ISSUED: December 20, 1991
I. Purpose
This Temporary Instruction (TI) sets forth the rules for implementing the
January 30, 1990 order of the U.S. District Court for the District of
Colorado in Luna, et al. v. Sullivan which approved
the “Stipulation for Settlement Agreement” dated January 26,
1990. The settlement agreement provides that the Social Security
Administration will “notify each and every individual who has filed
an application for disability in the State of Colorado whose file is coded
'251' and advise him/her that s/he is entitled to reopen his/her
disability determination.”
Adjudicators throughout the country must be familiar with this TI because
Luna class members who now reside outside Colorado
must have their cases processed in accordance with the requirements of the
court order.
The Disability Determination Service (DDS) in the state of the claimant's
current residence will ordinarily conduct the Luna
reopenings. However, under certain circumstances the Office of Hearings
and Appeals (OHA) will consolidate Luna reopenings
with reviews of subsequent claims (see sections VI.C. and VI.E.).
II. Background
On April 20, 1984, the U.S. District Court for the District of Colorado
certified a class in this action which challenged the Secretary's
regulations, policies and practices for evaluating pain in applications
for Social Security benefits. On August 5, 1986, the court enjoined the
Secretary from failing to find a class member disabled “...solely or
primarily because of the lack of objective corroboration of subjective
allegations of pain at any point in the Secretary's analysis.” On
August 21, 1986, the Secretary notified all affected components of the
order and of preliminary instructions for processing pending cases via a
teletype (IT-75-86) issued by the Office of Disability. On October 6,
1986, the district court approved a stipulated stay of the relief to class
members whose claims were denied before August 21, 1986, and who no longer
had a claim pending. The stay did not apply to class members whose
disability claims were active on or after August 21, 1986. On December 18,
1986, OHA issued instructions for processing Luna
cases which were pending Administrative Law Judge, Appeals Council or
judicial review on or after August 21, 1986. Those instructions were
published in the OHA Staff Guides and Programs Digest in Bulletin No.
III-23(86).
On November 24, 1987, the U.S. Court of Appeals for the Tenth Circuit
reversed the district court and remanded for further consideration.
Following the Tenth Circuit's remand, the parties negotiated a
“Stipulation for Compromise Settlement” which the district
court approved on January 30, 1990 (Attachment 1). The Tenth Circuit's
standard for evaluating pain and the settlement agreement criteria for
developing evidence of pain are set forth below in section III. In
accordance with the terms of the settlement agreement, the Secretary
conducted training for Colorado DDS adjudicators on March 27, 1990.
III. Guiding Principles
In its November 24, 1987 order, the Tenth Circuit held that the 1984
statutory amendments on pain required “only a loose nexus between
the proven impairment and the pain alleged. Accordingly, if an impairment
is reasonably expected to cause some
pain, allegations of disabling pain
emanating from that impairment are sufficiently consistent to require
consideration of all relevant evidence.” However, the claimant
“must demonstrate more than a potentially pain causing impairment
before the decisionmaker must weigh all other evidence.” The Tenth
Circuit's decision upheld SSA's regulations and policies for evaluating
pain.
For cases decided at the fourth or fifth step of the sequential
evaluation, the court-approved “Stipulation for Compromise
Settlement” requires SSA to fully develop pain when:
•
pain is alleged by the claimant or is raised anywhere in the record
(including by the Colorado DDS adjudicative team),
•
the medically determinable impairment can reasonably be expected to
produce some pain, and
•
the pain, as alleged anywhere in the record, is of such intensity or
persistence that it could result in a reduction of residual functional
capacity (RFC) such that it would alter the decision in favor of the
claimant if borne out by full development.
Full development is described as development of each of the six factors
listed in Social Security
Ruling (SSR) 88-13.
In addition, the “Stipulation for Compromise Settlement”
requires DDS adjudicators to implement and use the Physical RFC Assessment
Form dated January 1989 (SSA-4734-U8 (1/89)) in evaluating disability in
cases proceeding beyond step 3 of the sequential evaluation.
