I-5-4-28.Sullivan v. Zebley
|Definition of Class|
|Determination of Class Membership and Preadjudication Actions|
|Processing and Adjudication|
|- Stipulation and Order Entered by the U.S. District Court for the Eastern District of Pennsylvania Dated March 14, 1991|
|- Zebley Screening Sheet|
|- Notice of Non-Class Membership|
|- Attachment to Request for Hearing Acknowledgement Letter|
|- Sample Dismissal Order—(current claim pending at OHA being consolidated with class member claim pending at DDS)|
|- Order of the Appeals Council (remanding class member claim to DDS following court remand of civil action)|
ISSUED: February 7, 1992
This Temporary Instruction (TI) sets forth instructions for implementing the February 20, 1990 decision of the United States Supreme Court in Sullivan v. Zebley, 110 S. Ct. 885 (1990), which affirmed the August 10, 1988 decision of the United States Court of Appeals for the Third Circuit in Zebley by Zebley v. Bowen, 855 F.2d 67 (3d Cir. 1988). The Third Circuit's decision had declared the Secretary's existing regulations governing the adjudication of childhood disability claims under title XVI of the Social Security Act (Supplemental Security Income (SSI)) invalid as a basis for denying such claims.
The court-ordered class relief in this case is nationwide in scope. All OHA adjudicators must follow the instructions in this TI.
On July 12, 1983, plaintiffs filed a class action complaint challenging the Secretary's listings-only policy of evaluating disability in SSI child claims. On July 16, 1986, the U.S. District Court for the Eastern District of Pennsylvania granted, in part, the Secretary's motion for summary judgment and dismissed the class complaint. The plaintiffs appealed to the U.S. Court of Appeals for the Third Circuit which, on August 10, 1988, vacated the district court's dismissal of the class complaint and remanded the case to the district court.
In so doing, the Third Circuit found the Secretary's regulatory interpretation of the statute's “comparable severity” standard to be too restrictive and preclusive of an individualized assessment of a child's functional impairment. The Third Circuit instructed the district court to enter summary judgment in favor of the plaintiff class. On February 15, 1989, the Secretary filed his petition for a writ of certiorari.
Following oral argument on November 28, 1989, the Supreme Court, on February 20, 1990, issued its decision (see Social Security Ruling 91-7c). By a 7 to 2 margin, the Supreme Court found the Secretary's listings-only methodology for determining disability in SSI child claims inconsistent with the statutory standard of “comparable severity” set forth in § 1614(a)(3)(A) of the Social Security Act. The Court invalidated the Secretary's regulations and rulings to the extent that they did not provide SSI child claimants with an individualized functional assessment similar to the functional analysis required in most adult disability claims. The Court concluded that the Secretary could determine the effect of an impairment(s) on a child's ability to perform age-appropriate activities in much the same way that he determines the effect of an impairment(s) on an adult's ability to work.
On May 3, 1990, the U.S. District Court for the Eastern District of Pennsylvania entered a Stipulation and Order approving an “interim standard” negotiated by the parties for use in adjudicating pending claims until the new SSI childhood disability regulations were published. Provisions of the Stipulation and Order provided for appeal of an adverse initial “interim standard” determination to the reconsideration level only. The Stipulation and Order also provided for automatic review of all cases denied under the interim standard upon publication of the new childhood disability regulations.
On February 11, 1991, following a series of meetings with childhood disability experts, the Secretary published his new SSI childhood disability regulations in the Federal Register as a final rule with an opportunity for public comment following publication. The Secretary subsequently extended the normal 60-day public comment period to July 8, 1991. The Secretary may, if he deems appropriate, revise the new regulations in response to public comment.
On March 14, 1991, the U.S. District Court for the Eastern District of Pennsylvania entered a second Stipulation and Order, also negotiated by the parties, setting the terms for implementation of class relief (Attachment 1). The March 14, 1991 Stipulation and Order directed the Secretary to make all good faith efforts to publish any necessary revision to the new regulations within fourteen months of the close of the public comment period.
