ISSUED: April 20, 1994
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
parties' October 22, 1992 Stipulation and Order, approved and filed by the
United States District Court for the Southern District of New York on
April 30, 1993, in the Hill 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
Hill class members who now reside outside of New
York must have their cases processed in accordance with the requirements
of the stipulation and order.
II. Background
On June 19, 1987, plaintiff filed a complaint challenging the Secretary's
policy of evaluating the title II disability claims of widows, widowers
and surviving divorced spouses without considering the combined effects of
multiple impairments when making an equivalency finding.¹ On October
22, 1987, plaintiff filed an amended complaint seeking class status and
relief. On April 12, 1989, the district court certified the class (see
Part IV. below, for class
definition).
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.
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 April 30, 1993, the
district court approved and filed the parties' October 22, 1992
Stipulation and Order setting forth the terms for the implementation of
relief to class members (Attachment 1).
¹ Hereinafter (except for use in
Part IV. below), the term
“widows” is used only for convenience; it is intended to
refer to all persons treated similarly under title II, i.e., widows,
widowers and surviving divorced spouses.
III. Guiding Principles
Under Hill, the Secretary will reopen and
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 Northeastern Program Service Center (NEPSC) will screen
folders for class membership, unless there is a current claim pending at
the Office of Hearings and Appeals (OHA). Regardless of the state of the
claimant's current residence, the New York Disability Determination
Service (NYDDS) 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 review is necessary; i.e., cessation or
terminal illness (TERI) cases.
OHA will screen cases and perform readjudications under limited
circumstances (see Part V. B.
below).
Cases readjudicated by the NYDDS 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 (42 U.S.C. § 423(d)(2) (1992)) and
SSR 91-3p for evaluating
disability in Hill 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 5-3-15,
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.
² The final rules implementing § 5103 of OBRA 90 were published
in the Federal Register on July 8, 1992,
at 57 Fed. Reg. 30116. (See
20 CFR §§
404.1505(a) and
404.1511(a).)
IV. Definition of Class
For purposes of implementing the terms of the stipulation and order, the
Hill class is divided into two subclasses. The
first consists of all New York 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
(issued by either the NYDDS or an OHA office that adjudicated claims of
New York residents), based on medical reasons, between May 12, 1983, and
August 22, 1987, 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 June 3, 1991, inclusive.
The second subclass consists of all New York 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
(issued by either the NYDDS or an OHA office that adjudicated claims of
New York residents), based on medical reasons, between August 23, 1987,
and June 3, 1991, inclusive.
A person is not a class member eligible for class relief if
(1) 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 entire timeframe
at issue in all the potential Hill claims;
or
(2) the individual's only potential Hill claim was
pending administratively on or after June 4, 1991; or
(3) the individual received a favorable determination or decision on or
after June 4, 1991, on a subsequent claim that raised the issue of
disability and covered the entire timeframe at issue in all the potential
Hill claims, 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 Hill
claims (this exception applies only if the individual has received all
benefits to which he or she could be entitled based on the potential class
member claims); or
(4) the individual received an unfavorable determination or decision after
June 3, 1991, on a subsequent claim that raised the issue of disability
and covered the entire timeframe at issue in all the potential
Hill claims, 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 Hill
claims.
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 Hill stipulation and order. SSA will presume
the individual's receipt of the notice five days after mailing, unless the
individual establishes that receipt actually occurred later. Notices
returned as undeliverable will be mailed a second time if SSA obtains an
updated address.
The Office of Disability and International Operations (ODIO) will retrieve
the disability 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. If good cause is established, the field office will
forward the claim for screening.
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 Hill
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 NEPSC for retrieval of any additional claim files and
screening (see Part III.
above).
3.
Alerts Sent to OHA
If ODIO or NEPSC determines that either a potential class member claim or
a subsequent claim is pending appeal 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 NEPSC will send all alerts potentially within OHA jurisdiction and
related prior claim files to the Office of Civil Actions (OCA), Division
I, at the following address:
Office of Hearings and Appeals
Office of Civil Actions, Division
I
One Skyline Tower, Suite 601
5107 Leesburg
Pike
Falls Church, VA 22041-3200
ATTN: Hill Screening Unit
4.
Folder Reconstruction
In general, ODIO or NEPSC will coordinate any necessary reconstruction of
prior claim files. Paragraph 15 of the Stipulation and Order provides that
SSA shall make all reasonable efforts to obtain claim files, and shall
reconstruct any missing files to the best of its ability.
5.
Class Membership Denials
The NEPSC will hold all non-class member claim files and make them
available for inspection by class counsel upon timely request. After
review of the files, class counsel will contact the Office of the General
Counsel (OGC) directly to resolve any remaining class membership
disputes.
1.
Pre-Screening Actions
a.
Current Claim in OHA
As provided in Part V. A. 3. above, if
there is a current claim pending at OHA, OCA will receive the alert and
related Hill claim file(s). OCA will determine
which OHA component has the current claim and forward for screening as
follows:
•
If the current claim is in a hearing office (HO), OCA will forward the
alert and the prior claim file(s) to the HO for screening using Attachment
3.
•
If the current claim is before the Appeals Council, OCA will forward the
alert and prior claim file(s) to the appropriate Office of Appellate
Operations (OAO) branch for screening using Attachment 3.
•
If the current claim file is in an OAO branch minidocket or Docket and
Files Branch (DFB), OCA will request the file, associate it with the alert
and prior claim file(s) and perform the screening.
If OCA is unable to locate the current claim file within OHA, OCA will
broaden its claim file search and arrange for folder retrieval, alert
transfer or folder reconstruction, as necessary.
OCA, Division I is responsible for controlling and reconciling the class
alert workload of potential class member claims shipped to OHA for
association with a current claim. Because this is a relatively small
class, the OHA alert workload will be minimal and a manual accounting
should suffice. OCA will maintain a record of all alert packages
transferred to other locations (to include the pertinent information about
destinations), and a copy of all screening sheets. This information will
be necessary to do the final class membership reconciliation.
b.
Current Claim Pending in Court
If OCA receives an alert for a claimant who has a civil action pending,
either on the alerted case or on a subsequent or prior claim, OCA,
Division I will associate the alert with the claim file(s) (or court
transcript) and screen for Hill class membership.
See Part V. B. 2. b. below for special
screening instructions when a civil action is involved.
2.
Screening
a.
General Instructions
The screening component will associate the alert, if any, and any prior
claim file(s) with the claim file(s) in its possession and then complete a
screening sheet (see Attachment 4) as follows:
If the claim pending at OHA is the only 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 Hill timeframe;
Although not the “final decision of the Secretary,” an
Appeals Council denial of a request for review is the last action of the
Secretary, and the date of such a denial controls for class membership
screening purposes.
