ISSUED: December 8, 1997
I. Purpose
This instruction provides procedures for processing
Zebley class member childhood disability claims in
light of the childhood disability provisions of Public Law 104-193 (Pub.
L. No. 104-193), the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, effective August 22, 1996. Among other
provisions, Pub. L. No. 104-193 provides a new statutory definition of
disability for children and mandates changes to the evaluation process for
children's disability claims. These instructions apply with respect to
Zebley cases which are and will be pending before
the Office of Hearings and Appeals (OHA). These procedures amend and
supplement existing procedures contained in
HALLEX Temporary Instructions (TIs)
HA 01540.028 and
HA 01540.030.
II. Zebley Readjudication Cases
A Zebley readjudication case is any
Zebley class member childhood disability claim
which received a less than fully favorable determination at any level or
which was terminated on or after January 1, 1980, through February 27,
1990. New claims for SSI childhood disability benefits are not evaluated
using the same procedures as Zebley class member
cases. New claims for SSI childhood disability are processed using the
June 6, 1997, OHA instructions and the appropriate regulations and
Rulings.
As explained in the Associate Commissioner's April 26, 1994 memorandum
entitled “Readjudication Claims Folders for
Zebley Medical Redeterminations”, SSA agreed
to redetermine certain Zebley class member cases
which had already been readjudicated, and certain categories of
non-Zebley class member SSI childhood claimants as
outlined in the Stipulation and Order issued May 4, 1993. However,
pursuant to the court order, these two categories of redetermined cases do
not have appeal rights to OHA and these instructions do not apply to cases
redetermined under the Stipulation and Order issued May 4, 1993.
III. Screening for Zebley Claimants Who Have
Attained Age 18
Hearing offices (HOs) should screen all Zebley
cases to determine whether the claimant has attained age 18.
If the Zebley claimant is now an adult, apply the
adult standard beginning with the date the claimant attained age 18.
Remember that pursuant to
20 CFR
416.120(c)(4), an individual attains a given age on the first
moment of the day preceding the anniversary of his birth corresponding to
such age.
IV. Zebley Claimant Has Attained Age 18
If a Zebley claimant has attained age 18, first use
the disability standard for an adult beginning with the day the claimant
attained age 18. Apply the Zebley presumptions of
retroactive disability as explained in V.
below for the period before the claimant attained age 18. If the decision
is not fully favorable using the adult standard and the presumptions, use
the process described in VI. below to
adjudicate the period before the claimant attained age 18.
The Notice of Hearing must advise the claimant that the period beginning
with the attainment of age 18 will be evaluated under the existing adult
disability standard. The Notice of Hearing must provide the appropriate
childhood disability criteria (possibly both September 1993 regulations
and the current (new) standard) as well as the adult criteria and state
that all issues will be decided.
The adjudicator should issue one decision to adjudicate the entire period,
i.e., prior to attainment of age 18 and after attainment of age 18 (three
standards may apply). The decision should contain appropriate issues,
rationale, findings and decisional language for each period at
issue.
V. The Zebley Presumptions of Retroactive
Disability
The March 14, 1991 Zebley Stipulation and Order
states that SSA will instruct adjudicators to infer that, in the absence
of contrary evidence (such as traumatic onset of disability or a new
impairment) or contrary medical judgment, a class member is disabled from
the date of the first application for children's SSI disability payments
which is included within the class period (i.e., on or after January 1,
1980), if he or she has subsequently been found disabled under title II or
title XVI, either as an adult or as a child.
If the medical evidence supports a finding of current disability, but
evidence of past condition is not readily available, and the class member
has not been found disabled on a subsequent disability claim, the
adjudicator will determine, based on the nature of the impairment, whether
it is reasonable to presume that the class member's past condition and
impairments were as severe as they are currently. See TI
HA 01540.028 VI.E.1. and
TI HA 01540.030.
