J. Keith Pickens, M.D. After an RFC is assessed, the Defendants shall
determine whether that class member is disabled.
3.
Class members shall retain all rights to seek further administrative and
judicial review of determinations made on redetermination in accordance
with 42 U.S.C. § 405 (g) and 20 C.F.R. Part 404, Subpart J and Part
416, Subpart N. In any administrative appeal of the redetermination, the
submission of new evidence with respect to a predetermined claim and the
time period covered by that claim shall be governed by current SSA
regulations.
Reports to Class Counsel
1.
SSA will maintain, by a data 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 determined not to be members of the
class;
d. the number of individuals who receive favorable DDS determinations;
and
e. the number of individuals who receive unfavorable DDS
determinations.
2.
SSA will provide reports containing the information maintained in the
tracking system to the member of class counsel designated by them to
receive reports at intervals as agreed to by the parties. Once SSA has
substantially completed the redeterminations required by this Stipulation
and Order and placed the information identified in Paragraph 20 into the
tracking system, SSA shall so advise class counsel by providing them a
final report.
Future Conduct
1.
Defendants agree to follow SSA's regulations on assessment of RFC.
Precedent
1.
Nothing in this Stipulation and Order confers on any individual class
member a right to an administrative determination that the person is or
was entitled to receive DIB or SSI benefits and, therefore, any class
member aggrieved by an administrative decision must seek redress under
applicable statutes, rules and regulations, and may not seek review of the
individual decision in his or her case except as provided under the
provisions of this Stipulation and Order. The provision does not affect
the rights is any, of a class member to seek enforcement of the provisions
of this Stipulation and Order.
Release of Claims and Liability
1.
This Stipulation and Order resolves all claims by the named Plaintiffs and
the Plaintiff class against the Defendants, their agents or employees
based on alleged acts or omissions in evaluating DIB or SSI claims.
Accordingly, in consideration for the implementation of the provision of
the Stipulation and Order, the parties, on behalf of themselves and any
entity or individual on whose behalf they act or have acted, agree to
dismiss this action with prejudice and to fully, finally and forever
release, discharge and waive any and all claims, demands, liabilities,
actions, rights of action and causes of action of any kind or nature
whatsoever based on these alleged acts or omissions The parties further
expressly understand and agree that this settlement is a compromise of a
disputed claim, that none of the Defendants, their agents or employees
admit liability, and the Defendants' willingness to compromise is not and
admission that the disability and assessment practices in the State of
West Virginia were erroneous.
2.
The terms of the numbered paragraphs of this Stipulation and Order
constitute the entire agreement of the parties, and no statement,
representation, agreement or understanding, oral or written which is not
contained herein, shall have any force or effect, nor does the Stipulation
and Order reflect any agreed upon purpose other then the desire of the
parties to reach a full settlement.
Final Judgment and Retention of Jurisdiction
1.
This Stipulation and Order shall constitute the final judgment with
respect to all matters covered by its terms; provided, however, that the
Court shall retain jurisdiction to enforce the provisions of this
Stipulation and Order, to resolve disputes arising during the
implementation of this Stipulation and Order, and to consider petitions
for attorney fees and costs. If a party requests the Court to resolve a
dispute arising under this Stipulation and Order, any time limitation set
forth herein which is affected by the dispute shall be suspended until the
dispute is resolved.
2.
The claims of all individuals who were included in the class certified by
the Court in its order of January 24, 1992, but who are not entitled to
redetermination pursuant to Paragraphs 1 or 2, shall be dismissed with
prejudice.
3.
Class counsel, by signing below, warrant and guarantee that they are sole
counsel to the Plaintiff class and that they are duly authorized to
stipulate to the settlement of issues in this action on behalf of Lowilla
Boring, Phyllis Bohon and Fairy Foster, and all class member those named
Plaintiffs represent. Counsel for the Defendants, by signing below,
represent that they are authorized to stipulate to the settlement of
issues in this action.
4.
This Stipulation and Order shall be effective only upon entry of the order
by the Court.
Attorneys Fees and Costs
1.
Plaintiffs reserve the right to petition the Court for an award of
attorney's fees and costs consistent with applicable law and to supplement
such petition after the final report referred to in Paragraph 21 for
services rendered to the class in implementing this Stipulation and
Order.
|
|
|
|
For the Plaintiffs:
|
LOWILLA BORIN, FAIRY FOSTER
And Phyllis D. Bohon, individually and
on behalf of all others similarly situated,
By Counsel
Michael Miskowiec
West Virginia Legal Services Plan
|
|
For the Defendants:
|
LOUIS W. SULLIVAN, M.D.,
Secretary of Health and
Human Services,
By Counsel
_______________________________
MICHAEL W. CAREY
United States Attorney
By: ____________________________
GARY L. CALL
Assistant United States Attorney |
|
|
JANE JOHNSTONE, in her official
capacity as the Director of the
West Virginia Deisability Determination
Section; and JOHN PANZA, in his
official capacity as the Director of the
West Virginia Division of the
Rehabilitation Service
By Counsel
MARIO J. PALUMBO
Attorney General
State of West Virginia
By: ______________________________
KATHERINE A. SCHULTZ
Deputy Attorney General
|
|
It is so ordered this 17th day of August, 1992.