•
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
•
Forward 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: Hill Coordinator
The Division of Litigation Analysis and Implementation will forward copies
of the screening sheet to OCA, Division I and the Litigation Staff at SSA
Headquarters.
If the HO or OAO branch receives an alert only or an alert associated with
a prior claim file(s) for screening, and no longer has the current claim
file, it will return the alert and the prior claim file(s) to OCA,
Division I (see address in Part V. A. 3.
above) and advise OCA of what action was taken on the current claim. OCA
will determine the claim file location and forward the alert and any
accompanying prior claim file(s) to that location (see Attachment
5).
Final determinations or decisions made after June 3, 1991, on a subsequent
claim filed by a potential Hill class member may
adjudicate the same timeframe covered by the Hill
claim. Instead of applying the doctrine of administrative res
judicata to the Hill claim, these
claims are to be denied class membership.
b.
Special OCA Screening Instructions if a Civil Action Is Involved
As noted in Part V. B. 1. b. above, OCA
will screen for Hill class membership when a civil
action is involved. OCA's class membership determination will dictate the
appropriate post-screening action.
•
If the claim pending in court is a Hill class
member claim, OCA will immediately notify OGC so that OGC can notify the
claimant of the option to have the case remanded for
readjudication.
•
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 Hill issues, the
claimant is not a Hill class member. OCA staff 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 Hill issues, e.g., there is a prior
(inactive) claim and the current claim did not adjudicate the entire
period covered by the Hill claim, OCA staff will
forward the Hill claim to the NYDDS for separate
review. OCA will modify the case flag in Attachment 12 to indicate that
the pending court case does not resolve all Hill
issues and that the Hill class member claim is
being forwarded for separate processing.
•
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, OCA 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:
The Legal Aid Society
Hill
Lawsuit Unit
11 Park Place, Room 1805
New York, New York
10007
•
retain the claim file(s) for 140 days pending possible class membership
dispute;
•
if class counsel makes a timely review request, send the non-class member
claim file to the NEPSC using the pre-addressed route slip in Attachment
7; and
•
if after 140 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
may do so only through class counsel, as explained in the notice
(Attachment 6).
b.
Cases Determined to be Class Members
If the screening component determines that the individual is a class
member, it will proceed with processing and adjudication in accordance
with the instructions in Part VI.
below.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
The NYDDS will usually conduct the first Hill
review. An exception may apply where the class member claim is a cessation
or TERI case. An exception will also apply 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 must
process and adjudicate requests for hearing on Hill
DDS review cases in the same manner as for any other case.
B. Payment Reinstatement for Cessation Cases
If the Hill claim involves a cessation, the class
member may elect to have disability benefits reinstated pending
readjudication. In general, the servicing Social Security field office has
responsibility for:
1.
contacting the class member, who may have reinstatement rights;
2.
completing the election forms;
3.
verifying non-disability factors; and
4.
making a good faith effort to quickly reinstate benefits after retrieval
or reconstruction of the Hill claim file.
For OHA jurisdiction cases, the screening component will
(1) identify Hill claims involving
cessations;
(2) immediately notify the servicing field offices by telephone of the
pending Hill claims that may be eligible for
benefit reinstatement and 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 Hill
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 Hill class member
cases according to all other current practices and procedures including
coding, scheduling, developing evidence, routing, etc. Consistent with OHA
practice, ¶ 15 of the Stipulation and Order provides that SSA shall
develop the record in accordance with
20 CFR §§
404.1512 -
404.1528.
Paragraph 15 also provides that where there are gaps in the record due to
missing or unavailable evidence, SSA will generally consider the existing
evidence of record in the light most favorable to a claimant.
1.
Type of Review and Period to be Considered
Pursuant to the Hill stipulation and order,
regardless of whether the claim under review is an initial claim or
cessation case, the type of review to be conducted is a reopening. The
claim of each class member must be fully reopened to determine whether the
claimant was disabled at any time from the onset date alleged in the
Hill claim through the present (or through the date
the claimant last met the prescribed period requirements if
earlier).
Pursuant to ¶ 14 of the Hill stipulation and
order, adjudicators will not consider disability for any period in which a
class member has already received disabled widows benefits. Pursuant to
¶ 15, class members may submit new evidence. Paragraph 15 further
provides that, if there are gaps in the record due to missing or
unavailable evidence, SSA will generally consider the evidence of record
in the light most favorable to a claimant.
In conducting Hill readjudications, adjudicators
must consider the issue of disability from the class member's earliest
potential entitlement or the date of alleged onset, whichever is earlier.
This is required in the situation where a Hill
claim has been readjudicated under the Stieberger
and/or State of New York procedures, as long as
that readjudication did not cover the entire time period covered by the
Hill claim. In this situation, the remaining time
period on the Hill claim must be
readjudicated.
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 5-3-15, 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.
4.
Class Member Has a Pending TERI Claim
If a class member has a pending TERI claim, implementation of the
Hill order must not delay the processing of the
pending TERI claim, and must not interfere with the operation of TERI
procedures on such claim.
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, OCA will associate the alert with the file and
screen for class membership. (See
Part V. B. 3., above, for non-class
member processing instructions.)
•
If the 120-day retention period for holding a claim file after an ALJ
decision or Appeals Council action has expired, OCA will attach a
Hill class member flag (see Attachment 8) to the
outside of the file and forward the claim file(s) to the NYDDS for review
of the Hill class member claim.
•
If less than 120 days have elapsed, OCA will attach a
Hill class member flag (see Attachment 9) to the
outside of the file to ensure the case is routed to the NYDDS, or other
appropriate DDS, after expiration of the retention period. Pending
expiration of the retention period, OCA will also:
•
return unappealed ALJ decisions and dismissals to DFB, OAO; and
•
return unappealed Appeals Council denials to the appropriate OAO
minidocket.
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 NYDDS 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 Hill
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 Hill 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 Hill case with the appeal on the
current claim.
The ALJ will not consolidate the claims if
•
the current claim and the Hill 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 Hill 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
Hill claim and the current claim. Instead, the ALJ
will dismiss the request for hearing on the current claim without
prejudice and forward both the Hill 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 Hill 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 Hill 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
Hill 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 Hill 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 Hill claim raises an additional
issue(s), unless the ALJ is prepared to issue a fully favorable decision
with respect to the Hill claim; and
•
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the Hill
claim (the ALJ's decision will clearly indicate that the ALJ considered
the Hill claim pursuant to the
Hill 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 Hill 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; and
•
send both the Hill claim and the current claim to
the NYDDS for consolidation and further action.
