I-5-4-11.Johnson, et.al., v. Sullivan

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Reconciliation of Implementation
IX Inquiries
Attachment 1 Final Judgment Order dated April 3, 1991
Attachment 2 JOHNSON COURT CASE FLAG/ALERT
Attachment 3 Route Slip or Case Flag for Screening
Attachment 4 Johnson Screening Sheet
Attachment 5 Route Slip for Routing Class Member Alert (and Prior Claim Folder(s) to ODIO or PSC -- OHA No Longer Has Current Claim
Attachment 6 Johnson Non-Class Membership Notice
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.”
Attachment 9 Johnson Class Member Flag for Headquarters Use (DDS Readjudication)
Attachment 10 Johnson Cases Member Flag for HO Use (DDS Adjudication)
Attachment 11 ALJ Dismissal to DDS
Attachment 12 Notice Transmitting ALJ Order of Dismissal

Issued: August 6, 1992, Revised March 21, 1997

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the April 3, 1991 order of the United States District Court for the Northern District of Illinois in the Johnson, et al. v. Sullivan class action involving the “not severe” impairment issue.

Adjudicators throughout the country must be familiar with this TI because Johnson class members who now reside outside of Illinois must have their cases processed in accordance with the requirements of the court's order.

II. Background

On December 7, 1983, the United States District Court for the Northern District of Illinois certified a class challenging the Secretary's regulations, policies and practices for evaluating disability claims at step two of the sequential evaluation.

On September 19, 1984, the district court found the Secretary's severity regulations invalid and enjoined the Secretary from using step two of the sequential evaluation. After the court denied the Secretary's motions to vacate the injunction and amend its judgment, the Secretary appealed to the Seventh Circuit.

The Court of Appeals stayed implementation of class relief pending appeal, but affirmed the district court's jurisdictional and substantive rulings on all issues. A panel of circuit court judges denied the Secretary's petition for rehearing and, subsequently, the Court of Appeals denied the Secretary's suggestion for rehearing in banc by an evenly divided vote. In February 1985, the Secretary petitioned the Supreme Court for a writ of certiorari. While the petition was pending, the Supreme Court upheld the facial validity of the severity regulations in Bowen v. Yuckert, 482 U.S. 137 (1987). The Supreme Court then granted the Secretary's petition in Johnson, vacated the Seventh Circuit's judgment and remanded for further consideration in light of Yuckert. On remand, the Seventh Circuit vacated the district court's injunction to the extent that it prohibited the use of step two of the sequential evaluation and remanded the case to the district court.

On October 6, 1988, the district court issued a decision on the merits. The decision found that the issue of the Secretary's misapplication of the severity regulations was not suitable for class action litigation. However, the court also found that the Secretary's pre-December 1, 1984 policy of not considering the combined effect of individual “not severe” impairments violated the Social Security Act. On June 16, 1989, the district court issued a final order that resolved the remaining implementation and jurisdictional issues and relied on the Supreme Court's decision in Bowen v. City of New York, 476 U.S. 467 (1987), to waive administrative exhaustion and toll the 60-day statute of limitations in 42 U.S.C. § 405(g). The final order established the beginning date of the class as February 26, 1979, the date the “combined effect” regulation became effective.

After staying implementation of class relief pending appeal, the United States Court of Appeals for the Seventh Circuit, on December 28, 1990, issued a unanimous in banc decision upholding the district court's earlier ruling that the Secretary's “combined effect” policy violated the Social Security Act. Although the Seventh Circuit also upheld the lower court's ruling that the Secretary waived the 42 U.S.C. § 405(g) 60-day statute of limitations by failing to raise the issue in a timely manner as an affirmative defense at the onset of the litigation, it found the equitable tolling doctrine in City of New York inapplicable to the facts in the case. The Court of Appeals also found City of New York inapplicable with respect to waiver of administrative exhaustion for lapsed claims, i.e., claims no longer pending or appealable at the time the class complaint was filed. Accordingly, the Seventh Circuit instructed the district court to reconfigure (reduce) the Johnson class to exclude claimants who did not exhaust their administrative remedies 60 days prior to the filing date of the class complaint (August 11, 1983).

On April 3, 1991, the district court issued a final judgment order. That order modified the class definition and set forth the terms for the implementation of class relief (Attachment 1).

III. Guiding Principles

Under Johnson, the Commissioner will reopen and readjudicate the claims of those persons who (1) respond to notice informing them of the opportunity for review and (2) are determined to be class members after screening (see Part V below). Regardless of the state of the claimant's current residence, the Illinois Disability Determination Service (DDS) will, in most cases, screen for class membership and perform the court-ordered readjudications at the reconsideration level, regardless of the level of administrative review that last decided the claim. OHA will screen cases and perform readjudications under limited circumstances (see Part V.B. below). Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).

Johnson does not require any change in OHA's current adjudicatory policies or practices because Social Security Ruling (SSR) 85-28 remains the proper standard for adjudicating claims at step two of the sequential evaluation.

IV. Definition of Class

Except as noted below, the Johnson class includes all persons who resided in Illinois during the following timeframes and:

  • whose disability benefits were denied or terminated at step two of the sequential evaluation at any administrative level on or after June 12, 1983, through May 1, 1985; or

  • whose disability benefits were denied or terminated at step two on or after August 20, 1980, through June 11, 1983, and who exhausted their administrative remedies (i.e., pursued their claims through the Appeals Council level of review); or

  • whose disability benefits were denied or terminated at step two between February 26, 1979, and August 19, 1980, inclusive, and who exhausted their administrative remedies (i.e., pursued their claims through the Appeals Council level of review), and who were listed under “code 922” by the Illinois DDS. (This code appears on the SSA-831-U3 or 833-U3 and identifies step two denial or cessation claims adjudicated at the initial or reconsideration levels.)

EXCEPTION:

A person is not a class member if:

(1) the last administrative denial or termination the individual received on the Johnson claim was not based on step two of the sequential evaluation; or

(2) the last administrative denial or termination the individual received on the Johnson claim was issued after May 1, 1985; or

(3) the individual had a subsequent claim denied after May 1, 1985, and the onset date alleged in connection with the subsequent claim is on or before the onset date alleged in connection with the Johnson claim.

V. Determination of Class Membership and Preadjudication Actions

A. Non-OHA Actions

1. Notification

On June 3, 1991, SSA sent notices to all potential class members identified by computer run. Individuals had 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Johnson court order.

Notices returned as undeliverable will be mailed a second time. The Office of Disability and International Operations (ODIO) and the Program Service Centers (PSCs) will send all untimely responses to the servicing Social Security field office to develop good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411.

2. Alerts and Folder Retrieval

Litigation Staff in the Office of Policy and Planning is tracking all response forms and sending alerts to ODIO and the PSCs to use in locating claim files. Alerts will be generated first for termination cases. See Attachment 2 for a sample Johnson alert. In most instances, ODIO or the PSCs will associate the Johnson alert and the claimant's response form with the claim file(s) and forward the file to the Illinois DDS for screening and readjudication.

3. Alerts Sent to OHA

If ODIO or the PSCs determine that a current claim, i.e., either a potential class member claim or a subsequent claim, is pending appeal or stored at OHA, it will forward the alert to OHA, along with any prior claim file(s) not in OHA's possession, for screening, consolidation consideration and readjudication (if consolidated).

ODIO or the PSCs will send all alerts potentially within OHA jurisdiction, and related prior claim files, if any, to the Office of Appellate Operations (OAO) at the following address (case locator code 5007):

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

NOTE:

The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters for association with pending or stored claims. The OAO Class Action Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final class membership reconciliation.

4. Folder Reconstruction

Generally, ODIO or the PSCs will initiate any necessary reconstruction of prior claim files through the servicing FO. Consequently, OHA requests for reconstruction of potential Johnson class member cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the claim would not confer class membership.

