Attachment 1. - Mason v. Shalala Stipulation; Approved by the United States District Court for the District of Vermont and Filed January 23, 1995.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Plaintiffs,

Civil No. 83-390

Defendant.

STIPULATION

The parties to this action, by their undersigned counsel, hereby agree to a settlement of plaintiff's claims in this litigation in accordance with the following terns and conditions:

1. 1. 

   The class members who shall be entitled to seek relief pursuant to this settlement shall be limited to those defined as follows:

   1. a. 

      all Vermont applicants for Social Security disability benefits or Supplemental Security Income (SSI) benefits based upon disability who, between May 30, 1984 and August 31, 1987, received an unfavorable final administrative decision by the Secretary while residing in Vermont resulting in denial or termination of such benefits based on a finding that they did not have a severe impairment.

   2. b. 

      However, the class shall exclude those individuals who subsequently received a final decision in federal court with respect to an unfavorable administrative decision, or who have received a subsequent administrative determination or decision after August 31, 1997, with respect to the same period at issue. The class shall also exclude claimants for SSI child's benefits, who are or will be entitled to redeterminations pursuant to Zebley v. Sullivan, 110 S. Ct. 885 (1990), claimants for widows benefits, and those person who were or will be entitled to readjudications under Aldrich v. Sullivan, Civil No. 80-270 (D Vt.) for the same period at issue.

2. 2. 

   Those claim members who received an unfavorable final administrative decision by the secretary while residing in Vermont resulting in a denial or termination of Social Security disability benefits of Supplemental Security Income based on a finding that they did not have a severe impairment between September 1, 1987 and the date this Stipulation is approved by the Court are not entitled to any relief under this settlement and they will be notified accordingly by counsel for the class.

   Plaintiff's counsel agrees that if plaintiffs send individual notices to claimants excluded from further relief pursuant to ¶ of this Stipulation and Order that they will provide the Secretary with a draft of the notice and allow the Secretary 10 days to comment prior to the mailing.

3. 3. 

   The Secretary agrees to publish notice of this settlement one time, within ten days prior to the date set by the court for hearing on approval of the settlement, in the following papers: Burlington Free Press, Caledonian Record, Rutland Herald, Times Argus, Valley News, Brattleboro Reformer, The Newport Daily, St. Albans Messenger and Bennington Banner.

4. 4. 

   Within 120 days after court's approval of this stipulation, the Social Security Administration (SSA) shall, by means of its data processing systems, identify the names, Social Security numbers and last known addresses of potential class members in accordance with the criteria set forth in ¶ 1 and 2. SSA shall provide plaintiffs' counsel with a copy of the list of potential class members. The list provided to plaintiffs counsel will be divided into two groups, those class members identified in ¶ 1 (a) and those class members identified in ¶ 2 who are not entitled to any relief.

5. 5. 

   Within 120 days of the Court's approval of this Stipulation, SSA will issue advance copies of final instructions for screening and re-adjudicating the claim of class members, including the notice referred to in ¶ ¶ 6 and 9, to all SSA adjudicators responsible for processing adjudications hereunder. The Secretary will provide copies of the proposed final instructions to plaintiffs' counsel within a reasonable time prior to distribution of the final instructions and will allow plaintiffs 10 days after receipt to review and comment on the instructions.

6. 6. 

   Within 10 days of the issuance of the instructions described in ¶ 5 of this Stipulation, SSA shall send a notice by first class mail to each potential class member so identified under ¶ 1.a., at his or her last known address. This notice will advise potential class members of their possible entitlement to a redetermination of their claims and will further inform such individuals that they must return an enclosed pre-addressed, postage prepaid form, within 120 days of receipt of the notice in order to receive consideration for relief. The notice will contain the name and telephone number of designated class counsel and will advise the individual that legal assistance is available. The notice will also contain a short tag statement in French, to be provided by plaintiff's counsel, stating that the individual may be entitled to additional benefits and to contact SSA for further assistance.

   1. a. 

      Potential class members who never received the individual notices mailed pursuant to this paragraph, may request readjudication at any SSA field office within two years of the date of this order.

   2. b. 

      For a period of 180 days after the date the notices in ¶ 6 are released, SSA will post the notice in each SSA district office within Vermont and provide plaintiffs' counsel with 100 additional posters which they may distribute at offices other than the SSA.

   3. c. 

      Further, the Secretary will provide a public service announcement to radio stations in Vermont with the understanding that the Secretary will not attempt to control, and will not have control over, the announcements broadcast.

