III. Guiding Principles
Under the Bentley settlement, the Florida ODD (and
the Commissioner) will readjudicate the claims of those persons who: 1)
respond to notice informing them of the opportunity for review; and 2) are
determined, after screening, to be class members entitled to relief (see
Part V. B. 3. below). Regardless of the
state of the claimant's current residence, the Florida ODD will, in most
cases, perform the agreed-upon readjudications. OHA will screen cases and
perform readjudications under limited circumstances (see
Parts V. and VI. below).
The type of readjudication will be a
“redetermination." A
redetermination consists of a
de novo evaluation of the class member's
eligibility for benefits based on all evidence in his or her file,
including newly obtained evidence, relevant to the period that was at
issue in the administrative determination(s) that forms the basis for the
claimant's class membership. If the redetermination results in a favorable
decision, the adjudicator must also determine whether the class member's
disability and eligibility has been continuous through the date of the
readjudication, i.e., through the current date or the date of the most
recent allowance. The adjudicator will also assess disability through the
current date if a class member claim is consolidated with a common-issue
current claim.
Cases readjudicated by the Florida ODD will be processed at the
reconsideration level regardless of the final level at which the claim was
previously decided. The class member claim(s) will be adjudicated under
current policies and procedures. Subject to the above limitations, class
members who receive readjudications that result in RFCs different from the
ones done by the ODD physicians identified in this action (i.e., Dr. Juan
Martinez-Serra and Dr. Robert Miles) will have full appeal rights, i.e.,
Administrative Law Judge (ALJ) hearing, Appeals Council and judicial
review. Class members who receive readjudications in which the RFC
assessment remains the same will have no appeal rights.
Other than “waterfall” cases, i.e., appealed cases, the
primary implementation impact of the Bentley
settlement on OHA will be the responsibility for screening when a
potential class member claim or current claim is pending or stored at OHA.
Under the terms of the settlement, SSA will usually consolidate current
claims and class member claims at the ODD level. However, under certain
circumstances, as described in Part VI.
below, an ALJ or the Appeals Council may consolidate a class member claim
and a current claim for the purpose of issuing a decision.
In addition to readjudication as part of the settlement, the Florida ODD
will insert in the letter sent to each new claimant for disability
benefits (the M-48 letter) a sentence informing the claimant that a letter
(the M-1 letter) has been sent to his or her doctor asking for information
concerning the claimant's medical history, clinical findings, laboratory
findings, treatment and response, diagnosis, prognosis and a statement
about what the claimant can do despite his or her impairment(s). Also, as
part of the settlement, the Florida ODD issued a reminder to all ODD
medical consultants regarding completion of RFC forms. The reminder stated
that in order to make an informed assessment of RFC, the consultant must
review the case file information to the extent required by the Programs
Operations Manual System and to the degree sufficient to establish that,
in the consultant's professional judgment, the assessment is supported by
the medical and nonmedical evidence.
Attachment 1. - Final Order Approving Settlement; Entered by the United States
District Court for the Middle District of Florida on August 24, 1995.
|
|
|
[DATE FILED 08/24/1995]
|
|
|
|
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
|
|
|
|
|
|
KATHY J. BENTLEY et al., |
|
|
|
|
|
|
|
Plaintiffs,
|
|
|
|
|
|
|
|
v. |
|
Case No. 92-40-Civ-J-20 |
|
|
|
|
|
J. DAVID SELLARS, |
|
|
|
Director of Florida Department of HRS, |
|
|
|
Office of Disability Determinations, and |
|
|
|
SHIRLEY S. CHATER, in her official capacity |
|
|
|
As the Commissioner of Social Security, |
|
|
|
|
|
|
|
Defendants,
|
|
|
This Court conducted a Final Approved
Hearing on August 22, 1995, to determine whether the Settlement Agreement
reached by the parties, and lodged with the Court on April 18, 1995, is
fair, reasonable, and adequate. The Court notes that after publishing this
Settlement Agreement on June 18, 1995, in newspapers of general
circulation in the major metropolitan areas of the State of Florida, the
Court received one objection. The Court has considered this one objection,
filed by Julian S. Mangum Sr. and Ida Frances Mangum and finds that the
objection is without merit because it does not relate to the issues
covered by the Settlement Agreement and the Magnums are not class
members.
