Attachment 1. - Dixon v. Shalala Implementation Order; Issued by the United States District Court for the Southern District of New York on December 22, 1993.

WHEREAS, pursuant to a decision dated June 22, 1984, this Court issued an Order on July 25, 1984, conditionally certifying as a class.

All persons in the State of New York who have filed or will file applications for disability benefits under Title II and/or Title XVI of the Social Security Act, and whose benefits have been or will be denied pursuant to the policies set forth in 20 C.F.R. §§ 404.1520 (c) and .1521, 416.920 (c) and .921 (1982), and Social Security Ruling 82-55; and all recipients of such benefits who have made or will make claims for continued benefits, and whose benefits have been or will be terminated pursuant to the same policies. The plaintiff class does not include, at this time, any such persons who received decisions of the Secretary on or before July 19, 1983 and failed to file a complaint in federal district court or to appeal to the next level of administrative review within 60 days after the date of the receipt of such decision.

See Dixon v. Heckler, 589 F Supp 1494, 1512 (S.D.N.T.),

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that;

1. 1. 

   The class previously certified by this Court shall be revised to include individuals otherwise eligible for class membership who were denied benefits, or whose benefits were terminated between June 1, 1976 and July 19, 1983, inclusive.

2. 2. 

   (a) The class of individuals entitled to relief under this order is limited to:

   all persons who, between June 1, 1976 and July 19, 1983 inclusive, were issued a final denial or termination decision by the New York Office of Disability Determinations (ODD) or the Social Security Administration concerning their application for new or continued disability insurance benefits or Supplemental Security Income payments based upon a finding that they did not have severe impairments, or that their impairments were only slight and who resided in the State of New York at the time of such decision.

   (b) Those class members who were entitled to relief under this Court's July 25, 1984 preliminary injunction Order may still obtain relief pursuant to that Order only.

3. 3. 

   The Social Security Administration (“SSA”) shall, by means of its data processing systems, immediately commence identification of the names, Social Security numbers and last known addresses of all identifiable potential class members. SSA shall make good faith efforts to complete such identification within 120 days of the date of entry of this Order. Class counsel will be provided with a computer-generated list of the names of all potential class members following such identification.

4. 4. 

   Within 180 days of the date of entry of this Order, SSA will issue instructions to all SSA and ODD adjudicators for screening and readjudicating the claims of class members who request readjudication and will simultaneously provide a copy of all instructions and directives to class counsel.

5. 5. 

   Upon completion of the identification procedure described in paragraph 3, and within 30 days of the issuance of instructions described in paragraph 4, SSA shall send a class member notice in English and Spanish (Attachment “A”) by first class mail to each potential class member so identified, at his or her last known address. This notice will advise the potential class member of possible entitlement to a readjudication of his or her disability claim and will further state that the potential class member must return the enclosed pre-addressed postage-paid form within 90 days from the date of receipt of the notice in order to receive consideration for relief. The notice also will inform the potential class member that SSA's regulations for determining good cause for missing a deadline to request review are applicable to a failure to request readjudication within the 90-day period. 20 C.F.R. §§ 404.911, 416.1411. The time in which a potential class member must respond to the notice shall begin to run upon receipt of the notice by the potential class member, which is presumed to be five (5) days after the date of the notice unless the potential class member shows that it was not received within that time. 20 C.F.R. §§ 404.901, 416.1401. A potential class member shall be considered to have requested readjudication if he or she timely responds to the class member notice or, if no notice is received, within three years of the entry of this Order makes an oral or written request concerning class membership to an SSA field office.

6. 6. 

   A potential class member will receive a written acknowledgment from SSA after he or she returns the response form as set forth in paragraph 5 above or otherwise requests readjudication.

7. 7. 

   When individual notices are returned as undeliverable SSA shall use its best efforts to effect, subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a (Privacy Act), computer matches with any compatible New York State Department of Social Services or New York City Human Resources Administration data system or any other New York State or municipal human services agency data system containing public assistance, food stamp and/or other relevant records, solely for the purpose of obtaining the most recent addresses for potential class members. Such match shall be made for the sole purpose of sending a notice to potential class members. After the computer matches are completed, SSA shall provide class counsel with a list of potential class members whose notices were returned as undeliverable, and for whom no updated addresses were obtained. Class counsel shall have 90 days after receipt of such names to furnish current addresses for such individuals. Upon timely receipt of such addresses from class counsel, SSA shall mail a second copy of the class member notice (Attachment “A”) to those potential class members for whom updated addresses were obtained.

