ISSUED: November 30, 1994
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
parties' April 5, 1994 joint settlement agreement in the Taylor
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
individuals entitled to relief under the Taylor
settlement who now reside outside of the states of Ohio and Kentucky must
have their cases processed in accordance with the requirements of the
settlement agreement.
II. Background
On December 21, 1990, plaintiffs filed a class complaint alleging that the
Secretary failed to consider residual functional capacity (RFC) for any
gainful activity in determining eligibility for title II disability
benefits for widows, widowers, and surviving divorced
spouses.[1]
Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90)
(Pub. L. 101-508) on November 5, 1990. Section 5103 of OBRA 90 amended
§ 223 of the
Social Security Act to repeal the special definition of disability
applicable in widows' claims and conform the definition of disability for
widows to that for all other title II claimants and title XVI adult
claimants. The amendment became effective for entitlement to monthly
benefits payable for January 1991, or later, based on applications filed
or pending on January 1, 1991, or
filed later.
On May 22, 1991, the Commissioner of Social Security published
Social Security Ruling (SSR)
91-3p to provide a uniform, nationwide standard for the evaluation
of disability in widows' claims for the pre-1991 period.
Because the merits of plaintiffs' challenge were resolved by the enactment
of § 5103 of OBRA 90 and the publication of
SSR 91-3p, the parties
agreed to settle the remaining class relief issues.
On February 17, 1993, in anticipation of the expected satisfactory
conclusion of settlement negotiations, the district court dismissed the
case without prejudice. The court retained jurisdiction to reinstate the
action, if necessary, for cause shown that settlement had not been
completed.
On April 5, 1994, the parties concluded settlement negotiations with the
execution of a joint settlement agreement setting forth the terms for the
implementation of relief (Attachment 1). Pursuant to ¶ 16, the
parties provided the district court with an informational copy of the
settlement agreement and asked the court to place it in the court
file.
III. Guiding Principles
Under Taylor, the Secretary will readjudicate the
claims of those persons who: 1) respond to notice informing them of the
opportunity for review; and 2) are determined to be entitled to review
after screening (see Part V.). The
Disability Review Section in the Great Lakes Program Service Center
(GLPSC) will screen the claims of individuals potentially entitled to
relief, unless there is a current claim pending at the Office of Hearings
and Appeals (OHA) (in which case OHA will have screening responsibility).
Regardless of the state of the claimant's current residence, the
Disability Determination Services (DDSs) in Ohio and Kentucky, in most
cases, will 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., terminal
illness (TERI) cases. The Great Lakes Program Service Center has review
jurisdiction if there is railroad involvement in the
Taylor claim.
OHA will screen cases and perform readjudications under limited
circumstances (see Part V.B.).
Cases readjudicated by the DDSs will be processed at the reconsideration
level regardless of the final level at which the claim was previously
decided. Individuals entitled to relief 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 Taylor 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 Individuals Entitled to Taylor
Relief
For purposes of implementing the terms of the settlement agreement,
individuals entitled to relief under Taylor will
include any individual who:
•
filed for or received title II benefits as a disabled widow, widower or
surviving divorced spouse (DWB);
•
was issued a less than fully favorable (i.e. later onset, closed period,
or denied) administrative determination or decision between January 1,
1991, and June 4, 1991, inclusive, that became the final decision of the
Secretary, that was based on whether the individual's impairment met or
equalled a listed impairment and did not consider the individual's RFC for
gainful activity (see Part V.B.2.b., 2d
note, for further explanation of the final decision concept);
•
was not issued a final determination or decision by the Secretary or a
court which considered the individual's RFC for gainful work for the
entire period at issue in the Taylor claim(s) in
denying any other title II or title XVI disability claim;
•
was residing in Ohio or Kentucky at the time the final administrative
decision was issued; and
•
did not have the Secretary's final decision in the potential
Taylor claim reviewed and decided by a Federal
court.
An individual is not entitled to relief under
Taylor if he or she
(1) filed a claim for disability benefits under titles II or XVI, either
concurrently with, or after, any DWB claim(s) which was denied between
January 1, 1991, and June 4, 1991, inclusive, and received a final
administrative denial or a final adverse judgment from a Federal district
or appellate court on the disability claim at steps one, two, four or five
of the sequential evaluation process that covered the entire timeframe at
issue in the Taylor claim(s); or
(2) filed a complaint in Federal district court based on an administrative
denial of any DWB claim(s) between January 1, 1991, and June 4, 1991,
inclusive, and received a final judgment from a Federal district or
appellate court; or
(3) first filed a DWB claim on or after January 1, 1991, and that claim
did not involve entitlement to DWB for any month(s) before January 1991
(i.e., did not involve an alleged onset date that could result in
entitlement prior to January 1991), and was denied administratively on the
ground that the claimant did not meet the statutory standard for
disability set forth in § 5103 of OBRA 90, that became effective
January 1, 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 for all
relevant periods of time at issue.
V. Determination of Persons Entitled to Relief and Preadjudication
Actions
A. Pre-Screening Actions - General
1.
Notification
SSA will send notices to all individuals potentially entitled to relief
under Taylor as identified by a computer run.
Individuals have 60 days from the date of receipt of the notice to request
that SSA readjudicate their claims under the terms of the
Taylor settlement agreement. SSA will presume an
individual's receipt of the notice five days after mailing, unless the
individual establishes that receipt actually occurred later. The Office of
Disability and International Operations (ODIO) will retrieve the claim
files of late responders and send them, together with the untimely
responses, to the servicing Social Security field office (i.e., district
or branch office) to develop good cause for the untimely response. Good
cause determinations will be based on the standards set forth in
20 CFR §
404.911 and SSR
91-5p. If good cause is established, the field office will forward
the claim to the GLPSC for screening.
2.
Alert and Folder Retrieval Process
All response forms will be returned to ODIO and the information will be
entered into the Civil Actions Tracking System (CATS). CATS will generate
alerts to ODIO. See Attachment 2 for a sample
Taylor alert.
In most instances, ODIO will associate the computer-generated alerts with
any ODIO-jurisdiction potential Taylor claim
file(s) and forward them to the GLPSC for retrieval of any additional
claim files and screening (see
Part III.).
3.
Alerts Sent to OHA
If GLPSC determines that either a potential Taylor
claim or a subsequent claim is pending appeal at OHA, it will forward the
alert to OHA, along with any prior claim file(s) not in OHA's possession,
for screening, consolidation, consideration and readjudication (if
consolidated).
GLPSC will send all alerts potentially within OHA jurisdiction and related
prior claim files to the Office of Civil Actions (OCA), Division III, at
the following address:
Office
of Hearings and Appeals
Office of Civil Actions, Division
III
One Skyline Tower, Suite 704
5107 Leesburg
Pike Falls Church, VA 22041-3200
ATTN:
TaylorScreening Unit
4.