However, if it becomes necessary for OHA to request reconstruction, the OHA component (the Hearing Office (HO) or the OAO Branch) will forward the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) to the servicing FO, along with documentation of attempts to locate the file and a covering memorandum requesting that the reconstructed file be forwarded to OHA. HOs will route any reconstruction requests directly to the servicing FOs. The OAO branch will also route reconstruction requests directly to the servicing FOs and send copies of the cover memorandums concerning all reconstruction requests to the OAO Class Action Coordinator. For CATS purposes, HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:

Litigation Staff
Office of Policy and Planning
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 21235

ATTN: Johnson Coordinator

The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to the receipt of the reconstructed file, the HO or OAO, as appropriate, will forward the class action material, including the alert, unneeded claim files, if any, and the reconstruction request to the OAO Class Action Coordinator, along with a copy of the action on the pending claim (see V.B.2.a. below). For additional information on reconstruction procedures, see the Generic Class Action Implementation Instructions, Hallex I-1-7-5C.

5. Class Membership Denials

The Chicago, Illinois district office, located at 175 West Jackson Boulevard, will hold all non-class member claim folders pending review by class counsel. Upon review of the folders, class counsel will contact the Office of the General Counsel (OGC) directly to resolve class membership disputes.

B. OHA Actions

1. Pre-Screening Actions

a. Current Claim in OHA

As provided in Part V.A.3. above, if there is a current claim pending or stored at OHA, the OAO Class Action Coordinator will receive the alert and related Johnson claim file(s). The OAO Class Action Coordinator will determine OHA jurisdiction for screening and forward as follows.

  • If the current claim is in an HO, the Coordinator will use Attachment 3 to forward the alert and the prior claim file(s) to the HO for screening. (Part V.B.2.a. below provides instructions to the HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

  • If the current claim is before the Appeals Council, or is located in an OAO branch mini-docket or in the OAO Docket and Files Branch, the Coordinator will use Attachment 3 to forward the alert and prior claim file(s) to the appropriate OAO branch for screening. (Part V.B.2.a. below provides instructions to the OAO branches regarding the action to be taken if they receive an alert package from the OAO Class Action Coordinator but no longer have a current claim pending.)

  • If the Coordinator (or designee) is unable to locate the current claim file within OHA, the Coordinator (or designee) will broaden its claim file search and arrange for alert transfer or file reconstruction, as necessary.

b. Current Claim Pending in Court

If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on another claim, the Coordinator will forward the alert and any accompanying claim file(s) to the appropriate Court Case Preparation and Review Branch (CCPRB) for screening using Attachment 3. See Part V.B.2.b. below for special screening instructions when a civil action is involved.

2. Screening

a. General Instructions

The screening component will associate the alert, if any, and any prior claim file(s) with the claim file(s) in its possession and then complete the screening sheet (see Attachment 4) as follows:

  • consider all applications denied (including res judicata denials/dismissals) during the Johnson timeframe;

  • follow all instructions on the screening sheet;

  • sign and date the original screening sheet, place it in the claim file(on the top right side of the file); and,

  • if the screening component is an OHA Headquarters component, forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V.A.3. above. (The Coordinator will enter information from the screening sheet into a database and forward a copy of the screening sheet to the Division of Litigation Analysis and Implementation (DLAI). If the screening component is an HO, forward a copy of the screening sheet directly to DLAI at the following address:

    Office of Hearings and Appeals
    Division of Litigation Analysis and
    Implementation
    One Skyline Tower, Suite 702
    5107 Leesburg Pike
    Falls Church, VA 22041-3255

HO personnel may also forward material by telefax to DLAI at (703) 305-0655. (DLAI will retain a copy of each screening sheet and forward a copy to the OAO Class Action Coordinator and to Litigation Staff.)

If the HO receives an alert only, or an alert associated with a prior claim file(s) for screening and no longer has the current claim file, it will return or forward the alert and the prior claim file(s) to the OAO Class Action Coordinator (see address in Part V.A.3. above) and advise the Coordinator of what action was taken on the current claim and its destination. The Coordinator will determine the current claim file location and, if it is located in OHA Headquarters, will forward the alert and any accompanying prior claim file(s) to the responsible OAO branch for screening, using Attachment 3. If the file(s) is no longer in OHA, the Coordinator will use Attachment 5 to send the alert and any accompanying prior claim file(s) to the non-OHA location and request that the file(s) be forwarded to the Illinois DDS for screening.

If the OAO branch receives an alert only, or an alert associated with a prior claim file(s), and the branch no longer has the current claim file (and it is not located in an OAO branch mini-docket or in the OAO DFB), it will determine the location of the current claim file. If the current claim file is located within OHA, the OAO branch will use Attachment 3 to forward the alert and any accompanying prior claim file(s) to the current OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 5 to forward the alert and any accompanying prior claim file(s) to the non-OHA location and request that the file(s) be forwarded to the Illinois DDS for screening. The OAO branch will also advise the OAO Class Action Coordinator of its actions.

NOTE:

Final determinations or decisions made after May 1, 1985, on a claim filed by a potential Johnson class member may adjudicate the same timeframe covered by the Johnson claim. Instead of applying the doctrine of administrative res judicata to the Johnson claim, these claims should be denied class membership.

b. Special OAO Screening Instructions if a Civil Action Is Involved

As noted in Part V.B.1. above, the CCPRB will screen for Johnson class membership when a civil action is involved. The CCPRB's class membership determination will dictate the appropriate post-screening action.

  • If the current claim pending in court was adjudicated in accordance with SSR 85-28 and resolved all Johnson issues, the claimant is not a Johnson class member. The CCPRB will follow the instructions in Part V.B.3.a. below for processing non-class member claims.

  • If the current claim pending in court was adjudicated in accordance with SSR 85-28, but a Johnson issue remains unresolved, e.g., there is a prior (inactive) Johnson claim and the current claim does not include the entire period covered by the Johnson claim, the CCPRB will forward the Johnson claim to the Illinois DDS for separate review. The CCPRB will modify the case flag in Attachment 9 to indicate that the pending court case does not resolve all Johnson issues and that the Johnson class member claim is being forwarded for separate processing. The CCPRB will notify the OAO Class Action Coordinator of this action.

  • If the final administrative decision on the claim pending in court was not adjudicated in accordance with SSR 85-28 or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings and consolidate the claims.

NOTE:

The CCPRB will immediately notify OGC if the pending court case is a Johnson class member claim so that OGC can notify the claimant of the option to have the case remanded for readjudication.

3. Post-Screening Actions

a. Non-Class Member Cases

If the screening component determines that the individual is not a class member, the component will:

  • notify the individual, and representative, if any, of non-class membership using Attachment 6 (modified as necessary to fit the facts and posture of the case when there is a current claim);

  • retain a copy of the notice in the claim file;

  • send a copy of the notice to:

    John Bouman, Attorney
    Poverty Law Project
    National Clearinghouse for Legal Services
    205 West Monroe, 2nd Floor
    Chicago, Illinois 60606
    Attn: Johnson
  • send the non-class member claim file(s) to the Chicago, Illinois district office using the pre-addressed route slip in Attachment 7.

NOTE:

Photocopy any material contained in the prior file that is relevant to the current claim and place it in the current claim file before shipping the prior file.

An individual who wishes to appeal a determination of non-class membership may do so only through class counsel, as explained in the notice (Attachment 6).

b. Cases Determined to Be Class Members

If the screening component determines that the individual is a class member, it will proceed with processing and adjudication in accordance with the instructions in Part VI below.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

The Illinois DDS will conduct the first Johnson review except for cases consolidated at the OHA level (see Part VI.D. below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member's claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review). Except as otherwise noted in this instruction, ALJs should process and adjudicate requests for hearing on Johnson DDS review cases in the same manner as for any other case.

