ISSUED: February 21, 1997
I. Purpose
This Temporary Instruction (TI) provides specific OHA instructions for
implementing the June 19, 1992 judgment approving settlement, as modified
July 29, 1992, of the United States District Court for the Southern
District of New York in the Stieberger v. Sullivan
class action involving the issue of acquiescence in Second Circuit
disability decisions when adjudicating the disability claims of New York
State residents.
Adjudicators throughout the country must be familiar with this TI because
Stieberger class members entitled to reopening who
now reside outside of New York State must have their cases processed in
accordance with the requirements of the court's order.
II. Background
This section provides general information on the history of the
Stieberger class action litigation plus some
general information about the settlement.
On August 19, 1985, the United States District Court for the Southern
District of New York certified a statewide class of New York State
residents (see Part V. below for class
definition). The class action challenged the Secretary's1 acquiescence
policies with regard to published decisions of the United States Court of
Appeals for the Second Circuit that address the issue of whether an
individual is disabled or that address the standards or procedures for
making such determinations. The class action also challenged the
Secretary's policies and practices concerning own motion review of
decisions of selected Administrative Law Judges (ALJs).
Also on August 19, 1985, the district court granted, in part, the
preliminary relief sought by plaintiffs. OHA issued TI 5-4-13 (originally
designated Interim Circular No. 187) to comply with that order.
Subsequently, OHA issued Supplement A on October 23, 1985, to give further
instructions concerning the Second Circuit's decision in
Bluvband v. Heckler, 730 F.2d 886 (1984). On March
26, 1986, OHA issued Supplement B concerning the Second Circuit's decision
in Moore v. Secretary of Health and Human Services,
778 F.2d. 127 (1985).
On September 6, 1986, the Second Circuit vacated the district court's
preliminary injunction on the ground that the relief granted in
Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986),
had removed the necessity for the injunction.
On May 29, 1990, the district court found that SSA was bound by the
holdings of the courts of appeals in adjudicating subsequent cases in the
same circuit and had engaged in an unlawful policy of
“nonacquiescence.” Stieberger v.
Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990).
The court held that SSA had “nonacquiesced” with respect to
four specific holdings of the Second Circuit. In addition to the general
treating physician rule set out in the Court of Appeals' second decision
in Schisler v. Heckler, 851 F.2d 43 (2d Cir. 1988),
the other nonacquiescence findings involved the Second Circuit's holdings
to the effect that: 1) a disability decision cannot be based upon a report
obtained after a hearing before an ALJ if the claimant against whom the
report is introduced is not given an opportunity to cross-examine the
author(s) of the report; 2) an ALJ may accord his personal observations of
the claimant's physical and mental condition only limited weight in
deciding the substantive issues in the case; and 3) the testimony of a
claimant with a good work record claiming an inability to work because of
a disability is to be deemed substantially credible. The court granted
plaintiffs' motion for summary judgment to the extent it related to those
particular holdings.
The court found that plaintiffs had not established
“nonacquiescence” with regard to certain other holdings of
the Second Circuit. The court denied plaintiffs' motion for summary
judgment without prejudice to the extent that it related to the Second
Circuit's holdings that: 1) a finding that the witness is not credible
must be set forth with sufficient specificity to permit intelligible
plenary review of the record; 2) the determination of another government
agency that a claimant is disabled, while not binding upon SSA, is
entitled to some weight and should be considered; and 3) a conclusory
opinion by a pro se claimant's treating physician
cannot be rejected unless the ALJ informs the claimant of his proposed
action and provides an opportunity for the claimant to obtain a more
detailed statement.
The court denied plaintiffs' motion for summary judgment with prejudice to
the extent that it related to Second Circuit holdings that: 1) opinions of
non-examining medical personnel cannot, in themselves, constitute
substantial evidence to override the opinion of the treating source; 2) a
treating physician's medical testimony need not be supported by objective
clinical or laboratory evidence; 3) the testimony of a relative could be
probative of certain issues about which the relative has knowledge; 4)
ALJs have a duty to fully develop the record for pro
se claimants; 5) ALJs must inform pro
se claimants of their right to subpoena and cross-examine
witnesses; and 6) an ALJ must inquire into a pro se
claimant's previous disability and subjective complaints.
On June 19, 1992, the district court entered a judgment approving a
negotiated settlement agreement. The court entered an order modifying the
settlement on July 29, 1992. This TI attaches the judgment approving
settlement, with its attachments, and the modifying order (Attachment A).
The settlement agreement is effective for eight years (i.e., until June
19, 2000) although obligations to take action incurred during the pendency
of the agreement continue.
The approved settlement agreement required SSA to publish an instruction
(Attachment 1 to the settlement agreement (hereinafter simply identified
as Attachment 1)) concerning the application of holdings in published
Second Circuit disability decisions to the Social Security Act disability
benefit claims of New York State residents. On July 2, 1992, the Director,
Litigation Staff, of the former Office of the Deputy Commissioner for
Programs, transmitted a teletype (Attachment B) to all individuals and
offices involved in adjudicating Stieberger claims,
to notify them of the settlement and publish the mandated instruction.
Within days, the Director of Litigation Staff also distributed a
Manual of Second Circuit Disability Decisions
(hereinafter simply referred to as
Manual) (Attachment C) to all affected
decision makers and reviewers. Attachment 1 was reprinted in the
Manual. As originally printed, the
Manual contained excerpted quotations of
the principal holdings of published Second Circuit disability decisions
issued as of June 18, 1992.
The settlement also requires SSA to promptly provide each office of
decision makers and reviewers of decisions with a copy of each published
Second Circuit disability decision issued after June 17, 1992. This
requirement sunsets on June 19, 2000. Pursuant to the settlement
agreement, each office must maintain these copies in a volume that is
readily accessible to decision makers and reviewers of decisions.
Since 1992, the Manual and volume of decisions have been updated with
excerpts from the holdings of six subsequenyt Second Circuit decisions in
the Manual and to add a copy of the decisions to the volume of decisions
(Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993);
Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995);
Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995);
Perez v. Chater, 77 F.3d 41 (2d Cir. 1996);
Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996); and
Bush v. Chater, 94 F.3d 40 (2d Cir. 1996). Detailed
instructions concerning the procedures for applying the holdings in
published Second Circuit disability decisions are set forth in
Part IV. below.
III. Guiding Principles
The Stieberger settlement agreement provides both
prospective and retroactive relief. The Stieberger
settlement establishes procedures for applying the holdings of published
Second Circuit disability decisions. These procedures, described below in
Part IV., are to be followed for decision
making in all disability claims arising
in New York (i.e., in current and future claims, and not just in claims
that are subject to reopening under the settlement).
Under the Stieberger settlement agreement, class
members will have an opportunity to have certain cases reopened and
readjudicated (see Part V. below). SSA
has identified potential class members and notified them of the
opportunity to request reopening of their claims. Potential class members
may also request reopening at SSA field offices (FOs), hearing offices
(HOs) and the Appeals Council, and SSA must provide written
acknowledgments of the requests (see Part VI. below). SSA will reopen and
readjudicate the claims of class members who are determined after
screening to be entitled to readjudication (see
Part VII. below)
In general, screening will be performed by either the Office of Disability
and International Operations (ODIO) or an FO, and the New York State
Disability Determination Services (DDS) will reopen a class member's claim
and readjudicate it de novo at the reconsideration
level. OHA will perform readjudications under limited circumstances if the
Stieberger claim subject to reopening is
consolidated with a claim pending at the OHA level (see
Parts VIII.
I. and
J. below). Class members who receive
adverse DDS readjudication determinations will have full appeal rights
(i.e., ALJ hearing, Appeals Council and judicial review).
The Stieberger settlement contains several unique
features that affect development and payment and involve certain
presumptions relating to establishing a disability onset date, insured
status and work activity. These issues are touched on briefly in this
Part and addressed in greater detail in
Part VIII. below.
The Stieberger settlement is intended to generally
limit evidence development to a basic period that begins with the 48th
month prior to the date of SSA's receipt of a class member's request for
Stieberger reopening and runs through the date of
readjudication. This is referred to as the “Development
Period.” The 48-month period may be adjusted if certain exclusions
apply and may begin earlier or later than the 48th month. If the claimant
is found “not disabled” during the Development Period and
certain conditions are met, SSA may have to develop back to the alleged
onset of disability (AOD) in the earliest title II
Stieberger claim, the date of filing in the
earliest title XVI Stieberger claim, or to the date
of the comparison point decision in cessation cases. The actual
Stieberger claim files will only be retrieved and
associated with the readjudication folders if it is necessary to develop
all the way back to the aforementioned dates.
Part VIII. B. below provides a more
detailed discussion of the Stieberger Development
Period.
The Stieberger settlement also limits benefit
payments. The settlement limits Stieberger payments
for months prior to December 1, 1991, to a period not to exceed 48 months.
This is referred to as the “Payment Period.” The Payment
Period will cover the 48 months immediately prior to December 1, 1991, if
the claimant is found disabled for that period, unless certain payment
period exclusions (e.g., months for which the claimant has already
received benefits) require an earlier Payment Period. However, in no case
may payment be made for any period prior to the first day of potential
entitlement or eligibility on the earliest
Stieberger claim. Benefits payable pursuant to a
Stieberger reopening will never exceed 48 months
for the period prior to December 1, 1991; however, less than 48 months of
payments is possible. Because the factors affecting the computation of the
Payment Period for title II and title XVI claims are different, a
concurrent case may have different Payment Periods under each title. SSA
will continue (or begin) benefits after November 30, 1991, if the claimant
continues to meet SSA's disability entitlement and eligibility criteria.
Part VIII. D. below provides a more
detailed discussion of the Stieberger Payment
Period.
With respect to establishing a disability onset date, the
Stieberger onset date will usually be an
“administrative onset” date, selected to permit payment in
the first month of the Stieberger Payment Period.
If the claimant is found to be disabled back to the start of the
Development Period, his or her payment period will ordinarily start with
December 1987. For Childhood Disability Benefit (CDB) claims and other no
waiting period cases and for title XVI disability cases, when a finding of
disability is warranted, the claimant will be presumed disabled as of the
first day of the first month of the Payment Period. For all other title II
disability cases, when a finding of disability is warranted, the claimant
will be presumed disabled as of the first day of the fifth month before
the first month of the Payment Period. Because of this unique feature of
the settlement, the Stieberger onset will usually
have no relation to the actual AOD. The Stieberger
onset will also be more closely related to the Payment Period than the
Development Period. Part VIII. E. below
provides additional discussion of the Stieberger
onset date and its relationship to the Stieberger
Payment Period.
For purposes of the Stieberger adjudication of
title II cases, a class member generally will be presumed to have insured
status as of the Stieberger onset if he or she was
insured as of the AOD of the claim that resulted in entitlement to relief.
However, in those cases where the Stieberger file
must be retrieved and developed all the way back to the AOD, actual
insured status will be determined rather than presumed and disability must
have begun prior to the date last insured.
Part VIII. F. below covers this
instruction regarding insured status.
With respect to work activity, work activity prior to December 1, 1991,
will be considered in calculating the Development Period and certain
presumptions will be applied. Also, work activity prior to December 1,
1991, will be considered in making determinations of initial disability
but will not be used in assessing trial work months or in otherwise making
determinations of substantial activity (SGA). This restriction, however,
does not apply to work activity performed after November 30, 1991, or
while the class member was in payment status based on another claim and
the work was already counted as trial work or SGA.
Part VIII. C. below provides a more
detailed discussion of these work activity considerations.
Generally, the FO will be responsible for computing the Development and
Payment Periods and identifying the potential
Stieberger administrative onset date prior to
sending the case to the DDS for readjudication. SSA has developed a
Worksheet and examples for use in calculating the relative periods and
dates and they are included as attachments to this TI and expressly
referenced in Part VIII. below. OHA
adjudicators will need to become familiar with these principles and
related calculations in order to resolve Stieberger
issues that are appealed to OHA.
Finally, the settlement agreement contains certain other requirements that
adjudicators must follow in deciding the disability claims of both current
and former New York State residents.
•
Adjudicators shall not preclude the determination of whether the claimant
is disabled on the ground that the issue had previously been determined
administratively in considering a prior claim for benefits between October
1, 1981, and July 2, 1992, inclusive, (i.e., apply res
judicata), unless one of the following exceptions apply:
—
the claimant was not a resident of New York State at the time of the prior
administrative determination;
—
an action for judicial review or administrative appeal of the prior
determination was filed or would have been timely on orr after July 2,
1992; or
—
the issue to which preclusion applies concerns any issue other than
medical or vocational issues, such as the assets, incomme, quarters of
coverage, earnings of the claimant, fraud, or whether the claimant had
engaged in SGA.
These court-approved provisions concerning res judicata must be followed
in deciding the disability claims of both current and former New York
State residents during the effective life of the settlement agreement. The
application of these provisions is not just limited to the readjudication
of the claims of class members entitled to reopening.
•
As the Director, Litigation Staff, of the former Office of the Deputy
Commissioner for Programs, advised adjudicators in the teletype dated July
2, 1992 (Attachment B), pursuant to paragraph 22 of the settlement
agreement, POMS and HALLEX instructions
related to the 1985 Stieberger preliminary
injunction (including HALLEX TIs 5-4-13,
5-4-13 Supplement A
and 5-4-13 Supplement B) are rescinded. In addition, pursuant to paragraph 6 of the
settlement agreement, any instructions that could in any way be
interpreted as calling for “nonacquiescence” in holdings of
the Second Circuit in disability cases are rescinded and are no longer of
force or effect. (SSA does not believe such instructions exist; this
further reminder is simply precautionary.)
IV. Stieberger Procedures For Application of
Holdings in Published Second Circuit Disability Decisions
The Stieberger settlement agreement requires all
persons who decide Social Security Act disability benefit claims of New
York State residents, or who review such decisions, to follow and apply
the published holdings of the United States Court of Appeals for the
Second Circuit as explained below; decisions are not followed and applied,
however, when SSA issues written instructions to the contrary (concerning
a particular published Second Circuit disability holding) (see
D. below).
B. Attachment 1 and the
Manual of Second Circuit Disability Decisions
As referenced in Part II. above, paragraph 3 of the approved settlement
agreement required SSA to publish an instruction (Attachment 1) concerning
the application of published Second Circuit decisions to the Social
Security Act disability benefit claims of New York State residents.
(Attachment 1 can be found in its original form at Attachment A of this TI
as Attachment 1 to the settlement agreement; Attachment 1 can also be
found in its reprinted form, at Attachment C, as part of the
Manual of Second Circuit Disability Decisions.)
Paragraph 4 required SSA to provide each office of decision makers and
reviewers of decisions with a copy of the settlement agreement (Attachment
A).
Attachment 1 instructs, among other things, that the holdings in published
Second Circuit disability decisions must be applied at
all levels of administrative decision
making and review in adjudicating or reviewing the title II and/or title
XVI claims for disability benefits filed by New York State residents. The
Attachment 1 instructions are binding on
all personnel, including state employees,
ALJs, Appeals Council Administrative Appeals Judges, quality assurance
staff, and all other personnel who process, render decisions on, or review
claims of New York residents for disability benefits under the Social
Security Act. Adjudicators must apply the published Second Circuit
disability holdings in good faith and to the best of their ability and
understanding whether or not they view them as correct or sound.
Adjudicators must apply the holdings in a decision once the decision
becomes effective. A decision of the Second Circuit generally becomes
effective 522 days after the decision is issued by the court, unless a
specific written instruction is issued that requires the decision to be
applied earlier or later.
Under separate cover, all individuals involved in adjudicating the claims
of New York State residents have received the court-approved
Manual of Second Circuit Disability Decisions (Manual)
(Attachment C). The Manual contains
excerpted quotations of the principal holdings of published Second Circuit
disability decisions issued as of June 18, 1992. Attachment 1 explains how
to use the Manual and, as noted above, is
reprinted in the Manual.
C. Distribution of Second Circuit Disability Decisions Issued After
June 17, 1992, and Instructions About Such Decisions
Each office of decision makers who decide the disability claims of New
York State residents, and reviewers of those decisions, shall maintain a
volume containing copies of all published Second Circuit disability
decisions that are issued after June 17, 1992. SSA will provide each such
office with a copy of each published Second Circuit disability decision
promptly after it is issued by the court, for inclusion in the volume. The
volume shall be readily accessible to decision makers, and reviewers of
decisions, in each office.
Within ten days after the Second Circuit issues a mandate in a case that
will result in a published opinion or designates the opinion for
publication, whichever is later, SSA will distribute to affected
disability decision makers and reviewers, for inclusion in the
Manual, either a copy of the decision or
an instruction.
An instruction will include a summary of the decision together with a
directive to follow the decision. If copies of the court's opinion are
initially distributed without an instruction, SSA Central Office (CO) will
issue written instructions within 90 days after the Second Circuit issues
its mandate in the case or designates the opinion for publication,
whichever is later. Once SSA has issued an instruction, it may at any
subsequent time issue further instructions. Any instruction will be
included in the Manual.
Attachment 1 explains that decision makers should familiarize themselves
with the Manual, with SSA's instructions
on Second Circuit holdings, and with Second Circuit decisions as they are
issued. Attachment 1 further explains that, while SSA will take the steps
described above, decision makers must apply the holdings in published
Second Circuit disability decisions even in the absence of an instruction,
and even if the decisions or instructions are not included in the
Manual. (For example, if an adjudicator
becomes aware of a Second Circuit disability decision (e.g., a claimant
draws it to the adjudicator's attention or the adjudicator receives
notification of the decision from SSA), but the adjudicator has not yet
received an instruction from SSA on how to apply the decision and the
decision is not yet in the Manual, the
adjudicator must nonetheless apply the holding(s) of that decision to all
claims where it is relevant.)
As of the issuance date of this TI, SSA has updated the
Manual and
Volume of Second Circuit Disability Decisions
six times. The first update involved the November 29, 1993 inclusion of
the Second Circuit's August 23, 1993 holding and full text opinion in
Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993).
The second update involved the June 15, 1995 E-Mail instructions regarding
the Second Circuit's April 19, 1995 holding and full text opinion in
Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995). The
third update involved the August 16, 1995 E-Mail of the Second Circuit's
June 20, 1995 holding in Diaz v. Shalala, 59 F.3d
307 (2d Cir. 1995). The fourth update involved the April 22, 1996
transmission of the full text of the Second Circuit's February 22, 1996
opinion in Perez v. Chater, 77 F.3d 41 (2d Cir.
1996). On July 3, 1996, SSA issued a teletype instruction in
Perez. The fifth update involved the October 17,
1996 teletype instruction regarding the August 14, 1996 opinion in
Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996). The
sixth update involved the October 22, 1996 teletype instruction regarding
Bush v. Chater, 94 F.3d 40 (2d Cir. 1996).
D. Instructions Not To Apply Holdings in Second Circuit Disability
Decisions
If further action with respect to rehearing or appeal is pending in a
Second Circuit disability decision, SSA may instruct decision makers not
to apply all or some of the holdings stated in that decision. The specific
instruction will explain which holdings are not to be applied and identify
the issues addressed by those holdings. Those instructions will be
published in the Federal Register.
When such instructions are issued, decision makers must maintain a list of
disability claims determinations or decisions that may be affected because
the Second Circuit holding is not applied. Any notice sent to claimants on
the list, denying benefits in whole or in part, must include the following
language:
If you do not agree with this decision, you can appeal. You must ask for
an appeal within 60 days.
You should know that we decided your claim without applying all of what
the court said about the law in ______________. ____________ is a recent
court ruling that we do not consider final because it may be reviewed
further by the courts. If it becomes final, we may contact you
again.
If you disagree with our decision in your case, do not wait for us to
contact you. You should appeal within 60 days of the date you receive this
notice. If you do not appeal within 60 days, you may lose benefits.
Appeals Council notices denying a request for review, as well as Appeals
Council decisions, must include this language.
E. Instruction Not to Apply Holding in a Second Circuit Disability
Decision Rescinded or Modified
As set forth in paragraph D. 3. of
Attachment 1, when no further judicial
review of a Second Circuit decision will occur, SSA will promptly (within
ten days from the date that the Second Circuit disability decision is no
longer subject to further review or within ten days from the date a final
decision on the merits is rendered) rescind or modify any instructions
issued pursuant to D. above, and will advise decision makers and reviewers
of decisions about the final decision in the case. The instruction
rescinding or modifying the previous instruction not to apply a holding
will be published in the Federal Register.
F. Readjudication of Cases That Did Not Apply a Holding in a Second
Circuit Disability Decision
If the instruction not to apply a holding in a published Second Circuit
disability decision is rescinded or modified, the responsible level of
adjudication will, where appropriate, promptly retrieve and readjudicate
the following claims:
•
the claim of any individual who shows that his or her decision made after
the effective date of the instruction not to apply the holding may have
been affected by the application of the final court decision.
The readjudication shall assess disability for only the time period
covered by the claim decision under review, unless the application of the
final court decision requires development of the evidence. When
development of the evidence is required, the readjudication shall also
assess current disability. The individual will retain full appeal rights
with respect to the determination or decision on readjudication.
However, if review results in a determination or decision that the final
court decision is inapplicable to the individual's case, the individual
may only appeal the issue of whether or not the final court decision is
applicable to the individual's case.
G. Issuance and Rescission of Acquiescence Rulings
Notwithstanding the provisions of the settlement agreement regarding the
application of Second Circuit disability decisions, SSA may issue or
rescind Acquiescence Rulings or relitigate issues pursuant to
20 CFR §§
404.985 and
416.1485.
V. Definition of the Class, Class Members Entitled to Reopening
On August 19, 1985, the United States District Court for the Southern
District of New York certified a statewide class, as subsequently modified
on December 20, 1985, defined as:
All New York State residents whose claims for benefits or continuation of
benefits have been, or will be denied or terminated since October 1, 1981,
based on a determination that they do not have a disability that prevents
them from engaging in substantial gainful activity and whose benefits have
not been granted or restored through subsequent appeals.
B. Class Members Entitled To Reopening
Potential class members may request reopening in response to a notice from
SSA or by self-identifying at any SSA office. For purposes of implementing
the settlement agreement, class members who meet the following criteria
will have an opportunity to have their claims reopened and
readjudicated:
•
the class member had a disability claim finally denied or
terminated,
—
at any administrative level between October 1, 1981, and October 17, 1985,
inclusive; or
—
at the Administrative Law Judge or Appeals Council level between October
18, 1985, and July 2, 1992, inclusive; and
•
the class member was a New York State resident at the time of the denial
or termination; and
•
the disability claim was denied or terminated on the ground that the class
member was not, or was no longer, disabled (denials or terminations for
fraud, quarters of coverage, excess income or resources, earnings at the
SGA level, or for other reasons unrelated to disability are not
included).
C. Class Member Claims Not Subject To Reopening
The following class member claims are not subject to reopening:
•
claims that were the subject of a final decision or determination by SSA
on the merits on a date when the individual no longer resided in New York
State;
•
claims for which the denial or termination of benefits was affirmed on the
merits by a final decision of a federal court, unless the claim was
pending in court as of September 1, 1992, and the claimant never received
notice from the United States Attorney that he or she had a right to have
that claim remanded for further administrative proceedings;
•
title II claims (that otherwise afford class membership) that were already
reevaluated under another class action after July 2, 1992, and the
reevaluation determined that the claimant was not disabled as of the date
last insured;
•
title II claims in which there was a subsequent claim with a final
determination or decision on the merits issued after July 2, 1992, that
the claimant was not disabled as of the date last insured;
•
claims (that otherwise afford class membership) that were already
reevaluated under other class actions provided that the reevaluation in
the other class action:
—
occurred after July 2, 1992;
—
covered the time periods for which payment is possible under
Stieberger and did not restrict payments for such
time periods;
—
considered evidence to the extent provided for in the development
requirements of Stieberger; and
—
afforded the claimant full appeal rights.
•
claims, in which there was:
—
a subsequent claim that covered the issues and time period at issue in the
prior Stieberger claim, andd
—
the subsequent claim was decided after July 2, 1992.
VI. Receipt of Requests for Reopening from Potential Class
Members
On March 8, 1993, and in subsequent mailings, SSA CO sent notices to
potential class members identified by computer run. Individuals had 180
days from the date of receipt of the notice to request that SSA
readjudicate their claims under the terms of the
Stieberger settlement agreement. In addition to
requesting Stieberger relief in response to a
notice, under the Stieberger settlement agreement,
potential class members also could and may continue to request reopening
of a prior claim at any SSA FO, HO or the Appeals Council. The potential
class member may make the request in writing, by telephone or in person.
Any response to the class notice that is ambiguous or unclear will be
construed as a request for Stieberger relief. SSA
must acknowledge the request in writing.
B. OHA Action on Receipt of Requests for Reopening from Potential
Class Members
If an HO or the Appeals Council receives a request for reopening of a
claim under the Stieberger settlement agreement, it
will take the following action:
•
record the claimant's name, Social Security Number, address, date of
receipt of the request, and representative's name and address, if
any;
•
for individuals who request reopening in person, provide the claimant and
representative, if any, written, dated substantiation that the request was
received;
•
for individuals who request reopening in writing or by telephone, do not
provide any written, dated substantiation that the request for reopening
was received; SSA CO will provide a written acknowledgment (Attachment D)
that a request for reopening was received to all individuals other than
those who request reopening in person; and
•
forward the above information and any written request for reopening on a
biweekly basis to:
Division of Litigation Analysis and Implementation
Office
of Hearings and Appeals
One Skyline Tower, Suite 702
5107
Leesburg Pike
Falls Church, VA 22041-3255
ATTN:
Stieberger Coordinator
HOs should send this material via E-Mail to S3GK1 OPPE/DLAI at ~S3GA04, if
practicable.
If an HO or the Appeals Council receives a request for
Stieberger reopening in conjunction with an action
on a current claim, it will follow the procedures set forth above. The HO
or the Appeals Council will inform the claimant, and representative, if
any, that the Stieberger reopening will be
processed separately from the current claim and that such separate
Stieberger processing is not the same as an appeal
on the current claim and that a failure to pursue all appeal rights in
connection with the current claim could result in a loss of benefits. See
Part VIII. J. 1. below for further
instructions. Also, if the request for Stieberger
reopening is not timely filed, the HO or the Appeals Council should obtain
a “good cause” statement concurrent with accepting the
request for reopening.
The Division of Litigation Analysis and Implementation will forward the
information and requests to SSA CO (Litigation Staff) as received, for
coordination of the written acknowledgment, as necessary, and input into
the SSA Class Action Tracking System (CATS).
VII. Determination of Entitlement to Reopening and Preadjudication
Actions
Undeliverable notices were returned to CO and, as required by the
settlement agreement, SSA secured updated addresses from the New York
Department of Social Services' records. New notices were mailed to each
potential class member for whom any updated address was received.
Undeliverables from the second mailing will be given to class counsel so
that they can attempt to locate new addresses for another mailing.
2. Alert Handling, Screening, Folder Preparation and Routing
SSA CO will track all response forms and the CATS will generate alerts for
all responses. (See Attachment E for a sample
Stieberger alert.) The alerts will be forwarded to
the ODIO Class Action Section for processing.
If a request for relief is not timely, ODIO may request the FO to develop
for “good cause” and return the material to SSA CO for a good
cause determination. Good cause determinations will be based on the
standards in 20 CFR
§§ 404.911 and
416.1411. Where
the individual responds, by telephone or in person, more that 185 days
after the Stieberger notice was generated, the SSA
component receiving the response should include an SSA-5002 (report of
contact) regarding the reason(s) for the late response and will send it
with the response to ODIO (via the Division of Litigation Analysis and
Implementation for OHA cases; see
Part VI. above). For each case alerted,
ODIO will prepare a green Stieberger responder
jacket containing: 1) a reply form; 2) Stieberger
Court Case Flag/CATS alert; 3) any medical or other evidence or forms
submitted with the reply form (e.g., SSA 1696-U4, Appointment of
Representative); 4) record of claims activity (e.g., MBR, FACT, SSR/STALE
and OHAQ queries); 5) record of folder locations (e.g., AR-25, BDIQ, and
ODIO Overnight queries); and 6) record of earnings (SEQY or similar
extract). ODIO will separate potential class member cases into four
categories: “Title Unknown,” “Subsequent
Allowance,” “Civil Action Pending,” and “All
Others.” ODIO will screen the “Title Unknown” and
“Subsequent Allowance” cases and send notice of
non-entitlement to relief. ODIO will forward the “Civil Action
Pending” cases and the “All Others” to the FO for
screening. ODIO will not retrieve the Stieberger
claim files. Only the green Stieberger responder
jacket will be forwarded to the FO. The only claims files that ODIO will
retrieve and forward to the FO with the green responder jacket will be the
subsequent allowance claim files in the “Subsequent
Allowance” cases.
ODIO and the FOs will only screen a case out if query responses clearly
indicate that the claimant is not entitled to reopening on any
Stieberger class claim.
B. Post-Screening Actions
1. Individuals Determined Not to be Class Members Entitled to
Reopening
Using Attachment F, if the screening component determines that the
individual is not a class member entitled to reopening, the component will
notify the individual, and representative, if any, of the determination
that he or she is not entitled to relief as a class member and furnish a
copy of the dated notice to the Office of the General Counsel (OGC) at the
address below.
If the individual disagrees with this determination he or she must notify
OGC in writing within 60 days of receipt at the following address:
Office of the General Counsel
Stieberger
Implementation
Altmeyer
Building, Room 611
6401 Security Boulevard
Baltimore,
MD 21235
FOs also will accept on behalf of OGC an individual's written disagreement
and forward it to OGC.
Failure to request review of the class membership determination in writing
within 60 days of receipt makes the determination final, unless the
individual demonstrates good cause for late notification of his/her
disagreement with the determination.
The individual or his or her representative may request to inspect the
administrative record on which the determination was based, and, as
needed, the claim file.
SSA will notify the individual when the record and/or file is available
for inspection. The individual will have 45 days from notification of
record availability to inspect it at a mutually agreeable location.
OGC will notify class counsel of all disputes, and class counsel may also
inspect the administrative record and/or claim file.
OGC will attempt to resolve all disputes through negotiation.
If the parties cannot resolve the dispute, OGC will send the individual,
his or her representative, if any, and class counsel a notice confirming
that the dispute cannot be resolved.
The confirmation notice will indicate that the individual has 60 days from
receipt to request district court review. Class counsel may also request
district court review. Failure to request district court review within 60
days of receiving the OGC confirmation notice renders SSA's determination
final and not subject to further review.
If no protest of the non-class member determination is received within 180
days from the date of the notice of the determination (60-day limit, plus
120 days for a possible “good cause” late notification of the
protest), the screening component will destroy the green responder jacket
and queries, and route any other material according to normal
procedures.
2. Individuals Determined to be Class Members Entitled to
Reopening
If ODIO determines that the individual is a class member entitled to
reopening, it will forward the green responder jacket to the FO for
processing. If the FO determines that the claimant is a class member
entitled to reopening, it will proceed as described in
Part VIII. below.
VIII. Processing and Readjudication
There are two types of Stieberger reopenings,
“pipeline cases” and “non-pipeline cases.” One
of the first things that the FO will do, when initiating the processing of
a Stieberger reopening, will be to determine
whether the case is a pipeline or non-pipeline case. This is an important
first step because the processing will be very different depending on the
type determination.
A Stieberger claim is a pipeline case if, as of the
date of request for Stieberger review, either an
administrative or judicial review had been requested on the
Stieberger claim but no determination or decision
had yet been issued on that request, OR a
request for such administrative or judicial review would still have been
timely if filed. Pipeline cases, including those that result in a
favorable decision, will be processed in accordance with the normal case
processing rules. Pipeline cases will be entitled to full development and
reopening consideration at the level of review that they were last
considered (unless consolidated with a current claim pending at another
level of review in accordance with the instructions set forth in
J. below). The special
Stieberger processing rules set forth in this
HALLEX TI
do not apply to pipeline
cases.
Non-pipeline cases are all other Stieberger
retroactive cases that resulted in denials or cessations
AND that satisfy the
Stieberger class membership requirements for
reopening. Unless consolidated with a current claim pending at OHA (see
J. below), the New York DDS will usually
process Stieberger non-pipeline cases. The special
Stieberger processing rules set forth in this
HALLEX TI apply. DDS determinations on
the non-pipeline cases are fully appealable to the OHA and judicial levels
of review.
