ISSUED: March 11, 1988
This instruction applies only to cases involving persons residing in
Massachusetts. It is being issued nationally for informational purposes
only.
I. Background
For background and history of the McDonald case
before January 29, 1987, please refer to Interim, Circular No. #200.
On January 29, 1987, the U.S. District Court for the District of
Massachusetts issued an order requiring that the claims of certain denied
class members be redetermined under the current severity regulations as
clarified by SSR 85-28
and by the court of appeals in McDonald. The court
held that all class members were, entitled to resume the process of
administrative review even if they had failed to exhaust their
administrative remedies of appeal pursuant to 42 U.S.C. 405(g). It ruled
that HHS should inform the affected class members of their right to revive
their claims and resume the administrative review process where they left
off earlier.
On April 10, 1987, the district court issued a final order which set forth
its requirements for implementation of the relief granted on January 29,
1987. A stay of the April 10 district court order was granted on May 1,
1987 pending an appeal to the United States Court of Appeals for the First
Circuit. On December 8, 1987, the court of appeals affirmed the district
court order.
Based on the April 10, 1987 district court order, SSA must redetermine the
denied class members' claims for-entitlement to disability using the
present severity regulations as clarified by
SSR 85-28 and
McDonald v. Secretary of H.H.S., 795 F.2d 1118 (1st
Cir. 1986) to ensure that the prior decision was correct based on the
evidence of record in file.
II. Definition of Class
To meet the definition of the McDonald class, the
individual:
1.
Must have been a resident of the State of Massachusetts at the time of the
most recent administrative determination made by SSA between June 28, 1984
and February 28, 1986; and
2.
Must have received a denial determination for title II or title XVI
disability benefits on or after June 29, 1984, and prior to February 28,
1986, at any level of administrative review based on a finding of a
“not severe” impairment(s); or
3.
Have an individual complaint pending in Federal district court on or after
June 28, 1984, and prior to February 28, 1986. (OGC will provide notice of
class relief in all pending court cases. Accordingly, OHA will not have to
identify class members with cases pending before court.)
Those individuals who have a court decision affirming the denial of
benefits are not class members and are not entitled to any relief.
NOTE: The class also includes those persons who received a denial
determination/decision of the Secretary on or after June 28, 1984, and
prior to February 28, 1986, and did not appeal to the next level of
administrative review (Reconsideration, ALJ hearing, or AC review) within
60 days after the date they received the decision or did not file a
complaint in Federal district court.
Individuals whose claims were readjudicated under the
McDonald court order of March 10, 1986 are not
entitled to any further relief under the April 10, 1987
McDonald order, (These cases are AC decisions or
denials of requests for review of ALJ decisions which were based on
“not severe” issued between June 28, 1984 and November 30,
1984 and which have been redetermined under I.C. No, 200).
An individual who was denied at one level on the basis of a “not
severe” impairment(s) and who was later denied on a basis other
than a “not severe” impairment does not qualify as a member
of the class. The controlling factor is whether the last/most recent
administrative action made on a particular claim on or after June 28,
1984, and prior to February 28, 1986, was on the basis of a “not
severe” impairment(s).
Title II disabled widow benefit (JWB) claims and title XVI disabled child
(DC) claim for children under age 16 are not a part of the
McDonald class because their impairment(s) must
meet or equal the medical listings as a requirement for entitlement to
disability under the statute.
III. Implementation of Court Order
A. Notification of Potential Class Members
Systems-generated notices will be sent by Baltimore to potential
McDonald class members by certified mail. The
notice (Attachment A) advises the individual that he or she may be a
McDonald class members and can request review of
his or her Claim within 120 days from the date the notice is
received.
B. Screening for Class Members
If a potential class member responds to the notice by returning the pre-
addressed postcard reply (Attachment B), the claims file must be obtained.
The Division of Litigation Coordination and Implementation in conjunction
with the Litigation Staff, Office of Deputy Commissioner for Programs,
will request claims files for ALJ and AC level cases. The files will be
sent to Docket and Files, Room 668 Webb Building, P.O. Box 3200,
Arlington, VA 22203. Analysts from the Office of Appeals Operations (OAO)
Brach 3 will then screen the cases in the Docket and files for class
membership. A good faith effort must be made to determine class membership
within one day of the receipt of the claim file. The
McDonald Screening Sheet (Attachment C) must be
used to determine if the claimant meets the class membership criteria. One
copy of the completed screening sheet should be placed in the folder and
one copy sent to Division of Litigation Coordination and
Implementation.
If a claimant is determined to be a class member, the claim file will be
sent to the last adjudicative level for redetermination under the
McDonald criteria. If the last action was an ALJ
decision, the case should be sent by an HA -505 to the appropriate Hearing
Office to be redetermined under the McDonald court
order. If the last action was an AC denial of a request for review, the
case should be remanded to ALJ to be redetermined (see sample remand order
in Attachment F). If the last action was an AC decision, the case should
be sent to OAO, Branch 3 for further action under the
McDonald order (see section IV, Adjudication of
Cases).