B. Payment Reinstatement for Cessation Cases

If the Johnson claim involves a title II or title XVI cessation, the class member may elect to have disability benefits reinstated pending readjudication. In general, the servicing Social Security field office has responsibility for:

  1. contacting the class member who may have reinstatement rights;

  2. completing the election forms;

  3. verifying non-disability factors; and

  4. making a good faith effort to reinstate benefits within 45 days after retrieval or reconstruction of the Johnson claim file.

NOTE:

For OHA jurisdiction cases, the screening component will:

(1) identify Johnson claims involving title II or title XVI cessations;

(2) immediately notify the servicing field offices by telephone of the pending Johnson claims that may be eligible for benefit reinstatement and document the file accordingly; and

(3) provide the servicing field office with identifying information and any other information requested.

C. OHA Adjudication of Class Member Claims

The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Johnson readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and Headquarters will process Johnson class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.

1. Type of Review and Period to Be Considered

Pursuant to the Johnson order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a reopening. The claim of each class member must be fully reopened to determine whether the claimant was disabled at any time from the onset date alleged in the Johnson claim through the present (or, in title II cases in which the claimant is no longer insured, through the date last insured).

2. Step Two of the Sequential Evaluation

Johnson does not require any change in OHA's current adjudicatory policies or practices with respect to step two of the sequential evaluation. Effective with enactment of the 1984 Amendments to the Social Security Act, OHA's adjudicators have considered the combined effects of individual “not severe” impairments in evaluating disability claims at step two. ALJs and the Appeals Council may, if appropriate, continue to deny or cease the disability claims of Illinois residents in accordance with 20 CFR §§ 404.1520(c), 404.1521, 416.920(c) and 416.921, as well as SSR 85-28. The then Acting Associate Commissioner's memorandum, dated February 21, 1991 (Attachment 8), regarding the proper standard for adjudicating claims at step two, remains in effect.

3. Class Member Is Deceased

If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.

D. Claim at OHA But No Current Action Pending

If a claim file (either a class member or a subsequent claim file) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO will associate the alert with the file and screen for class membership.

  • If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OAO will attach a Johnson class member flag (see Attachment 9) to the outside of the file and send the claim file(s) to the Illinois DDS for review of the Johnson class member claim.

  • If less than 120 days has elapsed, OAO will attach a Johnson class member flag to the outside of the folder (see Attachment 9) to ensure the case is routed to the Illinois DDS after expiration of the retention period. Pending expiration of the retention period, OAO will also:

    • return unappealed ALJ decisions and dismissals to DFB, OAO; and

    • return unappealed Appeals Council denials to the appropriate OAO minidocket.

The respective OAO component will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the Illinois DDS in a timely manner.

E. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims (Consolidation Procedures)

1. General

If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Johnson class member claims with the current claim at the level at which the current claim is pending.

2. Current Claim Pending in the Hearing Office

a. Hearing Has Been Scheduled or Held, and All Remand Cases

Except as noted below, if a Johnson class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Johnson case with the appeal on the current claim.

EXCEPTIONS:

The ALJ will not consolidate the claims if:

  • the current claim and the Johnson claim do not have any issues in common, or

  • a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

If the claims are consolidated, follow Part VI.E.2.c. below. If the claims are not consolidated, follow Part VI.E.2.d. below.

b. Hearing Not Scheduled

Except as noted below, if a Johnson class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Johnson claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Johnson claim and the current claim to the DDS for further action (see Part VI.E.2.d. below).

EXCEPTION:

If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant a Johnson class member, the ALJ will consolidate the claims.

If the claims are consolidated, follow Part VI.E.2.c. below. If the claims are not consolidated, follow Part VI.E.2.d. below.

c. Actions if Claims Are Consolidated

Because the Johnson court order requires the Secretary to reopen fully the claims of class members, the issue in title II Johnson claims is whether the claimant was disabled at any time from the onset date alleged in the Johnson claim through the present (or, if the person is no longer insured, through the date the claimant last met the insured status requirements). If a title II Johnson claim involves an earlier alleged onset date than the current claim, the Johnson court order requires the ALJ to consider the additional issue of whether the claimant became disabled at any time between the two alleged onset dates. Similarly, consolidation of a title XVI claim will always raise the issue of whether a claimant became disabled between the dates the claims were filed.

If the ALJ decides to consolidate the current claim with the Johnson claim(s), the HO will:

  • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Johnson claim raises any additional issue(s) not raised by the current claim;

  • offer the claimant a supplemental hearing if the ALJ has already held a hearing and the Johnson claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Johnson claim;

  • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Johnson claim (the ALJ's decision will clearly indicate that the ALJ considered the Johnson claim pursuant to the Johnson court order); and

  • send copies of the consolidated hearing decision to both:

    Office of Hearings and Appeals
    Division of Litigation Analysis and
    Implementation
    One Skyline Tower, Suite 702
    5107 Leesburg Pike
    Falls Church, VA 22041-3255

    ATTN: Johnson Coordinator

    and

    Litigation Staff
    Office of Policy and Planning
    P.O. Box 17729
    Baltimore, Maryland 21235

    ATTN: Johnson Coordinator
d. Action if Claims Not Consolidated

If common issues exist but the ALJ decides not to consolidate the current claim with the Johnson claim because the hearing has not yet been scheduled, the HO will:

  • dismiss, without prejudice, the request for hearing on the current claim, using the language in Attachment 11 and the covering notice in Attachment 12;

  • send both the Johnson claim and the current claim to the Illinois DDS for consolidation and further action.

    If the ALJ decides not to consolidate the current claim with the Johnson claim because: 1) the claims do not have any issues in common, or 2) there is a court-ordered time limit, the ALJ will:

  • flag the Johnson claim for DDS review using Attachment 10, immediately route it to the Illinois DDS for adjudication and retain a copy of Attachment 10 in the current claim file; and

  • take the necessary action to complete the record and issue a decision on the current claim.

3. Current Claim Pending at the Appeals Council

The action the Appeals Council takes on the current claim dictates the disposition of the Johnson claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify possible Appeals Council actions on the current claim and the corresponding action on the Johnson claim.

a. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- No Johnson Issue(s) Will Remain Unresolved.

This will usually occur when the current claim duplicates the Johnson review claim, i.e., the Johnson claim raises an issue of disability for a period covered by the current claim, and the current claim has been adjudicated in accordance with the provisions of SSR 85-28 and the current severity regulations, i.e., 20 CFR §§ 404.1520(c), 404.1521, 404.1523, 416.920(c), 416.921 and/or 416.923. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action.

The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Johnson claim.

b. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — Johnson Issue(s) Will Remain Unresolved.

This will usually occur when the current claim does not duplicate the Johnson claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Johnson claim . For example, the Johnson claim raises the issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim in accordance with the provisions of SSR 85-28.

OAO staff will attach a Johnson case flag (Attachment 9) to the Johnson claim, immediately route it to the Illinois DDS for adjudication, and retain a copy of Attachment 9 in the current claim file. OAO will modify Attachment 9 to indicated that the Appeals Council action on the current claim does not resolve all Johnson issues and that the Johnson class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ or Appeals Council decision or order on the current claim and the exhibit list used for the ALJ or Appeals Council decision.

c. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Johnson Issue(s) Will Remain Unresolved.

If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Johnson class member, the Appeals Council will proceed with its intended action. The Appeals Council will consolidate the claims, reopen the final determination or decision on the Johnson claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Johnson claim pursuant to the Johnson court order. For class action reporting purposes, the Appeals Council will send copies of its decision to the Johnson coordinators listed in Part VI.E.2.c. above.

d. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Johnson Issue(s) Will Remain Unresolved.