Folder Reconstruction
In general, ODIO or the GLPSC will coordinate any necessary reconstruction
of prior claim files. OHA requests for reconstruction of potential
Taylor cases should be rare. However, if it becomes
necessary for OHA to request reconstruction, the OHA component (if not
OCA, Division III) will return the alert and any accompanying claim
file(s) to OCA, Division III. OCA, Division III, 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: Taylor Coordintor
5.
Denials of Entitlement to Relief
The GLPSC or OHA, as appropriate, will hold for 90 days all files of
individuals determined not to be entitled to relief under
Taylor pending a possible request for review of
that determination by the individual or the individual's representative.
If the individual or representative make a timely written request (i.e.,
within 60 days of receipt of notice of non-entitlement to relief) to
review the claim file, GLPSC or OHA will forward the files to a mutually
agreed upon SSA office for review. SSA has 30 days to make the folder
available, and the claimant has 30 days to inspect it. If the claimant is
still dissatisfied after reviewing the file or if the claimant chooses to
dispute the determination without looking at the claim folder, he or she
must notify the Office of the General Counsel (OGC) within 60 days of
initially having notified SSA.
1.
Pre-Screening Actions
a.
Current Claim in OHA
As provided in Part V.A.3., if there is a
current claim pending at OHA, OCA will receive the alert and related
Taylor 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, transfer
of the alert or folder reconstruction, as necessary.
OCA, Division III, is responsible for controlling and reconciling the OHA
Taylor alert workload. Because the number of
individuals potentially entitled to relief is small, the OHA alert
workload will be minimal and a manual accounting should suffice. OCA will
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 a final alert/screening
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 III, will associate the alert with the claim file(s) (or court
transcript) and screen for entitlement to relief under
Taylor. See
Part V.B.2.b. for special screening
instructions when a civil action is involved.
2.
Screening
a.
General Instructions
The OHA screening component will associate the alert and prior claim
file(s), if any, 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
Taylor claim, then the individual is not entitled
to relief under Taylor (see
Part IV.). Complete the screening sheet
and follow the instructions in
Part V.B.3.a. for processing
non-Taylor claims.
•
Consider all applications denied (including
res judicata denials/dismissals)
during the Taylor 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
Taylor 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: TaylorCoordinator
The Division of Litigation Analysis and Implementation (DLAI) will forward
copies of the screening sheet to OCA, Division III, (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 III (see address in
Part V.A.3.), 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 an individual potentially entitled to
Taylor relief may have adjudicated the timeframe at
issue in the potential Taylor claim.
b.
Special OCA Screening Instructions if a Civil Action Is Involved
As noted in Part V.B.1.b., OCA, Division
III, will screen for individuals entitled to relief under
Taylor when a civil action is involved. OCA's
determination will dictate the appropriate post-screening action.
A remand by a Federal court under sentence four of §
405(g) of the Social
Security Act is a “final” judgment for screening
purposes.
•
If the claim pending in court is the potential
Taylor 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 the final
administrative decision on the claim was adjudicated in accordance with
the disability evaluation standards reflected in § 5103 of OBRA 90
and SSR 91-3p, OCA will
modify the case flag in Attachment 13 to indicate that there is a
subsequent claim pending in court, but that the
Taylor 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.
Cases of Individuals Not Entitled to Relief Under
Taylor
If the screening component determines that the individual is not entitled
to relief under Taylor, the component will:
•
notify the individual, and representative, if any, of non-entitlement to
Taylor relief using Attachment 6 (modified as
necessary to fit the circumstances and posture of the case when there is a
current claim);
Include the date and claim number at the top of Attachment 6.
•
retain a copy of the notice in the claim file;
An individual who wishes to dispute a determination that they are not
entitled to relief under Taylor may do so directly,
through their representative of record or through
Taylor counsel, as explained in the notice
(Attachment 6).
•
retain the claim file(s) for 90 days pending a possible dispute regarding
the individual's entitlement to relief; if the screening component is not
OCA, Division III, and the file(s) is not needed for adjudication, forward
the file(s) for storage to OCA, Division III, at the address in
Part V. A.3. (see Generic Class Action
HALLEX Instruction
HA 01170.009);
•
if the individual makes a timely request to review the claim file (i.e.,
within 60 days from receipt of notice of non-entitlement to relief), DLAI
will notify the OHA component housing the claim file to send it to the
individual's local SSA office or a mutually agreed upon SSA office using
the routing slip in Attachment 7 (see
Part V.A.5.). OHA has 30 days to make the
file available. Thereafter, the individual will have 30 days to review the
file(s).
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 through OGC, SSA resolves the dispute in the claimant's favor: 1)
rescreen the case; 2) send the notice of revised entitlement to relief
determination (Attachment 8) to the claimant and representative, if any;
3) proceed in accordance with Part VI.;
and 4) notify DLAI, at the address in
Part V.B.2., 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 III (if OCA is not
the screening component), and to Litigation Staff at SSA Headquarters);
and
•
if after 90 days no review is requested, return the file(s) to the
appropriate location.
b.
Cases of Individuals Determined to be Entitled to Relief Under
Taylor
If the screening component determines that the individual is entitled to
relief under Taylor, it will proceed with
processing and adjudication in accordance with the instructions in
Part VI.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
As previously indicated, the DDSs servicing Ohio and Kentucky residents
will usually conduct the first Taylor review. An
exception may apply when the Taylor claim is a TERI
case. An exception will also apply for cases consolidated with claims
pending or being held at the OHA level (see
Part VI.D.).
The DDS determination will be a reconsideration determination, regardless
of the administrative level at which the Taylor
claim(s) was previously decided, with full appeal rights (i.e., ALJ
hearing, Appeals Council and judicial review).
B. OHA Adjudication of Claims of Individuals Entitled to Relief Under
Taylor
The following instructions apply to both consolidation cases in which the
ALJ or Appeals Council conducts the Taylor
readjudication and to DDS readjudication cases in which the claimant
requests a hearing or Appeals Council review. Except as noted herein, HOs
and OHA Headquarters will process Taylor claims
according to all other current practices and procedures including coding,
scheduling, developing evidence, routing, etc.
Implementation of the Taylor order must never delay
the processing of TERI claims and must never interfere with the operation
of TERI procedures on such claims. (See
HALLEX
HA 01210.040 and
HA 01310.005.)
1.
Type of Review and Period to be Considered
Pursuant to the Taylor settlement agreement, the
type of review to be conducted is a “reopening.” The
readjudication shall be a de novo reevaluation of
the individual's eligibility for benefits based on all evidence in his or
her file, including newly obtained evidence relevant to the period of time
at issue in the administrative decision(s) through the present or the date
of a subsequent allowance.
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 claims of individuals entitled
to relief under Taylor. The disability evaluation
standard enacted by § 5103 of OBRA 90 is effective for determining
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 evaluating disability and determining
entitlement to benefits payable for the pre-1991 period.
3.
