ISSUED: June 29, 1994
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
parties' April 26, 1993 Stipulation and Order, approved and filed by the
United States District Court for the Eastern District of Pennsylvania on
May 26, 1993, in the Bozzi v. Shalala class action
involving the standard for determining disability in surviving spouse
claims.
Adjudicators throughout the country must be familiar with this TI because
Bozzi class members who now reside outside the
Third Circuit (Delaware, New Jersey, Pennsylvania and the Virgin Islands)
must have their cases processed in accordance with the requirements of the
Stipulation and Order.
II. Background
On April 13, 1990, plaintiff filed a complaint challenging the Secretary's
listings-only policy of evaluating disability with respect to the title II
claims of widows, widowers and surviving divorced spouses.[1] On July 11, 1990, plaintiff filed an amended complaint seeking
class status and relief. On February 14, 1991, the district court
certified a 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. Following a public
hearing, on May 26, 1993, the district court approved and filed the
parties' April 26, 1993 Stipulation and Order setting forth the terms for
the implementation of relief to class members (Attachment
1).
III. Guiding Principles
Under Bozzi, 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 Mid-Atlantic Program Service Center (PSC) will screen for
class membership, unless the potential class member claim or a subsequent
(current) claim is pending or stored at OHA. Regardless of the state of
the claimant's current residence, the Disability Determination Services
(DDSs) in Delaware, New Jersey, Pennsylvania and the Virgin Islands 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. The Great
Lakes Program Service Center has review jurisdiction if there is railroad
involvement in the
Bozzi
claim.
OHA will screen cases and perform readjudications under limited
circumstances (see Part V. B.
below).
Cases readjudicated by the DDSs 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 Bozzi 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.
IV. Definition of Class
The Bozzi class consists of all individuals
residing in Delaware, New Jersey, Pennsylvania or the Virgin Islands at
the time of the most recent administrative determination or decision
who:
•
filed for or received title II benefits as a disabled widow, widower or
surviving divorced spouse; and
•
were issued a less than a fully favorable (i.e., later onset, closed
period, denied or terminated) final administrative determination or
decision, based on medical reasons, at the
reconsideration level or above, between
April 1, 1983, and May 5, 1990, inclusive; or
•
were issued determinations or decisions on two or more separate claims at
any administrative level, between April 1, 1983 and December 31, 1990,
inclusive; or
•
were issued a less than a fully favorable (i.e., later onset, closed
period, denied or terminated) final administrative determination or
decision, based on medical reasons, at any administrative level between
May 6, 1990, and December 31, 1990, inclusive.
A person is not a class member eligible for class relief if the
individual
(1) filed a claim for disability benefits under titles II or XVI, either
concurrently with, or after, all potential class member DWB claims, and
received a final administrative denial or a final adverse judgment from a
Federal district or appellate court at steps one, two, four or five of the
sequential evaluation process, that covered the entire timeframe at issue
in the potential Bozzi claim(s); or
(2) filed a complaint in Federal district court based on an administrative
denial or termination of any potential class member DWB claim, and
received a final judgment from a Federal district or appellate court;
or
(3) filed a DWB claim on or after January 1, 1991, that was denied
administratively on the ground that the claimant did not meet the
disability standard set forth in § 5103 of OBRA 90 and had no claim
for entitlement to DWB for any month(s) before January 1991;
or
(4) had a claim for DWB denied on the ground that he or she did not
satisfy the disability standard of
SSR 91-3p;
or
(5) the individual's only potential Bozzi claim was
pending administratively on or after January 1, 1991; or
(6) at the time the class membership determination is made, has been
determined to be a member of another class certified in another circuit,
which has challenged in Federal court the Secretary's interpretation or
application of the former 42 U.S.C. § 423(d)(2)(B) as it was in
effect before January 1, 1991; or
(7) received a fully favorable decision on a subsequent DWB claim, with
entitlement commencing at the earliest possible month of entitlement, as
described in ¶ 15 of the Stipulation and Order.
V. Determination of Class Membership and Preadjudication
Actions
A. Pre-Screening Actions - General
SSA will send notices to all potential class members identified by
computer run. Individuals have 120 days from the date of receipt of the
notice to request that SSA readjudicate their claims under the terms of
the Bozzi Stipulation and Order. Notices returned
as undeliverable will be mailed a second time; either to a different
address, if SSA can obtain one, or to the last known address. SSA will
provide potential class members who request readjudication with a dated,
written confirmation of receipt.
Individuals who do not respond on a timely basis will be denied class
membership, but will be advised of their opportunity to establish good
cause. The good cause provisions of
20 CFR §
404.911 and SSR
91-5p will apply. However, in no
circumstance will a potential class member who satisfies any of the
aforementioned good cause provisions be entitled to readjudication unless
he or she requests such readjudication within three years of the date on
which SSA sends notice of potential class membership (see ¶ 6 of the
Stipulation and Order).
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 Bozzi
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 Mid-Atlantic PSC for retrieval of any additional claim files
and screening (see Part III.
above).
If the Mid-Atlantic PSC determines that either a potential class member
claim or a subsequent (current) claim is pending or stored at OHA, it will
forward the alert to OHA, along with any prior claim file(s) not in OHA's
possession, for screening, consolidation consideration and readjudication
(if consolidated).
The Mid-Atlantic PSC will send all alerts potentially within OHA
jurisdiction and related prior claim file(s) to the Office of Civil
Actions (OCA), Division II, at the following address:
Office of Hearings and Appeals
Office of Civil Actions, Division
II
One Skyline Tower, Suite 800
5107 Leesburg
Pike
Falls Church, VA 22041-3200
ATTN: Bozzi Screening Unit
In general, ODIO or the Mid-Atlantic PSC will coordinate any necessary
reconstruction of prior claim files. OHA requests for reconstruction of
potential class member cases should be rare. However, if it becomes
necessary for OHA to request reconstruction, the OHA component (if not
OCA, Division II) will return the alert and any accompanying claim file(s)
to OCA, Division II. OCA, Division II will direct any necessary
reconstruction requests to the servicing FO with a covering memorandum
requesting that the reconstructed folder be forwarded to OHA. OHA will
send a copy of the covering memorandum to:
Litigation Staff
Office of the Deputy Commissioner
for
Programs
3-K-26 Operations Building
6401 Security
Boulevard
Baltimore, MD 21235
ATTN: Bozzi Coordinator
5. Class Membership Denials
The Mid-Atlantic PSC or OHA, as appropriate, will hold all non-class
member claim files for 90 days pending review by class counsel. If an
individual wishes to request SSA's further consideration of a class
membership denial determination, he or she must do so through class
counsel. Class counsel has 60 days from receipt of notice of the class
membership denial to notify the Secretary's counsel of their disagreement.
Upon timely request by class counsel (i.e., within 60 days of receipt of
the notice of class membership denial) to review claim files, the Office
of the Deputy Commissioner for Programs' Litigation Staff will coordinate
with the Mid-Atlantic PSC or OHA to forward claim files to:
SSA District Office
801 Arch
Street
2nd Floor
Philadelphia, PA 19107
Upon review of the files, class counsel will have an additional 30 days,
if necessary, to contact the Office of the General Counsel (OGC) directly
to resolve any remaining class membership disputes.
As provided in Part V. A. 3. above, if
there is a current claim pending at OHA, OCA will receive the alert and
related Bozzi 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 use Attachment
3 to forward the alert and the prior claim file(s) to the HO for
screening.
•
If the current claim is before the Appeals Council, OCA will use
Attachment 3 to forward the alert and prior claim file(s) to the
appropriate Office of Appellate Operations (OAO) branch for
screening.
•
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 II is responsible for controlling and reconciling the OHA
Bozzi class alert workload.
Bozzi is the largest of the surviving spouse
disability class actions with approximately 8,000 potential class members.
OCA should maintain a record of all alerts 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
II will associate the alert with the claim file(s) (or court transcript)
and screen for Bozzi class membership. See
Part V. B. 2. b. below for special
screening instructions when a civil action is involved.
The screening component will associate the alert, if any, and any prior
claim file(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 Bozzi 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: Bozzi Coordinator
The Division of Litigation Analysis and Implementation (DLAI) will forward
copies of the screening sheet to OCA Division II (if not the screening
component) and the Litigation Staff at SSA Central Office.