   4. d. 

      SSA Survivor and substitute party provisions and existing procedures for determining the distribution of any potential underpayment will apply to any deceased class member's claims.

7. 7. 

   In the event that a notice mailed pursuant to ¶ 6 is returned as undeliverable, SSA will attempt to obtain updated addresses by providing a computer tape to the Vermont Department of Social Welfare and the Vermont Agency of Human Services, with a request for the performance by said agency of a computerized a computerized match with public assistance, food stamp and/or other relevant records. SSA will use its best efforts to effect, subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a, a computer match with a compatible, current or archival state data system. Such match is restricted to the data available under income and maintenance program. This attempt to deliver otherwise undeliverable notices to potential class members is conditioned upon the willingness and ability of the state agency to participate in a matching process.

   1. a. 

      SSA will thereafter mail e second notice to all potential class members for whom updated addresses are obtained.

   2. b. 

      After the state tape match and second notice, SSA will also provide plaintiffs' counsel with a list of potential class members for whom mailed notices were returned as undeliverable and plaintiffs' counsel shall have 90 days to search their records for an updated address.

8. 8. 

   If a potential class member receives a notice and requests class membership by responding more than 120 days after receiving such notice, SSA shall determine whether the person has “good cause” for the late request as defined in 20 C.F.R. §§ 404.911 and 416.1411 and SSR 91-5p.

9. 9. 

   SSA will send an acknowledgment of receipt to those class members who have responded. For those individuals who respond to the notice, SSA will screen the applicable claims folders or other relevant records to determine if they are class members. Those individuals who have been determined not to be class members will be notified in writing of such determination, and the basis for such denial, and will be further informed of their right to a review thereof, in accordance with the procedures set forth in ¶ 10 to this Stipulation. Copies of said notices shall be sent contemporaneously to plaintiff's counsel.

   For individuals whom SSA has determined to be class members, SSA will contact these class members at the tine their redetermination is processed as described in ¶ 13, to advise them of their right to submit additional evidence pertaining to the period covered by the prior denial.

10. 10. 

    Individuals who disagree with a finding that they do not meet the class membership criteria may contact or write plaintiffs' counsel for additional review. Class counsel may, within 60 days of the date of the class membership determination notice, in turn notify in writing an individual to be designated in the Office of the General Counsel, Region I, Boston, Massachusetts that review of the individual's claims file or relevant records is desired. Within 30 days of the receipt of class counsel's written request, SSA will make available that individual's claims file or other relevant records at a designated SSA field office location in Vermont and will notify, class counsel in writing. Such records will be available for review by class counsel for a period of 30 days. At the expiration of the 30 days, if class counsel has still not reviewed the records, it shall be assumed that review is no longer desired and SSA's non-class membership determination shall become final and not subject to further review.

11. 11. 

    If class counsel's review establishes that there is a dispute as to whether the individual is a class member, class counsel wi1l notify the Office of the General Counsel, Department of Health and Human Services, Region I, Boston, within 30 days of such review. Both parties will then attempt to resolve the dispute. In the event the parties are unable to settle the dispute, class counsel may submit any unresolved dispute to the Court for final resolution by proper motion made within 30 days of the date of written reaffirmation, by the Office of the General Counsel, of the prior non-class membership determination, and the defendant shall have the opportunity to respond consistent with federal and local court rules. Failure of class counsel to request a judicial determination within the aforesaid 30 day period shall render SSA's non-class membership determination final and not subject to further review.

12. 12. 

    The claims of individuals determined to be class members will be reviewed and, if determined to be eligible, class members will be paid benefits from:

    1. a. 

       the sixth month following the date of onset of disability; or 12 months prior to the date of filing, whichever is later, in cases of Title II disability benefits;

    2. b. 

       the date of application or established onset of disability, whichever is later, in cases of Title XVI disability benefits; or

    3. c. 

       the date of the termination of benefits in continuing disability cases.

       SSA shall provide plaintiffs' counsel with a copy of the notice of all denied claims and shall make available to plaintiffs' counsel upon written request a 10% random sample of these claim folders.

13. 13. 