After determining whether the Stieberger reopening
is a pipeline or non-pipeline case, the next key processing step in the
non-pipeline cases is to calculate the Development Period. This is a
necessary step in order to know what period to cover in completing the
disability interview report (SSA-3368-BK for initial claims and the
SSA-454-BK for cessation cases). The FO will use the Development/Payment
Period Worksheet (Attachment G) to compute the Development Period. (See
B. below for more detailed information
about calculating the Development Period.) (See
G. below for special considerations
involving cessation cases.)
After determining the Development Period, the FO will contact the class
member and/or representative, if any, to obtain the disability interview
report and medical release authorizations for the Development Period. At
the time of the contact, the FO will offer the class member the
opportunity to submit medical evidence covering the period from the
beginning of the Stieberger Development Period
through the present. If the claimant is currently entitled to an unreduced
benefit or a disability benefit, the Development Period will only cover up
to the beginning date of the current entitlement. The FO will accept any
evidence, regardless of its date.
If the class member has a current claim pending at any administrative
level at the time of the FO contact, the FO will also offer the individual
the opportunity to object to consolidation of the
Stieberger claim with the current claim. If the
individual objects to consolidation at that time, the claims will not be
consolidated. This is discussed further in
J. 1. below.
In a limited number of cases, the FO may be required to consider work
activity in determining the Development Period (see
C. below). As the final action in
contacting the class member, the FO will obtain the claimant's responses
to the questions on a “Stieberger
Supplement,” i.e., a form created to gather additional information
needed to review Stieberger claims (Attachment
H).
The medical questions in Part II at the Stieberger
Supplement are designed for use in determining whether SSA will be
required to retrieve the Stieberger claim file and
develop all the way back to the earliest date covered by the
Stieberger claim (i.e., AOD for title II, date of
filing for title XVI) if the claimant is found not disabled for all or
part of the Development Period.
The questions in Part III of the Stieberger
Supplement elicit information about months that would affect the Payment
Period, (i.e., months of felony-related confinement (title II) and months
of absence from the United States and/or institutionalization (title
XVI)).
The questions in Part IV of the Stieberger
Supplement are designed to establish protective filing for any auxiliary
beneficiaries.
After concluding its contact with the claimant, the FO will compute the
Stieberger Payment Period using the same
Development/Payment Period Worksheet. (See
D. below for more detailed information
about the Payment Period calculation.) Using the Development/Payment
Period Worksheet, the FO will determine the potential
Stieberger administrative onset date and enter it
on both the Worksheet and the Disability Determination Transmittal
(SSA-831-U3) that it will prepare in assembling the disability material in
a “DIB jacket” that it will send to the DDS along with the
green Stieberger response jacket.
Information available at the OHA level may materially affect the
Development and/or Payment Periods or cause an ALJ or the Appeals Council
to question the determinations made with respect to the Development and/or
Periods or any of the other Stieberger issues.
Accordingly, OHA adjudicators must be familiar with the complexities of
the Stieberger issues and processing in order to
hear and resolve any appealable issues.
B. Stieberger Development Period
As introduced in Part III. and discussed
in A. above, SSA will reopen and
redevelop retroactive Stieberger claims, but, in
most cases, not for the entire retroactive period. For non-pipeline cases
(see A. above), the settlement agreement
limits how far back into the retroactive period SSA must develop the
evidence. This limited period of development is called the Development
Period.
In most cases, the Stieberger Development Period
will begin with the 48th month immediately preceding the date of SSA's
receipt of the class member's request for
Stieberger reopening and end at the point of
readjudication. In some cases, however, the Development Period may start
earlier or later than the 48th month, or may even consist of two (or more)
non-consecutive periods.
The FO is responsible for determining the Development Period and it must
be calculated on a case-by-case basis using the
Stieberger Development/Payment Period Worksheet
(Attachment G). The Development Period may overlap, but will generally not
be identical with, the Payment Period (see
D. below).
2. Determining When the Stieberger Development
Period Begins
The Stieberger Development Period generally starts
with the later of:
•
for title II or title XVI claims, 48 months prior to the date that SSA
receives the request for Stieberger reopening;
OR
•
for title II claims, the date of onset alleged (or the date of cessation)
in the earliest claim subject to Stieberger
reopening; or
•
for title XVI claims, the date of filing (or the date of cessation) of the
earliest claim subject to Stieberger
reopening.
If the class member is deceased, the Development Period begins with the
later of:
•
for title II or title XVI claims, 48 months prior to the date of the class
member's death;OR
•
for title II claims, the date of onset alleged (or date of cessation) in
the earliest claim subject to Stieberger reopening;
or
•
for title XVI claims, the date of filing (or date of cessation) of the
earliest claim subject to Stieberger
reopening.
In calculating the Stieberger Development Period
and in counting back 48 months from the date SSA received the request for
Stieberger review (or date of death, if the class
member is deceased), the following periods will not be included:
•
periods that the class member was already entitled (even if in suspense)
to unreduced title II benefits (i.e., unreduced “A”,
“HA”, “DWB”, or “CDB”); or
•
periods of title XVI eligibility (even in suspense); or
•
periods of potential entitlement to title II benefits or title XVI
payments, based on a claim pending at any administrative level or in
Federal court, regardless of whether consolidation is possible or has
occurred;
•
periods covered by a medical denial or cessation decision that was issued
while the class member was not a New York State resident; or
•
years that the computer earnings query shows annual earnings levels that
exceeded the SGA guidelines (see Part C.
below for a more detailed discussion of how work activity may affect the
Development Period).
If any of these periods are not counted, the Development Period will be
extended back an equivalent period of time.
3. When the Stieberger Development Period
Ends
The Stieberger Development Period ends with the
earlier of:
•
the date of readjudication; or
•
the date of current entitlement to title II or title XVI disability
benefits or payments, unreduced title II retirement benefits, or title XVI
aged payments.
4. Earlier Development Period Required When
Stieberger Settlement Agreement ¶ 10(e)(5)
Exception Applies
In some cases, in accordance with ¶ 10(e)(5) of the
Stieberger Settlement Agreement, it may be
necessary to develop the record for the entire retroactive period.
a. The DDS must develop the record, for a ¶ 10(e)(5) exception, all
the way back to the earliest retroactive date, if it is determined at any
step of the sequential evaluation process that the class member was not
disabled during all or part of the Development Period, i.e., the 48-month
period plus the period from the date of receipt of the
Stieberger request for reopening to the present,
and if one of the following conditions is corroborated by the class
member's answers to the medical questions asked on the
Stieberger Supplement.
•
The individual had a chronic impairment during the Development Period and
alleged that the impairment was more severe in the past, and more
information is needed about any earlier acute phase (e.g., rheumatoid
arthritis in major joints that was not active during the Development
Period, or previously uncontrolled epilepsy, or diabetes that was under
control during the Development Period); or
•
The individual's treating source(s) during the Development Period differed
from the individual's treating source(s) prior to the Development Period,
or the individual had no treating source during the Development Period,
and it is learned that other evidence may be available (e.g., from an
earlier treating source) that may attest to more serious impairment in the
past.
Before developing the additional potential period of disability, the DDS
must determine whether one of the conditions described in the bullets
above has been corroborated by the combination of a statement from the
class member, a medical report submitted by the class member and/or
information in SSA's records. However, if the reopened case is a cessation
case, then ¶ 10(e)(5) is deemed to be met.
If the ¶ 10(e)(5) conditions are not met, there is no need to develop
for an earlier period. The DDS will develop and make a determination based
on the Stieberger Development Period.
If the ¶ 10(e)(5) conditions are met, the DDS will return the green
Stieberger responder jacket to the FO and request
that the FO obtain the Stieberger claim file(s) and
verify the class member's date last insured (DLI). The FO will:
•
Request the Stieberger claim file(s), or initiate
reconstruction, if necessary;
•
Obtain Work Activity Reports (SSA-821s), as necessary;
•
Return the green responder jacket, etc., to the DDS.
Upon return of the case to the DDS, the DDS will:
•
Review the Stieberger claim file(s);
•
Attempt to develop the record where there are gaps or conflicts in the
evidence;
•
Request any necessary additional information related to relevant gaps or
conflicts from sources mentioned in the Stieberger
claim file(s) (e.g., sources identified by the claimant); and
•
Adjudicate the earlier period (the entire Development Period) based on all
the evidence of record.
If development leads to a determination that the individual was not
disabled as of his or her date last insured, the claim will be adjudicated
on that basis. If the individual was disabled as of the date last insured,
further consideration will be given as to whether disability continued
through the ending date of the Stieberger
Development Period as calculated pursuant to
B. 3. above. As appropriate, the
adjudicator must establish either an actual or administrative onset date,
as controlled by Payment Period considerations.
b. If an OHA adjudicator is required to address the
Stieberger Settlement Agreement ¶ 10(e)(5)
evidence development exception in connection with a
Stieberger case that is pending at the OHA level,
the OHA adjudicator shall retrieve the Stieberger
file(s) or arrange for reconstruction, if necessary, to ensure full and
fair consideration of the Stieberger claim, unless
disability can otherwise be found and would result in full payment for the
Stieberger Payment Period.
5. Special Considerations for Claims of Disabled Widow(er)s, Surviving
Divorced Spouses and Disabled Children
Disabled widow(er)s benefit (DWB) (including Surviving Divorced Spouses)
and CDB claims require special handling under the
Stieberger readjudication procedures because the
development and payment limitations differ from the standard DWB and CDB
development provisions.
Therefore, in establishing the Development Period for DWB and CDB claims,
it is necessary to ignore the Stieberger
development limitations and develop back to determine whether:
•
The DWB claimant had a disability that began within the 7-year prescribed
period; or
•
The CDB claimant had a disability that began before age 22 (or the close
of the 84-month period following the month in which the child's most
recent entitlement to CDB benefits terminated because the child's
disability ceased).
C. Work Activity and the Development Period
Periods of SGA are one of the exclusions listed in calculating the basic
48-month Development Period. SGA may cause the Development Period to begin
more or less than 48 months prior to the date on which SSA received the
class member's request for Stieberger review.
Because the question as to whether the Development Period has been
properly established may be raised as an issue before an ALJ or the
Appeals Council, OHA decision makers must understand the relationship
between work activity and the Development Period.
As a developmental tolerance, SSA (including ALJs and the Appeals Council)
will accept class members' allegations as to periods of employment,
subsidy and earnings for periods prior to December 1, 1991, absent
evidence to the contrary.
The green responder jacket will include an SEQY, which could provide
evidence contrary to the class member's allegations. Decision makers
should review the SEQY.
2. Effect of Work Activity on the Development Period
In initially determining SGA, the FO will assume, absent evidence to the
contrary, that SEQY postings in excess of the SGA level for a particular
year represent continuous work activity at the SGA level for all months of
that year. These years are referred to as “Presumed SGA
Years.” Years before 1990 with over $3,600 posted and years after
1989 with over $6,000 posted are Presumed SGA Years.
The FO will examine the SEQY, that is located in the green responder
jacket, for years in which the annual earnings levels have exceeded the
SGA guidelines. Such years will not be counted in calculating the
beginning of the Development Period.
Work activity prior to December 1, 1991, will be used in making
determinations of initial disability but will not be used in assessing
trial work months or in otherwise making determinations of SGA. This
restriction does not apply to work activity performed after November 30,
1991.
If the DDS becomes aware of work activity not reflected on the SEQY, that
may affect the Development Period, it will return the case to the FO for
further consideration and recalculation of the Development Period, if
necessary.
Work activity will only result in an SGA denial if there is no period of
non-SGA lasting at least 12 consecutive months subsequent to the alleged
onset date (title II) or date of filing (title XVI).
3. Examples of the Effect of Work Activity on the Development
Period
Attachment J provides examples of how work activity and presumed SGA years
affect the calculation of the Development Period.
D. Stieberger Payment Period
1. Payment Period Defined
As introduced in Part III. and discussed
in A. above, the
Stieberger settlement limits
Stieberger payments for months prior to December 1,
1991, to a period not to exceed 48 months. This period is referred to as
the Stieberger Payment Period. The Payment Period
will cover the 48 months immediately before December 1, 1991, if the class
member is found disabled for that period, unless certain payment
exclusions (e.g., months for which the class member has already received
benefits) require an earlier payment period. However, in no case may
payment be made for any month prior to the first month of potential
entitlement on the earliest Stieberger claim.
Benefits are continued (or begun) after November 30, 1991, if the class
member continues to meet SSA's disability entitlement and eligibility
criteria.
The first month of the Payment Period is generally the
later of:
•
the earliest date of potential entitlement.
The FO is responsible for calculating the
Stieberger Payment Period using the
Development/Payment Period Worksheet (Attachment G). Because the factors
affecting the computation of the Payment Period for title II and title XVI
claims are different, a concurrent case may have different Payment Periods
under each title and separate calculations must be made. However, the same
Development/Payment Period Worksheet can be used.
2. Computing the Title II Payment Period
In computing the Stieberger Payment Period for
title II cases, the following periods will not be counted:
•
months the class member was already entitled to title II “A”
(reduced or unreduced), “HA”, “CDB”, or
“DWB” benefits;
•
months of title XVI eligibility including nonpayment months that occur
during a period of title XVI eligibility;
•
months of potential entitlement to any type of benefit listed above, based
on a pending claim;
•
months covered by a non-New York medical decision of denial (or
cessation); and/or
•
months, any part of which, the individual was incarcerated after
conviction for commission of a felony or an offense in the nature of a
felony.
3. Computing the Title XVI Payment Period
In computing the Stieberger Payment Period for
title XVI cases, the following periods will not be counted:
•
months the class member was already entitled to title II “A”
(reduced or unreduced), “HA”, “CDB”, or
“DWB” benefits;
•
months of title XVI eligibility including nonpayment months that occur
during a period of title XVI eligibility;
•
months of potential eligibility to title XVI payments based on a pending
claim;
•
months covered by a non-New York medical denial or cessation
decision;
•
months the class member would not be eligible for a title XVI payment due
to institutionalization; and/or
•
months the class member would not be eligible for title XVI payment
because he/she was out of the United States.
4. Effect of Excluded Periods on Calculating the Payment Period
If any of these periods are not counted, extend the beginning date of the
Payment Period back an equivalent period of time. However, payment will
not be made for any period prior to the earliest period of entitlement or
eligibility on the application on which the opportunity for reopening is
established.
5. Examples of How the Payment Period is Calculated
Attachment K provides examples of how the Payment Period is calculated in
title II and title XVI cases.
E. Calculating the Stieberger Onset Date;
Relationship to the Stieberger Payment
Period
As discussed in Part III., an actual
disability onset date will not be established in most cases. Because of
the unique provision of the Stieberger settlement
agreement that limits benefit payments for months prior to December 1,
1991, to a period not to exceed 48 months, the
Stieberger onset date will usually be an
“administrative onset” date, selected to permit payment in
the first month of the Stieberger Payment Period.
In this regard, the Stieberger onset date will be
more closely related to the Payment Period than the Development
Period.
As mentioned in A. above, while
completing the Stieberger Development/Payment
Period Worksheet in the course of its first phase processing of a
Stieberger non-pipeline reopening case, the FO will
determine the potential Stieberger administrative
onset date and enter it on both the Development/Payment Period Worksheet
and the Disability Determination Transmittal (SSA-831-U3).
Unless the DDS must adjust the onset based on its development, the
Stieberger onset date will be:
•
the first day of the fifth month prior to the first month of the Payment
Period for title II waiting period cases; or
•
the first day of the first month of the Payment Period for title II CDB
claims and other “no waiting period” cases; or
•
the first day of the first month of the Payment Period for title XVI
claims.
If the DDS cannot establish disability for the entire Development Period,
the ¶ 10(e)(5) exception may be met and the actual onset date would
then need to be established. The Payment Period limitations, however, will
still apply. When an actual onset date is established, the presumption of
insured status (discussed in F. below) will not apply, i.e., the actual
onset date must be prior to the DLI.
If the actual onset is later than the potential administrative onset shown
on the Development/Payment Period Worksheet Summary, payments will be
limited to the actual period of disability, after taking into
consideration and applying the normal rules regarding any waiting period.
If the actual onset date is earlier than the potential administrative
onset, the administrative onset will be used and payment will be limited
to the Payment Period calculated on the Worksheet.
If entitlement is limited to a closed period of disability because of a
later medical denial on a non-New York case, both disability and
entitlement end with the AOD (or date of filing if a title XVI claim) in
the non-New York case. The entire period adjudicated in the non-New York
case is a non-entitlement period. If the class member is currently
disabled, a new period of disability may be established no earlier than
the day after the date of the non-New York decision.
Further, the Stieberger onset date may be presumed
when there is an allowance on a subsequent disability claim, as
follows:
•
Where the established onset in a subsequent disability claim coincides
with or is earlier than the Stieberger onset date
and additional payment is possible based on the
Stieberger claim, the subsequent allowance decision
will be adopted.
•
Where the established onset is later than the
Stieberger onset date, the file for the subsequent
claim will be retrieved. Absent evidence to the contrary (e.g., a
traumatic or acute onset, or a new impairment), the decision maker may
presume that disability relates back to the
Stieberger onset date and establish onset as of
that date.
As discussed in Part III., for purposes
of the Stieberger adjudication of title II claims,
a class member generally will be presumed to have insured status as of the
established Stieberger onset date if he or she was
insured as of the AOD of the Stieberger
claim.
As referred to in E. above, however, in
those cases where an actual onset date is established, the presumption of
insured status will not apply, i.e., the actual onset date must be prior
to the DLI.
G. Special Considerations in Cessations Cases and other Continuing
Disability Considerations
Readjudicating Stieberger cessation cases (title II
and/or title XVI) requires the following special handling because of
limitations on development and payment.
1.
Adjudication of the Development Period generally is completed without
retrieving the Stieberger claim file(s) using the
adjudicatory standards applied to initial disability claims. However, if
the Developmental Period extends back to the date of cessation in a
Stieberger cessation case, special processing is
needed; e.g., retrieving the Stieberger claim
file(s), using the medical improvement review standard (MIRS), and
deciding whether to make an initial disability determination (SSA-831) or
a continuing disability/cessation determination (SSA-833)
2.
If all or part of the Development Period cannot be allowed, the claimant
is deemed, in cessation cases, to meet the ¶ 10(e)(5) criteria of the
settlement and the case is developed back to the date of the comparison
point decision using the Stieberger claim file(s)
and any new evidence and is adjudicated back to the cessation date by
applying the MIRS standard. The comparison point decision is the last
favorable decision that preceded the cessation
3.
If the case is adjudicated back to the date of cessation and the claimant
is found to have a continuing disability, either a continuance or new
allowance determination is prepared, depending on whether the beginning of
the Payment Period is during the termination month in the
Stieberger claim or later
4.
If a claim is not continued or allowed based on MIRS, the possibility of a
later allowance sometime during the reopened period is considered
Whether the DDS uses the MIRS will depend on whether the DDS is required
to develop all the way back to the comparison point decision.
Whether an SSA-831 or an SSA-833 (which means having offered a
face-to-face hearing) is prepared by the DDS depends on whether the
determination is based on MIRS, and also on whether the 48-month limit on
payments prior to December 1, 1991, prevents resumption of benefits in the
month benefits were terminated in the Stieberger
cessation case. Attachment L provides examples of
Stieberger cessation case readjudication
considerations and guidance on whether an SSA-831 or SSA-833 is the proper
disability determination form for DDS to use in readjudicating the
case.
In cases where there has been an allowance on a subsequent disability
claim, in the absence of evidence to the contrary, it will be assumed that
the favorable decision on the subsequent claim was correct. Development
and readjudication of the Stieberger claim will be
limited to the period up to the date of onset established in connection
with the subsequent claim. However, if new evidence submitted or developed
in connection with the Stieberger readjudication
raises a question of continuing disability, adjudicators will not be
barred from considering and deciding the issue under normal continuing
disability review procedures.
H. Cases Readjudicated by the DDS
In most cases, the New York DDS will conduct the
Stieberger readjudication (even if the class member
no longer resides in New York) except for cases consolidated at the OHA
level (see J. below). The DDS determination will be a reconsideration
determination, regardless of the administrative level at which the class
member claim(s) was previously decided, with full appeal rights (i.e., ALJ
hearing, Appeals Council and judicial review).
If the class member currently resides outside of New York State, in
readjudicating the Stieberger claim the New York
DDS will apply the holdings in Second Circuit disability decisions in
accordance with Attachment 1. See I.
below for procedures OHA decision makers will follow in readjudicating the
Stieberger claims of class members who currently
reside outside of New York State.
Except as otherwise noted in this instruction, ALJs and the Appeals
Council should process and adjudicate requests for hearing on
Stieberger DDS review cases in the same manner as
for any other case.
I. OHA Readjudication of Class Member Claims Subject to
Reopening
The following instructions apply to both consolidation cases in which the
ALJ or Appeals Council conducts the first level of
Stieberger readjudication and to DDS readjudication
cases in which the claimant subsequently requests a hearing or Appeals
Council review. However, they do not apply to the reopening readjudication
of court cases remanded at the claimants' option pursuant to ¶ 10(b)
of the settlement agreement or to other current or pipeline claims. See
K. below.
Except as noted herein, HOs and the Appeals Council will process
Stieberger class member cases according to all
other current practices and procedures including coding, scheduling,
developing evidence, routing, etc.
2. Class member Currently Resides Outside of New York State
If the class member currently resides outside of New York State, in
readjudicating the Stieberger claim, OHA decision
makers will use the standards and procedures in effect in the state in
which the individual resides at the time of the decision. OHA decision
makers will apply the relevant portions of the
HALLEX Circuit Court Case Reporter in
accordance with normal operating procedures. OHA adjudicators
will not apply the holdings in Second
Circuit disability decisions in accordance with
Attachment 1. See
H. above for the procedures DDS decision
makers will follow in readjudicating the Stieberger
claims of class members who currently reside outside of New York
State.
3. Application of the Medical Improvement Review Standard in
Non-Cessation Cases
If the readjudication results in a favorable decision, the adjudicator
will determine, under the medical improvement review standard, whether the
class member's disability has continued through the date of the
readjudication (or through the date of onset of disability established in
any allowance on a subsequent application).
If a class member is deceased, the usual survivor and substitute party
provisions and existing procedures for determining standing to pursue a
claim and distribution of any potential underpayment apply. See
B. above on how to calculate the
Development Period for deceased class members.
OHA adjudicators should be guided by the Development Period and Payment
Period instructions that apply to the FO and DDS processing as set forth
in A. through
G. above. OHA adjudicators have a duty to
update and develop the evidence as necessary.
6. Content and Routing of Decisions
OHA decisions on Stieberger class member claims
must set forth the following information, in addition to the information
that OHA decisions routinely include:
•
the dates of the periods for which disability was considered;
•
the dates of the periods for which disability is established;
•
the dates of the periods for which title II benefits or title XVI payments
are being awarded; and
•
the basis for any finding of nondisability or denial of benefits.
Copies of all OHA decisions in Stieberger cases
must be sent to both the:
Division of Litigation Analysis
and Implementation
Office
of Hearings and Appeals
One Skyline Tower, Suite 702
5107
Leesburg Pike
Falls Church, VA 22041-3255
ATTN:
Stieberger Coordinator
and
Litigation Staff
Office of Policy and Planning
P.O.
Box 17729
Baltimore, Maryland 21235
ATTN:
Stieberger Coordinator J. Processing and Readjudicating Class Member Claims Subject to
Reopening in Conjunction with Current Claims (Consolidation
Procedures)
If a class member entitled to reopening has a current disability claim
pending at any administrative level at the time of the FO contact, SSA
may, unless the claimant objects, consolidate the
Stieberger reopening claim with the current
disability claim as follows:
•
in OHA, if the active claim is pending in OHA; or
•
at the reconsideration level, if the active claim is pending at the
initial or reconsideration level.
If the claimant does not object, SSA retains the discretion as to whether
or not the claims will be consolidated. As stated in
A. above, if a current claim is pending
at any administrative level at the time of the FO contact, the FO will
offer the claimant the opportunity to object to consolidation of the
Stieberger claim with the current claim. If the
claimant objects to consolidation at that time, the claims will not be
consolidated and OHA will defer processing of the
Stieberger reopening until after the active pending
claim is finally adjudicated. OHA components will not separately offer the
individual a second consolidation option subsequent to the FO contact.
Claims remanded from Federal court are considered to be active pending
claims.
A claimant may request Stieberger reopening in
conjunction with action on a current claim. If so, follow the procedures
in Part VI. B. above. Inform the
claimant, and representative, if any, that the
Stieberger reopening will be processed separately
from the current claim and that such separate
Stieberger processing is not the same as an appeal
on the current claim and a failure to pursue all appeal rights in
connection with the current claim may result in a loss of benefits.
Do not conduct any Stieberger reopening unless it
has been properly “alerted,” i.e., until an FO has received a
green Stieberger responder jacket, determined
entitlement to relief and contacted the claimant, as described in A.
above, and forwarded the Stieberger alert and
responder jacket to OHA.
However, in conjunction with action on a current claim an ALJ or the
Appeals Council may reopen and revise a determination or decision on a
claim that affords class membership in the absence of an alert if the
regulatory conditions for reopening are met. The
Stieberger settlement agreement qualifies as a
change of legal interpretation and does not alone provide good cause for
reopening under SSA's regulations.
2. Current Claim Pending in the Hearing Office at the Time that the
Stieberger Claim is Identified for Reopening; ALJ
Level is the First Level of Readjudication for the
Stieberger Claim
Except as noted below, if a Stieberger class member
has an initial request for hearing pending on a current claim and the
individual did not object to consolidation at the time of the FO contact,
the ALJ will consolidate the Stieberger case with
the appeal on the current claim.
The ALJ shall not consolidate the claims if:
•
the current claim and the Stieberger claim do not
have any issue(s) in common. For example:
if the current claim is a title II retirement or survivors insurance
benefits claim or a title XVI claim involving only nondisability issues,
e.g., income, resources or residency, it will not have any issue(s) in
common with the Stieberger claim; however, if the
current claim is a disability claim, for consolidation purposes, it is
deemed to have an issue in common with the
Stieberger claim, regardless of the period at issue
or the title under which the current claim was filed;
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 b.
below.
If the claims are not consolidated, follow
c. below.
b. Action if Claims Consolidated
If the ALJ decides to consolidate the current claim with the
Stieberger claim(s), the HO will:
•
give proper notice of any new issue(s) as required by
20 CFR §§
404.946(b) and
416.1446(b), if
the Stieberger claim raises any additional issue(s)
(including the issue of disability for a different period of time) not
raised by the current claim;
•
offer the claimant a supplemental hearing if the ALJ has already held a
hearing and the Stieberger claim raises any
additional issue(s), unless the ALJ is prepared to issue a fully favorable
decision with respect to the Stieberger
claim;
•
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the
Stieberger claim (the ALJ's decision must clearly
indicate that the ALJ considered the Stieberger
claim pursuant to the Stieberger settlement
agreement).
c. Action if Claims Not Consolidated
If the ALJ decides not to consolidate the current claim with the
Stieberger claim, the HO will:
•
flag the Stieberger claim for DDS review using
Attachment M;
•
immediately route it to the appropriate DDS (see
Part III. above) for adjudication;
•
retain a copy of Attachment M in the current claim file;
•
inform the claimant that the Stieberger claim will
not be consolidated with the current claim; 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 at the Time that the
Stieberger Claim is Identified for Reopening;
Appeals Council Level is the First Level of Review for the
Stieberger Claim
The action the Appeals Council takes on the current claim determines the
disposition of the Stieberger claim. Therefore, OAO
must keep the claim files together until the Appeals Council completes its
action on the current claim. The following sections identify the possible
Appeals Council actions on the current claim and the appropriate
corresponding action on the Stieberger claim.
a. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial
Decision on the Current Claim — No Stieberger
Issue(s) Will Remain Unresolved; ALJ Decision Issued On or After July 3,
1992
This will usually arise when the current claim addresses all of the issues
of the Stieberger review claim, i.e., the
Stieberger claim raises an issue of disability for
a period covered by the current claim. In this instance, if the class
member did not object to consolidation of the claims (see
J. 1. above), 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 Stieberger claim.
All applicable requirements of this TI will be implemented with respect to
the Stieberger claim; e.g., any decision on a class
member's Stieberger claim must set forth the
information required in I. 6. above, in
addition to the information that OHA decisions routinely include.
For class action reporting purposes, the Appeals Council will send copies
of its decision to the Stieberger coordinators
listed in I. 6. above.
Individuals who received an ALJ decision issued on or before July 2, 1992,
will be entitled to reopening as class members if that decision becomes
the final decision of the Secretary.
b. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial
Decision on the Current Claim — Stieberger
Issue(s) Will Remain Unresolved
This will usually arise when the current claim does not address all of the
issues of the Stieberger claim, e.g., the
Stieberger claim raises an issue of potential
entitlement to disability benefits 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. The Appeals
Council's order, decision or notice of action will inform the claimant
that the Stieberger claim will be sent to the DDS
for readjudication.
OAO staff will attach a Stieberger case flag
(Attachment N) to the Stieberger claim, immediately
forward the Stieberger claim to the appropriate DDS
(see Part III. above) for adjudication,
and retain a copy of Attachment N in the current claim file. Attachment N
indicates that the Appeals Council action on the current claim does not
resolve all Stieberger issues and that the
Stieberger class member claim is being forwarded
for separate processing. OAO staff will include copies of the ALJ or
Appeals Council decision or order on the current claim and the exhibit
list used for the ALJ or Appeals Council decision.
c. Appeals Council Intends to Issue a Favorable Decision on the
Current Claim — No Stieberger 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 Stieberger claim, the
Appeals Council will proceed with its intended action. In this instance,
if the class member did not object to consolidation of the claims (see
J. 1. above), the Appeals Council will
consolidate the claims, reopen the final determination or decision on the
Stieberger claim and issue a decision that
adjudicates both applications. The Appeals Council's decision will clearly
indicate that the Appeals Council considered the
Stieberger claim pursuant to the
Stieberger court order.
Further, any decision on a class member's
Stieberger claim must set forth the information
required in I. 6. above, in addition to the information that OHA decisions
routinely include.
For class action reporting purposes, the Appeals Council will send copies
of its decision to the Stieberger coordinators
listed in I. 6. above.
d. Appeals Council Intends to Issue a Favorable Decision on the
Current Claim — Stieberger 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 Stieberger claim, the Appeals
Council will proceed with its intended action. The Appeals Council's
order, decision or notice of action will inform the claimant that the
Stieberger claim will be sent to the DDS for
readjudication.
The Appeals Council will request the effectuating component to forward the
claim files to the appropriate DDS (see
Part III. above) 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: “Stieberger court case review
needed — following effectuation, forward the attached combined
folders to (insert address of the DDS having jurisdiction for review of
the Stieberger class member claim).”
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, and include consolidation
instructions, unless one of the exceptions below applies. In its remand
order, the Appeals Council will direct the ALJ to consolidate the
Stieberger claim with the action on the current
claim pursuant to the instructions in 2. above.
The Appeals Council will not direct the ALJ to consolidate the claim
if:
•
the current claim and the Stieberger claim do not
have any issue(s) in common. For example:
if the current claim is a title II retirement or survivors insurance
benefits claim or a title XVI claim involving only nondisability issues,
e.g., income, resources or residency, it will not have any issue(s) in
common with the Stieberger claim; however, if the
current claim is a disability claim, for consolidation purposes, it is
deemed to have an issue in common with the
Stieberger claim, regardless of the period at issue
or the title under which the current claim was filed;
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
Stieberger class member claim to the appropriate
DDS (see Part III. above) for separate
review using the case flag in Attachment M.
K. Processing Court Remands Pursuant to ¶ 10(b) of the Settlement
Agreement
The United States Attorney has given class members with civil actions
pending in one of the four United States District Courts in New York State
or at the United States Court of Appeals for the Second Circuit, based on
an administratively final decision issued on or before July 2, 1992, the
option of proceeding with their individual court cases or receiving
reopening pursuant to the Stieberger settlement. If
the class member accepted reopening, the parties stipulated to remanding
the claim for reopening as a pending claim (see sample in Attachment O;
however, the court, may have modified this language).
If, after being notified of the right to remand, the class member decided
to proceed with the individual court case, the class member waived the
right to reopening of that claim under the settlement, but retained the
right under the settlement to reopen other claims.
