ISSUED: December 8, 1987
This Instruction applies only to cases involving persons residing in Massachusetts. It is being issued nationally for informational purposes only.
I. Background
SGPD Bulletin No. III-19(86) dated September 3, 1986, described the order
issued on July 17, 1986 by the U.S. Circuit Court of Appeals for the First
Circuit in the McDonald case. The
circuit court reversed the district court's decision of December 19, 1985,
insofar as it enjoined the Secretary from applying the “not
severe” regulations. However, the circuit court upheld the district
court's supplemental order, issued on March 10, 1986, requiring the
Secretary to consider the combined effects of multiple nonsevere
impairments when readjudicating claims of class members who received final
decisions of the Secretary prior to December 1, 1984. This TI sets out
procedures for readjudicating cases under the
McDonald court order. SSA will
readjudicate the claims of all class members who exhausted their
administrative remedies and who were denied benefits based on the policy
of not considering the combined effects of multiple nonsevere impairments
(the policy which was in effect through November 30, 1984).
II. Definition of Class
For purposes of this TI, the
McDonald class consists of
Massachusetts title II and title XVI disability claimants who were denied
benefits because they did not have a severe impairment (s) and:
(a)
who exhausted their administrative remedies (that is, had an AC decision
or AC denial of the request for review of an ALJ decision) between 6/28/84
and 11/30/84; and
(b)
whose claims were denied without consideration of the combined effect of
multiple nonsevere impairments.
III. Implementation of Court Order
A. Identification of Class Members
Identification of the class members began January 5, 1987 with the receipt
in OHA Headquarters of a computer-generated list of Appeals Council
actions and decisions. The Litigation Staff, Office of Deputy Commissioner
for Programs (ODCP), has sent OHA Headquarters an updated list of file
locations of potential class member cases. The Division of Support
Services, OAO, will retrieve files from OHA components, State agencies and
Social Security field offices. ODCP Litigation Staff will arrange for the
retrieval of files located in the Federal Records Center and Processing
Centers (including the Office of Disability Operations (ODO)). All located
files will be sent to OAO Branch 3 which is responsible for screening and
processing the McDonald cases. (OGC
has provided notice of class relief in all pending court cases.
Accordingly, OHA will not have to take any action to identify class
members with cases pending before the courts.)
B. Notification of Class Members
OAO should prepare and send a letter and option form (Attachment 1), with
a self-addressed, franked envelope, to each identified class member. The
claimant must complete and return the option form within 20 days from the
date of the letter and the analyst must establish a control diary for 30
days. If the claimant affirmatively replies to the letter or does not
return the option form, the Appeals Council or ALJ must readjudicate the
case. If the claimant returns the form stating he or she does
not want another Appeals Council
review, it is not necessary for the Appeals Council to readjudicate the
case. Since these cases involve implementation of a court order, all cases
must receive expeditious handling.
IV. Adjudication of Cases
The appeals Council will readjudicate the
McDonald cases under SSA's current
policy, in effect since December 1, 1984, of considering the combined
effects of multiple nonsevere impairments. Current policy is described in
SSR 85-28.
The Appeals Council should issue a decision in the case if possible, or,
if not, remand the case to an ALJ for a new hearing and decision. (See
sample remand order in Attachment 2).
The Appeals Council or Administrative Law Judge must issue a replacement
decision, that is, a decision which covers the period only through the
date of the prior decision. New evidence may be considered only if it
pertains to the period covered by the prior decision. For consideration of
disability after the period covered by the prior decision, the claimant
must file a new application.
If the AC or ALJ determines that the claimant was in fact under a
“disability” on or before the date of the prior decision, it
must be further determined through appropriate development whether such
“disability” has continued to the current date. The rules of
retroactivity and res judicata will apply to all
new applications. A notation should be made in every decision that, if
res judicata is applicable in any future cases, it
will apply only as of the date of the prior decision; not from the date of
the new decision. The existing regulatory provisions for reopening prior
applications will apply to a new application.
V. Questions
Any HO questions concerning this TI should be directed to the OHA RO
Hotline. RO and CO questions should be directed to the Division of
Litigation Coordination and Implementation on FTS 235-3743.