The Court has also considered the
Memorandums filed by all parties in support of the Settlement Agreement,
as well as the arguments of counsel.
This suit is based on Plaintiffs'
allegations that Defendants are not following the Social Security Act
because they are applying a different standard at the application and
reconsideration level than is being applied at the federal administrative
review level. According to plaintiffs, the deliberations of the Florida
Office of Disability Determinations (“ODD”) result in:
improper residual functional capacity (“RFC”) determinations,
failure to properly consider all relevant medical and nonmedical evidence,
illegal discounting of subjective complaints, including pain; and
inadequate evaluation of non-exertional impairments. Trial commenced on
April 3, 1995. In support of these allegations, Plaintiffs relied on
evidence of a higher allowance rate at the Administrative Law Judge
(“ALJ”) level and on the testimony of witnesses which they
argue establishes that federal law was not being properly administered by
the State Defendant and enforced by the Federal Defendant.
Defendants denied these allegations and
suggested that the evidence submitted by Plaintiff does nothing more than
establish the obvious-that mistakes are expected in a system, such as the
Social Security System, which is run by humans. Defendants also raised the
possibility that the differences in the allowance rates at the initial and
ALJ level was the result of additional evidence which was submitted after
the initial and reconsideration stages and as a result of the use of a
skilled lawyer at the hearing level.
Other than evidence suggesting that two of
Defendants' doctors may have been improperly reviewing cases at the state
level, the first three days of trial produced little evidence in support
of Plaintiffs' allegations. On April 6 1995, the parties held a settlement
conference. Although no settlement was reached on that date, the parties
continued their negotiations while continuing to try the case. Little
additional evidence supporting Plaintiff's allegations was heard.
The parties reached an agreement on April
20, 1995, with following terms.
1.
The Office of Disability Determinations (ODD) will insert in the letter
sent to each new claimant for disability benefits (the M-48 letter) a
sentence informing the claimant that a letter (the M-1 letter) has been
sent to his or her doctor asking for information concerning the claimant's
medical history, clinical findings, laboratory findings, treatment and
response, diagnosis, prognosis and a statement about what the claimant can
do despite his or her impairments.
2.
The ODD will readjudicate claims de novo in which
either Dr. Juan Martinez-Serra or Dr. Robert Miles signed a physical RFC
for the period of November 1, 1992 through March 1, 1994 for Dr. Miles and
the period from June 1992 through June 1993 for Dr. Martinez-Serra in
cases in which the claimant requested readjudication. These claims will be
limited to those in which there was not subsequent physical RFC performed
by another physician and to claims where the individual did not request an
ALJ hearing. The readjudication of these claims which result in an RFC
different from the ones done by Dr. Miles and Dr. Martinez will carry with
them full appeal rights. The federal defendant will send individual
notices to each person in this group. All individual notices will contain
the name, address and telephone number of plaintiffs' class counsel who
the claimant may call for additional information. Further, the federal
defendant will supply plaintiffs' counsel with the number of claimants
receiving each notification.
3.
ODD will issue the following reminder to all ODD medical consultants
regarding completion of RFC forms: In order to make an informed assessment
of RFC the MC/PC must review the case file information to the extent
required by the POMS and to the degree sufficient to establish that, in
the MC/PC's professional judgment, the assessment is supported by the
medical and non-medical evidence.
4.
Concerning the terms of this settlement agreement, the parties agree that
any violation of any such terms must be proved to be a custom or usage
under 42 U.S.C. section 1983 of the state defendant in order for
plaintiffs to prevail in any post-settlement enforcement action at any
time prior to the absolute date on which the Court will lose jurisdiction,
which date is agreed to be July 1, 1996.
5.
Plaintiffs' counsel waive their attorney's fees, costs, and expenses
incurred by counsel employed by legal services. The State Defendant will
pay $37,000 to Plaintiffs counsel Charles Sasser for his fees, costs and
expenses. No other fees, costs or expenses of any type will be sought by
Plaintiffs or paid by State Defendant. The Federal Defendant will not pay
any of Plaintiff's fees, costs or expenses associated, directly or
indirectly, with litigating this case. The State and Federal Defendants
waive any right to collect from Plaintiffs Defendants' attorney's fees,
costs or expenses associated with litigating this case. The parties intend
this settlement to resolve any claims that were brought or that could have
been brought by any party.