Individual Entitled to Relief Is Deceased
If an individual entitled to relief is deceased, the usual survivor and
substitute party provisions and existing procedures for determining
distribution of any potential underpayment apply.
C. Claim at OHA But No Current Action Pending
If a claim file (either a Taylor claim or a
subsequent claim file) is located in OHA Headquarters but there is no
claim actively pending administrative review, i.e., OHA 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 entitlement to relief under
Taylor. (See
Part V.B.3., for instructions on
processing claims of individuals not entitled to relief under
Taylor.)
•
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
Taylor flag (see Attachment 9) to the outside of
the file and forward the claim file(s) to the appropriate DDS for review
of the Taylor claim.
•
If less than 120 days have elapsed, OCA will attach a
Taylor case flag (see Attachment 10) to the outside
of the file to ensure the case is routed to the appropriate DDS after
expiration of the retention period. Pending expiration of the retention
period, OCA will also:
•
return unappealed ALJ decisions and dismissals to DFB, OAO; and
•
return unappealed Appeals Council denials to the appropriate OAO
minidocket.
The respective OAO component will monitor the retention period and, if the
claimant does not seek further administrative or judicial review, route
the file(s) to the appropriate DDS in a timely manner.
D. Processing and Adjudicating Taylor Claims in
Conjunction with Current Claims (Consolidation Procedures)
1.
General
If an individual entitled to relief under Taylor
has a current claim pending at any administrative level and consolidation
is warranted according to the guidelines below, the appropriate component
will consolidate all Taylor 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 an individual entitled to relief under
Taylor 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
Taylor case with the appeal on the current claim.
The ALJ will not consolidate the claims if:
•
the current claim and the Taylor 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.D.2.c. If the claims are not
consolidated, follow Part VI.D.2.d.
b.
Hearing Not Scheduled
Except as noted below, if an individual entitled to relief under
Taylor 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 Taylor claim and the
current claim. Instead, the ALJ will dismiss the request for hearing on
the current claim and forward both the Taylor claim
and the current claim to the DDS for further action (see
Part VI.D.2.d.).
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 entitled to Taylor relief,
the ALJ will consolidate the claims.
If the claims are consolidated, follow
Part VI.D.2.c. If the claims are not
consolidated, follow
Part VI. D.2.d.
c.
Actions If Claims Consolidated
When consolidating a Taylor 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 Taylor claim
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 Taylor 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 Taylor claim raises an additional
issue(s), unless the ALJ is prepared to issue a fully favorable decision
with respect to the Taylor claim; and
•
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the Taylor
claim (the ALJ's decision will clearly indicate that the ALJ considered
the Taylor claim pursuant to the
Taylor settlement agreement).
d.
Action If Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the
Taylor claim 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 Taylor claim and the current claim to
the appropriate DDS for consolidation and further action.
If the ALJ decides not to consolidate the Taylor
claim 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 Taylor claim for DDS review using
Attachment 13; immediately route it to the appropriate DDS for
adjudication; 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
The action the Appeals Council takes on the current claim determines the
disposition of the Taylor 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 Taylor claim.
a.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim -- No Taylor Issue(s) Will
Remain Unresolved.
This will usually arise when the current claim duplicates the
Taylor review claim, i.e., the current claim raises
the issue of disability and covers the period adjudicated in the
Taylor claim, and the current claim has been
adjudicated in accordance with the provisions of § 5103 of OBRA 90
and SSR 91-3p.
In this instance, the Appeals Council will consolidate the claims and
proceed with its intended action. The Appeals Council's order, decision or
notice of action will clearly indicate that the ALJ's or Appeals Council's
action resolved or resolves both the current claim and the
Taylor claim.
b.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim -- Taylor Issue(s) Will Remain
Unresolved.
This will usually arise when the current claim does not duplicate the
Taylor claim, e.g., the current claim raises the
issue of disability but does not cover the entire period adjudicated in
the Taylor claim. For example, the
Taylor claim raises the issue of disability for a
period prior to the period adjudicated in the current claim. In this
instance, the Appeals Council will proceed with its intended action on the
current claim.
OAO staff will attach a Taylor case flag
(Attachment 13; appropriately modified) to the
Taylor claim, immediately forward the
Taylor claim to the appropriate DDS for
readjudication, and retain a copy of Attachment 13 in the current claim
file. OAO will modify Attachment 13 to indicate that the Appeals Council's
action on the current claim does not resolve all
Taylor issues and that the
Taylor claim is being forwarded for separate
processing. OAO staff will include copies of the ALJ's or Appeals
Council's decision or order or notice of denial of request for review on
the current claim and the exhibit list used for the ALJ's or Appeals
Council's decision.
c.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim
-- No Taylor 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 an individual
entitled to relief under Taylor, 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 Taylor claim and
issue a decision that adjudicates both applications.
The Appeals Council's decision will clearly indicate that the Appeals
Council considered the Taylor claim pursuant to the
Taylor settlement agreement.
d.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim
-- Taylor 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 Taylor 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 appropriate 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:
"Taylor court case review needed -- following
effectuation, forward the attached combined folders to the appropriate
DDS."
e.
Appeals Council Intends to Remand the Current Claim to an ALJ.
If the Appeals Council intends to remand the current claim to an ALJ, it
will proceed with its intended action unless one of the exceptions below
applies. In its remand order, the Appeals Council will direct the ALJ to
consolidate the Taylor claim with the action on the
current claim pursuant to the instructions in
Part VI.D.2.a.
The Appeals Council will not direct the ALJ to consolidate the claim
if
•
the current claim and the Taylor claim do not have
any issues in common, or
•
a court remand contains a court-ordered time limit and it will not be
possible to meet the time limit if the claims are consolidated.
If the claims do not share a common issue or a court-ordered time limit
makes consolidation impractical, OAO will forward the
Taylor claim to the DDS for separate review. The
case flag in Attachment 13 should be modified to indicate that the Appeals
Council, rather than an Administrative Law Judge, is forwarding the
Taylor 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.D.), 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.D.2.b. apply, the ALJ should
dismiss the request for hearing on the current claim, and HO personnel
should enter “OTDI” in the “DSP” field.
To provide for HOTS identification of the cases of individuals entitled to
relief, HO personnel will code “TA” 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. Settlement Agreement Dated April 5, 1994.
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IN THE UNITED STATES DISTRICT COURT |
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FOR THE NORTHERN DISTRICT OF OHIO |
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EASTERN DIVISION |
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DELPHINE TAYLOR, |
) |
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) |
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Plaintiffs, |
) |
Civil Action No. 1:90 CV 2287 |
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) |
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vs. |
) |
Judge Ann Aldrich |
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) |
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DONNA E. SHALALA, |
) |
Magistrate Judge David A. Perelman |
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SECRETARY OF HEALTH AND |
) |
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HUMAN SERVICES, |
) |
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) |
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Defendant. |
) |
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WHEREAS Delphine Taylor, plaintiff, Katherine Courtney, proposed
intervenor, and Donna E. Shalala, Secretary of Health and Human Services
(Secretary), defendant, have agreed to resolve all of the outstanding
disputes in this case without further litigation,
THEREFORE, the parties, by their undersigned counsel, hereby agree to a
settlement of plaintiffs' claims in this litigation in accordance with the
following terms and conditions:
1.