    The Secretary shall redetermine the applications of all persons found to be class members using the Secretary's present severity regulations and SSR 85-28. The Secretary will consider new evidence, but only as it pertains to the period covered by the prior decision. If the evidence of record at the time of the prior decision is considered insufficient to make a determination at step two of the sequential evaluation, the Secretary will attempt to obtain any evidence necessary to make a step two determination. Where, upon such redetermination, the individual's impairments are considered to have been severe (either individually or in combination), the Secretary shall evaluate the individual's claim in accordance with the sequential evaluation set forth at 20 C.F.R. §§ 404.1520 and 416.92D. If a determination at steps three through five of the sequential evaluation cannot be made without additional medical or vocational evidence the Secretary shall seek to obtain such evidence. If a redetermination under the paragraph results in a finding of disability for the period covered by the prior decision, the claim shall be reopened and the individual's disability shall be considered through the date of the new determination. However, if a class member had obtained benefits for a subsequent period, that subsequent period of eligibility will not be reopened except in accordance with normal regulatory requirements or valid continuing disability reviews.

14. 14. 

    Except as noted in ¶¶ 15 and 16 of this Stipulation, all reviews shall be conducted at the reconsideration level, with determinations being appealable to an Administrative Law Judge upon request made pursuant to the procedures set forth at 20 C.F.R. §§ 404.933 and 416.1433. Appeal of an Administrative Law Judge decision will be to the Appeals Council upon request made pursuant to the procedures set forth at 2O C.F.R §§ 404.968 and 416.1468. Class members will retain rights to judicial review as provided in 42 U.S.C. §§ 4O5(g) and 1383(c)(1) and (3).

15. 15. 

    At the option of SSA, class members with subsequent disability claims active and simultaneously pending at any administrative level of review at the time the class claim is being evaluated may have all other claims covered by this stipulation consolidated with the current claim. SSA will use its best efforts to ensure that current adjudication of current claims will not be delayed by consolidation and claims will not be consolidated at the Appeals Council level except for the purposes of issuing a fully favorable decision.

16. 16. 

    Class members having individual actions pending in federal court with respect to the unfavorable administrative decision resulting in class membership may elect either to have their claim remanded decides to proceed with his or her individual action in administrative and judicial review as provided in 20 C.F.R. §§ 404.933, 404.968, 416.1433, and 416.1468) or to have the action proceed in federal court pursuant to, and subject to, the limitations contained in 42 U.S.C. §§ 405(g). Nothing in this Stipulation shall be construed to avoid or preclude the res judicata effect of a final court decision where a class member decides to proceed with his or her individual action in federal court.

17. 17. 

    SSA will monitor the implementation of this Stipulation and shall provide plaintiffs' counsel, on a quarterly basis until all class member's claims are processed, reports containing the following information.

    1. a. 

       the total number of persons notified initially of potential class membership;

    2. b. 

       the total number of persons who responded to the notice;

    3. c. 

       the total number of persons responding who were found not to be class members,

    4. d. 

       the total number of persons responding determined to be class members;

    5. e. 

       the total number of class members found eligible for disability benefits upon readjudication by the Vermont Disability Determination Service (“DDS”);

    6. f. 

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

18. 18. 

    The time limitations set forth in this Stipulation shall be subject to modification by mutual agreement of the parties at any time, or at the request of either of the parties hereto, by motion duly served, upon a showing of one or more of the following reasons:

    1. a. 

       due to a material change in circumstances, compliance with the provision(s) sought to be modified would impose an undue or unreasonable burden not reasonably contemplated by the party seeking such modification at the time this Stipulation was executed;

    2. b. 

       despite good faith efforts by the party seeking such modification, the time limitation sought to be modified is impractical or unworkable in practice; or

    3. c. 

       any other reason justifying relief from the operation thereof pursuant to Rule 60 of the Federal Rules of Civil Civil Procedure.

19. 19. 

    Plaintiffs shall have 30 days from the entry of the order approving this stipulation within which to file a petition pursuant to the equal access to Justice Act, and the Secretary shall have 10 days to respond.

    Individual class members who are successful in appealing the denial of their individual claims on redetermination shall not be precluded from pursuing Peer; pursuant to the Equal Access to Justice Act and/or 42 U.S.C. § 406.

20. 20. 

    The terms set forth in this stipulation shall be in full settlement and satisfaction of any and all claims and demands, except for claims for attorney fees, costs and monitoring and implementation expenses, of whatever nature, the plaintiffs had or may hereafter acquire against the defendant, and any of her agencies, agents, servants, employees or instrumentalities on account of and with respect to the incidents, claim or circumstances giving rise to and/or alleged, in the above-entitled action and as more particularly set forth in the pleadings filed herein. Upon the Court's approval of this Stipulation, the complaint herein and any amendments thereto shall be dismissed, with prejudice, and the court shall retain continuing jurisdiction of this matter solely for the purposes of interpreting and enforcing the terms of this Stipulation.