If the ALJ decides not to consolidate the current claim with the
Hill 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 Hill claim for DDS review using Attachment
12; immediately route it to the NYDDS for adjudication; and retain a copy
of Attachment 12 in the current claim file; and
•
take the necessary action to complete the record and issue a decision on
the current claim.
3.
Current Claim Pending at the Appeals Council
The action the Appeals Council takes on the current claim determines the
disposition of the Hill 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 Hill claim.
a.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim -- No Hill Issue(s) Will
Remain Unresolved.
This will usually arise when the current claim duplicates the
Hill review claim, i.e., the current claim raises
the issue of disability and covers the period adjudicated in the
Hill 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
Hill claim.
b.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim -- Hill Issue(s) Will Remain
Unresolved.
This will usually arise when the current claim does not duplicate the
Hill claim, e.g., the current claim raises the
issue of disability but does not cover the entire period adjudicated in
the Hill claim. For example, the
Hill 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 Hill case flag (Attachment
12; appropriately modified) to the Hill claim,
immediately forward the Hill claim to the NYDDS 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
Hill issues and that the
Hill 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 Hill 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
Hill 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 Hill claim and issue a decision that
adjudicates both applications. The Appeals Council's decision will clearly
indicate that the Appeals Council considered the
Hill claim pursuant to the
Hill stipulation and order.
d.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim
-- Hill 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 Hill 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 NYDDS 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:
"Hill court case review needed -- following
effectuation forward the attached combined folders to the appropriate New
York DDS."
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 Hill
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 Hill 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
Hill class member claim to the NYDDS, 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 Hill
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.” If the conditions described in
Part VI. E. 2. b. above apply, the HO
should dismiss the request for hearing on the current claim, and enter
OTDI in the DSP field.
To identify class member cases in HOTS, HO personnel will code
“HI” 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.
Attachment 1. - Stipulation and Order Dated October 22, 1992; Approved and Filed
by the Court on April 30, 1993
|
UNITED STATES DISTRICT COURT |
|
|
SOUTHERN DISTRICT OF NEW YORK |
[Filed April 30, 1993] |
---------------------------------------------------------------x
|
MARJORIE HILL, individually and on |
|
|
|
behalf of all others similarly |
: |
|
|
situated, |
|
STIPULATION AND ORDER |
|
|
: |
|
Plaintiff,
|
|
|
|
|
: |
87 Civ. 4344 (LBS) |
|
|
|
|
v.
|
: |
|
|
|
|
|
|
LOUIS W. SULLIVAN, M.D., |
: |
|
|
Secretary of Health |
|
|
|
and Human Services, |
: |
|
|
|
|
|
Defendant.
|
|
|
---------------------------------------------------------------x
WHEREAS the court rendered a decision on April 12, 1989 (125 F.R.D. 86
(S.D.N.Y 1989)) certifying a plaintiff class and denying defendant's
motion to dismiss, and
WHEREAS the parties have agreed to resolve all of the outstanding disputes
in this case without further litigation,
THEREFORE, the parties to this action, by their undersigned counsel,
hereby agree to a settlement of plaintiffs' claims in this action in
accordance with the following terms and conditions:
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 New York state residents who:
1.
applied for or were receiving disabled widows', widowers', or surviving
divorced spouses' benefits (“DWB”) ,
2.
were determined between May 11, 1983 and August 23, 1987 to be not
disabled under 42 U.S.C. § 423(d)(2)(B) by either the New York State
Office of Disability Determinations (“ODD”) or an office of
the Office of Hearings and Appeals (“OHA”) of the Social
Security Administration (SSA) which adjudicated claims of New York 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 June
4, 1991, and
b.
all New York State residents who applied for or were receiving DWB, and
who were finally determined on application or continuing disability review
by SSA at any level of administrative review to be not disabled under 42
U.S.C. § 423(d)(2)(B) on or after August 23, 1987 and prior to June
4, 1991, by the ODD or OHA serving New York State. For the purposes of
this subparagraph, “finally” means that the determination was
not appealed or reopened. However, SSA need not readjudicate any DWB
claims which were administratively pending on or after June 4, 1991.
c.
DWB claim(s) shall not be readjudicated pursuant to this stipulation and
order if there was a denial of Title II or Title XVI disability benefits
at step four or step five of the sequential evaluation on any 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 other 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 standard set forth in § 5103 of the Omnibus Budget Reconciliation
Act of 1990, 42 U.S.C. § 423(d), to claims 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 identify, on the basis of data available in
SSA's data processing systems, all individuals who have a DWB claim(s)
potentially entitled to readjudication pursuant to paragraph one (1) of
this stipulation and order. SSA shall identify each such individual by
name, last known address, and the Social Security number
(“SSN”) under which they filed for DWB. Within thirty (30)
days of the date that this identification process is completed, the
Secretary shall provide plaintiffs with a list identifying each such
individual in the above-specified manner. The list shall be in
alphabetical order by last name.
4.
Within 120 days of the date that this stipulation and order is entered by
the court, the Secretary shall provide plaintiffs' counsel with drafts of
all instructions on the implementation of this stipulation and order.
Plaintiffs may submit comments, it any, within twenty-one (21) days of the
receipt of draft instructions. If plaintiffs submit comments and SSA
decides not to revise the instructions, advance copies of final
instructions will be issued to all SSA adjudicators within thirty (30)
days of receipt of plaintiffs' comments. If SSA makes revisions in
response to plaintiffs' comments, SSA shall have sixty (60) days from the
receipt of plaintiffs' comments to issue revised final instructions to SSA
adjudicators. The time limits contained in this paragraph may be extended
by agreement of the parties. SSA shall provide copies of all advance final
instructions to plaintiffs' counsel at the time they are issued.
5.
Within thirty (30) days after the issuance of advance final instructions
to adjudicators, SSA shall send notices by first-class mail to the last
known address of all individuals identified pursuant to paragraph three
(3). The notices will advise them that they may be entitled to have their
DWB claims readjudicated. The notice agreed to by the parties is attached
as Attachment 1. All notices required by this paragraph shall be mailed
with a request for review form and a postage-paid envelope pre-addressed
to an SSA office designated to receive written requests for
readjudication. A statement written in Spanish, instructing
Spanish-speaking individuals to contact the local SSA Field Office
(“FO”), will appear in bold letters on each notice.
6.
SSA shall attempt to obtain current addresses for individuals whose
notices are mailed pursuant to paragraph five (5) of this stipulation and
order and returned as undeliverable by requesting that the State of New
York and the City of New York provide current addresses through a
computerized match with public assistance, food stamp, or other like
records. 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 New York State or
the City of New York 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 be sent
promptly after SSA's receipt of New York State and City of New York
computer information. No later than thirty (30) days after the expiration
of the time-frame 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 such
notice which was mailed. Plaintiffs' counsel shall have 120 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.