The Cleak is directed to send certified copies of this Stipulation and Order to all counsel of record.
|
|
|
_______________________________
CHARLES H HADEN II
Chief Untied States District Judge
|
SAMPLE
BORING COURT CASE FLAG/ALERT
TITLE: CATEGORY:
REVIEW PSC MFT DOC ALERT
DATE OFFICE
BOAN OR PAN NAME
SSN OR HUN RESP DTE TOE
FOLDER LOCATION INFORMATION
TITLE CFL CFL DATE ACN PAYEE
ADDRESS
II
XVI
SHIP TO ADDRESS
DIVISION OF REHABILITATION SERVICES
DISABILITY DETERMINATION SECTION
SUITE 200
1206 QUARRIER STREET
CHARLESTON, WV 25301
IF CLAIM IS PENDING IN OHA,
THEN SHIP FOLDER
TO OHA
Attachment 3. Route Slip or Case Flag For Screening
|
BORING Class Action Case
|
|
|
|
|
|
|
|
SCREENING NECESSARY
|
|
|
|
|
|
|
|
Claimant's Name: |
__________________________________ |
|
|
|
|
|
|
|
SSN : |
__________________________________ |
|
|
|
|
|
|
|
This claimant may be a Boring class member. The attached folder location information indicates that a claim file is located 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 5-4-37 for additional information and instructions. |
|
|
TO: __________________________________________
______________________________________________
______________________________________________
______________________________________________
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attachment 4. Boring Screening Sheet and Screening Sheet Instructions
|
ROUTING AND TRANSMITTAL SLIP |
DATE: |
|
TO: |
INITIALS |
DATE |
|
1. |
|
|
|
2. |
|
|
|
3. |
|
|
|
4. |
|
|
|
5. |
|
|
|
6. |
|
|
|
7. |
|
|
|
XX |
ACTION |
|
FILE |
|
NOTE AND RETURN |
|
|
APPROVAL |
|
FOR CLEARANCE |
|
PER CONVERSATION |
|
|
AS REQUESTED |
|
FOR CORRECTION |
|
PREPARE REPLY |
|
|
CIRCULATE |
|
FOR YOUR INFORMATION |
|
SEE ME |
|
|
COMMENT |
|
INVESTIGATE |
|
SIGNATURE |
|
|
COORDINATION |
|
JUSTIFY |
|
|
|
|
|
|
|
|
|
|
REMARKS |
|
|
BORING
CASE |
|
|
|
|
Claimant: ___________________________ |
|
|
|
|
|
SSN: ________________________________ |
|
|
|
|
|
OHA received the attached alert [and prior claim file(s)] for screening and no longer has a claim file. Our records (see attached print-out) show that you now have possession of the file. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the file in your possession. After associating the alert and files, if any, with the file in your possession, please forward all to the West Virginia Disability Determination Section for screening and possible redetermination. |
|
|
|
|
|
|
|
Attachment |
|
|
|
|
DO NOT use this form as a RECORD of approvals, concurrences, disposals, clearances, and similar actions. |
|
FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
|
PHONE NUMBER |
|
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206
|
|
|
|
|
Attachment 7. Boring Case Flag (DDS Readjudication Needed)
|
BORING Class Action Case
|
|
|
|
|
|
|
|
READJUDICATION NECESSARY
|
|
|
|
|
|
|
|
Claimant's Name: |
__________________________________ |
|
|
|
|
|
|
|
SSN : |
__________________________________ |
|
|
|
|
|
|
|
This claimant is a Boring class member. The attached Boring claim file was forwarded to OHA for screening because [a subsequent (current) claim] OR [a civil action] is pending. OHA has determined that the class member claim and current claim do not share a common issue. |
|
|
|
|
Accordingly, we are forwarding the attached alert and class member claim file(s) to your location for any necessary Boring readjudication action. We are sending the alert and class member file(s) to: |
|
|
|
|
|
Division of Rehabilitation
Services
Disability Determination Section
Suite
200, 1206 Quarrier St.
