I-1-7-13.Case Consolidation Procedures

Last Update: 9/14/05 (Transmittal I-1-56)

A. General

When a claimant has an inactive claim(s) to be reopened or readjudicated under a class action court order or settlement agreement, and also has a subsequent claim pending at any administrative level, SSA may consider consolidating the claims. SSA will use its best efforts to ensure that processing of the current claim is not delayed by consolidation.

Claims may be consolidated only when they have common issues and if it is reasonable to do so. If the claims are disability claims and involve disability issues, they will be considered to have common issues regardless of the period at issue or the title(s) under which the claims were filed. In all cases involving consolidation actions at the OHA level, the fact of consolidation and specific reasons therefore should be clearly set forth in notice to the claimant.

NOTE:

For any case involving terminal illness (TERI), consolidation action where jurisdiction rests with different levels will depend entirely on the exigencies of the particular case. The TERI procedures will always take precedence (see I- 2-1-40 C.; I-3-0-71 A., I-3-0-80, and I-3-1-51; I-4-3-43).

Absent a specific provision in the court order or settlement agreement, the following principles apply when SSA's policy is to consolidate.

B. Both Claims Under DDS Jurisdiction (Resident DDS or Nonresident DDS)

The DDS will usually consolidate the claims and issue one determination. Generally, a DDS-jurisdiction class member claim is under the jurisdiction of the DDS that made the determination to be reviewed, even if the claimant has moved out of the DDS's usual area of jurisdiction, and that nonresident DDS will have jurisdiction for consolidation.

EXCEPTIONS:

In any of the circumstances listed below, the resident DDS will have jurisdiction for a class action claim.

  • The court order or settlement agreement is also applicable in the state of the claimant's current residence, e.g., a nationwide, region-wide or circuit- wide class action.

  • A face-to-face review is appropriate (cessation cases).

  • The court order requires review by the resident DDS.

If both the resident and nonresident DDS are involved and, the current claim is ready for favorable adjudication before consolidation, the favorable adjudication will proceed without consolidation. The DDS issuing the favorable determination will notify the other DDS of the action taken on the current claim.

C. Prior (Inactive) Claim Under DDS Jurisdiction — Subsequent (Current) Claim Pending in HO

Consolidation between adjudicative levels becomes an issue for the HO when it has a subsequent (current) claim pending and it:

  • receives an alerted, unscreened potential class claim;

  • receives a class member claim;

  • becomes aware of a class member claim pending DDS review; or

  • receives an alert for a DDS-jurisdiction claim.

1. HO Receives Alerted, Unscreened Potential Class Member Claim

Ordinarily, the HO will receive potential class cases unscreened. Accordingly, HO personnel must first screen for eligibility for class relief and send any required notice (see I-1-7-11 B. and I-1-7-11 C.). If the claimant is not a class member eligible for relief, HO personnel will forward the claim file(s) to the designated location for such cases, unless it is otherwise needed for adjudication. If the claimant is a class member eligible for relief, HO personnel must determine if there is an issue common to both the subsequent (current) and class member claims.

  • If there is no common issue, e.g, the current claim involves waiver of an overpayment, and the prior claim involves entitlement issues, the ALJ will notify the claimant of the reason(s) for not consolidating the claims (see I-1-7-91 Exhibit for sample language). The notice may be mailed along with any required notice of class membership. HO personnel will place a copy of the notice in each claim file and will forward the prior (inactive) claim file to the appropriate DDS, using I-1-7-92 Exhibit.

  • If there is a common issue, the ALJ's consolidation action will depend on whether the hearing has already been scheduled or held.

a. Common Issue - Hearing Scheduled or Held

When there is a common issue and the hearing has been scheduled or held, the ALJ will:

  • retain jurisdiction of the subsequent (current) claim;

  • consolidate the prior (inactive) class claim with the subsequent (current) claim;

    EXCEPTION:

    The ALJ will not consolidate if the subsequent claim involves a remand with a court-ordered time limit, and consolidation would prevent compliance with the time limit.