IV. Definition of Class
For purposes of implementing the January 30, 1990 order, the class
consists of all persons who, before the date of the order:
•
applied for or have received title II or title XVI benefits, and
•
received an adverse administrative determination by the Colorado DDS on
their claim for benefits, and
•
had their claim(s) coded “251” by the Colorado DDS, even if
the case was coded incorrectly. (This code appears on the SSA-831-U3 or
833-U3 and identifies denial or cessation claims involving pain which
“imposes additional restriction on RFC.” The Colorado DDS
began listing cases under code 251 in April 1987.)
V. Determination of Class membership and Preadjudication
Actions
Class members were identified by computer run and initial notices were
sent to them in April 1990. Individuals had 30 days (unless extended for
good cause) from the date of receipt of the notice to request a
Luna review by returning a franked postcard
provided for this purpose. Folder alerts were generated for replies
received timely (and for cases in which good cause for a late response was
established).
No class membership screening should be necessary. The presence of an
alert and code “251” on the SSA-831-U3 or 833-U3 establishes
class membership.
In general, the Office of Disability and International Operations (ODIO)
or the Program Service Centers (PSCs) will associate the alerts with the
inactive claim folders and forward them to the servicing field office for
additional development as necessary. However, if ODIO or the PSC
determines that a current claim is located in OHA (pending in the hearing
office (HO) or Headquarters, or stored at Headquarters), they will forward
the alert along with any prior claim folder(s) not in OHA's possession to
the HO or Headquarters component for association and necessary
action.
1.
General
If an OHA component receives an alert but does not have the
Luna file, it must annotate the alert that it does
not have the file and send the alert to the Division of Litigation
Analysis and Implementation (DLAI) at the following address:
Office of Civil Actions
Division of Litigation
Analysis
and Implementation
Suite 702, One Skyline
Tower
P.O. Box 10723
Arlington, VA 22210
Attn:
Luna CoordinatorDLAI will return the folder alert to Litigation Staff for forwarding to
ODIO or the PSC to locate or reconstruct the Luna
file.
The HO or Office of Appellate Operations (OAO) must not suspend action on a current claim awaiting the Luna claim file.
If an OHA component receives an alert and does not have the current claim
folder, it must determine the folder location and forward the alert and
any accompanying prior claim folder(s) to that location.
Similarly, the HO or OAO must continue to process a current claim for any
claimant who is a potential Luna class member but
for whom the HO or OAO has not yet received an alert.
A claimant may have a civil action pending on the alerted claim or on a
claim filed before or after the alerted claim was filed or decided. In any
of these instances, OHA will notify the appropriate component of the
Office of the General Counsel (OGC), e.g., the Answer Section or the
Regional Chief Counsel's office, that the claimant has been identified as
a Luna class member. Unless advised otherwise by
OGC, OHA will associate the alert with the claim folder(s) and flag the
case for review by the DDS after the completion of court action using the
flag in Attachment 2. The DDS will determine if the court's action
resolved all the Luna issues.
If the court has remanded, OHA will process the alert in accordance with
section VI.C. or VI.E., as appropriate.
2.
Hearing Office
On association of a Luna alert and claim folder(s)
with a pending request for hearing on a subsequent claim, HO staff must
follow the instructions in section VI.C.
3.
Headquarters
On association of a Luna alert and claim folder(s)
with a pending subsequent claim, Headquarters staff must follow the
instructions in section VI.E.
If no subsequent claim is pending and the 120-day retention period for
holding the claim file after the Administrative Law Judge's or Appeals
Council's action has expired, Headquarters staff must send the alert and
combined claim folder(s) to the DDS servicing the claimant's current
address. If less that 120 days has elapsed, Headquarters staff must attach
a class member flag to the outside of the combined claim folder(s) (see
Attachment 2), to direct the case to the appropriate DDS after expiration
of the retention period.
VI. Processing and Adjudication
A. Cases Reopened by the DDS
The DDS in the state of the claimant's current residence will ordinarily
conduct the Luna review. The DDS determination will
be a reconsideration determination with the first appeal being to the ALJ
hearing level. ALJs must process and adjudicate requests for hearing on
DDS Luna review determinations in the same manner
as any other case.
B. Issue to be Considered in Luna Claims
Because the Luna court order requires the Secretary
to fully reopen the claims of class members, the issue in a title II
Luna review claim is whether the claimant was
disabled at any time from the date of alleged disability onset in that
claim through the present. If the claimant is no longer insured, the issue
would be whether the claimant was disabled at any time within the insured
period and, if so, whether the disability continues through the present.