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
II (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 on or after January 1, 1991, on a
subsequent claim filed by a potential Bozzi class
member may have adjudicated the entire timeframe at issue in the potential
Bozzi claim. Pursuant to ¶ 2 of the
Stipulation and Order, these claims should be denied class membership
rather than dismissed under the doctrine of administrative res
judicata.
b. Special OCA Screening Instructions if a Civil Action Is
Involved
As noted in Part V. B. 1. b. above, OCA
will screen for Bozzi 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 the potential
Bozzi 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 Bozzi issues, the
claimant is not a Bozzi 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 Bozzi issues, e.g., there is a prior
(inactive) claim and the current claim did not adjudicate the entire
period covered by the Bozzi claim, OCA staff will
forward the Bozzi claim to the servicing DDS for
separate review. OCA will modify the case flag in Attachment 10 to
indicate that the pending court case does not resolve all
Bozzi issues and that the
Bozzi 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, representative, if any, and class counsel 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:
Bozzi
Counsel
Community Legal Services, Inc.
1226 South Broad
Street
Philadelphia, PA 19146-3119
•
retain the claim file(s) for 90 days pending a possible class membership
dispute; if the screening component is not OCA, Division II, and the
file(s) is not needed for adjudication, forward the file(s) for storage to
OCA, Division II at the address in
Part V. A. 3. above;
•
if class counsel makes a timely request to review the claim file (i.e.,
within 60 days from receipt of the notice of class membership denial),
DLAI will notify the OHA component housing the non-class member claim file
to send it to the SSA District Office using the pre-addressed route slip
in Attachment 7 (see Part V. A. 5. above)
(upon review of the files, class counsel will have an additional 30 days,
if necessary, to contact OGC directly to resolve any class membership
issues);
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.
•
if SSA through OGC resolves the dispute in the claimant's favor: 1)
rescreen the case; 2) send the notice of revised class membership
determination (Attachment 8) to the claimant and representative, if any,
and to the class counsel; 3) proceed in accordance with
Part VI. below; and 4) notify DLAI, at
the address in Part V. B. 2. above, of
the revised determination by forwarding a copy of the revised screening
sheet (DLAI will forward copies of the revised screening sheet to OCA,
Division II (if OCA is not the screening component) and to Litigation
Staff at SSA Central Office); and
•
if after 90 days no review is requested, return the file(s) to the
appropriate location.
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
As previously indicated, the DDSs servicing Third Circuit residents will
conduct the first Bozzi review, except for cases
consolidated with claims pending or held 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.
B. Payment Reinstatement for Cessation Cases
If the Bozzi claim involves a cessation, the class
member may elect to have disability benefits reinstated pending
readjudication. In general, the servicing Social Security Field Office
(FO) 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 Bozzi claim
file.
For OHA jurisdiction cases, the screening component will
(1) identify Bozzi claims involving
cessations;
(2) immediately notify the servicing FOs by telephone of the pending
Bozzi claims that may be eligible for benefit
reinstatement and document the file accordingly; and
(3) provide the servicing FO 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 Bozzi
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 Bozzi class member
cases according to all other current practices and procedures including
coding, scheduling, developing evidence, routing, etc.
Implementation of the Bozzi order must never delay
the processing of TERI claims and must never interfere with the operation
of TERI procedures on such claims.
1. Type of Review and Period To Be Considered
Pursuant to the Bozzi 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 Bozzi
claim through the present (or through the date the claimant last met the
prescribed period requirements, if earlier).
Pursuant to ¶ 15 of the Bozzi Stipulation and
Order, adjudicators will not consider disability for any period in which a
class member has already received disabled widows benefits. Pursuant to
¶ 16, the administrative record in Bozzi
claims will be developed in accordance with the regulations and policies
governing the development of disability claims. SSA will reconstruct
missing files to the best of its ability. Class members may submit new
evidence.
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.
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
Bozzi class member flag (see Attachment 9) to the
outside of the file and forward the claim file(s) to the servicing DDS for
review of the Bozzi class member
claim.
•
If less than 120 days have elapsed, OCA will attach a
Bozzi class member flag (see Attachment 10) to the
outside of the file to ensure the case is routed to the servicing 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 appropriate DDS in a timely manner.
E. Processing and Adjudicating Class Member Claims in Conjunction
with Current Claims (Consolidation Procedures)
If a class member has a current claim pending at any administrative level
and consolidation is warranted according to the guidelines below, the
appropriate component will consolidate all Bozzi
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 Bozzi 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 Bozzi case with the appeal on the
current claim.
The ALJ will not consolidate the claims if
•
the current claim and the Bozzi 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.
Except as noted below, if a Bozzi 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
Bozzi claim and the current claim. Instead, the ALJ
will dismiss the request for hearing on the current claim without
prejudice and forward both the Bozzi 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 Bozzi 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 Bozzi 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 Bozzi
claim(s) with the current claim, the ALJ will:
•
give proper notice of any new issue(s) as required by
20 CFR §§
404.946(b) and
416.1446(b), if
the Bozzi 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 Bozzi claim raises an additional
issue(s), unless the ALJ is prepared to issue a fully favorable decision
with respect to the Bozzi claim; and
•
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the Bozzi
claim (the ALJ's decision will clearly indicate that the ALJ considered
the Bozzi claim pursuant to the
Bozzi Stipulation and Order).
d. Action if Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the
Bozzi claim(s) with the current claim because the
hearing has not yet been scheduled, the ALJ will:
•
dismiss the request for hearing on the current claim without prejudice,
using the language in Attachment 11 and the covering notice in Attachment
12;
•
send both the Bozzi claim and the current claim to
the servicing DDS for consolidation and further action.
If the ALJ decides not to consolidate the Bozzi
claim(s) with the current 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 Bozzi claim for DDS review using
Attachment 13; immediately route it to the servicing DDS for adjudication;
and retain a copy of Attachment 13 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 Has Issue in Common
with the Bozzi Claim
The action the Appeals Council takes on the current claim determines the
disposition of the Bozzi 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 Bozzi claim.
a. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial
Decision on the Current Claim
If, after consideration of the merits, the Appeals Council would otherwise
dismiss, deny the request for review or issue an unfavorable decision, OAO
personnel will combine the claims and forward them to the appropriate DDS
for readjudication through the date of the ALJ's decision on the current
claim or, if the ALJ had dismissed, through the date of reconsideration of
the current claim (see sample remand language at Attachment
14).
b. Appeals Council Intends to Issue a Favorable Decision on the
Current Claim -- No Bozzi 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
Bozzi 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 Bozzi claim and issue a decision that
adjudicates both applications. The Appeals Council's decision will clearly
indicate that the Appeals Council considered the
Bozzi claim pursuant to the
Bozzi Stipulation and Order.
c. Appeals Council Intends To Issue a Favorable Decision on the
Current Claim -- Bozzi 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 Bozzi 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 DDS after the Appeals Council's decision is
effectuated. OAO staff will include the following language on the
transmittal sheet used to forward the case for effectuation:
"Bozzi court case review needed -- following
effectuation forward the attached combined folders to the appropriate
DDS."
d. 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 ALJ, it
will proceed with its intended action unless the exception below applies.
In its remand order, the Appeals Council will direct the ALJ to
consolidate the Bozzi 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 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 a
court-ordered time limit makes consolidation impractical, OAO will forward
the Bozzi class member claim to the appropriate DDS
for separate review. The case flag in Attachment 13 should be modified to
indicate that the Appeals Council, rather than an ALJ, is forwarding the
Bozzi class member claim for separate
processing.
4. Current Claim Pending at the Appeals Council Does Not Have Issue
in Common with the Bozzi Claim
OAO will forward the Bozzi class member claim to
the appropriate DDS for separate review. The case flag in Attachment 13
should be modified to indicate that the Appeals Council, rather than an
ALJ, is forwarding the Bozzi 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 ALJ
should dismiss the request for hearing on the current claim, and HO
personnel should enter “OTDI” in the “DSP”
field.
To identify class member cases in HOTS, HO personnel will code
“BZ” 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 April 26, 1993; Approved and Filed by
the Court on May 26, 1993
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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LOUISE BOZZI, et al., |
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Plaintiffs |
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v. |
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CIVIL ACTION NO. 90-2580 |
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DONNA E. SHALALA, |
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Secretary of Health |
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and Human Services |
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Defendant. |
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ORDER |
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AND NOW this 26 day of May, 1993, a hearing on the fairness of proposed Stipulation of Settlement having been held on May 26, 1993, it is hereby ordered that the Stipulation of Settlement received by the Court on April 23, 1993 is approved and immediately effective. |
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/s/
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John P. Fullam. |
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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LOUISE BOZZI, et al., |
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Plaintiffs |
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v. |
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CIVIL ACTION NO. 90-2580 |
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DONNA E. SHALALA,1 |
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Secretary of Health |
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and Human Services, |
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Defendant. |
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STIPULATION AND ORDER
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WHEREAS the court rendered a decision on February 14, 1991, certifying a plaintiff class (plaintiffs) and denying defendant's motion to dismiss, and |
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WHEREAS the parties have agreed to resolve all of the outstanding dis putes in this case without further litigation, |
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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: |
Scope of the Class
1.