Having preliminarily approved of the
settlement agreement, the Court ordered the parties to publish notice of
this action in newspapers of general circulation in the major metropolitan
areas of the State of Florida. This notice was published on Sunday, June
18, 1995. This notice was reasonably sufficient, under the circumstances,
to inform members of the affected class of the existence of the lawsuit,
of the proposed settlement, and of their right to file an objection.
Rule 23(e) of the Federal Rules of Civil
Procedure provides that “[lsqb ]a[rsqb ] class action shall not be
dismissed without the approval of the court, and notice of the proposed
dismissal or compromise shall be given to all members of the class in such
manner as the court directs.” Therefore, following notice to the
members of the class, the Court must approve of any proposed class
settlement before a class action can be dismissed.
See Piambino v.
Bailey, 757 F.2d 1112, 1139-42 (11th Cir. 1985),
cert.
denied
sub
nom, Hoffman v.
Sylva, 476 U.S. 1169 (1986). In reviewing a proposed
settlement to determine whether it should be accepted, the Court must
consider whether the proposed settlement is the product of fraud or
collusion and whether its terms are fair, adequate, and reasonable.
See Bennett v. Behring
Corp., 737 F.2d 982, 986 (11th Cir. 1984).
In determining whether a settlement is fair,
adequate and reasonable, the Court considers the following factors.
1.
the likelihood of success at trial;
2.
the range of possible recovery;
3.
the point on or below the range of possible recovery at which a settlement
is fair, adequate and reasonable;
4.
the complexity, expense and duration of litigation;
5.
the substance and amount of opposition to the settlement; and
6.
the stage of proceedings at which the settlement was achieved.
Bennett, 737 F.2d at 986. In evaluating these
considerations, the Court should not try the case on the merits.
Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.
1977). The Court, in the absence of fraud, “should be hesitant to
substitute its own judgment for that of counsel.”
Id. With that in mind, the Court now
considers the Bennett factors.
|
|
|
Absence of Fraud or Collusion
|
|
|
Based on the truly adversarial nature of the
pretrial proceedings and partial trial of this matter, as evidenced by the
28 volumes of documents filed by the parties in this case, the Court is
convinced, and specifically finds, that there was no fraud or collusion in
reaching the proposed settlement. The parties in this case agreed on the
proposed settlement agreement after days of extensive, arms-length
negotiations. Each advocate in this case represented his or her client's
interests to the full extent of the law. The proposed settlement agreement
was the result of reasonable compromise among the various interests. Thus,
this factor weighs in favor of approving the proposed settlement.
|
|
|
Likelihood of Success at Trial
|
|
|
In order to prevail in this suit, Plaintiffs
would have been required to establish the existence of a “policy or
custom” of the State Defendant which violated the Plaintiffs' right
under 42 U.S.C. § 1983. See
Hafer v. Melo, 502 U.S. 21, 25 (1991). It is not
enough that Plaintiffs may have established that some of the State
Defendant's employees violated federal law, for “random acts or
isolated incident are insufficient to establish a custom or
policy.” Depew v. City of St. Marys,
Georgia. 787 F.2d 1496, 1499 (11th Cir. 1986). Additionally,
it is not enough that the State Defendant may have denied an application
which should have been granted because “[lsqb ]i[rsqb ]t has never
been expected that an organization so vast as the Social Security
Administration can achieve absolute procedural perfection.”
Mercer v. Birchman, 700 F.2d 828, 835 (2d Cir.
1983). Indeed, Plaintiffs bore the burden of establishing that the State
Defendant's own policy or custom played a part in the violation of federal
law. See Hafer v.
Melo, 502 U.S. 21, 25 (1991).
The evidence submitted by plaintiffs prior
to the settlement agreement may not have been sufficient to support a
claim that Plaintiffs' rights under 42 U.S.C. § 1983 were violated.