The individuals who shall be entitled to seek relief pursuant to this
settlement shall be limited to those defined as follows:
a.
Plaintiff Delphine Taylor (Taylor) and proposed intervenor Katherine
Courtney (Courtney); and
b.
individuals whose applications for widow's, widower's, or surviving
divorced spouse disability benefits (DWB) under the Social Security Act
were denied at any administrative level by a determination or decision of
the Secretary that became final and binding pursuant to
20 C.F.R. §§
404.905,
404.921, 404.955 ,
or 404.981 (hereinafter the “final decision(s)”), and that
meets all the requirements of paragraphs 1.c. through 1.g.
c.
The final decision(s) was rendered when such individual was residing in
the State of Ohio or Kentucky.
d.
The final decision(s) was rendered on or after January 1, 1991, but
before June 5, 1991.
e.
The final decision(s) was based on the merits of this litigation (i.e.
whether claimant met or equaled a listed impairment) and not on an issue
unrelated to the merits of this litigation (e.g., substantial gainful
activity, no severe impairments, prescribed period expired prior to
alleged onset of disability).
f.
The final decision(s) failed to consider the claimant's residual
functional capacity (RFC) in connection with the claimant's DWB claim, and
the Secretary or any court did not, for the same period involved in such
claim, consider claimant's RFC in connection with the denial of another
DWB claim, or a parallel claim covering the same time period for
disability insurance benefits or Supplemental Security Income disability
benefits in the same or a different proceeding.
g.
The final decision(s) was not reviewed by any court that rendered a
decision adverse to that claimant's entitlement to DWB.
2.
Those persons meeting the definition in paragraph 1 are hereinafter
referred to as the “Taylor claimants”.
3.
The Social Security Administration (SSA) shall identify the names, Social
Security numbers and last known addresses of the potential Taylor
claimants within 120 days after this settlement agreement is signed by all
the parties (hereinafter “signing date”). SSA shall notify
David B. Dawson, Legal Aid Society of Cleveland, 1223 West Sixth Street,
Cleveland, Ohio 44113 (hereinafter “counsel Dawson”) of the
total number of claimants identified, but, in accordance with the Privacy
Act, 5 U.S.C. § 552a, SSA shall not be required to provide individual
names, addresses, or Social Security numbers to counsel Dawson unless he
personally represents such individual or such individual signs an
appropriate written consent authorizing SSA to release such information to
counsel Dawson.
4.
Within 120 days of the signing date, SSA will issue the final instructions
for effectuation of this agreement to the responsible adjudicators and
send a copy of all instructions to counsel Dawson.
5.
Included in the instructions will be copies of the form of the notice to
be sent to potential Taylor claimants. The notice will include
statements:
a.
that the potential Taylor claimant may be entitled to have their DWB
claim readjudicated,
b.
that the potential Taylor claimant must return the preaddressed
postage-paid envelope and accompanying response form within 60 days from
the date of receipt of the notice in order to receive consideration for
relief,
c.
that, if the potential Taylor claimant is deceased, benefits may still be
payable and SSA should be contacted for further assistance,
d.
that the notice and opportunity for a readjudication of the potential
Taylor claimant's claim is the result of the settlement of a law suit
brought in part by counsel Dawson whose address and telephone number will
be provided,
e.
that the potential Taylor claimant may contact counsel Dawson or any
other attorney of his or her choosing for information or assistance,
f.
that the potential Taylor claimant may be represented by counsel of his
or her choice.
6.
Within 60 days of the issuance of the instructions described in paragraph
5, SSA shall send a notice by first class mail to each potential Taylor
claimant at their last known address.
7.
Should more than 10 per cent of the notices be returned as undeliverable,
SSA shall attempt to obtain updated addresses for such potential Taylor
claimants by requesting the States of Ohio and Kentucky to search their
records to provide current addresses through a computerized match with
public assistance, medical assistance, food stamp or other relevant
records.
a.
SSA requests for computer matches with the State agencies' data systems
will be subject to the requirements of the Privacy Act, as amended by the
Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a.
Furthermore, SSA shall not be required to institute legal proceedings to
gain access to State data system records or to reimburse or compensate the
States of Ohio or Kentucky for this matching operation.
b.
SSA will thereafter mail the notice a second time by first class mail to
all potential Taylor claimants for whom the computerized match produces an
updated address. SSA will have no further obligation to locate those
individuals whose current addresses have not been obtained despite the
efforts undertaken pursuant to this Agreement.
8.
If a person who receives a notice pursuant to paragraphs 6 or 7b requests
a review of his or her claim by responding more than 60 days after
receiving such notice, SSA shall determine whether that person has
“good cause” for the late request, as defined in
20 C.F.R. §
404.911 and Social
Security Ruling 91-5p.
9.
SSA will screen the claims folders of those individuals who timely respond
to the notice described in paragraphs 6 or 7b to determine if such
individuals meet the definition of Taylor claimants in paragraph 1 and are
entitled to have their DWB claim(s) readjudicated. If SSA determines that
an individual is not entitled to readjudication, a notice will be sent to
the individual and their attorney of record that indicates:
a.
the reason they are not a entitled to readjudication,
b.
that this determination will become final unless, within 60 days of
receipt of the notice, the individual notifies SSA in writing that he or
she desires to dispute the determination, and
c.
that the individual may be represented in this matter by counsel of his
or her choice including counsel Dawson whose address and telephone number
will be given.
If counsel Dawson does not already represent such individual, SSA will
send him a listing which will identify the individual and screen-out
reason by code numbers that do not violate the Privacy Act.
10.
Within 60 days of receiving the SSA notice described in paragraph 9, an
individual must notify SSA in writing that he or she desires to dispute
the determination. If the individual fails to provide such a timely
notification, the determination that the individual is not a Taylor
claimant will become final and not subject to further review. If such a
notice to dispute is made, an individual may request in that notice that
they or their counsel be allowed to examine their claim file and any other
records relied upon by SSA in making the determination described in
paragraph 9. Within 30 days of such written request,
SSA will make such records available for review at a mutually agreed upon
SSA office for a 30 day period.
11.
Within 60 days of notifying SSA of their intention to dispute as
described in paragraph 10, the individual must notify the Office of the
General Counsel in Chicago (hereinafter OGC) that, after having had the
opportunity to review the pertinent record, the individual still disputes
the determination that he or she is not a Taylor claimant. If the
individual fails to make such timely notice, SSA's determination will
become final and not subject to further review. If OGC does receive such a
timely notice, OGC will then make every reasonable attempt to resolve the
dispute with the individual or their counsel. If OGC determines that the
dispute cannot be resolved, OGC will notify the individual in writing.