7.
All terminees who are entitled to readjudication of their claims under
paragraph one (1) of this stipulation and who request readjudication
pursuant to paragraph eight (8) of this stipulation, who meet the
nondisability requirements for entitlement to disability benefits to
widows/widowers/surviving spouse benefits on the basis of disability under
Title II, shall be afforded an opportunity to request and receive interim
benefits unless they are currently receiving any benefits pursuant to
Title II or Title XVI of the Social Security Act. SSA shall notify class
members of the opportunity to request interim benefits in the notices
provided pursuant to paragraph five (5) of this stipulation. Interim
benefits will be paid beginning with the month in which the election is
made and will continue until a class member receives a readjudication. If
the unfavorable adjudication is timely appealed, interim benefits shall
continue, if the claimant elects, until an Administrative Law Judge
decision is issued. SSA shall inform affected claimants of this right to
elect continuation of interim benefits pending appeal. Interim benefits
shall be subject to the recoupment and waiver of overpayment provisions of
the Social Security Act.
8.
Individuals potentially entitled to readjudication pursuant to paragraph
one (1) of this settlement shall have sixty (60) days to request
readjudication of their DWB claim(s) from the date on which they receive a
notice pursuant to paragraph five (5) of this stipulation and order. SSA
shall construe all inquiries from persons potentially entitled to
readjudication under paragraph one (1) of this settlement, concerning
eligibility for DWB, as a request for readjudication if they can
reasonably be construed as such.
9.
Individuals potentially entitled to readjudication pursuant to paragraph
one (1) of this settlement must request readjudication of their DWB
claim(s) by returning the request for review form, or by telephoning,
visiting, or writing to a Social Security Office. All individuals who
request readjudication will be provided with a dated written confirmation
of receipt. Individuals who request readjudication in person will be
provided with timely written confirmation.
10.
SSA shall determine whether each individual who requests readjudication
meets the criteria in paragraph one (1) and has properly requested
readjudication in accordance with paragraphs eight (8) and nine (9). SSA
shall make this determination within a reasonable time.
11.
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 one (1) or is not otherwise entitled to relief as provided by
the terms of paragraph one (1) of this stipulation and order, SSA will
send notice of this determination to the claimant, claimant's
representative, if known, and class counsel. The notice will contain the
telephone number and address of class counsel instructing the potential
class member to write or call as soon as possible if he or she wishes to
request review of the denial of class membership.
B) The notice described in paragraph 11(A) will also state: 1) the reason
why SSA has determined the individual to be ineligible for readjudication;
2) class counsel will have 120 days from the receipt of notice to notify,
in writing, the Office of the General Counsel (OGC), Department of Health
and Human Services, New York, if class counsel disagrees with the
determination. An extension of time to respond may be granted upon a
showing of good cause.
C) Class counsel may request inspection of the claimant's administrative
record upon which a determination was based and, as needed, the relevant
claims file. Class counsel will have forty-five (45) days from the date
class counsel is notified that the record is available for inspection, to
inspect the record at an SSA office mutually agreeable to the parties. If
class counsel requests inspection of an administrative record within 120
days of receipt of a notice of determination that a class member is
ineligible for readjudication, then class counsel shall have 30 days from
the date that the administrative record is available to notify OGC of its
disagreement with the determination, or 120 days from receipt of the
notice of SSA's determination, whichever is longer.
D) The parties will attempt to resolve the question of an individual's
entitlement to readjudication by negotiations between class counsel and
the Office of the General Counsel (HHS). If after negotiation the parties
cannot resolve the question of an individual's class membership, OGC will
send to class counsel and the individual a written confirmation of SSA's
determination to deny readjudication pursuant to this stipulation and
order.
E) Class counsel, or the individual, may, by duly noticed motion, submit
the unresolved matter to the court for resolution. Such notice must be
filed no later than sixty (60) days after receipt of OGC's written
confirmation to class counsel and the individual that the dispute cannot
be resolved, unless the parties agree to extend this time period in
particular cases. If the parties have not agreed to extend the time
period, SSA's determination shall become final and shall not be subject to
further review if a motion is not filed within sixty (60) days.
12.
SSA shall readjudicate the claims of class members entitled to relief
under paragraph 1 who request readjudication pursuant to paragraphs 8 and
9. All DWB claim(s) entitled to readjudication under the terms of this
stipulation and order shall be reopened and 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 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
readjudication under the procedures specified in 20 C.F.R. Part 404,
Subpart J, and 42 U.S.C. § 405(g).
13.
Class members entitled to readjudication pursuant to paragraph one (1) who
have individual civil actions pending in federal court with respect to an
unfavorable administrative decision resulting in class membership may
elect either to have their claim(s) remanded for review pursuant to this
stipulation and order (with the court retaining jurisdiction to review the
final decision) or to have the action proceed in federal court pursuant
to, and subject to the limitations contained in 42 U.S.C. § 405(g). A
class member with a civil action pending in federal court will be notified
in writing that he or she may seek relief pursuant to this stipulation. If
a class member with a pending civil action elects to receive relief under
this agreement, the Department of Justice and the class member shall seek
a remand of the court action. Upon remand, the claim shall be
readjudicated pursuant to this stipulation and order. Claim(s) that are
remanded from the court will be readjudicated at the reconsideration level
of administrative review. Class members who opt to proceed with civil
actions shall waive their rights under this stipulation and order to
readjudication of the claims being reviewed in the civil actions. Nothing
in this stipulation and order shall be construed to avoid or preclude the
res judicata effect of a final court decision where a class member decides
to proceed with his or her individual civil action in federal court.
14.
In conducting readjudications pursuant to this stipulation and order, SSA
shall consider the issue of disability from the class member's earliest
potential entitlement or the date of alleged onset, whichever is earlier,
through the date that the determination on readjudication is made. SSA
shall not consider disability for any period in which a class member
received DWB. In addition, SSA shall not readjudicate any time period for
which a class member received a denial in a concurrent claim at steps four
or five of the sequential evaluation. SSA shall apply the standards set
forth in paragraph two (2) of this stipulation upon readjudicating
claims.
15.
On readjudication SSA shall develop the record in accordance with SSA
policy for development of regular claims,
e.g.,
20 C.F.R. §§
404.1512 to 404.1518. Class members may submit new evidence
pertaining to the readjudication of their claim. SSA shall make all
reasonable efforts to obtain its file(s) on claims that are readjudicated,
unless a determination that a class member is eligible for DWB can be made
based on the information before SSA. If SSA is unable to obtain such
files, it shall reconstruct the missing files to the best of its ability.