  • prepare and mail the customary notice of intent to consider a new issue (20 CFR §§ 404.946(b)/416.1446(b)) (this notice may be mailed along with any required notice of class membership);

  • if the hearing has been held and the prior (inactive) claim raises an additional issue, offer a supplemental hearing unless the ALJ is prepared to issue a favorable decision that is fully favorable with respect to the class claim;

  • issue one decision that covers the issues raised by all consolidated claims; and

  • notify the OHA Class Action Coordinator of the disposition of the class claim by forwarding a copy of the decision to the address shown in I-1-7-11 A.

b. Common Issue - Hearing Not Scheduled

When there is a common issue and the hearing has not been scheduled, the ALJ will:

  • dismiss the request for hearing on the subsequent (current) claim without prejudice (see I-1-7-93 Exhibit for sample language) (the notice of dismissal may be mailed along with any required notice of class membership); and

  • forward all claims to the DDS for consolidation and readjudication.

EXCEPTIONS:

In any of the circumstances listed below, the ALJ will not dismiss the request for hearing when a hearing has not been scheduled:

  • The claimant has waived his or her right to appear at a hearing and the case is ready for an on-the-record decision. The ALJ is prepared to issue a fully favorable decision on the subsequent claim.

  • The subsequent claim is on remand from the Appeals Council.

  • The subsequent claim is a TERI case.

  • Once the DDS has issued a determination covering the issues raised by all claims, the claimant may file a new request for hearing, if the determination is unfavorable, either in whole or in part.

c. Common Issue - ALJ Unable to Consolidate or Dismiss Because Exception Applies — Claimant Previously Notified of Case Transfer to OHA

The ALJ will take all of the actions listed below when there is a common issue, the ALJ is unable to consolidate or dismiss because an exception applies, and the claimant was notified of the transfer to OHA.

  • Advise the claimant of the action taken in the case, modifying the language in the exhibit in I-1-7-91 as appropriate.

  • Place a copy of the notice in the class claim file.

  • Forward or return the class claim file to the appropriate DDS for separate review (see I-1-7-92).

d. Common Issue - ALJ Unable to Consolidate or Dismiss Because Exception Applies - Claimant Not Previously Notified of Case Transfer to OHA

The ALJ will take all of the actions listed below when there is a common issue, but the ALJ is unable to consolidate or dismiss because an exception applies, and the claimant has not been notified of the transfer to OHA.

  • Document the class claim file with the reason for not consolidating or dismissing.

  • Retain the class claim file with the subsequent (current) claim.

  • Flag the class member claim file for DDS review after completion of all OHA actions, either favorable or unfavorable, on the subsequent (current) claim (Use the flag shown at I-1-7-94).

Although, in most cases, OHA action may effectively render moot (through either res judicata or reversal) the issues raised by the class claim, the DDS must still review the class claim for input to CATS and notice to the claimant.

2. HO Receives Screened Class Claim

If the HO receives a class claim that has already been screened, it will proceed in accordance with I-1-7-13 B.1. if a subsequent claim is pending in the HO.

3. HO Becomes Aware of Class Member Claim Pending DDS Review

At any point during the hearing proceedings, HO personnel may become aware, usually based on information furnished by a claimant or representative, that a class claim is undergoing or awaiting review in a DDS. In this situation, HO personnel must consult directly with the DDS (or follow established coordination procedures for a particular region) to determine if there is a common issue.

  1. If HO personnel and the DDS agree that there is no common issue, both components may proceed with their actions independently.

  2. If HO personnel and DDS agree that there is a common issue, HO personnel will ask the DDS to forward the class claim file for consolidation consideration (unless the DDS is ready to issue a determination).

  3. If there is any doubt as to whether there is a common issue, HO personnel will ask the DDS to forward the class claim for consolidation consideration (unless the DDS is ready to issue a determination). Every attempt should be made to resolve the question without forwarding the file.

    • If HO personnel review the class claim file and determine that there is no common issue, HO personnel will prepare the appropriate notice to send to the claimant (see I-1-7-91) and return the file to the DDS.

    • If HO personnel review the class claim file and determine that there is a common issue, HO personnel will proceed in accordance with I-1-7-13 C.1.

4. HO Receives an Alert for a DDS-Jurisdiction Claim

If the HO receives an alert without a claim file, HO personnel will determine whether the alerted case is located in the HO. The case that was alerted may have proceeded on appeal to OHA, or may be attached to a subsequent (current) claim that proceeded on appeal to OHA. If the alerted case is attached to a claim pending a hearing, HO personnel will proceed in accordance with I-1-7-13 C.1.