Charleston, WV 25301
|
|
(Destination code S55) |
Attachment 8. Text for Non-class Member Notice
SI USTED HABLA ESPANOL (IF YOU SPEAK SPANISH)
Si usted habla espanol y no entiende esta carte, favor de llevarla a la oficina de Seguro Social para que se la expliquen.
We are writing to tell you that we received your request to review your
earlier claim for disability benefits under the
Boring court case. We have looked at your claim and
have decided that you are not a class member. This means that we will not
review our earlier decision.
A copy of this letter is being sent to your representative of record, if
any, and the attorney for the Boring class. You may
contact the class attorney in this case to obtain his assistance, if you
disagree with our decision. He will answer your questions about class
membership without charge. The name, address and telephone numbers of the
class attorney are:
Michael G.
Miskowiec
Suite 404A, 922 Quarrier Street
Charleston,
WV 25301
Attn:
Boring Court Case
1-800-573-3946
or
1-304-342-3826
|
|
|
|
|
REASON FOR UNFAVORABLE DECISION
You are not a Boring class member because:
|
_____ 1. |
The Clarksburg West Virginia Disability Determination Section did not deny your claim between January 1, 1986, and June 5, 1990, inclusive. |
|
_____ 2. |
The Clarksburg West Virginia Disability Determination Section properly reviewed your claim between January 1, 1986, and June 5, 1990, inclusive. |
|
_____ 3. |
Your claim was properly reviewed on appeal. |
|
_____ 4. |
Your claim was properly reviewed in connection with a subsequent claim that covered the period at issue in the prior (or potential class member) claim. |
|
|
|
WE ARE NOT DECIDING WHETHER 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 Boring class member. If you do not agree with
this decision, you have 30 days after receiving this notice to advise the
Commissioner's Chief Counsel for the Philadelphia Region (listed below)
that you want to protest this decision and explain your reason(s)
why:
Chief Counsel
Office
of the General Counsel
Room 9100, Gateway Building
3535
Market Street
Philadelphia, PA 19104
Attn:
Boring Court Case
|
IF YOU ARE DISABLED NOW
If you are not currently receiving disability payments and 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 the class attorney or your
local Social Security office. The Social Security address and telephone
number are printed at the top of this letter. If you call or visit a
Social Security office, please have this letter with you. It will help us
answer your questions.
cc: Michael G. Miskowiec
Attachment 9. Route Slip for Forwarding Non-Class Member Case to FO
|
ROUTING AND TRANSMITTAL SLIP |
DATE: |
|
TO: |
INITIALS |
DATE |
|
1. SSA District Office |
|
|
|
2. 1206 Quarrier Street |
|
|
|
3. Charleston, WV 25301 |
|
|
|
4. |
|
|
|
5. |
|
|
|
6. |
|
|
|
7. |
|
|
|
XX |
ACTION |
|
FILE |
|
NOTE AND RETURN |
|
|
APPROVAL |
|
FOR CLEARANCE |
|
PER CONVERSATION |
|
|
AS REQUESTED |
|
FOR CORRECTION |
|
PREPARE REPLY |
|
|
CIRCULATE |
|
FOR YOUR INFORMATION |
|
SEE ME |
|
|
COMMENT |
|
INVESTIGATE |
|
SIGNATURE |
|
|
COORDINATION |
|
JUSTIFY |
|
|
|
|
|
|
|
|
|
|
REMARKS |
|
|
BORING CASE
|
|
|
|
|
Claimant: ___________________________ |
|
|
|
|
|
SSN: ________________________________ |
|
|
|
|
|
We have determined that this claimant is not a Boring class member. (See screening sheet and copy of non-class membership notice in the attached claim file(s).) As requested, we are forwarding the claim file(s) for inspection by [the claimant.] OR [the claimant's representative.] OR [class counsel.] |
|
|
|
|
|
|
|
Attachment |
|
|
|
|
DO NOT use this form as a RECORD of approvals, concurrences, disposals, |
|
clearances, and similar actions. |
|
FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
|
PHONE NUMBER |
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020
Prescribed by GSA
FPMR (41 CFR) 101-11.206
Attachment 10. Text for Notice of Revised Class Membership
SI USTED HABLA ESPANOL (IF YOU SPEAK SPANISH)
Si usted habla espanol y no entiende esta carta, favor de llevarla a la oficina de Seguro Social para que se la expliquen.
In an earlier notice that we sent you, we said that you were not a member
of the Boring class action. After reviewing all of
the facts, we have decided that you are a class member. Therefore, we will
review your claim, using the procedures agreed to by the parties and
approved by the court under the Boring, et al. v.
Sullivan settlement agreement.
