Attachment 1. June 26, 1995 Order Approving Settlement, Issued by the United States District Court for the Southern District of Ohio, with attached Settlement Agreement and Privacy Act Protective Order

A Fairness Hearing in this matter was held on the 27th day of April 1995, before The Honorable S. Arthur Spiegel, United States District Judge for the Southern District of Ohio. The purpose of the hearing was to aid the Court in determining whether the Proposed Settlement of this class action lawsuit was fair and adequate, as required by Rule 23 of the Federal Rules of Civil Procedure. The Parties recounted their settlement efforts and their reasons for believing that the agreement should be approved by the Court. The Court afforded all present the opportunity to express their support or objection to the Proposed Settlement. One objector came forward. At the encouragement of the Court, the Parties, subsequently, negotiated an accommodation for this objector. Additionally, the Parties have submitted minor corrections to the original settlement document. We have reviewed the Proposed Settlement agreement and find it to be fair and adequate. Accordingly, we approve the settlement in its final amended form of May 11, 1995.

Initially, we grant the Social Security Administration's Motion, made orally at the hearing, to Substitute the Commissioner for the Secretary of Health and Human Services as the named Defendant.

The Plaintiffs' Class brought this action to remedy the effect of a faulty notice sent out to certain individuals who were being denied Social Security benefits. The Court ordered the Social Security Administration to remedy the defect. The Sixth Circuit Court of Appeals modified the remedy and remanded for the establishment of a procedure for the reopening of denied claims applications.

The Plaintiffs' Class Counsel testified to the efforts exerted on behalf of the class. The class is represented by the Legal Aid Society of Cincinnati. An extensive discovery period covered several years including more than twenty depositions, and the review of thousands of documents. The parties argued cross motions for summary judgment, and the Court entered partial judgment for the Plaintiffs.

The Parties then moved their advocacy to the Court of Appeals, which significantly narrowed our holding. In particular, the Sixth Circuit narrowed the number of claimants entitled to reopen their cases. Additionally, the Court of Appeals held that a Plaintiff must have detrimentally relied upon the faulty notice, in order to qualify for relief. Upon remand, the Parties negotiated the Proposed Settlement now before us. Under the settlement a class member who meets the negotiated criteria will be presumed to have relied upon the faulty notice. It is estimated that the class now consists of approximately 2,600 persons.

The Parties reported on the method of distribution of notice to the class. Actual notice will be provided to all identifiable class members, with the names and address of the potential class members to be provided by the Defendants under the terms of the mutually agreed protective order. Additionally, the settlement requires distribution of posters to all Social Security Offices in Ohio and to other state offices. Finally, public service announcements will be aired. The Plaintiffs indicated that they believe that the notice is adequate.

The Plaintiffs' Class Counsel has reviewed all the objections filed with the Court. He reported that most of the objections are in fact not actual objections to the settlement, but notices of intent to attempt to participate in the settlement. One true objector, Carol Lanning, appeared at the Fairness Hearing through counsel. The Court expressed its hope that some accommodation could be made for Ms. Lanning. The Government has assured us that such an accommodation has been reached, and that Ms. Lansing and her counsel no longer maintain their objection. See Federal Defendant's Report to Court, at 1 & 3 (doc. 204).

The Government also reported to the Court that the Social Security Administration, only the day before our Fairness Hearing, promulgated Social Security Ruling 95-1p, 60 Fed. Reg. 20349 (April 26, 1995). The Government reports that this ruling:

is a nationwide Policy Interpretation Ruling concerning the finding of good cause for missing the deadline for requesting administrative review due to reliance on statements in initial or reconsideration denial notices, including the Title II reconsideration notice at issue in this case.

Federal Defendant's Report, at 2 (doc. 204). The Government reports that this ruling “provides yet another vehicle for claimants who allege that they received inadequate notices to seek redress.” Id. However, under the ruling the claimant must make an evidentiary showing of good cause. Id.

The members of this settlement class who meet the criteria specified in the Proposed Settlement “will be presumed to have relied on the notice, without the need to make any additional evidentiary showing.” Id. The Government reports that class members who do not qualify for the presumption will still have an opportunity to demonstrate their reliance under the new Social Security Ruling.

The settlement agreement incorporates a stipulated Privacy Act Protective Order. This order is necessary to protect the privacy of Social Security applicants, while allowing Plaintiffs' Class Counsel to view private documents in order to assure the applicant rights under the settlement. Additionally, the Protective Order allows the provision of information helpful in locating potential class members. Accordingly, at the request of the Parties, we approve the Privacy Act Protective Order dated February 6, 1995.

Counsel for Defendant Leonard Herman, Director of the Ohio Bureau of Disability Determination appeared at the Fairness Hearing. The state considers the Proposed settlement to be fair and adequate to all parties.