If the adjudicator finds current disability, the adjudicator must
establish disability as of the earliest Zebley
application within the class period
unless there is contrary evidence
(such as a later traumatic/acute onset or a different impairment
manifesting itself after the Zebley application
date) or a contrary medical judgment (a medical judgment which indicates
that, under the applicable regulations, the impairment, especially a
progressive impairment, was not disabling at the time of the earliest
application.) If the adjudicator finds current disability, and there is
contrary evidence or contrary medical judgment, the adjudicator must
readjudicate the Zebley claim based on all
available evidence, including any medical evidence in any prior folders
which can be obtained.
VI. Childhood Standards To Be Applied
OHA will process Zebley readjudication cases by
making one decision using two different standards if necessary (possibly
three standards if the claimant has attained age 18) (see
IV. above for instructions if the
claimant has attained age 18).
SSA issued the new childhood disability evaluation regulations on February
11, 1997, at 62 FR 6408 as interim final rules, effective April 14, 1997.
However, because some Zebley readjudication cases
will be evaluated under the September 1993 regulations, for the period
before August 22, 1996,
DO NOT DISCARD THE SEPTEMBER 1993 REGULATIONS.
Apply the following process in readjudicating these cases if the claimant
has not attained age 18.
A.
OHA adjudicators will first apply Pub. L. No. 104-193 and the new
childhood disability evaluation regulations issued on February 11, 1997,
(“the current (new) childhood disability standard”), from the
date of the earliest Zebley application/termination
to the present. If the decision is fully favorable, follow the
instructions in VII. below. If the
decision is not fully favorable follow B. below.
B.
If the decision is not fully favorable based on the current (new)
childhood disability standard, apply the standard contained in the
September 9, 1993 childhood disability regulations (58 FR 47532), for the
period from the earliest Zebley
application/termination through August 21, 1996, or age 18, whichever is
earliest. (Only the new regulations can be used for the period beginning
August 22, 1996, the date of enactment of Pub. L. No. 104-193.)
C.
If the claimant is determined disabled under the September 1993 childhood
regulation but not disabled under Pub. L. 104-193, payments will cease as
of July 1, 1997, or two months after the date of the OHA decision,
whichever is later. NO PAYMENTS CAN BE TERMINATED PRIOR TO JULY 1, 1997.
However, the individual must continue to meet all other eligibility
criteria (i.e. non-medical), to receive payments. OHA adjudicators must
state that benefits will terminate two months after the date of the OHA
decision. Follow the instructions in
VII. D. below
VII. Hearing Office Procedures
A. Hearing Held But Decision Not Dated and Issued Before August 22,
1996 — Notice Requirements
If a hearing was held but a decision was not issued before August 22,
1996, and using the new definition of disability would result in a less
than fully favorable decision, the adjudicator will send a notice (see
Attachment 2) which provides the claimant and representative, if any, the
opportunity to:
(a)
submit additional evidence;
(b)
submit written comments; and/or
(c)
request a supplemental hearing.
(See HALLEX
HA 01260.080, Continued
or Reopened Hearing.)
B. Hearing Not Yet Scheduled and New Receipts — Notice
Requirements
If review reveals, based on an evaluation of the evidence currently of
record, that the new definition of disability may result in a less than
fully favorable decision for the childhood part, and a hearing has not yet
been scheduled, schedule a hearing in the usual manner. In addition to the
notice language based on the September 1993 regulations, include the new
definition of disability for children (see Attachment 3) in the Notice of
Hearing and indicate that the new definition of disability applies
beginning August 22, 1996. If the claimant has attained age 18, include
the adult standard of disability in the Notice of Hearing (see
IV. above).
C. Decisional Requirements — Fully Favorable Using Current
(New) Standard
If applying the new definition of childhood disability will result in a
fully favorable decision, process the case and issue a decision. The
decision must:
•
eliminate all references describing the prior standard for childhood
disability, e.g., “comparable severity” and the child's
“ability to function independently, appropriately and effectively in
an age-appropriate manner.” The decision may refer to “marked
and severe functional limitations.”