If the claimant is determined not to be a class member, Office of Appeals
Operations must prepare the “Notice of Denial of Class
Membership” (Attachment D). The notice must be signed by the
analyst screening the case. One copy most be placed in the claim file, one
copy sent to the Division of Litigation Coordination and Implementation,
one copy sent to plaintiff's counsel at Greater Boston Legal Services, 68
Essex Street, Boston, MA 0211, and one copy sent to the claimant along
with the “Request for Review of Denial of Class Membership”
(Attachment E). The claimant has 60 days to, seek a further review of the
denial of class membership. For this reason Docket and Files must retain
all claim files of those individuals who are denied class membership for
90 days. The claimant will request review of the class members issue by
returning the form at Attachment E to McDonald
Class Action, Office of hearings and Appeals, Docket and files, Room 603
Webb Building, P.O. Box 3200, Arlington, VA 22203. Upon receipt, this form
must be associated with the claim file and sent to the Division of
Litigation Coordination and Implementation. Division of Litigation
Coordination and Implementation will send the claim file to Litigation
Staff, Office of Deputy Commissioner for Programs, which will forward the
case to the Office of General Counsel. The court order requires the
Secretary and class counsel, or their designees, to attempt to resolve the
issue of denial of class membership.
If the claimant returns the postcard reply form after the 120-day time
period, or a “Request for Review of Denial of Class
Membership” form after 60 days, the claimant must be given the
opportunity to show good cause for failure to respond timely. In
determining whether good cause exists, the criteria used in establishing
good cause for late filing of a request for hearing or request for review
will be used.
IV. Adjudication of Cases
The McDonald cases will be redetermined under SSA's
policy concerning “non-severe” impairment(s) as set out in
SSR 85-28 and
McDonald v. Secretary of H.H.S., 795 F.2d 1118 (1st
Cir, 1986).
If the case is returned to the AC level, the AC 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 F). If the
case is returned to the ALJ level, the claimant must receive a new hearing
and decision unless a fully favorable decision can be made based on the
evidence already of record. The court order requires that the best efforts
be used to schedule hearings promptly and to hold them within a reasonable
period of time.
The Appeals Council or Administrative Law Judge must issue a replacement
decision, that is, a decision which adjudicates only the period through
the date of the prior decision. New evidence must be considered 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.
The rules of retroactivity and res judicata will
apply to all new applications. Every decision must include the following
language:
“any future decision, res judicata, if
applicable, will apply only as of the date of the prior decision, not as
of the date of the redetermined decision.”
The existing regulatory provisions for reopening final determinations and
decisions will apply when considering a new application.
V. Reporting Requirements
The McDonald order requires that reports be
furnished to the plaintiffs counsel. The following reports form OHA
components are required:
A. Office of Appeals Operations (Monthly)
1–
An alphabetical list of the names and social security numbers of claimants
whose cases have been reviewed and determined not to be class members,
until the secretary's efforts to identify class members have ceased.
2–
The number of non-class members identified, until the Secretary's efforts
to identify class members have ceased.
3–
An alphabetical list of the names and social security numbers of the class
members who have been identified, until the Secretary's efforts to
identify class members have ceased.
4–
The number of class members identified, until the Secretary's efforts to
identify class members have ceased.
5–
An alphabetical list of the names and social security numbers of all
claimants who have received an Appeals Council replacement decision and
whether the decision was an allowance or denial. (A copy of the page
containing the concluding decisional paragraph of each replacement
decision must be forwarded with the report. The name and social security
number of the claimant must be written on the page.) The total number of
allowance denial decisions must be provided.
Effective immediately, the above information must be submitted to the
Division of Litigation Coordination and Implementation on a monthly basis.
Names and social security numbers of class members must be placed in a
monthly log as soon as they are identified. The information must be
submitted to the Division of Litigation Coordination and Implementation
within three (3) workdays after the last workday of the calendar month for
which the report is made.
B. Hearing offices (monthly)
1.
A list of the names and social security numbers of all claimants for whom
a hearing has been scheduled: and for all claimants who have received a
hearing. The total number of cases scheduled for hearings and the number
of cases in which hearings were held must be stated.
2.
A list of the names and social security numbers of all claimants who have
received a replacement decision and whether the decision was an allowance
or denial, (A copy of the page containing the concluding decisional
paragraph of each replacement decision must be forwarded with the report.
The name and social security number of the claimant should be written on
the page.) The total number of allowances and denials must be
provided.
Effective immediately the above information must be submitted to the
Division of Litigation Coordination and Implementation on a monthly basis.
Hearing Offices must forward the information to the Boston RO which will
compile and send a report to the Division of Litigation Coordination and
Implementation within three workdays after the last workday of the
calendar month. Maintain this information on the WANG equipment.
VI. Questions
Field office personnel may call their Regional office. Central Office
personnel may call the Division of Litigation Coordination and
Implementation on 235-3743.
THIS NOTICE MAY MEAN GOOD NEWS FOR YOU - ACT NOW
BEFORE IT'S TOO LATE
You may be eligible for:
Go to your nearest Social, Security Field Office and find out today -
bring this notice with you.