8. 8. 

   SSA shall prepare a poster notice, the text of which is subject to the approval of the Court (Attachment “B”). The posters shall be no smaller than 17“ x 22” and shall be reproduced in both English and Spanish. SSA shall use its best efforts to display copies of these posters in all SSA field offices in the State of New York for a six-month period, beginning within seven (7) days of the date of the initial mailing of notices as provided in paragraph 5. Plaintiffs may request that SSA place posters at a reasonable number of additional locations and SSA will make all reasonable efforts to distribute the posters to the requested locations.

9. 9. 

   Individuals who request readjudication pursuant to paragraph 5 of this Order will be screened for class membership by SSA, which will base its determination on claims files or other available records. When SSA determines that an individual is not a class member, a class membership denial notice shall be mailed to that individual with a copy to class counsel. The class membership denial notice shall state the reason for the denial of class membership. The notice also will provide that any individual denied class membership will have 90 days from receipt of the notice of class membership denial in which to seek review of the denial by contacting SSA in writing. The notice will explain that the individual may contact class counsel for assistance in resolving disputes concerning class membership. A copy of each request for review will be sent by SSA to class counsel promptly after it is received by SSA. If class counsel wishes to inspect the administrative record upon which a denial is based counsel must request inspection within 60 days of the date SSA forwards the individual's request for review. Counsel will have 90 days from the date that they are notified of the availability of the claims file or other available administrative records in which to conduct such inspection at a mutually agreeable office of SSA in New York State. This time period may be extended upon consent. These records may not be removed from the custody of SSA. If at the end of the period for inspecting a file, class counsel has not reviewed the requested file, it shall be assumed that review of the file is not desired. Class counsel will attempt to resolve disputes concerning an individual's class membership by negotiation with counsel for SSA at the Office of General Counsel, Social Security Division, Baltimore, Maryland. If, after negotiation, SSA adheres to its determination that an individual is not a class member, SSA shall send class counsel and the individual a written confirmation of SSA's denial. Class counsel or the individual may then, by duly noticed motion filed within 60 days of receipt of the confirmation notice, submit the matter to the Court for resolution. If no such motion is filed within 60 days, the class membership denial shall be final and not subject to further review.

10. 10. 

    A class member's request for readjudication shall constitute a request for readjudication of any claims subject to readjudication under this Order.

11. 11. 

    The claims of all individuals found to be class members shall be readjudicated at the reconsideration stage of the administrative process. 20 C.F.R. §§ 404.907-913, 416.1407-1413c. SSA will reopen the claims of class members whose claims files relating to the period resulting in class membership have been located, and will readjudicate these claims from the earliest potential entitlement date based on the application which resulted in class membership through the date of readjudication. SSA shall also consider all subsequent periods, except that disability for any period which was the subject of a disability determination rendered after July 25, 1984 need not be considered.

    1. a. 

       If a class member's claims file cannot be located or no longer exists, SSA shall attempt to apply the presumptions provided in Paragraph 13 of this Order.

    2. b. 

       If a class member's claims file cannot be found and the presumptions provided in Paragraph 13 are inapplicable, the class member will be required to submit evidence pertaining to his or her condition during the period to be readjudicated. SSA shall also use its regular policies on evidence development to assist the class member in obtaining evidence relevant to the readjudication of his or her claim. SSA will readjudicate the claim from the class member's earliest potential entitlement (based upon the application which resulted in class membership) through the date of the last administrative denial or termination. SSA shall also consider all subsequent periods, except that disability for any period which was the subject of a disability determination rendered after July 25, 1984 need not be considered.

    3. c. 

