I. Purpose

This Temporary Instruction (TI) contains instruction for processing retroactive cases in Samuels, et al. v. Bowen, et al. This instruction is to be used in conjunction with HA 01540.018 which contains instructions for processing pending cases. Administrative Law Judges and Appeals Council Members must use this TI as well as TI 5-4-18 in adjudicating retroactive Samuels class member cases involving present and former residents of Tennessee. Adjudicators throughout the country must be thoroughly familiar with these TIs, since Samuels class members who may now reside in a state other than Tennessee must have their cases processed in accordance with the requirements of the court order.

II.  Background

On December 13, 1985, the United States District Court for the Western District of Tennessee remanded cessation cases in the class action for readjudication under Section 2 of P.L. 98-460, the Social Security Disability Benefits Reform Act of 1984 (42 U.S.C. § 423). Subsequently, on August 19, 1986, the United States District Court issued a summary judgment order which provided specific relief for class members, including those with claims for initial entitlement. OHA sent a copy of this order to all hearing offices servicing Tennessee residents. On March 16, 1987, the district court issued a final judgment which incorporated by reference its August 19, 1986 order.

On August 24, 1987, OHA issued HA 01540.018 to comply with the terms of the court order and to provide instructions for the adjudication of pending cases. This instruction is being issued to provide additional instructions for adjudicating retroactive cases; that is, those cases which were not administratively active on or after August 24, 1987.

III. Definition of Class

The Samuels class includes title II and title XVI claimants who:

1. A. 

   Resided at any time in the State of Tennessee on or after August 25, 1982; and

2. B. 

   1. 1. 

      Received a notice of an initial or reconsideration disability denial/cessation determination from the Tennessee Disability Determination Section (TDDS), dated on or after August 25, 1982, or

   2. 2. 

      Filed a request for reconsideration on a disability denial/cessation determination from the TDDS, or were still within the time frames to file a request for reconsideration, on or after October 29, 1982; or

   3. 3. 

      Filed (pursued or were pursuing) an appeal to the Administrative Law Judge hearing level on a disability denial/cessation determination from the TDDS, or were still within the time frames for filing an appeal to the Administrative Law Judge, on or after October 29, 1982.

A claimant who received an Administrative Law Judge decision on or after October 29, 1982 and appealed that decision to the Appeals Council or filed a civil action is also a class member. A claimant who received an Administrative Law Judge decision on or before October 28, 1982 is not a class member.

The Samuels class also includes those individuals who were awarded a closed period of disability but who otherwise meet the above criteria for class membership. However, closed period beneficiaries may not receive interim benefits.

The class also includes individuals whose claims for child's disability benefits under title II have been denied or whose entitlement to such benefits has been ceased. Additionally, the class includes individuals whose entitlement to title II disabled widow's, widower's, or surviving divorced wife's benefits, or eligibility for title XVI disabled child benefits for children under age 18, has been ceased, but excludes such individuals whose initial claims for such benefits have been denied.

IV.  Provisions of Court Order

The court's August 19, 1986 order and March 16, 1987 judgment require the Secretary to notify class members that they may request review of title II and/or title XVI cases denied or ceased by the TDDS and grants relief as follows.

1. A. 

   Adjudicators must request medical assessments from all treating and consulting physicians from whom they acquire(d) any evidence.

2. B. 

   Adjudicators must use treating sources of class members for consultative examinations whenever possible. In every instance in which the treating source is not used, the adjudicator must document in the decision the specific reason(s) for using another source.

3. C. 

   When determining disability, adjudicators must accord to the opinions of treating sources the weight required by Sixth Circuit precedent concerning the extent and severity of class members' alleged impairments. (Note: The court found that Social Security Ruling 82-48c is consistent with Sixth Circuit law.) In cases where there are conflicting medical opinions with respect to the nature or extent of a claimant's impairment(s), the opinion of a treating source should prevail unless there is a serious question as to : 1) the treating source's qualifications; 2) the nature or duration of the source's relationship to the claimant; or 3) the sufficiency of the source's medical data. If applicable, the decision must document the reasons for not according the treating source's opinion prevailing weight.