SSA's determination will become final 30 days after such written notice is
mailed.
12.
Except as noted in paragraph 14 of this agreement, all claimants entitled
to readjudication under the terms of this settlement shall have their
claims readjudicated at the reconsideration level, with determinations
being appealable to an Administrative Law Judge (ALJ) upon request made
pursuant to the procedures set forth at
20 C.F.R. §
404.933. The decision of the ALJ will be appealable to the Appeals
Council, upon request made pursuant to the procedures set forth at
20 C.F.R. §
404.968. Taylor claimants will retain rights to judicial review as
provided in 42 U.S.C. § 405(g).
13.
On readjudication of DWB claims covered by paragraph 1, SSA will
determine entitlement to DWB:
b.
for the months January 1991 and after under the standards set forth in
the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. 101-508,
§ 5103, 104 Stat. 1388 (1990).
SSA will apply all other laws and regulations applicable at the time of
the readjudication and will develop the record in accordance with SSA
policy. Taylor claimants may submit new evidence relevant to the time
period covered by the readjudication.
14.
At the option of SSA, Taylor claimants with subsequent disability claims,
active and simultaneously pending at any administrative level of review at
the time their DWB claim is being readjudicated, may have all claims
consolidated and reviewed simultaneously.
15.
Counsel for Taylor and Courtney shall receive attorney's fees and costs
of $35,000.00. This payment shall fully satisfy all claims under any
statute or other basis for attorneys fees and costs by Taylor and Courtney
against the United States government or its agents through the date this
settlement agreement is signed. Further, in consideration for the receipt
of these fees, Taylor and Courtney and their counsel agree not to seek any
further payment from the United States government or its agents for
attorneys fees and costs incurred in the future at the administrative
level, in court, or otherwise in connection with the claims involved in
this litigation unless there is a subsequent court finding that the
Secretary materially breached this settlement agreement. Such future fees
are limited to time spent on issues directly related to such a material
breach and shall not include time on any other matters including the
implementation or monitoring of this settlement agreement that is
unrelated to the material breach.
16.
A copy of this settlement agreement will be submitted to the district
court judge who presided over this case for association with the court's
file. The parties will simultaneously submit a letter to the court, a copy
of which is attached as Exhibit A. Taylor and Courtney agree not to reopen
this court case, and further agree not to initiate new court litigation
concerning the subject matter of this settlement agreement except for the
limited purpose of an action for the material breach of this
agreement.
17.
This settlement is entered into by agreement of the parties, as a means
of avoiding further litigation. The terms of this agreement shall not be
cited as precedent in any other case nor are they an admission by the
Secretary that the district court had the jurisdiction or venue to
adjudicate the claims made in this litigation. This agreement is not an
admission by the Secretary of the truth of any allegation or the validity
of any claim asserted in this action or of the Secretary's liability
therein, nor is it a concession or an admission of any fault or omission
in any act or failure to act, or in any statement, written document or
report heretofore issued, filed, or made by the Secretary or her
predecessors nor shall this agreement or any of its terms 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 agreement, nor shall the terms of
this agreement be construed by anyone for any purpose as an admission of
any wrongdoing on the part of defendant Secretary.
18.
The terms in this agreement fully settle and satisfy all claims and
demands that Taylor and Courtney had or may hereafter acquire against the
Secretary, and any of her agencies, agents, employees, or
instrumentalities on account of and with respect to the incidents, claims
or circumstances giving rise to and/or alleged in the pleadings filed in
this action.
19.
The undersigned counsel for Taylor and Courtney hereby represent,
warrant, and guarantee that they are duly authorized to execute this
agreement on behalf of Taylor and Courtney.
20.
This settlement agreement shall be effective as of the date the last
counsel below signs this agreement.
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COUNSEL FOR DELPHINE TAYLOR AND KATHERINE COURTNEY: |
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COUNSEL FOR DEFENDANT SECRETARY: |
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____________/s/____________
Date
4/5/94
Edward A. Icove
Lustig, Icove & Lustig
Co., L.P.A.
615 Leader Building
Cleveland, Ohio
44114
(216) 241-5735
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____________/s/____________
Date
3/31/94
Michael Anne Johnson
Assistant United
States Attorney
1800 Bank One Center
600 Superior
Avenue, East
Cleveland, Ohio 44004-2600
(216)
622-3600
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____________/s/____________
Date
4/5/94
David B. Dawson
Legal Aid Society of
Cleveland
1223
West Sixth Street
Cleveland, Ohio 44113
(216)
687-1900
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____________/s/____________
Date
Date 3/23/94
Robert C. Stephens
Assistant Regional
Counsel
Department of Health and
Human Services
105
West Adams, 19th Floor
Chicago, Illinois 60603
(312)
353-1640
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____________/s/____________
Date
4/5/94
Louise McKinney
School of Law, Law School
Clinic
Case Western Reserve University
11075 East
Boulevard
Cleveland, Ohio 44106
(216) 368-2766
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COUNSEL FOR KATHERINE COURTNEY: |
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____________/s/____________
Date
4/5/94
Stephen C. Sanders
Central Kentucky Legal
Services, Inc.
McClure Building, Suite 600
306
Main Street
Frankfort, Kentucky 40801
(502)
875-5403
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CASE WESTERN RESERVE UNIVERSITY |
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The Honorable Ann Aldrich |
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United States District Court |
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Re: |
Delphine Taylor v. Donna E. Shalala, |
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Case No. 1:90 CV 2287 (N.D. Ohio, E. Div.) |
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Your Honor:
As you may recall, in 1993 you dismissed the
above referenced case without prejudice, in view of an impending
settlement among the parties. The parties, through counsel, have finalized
the enclosed settlement agreement.
We provide the settlement agreement for your information, and we ask that
it be placed in the court file. We are available to meet with you, if you
have any questions concerning the agreement.
We thank you for your consideration of the
matter.
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Respectfully, |
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Louise W. McKinney |
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Edward A. Icove |
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David B. Dawson |
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Counsel for the Plaintiffs |
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Robert C. Stephens |
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Michael Anne Johnson |
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Counsel for the Defendants |
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Exhibit A |
Attachment 2. TAYLOR COURT CASE FLAG/ALERT
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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
Great
Lakes Program Service Center
Disability
Review Section
P.O. Box 8470A
Chicago,
IL 60680
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ATTN: Taylor Review |
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IF CLAIM IS PENDING IN OHA, THEN SHIP FOLDER TO: |
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Office
of Hearings and Appeals
Office of Civil Actions, Division
III
One
Skyline Tower, Suite 704
5107 Leesburg Pike
Falls
Church, VA 22041-3200
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ATTN: Taylor Screening Unit |
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CURRENT PAY: |
_______YES |
_______NO |
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Attachment 3. ROUTE SLIP OR CASE FLAG FOR SCREENING
Taylor Court Case
SCREENING NECESSARY
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Claimant's name: |
___________________________ |
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SSN: |
___________________________ |
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This claimant may be entitled to relief under the
Taylor case. 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 HA 01540.043
for additional information and instructions.