       SSA shall evaluate class members' claims in accordance with the Social Security Act, the sequential evaluation process set forth at 20 C.F.R. §§ 404.1520-1524, 416.920-924 (1992), including SSA's present severity regulations, 20 C.F.R. §§ 404.1520 (c), 416.920 (c), Social Security Ruling 85-28 and the policies and procedures of SSA. All class members will receive a notice informing them of the readjudication decision. Class members shall retain all rights to administrative and judicial review of readjudication decisions made pursuant to this Order.

12. 12. 

    SSA will not review the claims of any class member who:

    1. a. 

       appealed the administrative determination resulting in class membership which:

       1. i.  

          culminated in a subsequent administrative determination made after July 19, 1983; or,

       2. ii.  

          culminated in a subsequent administrative determination made on or before July 19, 1983, if the determination was not based upon a finding of a not severe impairment; or,

       3. iii.  

          was affirmed by a Federal court at any time; or,

    2. b. 

       was issued an administrative or judicial determination on a subsequent application which covered the entire period at issue in the administrative decision which resulted in class membership.

13. 13. 

    SSA shall make reasonable efforts to retrieve available, relevant administrative records for purposes of readjudicating the claims of class members. However, if records cannot be located for any class member because they have not been retained pursuant to published file retention schedules, 44 U.S.C. Ch. 21, 29, 31 and 36 C.F.R. Ch. XII, or SSA is unable to locate them, the class member will be found disabled if he or she received a favorable decision awarding benefits for any subsequent period of disability, as defined in 42 U.S.C. §§ 416 (i) (2) and 1382 (c), and 1) medical evidence relevant to that decision demonstrates that, given the class member's condition at the time of the favorable decision, it is reasonable to presume that he or she was disabled as of the date of the prior administrative determination which resulted in class membership, or 2) absent evidence to the contrary, a class member was 55 years of age or older at the time of the administrative determination which resulted in class membership. If these presumptions are not overcome by evidence to the contrary and the class member is found to be disabled as a result, he or she will be found disabled from the earliest possible entitlement date based on the alleged onset date in the application, which resulted in class membership.

    Absent evidence to the contrary, there will be a rebuttable presumption that a class member is not disabled if:

    1. a. 

       he or she received a denial or termination of benefits on a disability claim subsequent to the one that forms the basis of class membership; or,

    2. b. 

       employment records available to SSA indicate:

       1. i.  

          a period of employment longer than six months following the

          denial or termination that forms the basis of class membership; and,

       2. ii.  

          earnings in excess of the minimum monthly amounts prescribed in 20 C.F.R. §§ 404.1574, 416.974; or,

    3. c. 

       he or she had a claim reviewed pursuant to Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y. June 22, 1992) which was denied.

       Class members will be informed of their right to submit evidence to rebut presumptions of nondisability. SSA shall consider the existing evidence of record in the light most favorable to class members.

14. 14. 

    SSA may consolidate the claim of a class member to be readjudicated pursuant to paragraph 11 of this Order with any subsequent disability claims filed by the class member which are pending at any administrative level and review them simultaneously.

15. 15. 

    Class members having individual actions pending in Federal court challenging the administrative decision resulting in class membership may elect either to have their claims remanded to SSA for readjudication pursuant to paragraph 11 of this Order or to have the action proceed in Federal court pursuant to, and subject to, the limitations contained in 42 U.S.C. § 405 (g). Class members opting to continue their actions in Federal court waive all rights under this Order. Nothing in this Order shall be construed to avoid or preclude the res judicata effect of a final court decision where a class member decides to proceed with his or her individual action in Federal court. Nothing in this Order shall be construed as precluding members of the class from obtaining greater relief on alternative grounds.

16. 16. 

    For class members eligible for readjudication under paragraph 11 who are deceased, SSA shall readjudicate the claim or claims upon the timely request for readjudication by an individual who is potentially eligible to receive an underpayment pursuant to 42 U.S.C. §§ 404 (d), 1383 (b); 20 C.F.R. §§ 404.503 (b), or 416.542 (b), including any legal representative of an estate.

17. 17. 

    1. a. 

       Within 60 days after SSA determines that an individual is a Dixon class member, SSA shall generate and transfer to the appropriate SSA Field Office (“FO”) computer-generated alerts pertaining to the claims of all individuals, up to 10,000, who have requested readjudications. SSA shall continue such transfers until alerts pertaining to all individuals who have requested readjudications have been transferred. Nothing in this subparagraph shall preclude SSA from transferring more than 10,000 alerts within each interval.