Plaintiffs only claim which, so far, was supported by credible evidence
was their claim that Dr. Miles and Dr. Martinez-Serra may have improperly
reviewed files. However, this does not mean that Plaintiffs, if the trial
had continued, could have sustained their burden of proof. Thus, at this
stage of the proceedings, it is unlikely that Plaintiffs would have
prevailed on some of their claims and this factor weighs in favor of
Plaintiffs settling this case and of the Court approving the proposed
settlement. Additionally, little, if any, evidence offered by the time the
settlement was reached damaged the Federal Defendant.
In their Complaint, Plaintiff seeks
injunctive relief of an unspecified nature. Therefore, it is unclear what
relief, it any, would have been granted by this Court. However, in the
settlement agreement, Defendants agreed to readjudicate certain claims and
to provide information to both the claimants and the reviewers which will
serve to decrease the likelihood that the practices alleged by Plaintiff
in their Complaint will occur in the future. The settlement agreement
addresses each of Plaintiffs' concerns in a manner which is consistent to
the type of relief that would have been granted by this Court if
Plaintiffs were able to prevail on all of their claims. Accordingly, the
relief provided by the settlement agreement is within the Plaintiffs range
of the possible recovery and this factor weighs in favor of approval of
the proposed settlement.
|
|
|
The Point on or Below the Range of Possible Recovery
|
|
At Which a Settlement is Fair, Adequate and Reasonable
|
|
|
As was stated above, the proposed settlement
provides a remedy which is within the range of Plaintiffs' possible
recovery. Additionally, in light of the weakness of Plaintiffs' evidence,
this factor is sufficiently satisfied.
|
|
|
The Complexity, Expense and Duration of Litigation
|
|
|
This case was scheduled to last for nearly
six weeks. Additionally, Plaintiffs' claims were extremely broad in that
they alleged that improprieties existed throughout the state system.
Plaintiffs would have had to produce a significant amount of evidence to
establish that the isolated incidences reported on by some of their
witnesses was characteristic of the entire system. Accordingly, the
complexity, duration and expense of trying this case all weigh heavily in
favor of approving the proposed settlement.
|
|
|
The Substance and Amount of Opposition
|
|
|
One objection was filed in response to this
notice. This objection, which was filed by Julian S. Mangum Sr. and his
wife, Ida Frances Mangum, does not raise an objection to the terms of the
settlement agreement, but instead relates to their inability to obtain
disability benefits. Additionally, it does not appear that the Magnums are
members of the class. Accordingly, their objection does not provide this
Court with a reason to reject the proposed settlement agreement.
Furthermore, no other persons appeared at the Hearing on August 22, 1995,
to orally object to the proposed settlement. Thus, the agreement is before
the Court without objection from the Plaintiffs' class and this factor
also weighs in favor of approving the proposed settlement.
|
|
|
The Stage of the Proceedings
|
|
|
The proposed settlement in this case was
achieved after extensive discovery and several days of trial. The facts in
this case were developed to the point that a “reasonable judgment on
the possible merits of the case.” Flinn v. FMC
Corp., 528 F.2d 1169, 1173 (4th Cir. 1975). could be made.
Both parties were aware of the strength and weaknesses of their cases, and
each determined that settlement provided a better option than completing
the trial. Given the deference this Court should give to the experienced
counsel that participated in this case, this factor also weighs in favor
of approving the settlement. See
Williams v. Vukovich, 720 F.2d 909, 922-23 (6th
Cir. 1983).
With respect to the amount of attorney's
fees awarded to Plaintiffs' counsel Charles Sasser, these fees did not
affect the settlement in any way because they did not reduce any amount
that could have been awarded to Plaintiffs. Plaintiffs did not seek money
damages in this action. The fees awarded to Mr. Sasser were to be paid to
him by the State Defendant as a part of the proposed settlement.
Additionally, the amount of fees is reasonable in that they represent only
those reasonable fees, costs and expenses incurred by one of Plaintiffs'
counsel. Plaintiffs' counsel employed by legal service organizations
throughout the State of Florida waived their right to collect fees with
respect to this litigation. Therefore, the amount of fees awarded in this
case weighs in favor of approving the proposed settlement.
Accordingly, it is
ORDERED AND ADJUDGED that pursuant to Rule
23 and in light of the Court's findings with respect to each of the
Bennett factors above, the proposed settlement
agreement in this case is fair adequate, and reasonable and is hereby
APPROVED.