If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Johnson claim, the Appeals Council will proceed with its intended action. In this instance, the Appeals Council will request the effectuating component to forward the claim files to the Illinois DDS after the Appeals Council's decision is effectuated. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: “Johnson court case review needed — following effectuation forward the attached combined files to Department of Rehabilitation Services, Bureau of Disability Determination Services, 100 N. First Street, Springfield, Illinois 62702.”

e. Appeals Council Intends to Remand the Current Claim to an ALJ.

If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Johnson claim with the action on the current claim pursuant to the instructions in Part VI.E.2.a. above.

EXCEPTIONS:

The Appeals Council will not direct the ALJ to consolidate the claim if:

  • the current claim and the Johnson claim do not have any issues in common, or

  • a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Johnson class member claim to the Illinois DDS for separate review.

The case flag in Attachment 10 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Johnson class member claim for separate processing.

F. Copy Requirements

For all cases in which OHA is the first level of review for the Johnson claim (i.e., the Appeals Council or an ALJ consolidates the Johnson claim with action on a current claim or a class member only claim is pending at OHA), HO, OAO or OCA personnel, as appropriate, must send a copy of any OHA decision to the Johnson coordinators at the addresses listed in Part VI.E.2.c. above.

VII. Case Coding

HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI above), HO personnel should not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” To identify class member cases in HOTS, HO personnel will code “JN” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Reconciliation of Implementation

At an appropriate time, Litigation Staff will request SSA components to reconcile their screening activity and disposition of class member claims with information available on CATS. Within OHA, the OAO Class Action Coordinator is responsible for maintaining a personal computer-based record of OHA implementation activity (e.g., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA), as reported by HOs and OAO to the Coordinator. See Part V.B.2.a. and HALLEX I-1-7-12 with respect to their reporting requirements

IX. Inquiries

HO personnel should direct any questions 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.

Attachments:

  1. Final Judgment Order Dated April 3, 1991

  2. Johnson Court Case Flag/Alert

  3. Route Slip or Case Flag For Screening

  4. Johnson Screening Sheet

  5. Route Slip for Routing Class Member Alert (and Prior Claim Folder(s)) to ODIO or PSC -- OHA No Longer Has Current Claim

  6. Johnson Non-Class Membership Notice

  7. Route Slip for Non-Class Membership Cases

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

  9. Johnson Class Member Flag for Headquarters Use (DDS Readjudication)

  10. Johnson Class Member Flag for HO Use (DDS Readjudication)

  11. ALJ Dismissal Order to DDS

  12. Cover Notice for ALJ Dismissal Order

Attachment 1. Final Judgment Order dated April 3, 1991

[Date Filed 04/3/1991]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EDNA JOHNSON, et al., )  

Plantiffs,

)  
  )  

v.

) No. 83 C 4110
  ) Judge Bua
LOUIS W. SULLIVAN, M.D., etc. )  

Defendant.

)  

FINAL JUDGEMENT ORDER

This case comes before the Court on remand from a unanimous en banc decision of the court of appeals. Johnson v. Sullivan, 922 F.2d 346 (7th Cir. 1990), directing, inter alia, “[t]he implementation of relief for those who qualify . . . [to] begin and begin immediately.” Id. at 357. In conformity with the court of appeals' directions, it is hereby ORDERED, ADJUDGED, AND DECREED that:

  1. As used herein, the following terms have the meanings indicated:

    1. “Class Members” means the class of persons defined as:

      1. All persons in Illinois who are filing or have filed applications for disability benefits under Title II and/or Title XVI of the Social Security Act whose benefits (on or after February 26, 1979) have been or are being denied pursuant to the practices applied under 20 C.F.R. § § 404.1520(c) and .1522 (1983), 416.920(c) and .922 (1983), and Social Security Rulings cum ed. 82-55, 82-56 (1982), if such persons had claims for those benefits pending at any level of the administrative process (at the initial claims level, on reconsideration, before an Administrative Law Judge, or before the Appeals Council) on or after June 12, 1983, or had fully exhausted their administrative remedies pursuant to 20 C.F.R Part 404, Subpart J, or Part 416, Subpart N, prior to June 12, 1983.

      2. All recipients of disability benefits under Title II and/or Title XVI of the Social Security Act who (on or after February 26, 1979) have made claims for continued benefits (through participation in a Continuing Disability Interview), and whose benefits have been or are being terminated pursuant to the practices specified in paragraph 1(a) (i), if such recipients had claims for such continued benefits or claims that their benefits should not have been terminated pending at any level of the administrative process (at the initial claims stage, at the reconsideration stage, before an Administrative Law Judge, or before the Appeals Council) on or after June 12, 1983 or had fully exhausted their administrative remedies pursuant to 20 C.F.R. Part 404, Subpart J, or Part 416, Subpart N, prior to June 12, 1983.

    2. “Secretary” or “defendant” means the defendant Secretary of Health and Human Services.

    3. “SSA” means the Social Security Administration.

    4. “BDDS” means the Illinois Bureau of Disability Determination Services.

    5. “DDS” means any state disability determination service unit (other than BDDS) having jurisdiction over the redetermination of a class member's claim under 3 infra, or other state or federal entitiles designated by SSA to have such jurisdiction.

    6. “disability benefits” means benefits paid under Title II and/or XVI of the Social Security Act, to persons who were or are eligible for them, because they were or are disabled within the meaning of the Act.

    7. “SSA administrative decision” means any decision on a claim when rendered by an SSA administrative unit or decision maker, including BDDS (or any DDS), an Administrative Law Judge (ALJ), or the Appeals Council.

    8. “redermination class members” mean:

      1. class members (as defined in paragraph 1 (a) supra) who claimed to be or were suffering from multiple “nonsevere” or “severe” impairments and:

        1. whose de novo applications for disability benefits were denied at the severity step of the sequential evaluation process by any SSA administrative decision between August 20, 1980 and May 1, 1985 inclusive, or;

        2. whose previously awarded disability benefits where terminated at the severity step of the sequential evaluation process by any SSA administrative decision between August 20, 1980 and May 1, 1985 inclusive, or;

        3. whose claims for disability benefits were denied or terminated at the severity step of the sequential evaluation process by the BDDS between February 26, 1979 and August 19, 1980 inclusive, if they were listed by the BDDS under listing code 922.

      2. Under the definition in paragraph 1(h) (i) no person otherwise a redetermination class member shall be deemed not such a class member because: he appealed any denial or termination of a claim (within the administrative appeals process, or to the federal courts); or the time for such an administrative appeal lapsed on or after June 12, 1983 and such an appeal was not taken; or the time for taking a judicial appeal under 42 U.S.C. § 405(g) lapsed and an appeal was not taken; or based on a later application, he was found eligible for disability benefits for a period of time later than that with respect to which his benefits were initially denied or terminated; or he failed to allege multiple impairments but the evidence establishes the existence of more than one impairment; or he received a judicial decision on his claim.

      3. Under the definition in paragraph 1(h) (i), a person who would otherwise be a redetermination class member because a particular claim was denied or terminated at the severity step of the sequential evaluation process is not such a member if:

        1. the last SSA administrative denial or termination he received respecting that particular claim was based on any step of the sequential evaluation process other than the severity step; or

        2. he received an SSA administrative decision on a subsequent claim for disability benefits that reopened an earlier severity denial or termination of that claim, which decision determined entitlement to benefits for a period beginning no later than the first date with respect to which his eligibility would otherwise be redetermined under this order, and either the last SSA administrative denial on the subsequent claim was based on any step of the sequential evaluation process other than the severity step, or the last administrative denial on the subsequent claim was based on the severity step of the sequential evaluation process, but the denial came after May 1, 1985.