If the alerted case is the case on appeal, consolidation is not an issue. HO personnel will screen for eligibility for class relief and send appropriate notice to class members not eligible for relief. If the claimant is a class member entitled to relief and a hearing has not been scheduled or held, the ALJ will, subject to the exceptions and guidance for excepted cases in I-1-7-13 C.1.b. and I-1-7-13 C.1.d., dismiss the request for hearing and forward the case to the DDS for readjudication or reopening, if warranted.

If a hearing has been scheduled or held, the ALJ will continue with normal processing. If the ALJ issues a fully favorable decision, the ALJ will notify the claimant, and the representative, if any, that the decision resolves the class claim. The ALJ will also notify the OHA Class Action Coordinator of the disposition of the class claim by forwarding a copy of the decision to the address shown in I-1-7-11 A.. If the ALJ issues other than a fully favorable decision, or dismisses the request for hearing, HO personnel will flag the class claim (see I-1-7-94 Exhibit) for forwarding to the DDS on completion of all OHA actions and expiration of any appeal period. The DDS may take any further action warranted to effect class relief.

If the HO does not have the alerted case, HO personnel will forward the alert to the OHA Class Action Coordinator at the address in I-1-7-11 A., along with information about the status of the subsequent (current) claim, for further handling. The HO will continue to process the subsequent (current) claim, and will consider consolidation if the alerted case is later received in the HO while the subsequent (current) claim is still pending.

If the HO no longer has a pending claim when the alert is received, HO personnel will forward the alert to the OHA Class Action Coordinator for further handling.

D. Prior (Inactive) Claim Under HO Jurisdiction — Subsequent (Current) Claim Received in FO or Pending in DDS

When an FO or DDS receives a subsequent (current) claim and a prior claim(s) is pending readjudication in an HO, the FO or DDS will forward the subsequent (current) claim to the HO for consolidation consideration and the FO or DDS will notify the claimant of this action.

  • When the ALJ determines that the subsequent (current) claim does not have an issue in common with the class claim pending readjudication, he or she will return or forward the subsequent (current) claim to the DDS for adjudication (use the Exhibit, appropriately modified, in I-1-7-92), and will notify the claimant of the transfer (see I-1-7-95 Exhibit).

  • When the ALJ determines that the claims have common issues, he or she will proceed with consolidation consideration pursuant to I-1-7-13 C.1. If, based on the principles and exceptions in I-1-7-13 C.1. the ALJ is unable to consolidate or dismiss the class claim, he or she will return or forward the subsequent (current) claim to the DDS (use the Exhibit, appropriately modified, in I-1-7-92) and will so notify the claimant by appropriate modification of I-1-7-95 Exhibit.

E. Prior (Inactive) Claim Under HO Jurisdiction — Subsequent (Current) Claim Pending in HO

In the HO-jurisdiction situation (see I-1-7-8), the ALJ may consolidate common-issue claims even if, at the point consolidation becomes an issue, one claim is ready for decision. If necessary, the ALJ will offer a supplemental hearing. However, if the subsequent (current) claim is a TERI case or a time-limited remand, the ALJ will consolidate only if appropriate depending on the exigencies of the case.

When the HO receives an alert for an HO-jurisdiction case without a claim file, HO personnel will determine whether the alerted case is located in the HO. The case that was alerted may have proceeded on appeal to OHA, or may be attached to a subsequent (current) claim that proceeded on appeal to OHA. If the alerted case is attached to a claim pending a hearing, HO personnel will screen for entitlement to class relief and send any required notice. If the claimant is a class member entitled to relief, the ALJ will consolidate pursuant to I-1-7-13 B. If the alerted case is the case on appeal, consolidation is not an issue. HO personnel will follow instructions for screening and notice and, if appropriate, for processing and adjudication of class claims.

If the HO does not have a claim that falls within the dates for class membership, HO personnel will forward the alert to the OHA Class Action Coordinator at the address in I-1-7-11 A., along with information about the status of the subsequent (current) claim, for further handling. The ALJ will continue to process the subsequent (current) claim, and will consider consolidation if the alerted case is later received in the HO while the subsequent (current) claim is still pending. If the HO no longer has a pending claim when the alert is received, HO personnel will forward (or return) the alert to the OHA Class Action Coordinator for further handling.