    2. b. 

       As alerts are transferred to FO's, Dixon readjudications will be integrated into the claims determination workload of the New York ODD and will be completed within a reasonable time and with no less priority than other claims.

18. 18. 

    The claims of individuals determined to be eligible for disability benefits will be paid from:

    1. a. 

       the sixth month following the date of established onset of disability, or 12 months prior to the date of filing, whichever is later, in cases where benefits under title II were denied;

    2. b. 

       the date of application, in cases where benefits under title XVI were denied; or

    3. c. 

       the date of the termination of benefits.

19. 19. 

    SSA will monitor the implementation of this Order and will provide to class counsel, on a quarterly basis, reports containing the following information:

    1. a. 

       the number of persons notified initially of potential class membership;

    2. b. 

       the number of persons who responded to the notice;

    3. c. 

       the number of persons responding who were determined not to be class members;

    4. d. 

       the number of persons responding determined to be class members;

    5. e. 

       the number of class members found eligible for disability benefits upon readjudication by ODD;

    6. f. 

       the number of class members whose applications were denied upon readjudication by ODD.

       Once SSA has substantially completed the readjudications required by this Order and placed the information identified at (a) through (f) of this paragraph into the tracking system, SSA shall so advise class counsel by providing them with a final report. Upon agreement between the parties, this reporting requirement may be altered or amended.

20. 20. 

    Subject to reasonable limitations, class counsel may, upon written request, inspect a reasonable sampling of individual claims files and/or administrative records and review a sampling of decisions made by SSA or ODD in connection with the readjudication of claims pursuant to this Order. Individual claims files will be made available for inspection at a mutually agreeable time and office of SSA. The claims files may not be removed from the custody of SSA. For purposes of this paragraph, if class counsel wishes to review a claims file, they must do so within 45 days after they are notified that a claims file is available for inspection.

21. 21. 

    Pursuant to section 221(e) of the Social Security Act 42 U.S.C. § 421(e), the State of New York shall be entitled to receive, in advance or by way or reimbursement, as determined by the Secretary, the cost to the State of making disability determinations. This Order does not obligate the Secretary to provide additional funding or to allocate additional workload in excess of the workload assigned to ODD in order to readjudicate cases under this Order.

22. 22. 

    SSA shall develop reasonable procedures to facilitate proof of nondisability eligibility criteria for class members found disabled upon readjudication of claims for SSI benefits.

23. 23. 

    Defendant shall authorize the provision of Medicare benefits to class members made eligible for Medicare under 42 U.S.C. § 1395c by a finding of eligibility for disability insurance benefits resulting from a readjudication pursuant to this Order.

24. 24. 

    The parties agree to the following provisions governing Medicaid for class members:

    1. A. 

       The State of New York (“State”) shall provide medical assistance to class members found eligible for Supplemental Security Income (“SSI”) benefits upon readjudications conducted pursuant to this Order. These individuals are eligible for medical assistance under 42 U.S.C. § 1396a (a) (10) (A) (i) for the medical services covered under the State plan in effect at the time the service was rendered.

    2. B. 

       The Secretary shall provide for the payment to the State of New York of amounts required to be paid by 42 U.S.C. § 1396b for medical assistance, to class members (1) who are found eligible for SSI benefits upon readjudication and (2) who are found eligible for medical assistance under the State plan.

    3. C. 

       As to any class member who received benefits under the State's Medicaid plan as Medically-Needy or as categorically-related to the Aid to Families with Dependent Children program and who becomes eligible for medical assistance under this Order, the Secretary will not provide payment or reimbursement for medical care provided to such class member:

       1. 1. 

          where such medical care has already been reimbursed by the Secretary; or

       2. 2. 

          where the State did not file a claim for reimbursement within two years of the date the medical service or supplies were provided.