    9. “responding claimants” means the persons on whose behalf the election forms described in paragraph 3(a) and (b) infra are returned to SSA.

    10. “claims” when used in connection with “redetermination class members” means such class members' applications for disability benefits under Titles II and/or XVI of the Social Security Act, or their claims for continuing disability benefits under Titles II and/or XVI of the Act, or any request for disability benefits to which they may be entitled under this order.

    11. “redetermination” or “redetermine” when used in connection with “claims” and/or “redetermination class members” means:

      1. for a redetermination class member whose Title XVI application was denied or whose Title XVI benefits were terminated, a new determination by BDDS (or an appropriate DDS) on the class member's claim, the new determination to establish eligibility vel non for disability benefits for the entire period from the date of the class member's Title XVI application (that was denied) or from the date of the termination Title XVI benefits, to the date the new determination decision is made (and thereafter until eligibility ends). “Redetermination” also includes the issuance of a written decision explaining the result of the determination to the individual claimant (whose claim has been redetermined) and to his designated representative (if any);

      2. for a redetermination class member whose Title II application was denied or whose Title II benefits were terminated, a new determination by BDDS (or an appropriate DDS) on the class member's claim, the new determination to establish eligibility vel non for disability benefits for the entire period from the seventeenth month prior to the date of the Title II application or from the date of termination of Title II benefits (or date of alleged onset, which is later, to the date the redetermination decision is made (and thereafter until eligibility ends). “Redetermination” also includes the issuance of a written decision explaining the result of the determination to the individual claimant (whose claim has been redetermined) and to his designated representative (if any);

    12. “retroactive benefits” when used to refer to the payment of disability benefits to “redetermination class members” means the payment of disability benefits to such persons for all periods from February 26, 1979 inclusive to the date of the redetermination decision, provided that they are eligible for them, as determined by the redeterminations required by paragraphs 3, 4 and 9 of this order,

    13. “sequential evaluation process” means the process for determining eligibility for disability benefits described in 20 C.F.R. §§ 404.1520 and 416.920, and the “severity step” is the step of that process described at 20 C.F.R §§ 404.1520(c) and 416.920(c);

    14. “combination criteria” means the following statutory eligibility criteria:

      In determining whether an individual's physical or mental impairments are of sufficient medical severity that such impairment or impairments could be the basis of eligibility ... [for disability benefits], the Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairments, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairment shall be considered throughout the disability determination process.

      42 U.S.C. § 423(d)(2)(C);

  2. Within 30 days of the entry of this Order, the Secretary, through the use of SSA's automated data base, shall complete identification of the persons who may be redetermination class members (and verify the list of such persons).

  3. SSA administrative decisions made prior to May 2, 1985 upon the claims of responding claimants determined to be redetermination class members are vacated, and the Secretary shall make redeterminations (reopening if necessary) of the claims of all such responding claimants who are determined to be redetermination class members. In making these redeterminations, and on appeals from adverse redeterminations (see paragraph 9 infra), the sequential evaluation process, including the Act's combination criteria, shall be employed. The Secretary shall be entitled to verify that redetermination class members meet all the nondisability related eligibility criteria for payment of disability benefits. The procedure governing the conduct of such redeterminations (including the procedure for notifying claimants of such redetermination decisions and appeal rights, and for paying benefits owed) shall be as follows:

    1. No later than sixty (60) days after the entry of this order, the Secretary shall send to each person who has been identified as a redetermination class member whose de novo application for disability benefits was denied the notice attached hereto as Exh. A-1. (Such notices shall be sent by first class mail, postage prepaid, and to such class member's last known address). With the Exh. A-1 notice, defendant shall provide Exh. A-2, which, as printed, shall be an election form by which the election described in Exh. A-1 notice may be made. The election form shall either be accompanied by a pre-addressed postage pre-paid envelope in which the election form can be returned to SSA, or it will itself be returned to SSA, or it will itself be returnable to SSA as a postage prepaid postcard. The pre-addressed envelope or postcard, which is used, shall be pre-addressed to a single location (as opposed to various SSA local offices).

    2. Not later than sixty (60) days after the entry of this order, the Secretary shall send to each person who has been identified as a redetermination class member whose previously awarded disability benefits were terminated, the notice attached hereto as Exh. B-1. (Such notices shall be sent by first class mail, postage prepaid, and to such class member's last known address). With the Exh. B-1 notice, defendant shall provide Exhibit B-2, which, as printed, shall be an election form by which the election described in Exh. B-1 notice may be made. The election form shall either be accompanied by a pre-addressed postage prepaid envelope in which the election form can be returned to SSA, or it will itself be returnable to SSA as a postage prepaid postcard. The pre-addressed envelope or postcard, whichever is used, shall be pre-addressed to a single location (as opposed to various local SSA offices).

      1. Redetermination class members who return a completed Exh. B-2 election form may elect to have their benefits reinstated (as described in the Exh.B-1 notice), following completion of one of the applicable forms attached as Group Exh. C hereto. (SSA will contact the redetermination class member respecting completion of this form as soon as possible after that class member's claims file is retrieved or reconstructed, but in no event later than thirty (30) days after his claims file is retrieved or reconstructued). However, if a redetermination class member reports, or SSA becomes aware of, current work activity, SSA will secure a statement from him regarding his work activity, the amount of monthly wages, and any other pertinent information pertaining to his employment. Except as provided in section 1619 of the Social Security Act, 42 U.S.C. § 1382h, reinstated (interim) benefits shall not be payable for any month for which earnings are at or beyond the substantial gainful activity level. If interim benefits are not payable for that reason, then defendant shall notify the individual denied such benefits of that fact, and the reason for the denial. Defendant will also inform that individual that if he has any questions, he may contact a social security office, or plaintiffs' counsel (whose names, address, and phone number will be provided).

      2. The Secretary shall make all good faith efforts to reinstate benefits to a redetermination class member within forty-five (45) days after the claims file of such a class member is retrieved (provided that he is determined to be entitled to such benefits), or, if such a class member's claims file is lost, the Secretary shall make all good faith efforts to reinstate benefits to him within forty-five (45) days of the expiration of the four-month period specified in paragraph 3(d) infra. Benefits shall be reinstated in an amount equal to the amount reinstated class members would then be receiving, including subsequent cost-of-living increases, had their benefits never been terminated, and effective with the date that SSA received the Exh. B-2 election form from the redetermination class member. The payment of such reinstated benefits shall continue from month to month until there has been an ALJ determination that the individual whose benefits have been reinstated is not currently eligible for benefits, or until there has been an earlier SSA administrative decision that the individual is not currently eligible for benefits, and that decision became final because the individual did not appeal.

    3. Persons sent notices pursuant to subparagraphs (a) and (b) who do not respond to the notices within sixty (60) days of the day they receive them, as provided therein, shall be given the opportunity to show good cause for such failure to respond pursuant to 20 C.F.R. §§ 404.909, 404.911, 416.1409, 416.1411.

    4. On a schedule to be determined by SSA (that shall be consistent with achieving compliance with the requirements of paragraph 3(e)(ii) infra) SSA shall generate computer alerts showing the processing center having jurisdiction over the claim of redetermination class members, and shall arrange for retrieval of the claims files of such class members. The first computer alerts generated shall call for the claim files of all responding claimants whose benefits have been terminated. Defendants shall begin reconstructing the claim file of any redetermination class member whose file cannot be located within four (4) months after a computer alert has been generated for the claim file of that individual. Redetermination class members whose files are being reconstructed shall be notified of that fact, and shall, consistent with applicable regulations, submit documentary evidence to SSA that will assist defendant in reconstructing the file and that might support their claim.