Where there are gaps in the record due to missing or unavailable evidence,
SSA will generally consider the existing evidence of record in the light
most favorable to a claimant.
16.
For any readjudication that results in a finding that a class member was
eligible for DWB for part or all of the period under consideration, SSA
shall authorize DWB and Medicare benefits retroactively, consistent with
42 U.S.C. § 402(e) and (f) and 42 U.S.C. § 1395c. For purposes
of Title XVI of the Social Security Act, no payment of retroactive DWB
made pursuant to this stipulation and order shall count as a resource for
the first six months after receipt in accordance with 42 U.S.C. §
1382b(a)(7).
17.
The Secretary shall make good faith efforts to complete all of the initial
readjudications required pursuant to this stipulation and order within two
years of the date after which all identifiable potential class members are
sent notices.
18.
In addition to providing plaintiffs' counsel with information pursuant to
paragraphs three (3) and six (6) of this stipulation and order, 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 notices returned as undeliverable;
d.
the number of individuals determined not to be entitled to
readjudication;
e.
the number of individuals who received favorable determinations by
ODD:
f.
the number of individuals who received unfavorable determinations by
ODD.
SSA shall provide reports containing the information maintained in this
computerized tracking system to plaintiffs' counsel once every three
months commencing 180 days after this stipulation and order is entered by
the court. Upon request, plaintiffs' counsel will be provided with a
random sample of ODD decisions on class members claims for inspection at a
mutually agreed upon SSA district office. Once the readjudications of DWB
required by this stipulation and order have been substantially completed
and input into this computerized tracking system, SSA shall so advise
plaintiffs' counsel by providing them a final report.
19.
Except as provided in paragraph 1(c), the Secretary shall not accord
administrative finality or res judicata effect to
any SSA determination denying DWB benefits under 42 U.S.C. §
423(a)(2)(B)(1990) issued to a class member prior to June 4,
1991.
20.
All time periods for actions by class members and potential class members
under this stipulation and order shall be measured based on a rebuttable
presumption that all notices are received five (5) days after mailing,
unless it is established that receipt actually occurred later, in which
case the time period will begin to run from the date of actual receipt.
All such time periods shall be extended “for good cause” as a
set forth in 20 C.F.R.
§ 404.911 and SSR
91-5p.
21.
The relief ordered herein to the class members as defined in paragraph one
(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
laws, 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. However, plaintiffs are the prevailing
parties for the purposes of an award of attorneys' fees. Plaintiffs'
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.
22.
The Secretary shall bear the costs of implementing this stipulation and
order and of providing any notice of this action ordered by the
court.
23.
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 eleven (11). The claims of all
persons who were included in the class originally certified by the court,
but who are not entitled to readjudication pursuant to paragraph one (1),
will be dismissed without prejudice.
24.
This stipulation and order resolves all claims by plaintiffs in this
action, except those dismissed without prejudice in paragraph twenty-three
(23), that the Secretary applied an incorrect standard in evaluating DWB
claims under 42 U.S.C. § 423(d)(2)(B) (repealed 1990). The
stipulation and order does not prevent any class member from pursuing an
individual administrative appeal, a request for reopening, or a judicial
appeal. The stipulation and order does not waive any rights of class
members pursuant to any settlement or judgment entered in
Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.)
(LBS) or State of New York v. Sullivan, 83 Civ.
5903 (RLC).
25.
Plaintiffs' counsel and defendant's counsel, by their signatures below,
warrant that they are sole counsel to the plaintiffs and the plaintiff
class or to the defendant whose interests were represented in this action
and that they are authorized to stipulate to the settlement or issues in
this action.
26.
This stipulation and order shall be submitted to the court and shall be
effective only upon entry of the order by the court.
Dated: New York, New York
October 22, 1992
|
|
/s/
|
|
|
_________________________ |
|
|
JANE E. BOOTH, ESQ. |
|
|
Director of Litigation |
|
|
MATTHEW DILLER, of Counsel |
|
|
Civil Appeals & Law Reform Unit |
|
|
The Legal Aid Society |
|
|
11 Park Place, Rm. 1805 |
|
|
New York, NY 10007 |
|
|
Telephone: (212) 406-0745 |
|
|
Attorneys for Plaintiff Marjorie |
|
|
Hill and the Plaintiff Class |
|
|
|
|
|
/s/
|
|
|
_________________________ |
|
|
JOHN C. GRAY, JR., ESQ. |
|
|
NANCY CHANG, of Counsel |
|
|
Brooklyn Legal Services Corp. B. |
|
|
105 Court Street |
|
|
Brooklyn, NY 11201 |
|
|
Telephone: (718) 237-5500 |
|
|
Attorneys for Plaintiff-Intervenor |
|
|
Rose Roesch |
|
|
|
|
|
OTTO G. OBERMAIER |
|
|
United States Attorney |
|
|
Southern District of New York |
|
|
Attorney for the Defendant |
|
|
|
|
|
BY: /s/
|
|
|
_________________________ |
|
|
SAPNA V. RAJ- |
|
|
Special Assistant United States |
|
|
Attorney |
|
|
100 Church Street |
|
|
New York, New York 10007 |
|
|
Telephone: (212) 385-4379 |
|
|
SVR-3534 |
|
SO ORDERED: |
|
/s/
|
|
|
_________________________ |
|
|
United States District Judge |
|
|
|
|
|
4/29/93 |
|
Attachment 2. - Hill Court Case Flag/Alert
TITLE: II CATEGORY:
REVIEW OFFICE PSC MFT DOC ALERT DATE
FUN NAME
SSN OR HUN RESP
DTE TOE
000-00-0000
FOLDER
LOCATION INFORMATION
TITLE CFL CFL DATE ACN PAYEE
ADDRESS
SCREENING OFFICE ADDRESS:
DHHS, SSA
NORTHEASTERN PROGRAM SERVICE CENTER
ONE JAMAICA
CENTER PLAZA
JAMAICA, NEW YORK 11432-38030
IF CLAIM IS PENDING IN OHA, THEN SHIP FOLDER TO:
OFFICE OF HEARINGS AND APPEALS
OFFICE OF CIVIL ACTIONS, DIVISION
I
ONE SKYLINE TOWER, SUITE 601
5107 LEESBURG
PIKE
FALLS CHURCH, VA 22041-3200
ATTN: HILL SCREENING UNIT
Attachment 3. - Route Slip or Case Flag for Screening
Hill Class Action Case
SCREENING NECESSARY
|
Claimant's Name: |
__________________________________ |
|
|
|
|
|
|
|
SSN : |
__________________________________ |
|
|
|
|
This claimant may be a Hill 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 5-4-38 for additional information and instructions. |
|
|
|
|
TO: _____________________________ |
|
__________________________________ |
|
__________________________________ |
|
__________________________________ |
|
|
|
Attachment 4. - Hill Screening Sheet and Screening Sheet
Instructions
HILL SCREENING SHEET
|
CLASS ACTION CODE: H I |
|
|
1. WAGE EARNER'S SSN
___ ___ ___ - ___ ___ - ___ ___ ___ ___
|
BIC
___ ___
|
|
2. CLAIMANT'S NAME |
|
3. a. MEMBERSHIP DETERMINATION
MEMBER (J) NONMEMBER (F)
___ ___
|
b. SCREENOUT CODE
___ ___
(see Item 13 for screenout codes)
|
|
4. Is this a title II disabled widow/widower or surviving divorced spouse (DWB) claim? |
___ Yes ___ No
(if No, go to 13)
|
5. Was a less than fully favorable determination/decision issued on this claim at any administrative level by the New York DDS, or any OHA office servicing the State of New York from May 12, 1983, through June 3, 1991, inclusive, and did this become the final decision of the Secretary?