    4. D. 

       As to any class member who received State medical assistance benefits as a recipient of Home Relief and who becomes eligible for medical assistance under the State Medicaid Plan under this Order, the Secretary will provide payment and reimbursement for all medical care, services and supplies available under the State's Title XIX Medicaid Plan (“State Plan”). Any claims for reimbursement must be supported by adequate documentation.

    5. E. 

       Class members must provide to the State Medicaid agency proof of payment of bills from a health care provider or supplier. These bills must be for services provided to the class member and will be reimbursable as provided for under applicable law. Reimbursement is limited to bills for services and supplies provided to the class member which were reimbursable in whole or in part under the State's plan in effect at the time the service was rendered. Class members may also present to the State Medicaid agency unpaid bills from a health care provider or supplier for which the class member/Medicaid recipient is currently legally liable for payment, which are reimbursable in whole or in part under the State's plan. The bills must be for services or supplies provided to the class member (1) after entry of this Court's Order, or (2) bills which are documented by an unsatisfied judgment, or (3) a claim on which the New York statute of limitations for contract claims has not run.

    6. F. 

       As to the submission of claims for payment and the processing of payments:

       1. 1. 

          A class member who has been found eligible for Medicaid under this Order or his/her provider must submit all claims for payment to the State Medicaid agency (“the Department”) within twelve months after the State's receipt of the SSI notice of readjudication. Promptly after the State's receipt of notification that a plaintiff class member has been found eligible for SSI benefits upon a Dixon readjudication, the State shall notify the class member of his/her Medicaid eligibility under this Order, of the availability of payment or reimbursement of such claims, the applicable time limit, and how to submit such claims for payment;

       2. 2. 

          The Department must promptly process a claim, whether a paid bill or an unpaid bill, and either pay the claim, return it for further information, or deny it;

       3. 3. 

       4. 4. 

          1. a. 

             Any paid or unpaid claim which is submitted by the recipient or his/her representative and returned to the recipient/representative for additional information must be resubmitted within sixty days to the Department from the date of the Department's request. If the recipient/representative disagrees with the Department's decision on reimbursement of paid or unpaid medical bills, the recipient/representative may request a fair hearing within sixty days of the Department's notice of decision.

          2. b. 

             Any unpaid claim which is submitted by a provider and is denied or returned for additional information may only be resubmitted to the Department within sixty days of the date of denial or request.

       5. 5. 

          The Department must submit all claims for federal financial participation (“FFP”) with respect to paid claims within two years of the date the Department paid the claim under the federal Medicaid program, or reclassifies past payments to a federal category under the terms of Dixon, whichever is later; and

       6. 6. 

          Payments for paid claims for class members as described in paragraph E above shall be handled in accordance with the procedures set forth in the New York State Fiscal Reference Manual for Local Social Services Districts, vol. I, ch. 7, pages 29 through 33, and vol. II, ch. 5, pages 16 through 21, 42 C.F.R. § 431.250(e). This provision is, however, without prejudice to any rights that class members may accrue under Greenstein v. Bane, 89 Civ. 1038 (RJW) (S.D.N.Y.).

    7. G. 

       Except as specifically set forth herein, the terms of the Medicaid provisions in this Order shall be governed by federal statutes, rules and regulations applicable to the Medicaid program.

25. 25. 

    The terms set forth in this Order constitute the Court's final adjudication of any and all claims and demands, of whatever nature, that plaintiffs have against the Secretary and any of her agencies, agents, servants, employees or instrumentalities on account of and with respect to the incidents, claims or circumstances alleged in the pleadings filed herein.

26. 26. 

    This Order does not resolve the question of attorneys' fees and costs based on the action resolved by this Order.

27. 27. 

    This Court shall retain jurisdiction over this action solely for the enforcement of the specific provisions of this Order.