    5. Defendant, by BDDS (or the DDS to which a responding class member's case file has been sent), shall:

      1. screen all files to determine if the responding class member is a redetermination class member. Defendant shall mail (by first class mail postage prepaid) to any individual whom he determines is not a redetermination class member a notice, the form of which is attached hereto as Exh. D. A copy of the completed notice will be sent to plaintiffs' counsel. Within forty-five (45) days of plaintiffs' attorneys' subsequent request, or within some other mutually agreed upon time, the Secretary shall make available that individual's claims file to plaintiffs' counsel at some mutually agreed upon location or locations. If plaintiffs' attorneys' review of the file thereafter establishes that there is a dispute between the parties as to whether an individual is a redetermination class member, counsel for plaintiffs and defendant (or their designees) shall seek to resolve such dispute by negotiation; provided, however, that both plaintiffs and defendant shall each designate one or more persons to represent them in the negotiations, which individual(s) shall have final authority to settle such disputes. Either party may submit any unresolved dispute to the court for resolution, by a duly noticed motion;

      2. Redetermine the claims of all responding claimants who have been determined to be redetermination class members, based on the evidence in their claims files; provided, however, that in making such redeterminations the Secretary is obliged to develop and redetermination class members shall provide evidence respecting such class members' claims in accordance with the requirements of: 20 C.F.R. §§ 404.1512, 404.1514, 404.1517, 404.1614; 20 C.F.R. §§ 416.912, 416.914, 416.917, 416.1014, and include such evidence in the case file. Defendant, by the BDDS and any DDS making redeterminations, shall make a good faith effort to complete the redetermination of all redetermination class members entitled to redetermination of their eligibility under this order within two years after the date the notice required by subparagraphs (a) and (b) are first mailed, and shall further make a good faith effort to complete such redeterminations at an average rate of at least eight hundred (800) a month for a two-year period beginning with the first full calendar month sixty (60) days after such notices are first mailed; provided, however, that if the Secretary is required to complete more than 21,000 redeterminations under this order, then he shall notify plaintiffs' counsel of that fact in writing promptly after he ascertains it. Counsel for the parties shall thereafter attempt to agree upon what additional time, if any, beyond the two-year period the Secretary shall be allowed to complete all the redeterminations he must complete. If no agreement can be reached after a one hundred twenty (120) day period of negotiation, during which time either party may take discovery, then either party may, by motion, submit the matter to the court for its resolution.

      While any DDS is permitted to conduct redeterminations pursuant to this order, at least seven hundred (700) of the total number of redeterminations conducted pursuant to this order each month, or a majority of the total redeterminations conducted pursuant to this order each month, whichever is less, must be done by the BDDS.

    6. If an individual is a redetermination class member by virtue of a claim for disability benefits with respect to which there is a pending action in federal court, he may elect to have his case remanded to the BDDS or to the DDS of the state in which he resides for a redetermination identical to the ones required for other redetermination class members, subject to the approval of the court. Defendant shall notify such class members of the opportunity they have to make such an election, and provide a written form by which such an election may be made. If such an election is made, defendant shall move the court to, or agree to, a remand of the case. Defendant shall make a good faith effort to complete the redetermination of a redetermination class member whose case has been remanded from a federal court within four (4) months of the date that defendant receives a copy of the remand order.

    7. Redetermination class members whose eligibility for benefits is redetermined by BDDS (or a DDS) pursuant to subparagraphs (a)-(f), and who are determined eligible for retroactive benefits, shall be paid such benefits for all periods for which they are determined eligible for them, pursuant to paragraph 6 infra.

  4. Notwithstanding the requirements of paragraph 3 supra, the Secretary is not required to send notices to or redetermine the eligibility of any redetermination class member who is dead and who:

    1. does not have (as of the date he is determined to be a redetermination class member) a “living with eligible spouse” or “eligible parent,” as described in 20 C.F.R. § 416.542(b); and

    2. between February 26, 1979 and May 1, 1985 inclusive, made application for disability benefits only under Title XVI (as opposed to Title II) of the Social Security Act, or was a recipient of disability benefits only under Title XVI (as opposed to Title II). Redeterminations must be made for all other responding claimants who are determined to be redetermination class members, even if such class members are dead.

  5. Any overpayment that results from the ultimate determination of the claim of a redetermination class member whose benefits were reinstated under paragraph 3(b) shall be subject to waiver consideration under 42 U.S.C. § 423(g)(2)(B). No payment to a redetermination class member shall be considered an overpayment, however, unless SSA has determined that the individual allegedly overpaid was ineligible for disability benefits for the months with respect to which the alleged overpayments were made.

  6. The Secretary shall grant retroactive disability benefits to all redetermination class members for all periods that such persons (upon the redetermination of their eligibility under paragraphs 3, 4, and 9) are found eligible for them. The Secretary shall make all good faith efforts to pay such retroactive benefits within sixty (60) days after the determination of eligibility is made in the individual claimant's case. If the Secretary determines that the redetermination class member to whom retroactive benefits would be paid is dead, then payment of such benefits shall be made in accordance with the underpayment requirements of 20 C.F.R. §§ 404.503, 416.542.

  7. With respect to the notices required by paragraph 3(a) and (b) that are returned to the Secretary as undelivered, he shall immediately remail them by first class mail. For those notices returned a second time as undeliverable, the Secretary shall identify the individuals to whom those notices were sent, and then use procedures set forth in SSA Program Operations Manual Systems (“POMS”) procedures to determine the current whereabouts of that class member. Before employing such POMS procedures, defendant shall attempt to establish a procedure for securing from Illinois Department of Public Aid the last known address (if any) that agency may have for that individual. If that address is a later address for the redetermination class member than that initially utilized by the Secretary, then he shall use that later address in seeking to direct such notice. If, after taking the steps required under this paragraph, the Secretary determines the whereabouts of a redetermination class member whose paragraph 3 notice was returned as undelivered, he shall send him a new notice comparable to the first notice. The time within which a redetermination class member sent such a second notice shall be required to make an election shall, however, run from the date this new notice is sent to him.

  8. The Secretary shall ensure that a blank copy of the form of any SSA notices related to this case that SSA plans to send or give to redetermination class members, shall be received by plaintiffs' counsel at least twenty-one (21) days prior to the date notices will be sent or given, unless plaintiffs' counsel waives the twenty-one (21) day period in writing. Provision of these notices to plaintiffs' counsel is intended to afford them the opportunity to comment upon such notices, before they are printed.

  9. The Secretary, by BDDS or by the DDS making the redetermination, shall notify redetermination class members (and their designated representatives, if any) of favorable and unfavorable decisions made by the BDDS or DDS in their cases, pursuant to paragraph 3 supra. Such notices shall: contain an explanation of the reasons for the decision if less than completely favorable, and appeal rights; inform the redetermination class members that they may submit additional evidence, on appeal, in support of their claim; inform them that if they wish further information they may contact a local social security office, their own representative, or the attorneys for the class (whose names, address, and phone number shall be given); inform them that the attorneys for the class may be able to represent them without charge in prosecuting their appeal; inform them that they have sixty (60) days from the date the notice is sent to them to request an Administrative Law Judge hearing. Individuals sent such notices shall have full rights to seek timely administrative and judicial review of the redetermination decision made pursuant to paragraph 3, 4, and 9 herein, under 20 C.F.R. Part 404, Subpart J. and Part 416, Subpart N, and 42 U.S.C. §§ 405(g), 1383(c).

  10. Nothing in this order shall be construed as precluding defendant from employing the quality assurance review procedures set forth in 42 U.S.C. § 421(c)(3) in any class member's case, to the extent defendant deems that appropriate. Nothing in this order shall be construed as precluding class members from obtaining greater relief on alternative grounds. Nothing in this order shall be construed as precluding class members who choose to proceed with their individual court cases from seeking relief in those cases.