F. Prior (Inactive) Claim Under DDS or HO Jurisdiction; Appeal on Subsequent (Current) Claim Pending at Appeals Council

Consolidation becomes an issue at the Appeals Council level when the Council receives an alerted claim(s), screened or unscreened, or receives an alert for a claim already in its possession. The Appeals Council may consolidate a class claim, with a subsequent (current) claim pending before it on a request for review, when the Appeals Council proposes to issue a favorable decision on the subsequent (current) claim and that decision is also fully favorable with respect to the issues raised by the class claim. The Council may also direct an ALJ to consolidate a prior (inactive) class claim and a subsequent (current) claim, when the Appeals Council proposes to remand and a common issue prior (inactive) class claim has been associated with the subsequent (current) claim.

1. Appeals Council Decides to Issue a Favorable Decision — Decision Is Fully Favorable with Respect to Prior (Inactive) Claim

OAO personnel will screen all alerted claims in OAO's possession that have not been screened (see I-1-7-11 B.).

NOTE:

If, on screening, OAO personnel determine that an additional potential class claim file must be retrieved, the Appeals Council will not delay action on the subsequent (current) claim (unless the additional claim file appears to be material to the Council's consideration of the subsequent (current) claim). Without sending any notice of entitlement or non-entitlement to class relief, OAO personnel will, forward the prior (inactive) alerted claim (if not needed for consideration of the subsequent (current) claim) to the component having jurisdiction for review, under cover of a route slip annotated with the status of the subsequent (current) claim and the need for an additional folder. OAO personnel will also notify the OHA Class Action Coordinator of the location to which the alerted claim is forwarded.

As a., b., and c. below describe, the necessary action depends on the screening results.

a. Alerted Claim Is Not a Class Member Claim

When the alerted claim(s) is not a class member claim(s), OAO personnel will send the notice of non-entitlement to relief (see I-1-7-11 C.3.); return the claim file(s) to the designated location, if not needed for adjudication purposes; and proceed with action on the subsequent (current) claim.

b. Alerted Claim Is a Class Member Claim - Common Issue(s)

When the alerted claim(s) is a class member claim(s) and has issues in common with the claim pending review, OAO personnel will:

  • consolidate the claims;

  • notify the claimant, and the representative, if any, in the decision on the subsequent claim that the decision also resolves the class member claim; and

  • notify the OHA Class Action Coordinator of the disposition of the class member claim by forwarding a copy of the decision by interoffice mail to Suite 701 SKY.

c. Alerted Claim is a DDS-Jurisdiction Class Member Claim - No Common Issue

When the alerted claim(s) is an HO-jurisdiction class member claim that does not have an issue in common with the subsequent (current) claim, OAO personnel will:

  • forward the class claim to the HO (modify I-1-7-92 Exhibit) as appropriate for the Appeals Council;

  • advise the claimant of the transfer and the reason for it, either in any required notice or entitlement to class relief or in the notice of the Council's action on the subsequent (current) claim; and

  • notify the OHA Class Action Coordinator of the transfer.

d. Alerted Claim Is a DDS-Jurisdiction Class Member Claim - Common Issue

When the alerted claim is an HO-jurisdiction class member claim that has an issue in common with the subsequent (current) claim, OAO personnel will:

  • forward the class claim to the HO (modify I-1-7-92 Exhibit as appropriate for the Appeals Council); and

  • advise the claimant of the transfer and the reason for it, either in any required notice of entitlement to class relief or in the notice of the Council's action on the subsequent (current) claim or in a separate notice based on appropriate modification of I-1-7-91 Exhibit).

2. Appeals Council Decides to Issue a Favorable Decision — Decision Is Not Fully Favorable with Respect to Prior (Inactive) Claim

OAO personnel will screen any alerted claim in OAO's possession that has not been screened and send any required notice to the claimant (see I-1-7-11 C.).

NOTE:

If, on screening, OAO personnel determine that an additional potential class claim file must be retrieved, the Appeals Council will not delay action on the subsequent (current) claim unless the additional claim file appears to be material to the Council's consideration of the subsequent (current) claim. OAO personnel will, without sending any notice regarding entitlement or nonentitlement to class relief, forward the prior (inactive) alerted claim (if not needed for consideration of the subsequent (current) claim) to the component having jurisdiction for review with a route slip annotated with the status of the subsequent (current) claim and the need for an additional folder. OAO personnel will also notify the OHA Class Action Coordinator of the location to which the alerted claim is forwarded.