If the class member or his or her representative in court did not receive
the option notice, the class member retains the right to have his or her
claim reopened under the settlement, as a pending claim under ¶
10(e)(3), even after issuance of an adverse federal court decision, so
long as the class member's court case was pending on or before (as
appropriate) September 1, 1992. The Appeals Council will remand these
cases using the remand order at Attachment P. ALJs shall process these
cases in the same fashion as with any other pending claim and shall
develop the record pursuant to
20 CFR §§
404.1512 -
.1518 or
416.912 -
.918.
The Stieberger Development Period, developmental
presumptions, and Payment Period rules and limitations do not apply to
stipulated court remands pursuant to ¶ 10(b).
L. Cases That Satisfy the Stieberger Reopening
Criteria and Were Decided By an ALJ On or Before July 2, 1992, and Acted
On By the Appeals Council After July 2, 1992
Cases that meet the Stieberger criteria for
reopening, but that involve action taken by the Appeals Council after July
2, 1992, on ALJ decisions rendered on or before July 2, 1992, are referred
to as “bridge cases.” SSA agreed to stipulate to
Stieberger remand of such cases, with certain
exceptions.
a.
SSA offered to stipulate to a remand of bridge cases for Stieberger reopening in civil actions in which the Appeals Council denied the class member's request for review. However, bridge cases in which the Appeals Council issued a decision were not eligible for reopening under Stieberger and stipulations for remand were not offered with respect to those cases
b.
Stipulated court remands of bridge cases were made in accordance with the
¶ 10(b) provisions of the Stieberger
settlement, except that the ¶ 10(b)(4) principle, the entitlement to
the right to reopening if a class member or representative did not receive
notice of the Stieberger right to remand, even
after issuance of an adverse court decision, will not apply if: 1) the
court's decision was issued after May 19, 1993 (unless appealed); or 2)
the court had been informed before issuing its judgment that the class
member was offered the opportunity for remand as provided in ¶
10(b).
c.
SSA did not offer to stipulate to Stieberger
remands in bridge cases that were civil actions in which SSA asserted that
the court did not have jurisdiction to review the case. In such
situations, the claimant may still respond to the
Stieberger class relief notice. SSA will not
decline to administratively reopen solely on the ground that the court
case had been dismissed or decided against the claimant on jurisdictional
grounds. If the court decided that it had jurisdiction, SSA agreed to
stipulate to remand
d.
With respect to bridge cases where no civil action was filed, claimants
may seek reopening in accordance with the
Stieberger settlement and/or implementation
instructions. SSA will not decline to provide a reopening in such cases
solely on the basis that the Appeals Council's action is on or after July
2, 1992
M. Combining Stieberger Readjudication With
Readjudication Under Another Class Action
SSA may combine the reopening and readjudication of class member's claims
under Stieberger (including any appeal) with a
review, reexamination or other reevaluation/readjudication under another
class action (including any appeal) if the class member is accorded his or
her full rights under both class actions.
Further, SSA need not reopen disability claims under
Stieberger that were already reevaluated under
other class actions provided that the reevaluation in the other class
action:
•
occurred after July 2, 1992;
•
covered the time periods for which payment is possible under
Stieberger and did not restrict payments for such
time periods;
•
considered evidence to the extent provided for in the development
requirements of Stieberger; and
•
afforded the claimant full appeal rights.
For all cases in which OHA is the first level of readjudication for the
Stieberger claim (i.e., the Appeals Council or an
ALJ consolidates the Stieberger claim with action
on a current claim and OHA-jurisdiction pipeline cases, as defined in
A. above), HO or OAO personnel, as
appropriate, will send copies of any OHA decision to the Stieberger
coordinators at the addresses listed in
I. 6. above.
IX. 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
J. 2. above), HO personnel will not code
the prior claim as a separate hearing request. Instead, HO personnel will
change the hearing type on the current claim to a
“reopening.” To identify class member cases in HOTS, HO
personnel must code “ST” in the “Class Action”
field. No special identification codes will be used in the OHA CCS.
X. 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. OHA Headquarters personnel should contact the Division of
Litigation Implementation and Analysis at 305-0708.
Attachment A. Judgment Approving Settlement Dated June 19, 1992 as Modified July
29, 1992, by Stipulation and Order
Social Security Library-Cases 801 F.Supp. 1079, Stieberger v.
Sullivan
Page 801 F.Supp. 1079 follows:
Theresa STIEBERGER, et al., Plaintiffs,
v.
Louis W. SULLIVAN, et al., Defendants.
No. 84 Civ. 1302 (LBS).
United States District Court,
S.D. New York.
July 29, 1992.
Jane E. Booth, Director of Litigation (Matthew Diller, of counsel), Civ.
Appeals & Law Reform Unit, The Legal Aid Soc., David S. Udell,
Jonathan A. Weiss, Legal Services for the Elderly, Nancy Morawetz, Burt
Neuborne, New York City, for plaintiffs and plaintiff Class.
Jill Ann Boskey, of counsel, Wayne G. Hawley, M.F.Y. Legal Services, New
York City, for plaintiffs Theresa Stieberger, Milagros Sullivan, Patricia
Happy and plaintiff Class.
O. Peter Sherwood, Corp. Counsel of the City of New York by Neil Corwin,
Asst. Corp. Counsel, New York City, for plaintiff The City of New
York.
Brook Hedge, Brian G. Kennedy, Terry M. Henry, Attys., U.S. Dept. of
Justice, Civ. Div., Federal Programs Branch, Washington, D.C., for
defendants; Donald A. Gonya, Chief Counsel, Randolph W. Gaines, Deputy
Chief Counsel, for Social Sec., A. George Lowe, Deputy Chief Counsel, for
Disability Litigation, Donna J. Fuchsluger, Marlene W. Heiser, Attys.,
Social Sec. Div., Office of the Gen. Counsel, U.S. Dept. of Health and
Human Services, of counsel.
STIPULATION AND ORDER REGARDING MODIFICATION OF SETTLEMENT
SAND, District Judge.
The parties, by their respective attorneys, hereby stipulate and agree as
follows:
1.
The parties construe the definition of the class on page 1 of the
Settlement Agreement entered on the docket by the Court on June 22, 1992,
792 F.Supp. 1376, as including individuals who resided in New York State
on the date of the SSA decision to deny or terminate their claim for or
continuation of disability benefits, unless they later established
residence outside of New York State and SSA thereafter issued a final
termination or denial on administrative review of the same claim.
2.
The Settlement Agreement is modified as follows, with alterations
indicated by strikeouts and underlining:
(A) “[9](d) A class member shall be considered to have requested
reopening if the class member (i) mails a postage prepaid, pre-addressed
form enclosed with the individual notice, or (ii) makes a written request
to any SSA FO or hearing office within the State of New York or to the
Appeals Council, or (iii) telephones a request to any SSA FO or hearing
office within the State of New York or the Appeals Council, or (iv) makes
a request in person at any SSA FO or hearing office within the State of
New York, or (v) makes a request in writing or in person to any SSA field
office if the individual no longer resides in New York
State.”
(B) “10. After a class member described in paragraph 8 requests
reopening under paragraph 9 and is determined to meet the criteria in
paragraphs 8 and 9, SSA will provide relief as explained in this
paragraph. In adjudicating reopened claims, SSA shall require its
decisionmakers and reviewers of decisions to apply the holdings in Second
Circuit disability decisions in accordance with the provisions set forth
in this settlement agreement, including the instruction set forth as
Attachment 1, except that, in adjudicating reopened claims at the hearing
and Appeals Council review levels outside of New York State for
individuals who no longer reside in New York State, decisionmakers will
use standards and procedures in effect in the state in which the
individual resides at the time of the OHA decision. SSA will issue a
reminder to decisionmakers and reviewers to apply the Circuit Court Case
Guide in HALLEX in adjudicating reopened
claims at the hearing and Appeals Council review levels outside of New
York State for individuals who no longer reside in New York State. SSA
shall require decisionmakers and reviewers to apply the law in effect on
the date on which the new determination on the reopened claim is
rendered.”
(C) “[10](a) SSA shall reopen, and review de novo, class member
claims, except that no claims shall be reopened pursuant to this
settlement for which SSA denied or terminated benefits on administrative
review (on grounds other than that disability had been previously
determined administratively in New York State prior to the issuance of
Attachment 1) in a final decision or determination on a date when the
individual no longer resided in New York State, and no claims shall be
reopened pursuant to this settlement for which the denial or termination
of benefits was affirmed on the merits by a final decision of a federal
court under 42 U.S.C. Sec. 405(g), , except as provided by subparagraph
10(b)(4). No claim shall be subject to reopening for which the denial or
termination of benefits was overturned as the result of an administrative
or judicial appeal.”
(D) “[10](b) Class members entitled to reopening under paragraph 8,
who have civil actions pending pursuant to 42 U.S.C. Sec. 405(g) or Sec.
1383(c)(3) in one of the four United States District Courts situated in
New York State or in the United States Court of Appeals for the Second
Circuit based upon an Appeals Council denial of a request for review or an
Appeals Council decision of denial or termination, issued on or before
thhe date of issuance of Attachment 1, will be given the option of
proceeding with their individual court cases or receiving reopening
pursuant to this settlement. SSA shall promptly provide each such class
member or the class member's representative in court with a notice
(Attachment 3) explaining this option.”
(E) “[10(b) ](4) If any such class member or his or her
representative in court does not receive this notice, the class member
shall have the right to have his claim reopened under this settlement, as
a pending claim under subparagraph 10(e)(3), even after issuance of an
adverse federal court decision, so long as the class member's court case
was pending on or before (as appropriate) 60 days after the date of
issuance of Attachment 1.”
(F) “[10(d) ](3) As alerts are transferred to the FOs, reopened
claims for class members currently residing in New York State will be
integrated into the regular claims determination workload of the New York
ODD and will be completed within a reasonable time and with no less
priority than such regular claims. Reopened claims for class members who
do not reside in New York State will also be completed within a reasonable
time.”
(G) “[10(e) ](4) In conducting each reopening of claims that are not
pending, SSA shall develop the record in accordance with 20 C.F.R.
Secs.404.1512-.1518,
416.912-.918
for a four-year period preceding the date SSA receives the request for
reopening of the claim(s). In computing the four-year period, SSA shall
not count any period for which the person (i) received disability
benefits, (ii) received retirement benefits, (iii) has an active claim for
disability or retirement benefits, or (iv) has a final denial or
termination (on grounds other than that disability had been previously
determined administratively in New York State prior to the issuance of
Attachment 1) issued on a date when the person no longer resided in New
York State. SSA shall also develop the record for the period subsequent to
the date SSA receives the request for reopening, unless the person has
already demonstrated entitlement to benefits for this period. SSA need not
develop the record for any period of time prior to the effective date
[bsol ]of the earliest claim subject to reopening or for any period of
time for which SSA determines that the individual is disabled without
further development.”
(H) “[10(e) ](5) If SSA determines (at any step of the sequential
evaluation process) that the individual is not disabled, or is not
entitled to disability benefits because of SGA, for all or any part of the
period for which the record is developed under subparagraph 4, SSA will
also develop the record for the additional earlier period for which there
is in effect an application the determination on which establishes the
opportunity for reopening as set forth in paragraph 8 (except for periods
for which SSA has issued a final denial or termination on a date when the
individual resided outside of New York State on grounds other than that
disability had been previously determined administratively in New York
State prior to the issuance of Attachment 1), if....”
(I) "[10(e)](7) When a person is found entitled to disability benefits on
a non-pending claim or claims reopened under this paragraph, all payments
on such claims are subject to the regular payment, nonpayment and reduced
payment provisions of the Social Security Act and payments will be made as
follows ...
(iii) In computing the period for which payment is possible under
subparagraphs 10(e)(7)(i) and (ii), SSA shall not count periods for which
the person has already been paid disability or retirement benefits,
periods for which the person may be eligible for payment under an active
claim, or periods for which SSA has issued a final denial or termination
(on grounds other than that disability had been previously determined
administratively in New York State prior to the issuance of Attachment 1)
when the person resided outside of New York State. In addition, payment
need not be made on the basis of any application filed earlier than the
application the determination on which establishes the opportunity for
reopening as set forth in paragraph 8. Earrlier periods of entitlement
followed by periods of nonentitlement will be treated as closed periods
..."
SO ORDERED.
FIRST MODIFIED SETTLEMENT AGREEMENT
(INCORPORATING MODIFICATIONS APPROVED BY THE COURT ON July 29,
1992)
WHEREAS, an amended class action complaint was filed on August 3, 1984,
and
WHEREAS, a plaintiff class was certified on August 19, 1985, and
subsequently modified on December 20, 1985, and is now defined as
All New York residents whose claims for benefits or continuation of
benefits have been, or will be denied or terminated since October 1, 1981,
based on a determination that they do not have a disability that prevents
them from engaging in substantial gainful activity and whose benefits have
not been granted or restored through subsequent appeals
WHEREAS, on May 29, 1990, the court rendered a decision on plaintiffs'
motion for summary judgment and on defendants' motion for partial summary
judgment and cross motion for judgment on the pleadings; and
WHEREAS, the parties wish to avoid further litigation in this
matter,
THEREFORE, all parties to this civil action by their undersigned counsel,
hereby agree, subject to the approval of the court, to the settlement of
plaintiffs' claims in this litigation, in accordance with the following
terms and conditions:
1.
Definitions that apply to this Settlement.
(a) Disability Benefits—Benefits provided by the Social Security
Administration pursuant to Titles II and XVI of the Social Security Act
for personss who meet the definition of disability contained
therein.
(b) Social Security Administration (“SSA”)—The Federal
agency that is responsible for deciding claims for disability benefits.
SSA includes the Office of Hearings and Appeals (“OHA”) that
decides such claims at the Administrative Law Judge (“ALJ”)
and Appeals Council levels of administrative review, and components that
supervise and review the adjudication of claims by the Office of
Disability Determinations. SSA also includes various offices which employ
disability examiners.
(c) Office of Disability Determinations (“ODD”)—The
state agency that decides disability claims in the State of New York at
the initial and reconsideration levels of administrative review on behalf
of SSA pursuant to 20
C.F.R. Secs. 404.1600 ff;
416.1000
ff.
(d) Decisionmakers—SSA and ODD personnel who decide disability
benefit claims of New York State residents under 20 C.F.R. Part 404,
Subpart P; Part 416, Subpart I.
(e) Reviewers of decisions—SSA and ODD personnel who conduct quality
assurance, pre-effectuation or other reviews of determinations on
disability claims of New York State residents.
(f) Second Circuit disability decisions—Decisions of the United
States Court of Appeals for the Second Circuit in which the Secretary of
HHS is a party that are or will be published, that address the issue of
whether an individual, or individuals is or are disabled within the
meaning of 42 U.S.C. Secs. 423(d), 1382(c) or that address the standards
or procedures for making such determinations. Pursuant to this definition
the following decisions are among those not considered “Second
Circuit disability decisions:”
Gutierrez v. Bowen, 898 F.2d 307 (2d
Cir.1990) Valente v. Sullivan (“Valente
II”), 897 F.2d 54 (2d Cir.1990);
Barone v. Bowen, 869 F.2d 49 (2d
Cir.1989); Conley v. Bowen, 859 F.2d 261 (2d
Cir.1988); DeRienzis v. Heckler, 748
F.2d 352 (2d Cir.1984);
Matsibekker v. Heckler, 738 F.2d 79 (2d
Cir.1984);
Valente v. Sec. of Health and Human Services,
733 F.2d 1037 (2d Cir.1984);
Delamater v. Schweiker, 721 F.2d 50 (2d
Cir.1983); Dietsch v. Schweiker, 700
F.2d 865 (2d Cir.1983).
(g) Date of settlement—Date on which this settlement is entered by
the Court.
(h) Computation of time—Time periods under this agreement: (i)
exclude the day of the event from which the time period runs; (ii) for
time periodss of less than 11 days, exclude any day that an office that is
responsible for taking the action under this agreement during the time
period is closed for business (e.g., Saturday, Sunday, legal holiday, or
due to weather or other emergency); and (iii) if such an office is closed
on the date an action under this agreement is due, such action shall be
due the next day the office is open for business.
2.
SSA shall direct all decisionmakers and reviewers of decisions to comply
with holdings in Second Circuit disability decisions in adjudicating or
reviewing claims for disability benefits in accordance with the provisions
of this settlement agreement.
3.
SSA shall issue the attached instruction to all decisionmakers and
reviewers of decisions (Attachment 1) within ten days of the date of
settlement. The instruction shall be binding on all decisionmakers and
reviewers of decisions. SSA shall publish the instruction in the Federal
Register, the HALLEX, the Manual of Second Circuit Disability Decisions,
described below at subparagraph 4(b), and the Program Operations Manual
System (“POMS”) and shall include the instruction in all
introductory training materials distributed to decisionmakers and
reviewers of decisions and all materials provided to administrative law
judges who travel to New York to decide disability claims of New York
State residents. SSA shall make good faith efforts to publish the
instruction within 90 days after the date of settlement.
4.
(a) SSA shall provide each office of decisionmakers and reviewers of
decisions with a copy of this settlement agreement.
(b) SSA shall provide a Manual of Second Circuit Disability Decisions
(“Manual”) to all decisionmakers and reviewers of decisions.
The Manual shall contain statements of the principal holdings of Second
Circuit disability decisions issued before the date of settlement. The
Manual need not describe each Second Circuit disability decision issued
before the date of settlement but must state principal holdings that
address whether an individual or individuals is or are disabled within the
meaning of 42 U.S.C. Secs. 423(d) or 1382(c) or the procedures and
standards for making such determinations.
(c) The parties agree that the statements of the holdings of Second
Circuit disability decisions set forth in the
Manual are good faith interpretations of
the court's holdings. However, the parties do not stipulate that these
statements are complete, or that they are the correct interpretations of
Second Circuit disability decisions.
(d) Following issuance of the Manual, SSA
may, but is not required by this settlement agreement to, issue
instructions with respect to any Second Circuit disability decision issued
before the date of settlement. The provisions of subparagraphs 5(c) and
5(d) (with the exception of the first sentence of subparagraph 5(c)) apply
to such instructions.
(e) SSA shall add in a prominent location at the beginning of the section
of the Circuit Court Case Guide in HALLEX
that discusses caselaw of the Second Circuit the following text:
“Adjudicators of disability claims of New York State residents
involving medical or vocational issues are reminded that they are required
to apply the controlling Second Circuit holdings set forth in the
Manual of Second Circuit Disability Decisions
attached to the instructions for implementing the Stieberger
court-approved settlement.” SSA shall also add this same text to
the other sections of the HALLEX that
discuss caselaw of the Second Circuit, including: (i)
HALLEX
HA 01330.007 (“Other
Bases for Appeals Council Review”) and (ii)
HALLEX
, Exhibit 1
(“Citation Guide Circuit Court Cases for Citation”). The
Manual shall be available for inspection and copying by the public in SSA
field and hearing offices in New York.
(f) SSA may remove the instruction in the Manual concerning
Schisler v. Sullivan at such time as the
instruction is rescinded due to the modification, stay, or vacatur of the
order in Schisler v. Sullivan, dated October 25,
1991, 1991 WL 224407, or oother event that operates to rescind the
instruction. The inclusion of the instruction concerning
Schisler does not constitute an admission of any
kind by SSA and is without prejudice to any claim, defense, or other
contention that SSA may assert or raise in any other action.
5.
SSA shall use the following procedures with respect to Second Circuit
disability decisions rendered after the date of settlement:
(a) SSA shall require each office of decisionmakers and reviewers of
decisions to maintain a volume containing copies of all Second Circuit
disability decisions that are issued after the date of settlement. SSA
shall provide each office of decisionmakers and reviewers of decisions
with a copy of each Second Circuit disability decision promptly after it
is issued by the Court for inclusion in the volume. The volume shall be
readily accessible to decisionmakers and reviewers of decisions in each
office.
(b) Within ten days after the Second Circuit issues the mandate in a case
or designates an opinion for publication, whichever is later, SSA will, by
teletype or other written means, transmit to decisionmakers and reviewers
of decisions a copy of or instruction pertaining to the Second Circuit
disability decision. An instruction will include a summary of the decision
together with a directive to follow the decision. Any decision or
instruction distributed pursuant to this subparagraph shall be issued for
inclusion in the Manual described in subparagraph 4(b).
(c) If SSA distributes a decision pursuant to subparagraph 5(b) without an
instruction, then within 90 days after the Second Circuit issues a mandate
in a case or designates an opinion for publication, whichever is later,
SSA will issue a written instruction to decisionmakers and reviewers of
decisions at the initial and reconsideration levels regarding application
of the holding of the Second Circuit disability decision. SSA may, but
need not, issue such instructions to decisionmakers and reviewers of
decisions in OHA. Once SSA has issued an instruction, it may at any
subsequent time issue further instructions. If SSA determines that a
holding of a Second Circuit disability decision has become obsolete
(lacking in any precedential force at all, e.g., overruled by the Supreme
Court, by the Second Circuit or by statute) SSA may issue written
instructions to decisionmakers and reviewers of decisions stating the good
faith basis of this determination and instructing them accordingly. SSA
shall send any such instructions to five individuals or other entities
specified on a list which plaintiffs' counsel will provide to defendants'
counsel. Plaintiffs' counsel may periodically have the list revised or
updated upon request communicated by plaintiffs' counsel to defendants'
counsel. All instructions shall be issued for inclusion in the
Manual described in subparagraph
4(b).
(d) This agreement does not mandate minimum standards of sufficiency or
accuracy for instructions issued pursuant to this paragraph. However, this
agreement does mandate that instructions issued pursuant to this paragraph
shall be based on good faith interpretations of disability decisions. This
agreement does not preclude any claims brought in another action
challenging the sufficiency or accuracy of such instructions, other than
claims that the instructions are not based on good faith interpretations
of disability decisions, nor does this agreement authorize such challenges
or imply an agreement that such challenges may be maintained.
(e)(1) If any party to an action decided by the Second Circuit seeks
further review of the decision, either through a petition for rehearing or
certiorari, or at any point when such a petition would be timely, SSA may
issue written instructions to decisionmakers and reviewers of decisions
not to apply some or all holdings stated in the decision and may rescind
any instruction issued under subparagraphs 5(b) or (c) regarding that
decision. The time period in which to issue instructions pursuant to
subparagraph 5(c) regarding that decision shall be tolled for any period
in which an instruction not to apply a Second Circuit holding issued
pursuant to this subparagraph is in effect.
(2) In the event that instructions are issued pursuant to subparagraph
5(e)(1) not to apply a holding of a Second Circuit disability decision and
neither a petition for rehearing nor a petition for certiorari is granted,
then, within ten days from the date the Second Circuit decision is no
longer subject to further review through rehearing or certiorari, SSA
shall, by teletype or other written instruction, rescind any instructions
that were issued pursuant to subparagraph 5(e)(1).
(3) In the event that instructions are issued pursuant to subparagraph
5(e)(1) not to apply a Second Circuit disability decision and a petition
for rehearing or certiorari is granted, then within ten days from the date
a final decision on the merits is rendered in that case, SSA shall by
teletype or other written instruction notify decisionmakers and reviewers
of decisions about the court's final decision. If the final decision is a
new decision by the Second Circuit on rehearing, the new decision on
rehearing shall replace the previous Second Circuit decision to the extent
that decision has been superseded by the rehearing decision, and SSA shall
modify or rescind any instructions that were issued pursuant to
subparagraph 5(e)(1) accordingly. If the final decision is a Supreme Court
decision, then SSA shall rescind any instructions issued pursuant to
subparagraph 5(e)(1) for any holding of the Second Circuit to the extent
it is not superseded by the Supreme Court's decision, and shall comply
with any such holding in accordance with the procedures set forth in this
paragraph for Second Circuit disability decisions generally.
(4) When SSA issues a subparagraph 5(e)(1) instruction not to apply a
holding of a Second Circuit disability decision, the instruction shall
identify the issues addressed by the holding, and shall instruct each
office of decisionmakers and reviewers of decisions to list any cases that
might be affected if the holding were to be applied. In addition, the
notice denying or partially denying any such claim will include the notice
language stated in paragraph D.2 of Attachment 1. After a subparagraph
5(e)(1) instruction is rescinded, the responsible decisionmaking
components shall promptly review the listed decisions as well as the
decision of any unlisted claimant who shows that his or her claims
decision made after the effective date of the subparagraph 5(e)(1)
instruction may have been affected by application of the final court
decision. Such reviews shall apply the final court decision unless it is
inapplicable and shall assess disability for the time period covered by
the claims decision under review unless the application of the final court
decision requires development of the evidence; when development of the
evidence is required, the review shall also assess current disability.
Each claimant may appeal the decision made on his or her claim after such
review. However, if review results in the determination that the final
court decision is inapplicable to the claimant's case, the claimant may
only appeal the issue of whether or not the final court decision is
applicable to the claimant's case. This paragraph does not waive or
foreclose any appeal rights that any claimant may have apart from the
review provided for by this paragraph. SSA need not review any cases
pursuant to this subparagraph in order to apply holdings of the Second
Circuit to the extent that the holdings have been superseded by the
Supreme Court or by the Second Circuit on rehearing.
(5) Any instructions issued pursuant to subparagraph 5(e)(1) and any
modification or rescission of such instructions issued pursuant to
subparagraphs 5(e)(2) and (3) shall be published in the Federal
Register.
6.
SSA shall rescind, insofar as applicable to claims of New York State
residents for disability benefits, all written, oral, or computer-based
instructions, policies, procedures, and rulings, other than regulations,
(if any) to the extent that such directives state: (a) a general policy of
nonacquiescence; (b) that the Secretary's decisionmakers and reviewers of
decisions are bound only by rulings of the United States Supreme Court;
(c) that decisionmakers and reviewers of decision shall not follow the law
of the courts of appeals where the courts' holdings are in disagreement
with the Secretary's interpretation of Titles II or XVI of the Social
Security Act oor the Secretary's implementation thereof; (d) that the
Secretary's decisionmakers and reviewers of decisions are not to consider
a decision of a court of appeals to be binding absent adoption of the
holding in an acquiescence ruling; (e) that decisions of the courts of
appeals apply only in a specific case in which a court of appeals ruling
was rendered; or to the extent that such directives are inconsistent with
the terms of this settlement. SSA shall instruct all decisionmakers and
reviewers of decisions that any regulations are not to be applied to the
extent that they contain statements or policies described in this
paragraph. This paragraph does not require the Secretary of HHS to repeal
20 C.F.R. Secs.
404.985,
416.1485.
7.
(a) In making any determination on any claim for benefits by any class
member, SSA shall not, except to the extent stated in subparagraph (b),
preclude the determination of whether a claimant is or, at any material
time, was disabled under the Social Security Act on the ground that the
issue had previously been determined administratively in considering a
prior claim for benefits between October 1, 1981, and the date of issuance
of Attachment 1.
(b) This paragraph shall not apply in any of the following
circumstances:
(1) the class member was not a resident of New York State at the time of
the prior administrative determination;
(2) an action for judicial review or administrative appeal of the prior
determination was filed or would be timely on or after the date of
issuance of Attachment 1;
(3) the issue as to which preclusion applies concerns any issue other than
medical or vocational issues, such as the assets, income, quarters of
coverage, earnings of the claimant, fraud, or whether the claimant had
engaged in substantial gainful activity (“SGA”).
8.
Those class members who meet the following criteria will have an
opportunity to have their cases reopened in accordance with paragraphs 9
and 10:
(a) The class member had a disability claim denied or terminated between
October 1, 1981, and the date of issuance of Attachment 1 on the ground
that the class member was not, or was no longer, disabled (denials or
terminations for fraud, quarters of coverage, excess income or resources,
earnings at the SGA level, or for other reasons unrelated to disability
are not included); and
(b) The class member was a New York State resident at the time of the
denial or termination; and
(c) The class member had a disability claim denied or terminated,
(i) at any level of administrative review between October 1, 1981, and
October 17, 1985, inclusive; or
(ii) at the ALJ or Appeals Council level between October 18, 1985, and the
date SSA issues Attachment 1, inclusive.
9.
(a) SSA shall identify class members who, on the basis of data available
in SSA's data processing systems are potentially within the portion of the
class described in paragraph 8. SSA shall identify class members by name,
Social Security Number (“SSN”) or claim number (or both where
available), and last known address and shall make good faith efforts to
complete identification within 120 days after the date of settlement. SSA
shall notify plaintiffs' counsel, within 90 days after the date of
settlement, of the status of the identification process. If SSA does not
expect to complete identification within the 120-day period, it shall
provide class counsel a schedule for completion. Upon completion of
identification, SSA shall provide plaintiffs' counsel with two lists of
the persons identified as class members: (1) one alphabetical, by last
name, (2) one by zip code. The lists will set forth each person's name,
SSN or claim number (or both where available), and most current address
available to the Social Security Administration. The lists may be supplied
on computer disk or other method agreed to by the parties.
(b) SSA shall send individual notice (Attachment 2) by first-class mail to
the last known address of the individuals identified pursuant to
subparagraph 9(a). Within 120 days of identification, SSA shall mail the
nootices to all individuals who are scheduled to receive notice under this
settlement. The notice shall state that the individual may be entitled to
reopening of his or her claim for benefits, and that, in order to request
reopening the individual should mail an enclosed, postage pre-paid,
pre-addressed form to SSA. The notice shall also state that the individual
may request assistance at any field office (“FO”) within New
York State.
(c) Individuals who receive the notice referred to in subparagraph 9(b)
shall have 180 days from receipt within which to respond to the notice.
The date the individual receives the notice will be deemed to be five days
after the date on the notice, unless the individual shows that he or she
did not receive it within the five-day period. If an individual who
received an individual notice does not respond within 180 days of receipt,
his or her disability claim will not be considered for reopening under
this settlement agreement absent a finding of “good cause,”
as defined in 20 C.F.R.
Secs. 404.911;
416.1411.
(d) A class member shall be considered to have requested reopening if the
class member (i) mails a postage prepaid, pre-addressed form enclosed with
the individual notice, or (ii) makes a written request to any SSA FO or
hearing office within the State of New York or to the Appeals Council, or
(iii) telephones a request to any SSA FO or hearing office within the
State of New York or the Appeals Council, or (iv) makes a request in
person at any SSA FO or hearing office within the State of New York, or
(v) makes a request in writing or in person to any SSA field office if the
individual no longer resides in New York State.
(e) SSA shall maintain a computerized tracking system that records the
name and address of each person who requests reopening by returning the
form enclosed with the individual notice (Attachment 2) and the date the
request was received by SSA. SSA shall enter the same information into the
tracking system for other requests for review as such information is
received by SSA's central office. SSA will provide information reasonably
available from this tracking system on request by plaintiffs'
counsel.
(f) (1) After a request for reopening is received by SSA, SSA will provide
the person who requests reopening (“requester”) with a
written acknowledgment that a request for reopening was received. Unless
the acknowledgment states the date of the request or, pursuant to
subparagraph 9(f)(2) states that the timeliness of the request is disputed
or uncertain, the request shall be deemed timely.
(2) If it appears to SSA that the request for reopening may be untimely,
SSA will state in the acknowledgment (a) that the timeliness of the
request is uncertain or disputed by SSA, and (b) either the date on which
the request was received or that the request was received on or after a
date certain that is at least 240 days after the date on which SSA sent
the notice to which the requester is responding.
(3) SSA shall make good faith efforts to provide the acknowledgment within
30 days of SSA's receipt of the request. For individuals who request
reopening in person, SSA shall, at the time of the request, provide either
(a) the acknowledgment contemplated in this paragraph, or (b) other
written, dated substantiation that the request was made.
(g) A class member's request for reopening of his or her claim shall
constitute a request for reopening of all of his or her claims subject to
reopening under this agreement. Class members' responses to individual
notices shall be construed by SSA to be requests for reopening where the
class member's intention is ambiguous or unclear.
(h) SSA will determine whether each requester meets the criteria in
paragraph 8 and has properly requested reopening in accordance with
subparagraphs 9(c),(d), and (g). SSA shall make this determination within
a reasonable time.