This case is DIMISSED with the Court
retaining jurisdiction to enforce the settlement agreement. The Clerk
shall close the file.
DONE AND ORDERED at Jacksonville, Florida, this
23rd day of August, 1995.
|
|
|
|
|
|
|
|
/s/ |
|
|
____________________________________ |
|
|
HARVEY E. SCHLESINGER |
|
|
United States District Judge |
|
|
|
|
|
|
Copies to:
Esther
O. Yip, Esq.
Sarah H. Bohr, Esq.
Carol A. Jeandheur,
Esq.
Morris E. Shelkofsky, Esq.
Steven Hitov,
Esq.
Sally Schmidt, Esq.
Charles Sasser, Esq.
Garry
Randolph, Deputy Clerk
Law Clerk
|
CLASS ACTION CODE: BT
|
|
1. CLAIMANT'S SSN: ___ ___ ___ - ___ ___ - ___ ___ ___ ___
|
|
2. CLAIMANT'S NAME: _________________________
(Please Print) _____
(Last) (First)
|
|
|
3. DATE OF BIRTH: ____/____/____
(MM/DD/YYYY)
|
|
|
4. CLAIM NUMBER:
____-____-____-________
|
(BIC/ID)
___-___
|
|
5. DATE OF SCREENING: ___ ___/___ ___/___ ___ ___ ___
(MM/DD/YYYY)
|
|
6.SCREENING RESULT:
___REVIEW (J) REQUIRES ___ REVIEW (F)
____DOES NOT REQUIRE
|
SCREENOUT CODE
___ ___(See item 11)
|
|
7. Was the disability determination(s) on the potential Bentley claim(s) issued by the Florida Office of Disability Determinations (ODD)?
|
Yes___No___
If No, go to 11.
|
|
8. Does the file contain a physical RFC assessment form (SSA-4734) signed by Dr. Juan Martinez-Serra dated June 1, 1992, through June 30, 1993;
or,
Does the file contain a physical RFC assessment form (SSA-4734) signed by Dr. Robert Miles dated November 1, 1992,through March 1, 1994?
|
Yes___No___
If No, go to 11.
|
|
9.Has a subsequent physical RFC assessment form (SSA-4734), which was signed by another ODD physician/medical consultant, been prepared on the same or another claim number, applicable to the claimant, which covered the entire period of the potential Bentley claim(s)?
|
Yes___No___
If Yes, go to 11.
|
|
10.Did the claimant appeal the prior denial determination on the potential Bentley claim(s), or on a subsequent claim which covered the entire period of the potential Bentley claim(s), on the same or another claim number, to an Administrative Law Judge (ALJ)?
|
Yes___No___
If Yes, go to 11.
|
|
11.SCREENING INFORMATION
If questions 7 and 8, were answered “YES” and questions 9 and 10 were answered “NO,” check (J) “REQUIRES REVIEW,” in number 6. If questions 7 or 8 were answered “NO” or if questions 9 or 10 were answered “YES,” check (F) “DOES NOT REQUIRE REVIEW,” in number 6 and enter the 2-digit screenout code as follows:
Enter 07 if question 7 was answered
NO.
Enter 08 if question 8 was answered NO.
Enter
09 if question 9 was answered YES.
Enter 10 if question
10 was answered YES.
|
|
12.Enter application dates of ALL applications screened.
_____________________
_____________________
_____________________
|
These applications were screened under:
TII___ TXVI___ BOTH___
TII___ TXVI___ BOTH___
TII___ TXVI___ BOTH___
|
These applications were screened
IN____ OUT____
IN____ OUT____
IN____ OUT____
|
|
SIGNATURE OF REVIEWER
|
OFFICE
|
|
INSTRUCTIONS FOR COMPLETING BENTLEY SCREENING SHEET
|
General Instructions: A separate
screening sheet must be prepared for each claim number. Make sure the
claim number, BIC/ID and SSN, are the same as on the
Bentley Case Flag Alert to ensure proper case
clearance.
Question 1:
Please fill in the claimant's SSN from BOAN/PAN field on alert.
Question 2:
Print the claimant's name (last name, and first name).