As a., b., and c. below describe, the necessary action depends on the screening results.

a. Alerted Claim is Not a Class Member Claim

When the alerted claim(s) is not a class member claim(s), OAO personnel will return the claim file(s) to the designated location, if not needed for adjudication purposes, and proceed with action on the subsequent (current) claim.

b. Alerted Claim Is a Class Member Claim - Common Issue(s)

When the alerted claim(s) is a class claim(s) and has issues in common with the claim pending review, OAO personnel will request that the effectuating component forward the claim file(s) to the component having jurisdiction for readjudication after the Appeals Council's decision is effectuated, using the following language on the transmittal sheet:

“[insert name of class action] court case review needed — following effectuation, forward the attached combined files to the [DDS or HO, as appropriate]”

The DDS or HO will determine whether the Appeals Council's action has resolved all class member relief issues and will take any necessary action.

c. Alerted Claim Is a Class Member Claim - No Common Issue(s)

When the alerted claim(s) is a class member claim(s) that does not have an issue in common with the subsequent (current) claim, OAO personnel will follow the instructions in I-1-7-13 F.1.c. or d., depending on whether the HO or DDS has jurisdiction.

3. Appeals Council Decides to Remand

OAO personnel will screen any alerted claim in OAO's possession that has not been screened (see I-1-7-11 B.) and send any required notice to the claimant (see I-1-7-11 C.).

NOTE:

If, on screening, OAO personnel determine that an additional potential class claim file must be retrieved, the Appeals Council will not delay action on the subsequent (current) claim (unless the additional claim file appears to be material to the Council's consideration of the subsequent (current) claim). Without sending any notice of entitlement or non-entitlement to class relief, OAO personnel will forward the prior (inactive) alerted claim (if not needed for consideration of the subsequent (current) claim) to the component having jurisdiction for review, under cover of a route slip annotated with the status of the subsequent (current) claim and the need for an additional folder. OAO personnel will also notify the OHA Class Action Coordinator of the location to which the alerted claim is forwarded.

As a., b., and c. below describe, the necessary action depends on the screening results.

a. Alerted Claim Is Not a Class Member Claim

When the alerted claim(s) is not a class member claim(s), OAO personnel will return the claim file(s) to the designated location, if not needed for adjudication purposes, and proceed with the action on the subsequent (current) claim.

b. Alerted Claim Is a Class Member Claim - Common Issue(s)

When the alerted claim(s) is a class member claim(s) and has issues in common with the claim pending review, the Appeals Council will direct the ALJ in the remand order to consolidate the class claim(s) with action on the subsequent (current) claim.

EXCEPTION:

The Appeals Council will not direct the ALJ to consolidate the claims if 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.

c. Alerted Claim Is a Class Member Claim - No Common Issue

When the alerted class member claim(s) does not have an issue in common with the subsequent (current) claim, OAO personnel will follow the instructions in I-1-7-13 F.1.c. and d., depending upon whether the HO or DDS has jurisdiction. If, as noted in the exception in b. above, a court-ordered time limit precludes consolidation, OAO personnel will:

  • forward or return the class claim(s) to the component having readjudication jurisdiction, using the Exhibit, modified appropriately, in I-1-7-92;

  • notify the claimant in the remand order of the action on the class claim(s); and

  • place a copy of the remand order in the class claim file(s).

4. Appeals Council Proposes to Dismiss or Deny the Request for Review or to Issue an Unfavorable Decision

OAO personnel will screen any alerted claim in OAO's possession that has not been screened (see I-1-7-11 B.) and send any required notice to the claimant (see I-1-7-11 C.).

NOTE:

If, on screening, OAO personnel determine that an additional potential class claim file must be retrieved, the Appeals Council will not delay action on the subsequent (current) claim (unless the additional claim file appears to be material to the Council's consideration of the subsequent (current) claim). Without sending any notice of entitlement or non-entitlement to class relief, OAO personnel will forward the prior (inactive) alerted claim (if not needed for consideration of the subsequent (current) claim) to the component having jurisdiction for review, under cover of a route slip annotated with the status of the subsequent (current) claim and the need for an additional folder. OAO personnel will also notify the OHA Class Action Coordinator of the location to which the alerted claim is forwarded.