(1) If SSA determines that a requester does not meet the criteria in
paragraph 8 or has not properly requested reopening in accordance with
subparagraphs 9(c), (d), and (g), SSA will send a notice of the
determmination to the requester. The notice will state the reasons for
SSA's determination and explain that: (a) the requester will have 60 days
from receipt of the notice to notify in writing the Office of the General
Counsel (“OGC”), Department of Health and Human Services,
Altmeyer Building, Room 600, 6401 Security Boulevard, Baltimore, Maryland
21235, that he or she disagrees with the determination; (b) the requester
may request inspection of his or her administrative record upon which the
determination was based and, as needed, the relevant claims file; and, (c)
the requester will have 45 days to inspect the record at an SSA office
mutually agreeable to the parties once the requester is notified that the
record is available for inspection. If the requester does not notify OGC
in writing that he or she disagrees with the determination within 60 days
of receipt of the notice, the determination shall become final and shall
not be subject to further review absent a finding of good cause, as
defined in 20 C.F.R.
Secs. 404.911,
416.1411. For
purposes of this subparagraph only, SSA district and branch offices will
accept on behalf of OGC a requester's written notification of disagreement
with the determination.
(2) OGC will attempt to resolve through negotiation all disputes
concerning the determinations made pursuant to this subparagraph. OGC
shall apprise class counsel of all such disputes, and class counsel shall
make good faith efforts to assist in resolving such disputes. To further
such resolution of disputes, class counsel shall be allowed to inspect the
administrative record on which the decision was based and, as needed, the
relevant claims file, if so requested, without regard to whether the
requester made such a request in response to a notice sent pursuant to
subparagraph 9(h)(1). If the requester has made such a request, OGC may
arrange for the requester and class counsel to make such inspection
concurrently. If the parties cannot resolve the question of a requester's
entitlement to relief through negotiation, OGC will confirm to the
requester and class counsel, in a written notice, that the dispute cannot
be resolved. This notice shall be sent within a reasonable time. The
notice will state that if within 60 days of receipt of OGC's written
confirmation, the requester does not request the district court's review
of the determination, the determination will become final and not subject
to further review. The requester or class counsel may request the district
court's review by filing a “Notice of Challenge to Decision Denying
Reopening Under Stieberger v. Sullivan” with
the district court in this action. Such a notice may be filed no later
than 60 days after receipt of OGC's confirmation that the dispute cannot
be resolved. Upon filing of such a notice, SSA shall file such agency
records as the Court determines relevant to resolution of the dispute.
Disputes under this paragraph that are submitted to the Court pursuant to
paragraph 19 may be referred to a magistrate judge.
(3) For purposes of this subparagraph 9(h), the date of receipt of a
notice will be deemed to be five days after the date on the notice, unless
the requester shows that he or she did not receive it within the five-day
period.
(i) When individual notices are returned as undeliverable, SSA will
attempt to obtain updated addresses by providing a computer tape to the
New York State Department of Social Services and the New York City Human
Resources Administration 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. Sec. 552a (“Privacy
Act”). SSA shall not be obligated to bring legal proceedings to
gain access to such data system records. SSA shall mail notices to
potential class members for whom new addresses are provided. SSA shall
identify for class counsel all potential class members for whom it did not
obtain new addresses, and shall also identify for class counsel such
potential class members whose notices were returned as undeliverable after
the mailing to the new addresses. Thee information shall be provided in
increments as it becomes available to SSA. Plaintiffs' counsel shall have
180 days after receipt of this information to furnish current addresses
for such individuals. Upon timely receipt of such addresses from
plaintiffs' counsel, SSA will mail a final notice to potential class
members.
10.
After a class member described in paragraph 8 requests reopening under
paragraph 9 and is determined to meet the criteria in paragraphs 8 and 9,
SSA will provide relief as explained in this paragraph. In adjudicating
reopened claims, SSA shall require its decisionmakers and reviewers of
decisions to apply the holdings in Second Circuit disability decisions in
accordance with the provisions set forth in this settlement agreement,
including the instruction set forth as Attachment 1, except that, in
adjudicating reopened claims at the hearing and Appeals Council review
levels outside of New York State for individuals who no longer reside in
New York State, decisionmakers will use standards and procedures in effect
in the state in which the individual resides at the time of the OHA
decision. SSA will issue a reminder to decisionmakers and reviewers to
apply the Circuit Court Case Guide in
HALLEX in adjudicating reopened claims at
the hearing and Appeals Council review levels outside of New York State
for individuals who no longer reside in New York State. SSA shall require
decisionmakers and reviewers to apply the law in effect on the date on
which the new determination on the reopened claim is rendered.
(a) SSA shall reopen, and review de novo, class member claims, except that
no claims shall be reopened pursuant to this settlement for which SSA
denied or terminated benefits on administrative review (on grounds other
than that disability had been previously determined administratively in
New York State prior to the issuance of Attachment 1) in a final decision
or determination on a date when the individual no longer resided in New
York State, and no claims shall be reopened pursuant to this settlement
for which the denial or termination of benefits was affirmed on the merits
by a final decision of a federal court under 42 U.S.C. Sec. 405(g), except
as provided by subparagraph 10(b)(4). No claim shall be subject to
reopening for which the denial or termination of benefits was overturned
as the result of an administrative or judicial appeal.
(b) Class members entitled to reopening under paragraph 8, who have civil
actions pending pursuant to 42 U.S.C. Sec. 405(g) or Sec. 1383(c)(3) in
one of the four United States District Courts situated in New York State
or in the United States Court of Appeals for the Second Circuit based upon
an Appeals Council denial of a request for review or an Appeals Council
decision of denial or termination, issued on or before the date of
issuance of Attachment 1, will be given the option of proceeding with
their individual court cases or receiving reopening pursuant to this
settlement. SSA shall promptly provide each such class member or the class
member's representative in court with a notice (Attachment 3) explaining
this option.
(1) If the class member decides to accept reopening while the court case
is still pending, SSA will stipulate to remanding the claim for reopening
under the settlement as a pending claim under subparagraph 10(e)(3).
(2) If, after being notified of the right to remand, the class member
decides to proceed with the individual court case, the class member waives
any right to reopening of that claim under this settlement, but retains
any right under this settlement to reopen other claims.
(3) If the class member does not timely respond to this notice, SSA may
defend the case in court, move to remand the case for reopening under this
settlement, or otherwise seek resolution of the case.
(4) If any such class member or his or her representative in court does
not receive this notice, the class member shall have the right to have his
claim reopened under this settlement, as a pending claim under
subparagraph 10(e)(3), even after issuance of an adverse federal court
decision, so long as the class member's court case was pending on or
before (as appropriate) 60 days after the date of issuance of Attachment
1.
(c)(1) SSA may consolidate the reopening of a class member's claim(s)
under this agreement (and/or any appeal from such reopening) with a
review, reexamination, or other reevaluation mandated by another class
action (and/or any appeal from such review, reexamination, or other
reevaluation) whenever the class member is accorded his or her full rights
under this settlement as well as those under the other class action.
(2) SSA need not reopen disability claims that were already reevaluated
under other class actions if (a) the reevaluation in the other class
action occurred after the date of issuance of the instruction set forth in
Attachment 1, (b) the reevaluation in the other class action covered the
time periods for which payment is possible under this settlement and did
not restrict payments for such time periods, (c) the reevaluation in the
other class action considered evidence to the extent provided in
subparagraphs 10(e)(3)-(6) of this paragraph, and (d) the reevaluation
procedure in the other class action afforded the claimant full appeal
rights.
(d) SSA will process claims reopened pursuant to this paragraph in
accordance with the following schedule:
(1) SSA will make good faith efforts to forward to plaintiffs' counsel
within 120 days after the date of settlement a draft of POMS instructions
and HALLEX instructions, if any, needed
to effectuate paragraphs 8, 9, and 10 of this agreement.
(2) Within 60 days after these POMS instructions are printed and
distributed, SSA shall generate and transfer to the appropriate FOs
computer-generated alerts pertaining to the claims of all individuals, up
to 10,000, who have requested reopening. Within each 90-day interval
thereafter, SSA shall transfer alerts pertaining to all, up to 10,000,
remaining individuals who have requested reopenings. SSA shall continue
such transfers until alerts pertaining to all individuals who have
requested reopenings have been transferred. Nothing in this subparagraph
shall preclude SSA from transferring more than 10,000 alerts within each
interval.
(3) As alerts are transferred to the FOs, reopened claims for class
members currently residing in New York State will be integrated into the
regular claims determination workload of the New York ODD and will be
completed within a reasonable time and with no less priority than such
regular claims. Reopened claims for class members who do not reside in New
York State will also be completed within a reasonable time.
(4) Within 90 days of issuing any allowance determinations on these
reopened claims, SSA will undertake development of title II nondisability
factors of eligibility and auxiliary applications and of title XVI
nondisability factors of eligibility in order to determine payment amounts
and effectuate payments.
(e) SSA will follow these procedures for reopening
Stieberger claims:
(1) Class members who request reopening, and are due reopening, will be
contacted by the appropriate FO after the FO is alerted by SSA to the
request. The FO will inform the class member of his or her right to submit
evidence in support of the class member's claim of disability. An
appointment will be made to fill out a disability report on the class
member's impairment(s) and medical sources. Information obtained at the FO
interview will be sent to the component responsible for rendering a
determination on the reopened claim.
(2) When the class member has no active disability claim pending at any
administrative level at the time of the FO interview, SSA will reopen the
Stieberger claim(s) at the reconsideration level.
When the class member has an active disability claim pending at any
administrative level at the time of the FO interview, SSA may, unless the
class member objects, consolidate the Stieberger
claim(s) reopening with the active disability claim (i) in OHA, if the
active disability claim is pending in OHA or (ii) at the reconsideration
level, if the active disability claim is pending at the initial or
reconsideration level.
(3) In conducting each reopening of claims that are pending, SSA shall
develop the record pursuant to
20 C.F.R. Secs.
404.1512-.1518,
416.912-.918.
For purposes of this subparagraph and subparagraphs 10(e)(4), (7), and
(8), a pending claim is one for which judicial or administrative review at
any level has been requested or would be timely, but for which a
determination or decision at that level has not been rendered as of the
date reopening is requested.
(4) In conducting each reopening of claims that are not pending, SSA shall
develop the record in accordance with
20 C.F.R. Secs.
404.1512-.1518,
416.912-.918
for a four-year period preceding the date SSA receives the request for
reopening of the claim(s). In computing the four-year period, SSA shall
not count any period for which the person (i) received disability
benefits, (ii) received retirement benefits, (iii) has an active claim for
disability or retirement benefits, or (iv) has a final denial or
termination (on grounds otherthan that disability had been previously
determined administratively in New York State prior to the issuance of
Attachment 1) issued on a date when the person no longer resided in New
York State. SSA shall also develop the record for the period subsequent to
the date SSA receives the request for reopening, unless the person has
already demonstrated entitlement to benefits for this period. SSA need not
develop the record for any period of time prior to the effective date of
the earliest claim subject to reopening or for any period of time for
which SSA determines that the individual is disabled without further
development.
(5) If SSA determines (at any step of the sequential evaluation process)
that the individual is not disabled, or is not entitled to disability
benefits because of SGA, for all or any part of the period for which the
record is developed under subparagraph 4, SSA will also develop the record
for the additional earlier period for which there is in effect an
application the determination on which establishes the opportunity for
reopening as set forth in paragraph 8 (except for periods for which SSA
has issued a final denial or termination on a date when the individual
resided outside of New York State on grounds other than that disability
had been previously determined administratively in New York State prior to
the issuance of Attachment 1), if:
(i) the individual has a chronic impairment that the individual alleges
was more severe in the past, and more information is needed about any
earlier, acute phase (e.g., rheumatoid arthritis in major joints that is
not currently active, previously uncontrolled epilepsy that is now under
control, previously uncontrolled diabetes that is now under control);
or
(ii) the individual has a new treating source(s) or no treating source and
it is learned that other evidence may be available, e.g., from former
treating source(s) that may attest to more serious impairment.
(6) If further development is required under subparagraphs
10(e)(5)(i)-(ii), SSA shall secure prior folders and reconstruct evidence
to ensure full and fair consideration of the claim, unless disability can
otherwise be found for such period.
(7) When a person is found entitled to disability benefits on a
non-pending claim or claims reopened under this paragraph, all payments on
such claims are subject to the regular payment, nonpayment and reduced
payment provisions of the Social Security Act and payments will be made as
follows:
(i) Persons found disabled during the period specified in subparagraph 4
will be paid for the period ending with (and including) the month that
includes the date halfway between April 1, 1991, and the date of
settlement and beginning with (and including) whichever of the following
is later: (a) the first full month that began within 4 years of the date
halfway between April 1, 1991, and the date of settlement or (b) the
earliest datHP LaserJet II D (Additional)HLIIDADD.PRS so long as that
person continued to be disabled and otherwise eligible.
(ii) Persons found disabled pursuant to development exceptions under
subparagraphs 10(e)(5)(i)-(ii) above will be paid for the latest possible
entitlement period, of up to 4 years, preceding the first day of the first
month beginning on or after the date halfway between April 1, 1991, and
the date of settlement. Any such person will also be paid for the period
beginning on or after the first day of the first month beginning on or
after the date halfway between April 1, 1991, and the date of settlement
so long as that person continued to be disabled and otherwise
eligible.
(iii) In computing the period for which payment is possible under
subparagraphs 10(e)(7)(i) and (ii), SSA shall not count periods for which
the person has already been paid disability or retirement benefits,
periods for which the person may be eligible for payment under an active
claim, or periods for which SSA has issued a final denial or termination
(on grounds other than that disability had been previously determined
administratively in New York State prior to the issuance of Attachment 1)
when the person resided outside of New York State. In addition, payment
need not be made on the basis of any application filed earlier than the
application the determination on which establishes the opportunity for
reopening as set forth in paragraph 8. Earlier periods of entitlement
followed by periods of nonentitlement will be treated as closed
periods.
(iv) A person claiming Title II benefits shall be considered insured,
unless a determination is made after appropriate development that the
claimant was not disabled as of the date last insured.
(8) Persons found disabled on pending claims will be paid pursuant to
20 C.F.R. Secs.
404.315-.325;
416.501-.502,
and payment shall not be subject to the restrictions of subparagraph 7.
Payment on a pending claim does not limit any rights to payment on
nonpending claims reopened under this paragraph, except that payment shall
not be made more than once for the same period.
(f) SSA will notify each class member of the outcome of the reopening of
his or her claims. SSA notices shall set forth the following information,
in addition to the information that is routinely included in such notices:
(i) the dates of the periods for which disability was considered; (ii) the
dates of the periods for which disability is established; (iii) the dates
of the periods for which benefits are being awarded, if any; (iv) the
basis for any finding of nondisability or denial of benefits.
(g) SSA shall promptly certify payment to the Department of the Treasury
for those class members found eligible for payments. Any and all payments
of retroactive Title II or Title XVI benefits resulting from reopenings
under this settlement shall be made in accordance with the Social Security
Act and regulations, as amended.
(h) Individual class members retain all statutory and regulatory rights to
administrative and judicial review of any decision on reopening under this
settlement. However, the outcome of individual reopenings is not
reviewable in this action.
11.
SSA shall provide plaintiffs' counsel with the following information about
implementation of this settlement:
(a) Beginning 180 days after SSA issues Attachment 1, SSA shall provide
plaintiffs' counsel with a statistical report every 120 days on
implementation of this settlement. The report shall state the number of
individual notices (Attachment 2) mailed; the number of notices returned
as undeliverable; the number of requests for reopening by requesters
identified pursuant to subparagraph 9(a); the number of other requests for
reopening pursuant to paragraph 9; the number of alerts transferred to FOs
pursuant to subparagraph 10(d)(2); and the total number of disability
claims SSA reopens at the OHA and ODD levels under this settlement
subdivided by the number of allowances, denials and dismissals. SSA may
cease furnishing plaintiffs' counsel with the reports described in this
subparagraph when SSA has completed reopening or otherwise made
determinations concerning at least 90 percent of the reopenings requested
during a one year period after the last mailing of notices pursuant to
subparagraph 9(b). However, if SSA does cease to furnish such reports, SSA
shall, upon request by plaintiffs' counsel, provide information that would
have been inccluded in such reports.
(b) SSA shall permit plaintiffs' counsel reasonable access to materials
reasonably relevant to implementation of paragraphs 9 and 10 of this
settlement, and a sample of cases reopened under this settlement solely
for the purpose of monitoring compliance with the settlement.
(c) SSA shall furnish plaintiffs' counsel with a copy of instructions
issued under paragraphs 4 and 5.
(d)(i) Instructions for implementation of paragraphs 8, 9, and 10 of this
settlement shall be issued in HALLEX and
the POMS. At least 30 days prior to issuance of any such
HALLEX and POMS materials, SSA shall
provide plaintiffs' counsel with the proposed instructional
materials.
(ii) Plaintiffs' counsel shall have 30 days to respond with objections to
or comment on such materials. The parties will first attempt to resolve
any objection by negotiation. If plaintiffs' counsel determine that
further negotiation would be fruitless, plaintiffs' counsel shall so
notify defendants and state either that judicial resolution will be sought
or that the objection should be considered resolved. If defendants
conclude that further negotiation would be fruitless, defendants shall so
notify plaintiffs' counsel; plaintiffs' counsel shall respond within 14
days and state either that judicial resolution will be sought, or that the
objection should be considered resolved.
(iii) If plaintiffs' counsel objects to any portion of the instructional
materials, SSA shall not issue the material that is the subject of the
objection until the objection is resolved except to the extent provided by
subparagraph 11(d)(iv). Any time period required by this agreement for
undertaking or completing the actions addressed by the materials provided
to plaintiffs' counsel, or that is dependent upon the undertaking or
completion of such actions, shall be tolled until plaintiffs' counsel
advise that there are no objections or any such objections are
resolved.
(iv) In the event that only some portions of proposed instructional
materials are objected to, the parties will attempt in good faith to reach
a prompt agreement as to whether transmitting to decisionmakers and
reviewers of decisions other portions of the instructional materials prior
to resolution of the objection will, on balance, advance the effective,
prompt, and efficient administration of the settlement agreement. If the
parties are unable to reach agreement, the defendants will determine
whether transmittal of some or all of the unobjected-to portions of the
instructional materials prior to resolution of the objection will, on
balance, advance the effective, prompt, and efficient administration of
the settlement agreement, and may thereupon transmit such unobjected-to
materials. The provisions of subparagraph 11(d)(iii) will cease to apply
with respect to those portions of the materials as to which no objection
is made and that are transmitted to agency decisionmakers and reviewers of
decisions pursuant to this subparagraph.
(v) In no event shall subparagraph 11(d)(iv) or any other provision of
this settlement agreement be deemed to require that defendants transmit to
decisionmakers and reviewers of decisions any instructional materials or
portion of instructional materials that would require any action to be
taken (for example, development of any aspect of a class member's claim
for benefits) prior to resolution of any objections if the resolution of
such objections could require such action to be taken again (for example,
resolution of the objection would require redevelopment of an aspect of a
class member's claim). The purpose of this provision is to avoid requiring
the defendants to develop or reopen a class member's claim more than once,
by virtue of having transmitted portions of instructional materials to
which plaintiffs have not objected.
(e) SSA shall provide copies of all final materials implementing this
settlement or concerning application of Second Circuit disability
decisions to plaintiffs' counsel at the time of issuance to decisionmakers
or reviewers of decisions, including, but not limited to, all
instructions, teletypes, program circulars, training materials, and
videotapes. SSA shall provide plaintiffs' counsel with a copy of the final
Manual of Second Circuit Disability
Decisions at the time that SSA distributes the Manual pursuant to
paragraph 4.
(f) Plaintiffs' counsel shall be notified of SSA team visits to the New
ODD described in paragraph F of Attachment 1. Plaintiffs' counsel, or
their designated co-counsel, may attend such visits solely in the capacity
of observers.
12.
This settlement does not preclude SSA from issuing acquiescence rulings or
suspending or rescinding such rulings in accordance with
20 C.F.R. Secs.
404.985 or
416.1485. In the
event that SSA suspends or rescinds an acquiescence ruling pursuant to
20 C.F.R. Secs.
404.985 or
416.1485, this
settlement does not preclude SSA from suspending, precluding or modifying
any instructions issued pursuant to this settlement agreement addressing
the same holding of the Second Circuit in order to reflect the action
taken pursuant to those regulations. This settlement neither precludes nor
authorizes any challenges to application of the procedures and criteria
set forth in 20 C.F.R.
Secs. 404.985(c-e);
416.1485(c-e)
in any particular instance, or a challenge to such procedures on their
face in any other action. Similarly, this settlement neither precludes nor
authorizes any challenges in any other actions to the suspension,
rescission or modification of instructions issued pursuant to this
agreement in order to reflect action taken pursuant to
20 C.F.R. Secs.
404.985(c-e) or
416.1485(c-e).
13.
This settlement does not supersede or preclude orders or injunctions
issued in other actions delaying or accelerating application of a Second
Circuit decision, and does not provide a stay of any injunction or order
issued in another action.
14.
This agreement resolves all claims made by plaintiffs Theresa Stieberger,
Milagros Sullivan, and Patricia Happy against defendants in this action.
This agreement resolves all claims of all present and future class members
that the Social Security Administration (in making determinations of
claims for disability benefits of New York State residents) fails or
failed, at any time on or after October 1, 1981, and before the eighth
anniversary of the date of settlement, to have a policy, or to have
instructed, that holdings in Second Circuit disability decisions should be
followed by SSA or ODD personnel when making decisions in subsequent cases
involving residents of the states within the circuit. See
Stieberger v. Sullivan, 738 F.Supp. 716, 728-30
(S.D.N.Y.1990). This agreement also resolves all claims of all class
members prior to the date of settlement challenging (i) any policies or
practices for determining which allowance decisions of ALJs would be
examined for possible own-motion review or be subject to own-motion review
that used as a criterion in such determination either the percentage of
cases in which the ALJ rendering such decisions granted benefits or the
percentage of cases in which own-motion review of decisions of such ALJ
had been granted; (ii) any policies or practices of random selection of
allowance decisions for possible own-motion review; or (iii) any policies
or practices determining the percentage of cases to be considered for
own-motion review that would be allowance cases. This agreement does not
resolve any claim preserved in subparagraphs 5(c) or 5(d) or in paragraphs
12 or 13 of this agreement; any claim that SSA failed or fails properly to
comply with the decision of the Second Circuit in Schisler v.
Bowen, 851 F.2d 43 (2d Cir.1988); any claim challenging the
regulations issued by the Secretary on August 1, 1991, 56 Fed.Reg.
36932-70; any claim heretofore raised in
Zebley v. Sullivan, Civ. No. 83-3314
(E.D.Pa.); Hill v. Sullivan, 87 Civ. 4344
(S.D.N.Y.) (LBS); Dixon v. Sullivan, 83
Civ. 7001 (S.D.N.Y.) (WCC);
Rios v. Sullivan, Civ. No. 86-2548
(E.D.N.Y.) (Spatt, J); State of New York v.
Sullivan, 83 Civ. 5903 (S.D.N.Y.) (RLC); Kendrick
v. Sullivan, 90 Civ. 3776 (S.D.N.Y.) (RJW);
S.P. v. Sullivan, Civ. No. 90 Civ. 6294
(S.D.N.Y.) (MGC); any claim that SSA has nonacquiesced in Second Circuit
decisions that are not Second Circuit disability decisions as defined in
subparagraph 1(f) of this agreement; or any claim not raised in this
action. The enumeration in the preceding sentence of claims not addressed
in this action does not represent or imply agreement by defendants that
any such claims would state a claim upon which relief can be granted or
would otherwise be valid. Nothing in this agreement shall prevent any
class member from pursuing an individual administrative appeal, a request
for reopening, or a judicial appeal. Nothing in this agreement shall
preclude any class member from arguing in the course of such review that
any judicial decision was not applied, or was improperly applied, in his
or her individual case.
15.
(a) Counsel for the parties may, at any time, mutually agree to modify
this settlement. If counsel for the parties agree that a modification is
minor, i.e., does not significantly affect the rights of plaintiffs under
this settlement, the parties will notify the Court. Such minor
modifications shall become effective ten (10) days after notification to
the Court unless the Court objects to the proposed modification.
Modifications that may be minor include extensions of time limits, revised
instructional formats, and changes with respect to reporting to class
counsel.
(b) Modifications agreed to by the parties that are not minor, or that the
parties cannot agree are minor, shall not become effective until approved
by the Court through a “so-ordered” stipulation or other
procedure specified by the Court.
(c) Any party may seek to modify this settlement by duly noticed motion to
the Court (1) if there is an occurrence that undermines a fundamental
basis of this settlement (for example, enactment of legislation that
renders this settlement inconsistent with law; enactment of legislation
that expressly empowers SSA to nonacquiesce in decisions of the courts of
appeals in situations that are precluded by this settlement; issuance of a
decision of the United States Supreme Court upholding a policy of
nonacquiescence by SSA; or alteration of the system of judicial review of
denials of disability benefits that fundamentally changes the role of the
Second Circuit Court of Appeals in reviewing such denials), or (2) for any
other reason that would be appropriate under Fed. Rule Civ. 60(b).
16.
This settlement does not constitute an admission by the defendants of any
pattern or practice that violates or fails to comply with any law, rule,
or regulation dealing with any matter within the scope of the allegations
contained in the complaint or otherwise raised by plaintiffs in this
action. This settlement does not constitute an admission by the defendants
that their position in this litigation was not substantially justified.
Nor is this settlement an admission of liability for attorneys fees on the
part of the defendants, their agents, or employees. This settlement does
not constitute an admission by defendants that the procedure in this
agreement for applying the holdings of the Second Circuit to applicable
claims of New York residents will result in consistent or errorless agency
decisionmaking and review of decisions or in sound administration of the
Social Security Act.
17.
Plaintiffs' counsel and defendants' counsel, by their signatures below,
warrant that they are sole counsel to the plaintiffs and to the defendants
whose interests were represented in this action and that they are
authorized to stipulate to the settlement of issues in this action. This
settlement shall not be effective until counsel for defendants receives
from counsel for the City of New York a
letter or other written notice attesting that all required approvals
needed to make this settlement binding on the
City of New York have been
obtained.
18.
This settlement shall be submitted to the district court and shall be
effective only upon approval of the court.
19.
The district court shall retain jurisdiction over this action only for the
purposes of enforcing this settlement, resolving disputes over whether
claimants are entitled to reopenings as provided by subparagraph 9(h) of
this agreement, determining matters concerning modification of this
agreement pursuant to paragraph 15, and determining whether plaintiffs are
entitled to any attorneys' fees.
20.
This agreement shall remain in effect for a period of eight years
beginning on the date of settlement. At the end of thiis eight-year period
the agreement will expire. Such expiration, however, will not affect
obligations to take action incurred during the pendency of the agreement,
benefits or entitlements to benefits awarded pursuant to the reopenings
provided herein, the release and settlement of claims accrued during the
eight-year period, or any action or motion to enforce the provisions of
the agreement with respect to the eight-year period.
21.
(a) Theresa Stieberger—SSA agrees that Theresa Stieberger will be
paid title II disability insurance benefits beginning with the month of
December 1981 based on the onset date of June 15, 1981, which was alleged
in both her October 1981 and her April 1983 applications. (Ms. Stieberger
has already been paid all title XVI Supplemental Security Income
disability benefits to which she is retroactively entitled based on her
October 1981 application.)
SSA also agrees that Ms. Stieberger may present evidence that mental
incapacity prevented her from timely requesting review of the adverse
determination made in her case in November 1974 and that she had no one
legally responsible for prosecuting her claim at that time. If Ms.
Stieberger presents such evidence, SSA will determine whether or not good
cause exists for extending the time to request review as provided in
Social Security Ruling (“SSR”)
91-5p. If good cause is
determined to exist, the time to request review of the November 1974
determination will be extended and the action that would have been
appropriate had Ms. Stieberger filed a timely request for review will be
taken.
(b) Milagros Sullivan—SSA agrees that Milagros Sullivan will be paid
title II disability insurance benefits beginning with the month of October
19982, the onset date alleged in her October 1982 application. (Ms.
Sullivan has already been paid all title XVI Supplemental Security Income
disability benefits to which she is retroactively entitled based on her
application of October 6, 1982.)
SSA also agrees that Ms. Sullivan may present evidence that mental
incapacity prevented her from timely requesting review of the adverse
determination made in her case on July 2, 1980, and that she had no one
legally responsible for prosecuting her claim at that time. If Ms.
Sullivan presents such evidence, SSA will determine whether or not good
cause exists for extending the time to request review as provided in
SSR 91-5p. If good cause
is determined to exist, the time to request review of the July 2, 1980,
determination will be extended and the action that would have been
appropriate had Ms. Sullivan filed a timely request for review will be
taken.
In addition, Ms. Sullivan may request reopening of the June 25, 1979,
initial denial determination as provided in
20 C.F.R. Secs.
404.987-.989
and
416.1487-.1489.
If Ms. Sullivan makes such a request, SSA will determine whether or not a
basis exists for such reopening employing the regulations cited above. If
a basis is determined to exist, Ms. Sullivan's June 25, 1979, denial will
be reopened.
(c) Patricia Happy—SSA agrees that Patricia Happy will be paid title
II disability insurance benefits beginning the month of April 1983, based
on an onset date of October 1982 when she alleges that she stopped
working. (Ms. Happy has already been paid title XVI benefits from February
1985 to September 1989 based on an order of the Court.)
SSA agrees that Ms. Happy will be paid title XVI SSI disability benefits
from August 1983, the month of her SSI application, through January
1985.
Benefits for months beginning January 1989 for title II and September 1989
for title XVI will be paid subject to the trial work period, extended
period of disability, work incentive and overpayment provisions of the
statute and regulations.
(d) Any payments issued to plaintiffs Stieberger, Sullivan, and Happy
pursuant to the terms in this paragraph shall be offset against benefit
payments already received by these plaintiffs, in accordance with regular
program requirements.
(e) Notwithstanding any other provision of this agreement, the relief
provided pursuant to this paragraph is the sole and exclusive relief to be
provided to plaintiffs Theresa Stieberger, Milagros Sullivan, and Patricia
Happy in this action.
22.
Within ten (10) days of the date of settlement, SSA will inform
decisionmakers and reviewers of decisions that SSA instructional materials
pertaining to the preliminary injunction that was issued in this case on
August 19, 1985, including POMS Sec.
12586.001-095
(Transmittal No. 1, SSA Pub. No. 68-0412500, April 1986), Sec.
32586.001-095
(Transmittal No. 1, SSA Pub. No. 68-0432500, April 1986), Sec.
42586.001-015
(Transmittal No. 1, SSA Pub. No. 68-0442500, April 1986), and
HALLEX Secs.
HA 01540.013,
HA 01540.013-A,
HA 01540.013-B, are no
longer of force or effect.
23.
The parties will jointly seek an order from the Court permitting the
disclosures contemplated by this agreement as a limited exception to
otherwise applicable requirements of the Privacy and Social Security Acts.
In the event that such an order is not granted in whole or part, the
portions of the agreement requiring disclosures that would otherwise be
inconsistent with the Privacy or Social Security Acts will not take effect
except to the extent permitted by the Court's order, but the validity of
the remainder of this agreement shall not be affected by the denial or
partial denial of (or inaction upon) the request for such an order.
24.
This agreement does not preclude any defendant, any counsel for
defendants, any agent for defendants, or any other person (regardless of
his or her state of residence) from disagreeing with any Second Circuit
decision or holding, from expressing such disagreement or otherwise
criticizing any Second Circuit decisions or holdings, or from seeking to
overturn or to limit or to have superseded any Second Circuit decision.
This paragraph does not, however, authorize any statement that could be
reasonably understood by decisionmakers or reviewers of decisions as
instructing or authorizing them not to follow any Second Circuit decision
or holding.
25.
Neither this settlement agreement nor any assertion by plaintiffs that
instructions were not issued in good faith shall be deemed to constitute a
waiver by defendants of either any applicable privileges or any applicable
protection of the work-product doctrine with respect to: (i) drafts of the
instructions required by paragraph 5; (ii) any recommendations or
deliberations concerning whether or how to promulgate any such
instruction; (iii) any recommendations or deliberations concerning whether
to appeal, seek rehearing, or seek certiorari with respect to the decision
or decisions subject to such instructions; (iv) any draft of, or
recommendations or deliberations concerning whether or how to issue, any
ruling or proposed ruling of acquiescence under
20 C.F.R. Secs.
404.985 and
416.1485; (vi)
any materials prepared in connection with or in anticipation of
litigation; or (vii) any predecisional materials concerning individual
cases, including but not limited to predecisional notes of Appeals Council
Administrative Appeals Judges, administrative law judges, or other
decisionmakers, and any communications between any such decisionmakers and
persons assigned to assist them in preparation of a decision or opinion in
an individual case. The omission of a class of privileged documents from
the foregoing list shall not give rise to an inference that defendants
have waived any privilege except to the extent (if any) that a privilege
is expressly waived by specific provision of this agreement. Nor does the
inclusion of any class of documents in this paragraph give rise to an
inference that such documents are privileged or that plaintiffs have
waived any rights with respect to such documents.