NOTE: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes. |
___ Yes ___ No
(if No, go to 13)
|
6. If the individual received a less than fully favorable determination at the initial level between May 12, 1983, and August 22, 1987, inclusive, did the individual appeal the determination to the reconsideration level or file a new application before June 4, 1991?
If this question is not applicable (i.e., the individual received a less than fully favorable determination at the initial level between August 23, 1987, and June 3, 1991, inclusive, or a less than fully favorable determination or decision on administrative appeal of a claim initially decided prior to May 12, 1983), skip this question and go on to question 7. |
___ Yes ___ No
(if No, go to 13)
|
|
7. Did the responder reside in the State of New York at the time the determination/decision was issued? |
___ Yes ___ No
(if No, go to 13)
|
|
8. Was the denial/cessation of benefits for some reason other than the claimant's medical condition (e.g., SGA)? |
___ Yes ___ No
(if Yes, go to 13)
|
|
9. Did the claimant receive a subsequent fully favorable DWB determination/decision and full benefits on this or a subsequent claim, which covered the entire timeframe at issue in the potential Hill claim? |
___ Yes ___ No
(if Yes, go to 13)
|
|
10. Was a claim for title XVI or title II worker's disability, covering the entire timeframe at issue in the potential Hill claim, concurrently or subsequently denied/ceased at steps 4 or 5 of the sequential evaluation process? |
___ Yes ___ No
(if Yes, go to 13)
|
|
11. Was the potential Hill class member claim pending at any administrative level on or after June 4, 1991? |
___ Yes ___ No
(if Yes, go to 13)
|
|
12. Did the claimant receive a final adverse disability (medical) determination/decision after June 3, 1991, on the potential Hill claim or a subsequent claim which raised the issue of disability and covered the entire timeframe at issue in the potential Hill claim? |
___ Yes ___ No
(if Yes, go to 13)
|
|
13. The responder is not a Hill class member eligible for class relief.
Enter the screenout code in item 3.b. as follows:
Enter 04 if question 4 was answered “NO”.
Enter 05 if question 5 was answered “NO”.
Enter 06 if question 6 was answered “NO”.
Enter 07 if question 7 was answered “NO”.
Enter 08 if question 8 was answered “YES”.
Enter 09 if question 09 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”.
|
No other screenout code
entry is appropriate.
|
|
SIGNATURE OF SCREENER |
COMPONENT |
DATE |
|
Enter dates of all applications screened.
________________ _________________ ________________ _________________
|
Hill SCREENING SHEET INSTRUCTIONS
To qualify for class membership, those who respond to
Hill notice must have, sometime from 5/12/83
through 6/03/91, received a denial, cessation, or less than a fully
favorable DWB determination/decision while residing in New York. It must
have been a medical determination, and if it was made prior to 8/23/87,
they either must have filed a timely appeal or have reapplied for DWB by
6/3/91. However, if they received a determination under steps 4 or 5 of
the sequential evaluation process on a concurrently filed or subsequently
filed claim which considered the issue of disability for the entire period
at issue in the potential Hill claim or if they
received a determination after 6/3/91 on the Hill
claim or a subsequent claim which raised the issue of disability and
covered the entire period at issue in the potential
Hill claim, they may have gotten the full relief
afforded under Hill and not be entitled to further
review.
Questions 1 - 3
Fill in wage earner's SSN, widow(er)'s or surviving divorced spouse's
name. Also, enter the member/non-member information, and the screen-out
code, if appropriate, once screening has been completed.
Question 4
Screen for claim type. If question is answered “No,” enter
the appropriate screen-out code in item 3.b. as directed in item 13 on the
screening sheet and check the non-member block in item 3.a.
Question 5
Screen for date of decision, not application. Individuals are potential
class members if they received a denial, cessation or less than fully
favorable decision (e.g., later onset, closed period, payment of benefits
beginning January 1, 1991, under OBRA despite an earlier onset) between
May 12, 1983,and June 3, 1991, inclusive, which became the final decision
of the Secretary. (Note: Although not the “final decision of the
Secretary,” an Appeals Council denial of a request for review is
the last action of the Secretary, and the date of such a denial controls
for class membership screening purposes.) If the answer to question 5 is
“No,” enter the appropriate screen-out code in item 3.b. as
directed in item 13 on the screening sheet and check the non-member block
in item 3.a.
Question 6
This question is applicable only if the individual seeks class membership
based on a less than fully favorable initial determination issued between
May 12, 1983, and August 22, 1987, inclusive. This question is not
applicable if the individual received a less than fully favorable
determination at the initial level between August 23, 1987, and June 3,
1991, inclusive, or a less than fully favorable determination or decision
on administrative appeal of a claim initially decided prior to May 12,
1983. If not applicable, skip this question and go on to question
7.
If a less than fully favorable (e.g., later onset, closed period, payment
of benefits beginning January 1, 1991, under OBRA despite an earlier
onset) initial determination was issued on the claim being reviewed
between May 12, 1983, and August 22, 1987, inclusive, the individual is a
class member only if he or she appealed the determination to the
reconsideration level or filed a new application before June 4, 1991. If
the answer to question 6 is “No,” enter the appropriate
screen-out code in item 3.b. as directed in item 13 on the screening sheet
and check the non-member block in item 3.a.
Question 7
Screen for residency at the time the determination/decision was issued. If
the answer to question 7 is “No,” enter the appropriate
screen-out code in item 3.b. as directed in item 13 on the screening sheet
and check the non-member block in item 3.a.