The Proposed Settlement provides for an appeal process if the Social Security Administration decides that an individual who responded to the potential class relief notice or otherwise requested review is not a class member entitled to relief. See Proposed Settlement Order at 8-9, Exhibit 1 to Joint Motion for Tentative Approval of the Settlement (doc. 160). Such an individual may contact Plaintiffs' Class Counsel, who upon review may elect to carry the appeal to the Office of General Counsel, Social Security Division, Department of Health and Human Services (“OGC”). Id. If the Parties are unable to resolve the dispute at the OGC level, then the Proposed Settlement Agreement provides for appeal to the district court. Id at 9. In order to provide prompt and orderly attention to such appeals, we designate United States Magistrate Judge Jack Sherman as the arbiter of any such appeals. Magistrate Judge Sherman will render a final judgment binding upon all parties.

We have studied the Proposed Settlement. We have conducted a Fairness Hearing at which we questioned the Parties in regard to the Proposed Settlement. We are satisfied that the one class member who raised a formal objection at the Fairness Hearing has removed her objection by mutual agreement. Therefore, the Court is satisfied that the Proposed Settlement represents a fair and adequate adjudication of the rights of the Parties in this litigation. Accordingly, we hereby APPROVE the Settlement Agreement and also APPROVE the Privacy Act Protective Order.

     SO ORDERED

Exhibit 1

ORDER

This case is before the Court on remand from the Court of Appeals for the Sixth Circuit which has directed this Court to determine procedures for reopening the claims of class members who are entitled to relief pursuant to the appellate court's May 12, 1994 decision. See Day v. Shalala, 23 F. 3d 1052, 1067 (6th Cir. 1994). Accordingly, it is hereby ORDERED as follows:

The class defined in the Court's November 20, 1991 Order was comprised of:

All persons who applied for and were denied, or were terminated from, the receipt of Title II or Title XVI disability benefits since October 9, 1984, or who will be denied or terminated from the receipt of Title II or Title XVI disability benefits, by the Ohio Bureau of Disability Determination (BDD). This class excludes persons who were denied or terminated because they have returned to substantial gainful activity or who are not eligible for disability benefits for reasons not related to disability.

On May 12, 1994, the Court of Appeals for the Sixth Circuit further restricted the definition of a class member, holding that:

[t]he class . . . excludes any claimants whose applications for reconsideration were denied more than sixty days before the filing of the amended class complaint on December 4, 1987.

Day v. Shalala, 23 F.3d 1052, 1058 (6th Cir. 1994).

The Sixth Circuit also noted that “[b]ecause plaintiffs concede that the [Title II reconsideration denial] notices used starting in February, 1990 are adequate, their challenge is only to the [Title II reconsideration denial] notices in use from October 9, 1984 until February, 1990.” Day, 23 F.3d at 1065.

Class members entitled to relief are individuals:

1. A. 

   Who received at the reconsideration level a denial notice of Title II disability benefits from the BDD on or after October 5, 1987, and before February 1, 1990, which stated, in part, that:

   If you do not request a hearing of your case within the prescribed time period, you still have the right to file another application at any time;

   and;

2. B. 

   Who detrimentally relied on the above notice language. To demonstrate such reliance, a class member must have satisfied the following criteria:¹

   1. 1. 

      Filed a new application within 2 years or receipt of the above-described reconsideration denial notice, rather than pursuing the appeal of the previous application because of such notice; and

   2. 2. 

      Been subsequently presented by the Secretary with a claim of res judicata on any new Title II² benefit application, or received less in retroactive benefits then the class member would have received had the class member successfully appealed initially;

      and;

   3. 3. 

      If presented with a claim of res judicata pursuant to ¶ II.B.2 of the Order, the Secretary did not withdraw the res judicata claim and consider the class member's entitlement to Title II benefits, and the class member did not appeal the res judicata decision to a United States District Court.³

1. A. 

   1. To the extent practicable, SSA shall, by means of its data processing systems, immediately commence identification of the names, Social Security numbers, and last known addresses of all class members potentially entitled to relief. SSA will attempt to complete such identification within 90 days of final approval of this Order by the district court. SSA believes it can reasonably be expected to complete such identification within 90 days, but in the event that SSA experiences serious computer difficulties, or other unforeseen circumstances, SSA will immediately contact plaintiffs' counsel to prepare a revised timetable for identification of class members potentially entitles to relief.