Attachment 1. Option for Appeals Council Review
SSN
Name and Address of Claimant
Dear
The Appeals Council notified you on ___________________ of its [action]
[decision] in your case. The United States District Court for the District
of Massachusetts has issued an order in the case of Claire
McDonald et al. v. Bowen that requires the Social Security
Administration to reexamine certain claims and consider the combined
effect of multiple “nonsevere” impairments in determining
whether an individual is or was disabled.
You now have the opportunity to have your claim reviewed again by the
Appeals Council and to receive a new decision because of the
McDonald court order. The new decision will cover
the period only through the date of your prior decision. If you submit new
evidence the Appeals Council will consider it only if it pertains to the
period covered by your prior decision. You must file a new application if
you wish to seek consideration of the issue of disability for any period
of time not covered by the prior decision.
If you choose to have the Appeals Council review your claim again, you
must complete the enclosed option form. You may submit additional evidence
and/or a written statement about the facts and law in your case. If you
wish to submit additional evidence and/or a written statement you must
submit the information and the option form to the Appeals Council
within 20 days from the date of this letter.
Please mail the material in the enclosed self-addressed envelope which
requires no postage. If you need more time to submit additional evidence,
you must indicate on the option form when you will send the
evidence.
If you have any questions about this letter, you may contact any Social
Security office. Most questions can be handled by telephone or mail. If
you visit an office, please take this letter with you.
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Sincerely, |
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______________________ |
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Member, Appeals Council |
Enclosures:
Option Form
Self-addressed Envelope
cc:
(Representative, if any)
Enclosure for Attachment 1
Option for Another AC Review
OPTION FORM FOR McDONALD CASE
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____________________
Claimant's Name
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____________________
Social Security Number
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(Please check appropriate box)
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______ |
I request that the Appeals Council review my case under the terms of the McDonald court order. I understand that if it is determined that I am not disabled, I will be notified of my appeal rights.
I plan to submit additional evidence and/or written statement. (please check yes or no)
Yes _________ If yes: Information is attached _________
Information will be submitted by __________ (date)
No __________
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______ |
I do not wish to have my case reviewed by the Appeals Council.
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_________________________
Signature
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_________________________
Date
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Current Address:
______________________
______________________
_______________________
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Telephone:
(___)_____________________
Area/Number
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Department of
HEALTH AND HUMAN SERVICES
Social Security
Administration
Office of Hearings and Appeals
ORDER OF APPEALS COUNCIL
REMANDING CASE TO ADMINISTRATIVE LAW JUDGE
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In the case of
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Claim for
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___________________________
(Claimant)
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___________________________
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___________________________
(Wage Earner) (Leave blank if same above)
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___________________________
(Social Security Number)
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The United States District Court for the District of Massachusetts, in
McDonald et al. v. Bowen, (applicable to residents
of the State of Massachusetts), has directed the Social Security
Administration to readjudicate those cases involving
“nonsevere” impairments in which the combined effect of
multiple “nonsevere” impairments was not considered prior to
December 1, 1984.
[Insert statement of additional reasons for remand.]
Therefore, the Appeals Council under authority of section 404.977 and/or
416.1477 of Social Security Administration Regulations Nos. 4 and/or 16
(20 CFR 404.977
and 416.1477,
respectively), vacates the prior decision of the Administrative Law Judge
[or Appeals Council] dated ____________, and remands this case to an
Administrative Law Judge for further proceedings, including a
(new) hearing and decision.
The Administrative Law Judge should issue a replacement decision, that is,
a decision which covers the period only through the date of the prior
decision. A notation should be made on the decision that, if
res judicata is applicable in any future case, it
will apply only as of the date of the prior decision; not from the date of
the new decision. New evidence may be considered only if it pertains to
the period covered by the prior decision. For consideration of disability
after the period covered by the prior decision, the claimant will be
required to file a new application.
The Administrative Law Judge should give consideration to the specific
issues raised in the March 10, 1986 order of the United States District
Court for the District of Massachusetts in McDonald et al. v.
Bowen, and shall afford the claimant the opportunity to
present further evidence on these issues.
[Specify development if needed]
The Administrative Law Judge may take any (additional) action not
inconsistent with this order.
APPEALS COUNCIL
_____________________
Member
_____________________
Member