TO:
______________________
______________________
______________________
______________________
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CLASS ACTION CODE: T A
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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
____-____-____
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4. a. SCREENING RESULT
____ENTITLED TO RELIEF (J) ____NOT ENTITLED TO RELIEF (F)
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b. SCREENOUT CODE
____-____(see item 14 for screenout codes)
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5. Is this a title II disabled widow/widower or surviving divorced spouse (DWB) claim?
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Yes___No___
(if No go to 14)
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6. Was a less than fully favorable DWB determination/decision issued on this claim at any administrative level by the Ohio or Kentucky DDS, OHA or any office servicing residents of the states of Ohio or Kentucky on or after January 1, 1991, through June 4, 1991, inclusive, and did this become the final decision of the Secretary? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for screening purposes.)
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Yes___No___
(if No go to 16)
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7. Did the individual reside in Ohio or Kentucky at the time the determination/decision on the potential Taylor claim was issued?
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Yes___No___
(if No go to 14)
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8.Was the denial of benefits on the potential Taylor claim based on some reason other than the individual's medical condition (e.g., SGA)?
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Yes___No___
(if No go to 14)
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9. 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 Taylor claim?
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Yes___No___
(if No go to 14)
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10.Did the individual file a claim for DWB on or after January 1, 1991, which did not allege entitlement to DWB for any month(s) prior to January 1, 1991, and was denied administratively on the ground that he or she did not meet the disability standard set forth in § 5103 of OBRA 90?
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Yes___No___
(if No go to 14)
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11.Did the individual receive a denial under Social Security Ruling 91-3p for alleged disability months prior to January 1, 1991?
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Yes___No___
(if No go to 14)
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12.Did the individual file claim(s) for title II or title XVI worker's disability covering the entire timeframe at issue in the potential Taylor claim, concurrently with or after all DWB claims; and was the final administrative or court denial determination made on this claim(s) issued at steps 1, 2, 4 or 5 of the sequential evaluation process?
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Yes___No___
(if No go to 14)
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13.Did the individual receive a final adverse judgment from a Federal district or appellate court based on an administrative denial decision of DWB benefits issued on or after January 1, 1991, through June 4, 1991, inclusive?
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Yes___No___
(if No go to 14)
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14. The individual is not entitled to Taylor relief. Check the appropriate block in item 4.a. and 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 "YES".
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".
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No other screenout code entry is appropriate.
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15. 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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PRINT SCREENER'S NAME: |
COMPONENT AND PHONE NO.
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DATE
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SIGNATURE:
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INSTRUCTIONS FOR COMPLETING TAYLOR SCREENING
SHEET
Taylor involves only claims for title II disabled
widow(er)'s or surviving divorced spouse's benefits, for individuals who
were denied. The individual must have resided in Ohio or Kentucky, during
the period January 1, 1991, through June 4, 1991, inclusive. Only one
screening sheet and one screenout notice should be prepared for each
claimant. Answer questions 1-13 in sequence until the case is either
screened in or screened out. Be sure the fill-ins are legible.
Questions 1-3:
Fill in the identifying information as requested. Make sure SSN and BIC of
DWB claim are correct and legible.
DO NOT USE THE WIDOW'S OWN SSN.
Question 4:
Complete this information last. Do not fill in the information in blocks
4.a. and 4.b. until the screening process is completed.
Question 5:
Screen for claim type. If this question is answered “NO,”
enter the appropriate screenout code in item 4.b. as directed in item 14
on the screening sheet and check the “not entitled to relief”
block in item 4.a.
Question 6:
Screen for date of decision, not application. Individuals are potentially
entitled to relief if they received a denial or less than fully favorable
decision (e.g., later onset, closed period, payment of benefits beginning
January 1, 1991, under OBRA 90 despite an earlier onset) between January
1, 1991, and June 4, 1991, inclusive, which became the final decision of
the Secretary. Be sure to consider earlier eligibility for Medicare and
retroactive benefits when determining if the decision is fully favorable.
For DDS final determinations, the DDS code should be one of the following:
360/S38, 361/S64, 180/S20, 181/U20 and 182/U21. If the determination was
not prepared by a DDS in Ohio or Kentucky, OHA or any office servicing
residents of the states of Ohio or Kentucky on or after January 1, 1991,
but before June 5, 1991, the individual is not entitled to
Taylor relief.
(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 screening purposes.)
Question 7:
For DDS final determinations, review the SSA-831-U3 to determine if the
individual resided in Ohio or Kentucky at the time the
determination/decision described in question No. 6 was issued. For OHA
final decisions, review the file. If the answer to question 7 is
“YES,” go to question 8; if “NO,” the individual
is not entitled to relief under the Taylor case, go
to item 14.
Question 8:
For DDS final determinations, check item 33 of the SSA-831-U3. If the
reg-basis codes are N1, N2, L1, L2, M7 or M8, a non-medical denial is
involved. A reg-basis code of S1 reflects that the prescribed period
requirements were not met. For a complete list of DWB denial codes see
DI 26510.045. For
OHA final decisions, the answer can be found in the Administrative Law
Judge or Appeals Council decision. If the answer to question 8 is
“YES,” enter the appropriate screenout code in item 4.b. as
directed in item 14 on the screening sheet and check the “not
entitled to relief” block in item 4.a.
Question 9:
Review the file to determine whether benefits were subsequently allowed
from the earliest possible entitlement date. Be sure to consider earlier
eligibility for Medicare and retroactive benefits when determining if the
subsequent decision is fully favorable. The allowance could have either
been on the same claim or on a subsequent application. If the answer to
question 9 is “YES,” enter the appropriate screenout code in
item 4.b. as directed in item 14 on the screening sheet and check the
“not entitled to relief” block in item 4.a.
Question 10:
For DDS final determinations in claims in which the individual did
not allege entitlement before January 1,
1991, review the file to determine if the potential
Taylor claim filed on or after January 1, 1991, was
denied with the reg-basis codes H1, H2, J1 or J2. For OHA final decisions,
review the Administrative Law Judge or Appeals Council decision to
determine if the claimant's residual functional capacity was assessed. If
the answer to question 10 is “YES,” enter the appropriate
screenout code in item 4.b. as directed in item 14 on the screening sheet
and check the “not entitled to relief” block in item
4.a.
Question 11:
Review the file to determine if the individual received a
determination/decision under
SSR 91-3p which covered
the earliest possible entitlement on the potential
Taylor claim. If the answer to question 11 is
“YES,” enter the appropriate screenout code in item 4.b. as
directed in item 14 on the screening sheet and check the “not
entitled to relief” block in item 4.a.