Question 3:
Fill in the claimant's date of birth (month, day, 4-digit year).
Question 4:
Fill in the claim number (social security number) under which this claim
is being processed. Include the BIC (Title II)/ID (Title XVI).
Question 5:
Complete the screening date using 2-digit month, 2-digit day, and 4-digit
year.
Question 6:
Complete this information last. Do not
fill in until the screening process has been completed.
Questions 7-11:
Each of these questions must be answered either “YES” or “NO.” Answer each question in the order in which it appears on the screening sheet. You may leave a question blank only when it has been determined that the claimant is not eligible for review. For example, if question 7 is checked “NO,” go to number 11 and screen out as directed. Once the claimant is screened out, it is not necessary to continue to answer the remaining questions through number 11.
Question 7:
Review the SSA-831-U5 to determine if the individual's claim was denied by
the Florida Office of Disability Determinations (ODD). Check block 12 of
the SSA-831-U5. If the field office code is A20, C22, C30, 255, 659, 660,
663, or 668, answer this question “Yes” and go to question 8.
NOTE: CDR terminations are not reviewed under the
Bentley settlement.
Question 8:
Review the file to determine whether the claim involved a physical RFC
assessment that was signed by either Dr. Juan Martinez-Serra which was
dated June 1, 1992, through June 30, 1993, or a physical RFC assessment
that was signed by Dr. Robert Miles which was dated November 1, 1992,
through March 1, 1994. NOTE: As Dr. Robert Miles is a psychiatrist, be
sure that the RFC assessment used to determine
Bentley class membership is a
“physical” RFC assessment, not a “mental” RFC
assessment.
Question 9:
Review the file to determine if an ODD physician/medical consultant other
than Dr. Martinez-Serra or Dr. Miles made a subsequent physical RFC
assessment, either on reconsideration or on a later claim, on this or
another claim number, covering the entire time period covered in the RFC
assessment on the potential Bentley claim.
Question 10:
Review the file to determine if the claimant requested a hearing on the
potential Bentley claim, or a subsequent claim
filed on this or another claim number which covered the entire period
covered in the potential Bentley claim. If such
hearing request was filed, answer this question “YES.” Based
on the parties' settlement agreement, the filing of a request for an
Administrative Law Judge hearing excludes the claim from class
relief.
Question 11:
Screening instructions. Self-explanatory.
Question 12:
Enter the dates of ALL the applications that were screened under
Bentley. Indicate whether these applications were
screened under title II, title XVI, or both. Also indicate whether these
applications were screened-in (REQUIRES REVIEW) or screened-out (DOES NOT
REQUIRE REVIEW).
a.
If you checked “YES” to questions 7 and 8
and you checked “NO” to
questions 9 and 10, the claim requires review. Go to number 6, and check
(J) “REQUIRES REVIEW.”
b.
Sign screening sheet and fill in office code. Retain the original
screening sheet in the claim file.
c.
OHA Headquarters components and hearing offices (HOs) will send a copy of
the screening sheet to:
Office of Hearings and Appeals
Office of Appellate
Operations
One Skyline Tower, Suite 701
5107 Leesburg
Pike
Falls Church, VA 22041-3200Attn: OAO Class Action Coordinator
The OAO Class Action Coordinator will enter the screening sheet
information into a data base and forward the screening sheet to the
Division of Litigation Analysis and Implementation (DLAI). [DLAI will
retain a copy of each screening sheet received from the OAO Class Action
Coordinator and forward a copy to Litigation Staff at SSA Central Office
for entry into the Civil Action Tracking System.]
|
IF CLAIM DOES NOT REQUIRE REVIEW
|
a.
If you checked “NO” to question 7 or 8,
or you checked “YES” to
question 9 or 10, the claim does not require review. Go to number 6 and
check (F) “DOES NOT REQUIRE REVIEW.” Fill in the 2-digit
screenout code according to the directions given in number 11.
b.
Follow items b. and c. above.
c.
Prepare and send the class membership denial letter (Attachment 7) to the
claimant with a copy to his/her representative, if any. Retain a copy of
the denial letter in the claim file.
d.
Retain the claim file(s) for the normal retention period, then forward to
the appropriate storage location if not otherwise needed.