Dated: New York, New York
December 22, 1993

Attachment 2. - Dixon Court Case Flag/Alert

DI
DI
 
 
 
 Dixon
COURT CASE FLAG/ALERT
 
 
 
 


 
 
 REVIEWING
PSC DOC TOE ALERT DATE RESPONSE DATE
 OFFICE
 


 
 
 OLD
BOAN/PAN SSN (BOAN OR PAN) NAME BIRTHDATE REFERENCE #
 


 
 INFORMATION
FOLDER LOCATION
 CAN/HUN BIC/MFT CATG TITLE CFL CFL DATE
ACN
 
 
 
 
 PAYEE
ADDRESS
 
 
 

        SPECIAL INSTRUCTIONS:

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

        OFFICE OF HEARINGS AND APPEALS
       OFFICE OF APPELLATE OPERATIONS
       ONE SKYLINE TOWER, SUITE 701
       5107 LEESBURG PIKE
       FALLS CHURCH, VA 22041-3200

       ATTN: OAO CLASS ACTION COORDINATOR

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

Attachment 3. - Route Slip or Case Flag for Screening

Attachment 4. - Dixon Screening Sheet

DIXON SCREENING SHEET INSTRUCTIONS

COMPLETE ONLY ONE SCREENING SHEET PER INDIVIDUAL, EVEN IF THE CLAIMANT RECEIVED MULTIPLE DETERMINATIONS WITHIN THE CLASS DATES. HOWEVER, THE SCREENING SHEET PROVISIONS MUST BE CONSIDERED SEPARATELY FOR EACH CLAIM. A CLASS MEMBER WHO RECEIVED MULTIPLE DETERMINATIONS IS ELIGIBLE FOR READJUDICATION ONLY ON THOSE CLAIMS MEETING ALL CLASS MEMBERSHIP REQUIREMENTS. PLEASE BE AWARE THAT YOU MUST CONSIDER ALL CLAIMS DECIDED DURING THE PERIOD COVERED BY THE COURT ORDER (i.e., June 1, 1976, through July 19, 1983) WHEN MAKING THE CLASS MEMBERSHIP DETERMINATION.

Item 1

Enter the claimant's own SSN. This will be used to identify the claimant in CATS.

Item 2

Enter the claimant's name.

Item 3

Enter the claimant's date of birth (mm/dd/yyyy). This will also be used to identify the claimant in CATS.

Item 4

Fill in the appropriate account numbers, including BIC and/or ID, under which the claimant filed for benefits.

Item 5

Fill in the actual date that the screening is completed.

Item 6

Fill in the appropriate blocks once screening is completed, as directed in Items 13 and 14. When multiple claims are screened out for different reasons, use the screenout code for the claim with the earliest date of the Dixon application. If the screenout is later protested, the claimant will be protected with the earliest protective filing date.

Item 7

This is self-explanatory. If there is no record of a possible Title II or XVI claim number, answer this question “NO” and enter the appropriate screenout code (07) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet. Complete the “Non-Class Member/Member Not Entitled to Relief” Notice as indicated below under “Instructions if Claimant Is Determined To Be a Non-Class Member or a Class Member Not Entitled to Relief,” checking off Item 2. as the reason that the individual is not entitled to any relief. In the event that the individual furnishes another SSN, or evidence of having filed a claim under the original number, which has a claim(s) denied/ceased in the timeframe, rescreen the case. Send a Revised Decision Notice if the claim is screened in.

Item 8

Review the Dixon alert, related queries (FACT, SSIRD, etc.) and claim file(s). Screen for date of decision, not application. The term “final” refers to the date of the administrative determination/decision that become the binding decision of the Commissioner pursuant to 20 CFR §§ 404.905, 404.921, 404.955, 404.972, 404.981, 416.1405, 416.1421, 416.1455, 416.1472 and 416.1481 and does not mean that a class member must have exhausted administrative remedies under §§ 205(g) and (h) of the Social Security Act, 42 U.S.C. § 405(g) and (h). Although not the “final decision” of the Secretary, an Appeals Council denial of a request for review constitutes a final determination and controls for the purpose of class membership screening. If the claimant appealed a determination/decision made within the class membership timeframe and then received an administrative determination/decision made after July 19, 1983, the claimant is not a class member entitled to relief.

When the claim file has been destroyed or declared lost, determine if the claim may be screened out solely on the basis of information shown on the queries.

If the answer is “NO,” enter the appropriate screenout code (08) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.

Item 9

Screen for residency of the claimant at the time of the final determination/decision. Review the folder or alert package for indications of New York State residency at the time the claim was decided at the highest level of administrative review. If the answer is “NO,” enter the appropriate screenout code (09) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.