Question 12:
Review the file(s) and queries (AACT, SSID, etc.) for the individual's SSN
to determine if the individual received a denial determination/decision on
a concurrent or subsequent claim for SSI or worker's disability which
covered the entire timeframe at issue in the potential
Taylor claim. For DDS final determinations, the
following codes in block 22 of the SSA-831-U3 indicate DDS denial at steps
1, 2, 4 or 5: N1, N2, F1, F2, H1, H2, J1, J2, E1, E2, E3 and E4 for title
II claims, or N30, N31, N32, N33, N42 and N43 for title XVI claims. For
OHA final decisions, review the Administrative Law Judge or Appeals
Council decision to determine the basis for denial. If the answer to
question 12 is “YES,” enter the appropriate screenout code in
item 4.b. as directed in item 14 on the screening sheet and check the
“not entitled to relief” block in item 4.a.
Question 13:
Check file(s) and OHA query (OHAQ) to determine whether a Federal district
or circuit court has rendered a final judgment on the potential
Taylor claim. NOTE: A remand by a Federal court
under sentence four section
405(g) of the Social
Security Act is a “final” judgment for screening purposes. If
necessary, OHA screeners should contact the Office of Civil Actions,
Division III (if not the screening component), to determine the status of
any complaint filed. If the answer to question 13 is “Yes,”
enter the appropriate screenout code in item 4.b. as directed in item 14
on the screening sheet and check the “not entitled to relief”
block in item 4.a.
Instructions for Individuals Entitled to Relief
a.
If “YES” to questions 5, 6 and 7, and “NO” to
questions 8, 9, 10, 11, 12 and 13, the individual is
"entitled to relief.“ Check the ”entitled to relief" block (J) in item 4.a. of the screening
sheet.
b.
Sign and date the screening sheet and retain the original in the claim
folder. Enter the name of the screening component, e.g., OHA, OAO, Branch
10, and the screener's phone number.
c.
Send a copy of the screening sheet to:
Office of Hearings and Appeals
Division of Litigation
Analysis and Implementation
One Skyline Tower,
Suite 702
5107 Leesburg
Pike
Falls
Church, VA 22041-3200
ATTN: Taylor Coordinator
d.
Follow Part V.B.3.b. for screened-in
cases.
Instructions for Individuals Not Entitled to Relief
a.
If “NO” to question(s) 5, 6 or 7, or “YES” to
questions 8, 9, 10, 11, 12 or 13, the individual is
"not entitled to relief.“ Check the ”not entitled to relief" block (F) in item 4.a. of the screening
sheet and fill in the screenout code in item 4.b.
b.
In determining that the individual is not an individual entitled to
relief, fill in the information requested in item 15, i.e., the dates of
the applications screened, the dates of the decisions considered and the
level of adjudication reached.
c.
Sign and date the screening sheet. Enter the name of the screening
component, e.g., OHA, OAO, Branch 10, and the screener's phone
number.
d.
Retain the original screening sheet in the folder. Send a copy to:
Office of Hearings and AppealsDivision of Litigation Analysis and ImplementationOne Skyline Tower, Suite 7025107 Leesburg PikeFalls Church, VAATTN: Taylor Coordinatore.
Prepare and send the “Non-Entitlement to Relief” Notice
(Attachment 6) to the individual with a copy to his/her representative, if
any. Retain a copy in the file.
f.
Follow Part V.B.3.a. for screened-out
cases.
Attachment 5. Route Slip for Routing Court Case Alert and Prior Claim File(s) to
ODIO or PSC - OHA No Longer Has Current Claim
|
|
ROUTING AND TRANSMITTAL SLIP |
DATE |
|
TO:
1. Great Lakes Program Service Center
|
Initials |
Date |
|
2. Disability Review Section |
|
|
|
3. P.O. Box 8470A |
|
|
|
4. Chicago Illinois 60680 |
|
|
|
5. Attn: Taylor Review |
|
|
|
6. |
|
|
|
7. |
|
|
|
__XX_ACTION |
_____FILE |
_____NOTE AND RETURN |
|
_____APPROVAL |
_____FOR CLEARANCE |
_____PER CONVERSATION |
|
_____AS REQUESTED |
_____FOR CORRECTION |
_____PREPARE REPLY |
|
_____CIRCULATE |
_____FOR YOUR INFORMATION |
_____SEE ME |
|
_____COMMENT |
_____INVESTIGATE |
_____SIGNATURE |
|
_____COORDINATION |
_____JUSTIFY |
_____OTHER |
REMARKS
TAYLOR CASE
Claimant:
____________________________
SSN: ____________________________
OHA received the attached alert [and prior claim file(s)] for screening
and no longer has the current claim file. Our records show that you now
have possession of the current claim. Accordingly, we are forwarding the
alert and any accompanying prior claim file(s) for association with the
current claim. After associating the alert with the current claim, please
forward to the Great Lakes Program Service Center for screening and
possible readjudication.
SEE POMS DI 42564.001 OR DI 12564.001
Attachment
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
|
FROM: Office of Hearings and Appeals __________________________________________ |
SUITE/BUILDING |
|
PHONE NUMBER |
|
OPTIONAL FORM 41 (Rev. 7-76) |
|
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA |
|
FPMR (41 CFR) 101-11.206 |
Attachment 6. Non-Entitlement to Relief Notice
SOCIAL
SECURITY
NOTICE
Important Information
|
From: |
Department of Health and Human Services Social Security Administration
|
|
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 Taylor
v. Shalala settlement agreement. We have looked at your case.
You are not entitled to relief under the Taylor
case for the reason given below. This means that we will not review our
earlier decision.
A copy of this letter is being sent to your representative of record, if
any.
|
WHY YOU ARE NOT ENTITLED TO RELIEF UNDER TAYLOR |
You are not entitled to relief under Taylor
because:
|
___ 1. |
You never filed a claim for disabled widow(er)'s or surviving divorced spouse's (DWB) benefits.
|
|
___ 2. |
You did not reside in Ohio or Kentucky when your claim was denied.
|
|
___ 3. |
You did not receive a determination or decision which denied any part of your claim for disabled widow's, widower's or surviving divorced spouse benefits between January 1, 1991, and June 4, 1991, that became the final decision on your claim.
|
|
___ 4. |
Your claim was denied for some reason other than your medical condition. That reason was
__________________________________________________
__________________________________________________.
|
|
___ 5. |
We already changed our earlier decision and found that you were disabled and were fully paid.
|
|
___ 6. |
Your claim has already been reviewed under the new standard used in the Taylor settlement agreement.
|
|
___ 7. |
You filed a claim for disability insurance benefits or supplemental security income that covered the entire period as your claim for disabled widow's, widower's or surviving divorced spouse benefits; and the decision on that claim showed that either you did not have a severe health problems or that we already considered whether you could still work in spite of your health problems.
|
|
___ 8. |
Your claim for disabled widow's, widower's or surviving divorced spouse's benefits was reviewed by a United States Federal Court.
|
|
___ 9. |
Other:_____________________________________________
__________________________________________________
|
|
|
|
WE ARE NOT DECIDING IF YOU ARE DISABLED
It is important for you to know that we are not making a decision about
whether you are disabled. We are deciding only that you are not a person
entitled to relief under the Taylor settlement
agreement.