4. D. 

   Adjudicators must make an individualized assessment of residual functional capacity on all claimants with obstructive airway disease who have medically determinable impairment and are not found to be disabled under the Listing of Impairments. If an adjudicator determines that a claimant does not meet or equal the listings, he cannot presume that the claimant has a residual functional capacity for at least a full range of sedentary work.

5. E. 

   Claims of class members involving allegations of pain that were adjudicated between August 25,1982 and August 1, 1985 must be reevaluated using the standards that are consistent with Sixth Circuit law. In particular, the court noted that “...pain may be intense enough to disable without objective medical evidence to establish its severity.” The court found that the Program Operations Manual System DI 24515.060 is consistent with Sixth Circuit law. (See also Social Security Ruling 88-13 issued July 20, 1988.)

6. F. 

   Claims of class members that were denied or ceased on the basis of a nonsevere impairment between August 25, 1982, and December 1, 1984, must be reevaluated in light of the combined effect of nonsevere impairments in keeping with Social Security Ruling 85-28.

7. G. 

   Claims of class members that were denied or ceased on or after August 25, 1982, on the basis of the list of 20 impairments formerly considered to be not severe must be reevaluated. (SSA published that list in Social Security Ruling 82-55, which was rescinded in April 1985.) Adjudicators must make individualized assessments of impairment severity pursuant to Social Security Ruling 85-28 and, if applicable, of residual functional capacity if the claimant's impairment(s) is found to be severe.

V.  Notification of Potential Retroactive Samuels Class Members

SSA mailed a systems-generated notice and return postcard to potential Samuels class members in June 1987; in March 1988 SSA remailed notices which had previously been returned as undeliverable. The notice advised potential class members that they had 120 days from receipt of the notice to request review under Samuels. SSA subsequently acknowledged receipt of the postcards. For those potential class members whose cases had proceeded to the OHA level, SSA also sent an option form which allowed the potential class member to elect review by the TDDS or by an Administrative Law Judge. The option form advised individuals that if they did not respond within 30 days, we would presume that they had elected Administrative Law Judge review.

VI. Determination of Class Membership and Preadjudication Actions

1. A. 

   Screening

   When a claimant has elected OHA review, OHA Headquarters Staff will screen the case for class membership. The Civil Action Tracking System will generate alerts for folder locations for all claimants who requested Samuels review. The Litigation Staff of the Office of the Deputy Commissioner for Programs (ODCP) will forward alerts to the SSA components housing the folders. Components receiving alerts for OHA cases will forward those cases to Docket and Files in OHAs Office of Appellate Operations. OHA Headquarters Staff are responsible for obtaining only those folders which are located in OHA. Upon location or receipt of claims folders, OHA Headquarters Staff will associate the postcards and option forms with the folders and screen the cases for class membership, using the Samuels screening sheet (Attachment A).

2. B. 

   Processing Cases Determined to be Class Members

   After determining that an individual is a class member, OHA Headquarters Staff must place the completed screening sheet in the claims folder and send one copy of the screening sheet to the Division of Litigation Analysis and Implementation in OHA's Office of Civil Actions. OHA Headquarters Staff also must mail the appropriate notice in Attachment B. In addition to informing the individual about the class membership determination, the notice advises the class member that the date the claimant requested a Samuels review will serve as a protective filing date for a new application, if the claimant files the new application within the timeframe specified in the notice. In keeping with the provisions of the notice, OHA Headquarters Staff must enter the protective filing date, which is printed on the alert, in the appropriate space on the notice.

   OHA Headquarters Staff must send the notice to the claimant's current address as contained on the postcard, or option form, if any. If the option form fails to indicate whether the claimant is represented or if there is no option form, before mailing the notice, OHA Headquarters Staff must contact the claimant to determine any representative's name, address and telephone number. If the class member has a representative, OHA Headquarters Staff must mail a copy of the notice to the representative at the same time the staff mails the notice to the claimant. OHA Headquarters Staff must then place a copy of the notice to the claimant and the representative in the claims folder and send the claims folder to the appropriate hearing office for a decision under the Samuels criteria.