Item 10

Screen to determine whether there was a final determination/ decision made on the basis of no severe impairment or on the basis that the impairment was only “slight.” To answer this question in cases finally decided at the initial or reconsideration level, start with a review of the Form SSA-831-U5, Form SSA-3687-U2 or the Form SSA-3428-U2 for denial cases or a review of the Form SSA-832/833-U5 for cessation cases. Review the file(s) and/or queries (e.g., FACT, SSIRD) to determine whether the claimant received a denial/cessation decision on any claim(s) at step 2 of the sequential evaluation process. Look at Item 22 of the Form SSA-831-U5. In a CDR case, read the rationale to determine the reason for the cessation on the SSA-832/833. In a DHU or OHA case, read the decision to determine the basis for the denial or cessation. Use the latest date on the Form SSA-831-U5 or other denial form, or the date of a DHU or OHA decision as the date of the final determination/decision.

If the regulation basis code on these forms reflects a non-severe determination (e.g., F1 and F2 for title II cases or N30 and N41 for title XVI cases) check “YES” in Item 10. If not, then check “NO” and enter the appropriate screening code (10) as directed in item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.

Item 11

Check for a final administrative decision made during the class member timeframe (i.e., June 1, 1976, through July 19, 1983, inclusive). Look for a less than fully favorable final title II or title XVI determination/decision or termination issued by the NYODD or OHA, on an appeal of an NYODD determination that was appealed to a Federal court and either affirmed or denied by the court.

If the answer to Item 11 is “YES” and no other claims qualify for Dixon DDS/OHA review, enter the appropriate screenout code (11) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.

Item 12

This exception applies only if the individual has received all benefits to which s/he could be entitled based on the potential class member claim or has received a denial decision which covers the entire period covered by the potential class member claim.

Determine whether benefits were subsequently allowed or continued from the earliest possible entitlement date, cessation date or control date. Be sure to consider earlier eligibility for Medicare when determining if the subsequent decision is fully favorable. The allowance, continuance or denial could have either been on the same claim or on a subsequent application. Review the file(s) and queries (e.g., FACT, SSIRD) to determine if benefits were subsequently allowed or continued. If yes,

• •

  in title II cases, check the subsequent award/continuation for first month of entitlement.

• •

  in title XVI cases, check the subsequent award/continuation for the first month of eligibility.

Identify the earliest Dixon claim/termination. Determine the earliest month benefits could have been paid based on the Dixon alleged claim and the Dixon application or termination date.

Compare the earliest possible Dixon benefit date with the subsequent award or continuation dates. If the dates are the same and the allowance or continuation was fully favorable (not a closed period allowance) and no other claims qualify for Dixon DDS/OHA review, the answer to Item 12 is “YES”. In addition, if the earliest Dixon claim was a termination, and the individual already received a subsequent decision review on that potential class member claim and that decision review covered the entire period covered by the potential class member, then, the answer to Item 12 is also “Yes”. Enter the appropriate screenout code (12) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.

Instructions if Claimant Is Determined to be a Class Member Entitled to Relief

1. a. 

   Check the “Member Entitled to Relief (J)” block in item 6.a. of the screening sheet.

2. b. 

   Sign and date the screening sheet. Enter the name of the screening component, e.g., OHA, OAO, Branch XX, and the screener's phone number.

3. c. 

   Show the dates of all applications screened and the dates of the final administrative action on each.

4. d. 

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

   Office of Appellate Operations One Skyline Tower, Suite 701 Attn: OAO Class Action Coordinator

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

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

   Office of Hearings and Appeals Division of Litigation Analysis and Implementation One Skyline Tower, Suite 702 5107 Leesburg Pike Falls Church, VA 22041-3255 Attn: Dixon Coordinator

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

5. e. 

   Follow HALLEX HA 01540.052, Part VI.

Instructions if Claimant Is Determined to be a Non-Class Member or Class Member Not Entitled to Relief

1. a. 

   Check the “Non-Class Member/Member Not Entitled to Relief (F)” block in Item 6. a. of the screening sheet and enter the appropriate screenout code in Item 6. b.

2. b. 

   Follow Items b. - d. above.

3. c. 