APPLICATION OF SECOND CIRCUIT DECISIONS TO SOCIAL SECURITY
ACT
DISABILITY BENEFIT CLAIMS OF NEW YORK RESIDENTS
Effective immediately, all persons who decide Social Security Act
disability benefit claims of New York State residents or who review such
decisions shall follow and apply the holdings of the United States Court
of Appeals for the Second Circuit, except when written instructions to the
contrary are issued pursuant to paragraphs D and E. This instruction
applies to all Second Circuit disability decisions except those that are
expressly designated not for publication.
Holdings of the Second Circuit Court of Appeals must be applied at all
levels of administrative review to all claims for title II and title XVI
disability benefits filed by New York State residents, unless written
instructions to the contrary are issued pursuant to paragraphs D and E.
You must apply those holdings in good faith and to the best of your
ability and understanding whether or not you view them as correct or
sound.
In general, a holding in a decision is a legal principle that is the basis
of the court's decision on any issue in the case. There may be more than
one holding in a decision. A holding must be applied whenever the legal
principle is relevant.
Not all of the discussion in a decision is a holding. For example, the
factual discussion in a decision is not a holding although it can help you
understand the holding by placing it in context. Also, in their decisions
courts may make observations or other remarks that are helpful in
understanding the court's reasoning. You are required to apply the
holdings, not those observations or other comments of the court.
Of course, you should continue to make sure that the decision whether a
claimant is disabled is an individualized decision based on the evidence
regarding that claimant.
C. Availability of Decisions and Instructions
To help ensure that decisionmakers and reviewers of decisions apply Second
Circuit holdings, SSA will do the following:
1.
SSA will provide each office of decisionmakers and reviewers of decisions
with a copy of the settlement approved by the Court in
Stieberger v. Sullivan.
2.
SSA will provide all decisionmakers and reviewers of decisions with a
Manual of Second Circuit disability
decisions (“Manual”)
containing excerpts of the principal holdings of the Second Circuit issued
before [XXXX date], the date that the settlement in
Stieberger was approved by the Court.
3.
SSA will provide each office of decisionmakers and reviewers of decisions
with a copy of each Second Circuit disability decision issued after [XXX
date] promptly after the decision is issued by the Court. Each such office
shall maintain a volume containing copies of these decisions. This volume
shall be readily accessible to decisionmakers and reviewers of
decisions.
4.
SSA will issue instructions to ODD decisionmakers and reviewers of
decisions about applying Second Circuit decisions rendered after [xxxx
date]. These instructions must be added to the
Manual as supplements. SSA may issue
instructions to OHA adjudicators.
You should familiarize yourself with the
Manual, with SSA's instructions on Second
Circuit holdings, and with Second Circuit decisions as they are
issued.
While SSA will take the steps described above to help you apply Second
Circuit holdings, you must apply the holdings even in the absence of an
instruction, and even if they are not included in the
Manual.
Example: You have become aware of a Second Circuit disability decision
(for example, a claimant draws it to your attention or you receive
notification of it from SSA), but you have not yet received an instruction
from SSA on how to apply the decision and it is not in the
Manual. You must apply the holding(s) of
that decision to all claims where it is relevant.
D. Instructions Regarding When Decisions Become Effective
1.
You must apply the holdings in a decision once the decision becomes
effective. A decision of the Second Circuit generally becomes effective 20
days after the decision is issued by the Court, unless a specific written
instruction is issued that requires the decision to be applied earlier or
later. If you have not received instructions about a particular Second
Circuit decision issued after the date of this instruction, consult with
your supervisor for further guidance about whether the decision has become
effective. (If you are an administrative law judge, you may inquire with
the Regional Office concerning the status of the decision.)
2.
As long as a Second Circuit decision is pending further court review, SSA
may instruct decisionmakers and reviewers of decisions not to apply some
or all holdings stated in that Second Circuit decision. In such instances
SSA will issue specific instructions explaining which holdings are not to
be applied and identifying the issues addressed by those holdings. When
such instructions are issued, decisionmaking and reviewing offices will
maintain a list of disability claims decisions that may be affected
because the Second Circuit holding is not being applied. Any notice sent
to claimants on the list, denying benefits in whole or in part, will
include the following language:
If you do not agree with this decision, you can appeal. You must ask for
an appeal within 60 days.
You should know that we decided your claim without applying all of what
the court said about the law in _________. __________ is a recent court
ruling that we do not consider final because it may be reviewed further by
the courts. If it becomes final, we may contact you again.
If you disagree with our decision in your case, do not wait for us to
contact you. You should appeal within 60 days of the date you receive this
notice. If you do not appeal within 60 days, you may lose benefits.
3.
When no further judicial review of a Second Circuit decision will occur,
SSA will promptly rescind any instructions issued under this paragraph D,
and will advise decisionmakers and reviewers of decisions about the final
decision in the case. SSA will also explain what action is to be taken,
including any reopenings, with respect to claimants whose cases may have
been affected by the instruction not to apply the Second Circuit decision
pending further court review.
E. Issuance and Rescission of Acquiescence Rulings
This instruction on application of Second Circuit decisions to disability
benefit claims does not prevent SSA from issuing or rescinding
acquiescence rulings, or relitigating issues under
20 C.F.R. 404.985
and
416.1485.
F. Questions Concerning this Instruction and Second Circuit Decision
This instruction is issued pursuant to the settlement agreement in
Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.). A
copy of the complete agreement is available in your office. Any questions
about applying Second Circuit decisions that you cannot resolve yourself
may be directed to your supervisors and, if more guidance is needed,
through supervisory channels to the Litigation Staff in SSA Central Office
in Baltimore, Maryland. In addition, a team of SSA personnel will visit
the New York ODD one month after you receive this instruction and
quarterly thereafter for 3 years to discuss any questions decisionmakers
and reviewers of decisions have about applying Second Circuit disability
decisions.
G. Binding Effect of This Instruction
This instruction is binding on all personnel, including state employees,
ALJs, Appeals Council Administrative Appeals Judges, quality assurance
staff, and all other personnel who process, render decisions on, or review
claims of New York residents for disability benefits under the Social
Security Act.
Because this instruction arises out of a lawsuit, it does not apply to
claims of any persons who do not reside in the State of New York. However,
this limitation does not lessen the extent to which court decisions are to
be applied to claims of persons who reside in any other state. This
limitation also should not be deemed to suggest that such decisions are
not given or should not be given proper consideration in any other
state.
HEADING
We have good news for you about your past claim for disability benefits.
We are writing to you about a court case that may affect you. Because of
this court case you may be entitled to money from Social Security. Please
read this letter carefully.
INFORMATION ABOUT THE COURT CASE
You may be entitled to Social Security or Supplemental Security Income
disability payments based on a past claim you filed. In a recent court
case called Stieberger v. Sullivan, we agreed to
look again at certain claims that were denied or where payments were
stopped. We believe that your claim may be one of those that we agreed to
look at again.
HOW TO ASK FOR A REVIEW
We will not look at your claim again unless you ask us to do so. If you
want us to do this, fill out the enclosed reply form that came with this
letter and mail it right away in the enclosed envelope. You have 180 days
from the day you received this letter to ask us to look at your claim
again, but don't wait. If you don't send the form back, we will not look
at your claim again. We will write to you when we receive your reply
form.
IF YOU NOW GET MONEY FROM SOCIAL SECURITY
Even if you get money from Social Security, we may still owe you more
money. Return the reply form in this letter within 180 days to ask us to
look at your past claim again.
PROTECTING YOUR RIGHTS
Sending in the enclosed reply form does not protect your rights on any
other claim for benefits. If you have a claim for benefits that we are
still considering or that we recently denied and you disagree with our
decision, you must follow the guidelines that we tell you about in the
notice on that claim.
IF YOU HAVE ANY QUESTIONS
If you have any questions, you may contact any Social Security Office. The
address and phone number of your local Social Security office are printed
at the top of this page. If you call or visit an office, please take this
letter with you. It will help us answer your questions.
FOR HELP
Additionally, if you have someone helping you with your claim, you should
contact him/her. You also may contact one of the following offices to
obtain a legal representative, or you may contact the lawyers in this
case. These offices are listed below.
OFFICES THAT WILL REFER YOU TO ORGANIZATIONS THAT PROVIDE FREE LEGAL
REPRESENTATION
New York City area:
Legal Services for New York City, (212) 431-7200, or
The Legal Aid Society, (212) 227-2755.
The Rest of New York State:
Greater Upstate Law Project, (800) 724-0490, or (800) 635-0355
OFFICE THAT WILL REFER YOU TO AN ATTORNEY WHO WILL CHARGE A FEE FOR
REPRESENTATION
Throughout New York State:
National Organization of Social Security Claimants' Representatives, (800)
431-2804, or (914) 735-8812
OFFICES OF THE LAWYERS THAT REPRESENTED CLAIMANTS IN THIS LAWSUIT
The Legal Aid Society of New York
Civil Division,
Civil Appeals & Law Reform Unit
11 Park Place
Room 1805
New York, New York 10007
(212)
406-0745Legal Services for the Elderly
130 W. 42nd Street
17th Floor
New York, New York 10036-7803
(212)
391-0120MFY Legal Services
35 Avenue A
New York,
New York 10009
(212) 475-8000
NOTICE OF AVAILABILITY OF RELIEF UNDER STIEBERGER V.
SULLIVAN
In Stieberger v. Sullivan, Civil Action No. 84 CIV
1302 (LBS) (S.D.N.Y.1990), the Court granted relief to a class of New York
residents whose Title II or Title XVI disability benefits were denied or
terminated. YOU ARE A MEMBER OF THE STIEBERGER
CLASS. Since you also have this separate lawsuit pending, you now need to
make a choice.
You can proceed with this individual lawsuit. If you do this, you will not
get relief as a STIEBERGER class member on the
claim before the court.
OR
You can request dismissal of your individual lawsuit and receive
consideration as a Stieberger class member. As a
Stieberger class member, you are entitled to
reopening of your claim by the Social Security Administration. In this
process, you may present any further evidence you wish to present in
relation to your claim. Once the Social Security Administration makes a
decision on your claim, you will have a right to both agency and judicial
review of the Social Security Administration's decision if you disagree
with it.
Defendant's counsel will be happy to give you a copy of the Court's order
in the Stieberger case. You may also contact the
following offices that were counsel for the class:
The Legal Aid Society
Civil Division, Civil Appeals & Law
Reform Unit
11 Park Place Room 1805
New York,
New York 10007
(212) 406-0745Legal Services for the Elderly
130 W. 42nd Street
17th Floor
New York, New York 10036-7803
(212)
391-0120MFY Legal Services
35 Avenue A
New York,
New York 10009
(212) 475-8000
They can answer any questions about the Stieberger
case that you may have.
____________________
Defendant's Counsel
Attachment B. July 2, 1992 Teletype From the Director, Litigation Staff, Office
of the Deputy Commissioner for Program
TELEGRAPHIC MESSAGE
Agency: HHS, SSA
Author: Gaye Wallace
Date:
July 2, 1992
Phone: (410) 965-1770
From: ODCP, Litigation Staff, Baltimore, MD
TO: SSARC in Region II
TO: All SSAARCSFOS/SSAARCSPGS in New York State
TO: New York State DDS
TO: SSAODCPLS (SAWNY)
TO: SSAOHACO (SAWDY)
TO: All SSAPSCS/PSCDRS in New York State
TO: ODIO
TO: All SSADOS/SSABOS/SSATSCS in New York State
TO: SSAOOMPI
TO: All SSAADS in New York State
TO: ALL SSAROPIR/SSADQBS
TO: All SSADPEQS/SSADPEQSOS
TO: All SSAOPIRS
TO: SSAOHARO in Region II
TO: All OHAHOS in New York State
TO: SSAOD
TO: SSADCO
TO: COS
TO: Chief Counsel, Region II
TO: (SSARO - Deliver)
IT-92-11
Emergency DI/SSI Instructions OD-92-071 (2782)
Published Instructions Will Follow Shortly
SUBJECT: Stieberger v. Sullivan Class Action
Lawsuit Settlement Agreement - Adjudication
Instructions—ACTION
INTRODUCTION
On June 18, 1992, Judge Sand, of the Southern District of New York, signed
the Stieberger v. Sullivan class action lawsuit
settlement agreement. In accordance with the provisions of the settlement
agreement, all state and federal adjudicators must comply with Second
Circuit holdings in adjudicating or reviewing claims of New York State
residents for disability benefits, as set forth below. POMS and
HALLEX instructions related to the 1985
Stieberger preliminary injunction (including POMS
DI 12586.001-095
(Transmittal No. 1, SSA Pub. No. 68-0412500, April 1986),
DI 32586.001-095
(Transmittal No. 1, SSA Pub. No. 68-0432500, April 1986),
DI 42586.001-015
(Transmittal No. 1, SSA Pub. No. 68-0442500, April 1986), and
HALLEX
HA 01540.013,
,
) are
hereby rescinded. Also rescinded are any instructions that could in any
way be interpreted as calling for nonacquiescence in holdings of the
Second Circuit in disability cases. (SSA does not believe such
instructions exist; this direction is simply precautionary).
The following instruction is taken verbatim from Attachment 1 of the
Stieberger settlement agreement, and will be
published for placement in the
“Manual of Second Circuit Disability Decisions”,
which is discussed below, within the next 3 months. In the meantime,
however, please use this teletyped instruction on how to apply Second
Circuit holdings in adjudicating or reviewing claims of New York State
residents. Please distribute a copy of this teletype to all decisionmakers
and reviewers of decisions as soon as possible.
SSA realizes that adjudicators and reviewers will have questions about
this. Please either get them to the Litigation Staff (3K26 Operations,
Baltimore MD 21235) via the New York Regional Office or accumulate them
for the first team visit to the New York ODD which will take place in
about one month. OHA personnel should route any questions through the
usual channels.
APPLICATION OF SECOND CIRCUIT DECISIONS TO SOCIAL SECURITY ACT DISABILITY
BENEFIT CLAIMS OF NEW YORK RESIDENTS
A.
General Rule
Effective immediately, all persons who decide Social Security Act
disability benefit claims of New York State residents or who review such
decisions shall follow and apply the holdings of the United States Court
of Appeals for the Second Circuit, except when written instructions to the
contrary are issued pursuant to paragraphs D and E. This instruction
applies to all Second Circuit disability decisions except those that are
expressly designated not for publication.
B.
How to Apply Holdings
Holdings of the Second Circuit Court of Appeals must be applied at all
levels of administrative review to all claims for title II and title XVI
disability benefits filed by New York State residents, unless written
instructions to the contrary are issued pursuant to paragraphs D and E.
You must apply those holdings in good faith and to the best of your
ability and understanding whether or not you view them as correct or
sound.
In general, a holding in a decision is a legal principle that is the basis
of the court's decision on any issue in the case. There may be more than
one holding in a decision. A holding must be applied whenever the legal
principle is relevant.
Not all of the discussion in a decision is a holding. For example, the
factual discussion in a decision is not a holding although it can help you
understand the holding by placing it in context. Also, in their decisions
courts may make observations or other remarks that are helpful in
understanding the court's reasoning. You are required to apply the
holdings, not those observations or other comments of the court.
Of course, you should continue to make sure that the decision whether a
claimant is disabled is an individualized decision based on the evidence
regarding that claimant.
C.
Availability of Decisions and Instructions
To help ensure that decisionmakers and reviewers of decisions apply Second
Circuit holdings, SSA will do the following:
1.
SSA will provide each office of decisionmakers and reviewers of decisions
with a copy of the settlement approved by the Court in
Stieberger v. Sullivan.
2.
SSA will provide all decisionmakers and reviewers of decisions with a
Manual of Second Circuit disability
decisions (“Manual”)
containing excerpts of the principal holdings of the Second Circuit issued
before June 18, 1992, the date that the settlement in
Stieberger was approved by the Court.
3.
SSA will provide each office of decisionmakers and reviewers of decisions
with a copy of each Second Circuit disability decision issued after June
17, 1992 promptly after the decision is issued by the Court. Each such
office shall maintain a volume containing copies of these decisions. This
volume shall be readily accessible to decisionmakers and reviewers of
decisions.
4.
SSA will issue instructions to ODD decisionmakers and reviewers of
decisions about applying Second Circuit decisions rendered after June 17,
1992. These instructions must be added to the
Manual as supplements. SSA may issue
instructions to OHA adjudicators.
You should familiarize yourself with the
Manual, with SSA's instructions on Second
Circuit holdings, and with Second Circuit decisions as they are
issued.
While SSA will take the steps described above to help you apply Second
Circuit holdings, you must apply the holdings even in the absence of an
instruction, and even if they are not included in the
Manual.
Example: You have become aware of a Second Circuit disability decision
(for example, a claimant draws it to your attention or you receive
notification of it from SSA), but you have not yet received an instruction
from SSA on how to apply the decision and it is not in the
Manual. You must apply the holding[s] of
that decision to all claims where it is relevant.
D.
Instructions Regarding When Decisions Become Effective
1.
You must apply the holdings in a decision once the decision becomes
effective. A decision of the Second Circuit generally becomes effective
203 days after the decision is issued by the Court, unless a specific
written instruction is issued that requires the decision to be applied
earlier or later. If you have not received instructions about a particular
Second Circuit decision issued after the date of this instruction, consult
with your supervisor for further guidance about whether the decision has
become effective. (If you are an administrative law judge, you may inquire
with the Regional Office concerning the status of the decision.)
2.
As long as a Second Circuit decision is pending further court review, SSA
may instruct decisionmakers and reviewers of decisions not to apply some
or all holdings stated in that Second Circuit decision. In such instances
SSA will issue specific instructions explaining which holdings are not to
be applied and identifying the issues addressed by those holdings. When
such instructions are issued, decisionmaking and reviewing offices will
maintain a list of disability claims decisions that may be affected
because the Second Circuit holding is not being applied. Any notice sent
to claimants on the list, denying benefits in whole or in part, will
include the following language:
If you do not agree with this decision, you can appeal. You must ask for
an appeal within 60 days.
You should know that we decided your claim without applying all of what
the court said about the law in . is a recent court ruling that we do not
consider final because it may be reviewed further by the courts. If it
becomes final, we may contact you again.
If you disagree with our decision in your case, do not wait for us to
contact you. You should appeal within 60 days of the date you receive this
notice. If you do not appeal within 60 days, you may lose benefits.
3.
When no further judicial review of a Second Circuit decision will occur,
SSA will promptly rescind any instructions issued under this paragraph D,
and will advise decisionmakers and reviewers of decisions about the final
decision in the case. SSA will also explain what action is to be taken,
including any reopenings, with respect to claimants whose cases may have
been affected by the instruction not to apply the Second Circuit decision
pending further court review.
E.
Issuance and Rescission of Acquiescence Ruling
This instruction on application of Second Circuit decisions to disability
benefit claims does not prevent SSA from issuing or rescinding
acquiescence rulings, or relitigating issues under
20 C.F.R. 404.985
and
416.1485.
F.
Questions Concerning this Instruction and Second Circuit Decisions
This instruction is issued pursuant to the settlement agreement in
Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.). A
copy of the complete agreement is available in your office. Any questions
about applying Second Circuit decisions that you cannot resolve yourself
may be directed to your supervisors and, if more guidance is needed,
through supervisory channels to the Litigation Staff in SSA Central Office
in Baltimore, Maryland. In addition, a team of SSA personnel will visit
the New York ODD one month after you receive this instruction and
quarterly thereafter for 3 years to discuss any questions decisionmakers
and reviewers of decisions have about applying Second Circuit disability
decisions.
G.
Binding Effect of This Instruction
This instruction is binding on all personnel, including state employees,
ALJs, Appeals Council Administrative Appeals Judges, quality assurance
staff, and all other personnel who process, render decisions on, or review
claims of New York residents for disability benefits under the Social
Security Act.
Because this instruction arises out of a lawsuit, it does not apply to
claims of any persons who do not reside in the State of New York. However,
this limitation does not lessen the extent to which court decisions are to
be applied to claims of persons who reside in any other state. This
limitation also should not be deemed to suggest that such decisions are
not given or should not be given proper consideration in any other
state.
|
|
__________________________________ |
|
|
Jean H. Hinckley,
Director,
ODCP Litigation Staff
|
File Code: HA-4-7
Published instructions are targeted to reach users by October 2,
1992.
Attachment C. Manual of Second Circuit Disability Decisions
Manual of Second
Circuit Disability Decisions
MANUAL
OF SECOND CIRCUIT
DISABILITY DECISIONS
MANUAL OF SECOND CIRCUIT DISABILITY DECISIONS
TABLE OF CONTENTS
|
Preface |
ii |
|
Instruction |
iii |
|
Credibility |
1 |
|
Credibility — Demeanor; ALJ Observations |
3 |
|
Cross Examination and Testimony of Witnesses and Authors of Adverse Reports |
4 |
|
Duration of Impairments |
6 |
|
Duty to Develop Record |
7 |
|
Findings Requirement — What Must be in a Disability Decision |
10 |
|
Impairments — Particular Impairments |
12 |
|
Medical Evidence |
15 |
|
Onset of Disability |
19 |
|
Pain |
21 |
|
Post Hearing Development |
25 |
|
Residual Functional Capacity Assessment |
26 |
|
Sedentary Work |
28 |
|
Severe / Non-Severe Impairments |
30 |
|
Shifting Burden of Proof |
31 |
|
Vocational Considerations — Medical-Vocational Guidelines (Grid) |
32 |
|
Vocational Considerations — Expert Testimony |
35 |
|
Vocational Considerations — Employability |
37 |
|
Weight to be Accorded Other Agency Findings on Disability |
38 |
PREFACE
This Manual is being issued as part of the settlement agreement in
Stieberger v. Sullivan. It excerpts principal
holdings of the Second Circuit Court of Appeals as of
June 18, 1992 concerning standards and
procedures for determining disability issued by the Court. The Manual does
not contain all holdings of the Second Circuit. Following this preface the
Manual includes an instruction issued as part of the
Stieberger settlement that explains how holdings
are to be applied and describes the ways in which SSA will inform
personnel of Second Circuit decisions issued after
June 18, 1992. A copy of the full
settlement in Stieberger has been distributed to
all offices that adjudicate or review the adjudication of claims filed by
New York State residents.
Many of the quotations excerpted in this Manual discuss how claims should
be handled at the Administrative Law Judge (ALJ) or Appeals Council level
and thus may not have direct applicability to prior decisionmaking levels
(e.g., cases dealing with
cross-examination). Those quotations are nevertheless available in this
Manual for decisionmakers at prior levels both to provide information on
how claims are developed and decided in the Office of Hearings and Appeals
and because, in some instances, the specific holdings of how ALJs should
handle cases may help illuminate a more general principle that also
applies at the DDS level.
Accordingly, cases or sections of this Manual which have more impact on
decisionmaking at the Office of Hearings and Appeals level as opposed to
the Office of Disability Determinations level have been asterisked.
APPLICATION OF SECOND CIRCUIT DECISIONS TO SOCIAL SECURITY ACT DISABILITY
BENEFIT CLAIMS OF NEW YORK RESIDENTS
A.
General Rule
Effective immediately, all persons who decide Social Security Act
disability benefit claims of New York State residents or who review such
decisions shall follow and apply the holdings of the United States Court
of Appeals for the Second Circuit, except when written instructions to the
contrary are issued pursuant to paragraphs D and E. This instruction
applies to all Second Circuit disability decisions except those that are
expressly designated not for publication.
B.
How to Apply Holdings
Holdings of the Second Circuit Court of Appeals must be applied at all
levels of administrative review to all claims for title II and title XVI
disability benefits filed by New York State residents, unless written
instructions to the contrary are issued pursuant to paragraphs D and E.
You must apply those holdings in good faith and to the best of your
ability and understanding whether or not you view them as correct or
sound.
In general, a holding in a decision is a legal principle that is the basis
of the court's decision on any issue in the case. There may be more than
one holding in a decision. A holding must be applied whenever the legal
principle is relevant.
Not all of the discussion in a decision is a holding. For example, the
factual discussion in a decision is not a holding although it can help you
understand the holding by placing it in context. Also, in their decisions
courts may make observations or other remarks that are helpful in
understanding the court's reasoning. You are required to apply the
holdings, not those observations or other comments of the court.
Of course, you should continue to make sure that the decision whether a
claimant is disabled is an individualized decision based on the evidence
regarding that claimant.
C.
Availability of Decisions and Instructions
To help ensure that decisionmakers and reviewers of decisions apply Second
Circuit holdings, SSA will do the following:
1.
SSA will provide each office of decisionmakers and reviewers of decisions
with a copy of the settlement approved by the Court in
Stieberger v. Sullivan.
2.
SSA will provide all decisionmakers and reviewers of decisions with a
Manual of Second Circuit disability decisions (“Manual”)
containing excerpts of the principal holdings of the Second Circuit issued
before June 18, 1992, the date that the
settlement in Stieberger was approved by the Court.
3.
SSA will provide each office of decisionmakers and reviewers of decisions
with a copy of each Second Circuit disability decision issued after
June 17, 1992 promptly after the
decision is issued by the Court. Each such office shall maintain a volume
containing copies of these decisions. This volume shall be readily
accessible to decisionmakers and reviewers of decisions.
4.
SSA will issue instructions to ODD decisionmakers and reviewers of
decisions about applying Second Circuit decisions rendered after
June 17, 1992. These instructions must
be added to the Manual as supplements. SSA may issue instructions to OHA
adjudicators.
You should familiarize yourself with the Manual, with SSA's instructions
on Second Circuit holdings, and with Second Circuit decisions as they are
issued.
While SSA will take the steps described above to help you apply Second
Circuit holdings, you must apply the holdings even in the absence of an
instruction, and even if they are not included in the Manual.
Example: You have become aware of a
Second Circuit disability decision (for example, a claimant draws it to
your attention or you receive notification of it from SSA) but you have
not yet received an instruction from SSA on how to apply the decision and
it is not in the Manual. You must apply the holding(s) of that decision to
all claims where it is relevant.
D.
Instructions Regarding When Decisions Become Effective
1.
You must apply the holdings in a decision once the decision becomes
effective. A decision of the Second Circuit generally becomes effective 20
days after the decision is issued by the Court, unless a specific written
instruction is issued that requires the decision to be applied earlier or
later. If you have not received instructions about a particular Second
Circuit decision issued after the date of this instruction, consult with
your supervisor for further guidance about whether the decision has become
effective. (If you are an administrative law judge, you may inquire with
the Regional Office concerning the status of the decision.)
2.
As long as a Second Circuit decision is pending further court review, SSA
may instruct decisionmakers and reviewers of decisions not to apply some
or all holdings stated in that Second Circuit decision. In such instances
SSA will issue specific instructions explaining which holdings are not to
be applied and identifying the issues addressed by those holdings. When
such instructions are issued, decisionmaking and reviewing offices will
maintain a list of disability claims decisions that may be affected
because the Second Circuit holding is not being applied. Any notice sent
to claimants on the list, denying benefits in whole or in part, will
include the following language:
If you do not agree with this decision, you can appeal. You must ask for
an appeal within 60 days.
You should know that we decided your claim without applying all of what
the court said about the law in __________. ___________ is a recent court
ruling that we do not consider final because it may be reviewed further by
the courts. If it becomes final, we may contact you again.
If you disagree with our decision in your case, do not wait for us to
contact you. You should appeal within 60 days of the date you receive this
notice. If you do not appeal within 60 days, you may lose benefits.
3.
When no further judicial review of a Second Circuit decision will occur,
SSA will promptly rescind any instructions issued under this paragraph D,
and will advise decisionmakers and reviewers of decisions about the final
decision in the case. SSA will also explain what action is to be taken,
including any reopenings, with respect to claimants whose cases may have
been affected by the instruction not to apply the Second Circuit decision
pending further court review.
E.
Issuance and Rescission of Acquiescence Rulings
This instruction on application of Second Circuit decisions to disability
benefit claims does not prevent SSA from issuing or rescinding
acquiescence rulings, or relitigating issues under
20 C.F.R. 404.985
and
416.1485.
F.
Questions Concerning this Instruction and Second Circuit Decisions
This instruction is issued pursuant to the settlement agreement in
Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.). A
copy of the complete agreement is available in your office. Any questions
about applying Second Circuit decisions that you cannot resolve yourself
may be directed to your supervisors and, if more guidance is needed,
through supervisory channels to the Litigation Staff in SSA Central Office
in Baltimore, Maryland. In addition, a team of SSA personnel will visit
the New York ODD one month after you receive this instruction and
quarterly thereafter for 3 years to discuss any questions decisionmakers
and reviewers of decisions have about applying Second Circuit disability
decisions.
G.
Binding Effect of This Instruction
This instruction is binding on all personnel, including state employees,
ALJs, Appeals Council Administrative Appeals Judges, quality assurance
staff, and all other personnel who process, render decisions on, or review
claims of New York residents for disability benefits under the Social
Security Act.
Because this instruction arises out of a lawsuit, it does not apply to
claims of any persons who do not reside in the State of New York. However,
this limitation does not lessen the extent to which court decisions are to
be applied to claims of persons who reside in any other state. This
limitation also should not be deemed to suggest that such decisions are
not given or should not be given proper consideration in any other
state.
CREDIBILITY
1.
Evaluation of credibility in general
Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979),
CCH 16,657
"The Secretary is not obliged to accept without question the credibility
of such subjective evidence . . . the Administrative Law Judge has
discretion to evaluate the credibility of a claimant and to arrive at an
independent judgment, and other evidence, in light of medical findings
regarding the true extent of pain alleged by the claimant.
2.
Specific findings on credibility required
* Williams on behalf of Williams v. Bowen, 859 F.2d
255 (2d Cir. 1988).
"As a fact finder the ALJ is free to accept or reject testimony like that
given by Joyce and Loretta Williams. A finding that the witness is not
credible must nevertheless be set forth with sufficient specificity to
permit intelligible plenary review of the record. Carroll v.
Secretary of Health and Human Servs., Cir. 705 F.2d 638 (2d
1983). The failure to make credibility findings regarding the critical
testimony fatally undermines the Secretary's argument that there is
substantial evidence adequate to support his conclusion that claimant is
not under a disability. See
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984).
Dumas v. Schweiker, 712 F.2d 1545 (2d Cir. 1983), 2
S.S.R.S. 362, CCH 14,650
“The Secretary is entitled to rely not only on what the record says,
but also on what it does not say. Rutherford v.
Schweiker, 685 F.2d at 63; Berry v.
Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) (per curiam). The
Secretary is entitled to rely on the medical record and his evaluation of
claimant's credibility in determining whether the claimant suffers from
disabling pain. Rutherford v. Schweiker, 685 F.2d
at 63; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.
1979). . . . Miles v. Harris, 645 F.2d at
124.'”
3.
Assessing credibility of claimant with a good work record
Rivera v. Schweiker, 717 F.2d 719 (2d Cir. 1983), 3
S.S.R.S. 21, CCH 14,771
“Second, any evidence of a desire by Rivera to work would merely
emphasize the positive value of his 32-year employment history. A claimant
with a good work record is entitled to substantial credibility when
claiming an inability to work because of a disability.
Singletary v. Secretary of Health, Education and
Welfare, 623 F.2d 217, 219 (2d Cir. 1980).”
4.
Duty of ALJ to consider possible bias of evidence source
Cullinane v. Sec. of Health and Human Services, 728
F.2d 137 (2d Cir. 1984), 4 S.S.R.S. 164, CCH 15,137
It can hardly be questioned that a report submitted by a witness whose
self-interest may well have dictated its contents cannot and should not be
permitted to constitute substantial evidence. Echevarria v.
Secretary of Health and Human Services, supra." [Claimant was
suing treating physician for malpractice].
References:
Social Security Rulings: SSR
88-13, Evaluation Of Pain and Other Symptoms
Social Security Regulations:
20 CFR §§
404.1529 and
416.929
*
CREDIBILITY — DEMEANOR; ALJ OBSERVATIONS
1.