3. C. 

   Processing Cases Determined not to be Class Members

   OHA Headquarters Staff must prepare and send the appropriate denial notice (Attachment C) to individuals who do not meet the class membership criteria and their representatives, if any. If the case involves both title II and title XVI claims, OHA Headquarters Staff must send a notice for each title.

   Further, in cases in which individuals are determined not to meet the class membership criteria, OHA Headquarters Staff must send a copy of the screening sheet to the Division of Litigation Analysis and Implementation and to plaintiffs' class counsel at:

   Legal Services of Middle Tennessee, Inc.
   211 Union Street
   800 Stahlman Building
   Nashville, Tennessee 32701
   Attn: Russell J. Overby

   There is no right to appeal a denial of class membership; however, claimants may direct questions concerning any such denial to their Social Security office. The Social Security office will refer the inquiry through the Litigation Staff, ODCP to the Office of the General Counsel, which is responsible for resolving class membership disputes. If OHA staff receive inquiries concerning denial of class membership, they will direct them to the Division of Litigation Analysis and Implementation, Office of Civil Actions.

   Further, plaintiffs' class counsel may direct questions concerning denial of class membership to the Office of the General Counsel. After sending a denial notice, OHA Headquarters Staff will, therefore, immediately forward the claims folder to the TDDS at the following address, where it will be made available to plaintiffs' class counsel on request:

   Division of Rehabilitation Services
   400 Deaderick Street
   Nashville, Tennessee 37219

   (The folder location code for the Division of Rehabilitation Services is 1440.)

   If OHA Headquarters Staff denies class membership to an individual because there has been a subsequent fully favorable determination or decision allowing a claim involving all of the period involved in the Samuels denial, OHA Headquarters Staff must be sure that any such subsequent fully favorable allowance included full retroactive benefits and, thus, that the earliest Samuels application was reopened when the DDS or OHA processed the later application. If full retroactive benefits were not paid, OHA Headquarters Staff must send the case to the appropriate Social Security office for effectuation.

4. D. 

   Screening Cases of Deceased Claimants for Class Membership

   If the claimant is deceased and another party requests Samuels review on the claimant's behalf, OHA Headquarters Staff will determine class membership. If the claimant is a class member, staff must forward the claims folder, screening sheet, and review request to the servicing hearing office with instructions to determine the substitute party or, for a title XVI claim, the surviving spouse or parent (s) pursuant to section 1631(b)(1)(A) of the Social Security Act (42 U.S.C. § 1383 (b) (1) (A)). If the claimant is determined not to be a class member, staff must follow the instructions in section VI.C. above.

5. E. 

   Reconstructing Lost Folders

   OHA Headquarters Staff will request the TDDS through the Mid-America Program Service Center to reconstruct any case whose last folder location was in OHA and which cannot be located after reasonable efforts. OHA Headquarters Staff will forward the Samuels alert, an MBR, HA04, BDIQ, SSI2, and offline SSI query, If appropriate, and documentation of the efforts made to locate the case to the Program Service Center at the following address:

   Mid-American Program Service Center
   Attn: Samuels contact
   Mangement Operations and Analysis Section
   Room 1027
   601 E. 12th Street
   Kansas City, Missouri 64106

   The TDDS will return the folder to Docket and Files after completion of reconstruction.

VII. Adjudication of Cases

1. A. 

   Procedural - Cases Returned to OHA

   Headquarters Staff will forward to the hearing office the cases of class members whose claims were last adjudicated at the Administrative Law Judge or Appeals Council level, or reached the court level, and who did not elect TDDS review. On receipt of a Samuels class member case, the hearing office must proceed with customary prehearing processing subject to the additional guidance in this section. The Administrative Law Judge must enter into the record a copy of the notice of class membership (Attachment B) and the postcard response and option form, if any.