   Prepare the “Non-Class Member/Member Not Entitled to Relief Notice” and retain or forward the claim file(s) as indicated in HALLEX HA 01540.052, Part V. B. 3. a.

Attachment 5. - Route Slip for Routing Class Members Alert (and Prior Claim File(s) -- OHA No Longer Has Current Claim)

Attachment 6. - Non-Class Member/Member Not Entitled to Relief Notice

SOCIAL

SECURITY        Important   Information

NOTICE

_____________________________________________________________

From:

Social Security Administration

(Insert address and phone number here.)

_____________________________________________________________

___________________________     DATE:         ______________________________

___________________________     CLAIM NUMBER: ________________________

___________________________     DOC: ___________________________________

You asked us to review your earlier claim for disability benefits under the Dixon v. Shalala court order. We have looked at your case and have decided that you are not a Dixon class member entitled to relief. This means that we will not review our earlier decision that you were not disabled. The reason that you are not a class member entitled to relief under the Dixon court decision is checked below.

We are Not Deciding If You Were Disabled

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

If You Do Not Agree With This Determination

If you want us to review our determination that you are not entitled to relief under the Dixon case, you may contact us in writing. You also may contact one of the following offices to ask for assistance with your claim:

New York City:

They will answer your questions about entitlement to relief.

YOU MUST DO THIS WITHIN 90 DAYS OF RECEIVING THIS NOTICE.

If You Have Any Questions

If you have any questions, you may contact your Social Security office. The address and phone number are printed at the top of this letter. If you call or visit an office, please have this notice with you. It will help us answer your questions.

Also, if you have someone helping you with your claim you should contact him/her.

Si usted habla espanol y no entiende esta carta, favor de llevarla a la ofincia de Seguro Social arriba mencionada para que se la expliquen.

cc: The Legal Aid Society

Attachment 7. - Route Slip for Non-Class Member/Member Not Entitled to Relief Cases

Attachment 8. - Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.”

During the past few months, the Office of the General Counsel (OGC) has requested voluntary remand in a number of cases, denied by the Secretary at step two of the sequential evaluation, on the grounds that the decisions have not been fully consistent with SSA policy and the Supreme Court's opinion in Bowen v. Yuckert, 482 U.S. 137 (1987).

Despite the Yuckert decision, extensive litigation, both in individual cases and in significant class actions, continues on the issue of how the Agency applies the step two standard expressed in Social Security Ruling (SSR) 85-28. Because the courts continue to give step two denials close scrutiny, I am asking all adjudicators and decision writers to carefully review SSR 85-28 to ensure that they are applying the proper standard for adjudicating claims at step two.

In accordance with SSR 85-28, a step two denial is appropriate only in very limited situations. The evidence must establish that the claimant's impairment, or combination of impairments, is so slight that it does not have more than a minimal effect on the individual's ability to perform basic work activities. When the medical evidence is inconclusive and does not clearly establish the effect of a claimant's impairment(s), or when the evidence shows more than a minimal effect, the claim may not be denied at step two.

Decisions denying claims at step two must include a comprehensive analysis of all the evidence of record and a decisional rationale consistent with SSR 85-28. Even when the medical evidence of record clearly fails to establish that the claimant has more than a slight mental or physical abnormality, the decision must clearly show that the adjudicator evaluated all the evidence and must articulate the reasons for finding that the impairment(s) is not severe. Furthermore, when the claimant has a medically determinable impairment(s) which might reasonably be expected to cause pain or other symptoms, the decision must include an evaluation of the claimant's subjective complaints using the factors outlined in SSR 88-13 or its equivalent, i.e., SSR 90-1p for Fourth Circuit cases.

If hearing office personnel have questions or need copies of applicable instructions, they should contact the appropriate Regional Office. Regional Office personnel should direct their questions to the Division of Field Practices and Procedures, Office of the Chief Administrative Law Judge.

Attachment 9. - Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period expired)

Attachment 10. - Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)

Attachment 11. - ALJ Dismissal to DDS

Attachment 12. - Notice Transmitting ALJ Order of Dismissal

Attachment 13. - Dixon Class Member Flag for HO Use (DDS Readjudication)