   2. SSA will attempt to furnish draft implementation instructions to plaintiffs' counsel within 120 days of final approval of this Order by the district court. SSA believes it can reasonably be expected to provide draft implementation instructions within 120 days, but in the event that SSA cannot forward the draft implementation instructions within 120 days of final approval of this Order by the district court, SSA will immediately contact plaintiffs' counsel to prepare a revised timetable for forwarding the draft implementation instructions. Plaintiffs' counsel shall have 20 days to review the draft instructions and provide any comments thereon to SSA. SSA may, but is not required to, modify the implementation instructions based on plaintiffs' counsel's comments and SSA will attempt to issue final implementation instructions to all affected SSA personnel within 60 days after receipt of comments from plaintiffs' counsel. SSA believes it can reasonably be expected to issue final implementation instructions within 60 days, but in the event that SSA cannot forward the final implementation instructions within 60 days of receipt of comments from plaintiffs' counsel, SSA will immediately contact plaintiffs' counsel to prepare a revised timetable for forwarding the draft implementation instructions.

   3. Thirty days after the issuance of final implementation instructions by SSA under ¶ III.A.2 of this Order, or thirty days after the identification of class members pursuant to ¶ III.A.1, whichever occurs later, SSA shall send a copy of the potential class relief notice, along with a review request form and a postage prepaid return envelope by first class mail to the last known address of those individuals potentially entitled to relief as described in ¶ II of this Order.

   4. When individual notices are returned as undeliverable, SSA will attempt to obtain updated addresses by providing a computer tape to the Ohio Department of Human Services (ODHS) for the sole purpose of obtaining addresses through a computerized match with public assistance, food stamp, and/or other relevant records. SSA's attempt to obtain updated addresses is subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a (“Privacy Act”). SSA shall not be obligated to bring legal proceedings to gain access to such data system records. After completion of the data match, SSA shall mail notices to any potential class member for whom ODHS provides an updated address.

2. B. 

   1. Any individual who receives a potential class relief notice and who wishes to request relief under this Order must mail a completed review request form in the SSA-provided franked, self-addressed envelope to SSA within 60 days of the date of receipt of the notice. No individual who fails to timely return the review request form to SSA shall receive relief under this Order unless the individual demonstrates good cause (as defined in 20 C.F.R. § 404.911) for the untimeliness.

   2. Any individual who does not receive a potential class membership notice but who wishes to request relief under this Order must notify SSA by mail, telephone, or in person at an SSA Field Office. Such individual must provide SSA with his or her name, address, Social Security number, date of birth, and his or her reason for requesting relief under this Order. The individual must notify SSA within 180 days after SSA mails the notices pursuant to ¶ III.A of this Order. If the individual fails to do so, that individual shall not receive relief, unless the individual demonstrates good cause (as defined in 20 C.F.R. § 404.911) for the untimeliness. In an effort to notify individuals described in this paragraph, SSA will provide plaintiffs' counsel with up to 400 posters ⁴, which describe the relief available under this Order. The posters will explain that individuals must notify SSA within 180 days after SSA mails the notices pursuant to ¶ III.A of this Order.

   SSA will also provide a media package to newspapers, television and radio stations within the state of Ohio containing information for public service announcements and will issue a press release to newspapers within the state of Ohio. As the publication or broadcast of the information provided to the media by SSA pursuant to this paragraph of this Order will be at the discretion of these media, SSA makes no representations as to whether, when, or how frequently this information will be published or broadcasted. The parties further agree that SSA is under no obligation to purchase radio time, television time or newspaper advertisements for the dissemination of the information provided to the media pursuant to this paragraph of this Order.

   3. A determination by SSA under ¶ III.B.1 and ¶ III.B.2 of this Order concerning good cause shall be binding and not subject to further review.

1. A. 

   SSA shall review the claims of individuals who timely respond to the potential class membership notice in accordance with ¶ III.B for a determination as to whether they are potentially entitled to relief. Individuals who meet the criteria set forth in ¶ II of this Order will receive the relief specified in ¶ V.

2. B. 

   If SSA determines that an individual who responded to the potential class relief notice or otherwise requested review is not a class member entitled to relief, SSA will send notice of this determination to the individual and to class counsel: John E. Schrider, Jr., Timothy Juenke, or their designee, Legal Aid Society of Cincinnati, 901 Elm Street, Cincinnati, Ohio 45202. Such individuals will be informed that if they disagree with the determination, they should immediately contact class counsel upon receipt of the notification of non-entitlement to relief.

3. C. 

   Class Counsel may, following receipt of SSA's determination denying class membership, write the Office of the General Counsel, Social Security Division, Department of Health and Human Services (OGC), Altmeyer Building, Room 611, 6401 Security Boulevard, Baltimore, MD 21235 within 60 days of receipt of the notification of non-entitlement to relief and explain any disagreement. If class counsel does not write to OGC to disagree with the SSA determination within 60 days of receipt of the notification of non-entitlement to relief, SSA's determination as to entitlement to relief shall become binding and will not be subject to further review.