21. 21. 

    Because this Stipulation is entered by agreement of the parties, as a means of avoiding further litigation, the terms of this Stipulation shall not be cited as precedent in any other case.

The foregoing Stipulation of the parties is approved and so ORDERED this ____ day, of _____________, 1993.

Attachment 2. - Mason COURT CASE FLAG/ALERT

TITLE: CATEGORY:
 
 
 

REVIEW OFFICE PSC MFT DOC ALERT DATE
 
 
 

FUN NAME
 
 
 
 SSN OR HUN RESP
DTE TOE
 000-00-0000
 
 
 FOLDER
LOCATION INFORMATION
 TITLE CFL CFL DATE ACN PAYEE
ADDRESS
 

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

Attachment 3. - Route Slip or Case Flag for Screening

Attachment 4. - MASON SCREENING SHEET

INSTRUCTIONS FOR COMPLETING MASON SCREENING SHEET

Questions 1-3: Fill in the claimant's own SSN, name and date of birth.

Question 4: Fill in the SSN on which the claim was filed and the BIC.

Question 5: Date on which the screening is completed.

Question 6: Fill in the member/nonmember block when the screening is completed.

Question 7: This preliminary screening question limits relief to certain title II and/or title XVI disability claims, e.g., DWB claims are excluded under the order. If the answer to this question is “NO,” enter the appropriate screenout code as directed in Item 14 on the screening sheet.

Question 8: This screening question is looking for final determinations/decisions issued during the class membership timeframe. Screen for date of determination/decision, not date of application. The term “final” refers to the date of the administrative determination/decision that became the binding decision of the Secretary pursuant to 20 CFR §§ 404.905, 404.921, 404.955, 404.972, 404.981, 416.1405, 416.1421, 416.1455, 416.1472 and 416.1481 and does not mean that a class member must have exhausted administrative remedies under §§ 205(g) and (h) of the Social Security Act (42 U.S.C. §§ 405(g) and (h)). Although not the “final decision” of the Secretary, an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes. If the answer to the question is “NO,” enter the appropriate screenout code as directed in Item 14 on the screening sheet.

Question 9: This screening question is looking for the residency of the claimant at the time of the final determination/decision. The claimant must have been residing in the State of Vermont at the time the final determination/decision was issued. If the answer to the question is “NO,” enter the appropriate screenout code as directed in Item 14 on the screening sheet.

Question 10: This screening question is looking to see if the final determination/decision was made on the basis of a non-severe impairment. To answer this question, start with a review of the Form SSA-831-U5 for denial cases or a review of the Form SSA-833-U5 for cessation cases. If the regulation basis code on these forms does not reflect a non-severe determination (e.g., FI and F2 for Title II cases or N30 or N41 for Title XVI cases), check “NO” and enter the appropriate screenout code as directed in Item 14 on the screening sheet. See POMS DI 26510.45 for a description of the Reg. Basis Codes. In a DHU or OHA case, read the decision to determine the basis for the denial. Use the latest date on the Form SSA-831-U5, or other denial form, or the date of the DHU or OHA decision as the date of the final determination/decision. If the answer to this question is “NO,” enter the appropriate screenout code as directed in item 14 on the screening sheet. If a “lower level” determination/decision was made on the basis of a non-severe impairment, but the final determination/decision on appeal was not based on a finding of a non-severe impairment, the claimant is not a class member entitled to relief.

Question 11: This screening question is looking to see if the claim was or will be reviewed under Zebley or Aldrich for the entire period at issue in the potential Mason case. If the claim was or will be reviewed pursuant to one of these class actions, the claimant is not a Mason class member. If the answer to this question is “YES,” enter the appropriate screenout code as directed in Item 14 on the screening sheet.

Question 12: Check to see if the final administrative decision made during the class member timeframe (i.e., May 30, 1984, through August 31, 1987, inclusive) was appealed to a Federal court and decided by the court. If the answer is “YES,” enter the appropriate screenout code as directed in Item 14 on the screening sheet.

Question 13: This class relief exception applies only if the individual has received all benefits to which s/he could be entitled based on the potential class member claim. Review the file to determine whether benefits were subsequently (e.g., since August 31, 1987) allowed or continued (in cessation or closed period cases) from the earliest onset date, cessation date or a control date of a claim decided within the timeframes for class membership. The allowance or continuance could have been either on the same claim or on a subsequent application. If the answer to this question is “YES,” enter the appropriate screenout code as directed in Item 14 on the screening sheet.