   Prior to any hearing, the hearing office must contact the class member to determine if the claimant wishes to provide new evidence regarding his medical condition at the time of the Samuels denial. When the hearing office contacts the class member about the submission of new evidence, the hearing office must also remind the class member that he is entitled to file a new application with a protective filing date pursuant to the class membership notice. (A claimant must file any new application with the local Social Security Office.) The hearing office may contact the claimant by telephone or by mail. If contacting the claimant by mail, the hearing office must use the acknowledgment notices in Attachment D to advise the claimant of the right to submit new evidence and to file a new application. If the class member indicates that he wishes to submit new evidence, the hearing office must give the individual a reasonable period of time to submit the evidence. The hearing office should use customary follow-up procedures in connection with obtaining this evidence and should document the file accordingly.

   A class member may have filed multiple applications which were denied during the Samuels timeframes. Unless the Administrative Law Judge can issue an on-the- record fully favorable decision on the earliest application denied during the Samuels timeframes, he must afford the claimant an opportunity for an oral hearing. The customary procedures concerning waiver of oral hearing apply.

   In keeping with the Samuels court order, the Administrative Law Judge must issue a redetermination decision; that is, he must rule from the alleged onset date through the date of the last administrative decision on the retroactive claim. If the class member filed multiple applications which were denied during the Samuels timeframes, the Administrative Law Judge must rule through the date of the final administrative decision of the most recent claim subject to Samuels review. Therefore, the notice of hearing must inform the claimant that the Administrative Law Judge will consider whether the claimant was disabled at any time during the period considered in the prior decision(s) that is subject to Samuels review. The notice must also inform the claimant that if the Administrative Law Judge finds that the claimant was disabled during that period, he will also consider whether the disability has continued through the current date (or to the date of any allowance on a subsequent application).

   Since the Administrative Law Judge will adjudicate only through the date of the most recent decision subject to Samuels review (unless, as noted above, he finds that the claimant was disabled during the period at issue), the claimant must file a new application to establish entitlement or eligibility for a period of disability which commenced after that date. If, however, the claimant submits current evidence which indicates that he may be disabled after the date being considered for Samuels purposes and the claimant has not already filed a new application, the hearing office must request the local Social Security office in writing to determine if the individual wishes to file a new application. The hearing office may modify Form SSA-883-U3 for this purpose (Attachment E). The Administrative Law Judge must enter the written request to the Social Security office into the record. (Note: To take advantage of the protective filing date, title II claimants and concurrent title II and title XVI claimants must file a new application within six months, and title XVI claimants must file a new application within 60 days, of receiving the class membership notice. Therefore, the hearing office must send the local Social Security office a copy of the class membership notice which was sent to the claimant.)

   While adjudicating a current claim for disability benefits, the Administrative Law Judge may also have entered into the record a prior claim which was denied during the Samuels timeframes. The Administrative Law Judge will apply the existing rules governing reopening and administrative finality to a prior claim which has not yet been identified for Samuels review. If the claimant is later determined to be a class member who has requested Samuels review, the prior claim will be forwarded to the TDDS or hearing office for readjudication. If after Samuels review the claimant is found entitled to benefits on the prior claim, he will be entitled to full retroactive benefits pursuant to the court's order based on that claim.

   See Acquiescence Ruling 92-2(6), published March 17, 1992, for the scope of review in class member cessation cases.

2. B. 

   Procedural - Cases Returned to TDDS

   Retroactive cases that were last adjudicated by the TDDS or in which the claimant has elected TDDS review will be returned to the TDDS and will receive a new determination. The TDDS will redetermine the case only from the alleged onset date through the date of the last administrative determination or decision on the retroactive claim. However, if the TDDS finds that the claimant was disabled during the applicable time period, the TDDS will determine whether the claimant's disability has continued through the current date.

   If dissatisfied with the TDDS determination, the class member may file a request for hearing with full appeal rights. In such cases, the Administrative Law Judge must also rule only through the date of the last administrative determination or decision on the retroactive Samuels claim. If, however, the Administrative Law Judge finds that the claimant was disabled during the applicable time period, then he must determine whether the claimant's disability has continued through the current date (or to the date of any allowance on subsequent application).