•
include a specific finding and decisional language with respect to the new
definition of disability for children. See sample findings and decisional
language at Attachment 1.
There is no change to OHA's longstanding policy requiring ALJs and the AC
to obtain opinions on medical equivalence from medical experts. (See
Social Security Ruling (SSR)
96-6p for a discussion of when an updated medical opinion from a
medical expert is required.) Because of the kind of equivalence
determinations required in childhood disability claims, the ALJ or the AC
may not need to obtain medical expert opinion to assist in deciding the
issue of functional equivalence. The ALJ or AC, however, is not precluded
from obtaining medical expert opinion to assist in deciding the issue.
D. Decisional Requirements (Two Standards)
If a fully favorable decision for the childhood part using the current
(new) standard cannot be issued, the decision must reflect that the
adjudicator evaluated the claim using both the September 1993 childhood
regulations and the new law. For example, prepare one decision showing an
allowance (or denial) based on the September 1993 regulations and denial
(or allowance) for the period beginning August 22, 1996, based on Pub. L.
No. 104-193 and the current regulations. In cases involving an allowance
based on an individualized functional assessment under the September 1993
regulations, or based on consideration of maladaptive behavior in the
personal/behavioral domain, Pub. L. No. 104-193 states that the medical
improvement review standard (MIRS) in section
1614(a)(4) of the
Social Security Act and
20 CFR 416.994a
does not apply to these claims.
The adjudicator will use the appropriate issues, findings and decisional
language to reflect this evaluation. Use the following or similar language
in the rationale:
While your request for hearing was pending, a new law (Pub. L. No.
104-193) became effective. As a result of this law, I will evaluate your
claim prior to August 22, 1996, under the September 1993 childhood
regulations and under the new law beginning on August 22, 1996. The new
definition of disability requires more serious limitations than the old
definition. Although you are disabled under the old definition, I have
also found that you are not disabled under the new definition as of August
22, 1996, the effective date of the new law. The new law requires that
payments cease as of July 1, 1997, or two months after the date of my
decision, whichever is later. Therefore, your benefits terminate ______.
[Insert date two months after the date of the OHA decision.]
Modify this language and the findings as appropriate for potential closed
period, later onset date, attainment of age 18 cases, and unfavorable
decisions for the entire period.
E. HO Routing and Hearing Office Tracking System (HOTS) Coding
1.
Routing
The HO will follow current instructions for routing
Zebley readjudication cases. The HO will annotate
the HA-5051 as follows: “Zebley
Readjudication Case.”
2.
HOTS Coding
Because we are adjudicating the Zebley cases
pursuant to a court order which may require adjudicators to apply three
different standards, DO NOT use the coding instruction in the June 6, 1997
Procedures for Processing SSI Childhood Disability Cases. HOs will NOT
split cases in which the claimant is over 18 at the time of adjudication.
HO staff will code “Z” in the HOTS class action field and
“X” in the new special case code field. HO staff will code
these cases in the OHA Case Control System as “Z” in the SPC
field. (If the HO is using HOTS coding Sheets, the “Z” will
appear automatically in the SPC field on the coding sheet.) These entries
will allow the HO to bypass the regulation basis and impairment fields
which are required entries for other SSI childhood cases.
VIII. Appeals Council Procedures
A. Request for Review (R/R) of an Administrative Law Judge (ALJ)
Decision Dated and Issued Before, On or After August 22, 1996
Any Zebley class member case in which an ALJ has
issued a decision before August 22, 1996, and the Appeals Council (AC)
grants the R/R, or in which an ALJ has issued a decision on or after
August 22, 1996, and the claimant has requested that the AC review the
decision, shall be reviewed in accordance with the evaluation process set
out in VIII. A. 2. below, if the AC
decides to grant review.