Note:   If full retroactive benefits were not awarded because of subsequent application filing date limitations, route the case to a claims authorizer, if Title II, or to the appropriate FO, if Title XVI, for the preparation of an amended award in accordance with DI 42529.010 C.6.

Processing Class Member Determinations

1. a. 

   Be sure to check the “Member Entitled to Relief” block in item 6. a. of the screening sheet.

2. b. 

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

3. c. 

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

4. d. 

   Retain the original screening sheet in the claim file (on the top right side of the file). Send a copy to:

   Office of Hearings and Appeals
   Office of Appellate Operations
   One Skyline Tower, Suite 701
   5107 Leesburg Pike
   Falls Church, VA 22041-3200
   
   Attn: OAO Class Action Coordinator

   [The Class Action Coordinator will enter information from the screening sheet onto a data base and forward the screening sheet to the Division of Litigation Analysis and Implementation (DLAI). DLAI will retain a copy of each screening sheet and forward a copy to the Litigation Staff at SSA Central Office.]

5. e. 

   Follow HALLEX HA 01540.050, _________ .

Processing Non-class Member Determinations

1. a. 

   Be sure to check the “Nonmember or Member Not Entitled to Relief” block in item 6. a. of the screening sheet and enter the screen-out code in item 6. b.

2. b. 

   Follow items b. - d. above.

3. c. 

   Prepare notice and forward the claim file(s) as indicated in HALLEX HA 01540.050, ________.

Attachment 5. - Route Slip for Routing Mason Court Case Flag/Alert (and Prior Claim File(s) -- OHA No Longer Has Current Claim

OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206

Attachment 6. - Non-Class Membership Notice

SOCIAL

SECURITY        Important   Information

NOTICE

_____________________________________________________________

From: Social Security Administration

(Insert address and phone number here.)

_____________________________________________________________

___________________________     DATE: ______________________________

___________________________     CLAIM NUMBER: ________________________

___________________________     DOC: ___________________________________

We are writing to tell you that we received your request to review your earlier claim for disability benefits under the Mason settlement agreement. We have looked at your case and have decided that you are not a class member entitled to relief. This means that we will not review our earlier decision that you were not disabled. The reason that you are not a class member entitled to relief under the Mason court order is checked below.

We are Not Deciding If You Were Disabled

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

If You Do Not Agree With This Determination

A copy of this letter will be mailed to the attorney representing the Mason class. If you do not agree with our decision that you are not a class member, you should call or write to the class attorney, who will answer your questions about class membership. If the attorney thinks this determination is incorrect, she has 60 days from the date of this letter to ask us to look at your case again. The name and address of the attorney is:

If You Think You Are Disabled Now

If you think you are disabled now, you should fill out a new application. A new application is not the same as asking us to review your claim under Mason. In the new application, you may not be able to receive disability benefits for the period of time you asked for in your prior claim. If you decide to file a new application, contact any Social Security office.

If You Have Any Questions

If you have any questions, you may contact your Social Security office. The address and phone number are printed at the top of this letter. If you call or visit an office, please have this notice with you. It will help us answer your questions. You may also contact your personal legal representative, if you have one, or the Mason class attorney listed above.

SI VOUS NE COMPRENEZ PAS CET AVIS, VOUS POUVEZ VISITER UN BUREAU DE SÉCURITÉ SOCIALE POUR UNE EXPLICATION. PRIERE D'APPORTER CET AVIS AVEC VOUS.

cc: Dixie Henry, Esq.

Attachment 7. - Route Slip for Non-Class Membership Cases

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

During the past few months, the Office of the General Counsel (OGC) has requested voluntary remand in a number of cases, denied by the Secretary at step two of the sequential evaluation, on the grounds that the decisions have not been fully consistent with SSA policy and the Supreme Courts opinion in Bowen v. Yuckert, 82 U.S. 137 (1987).

Despite the Yuckert decision, extensive litigation, both in individual cases and in significant class actions, continues on the issue of how the Agency applies the step two standard expressed in Social Security Ruling (SSR) 815-28. Because the courts continue to give step two denials close scrutiny, I am asking all adjudicators and decision writers to carefully review SSR 85-28 to ensure that they are applying the proper standard for adjudicating claims at step two.

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

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

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

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

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

Attachment 11. - ALJ Dismissal to DDS

Attachment 12. Notice Transmitting ALJ Order of Dismissal

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