Observations of claimant's demeanor entitled to limited weight
De Leon v. Sec. of Health and Human Services, 734
F.2d 930, (2d Cir. 1984), 5 S.S.R.S. 232, CCH 15,100
“Finally, insofar as the ALJ relied on factors such as De Leon's
demeanor or appearance, such factors really do not contribute toward
meeting the substantial evidence burden in cases of this nature. See
Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir.
1981). As we said in Gold v. Secretary of Health, Education and
Welfare, 463 F.2d 38, 41 n. 6 (2d Cir. 1972), '[t]o receive
benefits . . . one need not be completely helpless or unable to
function....' The applicant for disability need not be 'a total 'basket
case,' Timmerman v. Weinberger, 510 F.2d 439, 442
(8th Cir. 1975). However De Leon may have appeared at his hearing, we
cannot ignore the overwhelming evidence that he has severe, disabling
psychological and other problems.”
Varela v. Sec. of Health and Human Services, 711
F.2d 482 (2d Cir. 1983), 2 S.S.R.S. 289, CCH 14,649
“The ALJ's finding that appellant is not disabled by her psychiatric
condition was based on her demeanor at the hearing and her failure to
testify as to any continuing psychiatric problem. Evidently, the ALJ
disregarded the medical report of Dr. Garcia, and the concern of Dr.
Braaf, in favor of his own observations during the hearing.... Although we
do not reject the possibility that on the basis of his own direct
observations an ALJ may disregard an examining psychiatrist's diagnosis,
nevertheless, before doing so the ALJ should make a more complete and
revealing record than has been established here.”
Carroll v. Sec. of Health and Human Services, 705
F.2d 638 (2d Cir. 1983), 2 S.S.R.S. 10, CCH 14,549
“The ALJ's observation that Carroll sat through the hearing without
apparent pain, being that of a lay person, is entitled to but limited
weight, see Freeman v. Schweiker, 681 F.2d 727, 731
(11th Cir. 1982), and since only a 40-minute period was involved it is not
inconsistent with the medical evidence and Carroll's own
testimony.”
Rivera v. Schweiker, 717 F.2d 719 (2d Cir.
1983)
“In assessing Rivera's allegations of pain, the ALJ placed
principal, if not sole, reliance upon his observations at the hearing. The
ALJ's observations, under these circumstances, are entitled to limited
weight. See Carroll v.
Secretary of Health and Human Services, 705 F.2d 638, 643 (2d
Cir. 1983).”
*
CROSS-EXAMINATION AND TESTIMONY
OF WITNESSES AND AUTHORS OF ADVERSE REPORTS
1.
Cross examination of medical advisor [medical expert]
McLaughlin v. Sec. of the HEW, 612 F.2d 701 (2d
Cir. 1980)
“While we agree with this conclusion [that the agency decision is
supported by substantial evidence] we reverse because the ALJ imposed
undue limitations on cross-examination of the 'medical advisor' with
respect to a highly material point.”
2.
Cross examination of author of adverse report and presentation of rebuttal
evidence
Townley v. Heckler, 748 F.2d 109, 113 (2d Cir.
1984), 7 S.S.R.S. 236, 240, CCH 15,662
“A disability benefits claimant has a right to cross examine the
author of an adverse report and to present rebuttal evidence.
Treadwell v. Schweiker, 698 F.2d 137, 143 (2d Cir.
1983); Allison v. Heckler, 711 F.2d 145, 147 (10th
Cir. 1983.); Gullo v. Califano, 609 F.2d 649 (2d
Cir. 1979); Lonzollo v. Weinberger, 534 F.2d 712,
714 (7th Cir. 1976). Appellant's attorney, however, was not informed of
the need for expert vocational evidence until after the report was filed
with the ALJ. Further, appellant was denied an opportunity to examine that
vocational report, and, despite claimant's request, no additional hearing
was held. Although the ALJ asked appellant's attorney to submit objections
and additions to the interrogatories posed to the vocational expert, there
is no evidence that the attorney's suggestions were ever forwarded.
Moreover, appellant was denied his due process rights to cross-examine the
expert and to present rebuttal evidence.”
3.
Testimony from lay witness on claimant's pain and inability to
function
Lopez v. Secretary of HHS, 728 F.2d 148, 150 (2d
Cir. 1984)
“Moreover, it was simply unfair to preclude the testimony of a sole
corroborative witness as cumulative by assuring appellant that her
testimony would be accepted and then rejecting it as incredible. . . [T]he
[lay] witness was competent to testify as to her observations - of the
claimant's evident pain, . . . and her hearing of the claimant's
contemporaneous state of mind declarations concerning pain. . . . The ALJ
should therefore have allowed appellant's witness to testify. Appellant
was unrepresented and speaks little English. - The prospective witness, a
young woman, apparently has regular contact with appellant, probably
speaks English, and could have provided effective testimony about
appellant's inability to function on a daily basis.”
4.
Duty to instruct pro se claimant of right to subpoena and cross-examine a
treating physician
Cullinane v. Secretary of HHS, 728 F.2d 137 (2d
Cir. 1984)
“[The ALJ] failed, however, to pursue [the pro se claimant's]
assertion that [the treating physician's] report was unreliable or to
question [the treating physician] concerning the contradiction between the
November 6th [1980] prognosis and the two reports filed in October, 1980.
In addition the ALJ neglected to instruct the pro se claimant that she had
the right to subpoena and cross-examine a treating physician whose
documentary evidence had been called into question. [Claimant was suing
the treating physician for malpractice.] As a result, the evidence
concerning the 'quality and trustworthiness' of the challenged oral
surgeon was never sufficiently developed. Fernandez v.
Schweiker, 650 F.2d 5, 8 (2d Cir. 1981).”
References:
Richardson v. Perales, 402 U.S. 389 (1971)
SSR 71-53c.
DURATION OF IMPAIRMENTS
Moore v. Sec. of the United States Department of Health and
Human Services, 778 F.2d 127 (2d Cir. 1985), 12 S.S.R.S. 4, 7,
CCH 16,516
“The thrust of the Secretary's position on appeal is simply that
Moore has failed to show that his condition in the twelve months prior to
April of 1982 continuously precluded him from engaging in his past
relevant work as a porter . . . . The fact that Moore responded at least
somewhat to treatment simply is not persuasive evidence to the contrary:
following closely on the heels of each advance was a relapse into a
worsening condition. Although Moore's various discharge summaries noted
improvement in his condition, none offered cause for vocational optimism.
Cf. Morrone v. Secretary of Health, Education and
Welfare, 372 F.Supp. 794, 800 (E.D.Pa. 1974).”
DUTY TO DEVELOP RECORD
1.
Affirmative duty to assist pro se claimant
Cullinane v. Sec. of Health and Human Services, 728
F.2d 137 (2d Cir. 1984), 4 S.S.R.S. 164, CCH 15,137
“An ALJ has an affirmative duty to assist a pro se claimant and 'to
scrupulously and conscientiously probe into, inquire of, and explore for
all relevant facts.' Echevarria v. Secretary of Health and
Human Services, 685 F.2d 751, 755 (2d Cir. 1982), citing
Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.
1980). A reviewing court is charged with the responsibility of ensuring
the evidence is both 'developed and considered.'”
2.
Lay representation
Echevarria v. Secretary, 685 F.2d 751 (2d Cir.
1982)
“[A lay person's] nominal representation . . . did not suspend the
ALJ's special duty to pro se claimants, [lay person] only intended to
testify and not act as a representative. . . . [a lay person's] nominal
representation, Notwithstanding the ALJ was under a special duty to
protect Echevarria's rights by ensuring that the hearing be 'fair and
adequate.”
3.
Right to counsel
Robinson v. Secretary, 733 F.2d 255 (2d Cir. 1984),
5 S.S.R.S. 96.
"The claimant is entitled to be represented by counsel at the hearing and
the ALJ must ensure that the claimant is aware of this right.
See Cutler v.
Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975).
4.
Failure to develop the record fully results in lack of fair hearing
Robinson v. Secretary, 733 F.2d 255 (2d Cir. 1984),
5 S.S.R.S. 96.
“In sum, the failure of the ALJ to develop the record fully and to
afford [the claimant] . . . who was unrepresented by counsel, an adequate
opportunity to do so, denied [the claimant] . . . a fair hearing.
Accordingly, we reverse the order of the district court with directions to
remand the case to the Secretary for further proceedings consistent with
this opinion.”
5.
Duty to probe frequency and severity of episodic impairments (e.g.,
asthma) for pro se claimant
Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir.
1990)
“The ALJ failed to probe into the frequency and severity of [Cruz's]
attacks. . . . The ALJ did not explore what circumstances had triggered
Cruz's attacks, how often he had been treated or when he had last visited
the emergency room. Instead, the ALJ only asked at which hospital Cruz had
been treated, and yet did not seek to obtain those hospital records.
Further the ALJ never inquired as to whether the nature of Cruz's asthma
had changed over the years. Although we do not at all suggest that the ALJ
was indifferent to Cruz's condition, it is our view that he did not
adequately fulfill his 'affirmative obligation to assist this pro se
claimant in developing [his] case.”
6.
ALJ duty to notify pro se claimant of opportunity to contact treating
physician for a “more detailed statement”
* Hankerson v. Harris, 635 F.2d 893 (2d Cir.
1980)
“The ALJ also erred in failing to advise plaintiff that he should
obtain a more detailed statement from his treating physician. . . . Before
the ALJ can reject an opinion of a pro se claimant's treating physician
because it is conclusory, basic principles of fairness require that he
inform the claimant of his proposed action and give him an opportunity to
obtain a more detailed statement”
* Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir.
1990)
"Although the ALJ sent a letter to one of several treating physicians four
days after the hearing, requesting a more detailed explanation of the
causes of Cruz's inability to work, he clearly failed to advise Cruz, a
pro se claimant, that he should obtain a more detailed statement from [the
treating physician]. Had Cruz been apprised of the ALJ's skepticism, he,
unlike the ALJ, may have been persistent about obtaining his medical
records and a detailed statement from [the treating physician].
7.
Duty to inquire about a prior period of disability
Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir.
1984)
"[W]e find that [the ALJ] failed to adequately develop the record so as to
provide Mimms with a full and fair hearing. Specifically, despite the fact
that the claimant testified that he had been determined disabled in June
of 1977 and had received disability benefits until October 1980, when he
voluntarily attempted to resume gainful employment, the ALJ failed to ask
one question of the claimant about his prior disability and its
relationship to the disability claim he was now pursuing before the ALJ.
The existence of a prior established disability is highly relevant when
the nature of that disability appears to be the very same cause of the
alleged disability then under examination.
8.
Duty to obtain documents identified by pro se claimant
Robinson v. Secretary, 733 F.2d 255 (2d Cir.
1984)
“[W]e conclude that Robinson was not afforded a fair hearing by
reason of the ALJ's failure to develop the record. The record is replete
with instances where the claimant referred to missing documents and the
ALJ failed to follow up the claimant's inquiries.”
9.
Duty to pro se claimant to inquire about symptoms
Echevarria v. Secretary, 685 F.2d 751 (2d Cir.
1982)
“The ALJ failed adequately to explore the nature and extent of
Echevarria's subjective symptoms. A claimant's testimony about pain and
suffering ”is not only probative on the issue of disability, but
“may serve as the basis for establishing disability, even when such
pain is unaccompanied by positive clinical findings or other 'objective'
medical evidence. Hankerson,
supra 636 F.2d at 895.”
10.
Duty to inquire about requirements and nature Of pro se claimant's past
relevant work
Donato v. Secretary of HHS, 721 F.2d 414, 419 (2d
Cir. 1983)
“[B]efore deciding whether Mrs. Donato was physically capable of
resuming her factory work, the ALJ, in fulfillment of his 'heightened
duty' to explore for all relevant facts, Echevarria v.
Secretary of HHS, 685 F.2d 751, 755 (2d Cir. 1982), should
have inquired further into the nature and extent of the physical exertion
required of her by her former job, the number of hours she worked each
day, the length of time she stood for any one period, the distance she
would be required to walk in commuting to work, and the
like.”
Echevarria v. Secretary, 685 F.2d 751, 756 (2d Cir.
1982)
“An inquiry also should have been conducted in to whether
Echevarria's former employment was made possible only by special
accommodation on the part of his employer that would not be matched by
potential future employers. The record fails to disclose the reasons for
Echevarria's increasingly frequent absences and his having been given
easier tasks as his ailments became more serious.”
11.
Duty to claimant to seek clarification where medical document is
illegible
Cutler v. Weinberger, 516 F.2d 1282 (2d Cir.
1975)
“Many of the medical records included in the case are illegible,
either because of the poor quality of the reproduction, the handwriting of
the physician, or both. Under the circumstances this court has no way to
determine whether the Secretary fully understood some of the medical
reports before him. Where the medical records are crucial to the
plaintiff's claim, illegibility of important evidentiary material has been
held to warrant a remand for clarification and
supplementation”
References:
Social Security Regulations:
20 CFR §§
404.944,
404.951,
416.1444,
404.950,
416.1450, and
416.1451
Social Security Act: Sections
205(b) and
1631(c)(1)
FINDINGS REQUIREMENT — WHAT MUST BE IN A DISABILITY DECISION
1.
Specific findings on credibility required
* Williams on behalf of Williams v. Bowen, 859 F.2d
255 (2d Cir. 1988).
"[A]n ALJ is free to accept or reject testimony like that given by Joyce
and Loretta Williams. A finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to permit
intelligible plenary review of the record. Carroll v. Secretary
of Health and Human Servs., 705 F.2d 638 (2d Cir, 1983). The
failure to make credibility findings regarding the Williams' critical
testimony fatally undermines the Secretary's argument that there is
substantial evidence adequate that to support his conclusion that claimant
is not under a disability. See
Ferraris v. Heckler, 728 F.2d 582, 587 (2nd Cir.
1984).
2.
Specific findings regarding testimony of pain required
Carroll v. Secretary of HHS, 705 F.2d 638 (2d Cir.
1983).
“His testimony regarding pain was also corroborated to some extent
by the doctors who examined him, none of whom indicated any doubts about
his credibility. Although the ALJ was not required to credit Carroll's
testimony, he would normally be expected to note his rejection of it in
whole or part. Yet he failed to indicate any such disbelief, resting his
finding of capability of sedentary work on 'the medical
evidence.'”
Donato v. Secretary of HHS, 721 F.2d 414 (2d Cir.
1983)
“[T]he ALJ must make credibility findings when there is conflicting
evidence with respect to a material issue such as pain or other
disability. If the claimant is found credible, his or her subjective pain
may not be disregarded.”
3.
Specific findings on claimant's RFC required
Ferraris v. Secretary of Health and Human Services,
728 F.2d 582 (2d Cir. 1984), 4 S.S.R.S. 192, CCH 15,169
[I]n making any determination as to a claimant's disability, the Secretary
must explain what physical functions the claimant is capable of
performing. . . [T]he crucial factors in any determination must be set
forth with sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence."
White v. Sullivan, 910 F.2d 64 (2d Cir. 1990)
“Failure to specify the basis for a conclusion as to residual
functional capacity is reason enough to vacate a decision of the
Secretary.”
4.
Specific findings required with respect to each impairment alleged
Aponte v. Secretary of HHS, 728 F.2d 588, 593 (2d
Cir. 1984)
"[W]here the ALJ has stated no findings or conclusions with respect to a
claim of disabling impairment, especially one as to which the claimant
arguably has demonstrated the symptoms described in the Secretary's
regulations, we cannot determine whether the ALJ'S conclusion was based on
a correct application of the law and whether there is substantial evidence
in the record to support.
5.
Rationale regarding listed impairment required
Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.
1982)
“[I]n future cases in which the disability claim is premised upon
one or more listed impairments of Appendix 1, the Secretary should set
forth a sufficient rationale in support of his decision to find or not to
find a listed impairment.”
6.
Specific findings on transferability of skills required
Ferraris v. Heckler, 728 F.2d 582 (2d Cir.
1984)
“[P]ast experience as a supervisor may not necessarily indicate the
possession of skills, or that they are transferrable. Specific findings on
these issues are required.”
7.
Specific findings regarding whether claimant is literate and able to
communicate in English required
Vega v. Harris, 636 F.2d 900, 903-04 (2d Cir.
1981)
“Under the [Medical Vocational guidelines] the ALJ's findings of
fact in this case are inadequate with respect to Vega's education. The ALJ
did not determine, as required under the circumstances whether Vega was
literate and whether she was able to communicate in English. See
20 C.F.R. §§
404.1507(f),
416.907(f)(1980)
[now 20 C.F.R.
§§ 404.1564(b)(5);
416.964(b)(5)].
The circumstances are that appellant's less than four years of formal
education took place in Puerto Rico and that, although she has lived in
this country some thirty years, the hearing had to be conducted with a
Spanish-English interpreter. . . .[A] brief exchange [in English, between
claimant and ALJ], of course, is not a substitute for a determination on
the question of ability to communicate in English.”
IMPAIRMENTS — PARTICULAR IMPAIRMENTS
1.
Listing of Impairments, in general
Williams on behalf of Williams v. Bowen, 859 F.2d
255, 260 (2d Cir. 1988)
“[T]he Secretary must be mindful that 'the Social Security Act is a
remedial statute, to be broadly construed and liberally applied.'”
Gold v. Secretary of Health, Educ. and Welfare, 463
F.2d 38, 41 (2d Cir. 1972). Moreover, “a claimant need not be an
invalid to be found disabled under Title XVI of the Social Security
Act.” Murdaugh v. Secretary of Health and Human
Servs., 837 F.2d 99, 102 (2d Cir. 1988) (citation omitted).
The Secretary read the requirements in the Listing of Impairments in a
constricted and crabbed manner, forgetting in this case that this remedial
statute is to be broadly construed.
2.
Visual Impairment
McBrayer v. Secretary of HHS, 711 F.2d 795, 798 (2d
Cir. 1983)
“The statements by McBrayer in previous applications for disability
are not substantial evidence that he did not qualify for benefits. The
forms were filled out by representatives of the Social Security
Administration[mdash ]McBrayer could not even read the answers he was
signing[mdash ]and, even if they accurately reflect the answers he gave to
SSA questions, they are explicable in light of his psychological
unwillingness to admit disability or his confusion, shared with the
Secretary as to the distinction between legal blindness and inability to
perform a sufficient quantity of tasks as to be
unemployable.”
3.
Asthma
See Cruz v.
Sullivan, 912 F.2d 8, 11-12 (2d Cir. 1990),
supra, at page 7 (describing duty to
probe into frequency and severity of asthma attacks).
4.
Cardiovascular System
State of New York v. Sullivan, 906 F.2d 910, 919
(2d Cir. 1990)
“[T]he Secretary should consider all available relevant evidence
when evaluating claims of ischemic heart disease.”
“Since Congress left no doubt that individualized treatment of
disability claims is the rule, sole reliance on the treadmill test results
to the exclusion of other available relevant evidence clearly violates
Congress's requirement of particularized treatment and significant input
from treating physicians.”
See also District Court Order in
State of New York v. Sullivan; HALLEX Temporary
Instruction 5-____; POMS
DI 32594.000
ff.
5.
Epilepsy
De Leon v. Secretary of HHS, 732 F.2d 930, 935 (2d
Cir. 1984)
“The ALJ found that De Leon did not have a severe neurological
impairment because he had only one seizure in the last year and thus did
not satisfy the numerical frequency test for neurological impairment
relative to epilepsy under the regulations. Ignoring De Leon's testimony
that he had a seizure only two months before the hearing while taking
Tegretol, the ALJ concluded that De Leon's epilepsy 'is under total
control with medication.' The ALJ also made no mention of the testimony
that De Leon was experiencing significant side effects from using
Tegretol. There is no substantial evidence on the record to support the
ALJ's finding that De Leon's epilepsy is 'under total
control.'”
6.
Mental Disorders
De Leon v. Secretary of HHS, 734 F.2d 930, 934 (2d
Cir. 1984)
"The appellant at least facially meets the listings in the regulations for
chronic brain syndrome and functional psychotic disorders, and the record
does not contain substantial evidence to support the Secretary's contrary
conclusion.
"A claimant's denial of psychiatric disability or the refusal to obtain
treatment for it is not necessarily probative.
See Cullison v.
Califano, 613 F.2d 55, 58 (4th Cir. 1980).
7.
Alcohol and other drug abuse
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1983)
“If there is a continuing relationship between excess consumption of
alcohol and the disability, such that termination of the former will end
the latter, the issue for the Secretary is whether the claimant has lost
the voluntary ability to control this drinking.”
Singletary v. Sec. of HEW, 623 F.2d 217 (2d Cir.
1980)
“The claimant's son attempted to testify concerning claimant's
alcoholism and inability to work: however, the ALJ rejected his testimony
because he is not a doctor and he is the claimant's son. While possible
bias is undoubtedly a factor which would go to the
weight of the son's testimony, the
son had first hand knowledge of claimant's alcohol intake and life style.
The testimony of lay witnesses has always been admissible with regard to
drunkenness.” 623 F.2d at 219
(citing Rule 701, F.R. Evid.;
People v. Eastwood, 14 N.Y. 562, 566 (1856)).
References:
Program Circular: SSA Disability Program Circular 04-91-OD, Pub. No. SSA
64-044 (April 8, 1991) (“Evaluation of Substance Addiction Disorder
Cases - Reiteration of Current Policy”)
Social Security Rulings: SSR
82-60, Evaluation Of Drug Addiction And Alcoholism
Social security Regulations: 20 CFR 404, Subpart P, Appendix 1, Section
12.09; 20 CFR
§§ 404.1525(e) and
416.925(e).
MEDICAL EVIDENCE
1.
Substitution of medical judgment by lay decisionmaker
McBrayer v. Sec. of Health and Human Services, 712
F.2d 795, 799 (2d Cir. 1983), 2 S.S.R.S. 343, 347
“But the ALJ cannot arbitrarily substitute his own judgment for
competent medical opinion. Grable v. Secretary of
HEW, 442 F.Supp. 465, 470 (W.D.N.Y. 1977). As stated by the
Third Circuit, '[w]hile an administrative law judge is free to resolve
issues of credibility as to lay testimony or to choose between properly
submitted medical opinions, he is not free to set his own expertise
against that of a physician who testified before him.' Gober v.
Matthews, 574 F.2d 772, 777 (3d Cir. 1978); see also,
Dousewicz v. Harris, 646 F.2d at 774.”
2.
Cannot reject medical evidence without explanation
Fiorello v. Heckler, 725 F.2d 174, 176 (26 Cir.
1983), 4 S.S.R.S. 22, 24, CCH 15,021
“Although we do not require that, in rejecting a claim of
disability, an ALJ must reconcile explicitly every conflicting shred of
medical testimony, Miles v. Harris, 645 F.2d 122,
124 (2d Cir. 1981), we cannot accept an unreasoned rejection of all the
medical evidence in a claimant's favor, see SEC v. Chenery
Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626
(1943).”
3.
Weight to be accorded opinion of consultative examining physician
Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir.
1990)
“[I]n evaluating a claimant's disability, a consulting physician's
opinions or report should be given limited weight. Cf. Bluvband, 730 F.2d
at 894 (ALJ should not baldly accept consulting physician's evaluations
which are disputed and formulated after they had examined claimant only
once). This is justified because consultative exams are often brief, are
generally performed without benefit or review of claimant's medical
history and, at best, only give a glimpse of the claimant on a single day.
Often, consultative reports ignore or give only passing consideration to
subjective symptoms without stated reasons.'”
(citing Torres v.
Bowen, 700 F.Supp. 1306, 1312 (S.D.N.Y. 1988)).
Ed. Note: Cruz was decided before the issuance of
regulations regarding consultative examinations and medical evidence of
record, 20 C.F.R.
§§
404.1519-1519t;
416.919-919t,
which require that consultative examinations be complete, include a
medical history, and address claimants' subjective symptoms.
4.
Physician's failure to use the conclusory term
“disabled”
Gold v. Sec. of HEW, 463 F.2d 38 I 42 n.7 (2d Cir.
1972)
“Nor is the absence of the conclusory term 'disabled' from some of
the reports as crucial as the government would have us believe, for a
physician might not consider that essential in a contemporaneous record of
symptoms.”
5.
Full text of the basic standard of the Second Circuit
(Schisler II)
Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988),
22 S.S.R.S. 304, 308, CCH 16,706
“Having taken the position that he has adopted the treating
physician rule of this circuit, the Secretary is thereby bound to offer a
formulation of the rule based on our caselaw.... The version of the SSR we
approve is printed in full in Appendix A.”
Appendix A
Titles II and XVI: Consideration of the Opinions of Treating Sources
Purpose
"To clarify the Social Security Administration's (SSA) policy on
developing medical evidence from treating sources and describe how SSA
evaluates such evidence, including any opinion about disability, in
determining whether an individual is disabled in accordance with the
provisions of the Social Security Act. Particularly, this Ruling clarifies
when a medical opinion by a treating source will be conclusive as to the
medical issues of the nature and severity of an impairment(s) individually
or collectively bearing on the claimant's ability to engage in substantial
gainful activity, and indicates how the determination or decision
rationale is to reflect the evaluation of evidence from a treating
source.
"The preferred source of medical evidence is the claimant's treating
source(s). Medical evidence from a treating source is important because it
will often provide a medical history of the claimant's impairment based on
the ongoing treatment and physician-patient relationship with the
claimant.
"In addition to providing medical history, a treating source often
provides an opinion about disability, i.e., diagnosis and nature and
degree of impairment. Such opinions are carefully considered in evaluating
disability. Although the decision as to whether an individual is disabled
under the Act is made by the Secretary, medical opinions will be
considered in the context of all the medical and other evidence in making
that decision.
"Section 223(d)(5)
of the Act, as amended by the Social Security Disability Benefits Reform
Act of 1984, requires the Secretary to make every reasonable effort to
obtain from the individual's treating source all medical evidence,
including diagnostic tests, needed to make properly a determination
regarding disability, prior to evaluating medical evidence obtained from
any other source on a consultative basis.
“A claimant's treating source is his or her own physician, osteopath
or psychologist (including an outpatient clinic, and health maintenance
organization) who has provided the individual with medical treatment or
evaluation and who has or had an ongoing treatment and physician-patient
relationship with the individual. The nature of the physician's
relationship with the patient, rather than its duration or its coincidence
with a claim for benefits, is determinative.”
"Medical evidence and opinion from claimant's treating source is important
because the treating source, on the basis of the ongoing physician-patient
relationship, is most able to give a detailed history and a reliable
prognosis. Therefore, treating source evidence should always be requested
and every reasonable effort should be made to obtain it. Treating sources
should be requested to provide complete medical reports consisting of a
medical history, clinical findings, laboratory findings, diagnosis,
treatment prescribed and response to any treatment, prognosis, a medical
assessment; i.e., a statement of the individual's ability to do
work-related activities. If the treating source provides an incomplete
medical report, the adjudicator will request the necessary additional
information from the treating source. Where SSA finds that the opinion of
a treating source regarding medical issues is inconsistent with other
evidence in file including opinions of other sources, the adjudicator must
resolve the inconsistency, according to the principles set forth below. If
necessary to resolve the inconsistency, the adjudicator will secure
additional evidence and interpretation or explanation from the treating
source(s) and/or consulting source(s).
"Once the adjudicator has made every reasonable effort to obtain the
medical evidence and to resolve all conflicts, the adjudicator must
evaluate all of the evidence in file in arriving at a determination.
Initially, the adjudicator must review the record to determine what is the
treating source's opinion on the subject of medical disability, i.e.,
diagnosis and nature and degree of impairment. The adjudicator should then
examine the record for conflicting evidence. Upon finding conflicting
evidence, the adjudicator should compare the probative value of the
treating source's opinion with the probative value of the conflicting
evidence.
"The treating source's opinion on the subject of medical
disability—i.e., diagnosis and nature and degree of
impairment—is (1) binding on the fact-finder unless contradicted by
substantial evidence and (2) entitled to some extra weight, even if
contradicted by substantial evidence, because the treating source is
inherently more familiar with a claimant's medical condition than are
other sources. Resolution of genuine conflicts between the opinion of the
treating source, with its extra weight, and any substantial evidence to
the contrary remains the responsibility of the fact-finder.
"Substantial evidence is such relevant evidence as a reasonable mind would
accept as adequate to support a conclusion. Opinions of nonexamining
medical personnel cannot in themselves and in most situations, constitute
substantial evidence to override the opinion of a treating source.
Where the opinion of a treating source is being rejected or overridden,
there must be a discussion documented in the file of the opinion(s) and
medical findings provided by the medical sources, an explanation of how
SSA evaluates the reports, a description of any unsuccessful efforts to
obtain information from a source(s), the pertinent nonmedical findings,
and an explanation as to why the substantial medical evidence of record
contradicts the opinion(s) of a treating source(s). This discussion must
be set out in a determination or decision rationale."
References:
HALLEX Temporary Instructions:
5-4-23 (OHA Interim
Circular No. 167: Schisler, et al. v.
Heckler)
MANUAL at page 19: “Onset of Disability”
Social Security Regulations:
20 CFR §§
404.1527 and
416.927
ONSET OF DISABILITY
1.
Retrospective opinion of physician
Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.
1981)
“While Dr. Sanfacon did not treat the appellant during the relevant
period, before September 30, 1971, his opinion is entitled to significant
weight. '[A] diagnosis of a claimant's condition may properly be made even
several years after the actual onset of the impairment' ... . Such a
diagnosis must be evaluated in terms of whether it is predicated upon a
medically accepted clinical diagnostic technique and whether considered in
light of the entire record, it establishes the existence of a physical
impairment prior to [the date last insured].”
“[T]he fact that a condition is more disabling today than it was
yesterday does not mean that the condition was not disabling
yesterday.”
Wagner v. Secretary, 906 F.2d 856, 861 (2d Cir.
1990)
"With regard to the requirement stated in Dousewicz
of a clinically acceptable diagnostic technique, we believe that Dr.
Naumann's diagnosis of hemiplegic migraine, adopted by the Secretary as
the basis for post-1983 disability, is sufficient. The Secretary may be
doubtful of the connection between Wagner's present condition and her
pre-1983 symptomatology, but, if so, he should have offered medical
testimony specifically addressed to that nexus or lack thereof. Except for
Dr. Blatchley's [treating physician] opinion, none of the medical evidence
in the record confronts the question of whether the 1983 trauma explains
the preceding three years' ailments.
* * *
“We do offer these facts to demonstrate that a circumstantial
critique by nonphysicians, however thorough or responsible, must be
overwhelmingly compelling in order to overcome a medical
opinion.”
Isabel Rivera v. Sullivan, 923 F.2d 964, 968-69 (2d
Cir. 1991)
“The absence of an opinion expressed by [a previous treating
physician] regarding disability does not contradict [the subsequent
treating physician's] explicit statement that Rivera did suffer from a
disability in 1978.”
“[T]he opinions of this Court hold that the mere fact that a
condition is degenerative does not establish that it may not have been
disabling at an earlier time.”
2.
Contemporaneous medical records not required
Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir.
1989)
“Although his [the claimant's] task would be easier if he produced
medical evidence from that period, it is conceivable that he could
demonstrate such a disability without contemporaneous evidence.”
Eiden v. Sec. of HHS, 616 F.2d 63, 65 (2d Cir.
1980)
“[E]vidence bearing upon an applicant's condition subsequent to the
date [of eligibility] is pertinent evidence in that it may disclose the
severity and continuity of impairments existing before.”
3.
Evidence relied on in finding disability cannot be disregarded in
determining onset date
Bell v. Secretary of HHS, 732 F.2d 308, 311 (2d
Cir. 1984)
“The ALJ, of course was not required to credit the information
contained in these letters [letters written approximately
contemporaneously with the date of the hearing by a mental health
“case manager” and a psychiatric Social Worker], but it is
quite apparent that he did so since he expressly relied on them in finding
that Bell was disabled. Having done so, he was not free to disregard them
in determining the onset date of that same disability.”
4.
Onset date cannot be determined arbitrarily but must be based on
examination of the record
Bell v. Secretary of HHS, 732 F.2d 308, 311 (2d
Cir. 1984)
“The ALJ is not entitled to assume that Ms. Bell suddenly became
schizophrenic on the day of her hearing absent evidence to support such a
view. Even giving Dr. Alper's report the interpretation adopted by the
ALJ, he was required to examine the record further to determine the onset
date.”
5.