Any Zebley class member claim in which the ALJ has
issued a decision before August 22, 1996, and the AC proposes to deny
review or dismiss, is not subject to the provisions of Pub. L. No.
104-193.
The AC may take any of its usual actions in such cases including:
•
granting the R/R and issuing a decision;
•
remanding the case to an ALJ;
1.
AC Denies R/R
No special action or notice is required when the AC denies a R/R of a
favorable, partially favorable, or wholly unfavorable decision or
dismissal dated and issued before, on or after August 22, 1996. The
current denial of R/R notice includes language that the AC considered the
applicable statute, regulations and Rulings in effect at the time of the
action taken.
2.
AC Grants R/R and Issues Decision
If the AC grants a R/R of an ALJ decision issued before, on or after
August 22, 1996, the AC must apply the provisions of Pub. L. No. 104-193.
The grant review notice must specify that the issue of disability will be
evaluated using the current (new) standard under Pub. L. No. 104-193, and
if the decision is not fully favorable, then the standard contained in the
September 9, 1993 childhood disability regulations will be applied for the
period from the earliest Zebley
application/termination date through August 21, 1996 (See VI. above). If
the AC grants a R/R on a claim in which the ALJ decision is partially
favorable, the AC should, when appropriate, and consistent with
20 CFR
416.1476(a), affirm the ALJ's decision in part and
limit the issue(s) to the unfavorable findings.
If applying the new definition of disability will result in a fully
favorable decision, the AC decision must:
•
eliminate all references describing the prior standard for childhood
disability, e.g., “comparable severity” and the child's
“ability to function independently, appropriately and effectively in
an age-appropriate manner.” The decision may refer to “marked
and severe functional limitations.”
•
include a specific finding and decisional language with respect to the new
definition of disability for children. See sample findings and decisional
language at Attachment 1.
There is no change to OHA's longstanding policy requiring ALJs and the AC
to obtain opinions on medical equivalence from medical experts. (See
SSR 96-6p for a
discussion of when an updated medical opinion from a medical expert is
required.) Because of the kind of equivalence determinations required in
childhood disability claims, the ALJ or the AC may not need to obtain
medical expert opinion to assist in deciding the issue of functional
equivalence. The ALJ or AC, however, is not precluded from obtaining
medical expert opinion to assist in deciding the issue.
In a decision that is not fully favorable using the current (new)
standard, the AC will indicate that both the September 1993 childhood
regulations and the new law were used to evaluate the claim. In this
situation, prepare one decision showing an allowance (or denial) based on
the September 1993 regulations and denial (or allowance) based on Pub. L.
No. 104-193 and the current regulations. In cases involving an allowance
based on an individualized functional assessment under the September 1993
regulations, and based on consideration of maladaptive behavior in the
personal/behavioral domain, Pub. L. No. 104-193 states that the MIRS in
section 1614(a)(4)
of the Social Security Act and
20 CFR 416.994a
does not apply to these claims. The AC will use the appropriate issues,
findings and decisional language to reflect this evaluation.
Use the standard unfavorable or partially/fully favorable decision cover
notice as appropriate.
3.
AC Prepared to Remand Case to ALJ
If the AC is prepared to remand the case to an ALJ for further
proceedings, the AC Order of Remand will reflect that Pub. L. No. 104-193
and the current (new) childhood disability standard apply only if the
decision on remand is fully favorable, and if not, the current (new)
standard applies only to the period after August 21, 1996. If the AC
grants a R/R on a claim in which the ALJ decision is partially favorable,
the AC should, when appropriate, and consistent with
20 CFR
416.1476(a), affirm the ALJ's decision in part and
limit the issue(s) on remand to the unfavorable findings.