The class members who shall be entitled to seek relief under the terms of
this stipulation and order, shall include, subject to the provisions of
¶ 2 of this stipulation and order, any individual who:
(a)(1) had a claim for disabled widow's, widower's, or surviving divorced
spouse's benefits (DWB) under 42 U.S.C. § 402 (e) or (f) denied, or
had entitlement to such benefits terminated because disability had ceased,
at the reconsideration level of administrative review,
20 C.F.R. §
404.907 (1991), or higher, 20 C.F.R. § § 402.929, 404.967
(1991), between April 1, 1983 and May 5, 1990; or had two or more claims
for DWB denied at any administrative level between April 1, 1983 and
January 1, 1991; or
(a)(2) had a claim for DWB denied, or had entitlement to such benefits
terminated because disability had ceased, at any level of administrative
review between May 6, 1990 and January 1, 1991; and
(b) was residing in Pennsylvania, New Jersey, Delaware, or the Virgin
Islands when the last administrative decision she or he received, which
satisfies the provisions of (a)(1) or (a)(2), was made (i.e., on the date
of the notice of that decision); provided that
(c) the last administrative decision referred to in (b) was issued by a
State Disability Determination Service (DDS) or an office of the Office of
Hearings and Appeals (OHA) of the Social Security Administration (SSA)
which adjudicates claims of residents of Pennsylvania, New Jersey,
Delaware, or the Virgin Islands, based on a finding that she or he did not
satisfy the disability standard of 42 U.S.C. § 423 (d) (2) (B) before
that section was amended by the Omnibus Budget Reconciliation Act of 1990
(OBRA), Pub. L. No. 101-508, § 5103, 104 Stat. 1388 (1990) (amending
42 U.S.C. § 423 (d) (2) (A) and (B)) (effective January 1,
1991).
2.
The class shall exclude any individual who:
(a) filed a claim for Title II disability insurance benefits (DIB) or
Title XVI disability benefits (SSI) concurrently with, or after, all DWB
claims(s) by virtue of which she or he would satisfy ¶ 1(a)(1) or
(a)(2), and received a final administrative denial or a final judgment
adverse to the individual from a federal district or appellate court at
steps one, two, four or five of the sequential evaluation process,
20 C.F.R. §§
404.1520,
416.920 (1991),
or
(b) filed a complaint in federal district court based on an administrative
denial of any DWB claim(s) or termination of DWB by virtue of which she or
he would satisfy ¶
1(a)(1) or (a)(2), and received a final judgment adverse to the
individual from a federal district or appellate court, or
(c) filed a claim for DWB on or after January 1, 1991, which was denied
administratively on the ground that the claimant did not meet the
disability standard set forth in OBRA, Pub. L. No. 101-508, § 5103,
104 Stat. 1388 (1990) (amending 42 U.S.C. § 423 (d)(2)(A) and (B))
(effective January 1, 1991), or
(d) had a claim for DWB denied on the ground that she or he did not
satisfy the disability standard of
Social Security Ruling (SSR)
91-3p, or
(e) at the time the class membership determination is made under ¶ 7
of this stipulation and order, has been determined to be a member of
another class certified in another circuit, which has challenged in
federal court the Secretary's interpretation or application of the former
42 U.S.C. § 423 (d) (2) (B) as it was in effect prior to January 1,
1991, or who
(f) received a fully favorable decision on a subsequent DWB claim, with
entitlement commencing at the earliest possible month of entitlement, as
described in ¶ 15 of this stipulation and order.
Standard for Readjudication
3.
In readjudicating claims pursuant to this stipulation and order, SSA shall
apply: (a) the standard set forth in
SSR 91-3p in determining
entitlement to DWB for any month(s) before January 1991; and (b) the
standard set forth in OBRA, Pub. L. No. 101-508, § 5103, 104 Stat.
1388 (1990) (amending 42 U.S.C. § 423 (d) (2) (A) and (B)) (effective
January 1, 1991), in determining entitlement to DWB for any month(s) after
December 1990.
Identification of Potential Class Members
4.
SSA will, by means of its data processing systems, identify the names,
Social Security Numbers and last known addresses of potential class
members who meet the provisions of ¶ 1 of this stipulation and order.
SSA will identify potential class members within 195 days of the date that
the court enters this stipulation and order.
Notices to Potential Class Members
5.
SSA will mail notices within forty-five (45) days of the date on which it
issues instructions to the SSA offices in accordance with ¶ 20 of
this stipulation and order to potential class members identified pursuant
to ¶ 4 of this stipulation and order, at the addresses last shown in
SSA's records. (“SSA offices” for purposes of this
stipulation and order are defined as SSA district and branch offices, OHA
hearing offices, DDS offices, Program Service Centers, and the Appeals
Council.) SSA will send all notices by first class mail. SSA will notify
class counsel of the date of the mailing of the notices thirty (30) days
in advance of mailing. The notice will inform the potential class member
that she or he may be entitled to have her or his DWB claim readjudicated;
the notice that SSA will use, and to which the parties agree, is attached
hereto as Attachment 1. SSA will mail the notices required by this
paragraph with a request for review form and postage-paid envelope
pre-addressed to the SSA office designated by SSA to receive the request
for review forms. If a notice is returned as undeliverable, SSA will
attempt to obtain a current address by requesting that the State
governments in the states of Pennsylvania, New Jersey, Delaware, as well
as the government in the Virgin Islands, subject to the requirements of
the Privacy Act, as amended by the Computer Matching and Privacy
Protection Act, 5 U.S.C. § 552a, provide current addresses through a
computerized match with the records of an appropriate agency or agencies
of each State and the Territory of the Virgin Islands; provided that the
defendant shall not be required to institute legal proceedings to gain
access to these data system records or to reimburse or compensate the
States or Territory for searching such records. SSA will send the notice a
second time by first class mail to all potential class members for whom
the computerized match produces a different address. The second notices
will be sent promptly after SSA's receipt of computer information from all
the above-described states. If the computerized match does not produce a
different address for a potential class member, SSA will send the notice a
second time to the address last shown on its records. Within a reasonable
time after the expiration of the time for response to the second notice,
SSA will provide class counsel with a list of the names of all potential
class members whom SSA is still unable to locate. The list shall be
organized in alphabetical order by last name and contain the last known
address and the date the notice was last mailed.
6.
Potential class members who wish to seek relief under this stipulation and
order must request readjudication of their DWB claims within 120 days of
the date on which they receive the notice referred to in ¶ 5 of this
stipulation and order. SSA will presume that notices are received five (5)
days after mailing, unless the potential class member establishes that
receipt actually occurred later, in which case the 120 days to request
readjudication shall be counted from the date of actual receipt. SSA will
presume that a request for review was mailed five (5) days before it was
received by SSA unless the respondent establishes that it was mailed
earlier, in which case the date of actual mailing will be used in
determining whether the response was timely. To request readjudication of
their DWB claims, potential class members must return the request for
review form enclosed with the class action notice referred to in ¶ 5.
However, potential class members may also request such readjudication in a
writing (other than the request for review form) mailed to SSA, or by
visiting a social security district office or branch office and stating an
intent to request readjudication. In determining whether a potential class
member has requested readjudication by either of the means described in
the preceding sentence, SSA shall construe all inquiries received from
potential class members concerning eligibility to DWB as requests for
readjudication if they can be reasonably construed as such. SSA will
provide potential class members who request readjudication as provided in
this paragraph with a dated, written confirmation of receipt. The good
cause provisions of 20
C.F.R. § 404.911 (1991) and
SSR 91-5p shall apply to
requests for readjudication under this stipulation and order. In no case
may a potential class member who satisfies one of the conditions of the
preceding sentence be entitled to readjudication under this stipulation
and order unless she or he requests such readjudication within three years
of the date on which SSA sends the notices described in ¶
5.
Determination of Class Membership
7.
SSA will determine whether each potential class member who requests
readjudication meets the criteria of ¶ 1 of this stipulation and
order and is not excluded under ¶ 2, and has timely and properly
requested readjudication in accordance with ¶ 6 of this stipulation
and order. SSA will make this determination within a reasonable period of
time.
8.