As a., b., and c. below describe, the necessary action depends upon the screening results.

a. Alerted Claim Is Not A Class Member Claim

When the alerted claim(s) is not a class member claim(s), OAO personnel will return the claim file(s) to the designated location, if not needed for adjudication purposes, and proceed with the action on the subsequent (current) claim.

b. Alerted Claim Is A Class Member Claim - Common Issue(s)

When an alerted claim(s) is a class claim(s) and has issues in common with the claim pending review, the Appeals Council will remand the claims to the component having jurisdiction, for readjudication (see sample language for remand to DDS at I-1-7-96).

c. Alerted Claim Is A Class Member Claim - No Common Issue

When the alerted claim(s) that is a class member claim(s) does not have an issue in common with the subsequent (current) claim, OAO personnel will follow the instructions in I-1-7-13 F.1.c. and d., depending on whether the HO or DDS has jurisdiction.

G. Alerted Claim (Under DDS or HO Jurisdiction) Is Pending at Appeals Council Level

If the Appeals Council receives an alert for a case that is pending appeal, OAO personnel will screen for entitlement to class relief regardless of jurisdiction.

1. Claimant Not a Class Member Entitled to Relief

If the claimant is not a class member entitled to relief, OAO personnel will enclose the non- class member notice with the notice of the Appeals Council's action.

2. Claimant Is a Class Member Entitled to Relief

If the claimant is a class member entitled to relief, the Appeals Council's action will depend on the Council's consideration of the merits of the request for review, as explained as follows:

a. Appeals Council Decides to Issue a Fully Favorable Decision

The Appeals Council will notify the claimant, and representative, if any, in the decision that the decision resolves the class claim.

b. Appeals Council Decides to Issue a Partially Favorable Decision

OAO personnel will request that the effectuating component forward the claim file(s) to the component having jurisdiction for readjudication, after the Appeals Council's decision is effectuated, using the following language on the transmittal sheet:

“[insert name of class action] court case review needed — following effectuation, forward the attached file(s) to the [DDS or HO, as appropriate].”

The DDS or HO will determine whether the Appeals Council's action has resolved all class member relief issues and will take any necessary action.

c. Appeals Council Finds a Basis for Remand, Unrelated to the Fact of Entitlement to Class Relief

The Appeals Council will proceed with the remand. If the DDS has jurisdiction for the class claim, the Council will remand directly to the DDS for reopening (see sample language for remand to DDS at I-1-7-97 Exhibit).

d. Appeals Council Proposes to Dismiss or Deny the Request for Review or to Issue an Unfavorable Decision

The Appeals Council will remand the claim to the component having jurisdiction for readjudication (see sample language for remand to DDS at I-1-7-98 Exhibit).

H. Prior (Inactive) Claim at DDS or HO Level; Appeal on Another Claim Is Pending Judicial Review

As explained in I-1-7-11 B.3., a component that has a class member claim for review and determines that an appeal on a claim filed before or after the prior (inactive) claim is pending judicial review, must notify the Office of Program Law (OPL) in OGC because class membership may influence action on the court case. Within OHA, OAO or the HO will alert the appropriate OAO CCPRB to the situation. The CCPRB will contact OPL directly and will notify the component of any action to be taken.

I-2-8-16 provides that when a new claim is filed and a common-issue claim is pending judicial review, consideration of the new claim must be limited to the time period, if any, following the date of the Commissioner's final decision on the claim pending judicial review. However, when the “new” claim is a class claim and the claim must be readjudicated, the time period involved in the readjudication will normally predate the Commissioner's final decision on the claim pending judicial review. Accordingly, when a class claim must be readjudicated and another, common-issue claim is pending judicial review, decision makers will follow the instructions in the TI developed for the class action.

I. Alerted Claim is Pending Judicial Review

The CCPRB will receive alerts for claims that are pending judicial review. Because eligibility for class relief may influence action on the court case, the CCPRB will follow instructions in the specific class action TI, or coordinate with OGC, before releasing any required notice concerning eligibility for class relief.