IF YOU DISAGREE WITH THIS DETERMINATION
If you disagree with our determination, you have the right to review your
file and the right to dispute our determination. If you or your
representative want to review your file, you have 60 days from the date
you receive this notice to write to Social Security at the address
below:
Office of Hearings and Appeals
Division of Litigation
Analysis and Implementation
One Skyline Tower, Suite 702
5107
Leesburg Pike
Falls Church, Virginia
22041-3200
ATTN: Taylor Coordinator
If you ask to look at your file, we will send it to your local Social
Security office. You will have 30 days to review your file. If you still
disagree with our determination after reviewing your claim file, you have
60 days from the date you first wrote to Social Security to write to the
Office of the General Counsel in Chicago, Illinois, at the address shown
below. If you disagree with our determination but do not want to look at
your file, you have 60 days from the date you receive this notice to write
to the Office of the General Counsel at the address shown below:
Office of the General Counsel
Department of Health
and Human Services
Office of the Chief Counsel, Region
V
105 West Adams Street, 19th Floor
Chicago, Illinois
60603-3200
ATTN: Robert C. Stephens
If you have someone helping you with your claim, you should contact him or
her. If you need help with your claim and do not have an attorney or
representative, you may contact the attorney who represented the
plaintiffs in the Taylor case. His name, address,
and telephone number are:
David B. Dawson
Legal Aid Society of Cleveland
1223
West Sixth Street
Cleveland, Ohio 44113
Attachment 7. Route Slip for Non-Entitlement to Relief Cases
|
ROUTING AND TRANSMITTAL SLIP |
|
DATE |
|
TO:
1.
|
Initials |
Date |
|
2. |
|
|
|
3. |
|
|
|
4. |
|
|
|
5. |
|
|
|
6. |
|
|
|
7. |
|
|
|
__XX_ACTION |
_____FILE |
_____NOTE AND RETURN |
|
_____APPROVAL |
_____FOR CLEARANCE |
_____PER CONVERSATION |
|
_____AS REQUESTED |
_____FOR CORRECTION |
_____PREPARE REPLY |
|
_____CIRCULATE |
_____FOR YOUR INFORMATION |
_____SEE ME |
|
_____COMMENT |
_____INVESTIGATE |
_____SIGNATURE |
|
_____COORDINATION |
_____JUSTIFY |
_____OTHER |
REMARKS
|
Claimant: |
___________________________ |
|
|
|
|
|
|
|
|
SSN: |
___________________________ |
|
|
We have determined that this claimant is not an individual entitled to
relief under the Taylor case. We are forwarding the
claim file to your office pursuant to the claimant's or the claimant's
representative's timely request to review the file.
(See screening sheet and copy of the Notice of Non-Entitlement to Relief
in the attached claim file(s).)
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
|
FROM:
Office of Hearings and Appeals
|
SUITE / BUILDING
|
|
|
PHONE NUMBER
_______________
|
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206
Attachment 8. Text for Notice of Revised Entitlement to Relief Determination
In an earlier letter that we sent you, we said that you were not an
individual entitled to relief under the Taylor
settlement agreement. After reviewing all of the facts, we have decided
that you are entitled to relief. Therefore, we will review your claim
using the standards agreed upon by the parties and filed with the court
under the Taylor settlement agreement.
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 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
you can call your local Social Security office (the number is listed
below). 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:
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 lawyer in the
Taylor case:
David B. Dawson
Legal Aid Society of Cleveland
1223
West Sixth Street
Cleveland, Ohio 44113
Telephone:
(216) 687-1900
Attachment 9. Taylor Court Case Flag for Headquarters Use (DDS Readjudication -
retention period expired)
Taylor Court Case
READJUDICATION NECESSARY
|
Claimant's name: |
___________________________ |
|
|
|
|
|
|
|
|
SSN: |
___________________________ |
|
|
This claimant is entitled to relief under Taylor.
Accordingly, we are forwarding the attached claim file(s) to the DDS for
readjudication.
[ Send folders to the appropriate DDS. ]
Attachment 10. Taylor Court Case Flag for Headquarters Use (DDS Readjudication -
retention period has not expired)
Taylor Court Case
READJUDICATION NECESSARY
|
Claimant's name: |
___________________________ |
|
|
|
|
|
|
|
|
SSN: |
___________________________ |
|
|
This claimant is entitled to relief under Taylor.
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 Taylor
claim file(s) without delay to the appropriate DDS for readjudication.
|
DEPARTMENT OF |
|
HEALTH AND HUMAN SERVICES |
|
Social Security Administration |
|
OFFICE OF HEARINGS AND APPEALS |
|
|
|
ORDER OF DISMISSAL |
|
|
|
|
IN THE CASE OF |
CLAIM FOR |
|
__________________________ |
___________________________ |
|
|
|
|
__________________________ |
___________________________ |
This case is before the Administrative Law Judge pursuant to a request for
hearing filed on
_________________
with respect to the application(s) filed on
_________________.
In accordance with the settlement agreement of the parties, filed with the
United States District Court for the Northern District of Ohio in the case
of Taylor v. Shalala, No. 1:90 CV 2287 (N.D. Ohio
April 5, 1994), the claimant has requested readjudication of the final
(determination/decision) on the prior application(s) filed on
______________.
The claimant has been identified as an individual entitled to relief under
Taylor and is entitled to have the final
administrative denial of the prior application(s) reviewed under the terms
of the Taylor settlement agreement. 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 Taylor readjudication.
The Disability Determination Service will notify the claimant of its new
determination and of the claimant's right to file a new request for
hearing.
|
|
|
_____________________________
Administrative
Law Judge
|
|
|
|
_____________________________
Date
|
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
Taylor 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. Taylor Court Case Flag for Headquarters Use (DDS
Readjudication)
Taylor Court Case
READJUDICATION NECESSARY
|
Claimant's Name: |
___________________________ |
|
|
|
|
|
|
|
|
SSN: |
___________________________ |
|
|
This claimant is entitled to relief under Taylor.
The attached Taylor claim file was forwarded to
this hearing office for possible consolidation with a current claim.
_______ The
Administrative Law Judge has determined that the prior and current claims
do not share a common issue and, therefore, should not be
consolidated.
or
_____ The claims have not been
consolidated because
[(state reason(s))] ________
_________________________________________________________________
_________________________________________________________________.
Accordingly, we are forwarding the attached alert and prior claim file(s)
to your location for any necessary Taylor
readjudication action.
|
|
We are sending the alert and
prior file(s) to:
__________________________________
__________________________________
__________________________________
__________________________________
(Destination code: ___)
|