In a title XVI claim, the issue would be whether the claimant was disabled
at any time from the date of the application which formed the basis for
the claimant's Luna class membership through the
present.
If a Luna class member has filed a subsequent
disability claim which is pending, the Luna review
claim and the subsequent claim may raise identical issues, or they may
have only some issues in common. For example, the issues would be
identical in a title II Luna review claim and a
subsequent title II claim if the alleged onset dates were the same. If a
title II Luna claim involves an alleged onset date
which is earlier than the date alleged in a subsequent title II claim, the
Luna claim would raise an additional issue of
disability between the two alleged onset dates. Similarly, if the
Luna claim and the subsequent claim are both title
XVI claims, the Luna claim would raise a new issue
of disability between the dates the claims were filed. (Of course there
would be no issues in common if the
subsequent claim raises only non-disability issues, e.g., overpayment,
relationship or income and resource issues.)
C. Subsequent Claim before Administrative Law Judge
Disposition of a Luna review claim which is first
associated with a subsequent claim pending at the hearing level depends on
whether a hearing has been scheduled or held and on whether the claims
share a common issue.
1.
New Request for Hearing Cases in Which a Hearing Has Been Scheduled or
Held, and All Remand Cases
If a Luna class member has a request for hearing
pending on a subsequent claim and the Administrative Law Judge has
scheduled or held a hearing, the Administrative Law Judge must consolidate
the Luna review with action on the subsequent
claim. The Administrative Law Judge must also consolidate claims if the
Luna class member's subsequent claim is before the
Administrative Law Judge on remand from the Appeals Council or a
court.
If the Luna review claim raises any additional
issue(s) not raised by the subsequent claim, the Administrative Law Judge
must give proper notice of the new issue(s) as required by
20 CFR §§
404.946(b) and
416.1446(b). If
the Administrative Law Judge has already held a hearing and the
Luna review claim raises additional issues, the
Administrative Law Judge must offer the claimant a supplemental hearing
unless the Administrative Law Judge is prepared to issue a decision which
is fully favorable with respect to the Luna claim.
In all instances in which claims are consolidated, the Administrative Law
Judge must issue one decision which addresses both the issues raised by
the current request for hearing and those raised by the
Luna review. The decision must clearly indicate
that the Administrative Law Judge is reopening the final determination or
decision in the Luna claim and is considering the
Luna claim pursuant to the
Luna settlement agreement.
The Administrative Law Judge must not consolidate the claims if
1.
the subsequent claim and the Luna review claim have no issues in common,
or
2.
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 first exception applies, the HO will route the
Luna review claim to the servicing DDS to conduct
the Luna review, and the Administrative Law Judge
will proceed with action on the subsequent claim. The second exception
would normally apply when the Luna claim raises an
additional issue. In this situation, as with the first exception, the HO
will send the Luna review claim to the DDS to
conduct the Luna review.
2.
Request for Hearing Cases — Hearing Not Scheduled
If a Luna class member has a request for hearing
pending on a subsequent claim and the HO has
not yet scheduled a hearing, the
Administrative Law Judge must dismiss the request for hearing without
prejudice and send the subsequent claim to the DDS servicing the
claimant's current address for consolidation with the
Luna review claim unless one of the exceptions
below applies. (See Attachment 3 for sample dismissal order
language.)
The Administrative Law Judge must not dismiss the subsequent claim
if:
1.
the Administrative Law Judge is prepared to issue a fully favorable,
on-the-record decision on the subsequent claim which would be fully
favorable with respect to all issues raised by the
Luna claim, or
2.
the subsequent claim and the Luna review claim have no common
issues.
If the first exception applies, the Administrative Law Judge must
consolidate the claims as described in section VI.C.1. If the second
exception applies, the HO will route the Luna
review claim to the servicing DDS to conduct the
Luna review, and the Administrative Law Judge will
then take the necessary action to complete the record and issue a decision
on the subsequent claim.