If SSA determines that an individual who requests readjudication under
this stipulation and order is not a class member or is otherwise not
entitled to readjudication under the terms of ¶ ¶ 1 and 2 of
this stipulation and order, or did not file a timely or proper request for
readjudication under ¶ 6, SSA will send a notice of this
determination to the individual, the individual's representative in any
proceeding described in ¶ 13, if known, and class counsel. The notice
will contain the name and address of class counsel and will inform the
individual that she or he must obtain assistance from class counsel if she
or he wishes to request SSA's further consideration of the denial of class
membership. The notice that SSA will use and to which the parties agree is
attached hereto as Attachment 2.
9.
If class counsel disagrees with a determination of class membership made
under ¶ 8 of this stipulation and order, counsel must, within sixty
(60) days of receipt of the notice described in ¶ 8, notify the
Office of the General Counsel (OGC), Department of Health and Human
Services, 3535 Market Street, Philadelphia, Pennsylvania 19104, in writing
of class counsel's disagreement, and specify the reasons for the
disagreement.
10.
Except as provided in ¶ 11, if class counsel does not notify OGC in
writing within the sixty (60) days specified under ¶ 9 of this
stipulation and order, the determination of non-class membership shall
take immediate effect and shall not be subject to review.
11.
Class counsel may inspect, and photocopy at no charge, the papers SSA
relied on in making the determination of an individual's class membership,
but must request such inspection in writing within sixty (60) days of
receipt of the notice described in ¶ 8. SSA and class counsel will
appoint a mutually agreeable time and SSA office at which class counsel
will inspect the requested papers. Should class counsel seek to postpone
the appointment, the appointment can be postponed for no more than thirty
(30) days. If, and only if, class counsel does inspect the papers, the
time in which class counsel must inform OGC of its disagreement with the
class membership determination is tolled until thirty (30) days after such
inspection. To protect the privileged information contained in the claims
file, class counsel may not use or disclose any information obtained from
the claims file without the permission of the individual, except for the
purpose of pursuing the individual's claim pursuant to this stipulation
and order. All such records may be disclosed only to potential class
members as described in ¶ 1, or their legal representatives, class
counsel and persons regularly employed by such legal representatives, and
may be used only for the purpose of pursuing an individual's claim in this
action for purposes directly related to this action, except with
permission of the individual.
12.
The parties will attempt to resolve any question of an individual's class
membership by negotiations between class counsel and OGC. If, after
negotiation, the parties 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 ¶ 10 of this stipulation and order, class counsel
may, by duly noticed motion, submit the unresolved matter to this court
for resolution. Such motion must be filed no 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.
Procedures for Readjudication
13.
SSA shall readjudicate all DWB claims finally decided on or after April 1,
1983, of class members entitled to relief under ¶ ¶ 1 and 2 who
requested readjudication pursuant to ¶ 6. All DWB claims entitled to
readjudication under the terms of this stipulation and order shall be
readjudicated at the reconsideration level of administrative review,
20 C.F.R. §
404.907 (1991), except as otherwise provided in this paragraph. If
any class member has another active Title II or Title XVI disability claim
simultaneously pending before SSA at any administrative review level, SSA
may, at its option, consolidate that claim(s) with the claim being
readjudicated under this stipulation and order. The consolidated claims
will be readjudicated at the reconsideration level of administrative
review, 20 C.F.R. § § 404.907, 416.1407 (1991), unless the
active claim(s) is (are) pending at the hearing or Appeals Council level
of administrative review,
20 C.F.R. §§
404.929,
404.967, 416.1429,
416.1467 (1991). If the active claim is pending at the hearing or Appeals
Council level, SSA may consolidate the claims at the hearing level for a
supplemental hearing, if necessary, and decision, or may remand them to
the DDS. In no case will SSA consolidate claims for review at the Appeals
Council, except to issue a fully favorable decision.
14.
If a class member has more than one DWB claim subject to readjudication
pursuant to this stipulation and order, SSA will consolidate all such
claims and readjudicate them at the reconsideration level of review. In no
event will SSA readjudicate any claim finally decided before April 1,
1983.
15.
In readjudicating claims under this stipulation and order in accordance
with ¶¶ 1, 2, and 14 of this stipulation and order, SSA will
consider the issue of disability from five months before the class
member's earliest potential entitlement date (or from the alleged onset
date if the class member's prescribed period, described in
20 C.F.R. §
404.335 (c)(1) (1991), ended prior to five months before the
earliest potential entitlement date) through the date on which the
readjudication determination is made. SSA will not readjudicate the issue
of disability for any period in which a class member received
DWB.
16.
In readjudicating claims under this stipulation and order, SSA shall
develop the record in accordance with applicable regulations and policy
governing development of social security disability claims,
20 C.F.R. §§
404.1512-.1518 (1991). Class members are required to cooperate with
and provide information needed by SSA to adjudicate her or his claim, as
provided in 20 C.F.R.
§§ 404.704-.728 (1991). Class members may submit new
evidence pertaining to the readjudication of their claim(s). 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 already before SSA. If SSA is
unable to obtain such files, it shall reconstruct the missing files to the
best of its ability.
17.
If a class member who is entitled to seek relief under this stipulation
and order satisfies ¶ 1 because her or his entitlement to DWB was
terminated, SSA shall promptly afford her or him an opportunity to elect
to receive interim benefits in accordance with 42 U.S.C. § 423 (g).
SSA shall give priority to class membership determinations of potential
class members whose entitlement to DWB was terminated and will make every
effort to determine their class membership pursuant to ¶ 7 of this
stipulation and order prior to other class members.
18.
Except as otherwise expressly provided in this stipulation and order, any
class member who elects readjudication in accordance with this stipulation
and order will have her or his claim readjudicated in accordance with the
Social Security Act, the regulations promulgated thereunder, and the
policies and procedures of SSA, including but not limited to the
provisions pertaining to retroactive DWB and Medicare benefits and to
exclusion of the unspent portion of retroactive benefits from Supplemental
Security Income resource determinations.
19.
Class members shall retain all rights to seek further administrative and
judicial review of determinations made on readjudication in accordance
with 42 U.S.C. § 405 (g) and 20 C.F.R. pt. 404, subpt. J
(1991).
Timeframes for Readjudication
20.
SSA will issue instructions to the SSA offices for processing the
readjudications required by this stipulation and order within 195 days of
the date on which the court enters this stipulation and order. SSA will
send an advance copy of such instructions to class counsel at least thirty
(30) days before issuing them.
21.
SSA will make a good faith effort to complete the readjudication of the
claims of each class member identified under ¶ 1 of this stipulation
and order and not excluded under ¶ 2, who timely and properly
requested readjudication in accordance with ¶ 6, within four years of
the date on which the individual requested readjudication.
22.
The parties may, by written agreement, alter any time period specified in
this stipulation and order. Such agreements need not be filed with the
court, unless either party deems it appropriate to do so.
Reports to Class Counsel
23.
SSA will use its best efforts to maintain, by a 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 deliverable;
(d) the number of individuals screened for class membership and timeliness
in accordance with ¶ 7 of this stipulation and order with a breakdown
of the number determined not to be members of the class, and the number
determined to members of the class;
(e) the number of individuals who receive favorable DDS
determinations;
(f) the number of individuals who receive unfavorable DDS
determinations.
SSA will provide reports containing the information maintained in the
tracking system to class counsel once every three (3) months commencing
ninety (90) days after SSA mails the notices required under ¶ 5 of
this stipulation and order. Upon request, SSA will provide class counsel
with a reasonable random sample of individual files for decisions on class
members' claims for inspection at a mutually agreed upon SSA office. Any
quality assurance forms or other review forms which are in the file will
be left in the file for inspection by class counsel. Class counsel must
arrange an appointment for inspection of the files at a mutually agreed
upon SSA field office; if class counsel seeks to postpone the appointment,
the appointment can be postponed no more than thirty (30) days. Once SSA
has substantially completed the readjudications required by this
stipulation and order and placed the information identified at (a) through
(f) of this paragraph into the tracking system, SSA shall so advise class
counsel by providing them a final report.
Dispute Resolution
24.
With respect to this action, the court shall retain jurisdiction only over
matters relating to compliance with the terms of this stipulation and
order.
25.
If either party seeks judicial resolution of any dispute arising under
this stipulation and order, the time limits set forth in this stipulation
and order which are affected thereby will be suspended, and will begin
running anew only following resolution of the issue by the
court.
Precedent
26.
This stipulation and order is not and shall not be construed as an
admission by the defendant of the truth of any allegation or the validity
of any claim asserted in this action or of defendant's liability therein,
nor is it a concession or an admission of any fault or omission in any act
or failure to act, or any statement, written document or report heretofore
issued, filed, or made by any defendant, nor shall this stipulation and
order nor any papers related hereto, nor any of the terms hereof be
offered or received in evidence or in any way referred to in any civil,
criminal, or administrative action or proceeding other than such
proceedings as may be necessary to consummate or enforce this stipulation
and order, nor shall they be construed by anyone for any purpose
whatsoever as an admission of any wrongdoing on the part of
defendant.