4. D. 

   OGC will attempt to resolve through negotiation all disputes concerning the determination made pursuant to this subparagraph. Class counsel may request to review the folder or other material upon which the determination of non-entitlement to relief was based. SSA will make the folders or other materials available at one Social Security field office agreed upon by the parties. The file or other materials will remain at the designated SSA field office for sixty days. Class counsel will use this information solely for the purpose of pursuing the individual's claim, and in accordance with the Stipulated Privacy Act Protective Order dated _________________. If the parties cannot resolve the question of the individual's entitlement to relief through negotiation, OGC will confirm to the individual and to class counsel, in a written notice, that the dispute cannot be resolved. The notice will state that if within 60 days of receipt of OGC's written confirmation the individual does not request the district court's review of the OGC confirmation of the SSA determination, the determination will become final and not subject to further review.

5. E. 

   If OGC determines after consultation with plaintiffs' counsel that the individual is a class member entitled to relief under this settlement, SSA will provide the relief specified in ¶ V of this Order.

6. F. 

   Within 60 days of the issuance of the potential class relief notices, and every three months thereafter, SSA shall submit a written report to class counsel which includes the following information from SSA's computerized tracking system:

   1. a. 

      the number of class notices sent pursuant to ¶ III.A.3 of this Order;

   2. b. 

      the number of individuals responding to notices sent pursuant to ¶ III.A.3 of this Order;

   3. c. 

      the number of notices sent pursuant to ¶ III.A.3 that are returned as undeliverable;

   4. d. 

      the number of class notices sent pursuant to ¶ III.A.4 of this Order;

   5. e. 

      the number of responding individuals who received favorable determinations at the reconsideration level by the BDD;

   6. f. 

      the number of responding individuals who received unfavorable determinations at the reconsideration level by the BDD.

7. G. 

   SSA shall inform plaintiffs' counsel of the date that notices are mailed pursuant to ¶ III.A.3 and ¶ III.A.4 within two days of such mailing.

8. H. 

   SSA shall provide plaintiffs' counsel with copies of all policy statements, directives and instructions regarding identification, notification and potential relief to potential Day v. Shalala class members, within seven working days of their issuance.

1. A. 

   If SSA determines that an individual who has responded to a class notice or requested relief pursuant to ¶ III.B of this Order is a class member entitled to relief, SSA will reopen the class member's Title II application which forms the basis for relief under this Order to consider whether the class member was eligible for disability insurance benefits. ⁵ SSA will take into account evidence in the claims file and any additional evidence submitted by the class member, which relates to an impairment that existed while the class member met the requirements of disability insured states. All claims entitled to reopening under the terms of the Order shall be readjudicated at the reconsideration level, unless consolidated pursuant to ¶ V.B of this Order.

   For claims readjudicated at the reconsideration level, SSA shall develop the record in accordance with SSA policy for development of regular claims, e.g., 20 C.F.R. §§ 404.1512-18. SSA will inform class members that they may submit new evidence pertaining to the readjudication of their claim. If SSA is unable to obtain a class member's file, SSA shall reconstruct the missing file according to the relevant POMS provisions. See GN 01201.100; DI 20510.005; DI 20510.010.

2. B. 

   At the option of SSA, class members with subsequent disability claims active and simultaneously pending at any administrative level of review at the time the class claim is being evaluated may have all claims covered by this Order consolidated and reviewed with the current claim. SSA will use its best efforts to ensure that adjudication of the current claim is not delayed by such consolidation.

3. C. 

   Individuals whose claims are redetermined pursuant to this Order shall retain all rights to seek further administrative and judicial review in accordance with 42 U.S.C. § 405 (g) and 20 C.F.R. Part 404, Subpart J.

All disclosures under this Order shall be governed by the terms of the stipulated Privacy Act Protective Order, dated ___________________, which hereby is incorporated into this Order as if fully set forth herein in its entirety.

1. A. 

   The Sixth Circuit's May 12, 1994 decision in this case represents the full and final resolution of the claims or causes of action in connection with plaintiffs' class complaint. Accordingly, the amended class complaint hereby is dismissed with prejudice. The Court will retain jurisdiction over the case solely for purposes of reviewing a timely petition for attorney fees, enforcing the terms of this Order, reviewing requests for modification submitted by the parties pursuant to VII.B of this Order, and enforcing or granting relief from that portion of the District Court's Order affirmed by the appellate court's May 12, 1994 decision.

2. B. 

   The parties may seek modification of this Order by written agreement of all of the parties, which shall not become effective until approved by the Court.

3. C. 

   This Order shall not be construed as limiting the pre-existing rights of any class member to apply for benefits, request administrative or judicial review, or request reopening of a decision pursuant to 20 C.F.R. §§ 404.988 and 416.1488.

4. D. 

   This Order reflects the entire agreement of the parties concerning the issues addressed in this Order.