D. Reinstated Requests for Hearing
When an Administrative Law Judge dismisses a request for hearing and sends
the folders to the DDS for the Luna review and the
DDS does not take a fully favorable action, the DDS will notify the
claimant of the result of its Luna review and
return all folders to the HO for automatic reinstatement of the request
for hearing.
If the DDS issues a partially favorable determination, it will forward the
case for effectuation with instructions to return the case to the HO after
effectuation is completed. The HO must code reinstated requests for
hearing as new requests for hearing, using the date of the DDS action as
the request for hearing date.
On return of the folders to the HO, the Administrative Law Judge must
acknowledge receipt, notify the claimant of the reinstatement, and also
advise the claimant that the request for hearing on the subsequent claim
includes a request for hearing on the Luna review
claim. (See Attachment 4 for sample acknowledgment notice language.) The
notice of hearing must indicate that the hearing will be on both claims
and the final decision must address the issues raised by both
claims.
E. Subsequent Claim Pending at the Appeals Council
Disposition of a Luna review claim which is first
associated with a subsequent claim pending at the Appeals Council level
depends on the action the Appeals Council takes on the subsequent claim.
Therefore, OAO must keep the claim files together until the Appeals
Council completes its action on the subsequent claim. Possible Appeals
Council actions on subsequent claims and the corresponding actions on
Luna review claims are as follows.
1.
Appeals Council dismisses or denies review
If the Luna review claim and the subsequent claim
have common or identical issues, OAO staff must attach a
Luna flag (Attachment 2) to the combined claim
folders of a class member. If the claimant does not file a civil action,
at the end of the retention period OAO staff must forward the combined
claim folders to the DDS servicing the claimant's current address. If the
claimant does file a civil action, Office of Civil Actions staff must
modify the Luna court case flag to direct the file
to the servicing DDS after completion of court action.
If the Luna review claim and subsequent claim have
no common issues, OAO will forward the Luna review
claim to the DDS to conduct the Luna review, and
will proceed with its action on the subsequent claim.
2.
Appeals Council is prepared to issue a decision
a.
Subsequent claim and Luna claim raise identical
issues
In this instance, the Appeals Council must consolidate the claims. The
Appeals Council's decision must clearly indicate that the Council is
reopening the final determination or decision on the
Luna claim and is issuing a decision which
considers both applications, and has considered the
Luna claim pursuant to the
Luna settlement agreement.
b.
Subsequent claim and Luna claim have common, but
not identical, issues
If the Appeals Council is prepared to issue a decision which is fully
favorable with respect to all of the issues raised by the
Luna claim, the Appeals Council must consolidate
the claims and issue a single decision. However, the Appeals Council may
not issue a decision which is unfavorable with respect to a new issue on
which the claimant has not yet had the opportunity for a hearing. Thus, if
the Appeals Council is not prepared to issue a decision which is fully
favorable with respect to all issues on which the claimant has not yet had
the opportunity for a hearing, the Appeals Council must consolidate the
claims and issue a combined decision/remand order which rules on the
favorable aspects of the case and remands the remaining new issues for a
(supplemental) hearing.
c.
Subsequent claim and Luna claim have no common
issues
If the Luna review claim and subsequent claim have
no common issues, OAO will forward the Luna review
claim to the DDS to conduct the Luna review, and
will proceed with its decision on the subsequent claim.
3.
Appeals Council issues a remand
The remand order must direct the Administrative Law Judge to consolidate
the Luna review with the current claim.
The Appeals Council must not direct the Administrative Law Judge to
consolidate the claims if:
1.
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, or
2.
the subsequent claim and the Luna review claim have
no common issues.
F. Copy Requirements in Consolidation Cases
For all cases in which OHA is the first level of review for the
Luna claim, i.e., the Appeals Council or an
Administrative Law Judge consolidates the Luna
review with review of a subsequent claim, HO or OAO personnel, as
appropriate, must send a copy of the final decision to the OHA
Luna coordinator at the address shown on page 4.
VII. Inquiries
Hearing office personnel should contact their Regional Office. Regional
Office personnel should contact the Division of Field Practices and
Procedures in the Office of the Chief Administrative Law Judge on FTS
305-0022.
Attachment 1. - Stipulation for Compromise Settelement Approved January 30,
1990
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 83-F-1431
MAGDALENA LUNA, et al.,
Plaintiffs,
v.