  11. The Secretary shall:

    1. within thirty (30) days of the entry of this order, issue a teletype to all SSA offices (including BDDS and any appropriate DDS) having responsibilities under this order, which teletype shall provide relevant information relating to the terms of this order needed by SA offices;

    2. Within one hundred fifty (150) days from the entry of this order, issue directives and instructions designed to ensure full compliance with it.

  12. The Secretary shall:

    1. provide plaintiffs' attorneys with copies of all teletypes, instructions, directives, transmittals, agency letters, and like documents issued by SSA to describe this order to SSA field offices (including Regional Offices, District Offices, Quality Assurances offices, BDDS or any state DDS with responsibilities under this order), or to effect compliance with this order, just as soon as those documents are issued;

    2. serve upon plaintiffs' attorneys a statement that the mailing of the notices required by paragraph 3(a) and (b) supra has been completed. The statement shall also specify the total number of such notices mailed. The statement shall be served within one (1) week after the mailing has been completed;

    3. serve upon plaintiffs' attorneys, within ninety (90) days after the mailing of the notices required by paragraph 3(a) and (b) supra has been completed, a statement attesting to the number of such notices returned a second time as undelivered, and the number of responding claimants;

    4. serve upon plaintiffs' attorneys a report for each six-month period beginning with the first full month after the date of entry of this order and ending when all relief hereunder has been provided, stating, for that six-month period:

      1. the number of responding claimants given notice that they have been screened out of the class, pursuant to paragraph 3(e)(i) supra;

      2. the number of responding claimants whose benefits have been reinstated pursuant to paragraph 3(b) supra;

      3. the number of responding claimants determined eligible for benefits upon redetermination (for part or all of the redetermination period), and the number determined ineligible upon redetermination (for part or all of the redetermination period), and the number of such claimants determined ineligible whose benefits had previously been reinstated pursuant to paragraph 3(b) supra;

      4. the number of redetermination class members the Secretary has determined he cannot locate, pursuant to paragraph 7 supra.

        The reports required by this subparagraph shall be filed and served not later than thirty (30) days after the close of the six-month period with respect to which the individual report is prepared.

  13. The Secretary may petition the court at any time for relief from any one or more of the provisions of paragraph 12 supra. Such relief shall be granted upon a showing made by the Secretary and a determination of the court that the implementation of this order is proceeding smoothly and that the information called for in the particular provision or provisions from which the Secretary seeks relief is no longer required to determined that the Secretary is fully and expeditiously complying with the provisions of this order.

  14. This order constitutes a final judgment order. The issue of plaintiffs' entitlement to attorneys' fees and costs is reserved. Plaintiffs' entitlement to attorneys' fees and costs is reserved. Plaintiffs shall file an appropriate petition for fees within the time permitted by the Equal Access to Justice Act, 28 U.S.C. § 2412. Plaintiffs may file a bill of costs when they file their petition for fees, their time to file the bill being thereby extended.

  15. Nothing in this order, and no agreement as to form that this order reflects, shall be construed to limit any party's right to pursue, in the appropriate court, a stay of the order or an injunction pending appeal or an appeal.

  16. This court shall retain continuing jurisdiction over this case to enforce the terms of this order, or to entertain motions seeking to modify its terms.

IT IS SO ORDERED:

  ENTER:
Dated:________4-3-91________ ________/s/________
  Nicholas J. Bua, Judge
  United States District Court

Attachment 2. JOHNSON COURT CASE FLAG/ALERT

                   TITLE: 

       CATEGORY:

    REVIEW OFFICE     PSC 
    MFT    DOC 
     ALERT DATE

    BOAN OR PANNAME

              CAN 

OR 
HUN           RESP 
DTETOE

    FOLDER LOCATION INFORMATION

TITLE CFL   CFL 
DATE    ACN             PAYEE 

ADDRESS

    REVIEWING OFFICE ADDRESS:

    Department of Rehabilitation 
Services
    Bureau of Disability Determination 
Services
    100 N. First Street
    Springfield, IL 62702

    ATTN: Johnson Screening 
Unit
    IF CLAIM IS PENDING OR STORED IN OHA, THEN SHIP 
TO:

    Office of Hearings and Appeals
    Office of Appellate Operations 
(OAO)
    One Skyline Tower, Suite 701
    5107 Leesburg Pike
    Falls Church, VA 22041-3200
    ATTN: OAO Class Action Coordinator
    (Case locator code 5007)

Attachment 3. Route Slip or Case Flag for Screening

Johnson Class Action Case

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant may be a Johnson class member. The attached folder location information indicates that a current claim folder is pending in your office. Accordingly, we are forwarding the attached alert [and prior claim folder(s)] for association, screening for class membership, consolidation consideration and possible readjudication.

Please refer to HALLEX Temporary Instruction 5-411 for additional information and instructions.

TO: ______________________________

        ______________________________

        ______________________________

        ______________________________

Attachment 4. Johnson Screening Sheet

JOHNSON SCREENING SHEET

1. SOCIAL SECURITY NUMBER

___ ___ ___ - ___ ___ - ___ ___ ___ ___

BIC

___ ___

2. NAME (First Name, Middle Initial, Last Name)

3. DATE (Month, Day, Year -- Example: January 9, 1992 would be 01-09-92)

___ ___ - ___ ___ - ___ ___ ___ ___

4. a. MEMBERSHIP DETERMINATION

___ MEMBER (J) ___ NONMEMBER (F)

b. SCREENOUT CODE

___ ___ (see item 11 for screen out codes)

5.Is this a title II and/or XVI disability claim (excluding disabled surviving spouse claims under title II and child claims under title XVI)? ___ Yes
(if No go to 11)
___No
6.Did the claimant reside in the State of Illinois at any time between February 26, 1979, and May 1, 1985, inclusive? ___ Yes
(if No go to 11)
___No
7. Were benefits denied or terminated by an Illinois DDS determination and listed under code 922 between February 26, 1979, and August 19, 1980, inclusive, and did the claimant exhaust administrative remedies (i.e., did the claimant pursue the claim through the Appeals Council level of administrative review)? ___ Yes
(if No go to 8)
(if Yes go to 10)
___No
8.Were benefits denied or terminated at step two of the sequential evaluation between August 20, 1980, and June 11, 1983, inclusive, and did the claimant exhaust administrative remedies (i.e., did the claimant pursue the claim through the Appeals Council level of administrative review)? ___ Yes
(if No go to 9)
(if Yes go to 10)
___No
9.Were benefits denied or terminated at any administrative level based on a finding of “no severe” impairment (i.e., a step two denial) between June 12, 1983, and May 1, 1985, inclusive, and did the “not severe” denial become the final decision of the Secretary? ___ Yes
(if No go to 11)
(if Yes go to 10)
___No
10.Even if the claimant was issued or received a final adverse determination/decision within the timeframes listed in questions No. 7, 8 and 9, did the individual eceive a final adverse decision (i.e., a denial at step two, step four or step five of the sequential evaluation) after May 1, 1985, on a subsequent claim with an alleged date of onset on or before the onset date alleged in connection with the Johnson claim? ___ Yes
(if No the claimant is a class member)
(if Yes go to 11)
___No

11. Enter the SCREENOUT CODE in item 4.b. as follows:

Enter 05 if question 5 was answered “NO.”

Enter 06 if question 5 was answered “NO.”

Enter 09 if question 5 was answered “NO.”

Enter 10 if question 10 was answered “YES.”

No other screenout code entry is appropriate.

After completing 4.b. check the appropriate block in 4.a.

SIGNATURE OF SCREENER

COMPONENT

DATE

Enter dates of all applications screened.