Question 8
To answer this question look for non-medical denial codes in item 22 of
the SSA-831-U3 or SSA-833-U3, or on the SSA-3687-U2 or the SSA-3428-U2 or
review the determination/decision. The non-medical denial codes are: N1,
N2, L1, L2, M7, M8. (For a complete list of DWB denial codes see
SM 00380.270.C.)
For cases previously decided at the OHA level, the answer can be found in
the Administrative Law Judge or Appeals Council decision. If the answer to
question 8 is “Yes,” enter the appropriate screen-out code in
item 3.b. as directed in item 13 on the screening sheet and check the
non-member block in item 3.a.
Question 9
This class relief exception applies only if the individual has received
all benefits to which he or she could be
entitled based on the potential class member claim. Review the file to
determine whether DWB benefits were subsequently allowed or continued from
the earliest alleged onset date, cessation date, or control date of a
claim decided within the timeframe for class membership (May 12, 1983,
through June 3, 1991, inclusive). The allowance or continuance could have
been either on the same claim or on a subsequent application. Be sure to
consider earlier eligibility for Medicare and retroactive benefits during
the Hill timeframe when determining if the
subsequent decision is fully favorable. If the answer to question 9 is
“Yes,” enter the appropriate screen-out code in item 3.b. as
directed in item 13 on the screening sheet and check the non-member block
in item 3.a.
Question 10
Check file(s) and queries (e.g., ACT, SSID) to determine whether the
claimant received a denial/cessation decision on a concurrent or
subsequent claim for SSI, or worker's disability which covered the entire
timeframe at issue in the potential Hill claim. If
so, review the file(s) to determine whether the claimant's residual
functional capacity (RFC) was assessed. The following codes in block 22 of
the SSA-831-U3 and SSA-833-U3 indicate denial/cessation on the basis that
claimant retained the RFC to perform SGA. Title II denials: H1, H2, J1, J2
and sometimes E3. Title XVI denials: N31, N32, N42, N43. For cases
previously decided at the OHA level, review the Administrative Law Judge
or Appeals Council decision to determine if the claimant's RFC was
assessed. If the answer to question 10 is “Yes,” enter the
appropriate screen-out code in item 3.b. as directed in item 13 on the
screening sheet and check the non-member block in item 3.a.
Question 11
Check the file(s) to determine if claimant's potential class member claim
was administratively pending on or after June 4, 1991. The
Hill Stipulation provides that SSA need not
readjudicate any DWB claims which were pending on or after June 4, 1991.
If the answer to question 11 is “Yes,” enter the appropriate
screen-out code in item 3.b. as directed in item 13 on the screening sheet
and check the non-member block in item 3.a.
Question 12
Review the file to determine whether an unfavorable decision was issued
after June 3, 1991, on the potential Hill claim or
a subsequent claim that raised the issue of disability and covered the
entire timeframe at issue in the potential Hill
claim. If the answer to question 12 is “Yes,” enter the
appropriate screen-out code in item 3.b. as directed in item 13 on the
screening sheet and check the non-member block in item 3.a.
After signing the screening sheet, please remember to list the dates of
all applications for which determinations/decisions were screened to
determine class membership.
Processing Class Member Determinations
a.
Retain the original screening sheet in the claim file. 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: Hill Coordinator
b.
Follow procedures in Part V. B. 3. b. for
class member cases.
Processing Non-class Member Determinations
a.
Retain the original screening sheet in the claim file. 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: Hill Coordinator
b.
Follow procedures in Part V. B. 3. a. for
non-class member cases.
Attachment 5. - Route Slip for Routing Class Member Alert and Prior Claim
Files(s) to ODIO or PSC -- OHA No Longer Has Current Claim
|
ROUTING AND TRANSMITTAL SLIP |
DATE: |
|
TO: |
INITIALS |
DATE |
|
1. |
|
|
|
2. |
|
|
|
3. |
|
|
|
4. |
|
|
|
5. |
|
|
|
6. |
|
|
|
7. |
|
|
|
XX |
ACTION |
|
FILE |
|
NOTE AND RETURN |
|
|
APPROVAL |
|
FOR CLEARANCE |
|
PER CONVERSATION |
|
|
AS REQUESTED |
|
FOR CORRECTION |
|
PREPARE REPLY |
|
|
CIRCULATE |
|
FOR YOUR INFORMATION |
|
SEE ME |
|
|
COMMENT |
|
INVESTIGATE |
|
SIGNATURE |
|
|
COORDINATION |
|
JUSTIFY |
|
|
|
|
|
|
|
|
|
|
REMARKS |
|
|
HILL CASE
|
|
|
|
|
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 Northeastern Program Service Center for screening and possible readjudication. SEE POMS DI 42535.005 OR DI 12535.005 |
|
|
|
|
|
|
|
DO NOT use this form as a RECORD of approvals, concurrences, disposals, |
|
clearances, and similar actions. |
|
FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
|
PHONE NUMBER |
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206
Attachment 6. - Non-Class Membership Notice
SOCIAL
SECURITY Important Information
NOTICE
_____________________________________________________________
From: Department of Health and Human Services
Social Security Administration
_____________________________________________________________
___________________________ DATE:
__________________
___________________________ CLAIM NUMBER:
__________________
___________________________ DOC:
___________________________
|
|
|
|
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY BENEFITS.