LOUIS W. SULLIVAN, M. D.,
Secretary of Health
and Human
Services,
Defendant.
STIPULATION FOR COMPROMISE SETTLEMENT
It is hereby stipulated and agreed by and between the plaintiffs, by and
through their counsel, Daniel M. Taubman, Colorado Coalition of Legal
Services Programs, R. Eric Solem, Legal Aid Society of Metropolitan
Denver, and Nancy Wallace, Colorado Rural Legal Services; and defendant,
Louis W, Sullivan, M. D., Secretary of Health and Human Services, by
through his attorneys, Michael J. Norton, Acting United States Attorney,
District of Colorado and Jerry R. Atencio, Assistant United States
Attorney, as follows:
1.
The parties do hereby agree to settle and compromise the above-entitled
action upon the terms and conditions stated herein.
2.
Each and every claim asserted by the plaintiff class in the above-entitled
action is hereby resolved by the execution of this stipulation for
compromise by the above-referenced plaintiffs' counsels, and entry of an
order by the Court approving the terms of this stipulation for compromise
settlement. The terms of this stipulation for compromise settlement are
the sole terms over which the Court shall have continued jurisdiction for
the purposes of enforcing the terms as set forth in this stipulation for
compromise settlement.
3.
Defendant by entry into this stipulation for compromise settlement does
not admit that any of the allegations as set forth in the Complaint are
meritorious. The parties enter into this Stipulation For Compromise
Settlement in order to avoid the costs of further litigation.
4.
The Secretary of Health and Human Services will provide a copy of Luna v.
Bowen, 834 F.2d 161 (10th Cir. 1987) to each of the State of Colorado
Disability Determination Service adjudicators. The Secretary of Health and
Human Services shall provide copies of this decision to the Colorado
Disability Determination Service adjudicators within sixty (60) days of
entry of an order of dismissal of this action by the Court.
5.
The Secretary of Health and Human Services agrees to notify each and every
individual who has filed an application for disability in the State of
Colorado whose file is coded “251” and advise him/her that
s/he is entitled to reopen his/her disability determination. The Secretary
of Health and Human Services shall provide such notice within ninety (90)
days of the date of entry of an order of dismissal of this action by the
Court. The Secretary of Health and Human Services shall provide such
notice at his expense. Plaintiffs' counsels shall be provided a copy of
the notice when it is mailed out. These cases shall be reviewed pursuant
to the criteria set forth at paragraph 6, hereof. The Secretary agrees to
provide plaintiffs' counsels a copy of the report setting forth the number
of notice mailed to the individuals whose files were coded
“251” and further agrees to provide plaintiffs' counsels a
numerical count of persons requesting reopening, cases denied and cases
awarded disability benefits.
6.
The parties agree that for all cases not decided prior to the fourth step
of the sequential evaluation process (i.e., ability to perform past
relevant work) pain will be developed fully in all cases where (a) pain is
alleged the claimant or is raised elsewhere in the record (including by
the Colorado Disability Determination Service adjudicative team), (b) the
medically determinable impairment can reasonably be expected to produce
some pain, and (c) the pain, as alleged anywhere in the record, is of such
intensity or persistence that it could result in a reduction of residual
functional capacity such that it could alter the decision in the case in
favor of the claimant if borne out by full development. When the file
indicates no evidence of the intensity or persistence of pain, the
Colorado Disability Determination Service adjudicator must request such
information from the claimant. Full development is development of each of
the six factors in the first paragraph of page 4 of
SSR 88-13, including at
a minimum, use of the Colorado Disability Determination Service personal
pain questionnaire and the completion of the disability rationale on the
new Residual Functional Capacity (“RFC”) form (dated l/89)
which shall reflect the pain evidence developed and how it affected or did
not affect the decision or RFC. Use of the Colorado Disability
Determination Service personal pain questionnaire shall not be required if
superseded by a national form designed to obtain comparable information
regarding subjective pain. Use of the Colorado Disability Determination
Service personal pain questionnaire shall not be required if the pain
evidence is already reflected elsewhere in the case file. For all cases
meeting the requirements of (a) and (b) above, (but not (c)), the Colorado
Disability determination Service adjudicator will nevertheless not deny a
claim involving pain without carefully considering all the evidence
present in the file; including subjective pain evidence, and expressly
reflection that consideration on the RFC from.