5. E. 

   Final judgment in accordance with Rules 54, 58, and 79(a), Fed. R. Civ. P., shall be entered upon the Court's entry of this Order. This Order shall become effective on the 61st day after such entry of final judgment. In the event an appeal of this Court's entry of the Order or the final judgment is filed, SSA may in its discretion delay implementation of the Order until a final determination of the appeal.

Agreed To:

 ____________/s/__________________
 JOHN
E. SCHRIDER, JR. (0014967)
 TIMOTHY R. JEUNKE (00161309)

Legal
Aid Society of Cincinnati
 901 Elm Street
 Cincinnati,
OH 45202
 (513) 241-9400
 
 Attorney for
Plaintiffs
 
 
 

___________/s/___________________
 BRIAN
G. KENNEDY
 KAREN STWEART
 U.S. Department of
Justice
 Room
820
 901 "E" Street, N.W.
 Washington, D.C. 20530

(202)
514-2849
 
 Attorneys for Federal Defendant


 
 
 __________/s/____________________

JACK
W. DECKER (0021285)
 Assistant Attorney General
 Employment
Law Section
 30 E. Broad St., 23rd Flr.
 Columbus,
OH 43215-3428
 (614) 644-7257
 
 
 Attorney
for State Defendants
 
 
 
 


 
 

Exhibit 2

Pursuant to 5 U.S.C. § 552(b) (11), 42 U.S.C. § 1306 (a), and 20 C.F.R. § 401.340, IT IS HEREBY ORDERED as follows:

     1. Defendant may disclose to plaintiffs' counsel information regarding class members potentially entitled to relief under the district court's Order implementing the decision in Day v. Shalala, 23 F.3d 1052 (6th Cir. 1994), [hereinafter “Order”] that is subject to restrictions on disclosure under the Privacy Act of 1974 and the Social Security Act, without obtaining the prior written consent of the individual to whom such records pertain.

     2. The information disclosed pursuant to paragraph 1 of this Privacy Act Protective Order (“Protective Order”) shall be used only for the purposes of monitoring compliance with the Order, facilitating implementation of the Order, and assisting class members and potential class members in effectuating their rights under the Order. Except as provided in this Protective Order or otherwise ordered by the Court, access to the information disclosed under this Protective Order shall be limited to: (1) plaintiffs' counsel who are actively assisting with the implementation of the Order; (2) members of plaintiffs' counsel's staff; (3) defendant or her agents, counsel or staff; (4) the Court in this action; or (5) other persons participating in the accomplishment of the authorized purposes of disclosures as described in this paragraph of the Protective Order.

     3. Any disclosure to persons described in items (2) and (5) of the paragraph 2 of this Protective Order shall be conditioned upon such persons having read this Protective Order and acknowledged, in a written affidavit, that they understand the Order and agree to be bound by it.

     4. Plaintiffs' counsel and members of their staff shall limit the making of copies of the records disclosed under this Protective Order to those necessary to the purposes described in paragraph 2. All such copies, and any document or working paper created by plaintiffs' counsel or any member of their staff that contain information subject to the terms of this Protective Order, shall be protected from disclosure in accordance with the provisions of this Protective Order and shall be maintained in a secure place.

     5. All material filed on the public record of the court or accessible to the public shall have the names, addresses, Social Security numbers, claim numbers and other personal identifying information stricken therefrom, replacing the names with the appropriate pseudonyms if necessary. If the parties deem it necessary to utilize such information in any presentation to the court, any documents containing such identifying information shall be filed under seal and the identifying information need not be stricken.

     6. This Protective Order shall not apply to records of claimants who provide written consent to the release of confidential information subject to this Protective Order to the Legal Aid Society of Cincinnati.

     7. Plaintiffs' counsel shall destroy any documents subject to this Protective Order within ninety (90) days after the documents are no longer needed for the purposes described in paragraph 2 of this Protective Order.

     8. Nothing in this Protective Order should be construed to be the litigating position of any party regarding disclosures under state or federal privacy laws, including the Privacy Act of 1974.

     9. Upon twenty days notice to the other parties, any party may seek modification of this Order.

IT IS SO ORDERED this ________ day of ____________________, 1995.

 

 

Agreed To:

___________/s/___________________
 JOHN E.
SCHRIDER, JR. (0014967)
 TIMOTHY R. JEUNKE (00161309)

Legal
Aid Society of Cincinnati
 901 Elm Street
 Cincinnati,
OH 45202
 (513) 241-9400
 
 Attorney for
Plaintiffs
 
 

___________/s/___________________
 BRIAN
G. KENNEDY
 KAREN STEWART
 U.S. Department of
Justice
 Room
820
 901 "E" Street, N.W.
 Washington, D.C. 20530

(202)
514-2849
 
 Attorneys for Federal Defendant


 
 ____________/s/__________________
 JACK
W. DECKER (0021285)
 Assistant Attorney General
 Employment
Law Section
 30 E. Broad St., 23rd Flr.
 Columbus,
OH 43215-3428
 (614) 644-7257
 
 Attorney
for State Defendants
 
 
 
 

¹     Class members will not be required to make a specific showing that they were misled by the relevant notice in order to obtain relief under this Order. SSA's agreement to forego this requirement is limited to this case for purposes of settlement and should not be read as a concession by SSA that individuals who have not shown that they were misled by the relevant notice necessarily “detrimentally relied” on the notice for purposes of any other case or circumstances.