|
|
PLEASE READ IT CAREFULLY
|
|
|
|
|
You asked us to review your case under the terms of the Hill v. Sullivan court decision. We have looked at your case and decided that you are not a Hill 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 Hill class member because: |
|
|
|
|
___ |
You did not file a claim for title II disabled widow's, widower's or surviving divorced spouse's (DWB) benefits. |
|
|
|
|
___ |
Your claim was not denied or ceased between May 12, 1983, and June 3, 1991, inclusive. |
|
|
|
|
___ |
Your claim was denied or ceased between May 12, 1983, and August 22, 1987, inclusive, but you did not request reconsideration of that decision or file a new application before June 4, 1991. |
|
|
|
|
___ |
You did not reside in the State of New York at the time the final decision on your disability claim was issued. |
|
|
|
|
___ |
Your claim was not denied or ceased for medical reasons. Your claim was denied because: |
|
|
_____________________________________________________ |
|
|
_____________________________________________________ |
|
|
|
|
___ |
We already changed our earlier decision and found that you were disabled and that decision covered the entire period for which you were potentially eligible for additional benefits. |
|
|
|
|
___ |
You filed a disability claim on your own social security number and that claim was also denied or ceased. That claim covered the entire timeframe at issue in the potential Hill claim and was reviewed under the Hill standard. |
|
|
|
|
___ |
Your potential class member claim was still pending on or after June 4, 1991, and was decided under the Hill standard. |
|
|
|
|
___ |
You received a final adverse medical decision after June 3, 1991, on a subsequent claim which covered the entire timeframe at issue in the potential Hill 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 disabled. We are deciding only that you are not a Hill class member. |
|
|
|
|
IF YOU DO NOT AGREE WITH THIS DETERMINATION
|
|
|
|
|
A copy of this letter is being sent to the attorney for the Hill class. If you disagree with this determination, you or your personal legal representative should write or call the class counsel as soon as possible. Class counsel will answer your questions about class membership. If class counsel thinks that this determination is incorrect and contacts us within 120 days from the day you receive this notice, we may look at your case again. The name and address of class counsel is: |
The Legal Aid Society
Hill Lawsuit
Unit
11 Park Place, Room 1805
New York, New York
10007
Telephone (212) 406-0745
If you do not have a personal legal representative and wish to obtain one,
the following offices will refer you to organizations that provide free
legal help for low income clients:
|
New York City Area: |
Legal Services of New York City |
|
|
(212) 431-7200 |
|
|
|
|
|
or |
|
|
|
|
|
The Legal Aid Society |
|
|
(212) 227-2755 |
|
|
|
|
Rest of New York State: |
Greater Upstate Law Project |
|
|
(800) 724-0490 |
|
|
(800) 635-0355 |
|
|
|
|
IF YOU HAVE ANY QUESTIONS
|
|
|
|
|
If you have any questions, you may contact class counsel 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 usted no entiende esta carta, llevela a la oficina de seguro social arriba mencionada para que se la expliquen.
cc: The Legal Aid Society
New York, New York 10007
Attachment 7. - Route Slip for Non-Class Membership Case
|
ROUTING AND TRANSMITTAL SLIP |
DATE: |
|
TO: |
INITIALS |
DATE |
|
1. Social Security Administration |
|
|
|
2. Northeastern Program Service Center |
|
|
|
3. DI - Technical Assistance Section |
|
|
|
4. P.O.Box 1235 |
|
|
|
5. Corona Elmhurst NY 11373 |
|
|
|
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 |
|
|
Hill CASE |
|
|
|
|
Claimant: ___________________________ |
|
|
|
|
|
SSN: ________________________________ |
|
|
|
|
|
We have determined that this claimant is not a Hill class member. (See screening sheet and copy of non-class membership notice in the attached claim file(s).) SEE POMS DI 12535.010 |
|
|
|
|
|
|
|
Attachment |
|
|
|
|
DO NOT use this form as a RECORD of approvals, concurrences, disposals, clearances, and similar actions. |
|
FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
|
PHONE NUMBER |
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206
Attachment 8. - Hill Class Member Flag for Headquarters
Use (DDS Readjudication -- retention period expired)
|
Hill Class Action Case
|
|
|
|
|
|
|
|
READJUDICATION NECESSARY
|
|
|
|
|
|
|
|
Claimant's Name: |
__________________________________ |
|
|
|
|
|
|
|
SSN : |
__________________________________ |
|
|
|
|
|
|
|
This claimant is a Hill class member. Accordingly, we are forwarding the attached claim file(s) to the New York DDS for readjudication. |
|
|
|
|
We are sending the files to: |
|
__________________________________ |
|
__________________________________ |
|
__________________________________ |
|
__________________________________ |
|
|
|
|
(Destination code: ____ )
|
Attachment 9. - Hill Class Member Flag for Headquarters Use (DDS Readjudication
-- retention period has not expired)
|
Hill Class Action Case
|
|
|
|
|
|
|
|
READJUDICATION NECESSARY
|
|
|
|
|
|
|
|
Claimant's Name: |
__________________________________ |
|
|
|
|
|
|
|
SSN : |
__________________________________ |
|
|
|
|
|
|
|
This claimant is a Hill class member. After expiration of the retention period, forward claim file(s) to the New York DDS for readjudication. |
|
|
|
|
Send folders to the appropriate New York DDS. |
|
|
|
|
|
|
If the claimant has filed a civil action and elected to remain in court
for review of the current claim, forward the Hill
claim file(s) without delay to the New York DDS for
readjudication.
|
|
|
DEPARTMENT OF
|
|
HEALTH AND HUMAN SERVICES
|
|
Social Security Administration
|
|
OFFICE OF HEARINGS AND APPEALS
|
|
|
|
ORDER OF DISMISSAL
|
|
|
|
IN THE CASE OF |
|
CLAIM FOR |
|
|
|
|
|
__________________________ |
|
__________________________ |
|
|
|
|
|
__________________________ |
|
__________________________ |
|
|
|
|
|
This case is before the Administrative Law Judge pursuant to a request for hearing filed on _________________ with respect to the application(s) filed on _________________. |
|
|
|
In accordance with the Stipulation and Order negotiated by the parties and approved by the United States District Court for the Southern District of New York in the case of Hill v. Sullivan, 87 Civ. 4344 (S.D. New York, April 30, 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 Hill class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the 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 New York Disability Determination Service which will conduct the Hill readjudication and redecide the current application at the reconsideration level. |
|
|
|
|
|
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 |
|
|
|
|
|
|
|
_________________________ |
|
|
|
Date |
Attachment 11. - Notice Transmitting ALJ Order of Dismissal
|
|
|
|
NOTICE OF DISMISSAL
|
|
|
|
|
Claimant's Name |
|
|
Address |
|
|
City, State Zip |
|
|
|
|
|
Enclosed is an order of the Administrative Law Judge dismissing your request for hearing without prejudice and returning your case to the New York 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 Hill class member claim back to the New York Disability Determination Service for further processing. The enclosed order explains why. |
|
|
|
|
The Next Action on Your Claim |
|
|
|
|
|
The New York Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the New York 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. - Hill Class Member Flag for HO Use (DDS
Readjudication)
|
Hill Class Action Case
|
|
|
|
READJUDICATION NECESSARY
|
|
|
|
|
|
Claimant's Name: |
|
__________________________________ |
|
|
|
|
|
SSN: |
|
__________________________________ |
|
|
|
|
|
This claimant is a Hill class member. The attached Hill 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. |
|
|
|
|
|
OR
|
|
|
|
|
|
_______
|
|
The claims have not been consolidated because |
|
|
|
|
|
|
|
[state reason(s)]__________________________________ |
|
|
|
______________________________________________ |
|
|
|
|
|
Accordingly, we are forwarding the attached alert and prior claim file(s) to your location for any necessary Hill readjudication action. |
|
|
|
We are sending the alert and prior file(s) to: |
|
|
|
(enter address of appropriate DDS)
|
|
______________________________
|
|
______________________________
|
|
______________________________
|
|
______________________________
|
|
|
|
(Destination code: ____)
|