Final Judgment
27.
This stipulation and order resolves all claims by plaintiffs in this
action, except those dismissed without prejudice under paragraph 28, that
the Secretary applied an incorrect standard in evaluating DWB claims under
42 U.S.C. § 423(d)(2)(B) (repealed 1990).
28.
The claims of any individuals who were included in the class originally
certified by the court, but who are not entitled to readjudication
pursuant to ¶¶ 1 and 2 of this stipulation and order, will be
dismissed without prejudice.
29.
The undersigned plaintiffs' counsel hereby represent, warrant, and
guarantee that they are duly authorized to execute this stipulation and
order on behalf of the plaintiffs, Louise
BOZZI, et al., and all of the
members of the class they represent. Defendant's counsel, by signing
below, represent that they are authorized to stipulate to the settlement
of issues in this action.
30.
This stipulation and order shall be effective only upon entry of the order
by the court.
31.
Plaintiffs are the prevailing parties for the purposes of an award of
attorney's fees. Plaintiffs' entitlement to and the amount of such fees
shall be determined at a later date by the parties or the Court, upon a
timely application made pursuant to 28 U.S.C. § 2412.
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FOR PLAINTIFFS: |
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FOR DEFENDANT: |
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/s/ |
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Michael J. Rotko |
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Catherine C. Carr |
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United States Attorney |
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and James M. Lafferty |
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Community Legal Services, Inc. |
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Joan K. Garner |
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Law Center South |
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Assistant United States Attorney |
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1226 South Broad Street |
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Deputy Chief, Civil Division |
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Philadelphia, Pennsylvania 19146 |
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/s/ |
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Marilyn S. May |
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Assistant United States Attorney |
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615 Chestnut Street |
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Philadelphia, Pennsylvania, 19106 |
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Charlotte Hardnett |
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Chief Counsel |
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By: |
/s/ |
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Dorothea J. Lundelius |
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Division Chief |
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3535 Market Street |
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P.O. Box 13716 |
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Philadelphia, Pennsylvania, 19106 |
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APPROVED AND ORDERED: |
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/s/ |
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John P. Fullam |
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United States District Judge |
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April 26, 1993 |
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Date |
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IMPORTANT INFORMATION |
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NOTICE |
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_____________________________________ |
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DATE: ___________________________ |
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_____________________________________ |
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CLAIM NUMBER: __________________ |
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_____________________________________ |
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DOC: ____________________________ |
READ CAREFULLY -
PLEASE RESPOND TO THIS NOTICE WITHIN 120 DAYS
We are writing to you about your past claim for disabled widow's,
widower's or surviving divorced spouse's disability benefits. Because of a
court case called Bozzi v. Sullivan
you may be able to get money from Social Security. Please read this letter
carefully.
What You Need to Do
You can ask us to look at your claim again using our new rules. If you
want us to do this, fill out the enclosed reply form and send it to us
now. You have 120 days from the day you receive this letter to do it, but
don't wait. If you don't send the reply form back, we may not be able to
review your claim.
If you lose the form, you can come to a Social Security Office or write a
letter to the address above, instead.
After we hear from you, we will check your records to see if you are
entitled to review of your disability claim. We will send you a notice
about what we decide.
If we were paying you disabled widow's, widower's or surviving divorced
spouse's disability benefits in the past and we stopped your benefits, you
may be eligible to have your benefits started again while we decide your
case. If this applies to you, we will get in touch with you and tell you
how you can get these monthly benefits.
If You Now Get Money from Social Security
Even if you now get money from Social Security, we may still owe you more.
Return the reply form within 120 days to ask us to review your
claim.
If You Have Any Questions
If you have any questions, you may contact 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 bring this letter with you.
It will help us to answer your questions.
Additionally, if you have someone helping you with your claim, you should
contact him/her. You may also ask for legal help by contacting a legal aid
organization in your area, or by contacting the lawyers in the
Bozzi case:
BOZZI COUNSEL
COMMUNITY
LEGAL SERVICES, INC.
1226 South Broad Street
Philadelphia,
Pennsylvania 19146-3119
Telephone No.:
Remember, if you want your claim reviewed, please complete the reply form
and return it to us before 120 days is up. You cannot simply call us. You
must complete the form, write us a letter, or come into our office before
the 120 days is up.
ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL.
FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR AL SEGURO
SOCIAL, AL 1-800-772-1213 O IR A LA OFICINA DE SEGURO SOCIAL A LA DIRECION
INDICADA EN LA PRIMERA PAGINA.
Enclosures:
Reply Form
Envelope
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security
Administration
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____________________________________________________________________________ |
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BOZZI v. SULLIVAN REPLY FORM
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____________________________________________________________________________ |
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IMPORTANT
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RETURN THIS FORM WITHIN 120 DAYS TO REQUEST REVIEW OF YOUR CLAIM
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____________________________________________________________________________ |
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IF YOU WANT YOUR CLAIM REVIEWED, PLEASE SIGN AND DATE THIS FORM. YOU MUST
ALSO FILL IN THE FOLLOWING INFORMATION AND RETURN THE FORM IN THE
SELF-ADDRESSED, PRE-PAID ENVELOPE.
SIGNATURE ____________________________ DATE _______________________
Write the area code and the telephone number where we can call
you.
(AREA
CODE) ____________ TELEPHONE
NUMBER _________________________
[ ] Check
this block only if your address is different than shown above, and enter
your correct address.
______________________________________________________________
ADDRESS
(NUMBER AND STREET, APT. NO., P.O. BOX, OR RURAL ROUTE)
_____________________________________________________________
CITY
and STATE ZIP CODE
[ ] Check
this block if you filed a Social Security Claim on a number that is
different than the claim number shown above, and enter the other
number.
________________________________
SOCIAL
SECURITY CLAIM NUMBER
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Date:
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Claim Number: ;
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THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY WIDOW'S,
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WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S DISABILITY CLAIM.
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PLEASE READ IT CAREFULLY!
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YOU ASKED US TO REVIEW YOUR CASE UNDER THE TERMS OF THE BOZZI V. SULLIVAN SETTLEMENT AGREMENT. WE HAVE LOOKED AT YOUR CASE AND DECIDED THAT YOU ARE NOT A BOZZI CLASS MEMBER. THIS MEANS THAT WE WILL NOT REVIEW OUR EARLIER DECISION TO DENY OR CEASE YOUR BENEFITS. THE REASON YOU ARE NOT A CLASS MEMBER UNDER THE BOZZI SETTLEMENT AGREEMENT IS CHECKED BELOW. |
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WHY YOU ARE NOT A CLASS MEMBER
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YOU ARE NOT A BOZZI CLASS MEMBER BECAUSE: |
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[ ] |
YOU DID NOT RESIDE IN PENNSYLVANIA, DELAWARE, NEW JERSEY, OR THE VIRGIN ISLANDS WHEN YOUR CLAIM WAS DENIED. |
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[ ] |
YOU DID NOT RECEIVE A FINAL DECISION BETWEEN APRIL 1, 1983 AND JANUARY 1, 1991 ISSUED BY THE PENNSYLVANIA, DELAWARE, NEW JERSEY, OR THE VIRGIN LANDS DISABILITY DETERMINATION SERVICES (DDS) OR THE OFFICE OF HEARINGS AND APPEALS DENYING/CEASING DISABILITY BENEFITS |
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[ ] |
YOU DID NOT APPEAL THE DENIAL DECISION OR FILE A SECOND CLAIM BEFORE JANUARY 1, 1991 (DOES NOT APPLY IF DECISION WAS ISSUED AFTER MAY 5, 1990 |
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[ ] |
YOUR CLAIM WAS DENIED/CEASED FOR SOME REASON OTHER THAN YOUR MEDICAL CONDITION. THAT REASON WAS ________________________. |
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[ ] |
YOU FILED A CLAIM FOR DISABILITY INSURANCE BENEFITS OR SUPPLEMENTAL SECURITY INCOME AT THE SAME TIME AS YOUR WIDOW'S, WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S CLAIM (OR LATER] AND THAT CLAIM WAS DENIED BECAUSE YOU WERE FOUND NOT DISABLED. |
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[ ] |
YOU FILED ANOTHER WIDOW'S, WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S CLAIM WHICH WAS DENIED AFTER JANJARY 1, 1991 BECAUSE YOU WERE FOUND NOT DISABLED. |
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[ ] |
YOUR CLAIM HAS ALREADY BEEN REVIEWED UNDER THE NEW STANDARD USED IN THE BOZZI SETTLEMENT AGREEMENT. |
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YOUR WIDOW'S, WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S CLAIM WAS REVIEWED BY A UNITED STATES DISTRICT COURT. |
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YOU HAVE ALREADY RECEIVED ALL THE BENEFITS YOU COULD RECEIVE UNDER THE BOZZI SETTLEMENT AGREEMENT. |
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YOU DID NOT RETURN YOUR REPLY FORM WITHIN 120 DAYS. IF YOU BELIEVE YOU HAD GOOD CAUSE FOR REQUESTING REVIEW LATE, CONTACT COMMUNITY LEGAL SERVICES AT THE ADDRESS LISTED BELOW. |
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OTHER: _______________________________________________________ |
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WE ARE NOT DECIDING IF YOU ARE DISABLED
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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 BOZZI CLASS MEMBER. |
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IF YOU DISAGREE WITH THIS DETERMINATION
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YOU MUST CONTACT: |
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BOZZI COUNSEL |
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COMMUNITY LEGAL SERVICES, INC. |
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1226 SOUTH BROAD STREET |
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PHILADELPHIA, PENNSYLVANIA 19146-3119 |
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TELEPHONE NO. |
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-AND- |
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THE BOZZI LAWYERS CAN ASSIST YOU AND, IF APPROPRIATE, NOTIFY SOCIAL SECURITY THAT YOU DISAGREE WITH THIS DETERMINATION. BECAUSE THE LAWYERS MUST ACT WITHIN 60 DAYS, PLEASE CONTACT THEM IMMEDIATELY TO PROTECT YOUR RIGHTS. |
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ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL. FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR A SU OFICINA DE SEGURO SOCIAL PARA UNA EXPLICACION. |
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____________________________________________________________________________ |
1 Donna E. Shalala succeeded Louis W. Sullivan,
M.D., as Secretary of Health and Human Services on January 22, 1993.
Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Donna
E. Shalala should be substituted, therefore, for Louis W. Sullivan, M.D.,
as to the defendant in this suit. No further action need be taken to
continue this suit by reason of the last sentence of section
205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
Attachment 2. - Bozzi COURT CASE
FLAG/ALERT
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TITLE: II
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CATEGORY:
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REVIEW OFFICE |
PSC |
MFT |
DOC |
ALERT DATE |
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SSN OR HUN
000-00-0000
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RESP DTE |
TOE |
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FOLDER LOCATION INFORMATION |
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TITLE |
CFL |
CFL DATE |
ACN |
PAYEE ADDRESS |
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SCREENING OFFICE ADDRESS:
DHHS, SSA
MID-ATLANTIC PROGRAM
SERVICE CENTER
P.O. BOX 2857
PHILADELPHIA, PA
19122-9973
IF CLAIM IS PENDING IN OHA, THEN SHIP FOLDER TO:
OFFICE
OF HEARINGS AND APPEALS
OFFICE OF CIVIL ACTIONS, DIVISION
II
ONE SKYLINE TOWER, SUITE 800
5107 LEESBURG
PIKE
FALLS
CHURCH, VA 22041-3200
ATTN: Bozzi SCREENING UNIT
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CURRENT PAY: |
_______YES |
_______NO |
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Attachment 3. - Route Slip or Case Flag for
Screening
Bozzi Class Action Case
SCREENING NECESSARY
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Claimant's name: |
___________________________ |
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SSN: |
___________________________ |
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This claimant may be a Bozzi 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 5-4-42 for additional information and instructions.
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TO: |
__________________________________
__________________________________
__________________________________
__________________________________
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CLASS ACTION CODE: B 2
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1. WAGE EARNER'S SSN
___ ___ ___ ___ - ___ ___ - ___ ___ ___ __
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BIC
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2. CLAIMANT'S NAME (FIRST, MI, LAST)
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3. SCREENING DATE (MONTH, DAY, YEAR)
___ ___ - ___ ___ - ___ ___
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4. a. SCREENING RESULT
___MEMBER (J) ___NONMEMBER (F)
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b. SCREENOUT CODE
___ ___(see item 16 for screenout codes)
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5. Is this a title II disabled widow/widower or surviving divorced spouse claim?
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Yes___No___
(if No go to 16)
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6. Was a determination/decision issued on this claim at any administrative level by a DDS within the Third Circuit (Delaware, New Jersey, Pennsylvania or Virgin Islands) or OHA office servicing residents of the Third Circuit between April 1, 1983, and December 31, 1990, 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 denial controls for class membership screening purposes.)
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Yes___No___
(if No go to 16)
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7.Was a decision issued at the reconsideration level or above,by the DDS or OHA denying/ceasing entitlement to DWB between April 1, 1983 and May 5, 1990, inclusive; or
Did the individual receive decisions on two or more separate claims at any level, denying/ceasing entitlement to DWB between April 1, 1983 and December 31, 1990, inclusive; or
Did the individual receive a less than fully favorable DWB decision at any administrative level between May 6, 1990, and December 31, 1990, inclusive?
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Yes___No___
(if No go to 16)
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8. Did the individual reside in Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time the determination/decision described in question No. 7 was issued?
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Yes___No___
(if No go to 16)
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9.Was the denial/cessation of benefits on the potential Bozzi claim(s) for some reason other than the individual's medical condition (e.g., SGA)?
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Yes___No___
(if No go to 16)
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10. Did the individual receive a subsequent fully favorable DWB determination/decision which established entitlement and paid benefits commencing with the earliest possible month of entitlement in the potential Bozzi claim(s)?
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Yes___No___
(if No go to 16)
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11. Did the individual file a claim for DWB on or after January 1, 1991, which was denied administratively on the round that he or she did not meet the disability standard set forth in § 5103 of OBRA 90, and had no claim for entitlement to DWB for any month(s) before January 1991?
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Yes___No___
(if No go to 16)
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12. Did the individual receive a denial/cessation decision under SSR 91-3p?
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Yes___No___
(if No go to 16)
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13. Did the individual file claim(s) for title XVI or title II worker's disability covering the entire timeframe at issue in the potential Bozzi claim(s), concurrently with or after all DWB claims; and was the final administrative or court denial/cessation determination made on these claim(s) on the spouse(s) or the widow's own account number, issued at steps 1, 2, 4 or 5 of the sequential evaluation process?
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Yes___No___
(if No go to 16)
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14. Did the individual receive a final adverse judgment from a Federal district court or appellate court on the potential class member claim(s)?
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Yes___No___
(if No go to 16)
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15. Has the individual been determined to be a member of another DWB class action?
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Yes___No___
(if No go to 16)
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16. The individual is not a class member entitled to Bozzi relief. Enter the screenout code in item 4 b. as follows:
Enter 05 if
question 5 was answered "NO".
Enter 06 if question 6 was
answered "NO".
Enter 07 if question 7 was answered "NO".
Enter
08 if question 8 was answered "NO".
Enter 09 if question
9 was answered "YES".
Enter 10 if question 10 was answered
"YES".
Enter
11 if question 11 was answered "YES".
Enter 12 if question
12 was answered "YES".
Enter 13 if question 13 was answered
"YES".
Enter
14 if question 14 was answered "YES".
Enter 15 if question
15 was answered "YES".
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No other screenout code entry is appropriate.
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17. On the lines below, please enter the date(s) of all applications screened the date(s) of all final decision considered in the screening process and indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC).
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_______________ ________________ ________________ ________________;
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PRINT SCREENER'S NAME: |
COMPONENT AND PHONE NO.
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DATE
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SIGNATURE:
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BOZZI SCREENING SHEET INSTRUCTIONS
COMPLETE ONLY ONE SCREENING SHEET EVEN IF THE CLAIMANT RECEIVED MULTIPLE DETERMINATIONS/DECISIONS WITHIN THE CLASS DATES. HOWEVER, THE SCREENING SHEET PROVISIONS MUST BE CONSIDERED SEPARATELY FOR EACH CLAIM. A CLASS MEMBER WHO RECEIVED MULTIPLE DETERMINATIONS/DECISIONS IS ELIGIBLE FOR READJUDICATION ONLY ON THOSE CLAIMS MEETING ALL CLASS MEMBERSHIP REQUIREMENTS.
Questions 1 - 4
Fill in wage earner's SSN, widow(er)'s or
surviving divorced spouse's name, and current date. Also, enter the
member/non-member information, and the screenout code, if appropriate,
once screening has been completed.
Question 5
Screen for claim type. If question is answered “No,” enter
the appropriate screenout code in item 4.b. as directed in item 16 on the
screening sheet and check the “non-member” block in item
4.a.