III. Guiding Principles
The regulations published on February 11, 1991, set forth the new standard for evaluating disability in SSI child claims. The March 14, 1991 Stipulation and Order sets forth detailed provisions for implementation of class relief. The pertinent elements are summarized below:
The Secretary is enjoined from denying or terminating SSI childhood disability benefits under the regulations invalidated by the Supreme Court, i.e., 20 CFR §§ 416.924 and 416.994(c), or any preexisting instructions, including Social Security Rulings and other administrative guidance, reflecting the invalidated standard. (On April 25, 1990, the Secretary rescinded Social Security Ruling 83-19.)
The Secretary shall evaluate all SSI childhood disability claims pursuant to the provisions of the new childhood disability regulations published on February 11, 1991.
The Secretary shall make special efforts to assist children, and their caregivers, in documenting eligibility, and attempt to work with the child, the extended family, foster parents, child welfare agencies and others to obtain evidence needed for readjudication. In cases of non-cooperation, the Secretary shall make special efforts to locate an adult responsible for the child's care, and shall not terminate or deny a childhood disability claim until a personal contact with the family or custodian has been attempted.
For disability evaluation purposes, an “adult” is a person who is age 18 or older, and a “child” is a person who has not attained age 18 (20 CFR § 416.902).
The type of determination is a full reopening of all prior applications denied or ceased within the court-ordered timeframes.
The disability evaluation standard reflected in the new regulations published February 11, 1991, should be used for all SSI disability claimants under age 18 regardless of marital status or claim type. The child definition provisions of 20 CFR §§ 416.1802(c) and 416.1856 apply only with respect to non-medical issues of eligibility.
OHA personnel should be alert to the situation where a claimant under the age of 18 had his or her disability evaluated under the regular adult standard. This would most frequently occur when the claimant is married and files as a disabled individual. Under the new regulations, a person who has not attained age 18 is a “child” for disability evaluation purposes, and his or her claim for disability should be evaluated under the “child” standard (20 CFR § 416.902).
All SSI childhood disability cases, regardless of the level at which the case was previously denied or ceased under the old regulations or the interim standard will be processed under the new regulations as initial level determinations with full appeal rights.
IV. Definition of Class
The class definition as reflected by the March 14, 1991 Stipulation and Order consists of:
all individuals whose applications for SSI childhood disability payments were denied in whole or in part or whose SSI childhood disability payments were terminated on medical grounds on or after January 1, 1980 until the date of publication of the new childhood disability regulations, February 11, 1991. An individual is also a member of the class by reason of a denial after January 1, 1980 of a request to reopen a determination or decision denying a claim for SSI childhood disability payments, if such request to reopen was pending on January 1, 1980.
For purposes of implementing the March 14, 1991 Stipulation and Order, the nationwide class consists of all individuals:
who filed for or received title XVI childhood disability benefits, and
whose SSI childhood disability claims were denied, in whole or in part, or whose benefits were terminated based on medical grounds from January 1, 1980, through February 11, 1991, or
who had pending on January 1, 1980, a request to reopen a determination or decision denying a claim for SSI childhood disability benefits, and had that request to reopen denied, or
whose SSI childhood disability claims were denied, in whole or in part, or whose benefits were terminated, and a federal court issued a final judgment after January 1, 1980 affirming the Secretary's denial or termination on medical grounds.
The class is divided into three subclasses denominated as follows:
Subclass A comprises individuals whose claims for SSI childhood disability benefits were denied, in whole or in part, or whose benefits were terminated from January 1, 1980 through May 12, 1983;
Subclass B comprises individuals whose claims for SSI childhood disability benefits were denied, in whole or in part, or whose benefits were terminated from May 13, 1983 through February 27, 1990 (On February 27, SSA instructed all adjudicating components to stop denying or terminating SSI child's disability claims); and
Subclass C comprises individuals whose claims for SSI childhood disability benefits were denied, in whole or in part, or whose benefits were terminated under the interim standard pursuant to the May 3, 1990 Stipulation and Order.
Membership in another class does not preclude membership in the Zebley class.