Based on our review of your file, it appears that you were denied
benefits because we found that your medical condition was not severe. As
the result of the McDonald v. Bowen lawsuit, the
federal court has ordered us to review your case again
BUT ONLY IF YOU ASK US TO DO SO WITHEN 12O DAYS OF RECEIVING THIS LETTER.
The 120 days starts the day after you receive this letter. We cannot find
out whether you are eligible for disability benefits, Medicare, or
Medicaid if you do not respond. Come into the office or return the
postcard today. Bring this notice with you.
Any questions? Just call or visit your local Social Security office or
call the McDonald class counsel (toll-free)
at:
1-800-831-8512
Greater Boston Legal Services
68
Essex Street
Boston, Massachusetts 02111
Re: McDonald v . Bowen
I have received your notice about this lawsuit. I am requesting that you
redetermine my claim for disability benefits.
Name : _________________________
Address: _______________________
Phone: _________________________
Social Security #: _____________
MCDONALD SCREENING SHEET
McDonald et. al. v. Bowen
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Part A - Identifying Information
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|
1. |
SOCIAL SECURITY NUMBER ___ ____ ____ ___ ____ ___ ___ ___ ___
MEMBER(J) ___ NONMEMBER (F) ___ Screen-Out Code (04-08) ___
|
|
2. |
NAME _________________________________
|
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3. |
Title II ______ Title XVI _____ Concurrent II/XVI _____
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Part B - Screening Criteria, Complete all Items
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4. |
Was the claim for Title II and/or Title XVI disability benefits?
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Yes___ |
No ___ |
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5. |
Did the claimant receive a denial determination at any level of administrative review (initial, reconsideration, ALJ or AC), on or after June 28, 1984 and prior to February 29, 1986?
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Yes___ |
No ___ |
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6. |
Was the claimant a resident of Massachusetts at the tine of the most recent administrative decision on or after June 25, 1984 and prior to February 28, 1986?
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Yes___ |
No ___ |
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7. |
Was the claim reviewed under the McDonald court order of Parch 10, 1986 in which AC final actions between June 28, 1984 and November 30, 1984 were readjudicated under procedures set out in I .c. Y o 200? |
Yes___ |
No ___ |
|
8. |
Was the claim reviewed in district court, and did the district court affirm the denial of benefits? |
Yes___ |
No ___ |
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If the answered to numbers 4, 5, and 6 are “yes” and the answers to numbers 7 and 8 are “no” the claimant is a class member.
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SIGNATURE OF REVIEWER ______________________________ DATE ____________
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Attachment D. Denial of Class Membership
(SOCIAL SECURITY ADMINISTRATION LETTERHEAD)
We are writing to tell you that we've decided that you do not meet all the
requirements for review under the McDonald, et al. v.
Bowen court decision. This means that we won't review our
earlier decision to deny your Social Security and Supplemental Security
Income cases.
Why We Won't Review Your Case
We won't review your case because:
You did not have good cause for not requesting that your claim be reviewed
within 120 days of receipt of the notice.
Your permanent residence was not in the State ofMassachusetts when we made
our most recent decision.
Your benefits were denied for reasons which are not related to
disability.
The most recent decision on your case was not based on the fact that your
condition was not severe enough to be disabling.
You received a decision about your disability claim before June 28, 1984,
or after February 28, 1985, and you did not have an appeal pending
after.
You have been awarded all the Social Security and Supplemental Security
Income payments you are due.
Other ___________________________________________________
If You Have Questions
If you have any questions, you should call, write or visit any Social
Security office. If you visit an office, please bring this notice with
you. It will help us answer your questions.
RIGHT TO APPEAL: You have the right
to appeal this denial within 60 days after receiving this notice of Denial
of Class Membership. Fill out, and sign the enclosed appeal form. Request
for Review of Denial of Class Membership. Return it to
McDonald Class Action, Office of Hearings and
Appeals, Docket and Files, Room 668 Webb Building, P.O. Box 3200,
Arlington, VA 22203 or to Greater Boston Legal Services, 68 Essex Street,
Boston, Massachusetts 02111.
Date: ______________________ Signed: _____________________
Social Security Title: ________________
Attachment E. Request for Review of Denial of Class Membership
(SOCIAL SECURITY ADMINISTRATION LETTERHEAD)
I disagree with your determination that I am not a member of the
McDonald v. Bowen class. I want a review of this
denial.
Please Print! Name : _____________
Address: ___________
___________
Phone: (Area Code)__________
Social Security#: ___________
Date:___________
NOTE: This request for review, or
appeal, must be filed within 60 days after receiving the notice entitled
“Denial of Class Membership.”
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 |
Claim for |
|
_________________________
(Claimant)
|
_________________________
|
|
_______________________________
(Wage Earner) (Leave blank if same as above)
|
________________________
(Social Secuirty Number)
|
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 cases at step 2 (“nonsevere”
impairment(s)) in accordance with Social Security Ruling
SSR 85-28 and
McDonald v. Secretary of HHS, 795 F.2d 1118 (1st
Cir. 1986).
[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. The decision must state that, in any future decision, res
judicata will apply only as of the date of the prior decision, not as of
the date of the redetermined 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 April 10, 1987 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.