Question 6
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 April 1, 1983, and December
31, 1990, 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 6 is “No,”
enter the appropriate screenout code in item 4.b. as directed in item 16
on the screening sheet and check the “non-member” block in
item 4.a.
Question 7
This question provides three timeframes for consideration of class
membership. If a claimant received only one determination or decision
during the class period, and that action was dated between April 1, 1983
and May 5, 1990, inclusive, the claimant is a potential class member
only when the action occurred at the
reconsideration level or above. However, if a claimant received only one
determination or decision and that action was dated between May 6, 1990,
and December 31, 1990, inclusive, the claimant is a potential class member
when the action occurred at any administrative level. If a claimant filed
two or more claims on which he or she received medical determinations or
decisions, those actions may have occurred at any time within the class
period and at any level. If the answer to question 7 is “No,”
enter the appropriate screenout code in item 4.b. as directed in item 16
on the screening sheet and check the “non-member” block in
item 4.a
Question 8
Screen for residency for each claim. The
DDS determination (SSA-831/833) or OHA decision must be dated on or after
April 1, 1983, but no later than December 31, 1990, to determine
residency. If question is answered “No,” enter the
appropriate screenout code in item 4.b. as directed in item 16 on the
screening sheet and check the “non-member” block in item
4.a.
Question 9
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.
The non-medical denial codes are: N1, N2, L1, L2, M7, M8. (For a complete
list of DWB denial codes see POMS
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. The
last administrative determination or
decision in each and every claim must have been on a non-medical basis for
this screen-out to apply. If the answer to question 9 is
“Yes,” enter the appropriate screenout code in item 4.b. as
directed in item 16 on the screening sheet and check the
“non-member” block in item 4.a.
Question 10
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 benefits were
subsequently allowed or continued from the earliest alleged onset date,
cessation date, or control date of a claim decided within the timeframes
for class membership (April 1, 1983, through December 31, 1990,
inclusive). The control date is the date by which disability needs to be
established to permit a fully favorable determination or decision, based
on such factors as the claimant's age, retroactivity of the application,
the alleged onset date, etc. The control date is either the alleged onset
date, the ending date of the prescribed period or five full months before
the first possible month of entitlement. 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 Bozzi timeframe when
determining if the subsequent decision is fully favorable. If the answer
to question 10 is “Yes,” enter the appropriate screenout code
in item 4.b. as directed in item 16 on the screening sheet and check the
“non-member” block in item 4.a.
Question 11
Check the file(s) to determine if claimant's potential class member claim
was filed on or after January 1, 1991. If the answer to question 11 is
“Yes,” enter the appropriate screenout code in item 4.b. as
directed in item 16 on the screening sheet and check the
“non-member” block in item 4.a.
Question 12
Check file(s) to determine if the claimant received a decision under
SSR 91-3p which covered
the earliest possible entitlement on the potential
Bozzi claim(s). If the answer to question 12 is
“Yes,” enter the appropriate screenout code in item 4.b. as
directed in item 16 on the screening sheet and check the
“non-member” block in item 4.a.
Question 13
Check file(s) and queries (e.g., AACT, SSID) for the claimant's SSN to
determine whether the claimant received a denial/cessation decision on a
concurrent claim for SSI or worker's disability which covered the
timeframe at issue in the potential Bozzi claim. If
so, review the file(s) to determine whether the claimant's residual
functional capacity (RFC) was assessed for the entire timeframe at issue
in the potential Bozzi claim(s). The following
codes in block 22 of the SSA-831-U3 and SSA-833-U3 indicate
denial/cessation on the basis that the claimant retained the RFC to
perform SGA: title II denials (H1, H2, J1, J2, E3 and E4) and 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 12
is “Yes,” enter the appropriate screenout code in item 4.b.
as directed in item 16 on the screening sheet and check the
“non-member” block in item 4.a.
Question 14
Check file(s) and OHAQ query to determine whether a Federal district or
circuit court has rendered a final judgment on the potential class member
claim. If necessary, OHA screeners should contact the Office of Civil
Actions, Division II (if not the screening component), to determine the
status of any complaint filed. If the answer to question 14 is
“Yes,” enter the appropriate screenout code in item 4.b. as
directed in item 16 on the screening sheet and check the
“non-member” block in item 4.a.
Question 15
Check file(s) for screening sheets or any other information indicating
that the claimant may be a member of another DWB class action, e.g.,
Begley, Hill,
Martel. If necessary, OHA screeners should contact
the Division of Litigation Analysis and Implementation to coordinate with
the ODCP Litigation Staff concerning class member data maintained on the
Civil Action Tracking System. If the answer to question 15 is
“Yes,” enter the appropriate screenout code in item 4.b. as
directed in item 16 on the screening sheet and check the
“non-member” block in item 4.a.
Processing Class Member Determinations
a.
Check the “Member” block in item 4.a. of the screening
sheet.
b.
Sign and date the screening sheet. Enter the name of the screening
component, e.g., OHA, OAO, Branch XX, and the screener's phone
number.
c.
Show the dates of all applications
screened and the dates of the final administrative action on
each.
d.
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: Bozzi Coordinator
e.
For cessation cases, follow
HALLEX Temporary Instruction (TI) 5-4-42,
Parts VI. B. and D. or E.
f.
For initial entitlement cases, follow TI 5-4-42,
Parts VI. D. or E.
Processing Non-class Member Determinations
a.
Check the “Non-member” block in item 4.a. of the screening
sheet.
b.
Follow items b. - d. above.
c.
Prepare notice and forward the claim file(s) as indicated in TI 5-4-42,
Part V. B. 3.
Attachment 5. - Route Slip for Routing Class Member Alerts and Prior Claim
File(s) to ODIO and PSC -- OHA No Longer Has Current Claim
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ROUTING AND TRANSMITTAL SLIP |
DATE |
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TO: |
INITIALS |
DATE |
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1. |
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2. |
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3. |
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4. |
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5. |
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6. |
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7. |
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__XX_ACTION |
_____FILE |
_____NOTE AND RETURN |
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_____APPROVAL |
_____FOR CLEARANCE |
_____PER CONVERSATION |
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_____AS REQUESTED |
_____FOR CORRECTION |
_____PREPARE REPLY |
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_____CIRCULATE |
_____FOR YOUR INFORMATION |
_____SEE ME |
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_____COMMENT |
_____INVESTIGATE |
_____SIGNATURE |
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_____COORDINATION |
_____JUSTIFY |
_____OTHER |
REMARKS
BOZZI CASE
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Claimant: |
___________________________ |
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SSN: |
___________________________ |
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OHA received the attached alert [and prior claim file(s)] for screening
and no longer has the current claim file. Our records show that you now
have possession of the current claim. Accordingly, we are forwarding the
alert and any accompanying prior claim file(s) for association with the
current claim. After associating the alert with the current claim, please
forward to the Mid-Atlantic Program Service Center for screening and
possible readjudication.
SEE POMS DI 42534.010 OR DI 12534.005A.3.
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DO NOT use this form as a RECORD of approvals, concurrences, disposals,clearances, and similar actions.
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FROM:
Office of Hearings and Appeals
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SUITE / BUILDING
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PHONE NUMBER
_______________
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OPTIONAL FORM
41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020
Prescribed by GSA
FPMR
(41 CFR) 101-11.206
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Attachment 6. - Bozzi Non-Class Membership Notice
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SOCIAL
SECURITY NOTICE
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Important Information
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From: |
Department of Health and Human Services Social Security Administration
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____________________________Date:____-____-____ |
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____________________________Claim Number:____________________ |
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____________________________DOC:___________________________ |
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY WIDOW'S,
WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S DISABILITY CLAIM.
PLEASE READ IT CAREFULLY!
You asked us to review your case under the terms of the Bozzi
v. Shalala settlement agreement. We have looked at your case
and decided that you are not a Bozzi class member.
This means that we will not review our earlier decision to deny or cease
your benefits. The reason you are not a class member under the
Bozzi settlement agreement is checked below.
WHY YOU ARE NOT A CLASS MEMBER
You are not a Bozzi class member because:
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___ |
You did not reside in Pennsylvania, Delaware, New Jersey, or the Virgin Islands when your claim was denied.
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___ |
You did not receive a final decision between April 1, 1983 and January 1, 1991 issued by the Pennsylvania, Delaware, New Jersey, or the Virgin Islands Disability Determination Services (DDS) or the Office of Hearings and Appeals denying/ceasing disability benefits.
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___ |
You did not appeal the denial decision or file a second claim before January 1, 1991 (does not apply if decision was issued after May 5, 1990).