²     An application under Title XVI includes an application for all other possible benefits, including an application for Title II benefits.

³     Pursuant to ¶ IV.A of this Order, SSA will screen the claims files of potential class members to determine if the criteria set forth in ¶ II has been met. While the parties cannot anticipate all of the issues that might arise during the screening process, the parties agree that the criteria set forth in ¶ II of this Order are designed to identify, for purposes of reopening, those individuals whose decision to reapply for benefits rather than pursuing an appeal of the previous application resulted in either a total bar to benefits or a reduction in benefits.

Moreover, any individual who meets the criteria of ¶ II will not be denied relief under this Order because he/she was no longer insured on the date of the reapplication.

⁴     Poster notices prepared by SSA and subject to review and approval by class counsel will be publicly displayed in all SSA field offices and OHA offices in the State of Ohio until the end of the time period for response to notification. In addition, SSA will send such posters to all County Department of Human Services in the State of Ohio with a written request that they be conspicuously displayed in locations such as applicant and recipient waiting rooms.

⁵     SSA will apply its normal procedures for processing claim of deceased individuals. See 42 U.S.C. § 404(d); 20 C.F.R. §§ 404.503(b); 404.610(d), 404.615, 404.621(e); 404.1505; POMS DI 23510.001; GN 02301.030.

Attachment 2. - Sample Day Alert

SHIP TO ADDRESS:

SPECIAL INSTRUCTIONS:

IF CLAIM IS PENDING OR STORED IN OHA HEADQUARTERS, THEN SHIP TO:

Office of Hearings and Appeals
Office of Appellate Operations (OAO)
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200

ATTN: OAO Class Action Coordinator

(Case locator code 5007)

 

IF THE CLAIM IS PENDING IN AN OHA HEARING OFFICE, THEN SHIP FOLDER DIRECTLY TO THAT OFFICE

Attachment 3. - Screening Flag - Within OHA

This claimant may be a Day class member. The attached folder location information indicates that a current claim file is pending or stored in your office. Accordingly, pursuant to HALLEX Temporary Instruction 5-4-53, we are forwarding [the attached alert] or [the attached alert and prior claim file(s)] for association, screening for class membership, consolidation consideration, if appropriate, and possible readjudication.

Attachment 4. - Day SCREENING SHEET

Day Screening Sheet Instructions

COMPLETE ONLY ONE SCREENING SHEET EVEN IF THE CLAIMANT RECEIVED MULTIPLE DETERMINATIONS WITHIN THE CLASS DATES. HOWEVER, THE SCREENING SHEET PROVISIONS MUST BE CONSIDERED SEPARATELY FOR EACH CLAIM. A CLASS MEMBER WHO RECEIVED MULTIPLE DETERMINATIONS IS ELIGIBLE FOR READJUDICATION ONLY ON THOSE CLAIMS MEETING ALL CLASS MEMBERSHIP REQUIREMENTS.

Items 1 - 5

Fill in the claimant's own SSN, regardless of whether it is the SSN under which the claimant applied for or received benefits. Also fill in the SSN under which the claimant pursued benefits, along with the BIC or ID (i.e., the claim number), from the alert package. If the claimant's name has changed since the original application(s) was adjudicated, indicate the claimant's former name in parentheses.

Item 6

Complete this item after case screening. Check one block in item 6. a. and, if appropriate, enter the two-digit screen-out code in item 6. b.

Item 7

Only disability claims medically denied under title II are eligible for class membership consideration. The determination within the appropriate timeframes must have been at the reconsideration level. Individuals who received cessation determinations, or partial awards either at the initial or reconsideration level, are not eligible for class membership because they would not have received notices from the BDD. Determine the date of denial from the latest SSA-831-U3 or other denial form.

Item 8

An individual is a potential class member only if the title II reconsideration denial notice failed to contain the admonition that “[a] new application is not the same as an appeal of this determination.” In lieu of this language, defective notices advised claimants that they had the right to file another application at any time, leaving the impression that their rights would be preserved. The court did not find that the title II initial notice of denial or the title XVI notices were “defective.” If a copy of the notice is not in file, presume that the individual received a defective notice.