8.
The Secretary of Health and Human Services agrees to implement and use the
Residual Functional Capacity Form (“RFC”) dated January 1989
in evaluating disability in cases proceeding beyond Step 3 of the
Sequential Evaluation Process.
9.
The Secretary of Health and Human Services agrees to provide training in
accordance with the SSA TRAINING: Supplemental Guide For Evaluating Pain,
Social Security Administration, Office of Human Resources, Training, and
Management Analysis, Office of Training, Pamphlet dated June 1988, as
clarified by paragraph 6 of this Stipulation For Compromise Settlement, to
the Colorado Disability Determination Service adjudicators. The Secretary
of Health and Human Services shall provide this training within sixty (60)
days of entry of an order dismissing this action. The Secretary of Health
and Human Services will provide an opportunity to plaintiffs' counsels to
participate in this training by allowing them to make a presentation to
the Colorado Disability Determination Service adjudicators.
10.
The Secretary of Health and Human Services agrees to conduct a targeted
review within 180 days of completion of the Secretary's training of the
Colorado Disability Determination Services' compliance with
SSR 88-13 as clarified
by paragraph 6, hereof. Said compliance review shall be conducted by the
Secretary's Region VIII Disability Quality Branch (“DQB”).
The Secretary of Health and Human Services agrees to provide the Court a
report of said compliance review within sixty (60) days of the completion
of the review.
11.
The Secretary of Health and Human Services agrees to provide the Court
with periodic reports at 135 days, 225 days, and 315 days from the entry
of an order of dismissal by this Court advising the Court as to the status
of compliance with the terms of this Stipulation for Compromise
Settlement. A status report of the actions taken by the Secretary to
comply with this stipulation for compromise settlement will be filed at
the time frames stated above, which will include actions taken to notify
individuals pursuant to paragraph 5, hereof; the development and
documentation undertaken in compliance with paragraph 6, hereof; the
training provided in accordance with paragraph 9, hereof; and the review
conducted under paragraph 10, hereof.
12.
The Secretary of Health and Human Services agrees to pay plaintiffs'
counsels the sum of FORTY THOUSAND DOLLARS ($40,000.00) for their fees and
costs. No party shall file a motion and/or application for further
attorneys' fees and costs. The above sum reflects a compromise of
attorneys' fees and costs and shall not be used as precedent in any other
litigation. The above sum is a compromised amount under the Equal Access
to Justice Act, as amended reflecting risks of litigation. The settlement
of this amount shall not be precedent by any party for future litigation
in this matter or any other matter as it reflects the unique litigation
risks and positions of the parties.
13.
The terms set forth in this Stipulation For Compromise Settlement shall be
in full settlement and satisfaction of any and all claims and demands, of
whatever nature the plaintiffs had, or may hereafter acquire against the
defendant, the Secretary of Health and Human Services, and any of his
agencies, agents, servants, employeed, or instrumentalities on account of
the incidents or circumstances giving rise to the above-entitled action
and as more particularly set forth in the pleadings filed herein.
14.
The Court shall retain jurisdiction over this action for the period of one
(1) year for the sole purpose of interpreting and enforcing the terms of
this Stipulation For Compromise Settlement.
15.
The parties have entered into a Stipulation Of Dismissal pursuant to 28
U.S.C. § 2677 and it is being filed herewith. The parties recognize
that the Court shall have jurisdiction for the period of one (1) year from
the date of entry of the order of dismissal of this action to enforce the
provisions hereof.
|
|
Respectfully submitted,
|
________/s/________
Daniel
M. Taubman, Esq.
Colorado Coalition of
Legal Services
Programs
1905 Sherman Street, #710
Denver, CO 80203
(303)
830-1551
Date: 1/26/90
/s/
R.
Eric Solem, Esq.