We have many requests for review and it may take several months before we
look at your claim file. When we start the review, we may contact you for
additional information if it is required.
If you think you are disabled now, you should fill out a new application
at any Social Security office.
If you have any questions, you should call, write or visit any Social
Security office. If you have someone helping you with your claim, you
should contact him or her. You or your representative may also contact the
attorney in this case:
Michael G.
Miskowiec
Suite 404A, 922 Quarrier Street
Charleston,
WV 25301
Attn: Boring Court
Case
1-800-573-3946
or
1-304-342-3826
|
If you call or visit a Social Security office, please have this letter
with you. It will help us answer your questions.
cc: Michael G. Miskowiec
Attachment 11. Boring Case Flag (DDS Readjudication Needed -- Retention Period
Note Expired)
|
BORING Class Action Case
|
|
|
|
|
|
|
|
READJUDICATION NECESSARY
|
|
|
|
|
|
|
|
Claimant's Name: |
__________________________________ |
|
|
|
|
|
|
|
SSN : |
__________________________________ |
|
|
|
|
|
|
|
This claimant is a Boring class member. Accordingly, upon expiration of the OHA retention period, forward this case for readjudication to: |
|
|
|
|
|
Division
of Rehabilitation Services
Disability Determination
Section
Suite
200, 1206 Quarrier St.
Charleston, WV 25301
|
|
(Destination code S55) |
Attachment 12. Text for Appeals Council Remand to DDS Class Member Claim
Associated with Current Claim Pending Appeals Council Review
On ____________, the claimant filed a request for review by the Appeals
Council on the issues raised by
((his/her) application dated
____________.) OR
(the Administrative Law Judge's dismissal action.)
The claimant has also been identified as a member of the
Boring class action, and is entitled to have the
final administrative denial of
(his/her) application(s) dated
____________ readjudicated by the West Virginia Disability Determination
Section under the terms of the October 5, 1992 stipulation and order for
settlement. The undersigned has determined that the current and class
member claims have issues in common.
(Discuss the Appeals Council's reasons for remand of the current claim.)
Accordingly, the Appeals Council grants the claimant's request for review
and vacates the Administrative Law Judge's
(decision/dismissal action). Because
the claimant is also entitled to relief at the reconsideration level under
the Boring class action, the Council remands this
case to the West Virginia Disability Determination Section for reopening
of the issues raised by the
(dates of applications)
applications. The Disability Determination Section will issue one
determination covering (both or all)
claims. If the Disability Determination Section does not issue a fully
favorable determination, it will notify the claimant of the right to
request a hearing before an Administrative Law Judge.
OR
Accordingly, the Appeals Council grants the claimant's request for review,
vacates the Administrative Law Judge's
(decision/dismissal action) and
remands this case to the West Virginia Disability Determination Section.
The Disability Determination Section will redetermine, through the date of
the Administrative Law Judge's decision or, if the Administrative Law
Judge issued a dismissal, through the date of reconsideration, the issues
raised by the
(dates of applications)
applications. The Disability Determination Section will issue one
determination covering (both or all)
claims. If the Disability Determination Section does not issue a fully
favorable determination, it will notify the claimant of the right to
request a hearing before an Administrative Law Judge.
Attachment 13. Text for Appeals Council Remand to DDS Class Member Claim Pending
Appeals Council Review
On ____________, the claimant filed a request for review by the Appeals
Council on the issues raised by
((his/her) application dated
____________.) OR
(the Administrative Law Judge's dismissal action.)
The claimant has also been identified as a member of the
Boring class action and is entitled to have
(his/her) claim readjudicated by the
West Virginia Disability Determination Section under the terms of the
October 5, 1992 stipulation and order for settlement.
(Discuss the Appeals Council's reasons for remand.)
Accordingly, the Appeals Council grants the claimant's request for review
and vacates the Administrative Law Judge's
(decision/dismissal action). Because
the claimant is also entitled to relief at the reconsideration level under
the Boring class action, the Council remands this
case to the West Virginia Disability Determination Section for reopening
of the issues raised by the ____________ application. If the Disability
Determination Section does not issue a fully favorable determination, it
will notify the claimant of the right to request a hearing before an
Administrative Law Judge.
Accordingly, the Appeals Council grants the claimant's request for review,
vacates the Administrative Law Judge's
(decision/dismissal action) and
remands this case to the West Virginia Disability Determination Section.
The Disability Determination Section will redetermine, through the date of
the Administrative Law Judge's decision or, if the Administrative Law
Judge dismissed, through the date of reconsideration, the issues raised by
the ____________ application. If the Disability Determination Section does
not issue a fully favorable determination, it will notify the claimant of
the right to request a hearing before an Administrative Law Judge.