Item 9

An individual is a potential class member only if he or she was misled by the faulty notice and filed a new claim rather than pursuing appeal (i.e., requested a hearing). An individual who pursued appeal could not have been misled. A request for reopening is not the same thing as pursuing appeal.

Items 10 and 11

In addition to the requirement that a potential class member must have filed a new claim, the new claim must have been filed within two years of the date of receipt of the “defective” reconsideration notice. For purposes of implementing class relief in this case, we are considering the claimant's filing of a new claim within two years, rather than pursuing appeal, to be presumptive evidence that the claimant was misled with respect to his/her appeal rights.

If the new claim was based on a new and different impairment(s), the claimant cannot be a class member.

Item 12

An individual is a potential class member as long as he or she received, in whole or in part, a favorable determination or decision under either title II or title XVI on any subsequent claim filed within the required two-year period. The date of the favorable determination or decision itself is immaterial.

Item 13

If an individual received a favorable determination on a claim subsequent to the defective notice claim, but that determination did not cover the entire time period at issue in the defective notice claim, then the individual is a class member.

Item 14

When the favorable determination/decision referenced in items 12. and 13. was effectuated, the prior claim(s), i.e., the defective notice claim(s), may or may not have been reopened, depending on the rules of administrative finality. If in effectuating the subsequent claim, the defective notice claim(s) could not be reopened for payment purposes because of the rules of administrative finality, the individual is a class member. However, because the entire time period covered by the defective notice claim(s) has already been adjudicated (see item 13.), the only action necessary is to send the defective notice claim(s) to the Office of Disability and International Operations to pay any additional payment/benefit due.

Item 15

An individual is a potential class member as long as he or she received, in whole or in part, a res judicata denial (or res judicata dismissal at the ALJ or Appeals Council levels), under either title II or title XVI on any subsequent claim filed within the required two-year period. The date of the res judicata action itself is immaterial.

Item 16

Ordinarily, an individual who receives a res judicata denial has no right to judicial review. In most cases, a district court will dismiss a complaint filed in this situation. Occasionally, however, district courts will take jurisdiction of an appeal from a res judicata denial. The Day court has specifically precluded these cases from class membership. (An individual who appealed the issue of less than full retroactive benefits (i.e., failure to reopen) ordinarily also has no right to judicial review. However, the Day court has not specifically precluded these cases from class membership.) Any questions concerning court action in these situations should be referred to the Day coordinator.

An individual who has received a determination (whether favorable or unfavorable) on a later claim (at any level) concerning the entire time period at issue in the defective notice claim, has obtained all available relief under the Day settlement.

Processing Class Member Determinations

1. a. 

   Check the “Member” block in item 6. a. of the screening sheet.

2. b. 

   Show the dates of all applications screened and the corresponding date of defective notice or date of res judicata denial or allowance, as appropriate, in item 19. of the screening sheet. Check the block for each claim that confers class membership.

3. c. 

   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.

4. d. 

   Retain the original screening sheet in the claim file. OHA Headquarters components will send a copy of the screening sheet to:

   Office of Appellate Operations
   One Skyline Tower, Suite 701

   Attn: OAO Class Action Coordinator

   [The Class Action Coordinator will enter the screening sheet information from the screening sheet into a data base and forward the screening sheet to the Division of Litigation Analysis and Implementation (DLAI).]

   OHA Hearing Office (HO) components will send a copy of the screening sheet to:

   Office of Hearings and Appeals
   Division of Litigation Analysis and Implementation
   Office of Policy, Planning and Evaluation
   One Skyline Tower, Suite 702
   5107 Leesburg Pike
   Falls Church, VA 22041-3200

   Attn: Day Coordinator

   [DLAI will retain a copy of each screening sheet received from the OAO Class Action Coordinator or an HO and forward a copy to the Litigation Staff at SSA Headquarters for entry into the Civil Action Tracking System.]

5. e. 

   Follow HALLEX HA 01540.053, V. B. 3. b.

Processing Non-class Member Determinations

1. a. 

   Check the “Nonmember/Member Not Entitled to Relief” block in item 6. a. of the screening sheet and enter the screen-out code in item 6. b.

2. b. 

   Follow items b. - d. above.

3. c. 

   Prepare and issue the “Non-Class Membership Notice.” Retain a copy of it in the folder, and mail a copy to the Day class counsel and claimant's representative, if any. Forward the claim file(s) as indicated in HALLEX HA 01540.053, V. B. 3. a.

Attachment 5. - Screening Flag -- Outside OHA

REMARKS

Day Case

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 ODIO for screening. SEE POMS DI 12576.020A.1. or DI 42576.005.4.

 

DO NOT use this form as a RECORD of approvals, concurrences, disposals, clearances, and similar actions.