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___ |
Your claim was denied/ceased for some reason other than your medical condition. That reason was __________________________________________________________
__________________________________________________________
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___ |
You filed a claim for disability insurance benefits or supplemental security income at the same time as your widow's, widower's or surviving divorced spouse's claim [or later] and that claim was denied because you were found not disabled.
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___ |
You filed another widow's, widower's or surviving divorced spouse's claim which was denied after January 1, 1991 because you were found not disabled.
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___ |
Your claim has already been reviewed under the new standard used in the Bozzi settlement agreement.
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___ |
Your widow's, widower's or surviving divorced spouse's claim was reviewed by a United States District Court.
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___ |
You have already received all the benefits you could receive under the Bozzi settlement agreement.
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___ |
You did not return your reply form within 120 days. If you believe you had good cause for requesting review late, contact Community Legal Services at the address listed below.
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Other: |
__________________________________________________________
__________________________________________________________
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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
Bozzi class member.
IF YOU DISAGREE WITH THIS DETERMINATION
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You must contact: |
Bozzi Counsel Community Legal Services, Inc. 1226 South Broad Street Philadelphia, Pennsylvania 19146-3119
Telephone No.: 1-800-88 WIDOW (1-800-889-4369)
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The Bozzi lawyers can assist you and, if
appropriate, notify Social Security that you disagree with this
determination. Because the lawyers
must act within 60 days, please
contact them immediately to protect
your rights.
ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL. FAVOR DE PEDIR QUE SE LO TRADUZCAN INMEDIATAMENTE Y DE LLAMAR A SU OFICINA DE SEGURO SOCIAL PARA UNA EXPLICACION.
Make sure the address and telephone number of the servicing Social
Security field office are inserted at the top of this notice. (See
Part V. B. 3. a. for non-class member
processing instructions.)
cc: Bozzi Counsel
Community Legal Service, Inc.
Attachment 7. - Route Slip for Non-Class Membership Cases
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TO:
1. SSA District Office
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INITIALS |
DATE |
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2. 801 Arch Street |
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3. Second Floor |
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4. Philadelphia, PA 19107 |
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5. |
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6. |
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7. |
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__XX_ACTION |
_____FILE |
_____NOTE AND RETURN |
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_____APPROVAL |
_____FOR CLEARANCE |
_____PER CONVERSATION |
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_____AS REQUESTED |
_____FOR CORRECTION |
_____PREPARE REPLY |
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_____CIRCULATE |
_____FOR YOUR INFORMATION |
_____SEE ME |
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_____COMMENT |
_____INVESTIGATE |
_____SIGNATURE |
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_____COORDINATION |
_____JUSTIFY |
_____OTHER |
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Claimant: |
___________________________ |
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SSN: |
___________________________ |
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We have determined that this claimant is not a
Bozzi class member. (See screening sheet and copy
of non-class membership notice in the attached claim file(s).) Class
counsel has requested to review the attached claim file.
SEE POMS DI 12534.010
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
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FROM:
Office of Hearings and Appeals
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SUITE / BUILDING
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PHONE NUMBER
_______________
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OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020
Prescribed by GSA
FPMR
(41 CFR) 101-11.206
Attachment 8. - Text for Notice of Revised Class Membership
In an earlier letter that we sent you, we said that you were not a member
of the Bozzi, et al. v. Shalala 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 standards agreed upon by
the parties and approved by the court under the
Bozzi Stipulation and Order.
We have received a lot of requests for review and it may take several
months before we look at your claim file. When we start the review, we
will ask you for any additional evidence that you want to give
us.
If you think that you are disabled now, you should fill out a new
application at any Social Security office.
If you have any questions, you may call us toll-free at 1-800-772-1213, or
call your local Social Security office at XXX-XXXX. We can answer most
questions over the phone. You can also write or visit any Social Security
office. The office that serves your area is located at:
District or Branch Office
Address
City,
ST ZIP
If you do call or visit an office, please have this letter with you. It
will help us answer your questions. Also, if you plan to visit an office,
you may call ahead to make an appointment. This will help us serve you
more quickly.
If you have someone helping you with your claim, you should contact him or
her. You may also ask for legal help by contacting a legal aid
organization in your area, or by contacting the lawyers in the
Bozzi case:
Bozzi Counsel Community Legal Services,
Inc.
1226 South Broad Street
Philadelphia, PA 19146-3119
Telephone: 1-800-88 WIDOW (1-800-889-4369)
Attachment 9. - Bozzi Class Member Flag for Headquarters
Use (DDS Readjudication -- Retention Period Expired)
Bozzi Class Action Case
READJUDICATION NECESSARY
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Claimant's name: |
___________________________ |
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SSN: |
___________________________ |
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This claimant is a Bozzi class member. Accordingly,
we are forwarding the attached claim file(s) to the DDS for
readjudication.
[Send folders to the appropriate DDS.]
Attachment 10. - Bozzi Class Member Flag for Headquarters
Use (DDS Readjudication -- Retention Period Has Not Expired)
Bozzi Class Action Case
READJUDICATION NECESSARY
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Claimant's name: |
___________________________ |
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SSN: |
___________________________ |
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This claimant is a Bozzi class member. After
expiration of the retention period, forward claim file(s) to the DDS for
readjudication.
[Send folders to the appropriate DDS.]
If the claimant has filed a civil action and elected to remain in court
for review of the current claim, forward the Bozzi
claim file(s) without delay to the DDS for readjudication.
Attachment 11. - ALJ Dismissal Order to DDS
DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS
ORDER OF DISMISSAL
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IN THE CASE OF |
CLAIM FOR |
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__________________________ |
___________________________ |
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__________________________ |
___________________________ |
This case is before the Administrative Law Judge pursuant to a request for
hearing filed on _________________ with respect to the application(s)
filed on _________________.
In accordance with the Stipulation and Order negotiated by the parties and
approved by the United States District Court for the Eastern District of
Pennsylvania in the case of Bozzi v. Shalala, 90
Civ. 2580 (E.D. Pennsylvania, May 26, 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 Bozzi 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 Disability
Determination Service which will conduct the Bozzi
readjudication.
The Disability Determination Service will notify the claimant of its new
determination and of the claimant's right to file a new request for
hearing.
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_____________________________
Administrative Law Judge
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_____________________________
Date
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Attachment 12. - Notice Transmitting ALJ Order of Dismissal
NOTICE OF DISMISSAL
Claimant's Name
Address
City, State Zip
Enclosed is an order of the Administrative Law Judge dismissing your
request for hearing and returning your case to the Disability
Determination Service 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
Bozzi class member claim back to the Disability
Determination Service for further processing. The enclosed order explains
why.
The Next Action on Your Claim
The Disability Determination Service will contact you to tell you what you
need to do. If you do not hear from the Disability Determination Service
within 30 days, contact your local Social Security office.
Do You Have Any Questions?
If you have any questions, contact your local Social Security office. If
you visit your local Social Security office, please bring this notice and
the Administrative Law Judge's order with you.
Enclosure
cc:
(Name and address of representative, if any)
(Social
Security Office (City, State))
Attachment 13. - Bozzi Class Member Flag for HO Use (DDS
Readjudication)
Bozzi Class Action Case
READJUDICATION NECESSARY
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Claimant's Name: |
___________________________ |
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SSN: |
___________________________ |
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This claimant is a Bozzi class member. The attached
Bozzi claim file was forwarded to this hearing
office for possible consolidation with a current claim.
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_____ The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated. |
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_____ The claims have not been consolidated because [(state reason(s))]______________________________________________________
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___________________________________________________________. |
Accordingly, we are forwarding the attached alert and prior claim file(s)
to your location for any necessary Bozzi
readjudication action.
We are sending the alert and prior file(s) to:
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(enter address of appropriate DDS)
__________________________________
__________________________________
__________________________________
__________________________________
(Destination code: ___)
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Attachment 14. - Appeals Council Remand to DDS
DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS
ORDER OF REMAND
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IN THE CASE OF |
CLAIM FOR |
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__________________________ |
___________________________ |
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__________________________ |
___________________________ |
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
Bozzi class action and is entitled to have the
final administrative denial of
(his/her) application(s) dated
___________ readjudicated by the Disability Determination Service under
the terms of the May 26, 1993 Stipulation and Order.
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 Disability Determination Service. The Disability
Determination Service will readjudicate, 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
applications. The Disability Determination Service will issue one
determination covering (both or all)
claims. If the Disability Determination Service does not issue a fully
favorable determination, it will notify the claimant of the right to
request a hearing before an Administrative Law Judge.
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_____________________________
Administrative Appeals Judge
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DATE:
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Notes
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[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.
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[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).)
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