3. C. 

   Consolidation of Cases

   SSA will consolidate retroactive Samuels cases and current applications with common issues at the level at which the retroactive case is being processed, as follows:

   1. 1. 

      A current claim pending before an Administrative Law Judge will be consolidated at the TDDS level if the TDDS has a retroactive Samuels case for review; this is true whether the claimant elected TDDS review or the case is a TDDS review case. The hearing office must issue a dismissal and remand order that explains the terms of the consolidation. If the TDDS issues an unfavorable decision on the consolidated claim, the TDDS will automatically forward the consolidated claim to OHA for adjudication, without any need for the claimant to file a request for hearing.

   2. 2. 

      A current claim pending in the TDDS will be consolidated at the hearing level if a retroactive Samuels claim is pending before an Administrative Law Judge. The hearing office must comply with the provisions of section VII.A. of this instruction. In addition, the hearing office must send out a notice of hearing explaining that the retroactive Samuels claim and current claim are to be considered together and identifying the issues to be decided.

4. D. 

   Substantive

   Administrative Law Judges and the Appeals Council must reevaluate retroactive Samuels cases in keeping with the criteria set forth in sections IV.B.3. through 7. And V.B. through D. of TI 5-4-18, as well as with section IV. of this instruction. There are no changes in these provisions for retroactive cases except as indicated below, under “Medical Development.”

5. E. 

   Medical Development

   The Administrative Law Judge must document for the record all OHA attempts to obtain medical evidence or medical assessments. Since the Administrative Law Judge must issue a decision ruling through the date of the last administrative determination or decision on the Samuels claim, the additional evidence or medical assessments obtained must be relevant to that period.

   1. 1. 

      Medical Assessments

      The hearing office must request medical assessments from all physicians from whom evidence was obtained in connection with the prior Samuels denial. In addition, the hearing office must request medical assessments from any physicians who submit new evidence with respect to the redetermination of the Samuels claim. In addition to the general guidance for obtaining medical assessments under the Samuels court order contained in section IV.B.3. of TI 5-4-18, the following provisions apply to retroactive cases:

      1. a. 

         Requesting Medical Assessments Directly from Physicians

         If the Administrative Law Judge requests medical assessments directly from a physician to comply with Samuels development requirements, he must request the physician to complete the form with regard to the claimant's condition as of the date of the last administrative determination or decision or the date the earnings requirements were last met, if earlier.

      2. b. 

         Requesting Medical Assessments through the TDDS

         When the Administrative Law Judge requests medical assessments through the TDDS and current evidence is not required, the Administrative Law Judge must list the appropriate date for each physician's report (see paragraph above) on page 2 of the request for TDDS assistance (Attachment F). The Administrative Law Judge must enter a copy of Attachment F into the record along with any response from the TDDS regarding attempts to comply with the development request.

   2. 2. 

      Consultative Examinations

      When the Administrative Law Judge concludes that a consultative examination(s) is needed, he must make a development request to the TDDS pursuant to the guidance provided in section IV.B.4. of TI 5-4-18. In addition, in requesting a consultative examination the Administrative Law Judge must apply the following provisions to retroactive cases:

      1. a. 

         If the Administrative Law Judge concludes that a mental consultative examination is required, he need not request the consultative examination from a treating source who is not a licensed psychiatrist or psychologist. Additionally, if the treating source is not an otologist, otolaryngologist, ophthalmologist, or audiologist and an examination in one or more of these specific areas is needed, the Administrative Law Judge may request an examination by a specialist in that area.

         If the treating source is an otologist, otolaryngologist, audiologist, psychologist, or psychiatrist, and the necessary examination is outside their specialty, the Administrative Law Judge need not request the consultative examination from that treating source. If no other treating source exists, the Administrative Law Judge should request an examination from another source.

         With respect to any other type of consultative examination, the Administrative Law Judge must request that the TDDS obtain the examination from the treating source. The TDDS will ask the treating source if he is willing and able to do the examination. However, if the record reveals any facts which require using a nontreating source to perform a consultative examination (e.g., any of the reasons provided in section 2 of the TDDS checklist - see Attachment G), such facts should be brought to the attention of the TDDS so that an appropriate consultative examination source can be selected.