Attachment 6. - Readjudication Flay for OHA Retention Cases

Day Class Action Case

READJUDICATION NECESSARY

This claimant is a Day class member. After expiration of the retention period, forward claim file(s) to the BDD for readjudication.

[Send folders to the BDD.]

Attachment 7. Non-Class Membership Notice

We are writing to tell you that we received your request to review your earlier claim for disability benefits under the Day v. Chater court decision. We have looked at your case and have decided that you are not a class member entitled to relief. This means that we will not review our earlier decision. The reason that you are not a class member entitled to relief under the Day court order is checked below.

You Are Not A Day Class Member Because:

We Are Not Deciding If You Were Disabled

It is important for you to know that we are not making a decision about whether you were disabled at the time of your earlier claim. We are deciding only that you are not a Day class member.

If You Do Not Agree With This Determination

If you want us to review our determination that you are not entitled to relief under the Day case, you may contact the class attorney, who will answer your questions about class membership. If the attorney thinks this determination is incorrect, he has 60 days from the date of this letter to ask us to look at your case again. The name and address of the attorney are:

John E. Schrider, Jr., Esq.
Legal Aid Society of Cincinnati
901 Elm Street
Cincinnati, OH 45202
(513) 241-9400

If You Think You Are Disabled Now

If you think you are disabled now, you may file a new application. A new application is not the same as asking us to review your claim under Day. In the new application, you may not be able to receive disability benefits for the period of time you asked for in your prior claim. If you decide to file a new application, contact any Social Security office.

If You Have Any Questions

If you have any questions, you may contact your Social Security office. The address and phone number are printed at the top of this letter. If you call or visit an office, please have this notice with you. It will help us answer your questions. You may also contact your personal legal representative, if you have one, or the Day class attorney listed above.

Si usted no entiende esta carta, llévela a la Oficina de Seguro Social arriba mencionada para que se la expliquen.

cc: John E. Schrider, Jr., Esq.

Attachment 8. - Route Slip for Non-class Membership

REMARKS

We have determined that this claimant is not a Day class member. (See screening sheet and copy of denial of class relief notice in the attached claim file(s).) As requested, we are forwarding the file(s) for class counsel's review. SEE POMS DI 12576.020A.2.

 

 

DO NOT use this form as a RECORD of approvals, concurrences, disposals, clearances, and similar actions.

OPTIONAL FORM 41 (Rev. 7-76)
        *U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
                FPMR (41 CFR) 101-11.206

Attachment 9.

Text for Notice of Revised Class Membership Determination

In an earlier notice that we sent you, we said that you were not a class member entitled to relief in the Day v. Chater class action. Upon further review of the facts in your case, we have decided that you are a class member entitled to relief. Therefore, we will review your class member claim under the Day Settlement Agreement.

We have many requests for review and it may take several months before we look at your claim file. When we start the review, we may contact you for any additional evidence or information that you may wish to submit.

If you have any questions, you may contact any Social Security office. If you have someone helping you with your claim, you should contact him or her. You or your representative may also contact the attorney in this case:

John E. Schrider, Jr.
Legal Aid Society of Cincinnati
901 Elm Street
Cincinnati, OH 45202
Tel.No. (513) 241-9400

If you call or visit a Social Security office, please have this notice 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.

Si usted no entiende esta carta, llévela a la Oficina de Seguro Social arriba mencionada para que se la expliquen.

cc: John E. Schrider, Jr.

Attachment 10. - Readjudication Flag for No Common Issue Cases

Day Calss Action Case

READJUDICATION NECESSARY

This claimant is a Day class member. The attached Day claim file was forwarded to this hearing office for possible consolidation with a current claim.

Accordingly, we are forwarding the attached alert and prior claim file(s) to your location for any necessary Day readjudication action.

We are sending the alert and prior file(s) to:

Attachment 11. Text for Appeals Council Remand to BDD - Class Member Claim Associated with Current Claim Pending Appeals Council Review

 

On ____________, the claimant filed a request for review by the Appeals Council on the issues raised by ((his/her) application dated ____________.) OR (the Administrative Law Judge's dismissal action.) The claimant has also been identified as a member of the Day class action and is entitled to have the final administrative denial of (his/her) application(s) dated ____________ readjudicated by the Bureau of Disability Determination under the terms of the June 26, 1995 Order Approving Settlement.

Accordingly, the Appeals Council grants the claimant's request for review and vacates the Administrative Law Judge's (decision/dismissal action). Because the claimant is entitled to relief at the reconsideration level under the Day class action, the Council remands this case to the Bureau of Disability Determination for reopening of the issues raised by the (dates of applications) applications. The Bureau of Disability Determination will issue one determination covering (both or all) claims. If the Bureau of Disability Determination does not issue a fully favorable determination, it will notify the claimant of the right to request a hearing before an Administrative Law Judge.