Evidence regarding current condition may be relevant to severity of
earlier condition
Gold v. Sec. of HEW, 463 F.2d 38, 42 (2d Cir,
1972)
"[E]vidence bearing upon an applicant's condition subsequent to the date
upon which the earning requirement was last met is pertinent evidence in
that it may disclose the severity and continuity of impairments existing
before the earning requirements date or may identify additional
impairments which could reasonably be presumed to have been present and to
have imposed limitations as of the earning requirement data.
References:
Social Security Rulings: SSR
83-20, Onset of Disability
PAIN
1.
Consideration of pain, in general
Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir.
1984), 8 S.S.R.S. 123, 128-29, CCH 15,667
“This Circuit has long held that the subjective element of pain is
an important factor to be considered in determining disability.
Ber v. Celebrezze, 332 F.2d 293, 298, 300 (2d Cir.
1964).”
2.
Decisionmaker can review credibility and arrive at independent evaluation
of pain
Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir.
1984), 8 S.S.R.S. 123, 128-29, CCH 15,667
“While an ALJ 'has the discretion to evaluate the credibility of a
claimant and to arrive at an independent judgment [regarding that pain, he
must do so] in light of medical findings and other evidence, regarding the
true extent of the pain alleged by the claimant.' McLaughlin v.
Secretary of Health, Education and Welfare, 612 F.2d 701, 705
(2d Cir. 1980), quoting Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).”
3.
Cannot assume treating physician's estimate of claimant's RFC considered
pain
Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984),
8 S.S.R.S. 123 129, CCH 15,667
“It is clear that the ALJ's decision to disregard ... testimony
concerning disabling pain was based on his blind assumption that
appellant's treating physician considered such pain in determining his
residual functional capacity. Especially, given the claimant's pro se
status, we hold that the claimant's assertions of disabling pain cannot be
rejected solely on the unfounded assumption that the treating physicians
considered them. An ALJ is not free to assume that a factor, such as pain,
was considered in formulating a medical opinion when there is no evidence
that such was the case.”
4.
Need medical impairment; but not objective findings of pain itself
Gallagher on behalf of Gallagher v. Schweiker, 697
F.2d 82, 84 (2d Cir. 1983), 1 S.S.R.S. 21, 23, CCH 14,414
“On appeal, the claimant contends that this conclusion is in
conflict with our prior decisions in Aubeuf v.
Schweiker, 649 F.2d 107 (2d Cir. 1981), and Marcus
v. Califano, 615 F.2d 23 (2d Cir. 1979). Specifically relied
upon is the observation in Marcus that 'subjective pain may serve as the
basis for establishing disability, even if such pain is unaccompanied by
positive clinical findings or other 'objective' medical evidence.' ...
These cases did not signal any departure from the statutory requirement
that a disability claimant must prove physical or mental impairment
resulting from abnormalities demonstrable by 'medically acceptable
clinical and laboratory techniques.' What these cases properly recognized
is that once such an impairment has been diagnosed, pain caused by the
impairment may be found to be disabling even though the impairment
'ordinarily does not cause severe, disabling pain.' Marcus, supra, 615
F.2d at 28. The pain need not be corroborated by objective medical
findings, but some impairment must be medically ascertained, as it was not
only in Marcus and Aubeuf, but also in Hankerson v.
Harris, 636 F.2d 893 (2d Cir. 1980) (heart disease);
McLaughlin v. Secretary of Health, Education and
Welfare, 612 F.2d 701 (2d Cir. 1980) (discogenic problem); and
Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964)
(arthritis of cervical spine).”
“[T]he impairment must be attributable to abnormalities demonstrable
by medically acceptable techniques. In drawing the line at this point,
Congress authorized the Secretary to deny benefits to claimants like Mrs.
Gallagher, who though suffering from severe pain, has not produced any
medical evidence identifying the underlying impairment.”
Marcus v. Califano, 615 F.2d 23 (1980)
“We therefore reverse and remand this case so that the Secretary may
reconsider appellant's application for disability benefits under the
standard that a medical impairment which results in severe, disabling pain
may give rise to a grant of disability benefits even if 'objective'
clinical findings do not provide proof of an affliction ordinarily causing
such pain.”
Ber v. Celebrezze, 332 F.2d 293, at 299 (2d Cir.
1964)
“What one human being may be able to tolerate as an uncomfortable
but bearable burden may constitute for another human being a degree of
pain so unbearable as to subject him to unrelenting misery of the worst
sort... .”
Franklin v. Secretary of Health, Education, and
Welfare, 393 F.2d 640 (2d Cir. 1968)
“In the present case the hearing examiner's conclusion, as
paraphrased by the district court, was that the medical evidence reflected
'an undramatically mild underlying pathology wholly disproportionate to
the massive disability plaintiff imposes upon it.' It is no doubt true, as
appellant contends, that this court has rejected the view that a claimant
will be said to be so disabled as to qualify for benefits only if an
'average man,' suffering from the same objective symptoms as the claimant,
would be disabled under the statute, for we have earlier indicated that
the subjective element of pain is an important factor in determining
disability. Ber v. Celebrezze, 332 F.2d 293, 298,
300 (2d Cir. 1964). However, assuming arguendo
[that a medically determinable impairment was present], we nevertheless
believe that there was substantial evidence that appellant's assumed
impairment had not produced 'inability to engage in any substantial
gainful employment.'”
"Conceding, also, that appellant might not be able to return to her former
employment as an 'executive secretary' because such a job would require
her to keep her neck in a fixed position for prolonged periods of time
(e.g., while typing) and hence cause her to have periods of intense pain,
there was ample evidence to support a conclusion that appellant could
engage in other related forms of employment in which she would not be
required to keep her neck in a fixed position.
5.
Work without pain
Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir.
1983), 2 S.S.R.S. 362, 369, CCH 14,650
“But, disability requires more than mere inability to work without
pain. To be disabling, pain must be so severe, by itself or in conjunction
with other impairments, as to preclude any substantial gainful employment.
The severity of pain is a subjective measure - difficult to prove, yet
equally difficult to disprove. We must not constrain the Secretary's
ability to evaluate the credibility of subjective complaints of pain,
particularly where, as here, those complaints were not part of claimant's
prima facie case.”
6.
Subjective complaints, when accompanied by objective medical findings,
entitled to great weight
Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.
1983), 3 S.S.R.S. 21, 27, CCH 14,771
“In view of the rule that a claimant's subjective evidence of pain,
when accompanied by objective medical evidence, as exists here, is
entitled to great weight, see, e.g., Dobrowolski v.
Califano, 606 F.2d 403, 409 (3d Cir. 1979), we determine that
the record supports Rivera.”
7.
Pain endurance as a factor in determining disability
Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.
1989)
“When a disabled person gamely chooses to endure pain in order to
pursue important goals, it would be a shame to hold this endurance against
him in determining benefits unless his conduct truly showed that he is
capable of working.”
8.
ALJ's observation of pain
* Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir.
1984)
“This finding [that the claimant exhibited 'no outward signs that
could be related to a severe pain complex'] raises serious questions with
respect to the propriety of subjecting claimants to a 'sit and squirm
index' and with respect to rendition by the ALJ of an expert medical
opinion which is beyond his competence. Thus, [it] does not constitute
substantial evidence sufficient to rebut the physicians' findings of pain
resulting from Mr. Aubeuf's back injury.”
Rivera v. Schweiker, 717 F.2d 719 (2d Cir.
1983)
"[A]lthough it is clearly permissible for an administrative law judge to
evaluate the credibility of an individual's allegations of pain, this
independent judgment should be arrived at in light of
all the evidence regarding the
extent of the pain. See
McLaughlin, 612 F.2d at 705. It is clear to us that
the ALJ herein did not follow this standard.
References:
Social Security Ruling: SSR
88-13, Evaluation Of Pain And Other Symptoms
Social Security Regulations:
20 CFR §§
404.1529 and
416.929
Social Security Act: Section
223(d)(5)(A)
(1984) (sunset date December 31, 1986)
* POST HEARING DEVELOPMENT
* Townley v. Heckler, 748 F.2d 109, 113 (2d Cir.
1984), 7 S.S.R.S. 236, 240, CCH 15,662
“The interest of an individual in continued receipt of [Social
Security disability benefits] is a statutorily created 'property' interest
protected by the Fifth Amendment. Matthews v.
Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed. 2d 18
(1975). Thus, a disability benefits claimant has a right to cross examine
the author of an adverse report and to present rebuttal evidence.
Treadwell v. Schweiker, 698 F.2d 137, 143 (2d Cir.
1983); Allison v. Heckler, 711 F.2d 145, 147 (10th
Cir. 1983); Gullo v. Califano, 609 F.2d 649 (2d
Cir. 1979); Lonzollo v. Weinberger, 534 F.2d 712,
714 (7th Cir. 1976). Appellant's attorney, however, was not informed of
the need for expert vocational evidence until after the report was filed
with the ALJ. Further, appellant was denied an opportunity to examine that
vocational report, and, despite claimant's request, no additional hearing
was held. Although the ALJ asked appellant's attorney to submit objections
and additions to the interrogatories posed to the vocational expert, there
is no evidence that the attorney's suggestions were ever forwarded.
Moreover, appellant was denied his due process rights to cross-examine the
expert and to present rebuttal evidence.”
RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT
1.
RFC assessment requires consideration of ability to engage in sustained
activities
Carroll v. Sec. of Health and Human Services, 705
F.2d 638, 643 (2d Cir. 1983), 2 S.S.R.S. 10, 15, CCH 14,549
“Nor has the Secretary sustained his burden on the basis of (1)
Carroll's testimony that he sometimes reads, watches television, listens
to the radio, rides buses and subways, and (2) the ALJ's notation that
Carroll 'sat still for the duration of the hearing and was in no evident
pain or distress.' There was no proof that Carroll engaged in any of these
activities for sustained periods comparable to those required to hold a
sedentary job.”
2.
Specific findings on claimant's RFC required
Ferraris v. Secretary of Health and Human Services,
728 F.2d 582 (2d Cir. 1984), 4 S.S.R.S. 192, CCH 15,169 [from CCCG section
on duty to develop]
“[I]n making any determination as to a claimant's disability, the
Secretary must explain what physical functions the claimant is capable of
performing. * * * * .... the crucial factors in any determination must be
set forth with sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence.”
White v. Secretary of Health and Human Services,
910 F.2d 64, 65 (2d Cir. 1990), 30 S.S.R.S. 669, 671, CCH 15,663A
“Failure to specify the basis for a conclusion as to residual
functional capacity is reason enough to vacate a decision of the
Secretary.”
3.
Evaluation of physician's estimates of time that a claimant can walk and
stand
Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir.
1990), 29 S.S.R.S, 123, 125, CCH 15,310A
“Despite Dr. Pajela's uncontradicted residual functional capacity
assessment, the A.L.J. erroneously concluded that Mrs. Vargas could 'stand
and walk at least six hours in an eight-hour day.... ' To arrive at this
conclusion, the A.L.J. had to interpret Dr. Pajela's report to mean that,
after Mrs. Vargas completed the four hours of standing permitted by Dr.
Pajela, she could undertake an additional two hours of walking.... This
was a distortion of the attending physician's report.... [In construing
this physician's report] the two hours of walking must be included in the
four hours of standing, not added to it.”
4.
Significance of borderline I.Q. test results
De Leon v. Secretary of HHS, 732 F.2d 930, 935-36
(2d Cir. 1984)
“Surely a borderline IQ has a bearing on employability, even as a
moppusher, porter, or maintenance man.”
References:
Social Security Rulings: SSR
83-10, Determining Capability To Do Other Work—The
Medical-Vocational Rules of Appendix 2
Social Security Regulations:
20 CFR §§
404.1567(a) and
416.967(a)
SEDENTARY WORK
1.
Sedentary work requires the ability to sit for long periods of time
Carroll v. Sec. of Health and Human Services, 705
F.2d 638, 643 — (2d Cir. 1983) 2 S.S.R.S. 10, 15, CCH 14,549
“By its very nature 'sedentary' work requires a person to sit for
long periods of time even though standing and walking are occasionally
required. Three of the four doctors who examined Carroll were never asked
what work or activity, such as sedentary employment, Carroll could perform
and hence expressed no opinion on that subject. However, the treating
physician who examined Carroll many times over a period of more than a
year, expressed the opinion that Carroll had a limited ability to stand
for any period of time, to sit for any period, to lift or to bend, and
that he could sit, walk, or stand for only 'short periods.'”
2.
Alternating sitting and standing not within concept of sedentary
work
Nelson v. Bowen, 882 F.2d 45, 48-49 (2d Cir.
1989)
“The magistrate also pointed out that the Secretary cannot sustain
his burden [of proving there was 'other work' that Nelson could perform]
without a showing that the claimant engages in activity for sustained
periods of time comparable to those required to maintain a sedentary job,
citing Carroll v. Secretary of Health & Human
Services, 705 F.2d 638 (2d Cir. 1983), especially in light of
the Secretary's own ruling explaining that sedentary work requires 'that a
worker be in a certain place or posture for at least a certain length of
time to accomplish a certain task. Unskilled types of jobs are
particularly structured so that a person cannot ordinarily sit or stand at
will,' citing West's Soc. Sec. Rep. Serv.
SSR 83-12 at 62 (Supp.
1986).”
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984), 4 S.S.R.S. 192, 197, CCH 15,169
“We have held that the concept of sedentary work contemplates
substantial sitting. Carroll, supra, 705 F.2d at 643. Moreover,
alternating between sitting and standing may not be within the concept of
sedentary work. Deutsch, supra, 511 F.Supp. at 249. On the basis of the
ALJ's insufficient findings here, we cannot determine whether his
conclusory statement that Ferraris could carry out sedentary work is
supported by substantial evidence. We of course do not suggest that every
conflict in a record be reconciled by the ALJ or the Secretary,
Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981),
but we do believe that the crucial factors in any determination must be
set forth with sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence. Treadwell
v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983).”
3.
Performance of some limited daily activities and conservative treatment do
not by themselves establish ability to do a full range of sedentary
work
Murdaugh v. Bowen, 837 F.2d 99 (2d Cir. 1988)
“Moreover, that appellant receives conservative treatment, waters
his landlady's garden, occasionally visits friends and is able to get on
and off an examination table can scarcely be said to controvert the
medical evidence. In short, a claimant need not be an invalid to be found
disabled under Title XVI of the Social Security Act, 42 U.S.C. §
1382c(a)(3)(A).”
References:
Social Security Rulings: SSR
83-12, Capability To Do Other Work—The Medical-Vocational
Rules As A Framework For Evaluating Exertional Limitations Within A Range
Of Work Or Between Ranges Of Work.
SEVERE / NONSEVERE IMPAIRMENTS
Step 2 of sequential evaluation upheld by Supreme Court
Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287
(1987), 17 S.S.R.S. 661, CCH 17,348
References:
HALLEX Temporary Instructions:
5-4-6 (OHA Interim
Circular No. 168: Dixon, et al. v. Heckler)
HALLEX Temporary Instructions:
5-4-16 (OHA Interim
Circular No. 195: Wilson, et al. v. Heckler)
Social Security Rulings: SSR
85-28, Medical Impairments That Are Not Severe
SHIFTING BURDEN OF PROOF
Mimms v. Heckler, 750 F.2d 180, 185 (2 Cir. 1984),
8 S.S.R.S. 123, 128, CCH 15,667
“The burden of proving disability is on the claimant.
Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir.
1972), 42 U.S.C. § 423(d)(5). However, once the claimant has
established a prima facie case by proving that his impairment prevents his
return to prior employment, it then becomes incumbent upon the Secretary
to show that there exists alternative substantial gainful work in the
national economy which the claimant could perform, considering his
physical capability, age, education, experience and training.
Parker v. Harris, 626 F.2d 225, 231 (2d Cir.
1980).”
References:
HALLEX Temporary Instructions:
5-3-7 (“Specific
written acknowledgment of the shifting burden at the last step of the
sequential evaluation process in unfavorable decisions”)
Social Security Regulations:
20 CFR §§
404.1520 and
416.920
VOCATIONAL CONSIDERATIONS — MEDICAL-VOCATIONAL GUIDELINES (GRID)
1.
In general, use upheld
Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952
(1983), CCH 14,585
2.
Vocational evidence required when nonexertional impairment significantly
diminishes the ability to perform a full range of work
Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986),
15 S.S.R.S. 169, 173-74, CCH 17,066
“Application of the Grid guidelines and the necessity for expert
testimony must be determined on a case by case basis. If the guidelines
adequately reflect a claimant's condition, then their use to determine
disability status is appropriate. But if a claimant's nonexertional
impairments 'significantly limit the range of work permitted by his
exertional limitations' then the grids obviously will not accurately
determine disability status because they fail to take into account
claimant's nonexertional impairments. Blacknall, 721 F.2d at 1181.
Accordingly, where the claimant's work capacity is significantly
diminished beyond that caused by his exertional impairment the application
of the grids is inappropriate. By the use of the phrase 'significantly
diminish' we mean the additional loss of work capacity beyond a negligible
one or, in other words, one that so narrows a claimant's possible range of
work as to deprive him of a meaningful employment
opportunity.”
[Ed. Note: This preceding sentence appears in the official text of the
court's decision but not in S.S.R.S.]
3.
In order for Medical-Vocational Guidelines (“Grid”) to be
applied, Secretary must show that non-exertional limitations do not
significantly diminish full range of work noticed by the Grids
Bapp v. Bowen, 802 F.2d at 605-06.
* “Upon remand the ALJ must reevaluate whether the Secretary has
shown that plaintiff's capability to perform the full range of light work
was not significantly diminished by his coughing and blackout spells. That
initial determination can be made without resort to a vocational expert.
If nonexertional limitations significantly diminish Bapp's ability to
perform the full range of 'light work,' then the ALJ should require the
Secretary to present either the testimony of avocational expert or other
similar evidence regarding the existence of jobs in the national economy
for an individual with claimant's limitations.”
[Ed. Note: Portions of the preceding quotation appear in the official text
of the court's decision but not in S.S.R.S.]
* Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.
1989).
“In an individualized evaluation the secretary's burden can be met
only by calling a vocational expert to testify as to the plaintiff's
ability to perform some particular job and, of course, Nelson will have
the opportunity either through medical or vocational or other testimony to
rebut the evidence of the Secretary or to prove further his inability to
perform sedentary work.”
4.
Ability to communicate in English
Vega v. Harris, 636 F.2d 900, 903-04 (2d Cir.
1981)
“Under the [Medical Vocational guidelines] the ALJ's findings of
fact in this case are inadequate with respect to Vega's education. The ALJ
did not determine, as required under the circumstances, whether Vega was
literate and whether she was able to communicate in English. See
20 C.F.R.§§
404-1507(f), 416
907(f)(1980) [now
20 C.F.R.
§§ 404.1564(b)(5);
416.964(b)(5)].
The circumstances are that appellant's less than four years of formal
education took place in Puerto Rico and that, although she has lived in
this country some thirty years, the hearing had to be conducted with a
Spanish-English interpreter.... [A] brief exchange (in English, between
claimant and ALJ], of course, is not a substitute for a determination on
the question of ability to communicate in English.”
5.
Specific findings required on the issue of transferability of skills
Ferraris v. Heckler, 728 F.2d 582, 587 and 588 n.4
(2d Cir. 1984)
“[P]ast experience as a supervisor may not necessarily indicate the
possession of skills, or that they are transferrable. Specific findings on
these issues are required.”
“A certain degree of explicitness is suggested by
SSR 82-41 ... which we
assume the ALJ will bear in mind on remand.”
6.
Borderline I.Q. may have a bearing on employability
* DeLeon v. Secretary of HHS, 734 F.2d 930, 935-936
(2d Cir. 1984)
“Although he summarized the psychologist's report in his decision,
the ALJ did not test the report's conclusions by presenting them in
hypothetical questions to the vocational expert .... Surely a borderline
I.Q. has a bearing on employability, even as a moppusher, porter or
maintenance man.”
References:
Social Security Rulings: SSR
85-15, Capability To Do Other Work—The
Medical—Vocational Rules As A Framework For Evaluating Solely
Nonexertional Impairments; SSR
83-10, Determining Capability To Do Other Work—The
Medical-Vocational Rules of Appendix 2;
SSR 83-11, Capability
to Do Other Work—The Exertionally Based Medical-Vocational Rules
Met; SSR 83-12,
Capability to Do other Work—The Medical-Vocational Rules As A
Framework For Evaluating Exertional Limitations Within A Range of Work or
Between Ranges Of Work; SSR
83-14, Capability To Do Other Work—The Medical-Vocational
Rules As A Framework For Evaluating A Combination of Exertional and
Nonexertional Impairments; SSR
82-41, Work Skills And Their Transferability As Intended By The
Expanded Vocational Factors
Social Security Regulations:
20 CFR §§
404.1545 and
416.945
VOCATIONAL CONSIDERATIONS — EXPERT TESTIMONY
1.
Vocational testimony about medical condition is not, by itself,
substantial evidence
De Leon v. Sec. of Health and Human Services, 734
F.2d 930, 934-35 (2d Cir. 1984), 5 S.S.R.S. 232, 236-37, CCH 15,100
“The consultant's [vocational expert's] evaluation of De Leon's
[medical] condition thus directly contradicted that of the claimant's
consulting and treating physicians, and of the vocational rehabilitation
counselor with whom he had worked closely for nine months. Vocational
expert testimony alone does not provide the necessary substantial evidence
from which to deduce a capacity to engage in substantial gainful activity
when there is overwhelming evidence to the contrary in the record. See
Yawitz v. Weinberger, 498 F.2d 956, 961 (8th Cir.
1974).”
2.
Hypothetical questions; proper standard
De Leon v. Sec. of Health and Human Services, 734
F.2d 930, 936 (2d Cir. 1984), 5 S.S.R.S. 232, 238, CCH 15,100
“In positing hypothetical questions to the vocational consultant,
the ALJ did not even present the full extent of De Leon's physical
disabilities. He made no mention, for example, of De Leon's shoulder or
leg problems, or the full implications of his epilepsy. As a result, the
record provides no basis for drawing conclusions about whether De Leon's
physical impairments or low intelligence render him
disabled.”
Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir,
1984)
“[A] vocational expert's testimony is only useful if it addresses
whether the particular claimant, with his limitations and capabilities,
can realistically perform a particular job.”
Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.
1983), 2 S.S.R.S. 362, 370, CCH 14,650
“Dumas attacks the hypothetical posed by the ALJ because the
vocational expert was asked to assume that Dumas was capable of sedentary
work. He relies on Aubeuf v. Schweiker, 649 F.2d
107 (2d Cir. 1981), to support his argument that a 'vocational expert's
testimony is only useful if it addresses whether the particular claimant,
with his limitations and capabilities, can realistically perform a
particular job.' Id at 114. His reliance is misplaced.
Aubeuf and other decisions critical of
hypotheticals that ask a vocational expert to assume a particular physical
capability on the part of the claimant all address situations where there
was no evidence to support the assumption underlying the hypothetical....
See Brittingham v. Weinberger, 408 F.Supp. 606, 614
(E.D. Pa. 1976) (vocational expert's opinion meaningless '[u]nless there
is record evidence to adequately support ... assumption' in hypothetical
question).”
3.
ALJ, not vocational expert, is required to determine claimant's RFC
Townley v. Heckler, 748 F.2d 109 (2d Cir.
1984)
Herein, the ALJ did not make the requisite determination which would have
enabled him to apply the [Grid] regulations. The ALJ relied on the
vocational expert and made no express finding himself of appellant's
residual functional capacity. Thus the ALJ violated
20 C.F.R. §
404.1546, which specifically states that in cases at the hearing
level, “the responsibility for deciding [a claimant's] residual
functional capacity rests with the administrative law
judge.”.
VOCATIONAL CONSIDERATIONS — EMPLOYABILITY
Keith v. Heckler, 732 F.2d 1089, 1095 (2d Cir.
1984), 5 S.S.R.S. 72, 78, CCH 15,283
“The ALJ was well justified in having the impression that the
trouble was not....inability to work but inability to find work that he
can do. However unfortunate this may be, the Ninetieth Congress
specifically ruled this out as a ground for disability benefits when it
enacted in 1967 what is now 42 U.S.C. § 423(d)(2)(A), see Chico,
supra, 710 F.2d at 948-49.”
References:
Social Security Rulings: SSR
83-46c, Inability To Perform Previous Work—Administrative
Notice Under the Medical-Vocational Guidelines Of The Existence Of Other
Work
Social Security Regulations:
20 CFR §§
404.1566(c) and
416.966(c)
WEIGHT TO BE ACCORDED OTHER AGENCY FINDINGS ON DISABILITY
1.
General rule - other agency findings on disability are entitled to some
weight and must be considered
Cutler v. Weinberger, 516 F.2d 1282 (2d Cir.
1975)
“While the determination of another governmental agency that a
Social Security disability benefits claimant is disabled is not binding on
the Secretary, it is entitled to some weight and should be
considered.”
See Havas v.
Bowen, 804 F.2d 783 (2d Cir. 1986) (State of New York
disability and Workers Compensation benefits determination);
Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.
1975) (Department of Social Services, New York City, determination);
Hankerson v. Harris, 636 F.2d 893, 896-97 (2d Cir.
1980) (Veterans Administration [now Department of Veterans Affairs]
determination).
Attachment D. Acknowledgment of Request for Stieberger
Review
SOCIAL SECURITY ADMINISTRATION
Important Information
Ms. Jane Doe
123
Elm Street
New York, NY 12345
|
May xx, 1993
Claim number: 123-45-6789DI
|
A.
We are writing to tell you that we received your request asking for a
review of our earlier decision that you were not or no longer
disabled.
B.
We expect to receive many requests for review and it may take several
months before we look at your file.
When we start our review, we will decide if you are a member of the
“class”of people entitled to reopening included in the
suit.
a.
If you are a member of the class entitled to a review of our earlier
decision that you were not or no longer disabled, your local Social
Security office will contact you when it is time for you to come in to
submit additional evidence (if you have any). You should begin now to
collect any evidence you may have that you feel will be pertinent to your
review.
BUT, PLEASE DO NOT SUBMIT THE EVIDENCE UNTIL WE CONTACT YOU.
b.
If you are not a member of the class entitled to reopening we will send
you a notice telling you why and advising you of any further rights you
may have.
C.
If you have questions you may contact your local Social Security office.
If you phone, please call 1-800-772-1213. If you visit a Social Security
office, please bring this letter with you. It will help us answer your
questions.
Attachment E. Stieberger Court Cause Flag/Alert
999889 00000
CTWALT01 STIEBERGER
COURT CASE
FLAG/ALERT
REVIEW PSC DOC TOE
ALERT DATE RESPONSE DATE OLD
BOAN/PAN
OFFICE
SSN (BOAN OR
PAN) NAME BIRTH
DATE
REFERENCE
#
FOLDER
LOCATION
INFORMATION
CAN / HUN
BIC/MFT CATG TITLE
CFL CFL DATE ACN
PAYEE
ADDRESS
SHIP TO
ADDRESS
Servicing
FO
SPECIAL INSTRUCTIONS:
IF A CURRENT CLAIM IS PENDING AT TIME OF THE FO INTERVIEW, THIS CLAIM
MAY
BE CONSOLIDATED WITH THE CURRENT CLAIM. SEE
DI 12586.025.B.
[and
HALLEX HA 01540.013, Part VIII. J.]
FOR ADDITIONAL INSTRUCTIONS
Attachment F. Notice of Non-Entitlement to Stieberger
Reopening
SOCIAL SECURITY ADMINISTRATION
Important Information
|
Name
Address
City, State, Zip
|
ST
DOC:
|
Date:
Claim Number:
|
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY/SUPPLEMENTAL SECURITY INCOME BENEFITS
PLEASE READ IT CAREFULLY!
A.
WE HAVE FOUND THAT YOU ARE NOT ENTITLED TO REOPENING UNDER
STIEBERGER v. SULLIVAN.
You asked us to review your case under the terms of the
Stieberger court decision. We have looked at your
case and decided that you are not a Stieberger
class member entitled to reopening. This means that we will not review our
earlier decision to deny or cease your benefits. The reason you are not a
class member entitled to reopening under the
Stieberger court decision is checked below.
B.
WHY YOU ARE NOT A CLASS MEMBER ENTITLED TO REOPENING
YOU ARE NOT A STIEBERGER CLASS
MEMBER ENTITLED TO REOPENING BECAUSE:
|
1. |
[ ] |
You did not file a claim for social security disability benefits under the social security number provided. |
|
2. |
[ ] |
You were not a New York State resident at the time your disability benefits were finally denied or ceased. |
|
3. |
[ ] |
Your benefits were denied or ceased for some reason other than your medical condition. That reason was ____________________________________________. |
|
4. |
[ ] |
Your benefits were not denied or ceased between October 1, 1981, and October 17, 1985, inclusive; or, between October 18, 1985, and July 2, 1992, inclusive, at the Administrative Law Judge or Appeals Council levels of review. |
|
5. |
[ ] |
You received a decision review after October 17, 1985, under P.L. 98-460 which covered the same period as your Stieberger claim(s). |
|
6. |
[ ] |
You received a determination from a non-New York DDS that covered the same period as your Stieberger claim(s). |
|
7. |
[ ] |
You received a decision under another New York court order such as State of New York, Hill, or Dixon that covered the same period as your Stieberger claim(s). |
|
8. |
[ ] |
You have received a Federal court decision(s) on your Stieberger claim or you opted for Federal district court review instead of Stieberger reopening. |
|
9. |
[ ] |
You received a subsequent fully favorable determination/decision with entitlement to benefits as early as possible on your Stieberger claim. |
|
10. |
[ ] |
Other |
C.
WE ARE NOT DECIDING WHETHER YOU ARE DISABLED
It is important for you to know that we are not making a decision about
whether you are or were disabled. We are deciding only that you are not a
Stieberger class member entitled to
reopening.
D.
WHAT YOU MAY DO IF YOU DISAGREE WITH THIS DETERMINATION
You have 60 days from the date you receive this notice to send your
written disagreement directly to:
THE OFFICE OF THE GENERAL COUNSEL
SOCIAL SECURITY
ADMINISTRATION
RM. 611 ALTMEYER BLDG.
6401 SECURITY
BLVD.
BALTIMORE, MD 21235ATTN: THE STIEBERGER CASE
COORDINATOR
We will assume that you received this notice 5 days after the date of the
notice unless you show us otherwise.
You may ask to see the record on which we decided you were not a class
member entitled to reopening. If you do ask to see it, you will have 45
days after we tell you that it is available for inspection at a mutually
agreed upon Social Security office. You may also ask for your attorney or
other representative to look at the record.
When your written disagreement is received, the Office of the General
Counsel will look at your case again, notify you of the final
determination and advise you of any further appeal rights you may
have.
E.
IF YOU HAVE A LEGAL REPRESENTATIVE OR WOULD LIKE TO OBTAIN NOW
If you have a legal representative, you should show this notice to that
person.
If you would like to obtain a legal representative, you may contact one of
the attorneys representing the Stieberger class at
the following address:
The Legal Aid Society of New York
Stieberger Implementation
Project
841 Broadway, 3rd Floor
New York, NY
10003
(212)
477-5010If you would like a referral to an attorney who will charge a fee for
representation, you may contact the National Organization of Social
Security Claimants' Representatives by calling (800) 431-2804.
F.
YOU CONTINUE TO HAVE THE RIGHT TO FILE A NEW APPLICATION FOR BENEFITS.
FILING A NEW APPLICATION IS NOT THE SAME AS CHALLENGING OUR CLASS
MEMBERSHIP DECISION, AND OBTAINING A NEW DECISION ON A PAST
APPLICATION.
Si usted habla espanol y no entiende esta carta, favor de llevarla a la
oficina de Seguro Social arriba mencionada para que se la expliquen.
Attachment G. Development/Payment Period Worksheet and Summary Sheet
STIEBERGER DEVELOPMENT/PAYMENT PERIOD WORKSHEET
SUMMARY
SHEET---KEEP ON TOP!
CLAIMANT'S SSN: __ __ __ - __ __ - __ __ __ __
PERSON WHO COMPLETED THIS WORKSHEET:
__ __ __ __ __ __ __, __; __ __ __
; (__ __ __) __ __ __- __
__ __ __
Surname and initial
Office
code Telephone
=================================================================
FIRST MONTH OF DEVELOPMENT PERIOD: __ __ / __ __
=================================================================
TITLE II PAYMENT: BIC: __ __
POTENTIAL ADMINISTRATIVE ONSET: __ __ / 0 1 / __ __
Cessation Case-
POTENTIAL MOET: __ __ / __ __ [ ] See
DI 32586.020
[ ] DDS could establish onset as early as __ __ / __ __ / __ __ if
10(e)(5) exception is met.