Legal Aid Society of
Metropolitan
Denver
1905 Sherman Street, #400
Denver, CO 80203
(303)837-1313
Date: 1/26/90
|
Michael J. Norton
Acting U.S. Attorney
______/s/_______
JERRY R. ATENCIO
Deputy
Chief, Civil Division
Assistant U.S. Attorney
District
of Colorado
1200 Byron G. Rogers Fed. Building
Drawer
3615
1961 Stout Street
Denver, CO 80294-3615
Telephone:
(303)844-3615
FTS NO. 564-2064
Date: 1/25/90
Attorneys for Defendant
|
Nancy Wallace, Esq.
Colorado
Rural Legal Services
424 Pine Street #105
Fort Collins,
CO 80524
(303) 493-2891
Date: 1/26/90
Attorneys for Plantiffs
|
|
Attachment 2. Case Flag (for Review Following Court Action or Expiation of
Retention Period)
LUNA CLASS ACTION CASE
REVIEW
NECESSARY
Claimant's name __________________________________
SSN __________________________________
State of current residence _______________________
This claimant is a Luna class member. Forward claim
folder(s) to the DDS servicing the claimant's current address for review:
________ after completion of court action
________ after expiration of the retention period
If the claimant lives in Colorado, send folders to:
Department of Social Services
Division of Rehabilitation
Disability Determination Services
2121 South Oneida
P.O.
Box 22336
Denver, Colorado 80222
(Destination
code S07.)
DDS addresses and systems destination codes for other states are in the
Directory of State DDSs contained in the Service Area Directory.
Attachment 3. Sample - Dismissal Order Language
On ___________, the claimant filed a request for hearing on the issue(s)
raised by (his/her) application(s)
dated ___________. The claimant has now been identified as a member of the
Luna class and is entitled to have the final
administrative denial of (his/her) prior application(s) reviewed under the
terms of the stipulation for compromise and settlement approved by the
court on January 30, 1990.
Pursuant to the written instructions for implementing the
Luna court order, the claimant's
(date of current application(s))
application(s) (is/are) being
associated with (his/her) prior
claim(s) and forwarded to the
(Colorado/________) State Disability
Determination Service, which will conduct the Luna
review. Accordingly, the undersigned hereby dismisses without prejudice
the request for hearing filed on __________, on the application(s) dated
__________.
If the Disability Determination Service issues a determination which is
unfavorable, either in whole or in part, it will return the claim files to
this office for automatic reinstatement of the
(date of hearing request) request
for hearing.
Attachment 4. Sample Acknowledgement Notice - Reinstated Request for
Hearing
Sample Acknowledgement Notice - Reinstated
Request for
Hearing
The Disability Determination Service has returned your claim to this
office for further action on your request for hearing dated ___________.
The Disability Determination Service did not take a (fully) favorable
action in its review of your prior claim under the
Luna court order. Accordingly, I have reinstated
your request for hearing and will notify you of the time and place of the
hearing at least twenty (20) days before the date of the hearing. The
reinstatement of your request for hearing dated ___________ includes a
request for hearing on the Luna review.
Submitting Additional Evidence
You have the right to submit new evidence regarding your condition. If you
have additional evidence you want the Administrative Law Judge to
consider, send it to us now or call us within the next seven days to tell
us when you will submit it. If you need help gathering evidence, you
should immediately contact our office, your local Social Security Office,
or your representative if you appoint one.
You May See the Evidence in Your File
If you wish to see the evidence in your file, you may do so on the date of
the hearing. If you wish to review your file before the date of the
hearing, telephone this office.
(Add the following language for unrepresented claimants:)
You May Choose to Have A Person Represent You
You are not required to have a representative, but you have the right to
retain one. A representative can help you obtain evidence, prepare for the
hearing, and present your case at the hearing. If you wish to have an
attorney or other qualified person represent you, you should appoint the
representative immediately so that he or she can start preparing your
case.
If you want a representative but do not know how to obtain one, we have
enclosed a list of groups that may be able to provide or help you obtain
representation. Some private attorneys do not charge a fee unless you
receive benefits. If you cannot afford to pay for representation, some
organizations may be able to represent you without charging a fee. If your
representative charges a fee, we must approve it.
The enclosed leaflet, “Social Security and Your Right to
Representation,” provides more information about representation. If
you obtain a representative, you or your representative should call this
office to give us his or her name, address, and telephone number. You will
also need to complete a form that we provide for appointing a
representative. Any local Social Security Office can give you this
form.