B. Favorable (Including Partially Favorable) ALJ Decision Dated and
Issued Before August 22, 1996 — AC Took Own Motion
If the AC took own motion review of an ALJ's favorable or partially
favorable decision dated and issued before August 22, 1996, and the AC
issued a propose-to-find notice, the AC will:
•
send a revised notice advising the claimant that the September 1993
regulations apply in evaluating the child's disability for the period
before August 22, 1996, and the provisions of Pub. L. No. 104-193 apply
for the period beginning August 22, 1996.
•
continue to process the case and issue a decision. The decision will
provide language regarding both the September 1993 regulations and the new
definition of disability under Pub. L. No. 104-193 which will apply
beginning August 22, 1996 (see sample language in Attachment 1).
If the AC proposes to take less than fully favorable action on the case,
and the claimant received an on-the-record decision from an ALJ, the
claimant has a right to a hearing. If the claimant waives his or her right
to a hearing, the AC will proceed with its decision. However, if the
claimant requests a hearing, or merely submits evidence or comments for AC
consideration, or does not respond to the AC notice, the AC will remand
the case to an ALJ. The standard propose-to-remand notice must be modified
to include the right to a hearing in these cases.
C. Processing Claims Where the Child Has Attained Age 18 After the
ALJ Decision or Dismissal
1.
AC Denies R/R
No special action or notice is required when the AC denies a R/R. The
standard notice of denial of R/R includes language that the AC considered
the applicable statute, regulations and Rulings in effect at the time of
the action taken. The age 18 redetermination will be done in a separate
determination for favorable or partially favorable decisions.
2.
AC Grants R/R and Remands Case to ALJ
If the AC remands the case to an ALJ, the AC Order of Remand will advise
the ALJ to apply the adult standard for the period beginning with
attainment of age 18. The AC Order of Remand will reflect that Pub. L. No.
104-193 and the current (new) childhood disability standard apply only if
the decision on remand is fully favorable, and if not, the new (current)
standard applies only to the period after August 21, 1996.
3.
AC Granted Review or Took Own Motion Before August 22, 1996
If, prior to August 22, 1996, the AC granted review or exercised own
motion review authority over an ALJ's favorable or partially favorable
decision and issued a propose-to-find notice, the AC must:
•
send a revised notice advising the claimant that the adult rules apply
beginning with the attainment of age 18 and that the childhood standard(s)
apply for the period before the child attained age 18.
•
continue to process the case and issue a remand order following the
procedures in VIII. C.2. above.
When the AC exercises own motion or reopening authority, follow
“8001” procedures provided in
HALLEX
.
Effectuating components (field offices) will return cases with an OHA
level decision dated and issued
August 22, 1996, or later, in which the ALJ did not apply the provisions
of Pub. L. No. 104-193 if applicable. The AC will follow the procedures
for handling protest cases advising the ALJ to apply the provisions of
Pub. L. No. 104-193.
If the time frames for own motion and reopening under
20 CFR 416.1488
have elapsed, return the case to the effectuating component with
instructions to effectuate the decision. Use
Appeals Council Standardized Text,
Temporary COR 31, as modified (see Attachment 4).
AC staff should continue to code “Z” into the Special Case
Code in ACAPS.
IX. Inquiries
Field personnel should direct any questions concerning these instructions
to their Regional Office. Regional Office personnel should contact the
Division of Field Practices and Procedures in the Office of the Chief
Administrative Law Judge at (703) 305-0022. Headquarters personnel should
route questions concerning specific issues to their Branch Chiefs who may
contact the Office of Appellate Operations at 305-0106. Headquarters
personnel may also contact the Division of Litigation Analysis and
Implementation at 305-0708.
Attachment 1. - Findings and Decisional Paragraphs
Findings
A specific finding should be made with respect to the new definition of
disability. The finding should use language along the following
lines:
The claimant's impairment (or combination of impairments) meet(s) [does
not meet] or medically or functionally equal(s) the requirements of a
listing in the Listings of Impairments in appendix 1 of subpart P.
The claimant has [does not have] a medically determinable physical or
mental impairment (or combination of impairments) which results in marked
and severe functional limitations.