[ ] If disability is established, benefits terminate __ __ / __ __; if
claimant is found currently disabled, re-entitle to benefits effective __
__ / 0 1 / __ __ .
[ ] Prisoner suspension period(s): __ __ / __ __ - __ __ / __ __
__ __ / __ __ - __ __ / __ __.
[ ] Payment is intermittent - see worksheet.
[ ] Consider TWP provisions if there was work after 11/91.
|
[___]
|
DDS Established actual onset __ __ / __ __ / __ __ -LATER than administrative onset.
|
|
[___]
|
DDS Established actual onset __ __ / __ __ / __ __ -EARLIER than administrative onset. Pay benefits only from the “Potential MOET”, and only if insured status is met at the established onset date.
|
TITLE XVI PAYMENT:
POTENTIAL ONSET AND ENTITLEMENT: __ __ / 0 1 / __ __
(“administrative onset”)
DDS could establish onset as early as __ __ / __ __ / __ __ if 10(e)(5)
exception is met.
[ ] Payment is intermittent - see worksheet.
|
[___]
|
DDS Established actual onset __ __ / __ __ / __ __ -LATER than administrative onset.
|
|
[___]
|
|
DDS Established actual onset __ __ / __ __ / __ __ -EARLIER than
administrative onset. Pay benefits only from the “Potential
MOET”.
STIEBERGER DEVELOPMENT/PAYMENT PERIOD WORKSHEET
PART I. GATHER INFORMATION - DEVELOPMENT PERIOD
A. 1. Month request for review rec'd (from alert): __ __ / __ __
2. Month of class member's death: __ __ / __ __
3. Enter the earlier of A.1 and A.2 __ __ / __ __
B. 1. Filing date of the earliest Title II denial covered by Stieberger:
__ __ / __ __
2. Alleged onset date in that denial: __ __ / __ __ / __ __
3. If a DWB or surviving child claim, NH's date of death: __ __ / __
__
4. If a CDB claim, month CDB attains age 22: __ __ / __ __
5. If a DWB claim, month DWB attains age 50: __ __ / __ __
6. If a DWB claim, last month of prescribed period; if a CDB reentitlement
claim, last month of the reentitlement period: __ __ / __ __
C. Filing date of the earliest Title XVI denial covered by Stieberger: __
__ / __ __
D. If Stieberger determination was a cessation,
month of Title II or XVI termination: __ __ / __ __
E. Periods of entitlement to “HA”, DWB, CDB or unreduced
“A”benefits before the month shown in A.3
began: __ __ / __ __ ended: __ __ / __ __
began: __ __ / __ __ ended: __ __ / __ __
F. Periods of entitlement to Title XVI benefits before the month shown in
A.3
began: __ __ / __ __ ended: __ __ / __ __
began: __ __ / __ __ ended: __ __ / __ __
G. Is there a current claim pending which, if approved, would be
retroactive to a month before the month shown in A.1? Y / N
If so, period of potential entitlement based on the current claim:
begins: __ __ / __ __ ends: __ __ / __ __
H. Was there ever a final medical denial issued when (s)he did not reside
in NY State? Y / N
Period covered by denial: AOD: __ __ / __ __ Date of decision:__ __ / __
__
J. Using SEQY postings show:
Yrs pre-1990 with earnings over $3600/ stat. blind (do not use year of
onset - B2)
1 9 __ __ 1 9 __ __ 1 9 __ __ 1 9 __ __
Yrs after 1989 with earnings over $6000/ stat blind (do not use year of
onset - B2)
1 9 __ __ 1 9 __ __ 1 9 __ __ 1 9 __ __
------------------------------------------------------------------------------------------------------------
PART II. DETERMINE THE DEVELOPMENT PERIOD
USE THE CHART ON THE NEXT PAGE TO COMPUTE THE DEVELOPMENT PERIOD
For the following calculations, use the results of Part I.
1.
“X”out any month later than the month shown in A.3.
2.
Find the earlier of the months shown in B.2., C OR D. “X”out
any months before this month.
3.
“X”out any months in the periods shown in E, F, G, or H
4.
“X”out ALL months in any year shown in J.
5.
Find the most recent 48 months that were not “X'ed”out. If
there are fewer than 48 such months, use all the boxes that were not
“X'ed”. Counting back beginning with the month shown in A.3,
place a “D”in the 48th month not “X'ed”out.
Enter that month here:
__ __ /__ __
6.
If the month in 5. above is later than the month shown in B.4 or B.6,
enter the month shown in B.4 or B.6.
__ __ /__ __
7.
The first month of the DEVELOPMENT PERIOD is the earlier of the month in
5. or 6. above. Show that month at the top of the Summary Sheet.
__ __ /__ __
Stieberger DEVELOPMENT PERIOD
Chart:
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Jan |
Feb |
Mar |
Apr |
May |
Jun |
Jul |
Aug |
Sep |
Oct |
Nov |
Dec |
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1996 |
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1995 |
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1994 |
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1993 |
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1992 |
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1991 |
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1990 |
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1989 |
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1988 |
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1987 |
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1986 |
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1985 |
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1984 |
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1983 |
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1982 |
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1981 |
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1980 |
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1979 |
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PART III: GATHER INFORMATION - PAYMENT PERIOD(S)
Before you compute PAYMENT PERIODS, you will have to show additional
infor- mation (from your interview with the class member, if
necessary):
K. Periods of entitlement to A (reduced or unreduced), HA, DWB or CDB
benefits:
began __ __ / __ __ ended __ __ / __ __
began __ __ / __ __ ended __ __ / __ __
L. Periods the class member was confined due to felony-related conviction
(DI
11505.001):
began __ __ / __ __ ended __ __ / __ __
began __ __ / __ __ ended __ __ / __ __
M. Periods the class member absent from the U.S., or institutionalized
(N02) (SI
00501.400; 00520.001ff):
began __ __ / __ __ ended __ __ / __ __
began __ __ / __ __ ended __ __ / __ __
-------------------------------------------------------------------------------------------------------------
PART IV: COMPUTE THE TITLE II PAYMENT PERIOD
USE THE CHART ON THE NEXT PAGE TO COMPUTE THE TITLE II PAYMENT
PERIOD
1.
Determine the MOET based on the earliest Stieberger
claim. If the claimant had no previous Title II entitlement, you can use
the following procedure; otherwise, use regular Title II rules for the
result of this step.
If the Stieberger determination is a cessation,
show the month of termination, as shown in D above: __ __ /__ __
If it was an initial claim for HA, HC, or DWB benefits, subtract 12 months
from the month shown in B.1. If it was a claim for C benefits (RSI),
subtract 6 months from the month shown in B.1: __ __ /__ __
If it was a claim for HA or DWB benefits, add 5 full calendar months to
the date shown in B.2. If it was a claim for C or HC benefits, show the
month shown in B.2 (or the following month, if the AOD in B.2 is not the
first day of the month): __ __ /__ __
If it was a claim for DWB or surviving child benefits, show the date of
death of the number holder as shown in B.3: __ __ /__ __
If it was a claim for DWB benefits, show the date the DWB attained age 50
as shown in B.3: __ __ /__ __
Circle the latest date.
2.
Using the chart on THIS page, “X”out any month before the
month you circled in step 1 above.
3.
3. Put a “T”in the box for any month in the period shown in
H.
4.
4. “X”out any months in periods shown in F, G, K or L.
5.
5. Count the LATEST 48 months that have not been marked. Mark these boxes
with an “E”.
The FIRST “E”month is the potential month of entitlement
(MOET):
__ __ / __ __
6.
6. The Potential MOET is also the potential administrative onset for
cessations, all SSI claims, and CDB claims. For initial claims for HA or
DWB benefits, subtract 5 months from the MOET. This will be the
potential established onset date:
__ __ / 0 1 / __ __ .
(note: The DDS may make the onset as early as the AOD [or termination date
in cessations], if the 10(e)(5) conditions are met).
7.
7. If any “T”months are shown, benefits AND THE PERIOD OF
DISABILITY will TERMINATE with the first “T”month. Benefits
and the period of disability will resume with the first
non-“T”month if the claimant is found to be currently
disabled.
Potential benefits would terminate: __ __ /__ __
Potential resumption of benefits: __ __ /__ __
Stieberger PAYMENT PERIOD CHART - Title II
|
|
Jan |
Feb |
Mar |
Apr |
May |
Jun |
Jul |
Aug |
Sep |
Oct |
Nov |
Dec |
|
1991 |
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1990 |
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1989 |
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1988 |
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1987 |
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1986 |
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1985 |
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1984 |
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1983 |
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1982 |
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1981 |
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1980 |
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1979 |
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PART V: COMPUTE THE TITLE XVI PAYMENT PERIOD
USE THE CHART ON THIS PAGE TO COMPUTE THE TITLE XVI PAYMENT PERIOD
Stieberger PAYMENT PERIOD CHART - Title XVI
|
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Jan |
Feb |
Mar |
Apr |
May |
Jun |
Jul |
Aug |
Sep |
Oct |
Nov |
Dec |
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1991 |
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1990 |
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1989 |
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1988 |
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1987 |
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1986 |
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1985 |
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1984 |
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1983 |
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1982 |
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1981 |
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1980 |
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1979 |
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1.
“X” out any month before the month shown in C.
2.
“X” out any month in the periods shown in F, G, H, K, or
M.
3.
Count the LATEST 48 months that have not been marked. Mark these boxes
with an “E”.
The FIRST “E”month is the potential established onset date:
__ __ / 0 1 / __ __ .
(note: The DDS may make the onset as early as the AOD, if the 10(e)(5)
conditions are met).
4.
Payment may be made for all “E”months, subject to the regular
rules of eligibility and applying the Stieberger
tolerances in DI
12586.080. As of Jan. 1st of the year prior to the year in which
the favorable SSA-831 was signed, regular development rules apply.
STIEBERGER SUPPLEMENT
To be
completed in all Stieberger Case Reviews
Name______________________________________________
Social Security Number __ __ __/__ __/__
__ __ __
PART I.
(For Social Security Administration Completion)
A.
Earliest Date Covered by a Stieberger
Denial/Termination (AOD for Title II, Date of FIling for Title XVI: __
__/__ __/__ __
B.
Earliest Date Covered by the SSA-3368: __ __/__ __/__ __
PART II.
Information about your disability.
A.
1.
Have any conditions you mentioned on the Disability Report (SSA-3368)
changed since the date in A. above? __Y __ N
2.
If there was any change in your condition, did it get ___Worse
___Better
3.
Describe when and how your condition was worse or better
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
B.
1.
Have you had any conditions, during the period between the dates in Part I
A. & B above, that you did not describe on the Disability Report
(SSA-3368)? __Y __ N
2.
If yes, describe the other conditions and when they bothered you
______________________________________________
______________________________________________
______________________________________________
______________________________________________
3.
If the other condition(s) that you described in D.2 made you feel worse
during the period between the dates in Part I A & B above, describe
how and when.
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
C.
1.
Did you receive treatment for any condition, from a medical source
(doctor, hospital, clinic, etc.) that is not already listed on the
Disability Report (SSA-3368)? __Y __N
2.
If yes, show the names and addresses of the source, the dates of treatment
and the condition you were treated for.
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
PART III PAYMENT PERIOD Questions
A.
1.
Since the date in A. above, have you been incarcerated due to conviction
on a felony or felony-level offense? __Y __N
2.
If yes, show the dates and place(s) of confinement below.
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
B.
1.
Were there any months since the date in A. above that you resided in a
public institution? __Y __N
2.
If yes, show the name of the institution and the dates of residence
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
C.
1.
Were there any times since the date in A. above that you were outside the
United States throughout a calendar month or for 30 days or more? (Outside
the United States means outside the 50 states, American Samoa and/or the
Northern Mariana Islands)? __Y __N
2.
If yes, for each period of absence, show the date you left and the date on
which you returned.
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
PART IV. Protective Filing
A.
If you wish to protect the rights of your spouse and/or children to any
benefits to which they may be entitled on your record as a result of the
Stieberger review, show their name(s) and date(s)
of birth below.
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
Signature_________________________________Date_______________
Attachment I. Corroboration of Stieberger §
10(e)(5)(i)-(ii) Conditions Worksheet
WORKSHEET
This 3-page worksheet must be completed, signed and placed in the
Stieberger green jacket file, if the DDS determines
that the claimant was not disabled for all or part of the basic
Stieberger “DEVELOPMENT PERIOD,”which
ordinarily begins 48 months prior to SSA's receipt of claimant's request
for readjudication.
*****************************************************************
DECISION
If readjudicating a:
DENIAL—Consider factors under CORROBORATION PROCESS below and check
1. or 2, as appropriate.
1.___ EARLIER DEVELOPMENT/ADJUDICATION REQUIRED.
2.___ EARLIER DEVELOPMENT/ADJUDICATION NOT REQUIRED.
CESSATION—Claimant deemed to qualify, so check 3.
3.___ EARLIER DEVELOPMENT/ADJUDICATION REQUIRED.
__________________________,
____________________ __
/__/
SIGNATURE
TITLE
DATE
*****************************************************************
CORROBORATION PROCESS
Below is an overview of the factors to consider in deciding whether one of
the following conditions requires DDS to develop/adjudicate an earlier
period when readjudicating a denial:
•
Claimant had a chronic impairment that s/he alleged was more severe in the
past (e.g., rheumatoid arthritis in major joints that is not currently
active), and more information is needed about any earlier acute phase;
OR
•
Claimant had a new or no treating source during the DEVELOPMENT PERIOD and
it is learned that other evidence may be available (e.g., from a former
treating source) that may attest to more serious impairment in the
past.
=================================================================
IN APPLYING THE FACTORS BELOW, ALWAYS GIVE THE BENEFIT OF ANY UNCERTAINTY
TO THE CLAIMANT.
=================================================================
A. COMPARISON DATE:
Enter here the earliest date covered by the DEVELOPMENT PERIOD:
___/___/___
B. 10(e)(5)(i) CHRONIC IMPAIRMENT:
1.
Did claimant allege that a condition(s) present during the DEVELOPMENT
PERIOD was a chronic impairment that was more severe before the above
date? If yes, or there is reason to disregard a negative response, e.g.,
claimant confused, disoriented, poor historian, or, if the file shows a
mental condition that would make the negative response questionable:
Continue. If no: Go to C.
2.
Does the green jacket file refer to a chronic impairment that started, or
could have, before the above date and that could have been worse in the
past? If yes: Continue. If no: Go to C.
CONSIDER FACTORS SUCH AS: Is the CI (physical or mental) one that is
subject to exacerbations and remissions and might have been more severe in
the past? Did the claimant allege, or does the green jacket file show, a
past acute phase before the above date that made him/her more severely
impaired in the past, e.g., period preceding and/or following open heart
surgery, or following some kind of trauma?
3.
Did claimant submit corroboration from a medical source, e.g., a letter
from a doctor, that his/her condition(s) was worse in the past and might
possibly have been disabling? If yes: EARLIER DEVELOPMENT AND ADJUDICATION
REQUIRED. If no: Continue.
Assume that a corroborated past condition might possibly have been
disabling unless the corroborating evidence clearly indicates that it
could not have been disabling, e.g., it clearly establishes that the
condition lasted for too short a period to meet the duration requirement,
e.g., severe only a few days or weeks. Resolve uncertainty in the
claimant's favor.
4.
If the claimant did not submit corroboration, does the green jacket file
show that the condition was worse prior to the above date and might
possibly have been disabling? (See NOTE in B.3 above.) If yes: Continue.
If no: Go to C.
5.
Is more information needed about any earlier acute phase (e.g., rheumatoid
arthritis in major joint that became inactive, or previously uncontrolled
epilepsy or diabetes that later was under control)? If yes: Continue. If
no: If there is enough information for a favorable decision, prepare one;
if not, go to C.
6.
Did claimant, or does the green jacket file, identify a medical source(s)
that could substantiate that a chronic impairment was more severe in the
past? If yes: EARLIER DEVELOPMENT AND ADJUDICATION REQUIRED. If no: Go to
C.
C. 10(e)(5)(ii) NEW OR NO TREATING SOURCE:
The following questions apply whether or not the impairment(s) is
chronic.
1.
Did the claimant's treating source(s) (TS) during the DEVELOPMENT PERIOD
differ from his/her prior TS(s), or did s/he have no TS(s) during the
DEVELOPMENT PERIOD? If yes (new or no TS): Continue. If no: EARLIER
DEVELOPMENT AND ADJUDICATION NOT REQUIRED.
2.
Did claimant allege a more severe past condition that might possibly have
been disabling? (See NOTE in B.3.) If yes: Go to C.5. If no:
Continue.
3.
Did claimant submit corroboration from a medical source, such as a letter
from a doctor, that s/he had a past condition that might possibly have
been disabling? (See NOTE B.3. above.) If yes: go to C.5. If no:
Continue.
4.
Does the green jacket file show a condition prior to the above date that
might possibly have been disabling? (See NOTE in B.3 above.) If yes:
continue. If no: EARLIER DEVELOPMENT AND ADJUDICATION NOT REQUIRED.
5.
Did claimant identify, or does the green jacket file reference, other
medical evidence that may be available, and that may attest to the past
condition referred to in C.2, 3 or 4? If yes: EARLIER DEVELOPMENT AND
ADJUDICATION REQUIRED. If not: EARLIER DEVELOPMENT AND ADJUDICATION NOT
REQUIRED.
Examples of The Effect of Work Activity
on The
Stieberger Development Period
In the following examples, the alleged onset of disability (AOD) date is
earlier than the earliest year cited in the sample postings.
Example 1: The summary earnings
query (SEQY) shows the following postings for the
Stieberger period:
|
1983 |
7,000 |
1990 |
0 |
|
1984 |
0 |
1991 |
0 |
|
1985 |
0 |
1992 |
7,100 |
|
1986 |
5,200 |
1993 |
8,000 |
|
1987 |
4,200 |
1993 |
7,500 |
|
1988 |
0 |
1994 |
0 |
|
1989 |
0 |
|
|
Claimant's request for Stieberger relief was
received March 1993. Per the SEQY, 1992 and 1993 are “presumed SGA
years.” No SGA is indicated for 1988 through 1991. Work other than
that reflected on the SEQY is not an issue; no SSA-821 is needed. The
Development Period begins January 1988.
Example 2: The SEQY shows the
following postings for the Stieberger period:
|
1981 |
12,000 |
|
|
|
1982 |
0 |
1988 |
9,000 |
|
1983 |
3,700 |
1989 |
9,500 |
|
1984 |
5,000 |
1990 |
9,300 |
|
1985 |
5,000 |
1991 |
9,300 |
|
1986 |
6,900 |
1994 |
9,000 |
|
1987 |
9,000 |
1993 |
9,800 |
Claimant's request for Stieberger relief was
received in April 1993. The only years that are not presumed SGA years are
1991, 1985 and 1982. Each presumed SGA year counts for 12 months.
Therefore, counting back from the month of request for review, 48
non-excluded months cannot be found. In this case, the Development Period
begins in January 1982, the first month in the earliest non-SGA year
within the Stieberger period.
Example 3: One of the other
development exclusions applies and the SEQY shows the following posted
earnings for the Stieberger period:
|
1983 |
7,000 |
1990 |
0 |
|
1984 |
0 |
1991 |
0 |
|
1985 |
0 |
1992 |
7,100 |
|
1986 |
5,200 |
1993 |
8,000 |
|
1987 |
4,200 |
1994 |
7,500 |
|
1988 |
0 |
1995 |
0 |
|
1989 |
0 |
|
|
In this case, two Development Period exclusions apply; a period
adjudicated in a non-New York denial (covering the period March 1990
through October 1991) and presumed SGA years (as reflected in the SEQY
postings). In counting back 48 months from April 1993 (the month of
receipt of the request for review), the months in the presumed SGA years
of 1993, 1992, 1987 and 1986 are excluded. Also excluded are the months
from October 1991 back to March 1990, the period covered by the non-New
York denial.
After considering the applicable exclusions, counting back 48 non-excluded
months would go as follows:
|
Year |
Number of Months |
Comment |
|
1993 |
(0) |
All months excluded due to presumed SGA. |
|
1992 |
(0) |
All months excluded due to presumed SGA. |
|
1991 |
(2) |
All months excluded due to presumed SGA. |
|
1990 |
(2) |
Two months counted, December 1991 and November 1991; October 1991 through January 1991 excluded - covered by a non-New York denial. |
|
1990 |
(2) |
Two months counted, February 1990 and January 1990; December 1990 through March 1990 excluded - covered by non-New York denial. |
|
1989 |
(12) |
No exclusions apply, all months counted. |
|
1988 |
(12) |
No exclusions apply, all months counted. |
|
1987 |
(0) |
All months excluded due to presumed SGA. |
|
1986 |
(0) |
All months excluded due to presumed SGA. |
|
1985 |
(12) |
No exclusions apply, all months counted. |
|
1984 |
(8) |
No exclusions apply, December 1984 through May 1984 counted. |
|
Total |
(48) |
(The 48th month is May 1984.) The Development Period begins in May 1984. |
Attachment K. Stieberger Payment Period Examples
TITLE II PAYMENT PERIOD EXAMPLES
EXAMPLES:
a.
The earliest Stieberger claim was filed on 3/9/83
and had a 1/16/83 AOD. It was denied on 5/10/84 by the NYDDS on
reconsideration. No subsequent claim or period of incarceration
involved.
The PAYMENT PERIOD is 12/87 through 11/91.
b.
Same facts as in a., except for incarceration from 7/31/90 until 4/1/93
due to a felony conviction. The PAYMENT PERIOD cannot include months of
incarceration for a felony conviction, so count back 48 months beginning
with 6/90.
The PAYMENT PERIOD is 7/86 through 6/90.
c.
The earliest Stieberger claim was filed on 6/12/87,
and was denied at the ALJ level on 2/16/89. The class member became
eligible for AI benefits on 3/31/90.
The PAYMENT PERIOD cannot include months of entitlement to
“A”benefits, so 48 months back from 7/90 would be 8/86.
Payment, however, cannot be made before 6/87 (i.e., the first possible
month of entitlement on the earliest Stieberger
claim).
The PAYMENT PERIOD is 6/87 through 7/90. Benefits already paid for 8/90 on
will be adjusted, if necessary.
TITLE XVI PAYMENT PERIOD EXAMPLES
EXAMPLES:
a.
A title XVI only claim, filed 7/22/83, was denied by the NYDDS at
reconsideration on 3/10/84.
The PAYMENT PERIOD is 12/87 through 11/91.
b.
The same facts as in a., except the class member was institutionalized,
resulting in title XVI ineligibility throughout the months of 10/88 -
6/89.
The PAYMENT PERIOD cannot include the period of institutionalization
(10/88 - 6/89).
The PAYMENT PERIOD is 7/89 - 11/91 and 3/87 - 9/88.
c.
The earliest Stieberger claim was filed on 6/12/87,
and was denied at the ALJ level on 2/16/89. The class member became
eligible for AI benefits on 3/31/90.
The PAYMENT PERIOD cannot include months of eligibility to title XVI, so
begin counting back with 2/90. Forty-eight full months would be 3/86; BUT,
in no case may payment be made for any period prior to the first possible
day of eligibility on the earliest Stieberger
claim. Since the date of filing of the earliest claim is 6/12/87, the
first possible date of eligibility is 6/12/87.
The PAYMENT PERIOD is 6/12/87 through 2/90.
Attachment L. Examples of Stieberger Cessation Case
Readjudication Considerations and Guidance as to Whether an SSA-831 or
SSA-833 is Proper
1.
CLAIMANT DISABLED:
•
SITUATION: The DEVELOPMENT PERIOD does
not go back to the cessation month. You
do not obtain the Stieberger claim file(s). You
apply the initial disability standard and find the claimant disabled
during the entire DEVELOPMENT PERIOD
Prepare an SSA-831 allowance.
•
SITUATION: You adjudicate the DEVELOPMENT PERIOD, and it goes back to the
month of cessation. You obtain the Stieberger claim
file(s). You develop back to the comparison point date and apply MIRS. You
reverse the cessation determination and benefits can be resumed in the
termination month (because the PAYMENT PERIOD goes back that far).
Prepare an SSA-833 continuance.
•
SITUATION: You must adjudicate back to the month of cessation because of
¶ 10(e)(5). You obtain the Stieberger claim
file(s). You develop back to the comparison point date and apply MIRS. You
find that disability is continuing and benefits
can be resumed in the month of
termination (because the PAYMENT PERIOD goes back that far).
Prepare an SSA-833 continuance.
•
SITUATION: You must adjudicate back to the month of cessation, because of
¶ 10(e)(5). You obtain the Stieberger claim
file(s). You develop back to the comparison point date and apply MIRS. You
find disability continuing, but benefits cannot be resumed during the
month of termination (because the PAYMENT PERIOD doesn't go back that
far).
Prepare an SSA-831 allowance using an artificial onset.
2.
CLAIMANT NOT DISABLED:
•
SITUATION: The DEVELOPMENT PERIOD goes back to the month of cessation. You
obtain Stieberger claim file(s), develop back to
the comparison point date, and apply MIRS. You affirm the cessation.
(Benefits could have been resumed in the month of termination, if claimant
had been found disabled because the PAYMENT PERIOD goes back that
far).
Prepare an SSA-833 cessation, and evaluate the claim for possible later
initial disability.
•
SITUATION: The DEVELOPMENT PERIOD does not go back to the month of
cessation. You do not obtain the Stieberger claim
file(s). You apply the initial disability standard and you find the
claimant not disabled.
Prepare an SSA-833 cessation and evaluate the claim for possible later
initial disability.
•
SITUATION: You must develop back to the comparison point date because of
¶ 10(e)(5). You obtain the Stieberger claim
file(s), develop back to the comparison point date, and apply MIRS. You do
not find continuing disability.
Prepare an SSA-833 cessation and evaluate the claim for possible later
initial disability.
Attachment M. Flag for Forwarding Prior Claim to DDS When the ALJ or Appeals
Council Finds There Are No Common Issues for Consolidation
Stieberger Class Action Case
READJUDICATION NECESSARY
Claimant's Name: __________________________________
SSN: __________________________________
The above-identified claimant is a Stieberger class
member. The attached Stieberger responder folder
was forwarded to the Appeals Council and/or this hearing office for
possible consolidation with a current claim.
The Appeals Council or the ALJ has determined that the prior and current
claims do not share a common issue and, therefore, should not be
consolidated.
The current claim involves a court remand that contains a court-ordered
time limit. The Appeals Council has determined that it would be
impractical to consolidate the prior and current claims because it will
not be possible to meet the court-ordered time limit if the claims are
consolidated.
Accordingly, we are forwarding the attached alert and prior claim
folder(s) to your location for any necessary
Stieberger readjudication action.
[Enter the Servicing DDS address]
Attachment N. Flag for Forwarding Prior Claim to DDS when the Appeals Council
Intends to Dismiss, Deny Review, or Issue a Denial Decision on the Current
Claim
Stieberger Class Action Case
READJUDICATION NECESSARY
Claimant's Name: __________________________________
SSN: __________________________________
The above-identified claimant is a Stieberger class
member. The attached Stieberger prior responder
file was forwarded to the Appeals Council for possible consolidation with
a current claim. However, because the Appeals Council intends to dismiss,
deny review or issue a denial decision on the current claim, the
Stieberger issue(s) will remain unresolved with
respect to the prior claim.
Accordingly, we are forwarding the attached alert and
Stieberger responder file(s) to your location for
any necessary Stieberger action, i.e., for separate
processing and readjudication action. The Appeals Council's order,
decision or notice of action will inform the claimant that the
Stieberger claim has been sent to the DDS for
readjudication.
[Enter the Servicing DDS address]
Attachment O. Parties' Stipulation for Remanding Court Case to SSA for
Stieberger Review
IN THE UNITED STATES DISTRICT COURT
FOR THE ____________ DISTRICT
OF NEW YORK
|
|
* |
|
|
_________________________________ |
* |
|
|
(SSN: ________________) |
* |
|
|
Plaintiff,
|
* |
|
|
|
* |
|
|
v. |
* |
Civil Action No. |
|
|
* |
|
|
Shirley S. Chater |
* |
|
|
Commissioner of |
* |
|
|
Social Security, |
* |
|
|
Defendant.
|
* |
|
|
|
* |
|
STIEBERGER REMAND STIPULATION
WHEREAS [describe any pertinent case history, including notification of
remand opportunity and the response thereto], and
WHEREAS the attorneys for the parties agree that plaintiff is a
Stieberger class member entitled to reopening under
the settlement in Stieberger v. Sullivan, 792 F.
Supp. 1376 (S.D.N.Y. 1992); and
WHEREAS, [describe any court orders pertinent to this stipulation, e.g.,
the Court directed the parties to submit a proposed remand order].
THEREFORE, it is hereby stipulated and agreed, by and between the
attorneys for the defendant and the plaintiff that:
1.
The Commissioner will reopen the [date] final decision (Tr. xx-xx) on
plaintiff's [date] claim to reexamine the issue of disability entitlement,
pursuant to appropriate provisions of paragraph 10 of the
Stieberger settlement.
2.
The plaintiff hereby waives any rights to further relief on the
aforementioned claim, including any right under paragraph 10(b)(4) of the
Stieberger settlement to have that claim reopened
“after issuance of [any] adverse federal court
decision”thereon if [s]he does not receive the option notice
described in paragraph 10(b)(4). The plaintiff retains all statutory and
regulatory rights to administrative and judicial review of the decision on
reopening.
3.
Compliance with this order will satisfy the Commissioner's obligation to
provide relief to plaintiff on the [date] claim under the
Stieberger settlement.
4.
This remand is made pursuant to the fourth sentence of 42 U.S.C. ?
405(g).
5.
The clerk shall enter judgment consistent with this stipulation. [This
provision may need to be modified according to local practice.]
|
|
Respectfully submitted,
[PLAINTIFF OR PLAINTIFF'S COUNSEL]
|
|
Date: ___________________ |
By_________________________________ |
|
|
|
|
|
[UNITED STATES ATTORNEY]
|
|
Date: ______________________ |
By__________________________________ |
|
|
ASSISTANT UNITED STATES ATTORNEY |
|
OF COUNSEL:
[Fill in]
SO ORDERED.
|
|
|
Date: ______________________ |
_____________________________________ |
|
|
UNITED STATES DISTRICT JUDGE |
Attachment P. Order of the Appeals Council Remanding Court Case to ALJ
Social Security Administration
Office of Hearings and Appeals
ORDER OF THE APPEALS COUNCIL
REMANDING COURT CASE TO
ADMINISTRATIVE LAW JUDGE
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IN THE CASE OF |
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CLAIM FOR |
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__________________________ |
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__________________________ |
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__________________________ |
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__________________________ |
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(Wage Earner) |
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(Social Security Number) |
The United States District Court for the __________ District of New York
has remanded this case to the Commissioner of the Social Security
Administration for reopening pursuant to ¶ 10(b) of the Settlement
Agreement in Stieberger v. Sullivan, 84 Civ. 1302
(S.D.N.Y. June 19, 1992). Therefore, the Appeals Council vacates the final
decision of the Commissioner in this case and remands the case to an
Administrative Law Judge for de novo proceedings consistent with the order
of the court.
The Administrative Law Judge will provide the claimant an opportunity to
appear at a hearing, develop the record pursuant to
20 CFR §§
404.1512-.1518
and
416.912-.918,
and issue a new decision.
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APPPEALS COUNCIL |
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______________________________ |
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Administrative Appeals Judge |
Date:
1.
Pursuant to Pub. L. No. 103-296, the Social Security Independence and
Program Improvements Act of 1994, the functions of the Secretary of Health
and Human Services (the “Secretary”) in Social Security cases
were transferred to the Commissioner of Social Security (the
“Commissioner”) effective March 31, 1995.
2.
Attachment 1 originally stated that a
decision of the Second Circuit generally becomes effective 20 days after
the decision is issued by the court. After the
Stieberger settlement was approved, court rules
increased the time for issuing mandates from 20 to 52 days.
3.
After the Stieberger settlement was approved, court
rules increased the time for issuing mandates to 52 days.