      2. b. 

         If, after all reasonable efforts, a treating source does not provide a medical assessment or any other medical evidence of record and, further, does not provide a good reason for not doing so, the Administrative Law Judge need not request the TDDS to obtain a consultative examination from that source.

      3. c. 

         If the report of a purchased consultative examination from a treating source contains insufficient information to resolve the issue for which the examination was obtained or raises material conflict or inconsistencies with respect to that issue, the Administrative Law Judge must request the TDDS to contact the physician to obtain additional information or to resolve the conflict. If the deficiency cannot be resolved, the Administrative Law Judge should consider whether to request the TDDS to obtain a consultative examination from another treating source of record.

      4. d. 

         If a treating source refuses to perform a consultative examination, the TDDS will attempt to obtain a statement to that effect from the treating source. If the treating source fails to respond within a reasonable period of time, the TDDS will prepare an SSA-5002, Report of Contact. The Administrative Law Judge must enter the signed statement or Report of Contact into the record.

      The decisional rationale must fully explain why a nontreating source was selected for a consultative examination.

6. F. 

   Documentation and Special Decisional Language

   The Administrative Law Judge must document in his decision that all of the issues contained in the court's order have been considered. The Administrative Law Judge must do so by providing a decisional rationale which clearly reflects how each of the Samuels criteria described in section IV. of this instruction were applied. (The Administrative Law Judge may wish to use the checklist contained in Attachment G as a guideline for ensuring that all Samuels documentation is complete.) If applicable, the Administrative Law Judge must also enter into the record the TDDS-completed checklist, which should contain necessary documentation with respect to TDDS development.

   In addition to an individualized rationale, the Administrative Law Judge must also include in the decisional paragraph of unfavorable and partially favorable decisions the language contained in section IV.B.7. of HA 01540.018.

7. G. 

   Res Judicata

   The Administrative Law Judge and Appeals Council will ordinarily not apply the doctrine of res judicata in adjudicating retroactive Samuels cases. Thus, even when an Administrative Law Judge or the Appeals Council previously dismissed a Samuels case on the basis of res judicata, and after Samuels development the facts are the same, the Administrative Law Judge or Appeals Council must issue a redetermination decision.

   However, in some cases, the Administrative Law Judge or the TDDS may have applied the Samuels criteria to the complete time period at issue in the retroactive Samuels case. The TDDS has adjudicated pending cases pursuant to the requirements of the Samuels court order after February 1, 1987. Similarly, Administrative Law Judges and Appeals Council Members have applied the Samuels requirements pursuant to HA 01540.018 effective August 24, 1987. Thus, if the claimant has (1) been determined to be a class member on the basis of an earlier application, and (2) either an Administrative Law Judge or the TDDS applied the Samuels criteria to the complete time period at issue in the retroactive Samuels case during the adjudication of a subsequent application, the Administrative Law Judge or the Appeals Council may dismiss the request for hearing on the retroactive case on the basis of res judicata if the facts, issues and parties are otherwise the same. The normal rules for appeal apply.

   If OHA processed the subsequent claim prior to August 24, 1987, then the request for hearing on the retroactive case is not subject to dismissal on the basis of res judicata

8. H. 

   Routing and Case Control

   Follow customary procedures for routing and case control. To comply with reporting requirements, forward a copy of each decision or dismissal order to the Division of Litigation Analysis and Implementation at the following address:

   Division of Litigation Analysis and Implementation
   P.O. Box 10723
   Room 702, Skyline
   Arlington, VA 22210
   Attn: Samuels coordinator

VIII. Inquiries

Field Office personnel should call the Division of Field Practices and Procedures on FTS 756-5022.

Attachments:

1. A– 

   Screening Sheet

2. B– 

   Notices of class membership

3. C– 

   Notices of nonclass membership

4. D– 

   Acknowledgement notices

5. E– 

   Form SSA-883-U3

6. F– 

   Request for TDDS Assistance

7. G– 

   Samuels Court Order Checklist