Decisional Paragraph(s)
The decisional paragraph must contain language along the following
lines:
It is the decision of the [Administrative Law Judge][Appeals Council]
that, based on the application filed on _____________, the claimant is [is
not] eligible for Supplemental Security Income [as a disabled individual
as of ____________,] under sections
1602 and
1614(a)(3)(C) of
the Social Security Act.
Modify this language as appropriate for closed period cases.
If the decision is favorable, add:
The component of the Social Security Administration responsible for
authorizing Supplemental Security Income payments will advise the claimant
regarding the nondisability requirements for these payments, and if
eligible, the amount and the months for which payment will be made.
Attachment 2. -
Notice OHA Will Send to Zebley Claimants Who Had A Hearing
Before Enactment of Public Law 104-193
This notice tells you about changes in the law that may affect your
claim.
The new law changes the definition of disability for children. It states
that an individual under age 18 shall be considered disabled if he or she
has a physical or mental condition(s) that can be medically proven, that
results in marked and severe functional limitations, and the condition(s)
must last at least 12 months or be expected to result in death. To result
in marked and severe functional limitations, the condition(s) must meet or
equal the requirements of a listing in the Listing of Impairments in
appendix 1 of subpart P of Part 404 of our regulations.
This new definition of disability applies to Zebley
class member claims for SSI childhood disability which were pending
readjudication on or after August 22, 1996. Therefore, these provisions
apply to your case. Before I issue my decision, you have the opportunity
to show that you meet the new definition of disability. You may do
any or all of the following:
1.
give us additional information;
2.
give us written comments; and/or
3.
ask for a supplemental hearing.
If you wish to give us additional information, written comment(s), or ask
for a supplemental hearing, you must do so,
in writing, within ten (10) days of the date you receive this notice.
Unless you can show otherwise, we assume you received this notice within
five days of the date of the notice.
If you do not let me know within ten (10) days of the date you receive
this notice, I will assume you do not wish to give us any written
statements or information and that you do not wish to ask for a
supplemental hearing. I will then issue my decision based on the
information that we now have.
_____________________________
Administrative Law Judge
_____________________________
Date
Because the definition of disability has been amended, revisions will be
necessary with respect to the statement of issues in the Notice of Hearing
and in the decision. Use the following language:
The general issue is whether you are eligible, as an individual under age
18, for Supplemental Security Income within the meaning of section
1602 and
1614(a)(3)(C) of
the Social Security Act.
The specific issue is whether you are “disabled,” as defined
in the Social Security Act. To be found disabled as an individual who has
not attained age 18, you must suffer from a medically determinable
physical or mental impairment (or combination of impairments) that results
in marked and severe functional limitations, and that can be expected to
result in death or that has lasted or can be expected to last for a
continuous period of not less than 12 months. To result in marked and
severe limitations, your impairment(s) must meet or medically or
functionally equal the requirements of a listing in the Listings of
Impairments in appendix 1 of subpart P of Part 404 of our
regulations.
Attachment 4. - Memorandum for Protest Cases
|
MEMORANDUM TO: |
Regional Commissioner, SSA
[City, State]
|
|
FROM : |
Appeals Council
Office of Hearings and Appeals
|
|
SUBJECT : |
[ ], Claimant and Wage Earner
Social Security Number
OHA Action on “Protest”
|
This case was carefully studied as a result of your memorandum dated [ ],
concerning the Administrative Law Judge's decision.
The Appeals Council took jurisdiction of this case on [ ], but now has
vacated that notice and will take no further action on the case.
or
The Appeals Council has decided not to disturb the Administrative Law
Judge's decision.
or
The Appeals Council cannot take jurisdiction of this case because the time
for own motion review has ended and the time for reopening has expired.
The claimant's file is being sent to the effectuating component for
appropriate action.
|
|
Administrative Appeals Judge |