_________________ _________________ ________________ _________________

Attachment 5. Route Slip for Routing Class Member Alert (and Prior Claim Folder(s) to ODIO or PSC -- OHA No Longer Has Current Claim

ROUTING AND TRANSMITTAL SLIP DATE:
TO: INITIALS DATE
1. SSA District Office    
2. Suite A-1111    
3. 175 West Jackson Blvd.    
4. Chicago, IL 60604    
5.    
6.    
7.    
XX ACTION ___ FILE ___ NOTE AND RETURN
___ APPROVAL ___ FOR CLEARANCE ___ PER CONVERSATION
___ AS REQUESTED ___ FOR CORRECTION ___ PREPARE REPLY
___ CIRCULATE ___ FOR YOUR
INFORMATION
___ SEE ME
___ COMMENT ___ INVESTIGATE ___ SIGNATURE
___ COORDINATION ___ JUSTIFY    

REMARKS

JOHNSON CASE

Claimant: ___________________________

SSN: ________________________________

OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the Illinois DDS for screening and possible readjudication. SEE POMS DI 42531.005 OR DI 12531.10

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

FROM: Office of Hearings and Appeals SUITE/BUILDING
  PHONE NUMBER

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. Johnson Non-Class Membership Notice

You asked Social Security to look again at your claim for disability benefits. We have looked at your case. You are not a member of the Johnson class for the reason given below. This means that we will not review your claim.

A copy of this letter is being sent to attorneys for the class. If you think we are wrong, you should write class counsel right away at the address shown below. You have 45 days from the date you receive this notice to let class counsel know you disagree with our reason as to why you are not a class member, so do not wait. They will answer your questions about class membership without charge. The names, address and telephone number of these attorneys are:

John Bouman, Attorney
Poverty Law Project
National Clearinghouse for Legal Services
205 West Monroe, 2nd Floor
Chicago, Illinois 60606
Attention: Johnson

REASON FOR UNFAVORABLE DECISION

You are not a Johnson class member because:

________ You did not reside in the State of Illinois at any time between February 26, 1979, and May 1, 1985.
________ As an Illinois resident, you did not receive a decision denying or terminating disability benefits after exhausting the administrative appeals process from February 26, 1979, through June 11, 1983.
________ As an Illinois resident, you did not receive a decision denying or terminating disability benefits at any administrative level between June 12, 1983, and May 1, 1985.
________ You received a subsequent decision or determination after May 1, 1985, on the same Johnson claim, in which benefits were previously denied or terminated.
________ Your benefits were denied or terminated for some reason other than “non-severe” medical impairments. Your claim was:

__________________________________________________ __________________________________________________

________ Other (Explain)

_____________________________________________________ _____________________________________________________

We Are Not Deciding If You Are Disabled

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not a Johnson class member.

If You Are Disabled Now

If you think you are disabled now, you should fill out a new application at any Social Security office.

If You Have Any Questions

If you have questions, you should call, write or visit any Social Security office. Most questions can be answered by telephone. If you visit a Social Security office, please bring this letter with you. It will help us answer your questions.

Esta es una notificacion importante que le dice usted puede tener derecho a una compensacion monetaria debido a incapacidad. Si usted no entiende esta notificacion, por favor haga que esta sea traducida immediatamente.

cc:

Poverty Law Project
National Clearinghouse for Legal Services
205 West Monroe, 2nd Floor
Chicago, Illinois 60606

Attachment 7. Route Slip for Non-Class Membership Cases

ROUTING AND TRANSMITTAL SLIP DATE:
TO: INITIALS DATE
1. SSA District Office    
2. Suite A-1111    
3. 175 West Jackson Blvd.    
4. Chicago, IL 60604    
5.    
6.    
7.    
XX ACTION ___ FILE ___ NOTE AND RETURN
___ APPROVAL ___ FOR CLEARANCE ___ PER CONVERSATION
___ AS REQUESTED ___ FOR CORRECTION ___ PREPARE REPLY
___ CIRCULATE ___ FOR YOUR
INFORMATION
___ SEE ME
___ COMMENT ___ INVESTIGATE ___ SIGNATURE
___ COORDINATION ___ JUSTIFY    

REMARKS

JOHNSON CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Johnson class member. (See screening sheet and copy of non-class membership notice in the attached claim folder(s).) SEE POMS DI 12531.005 and 32531.005

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

FROM: Office of Hearings and Appeals SUITE/BUILDING
  PHONE NUMBER

OPTIONAL FORM 41 (Rev. 7-76)

*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA

FPMR (41 CFR) 101-11.206

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

DEPARTMENT OF HEALTH & HUMAN SERVICES Social Security Administration
Attachment 8  

Refer to:

February 21, 1991

Office of Hearings and Appeals
PO Box 3200
Arlington, VA 22203
MEMORANDUM TO:

Headquarters Executive Staff

Appeals Council Members

Regional Chief Administrative Law Judges

Hearing Office Chief Administrative Law Judges

Administrative Law Judges

Supervisory Staff Attorneys

Decision Writers

FROM:

Acting Associate Commissioner

SUBJECT: The Standard for Evaluating “Not Severe” Impairments — ACTION

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 Court's opinion in Bowen v. Yuckert, 482 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) 85-28. 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 record 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.

 
/s/
  Lawrence W. Mason for Andrew J. Young

Attachment 9. Johnson Class Member Flag for Headquarters Use (DDS Readjudication)

Johnson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Johnson class member. After expiration of the retention period, forward claim folder(s) to the Illinois DDS for readjudication.

If the claimant has filed a civil action and elected to remain in court for review of the current claim, forward the Johnson claim folder(s) without delay to the Illinois DDS for readjudication.

Send folders to:

Department of Rehabilitation Services
Department of Disability Determination Services
100 N. First Street
Springfield, Illinois 62702

(Destination code: S16)

Attachment 10. Johnson Cases Member Flag for HO Use (DDS Adjudication)

Johnson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Johnson class member. The attached Johnson claim folder was forwarded to this hearing office for possible consolidation with a current claim.

________

The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.

OR

________

The claims have not been consolidated because

[state reason(s)]

_________________________________________________________

 
 
   
   
   
   

Accordingly, we are forwarding the attached alert and prior claim folder(s) to your location for any necessary Johnson readjudication action.

We are sending the alert and prior folder(s) to:

Department of Rehabilitation Services
Department of Disability Determination Services
100 N. First Street
Springfield, Illinois 62702

(Destination code: S16)

Attachment 11. ALJ Dismissal to DDS

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

IN THE CASE OF CLAIM FOR
__________________________ ___________________________
__________________________ ___________________________

This case is before the Administrative Law Judge pursuant to a request for hearing filed on _________________ with respect to the application(s) filed on _________________.

In accordance with an order of the United States District Court for the Northern District of Illinois in the case of Johnson, et al. v. Sullivan, No. 83 C 4110 (N.D. Illinois April 3, 1991), the claimant has requested reopening and revision of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Johnson class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Johnson final judgment order. Because the claimant's current claim shares certain common issues with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the Illinois Disability Determination Service which will conduct the Johnson readjudication.

The disability determination service will notify the claimant of its new determination and, if unfavorable, give notice of the claimant's right to file a new request for hearing.

  _________________________
  Administrative Law Judge
  _________________________
  Date

Attachment 12. Notice Transmitting ALJ Order of Dismissal

NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the Illinois Disability Determination Service which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge has sent your current claim and your Johnson class member claim back to the Illinois Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

The Illinois Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the Illinois Disability Determination Service within 30 days, contact your local Social Security office.

Do You Have Any Questions?

If you have any questions, contact your local Social Security office. If you visit your local Social Security office, please bring this notice and the Administrative Law Judge's order with you.

Enclosure

cc: (Name and address of representative, if any)

(Social Security Office (City, State))