A federal court affirmation of an administrative determination rendered during the time period at issue in this class action will not affect a class member's right to relief under the March 14 Stipulation and Order.
V. Determination of Class Membership and Preadjudication Actions
A. Notice to Potential Class Members
Based on the foregoing class definition, SSA Central Office has identified potential class members by computer run. SSA has mailed notices to potential class members in subclasses A and B only.
Pursuant to the provisions of ¶ 4 of the district court's May 3, 1990 Stipulation and Order, individuals in subclass C will have their claims automatically readjudicated by virtue of a denial under the interim standard. They were previously advised that their claims would be returned to the servicing field office (district office or branch office) and readjudicated by DDS under the new regulations.
The notices to potential class members in subclasses A and B were mailed from July 10 through 12, 1991. A second mailing to 6,700 potential class members was done on August 5, 1991. Potential class members have 120 days from the date of receipt of the notice to request a Zebley class membership determination and review by returning a reply form provided for this purpose. Newly located class members will be sent another class notice and will be given 120 days from receipt of the second notice within which to respond.
Individuals who are not identified by SSA but claim Zebley class membership, should complete a “Statement of Claimant,” Form SSA-795, containing information about past claim filings. This form should be forwarded to:Office of Disability and International Operations
ATTN: Zebley Coordinator
P.O. Box 17369
Baltimore, MD 21241
SSA Central Office will coordinate further efforts, as necessary, to locate the “nonresponders and undeliverables.” (See ¶ VI.D. of the March 14, 1991 Stipulation and Order (Attachment 1) for further information regarding “nonresponders and undeliverables.”)
The Office of Disability and International Operations (ODIO) is primarily responsible for screening. SSA Central Office will generate potential class membership “alerts” in the order in which reply forms are received by ODIO. ODIO will screen all class notice responses and Form SSA-795s from walk-ins, e.g. self-identified potential class members. ODIO will complete a screening sheet (Attachment 2) to be retained in the file for all walk-ins and for all screened out cases. ODIO will mail notices of non-class membership to claimants, representatives and class counsel, as appropriate.
Special alerts will be generated for untimely replies. “Good cause” for missing the 120-day response deadline may be established pursuant to 20 CFR § 416.1411 as provided for in ¶ VI.A. of the March 14, 1991 Stipulation and Order. ODIO will forward the alert to the servicing field office to develop “good cause” for late filing.
Although ODIO has initial responsibility for screening and sending non-class member notices, the servicing field office will review the available information upon receipt of class member packages and verify that the individual is a class member. If the field office determines that the claimant is not a class member, it will send a non-class membership notice. (No further notice will be sent to individuals screened in as class members.)
C. Post-Screening Actions
Claims Determined Not to be Class Members
SSA Central Office, ODIO, or in rare instances a field office, will mail notice of non-class membership to the individual, representative, if any, and class counsel. The notice of non-class membership explains the individual's options in case of disagreement (Attachment 3). An individual who has been determined “not a class member” may, within 60 days after receiving notice, request, either directly or through class counsel, that SSA reexamine the determination.
The potential class member or his or her representative, if any, will attempt to resolve class membership disputes through negotiation with a designated representative in the servicing field office or ODIO. If a resolution cannot be reached, the potential class member, or his or her representative, may raise the matter through class counsel with the Office of the General Counsel in Baltimore. If the class membership question cannot be resolved through negotiation, either party may, by duly noticed motion, submit the matter to the U.S. District Court for the Eastern District of Pennsylvania.
Claims Determined to be Class Members
ODIO will associate the reply forms with the alerts and systems queries, place them in a blue-colored jacket (folder) stamped “Zebley COURT CASE,” and forward the file to the servicing field office. The blue jacket will identify the case as a Zebley class member claim.
All class member folders will be dispatched to the servicing field office for an initial level determination. The readjudicating component for all Zebley class member claims is the servicing DDS.
ODIO will not attempt to retrieve any class member claim files prior to sending the class member folder to the servicing field office. Attempts to retrieve claim files will be made if the DDS cannot issue a fully favorable determination.
In general, the field office will obtain updated eligibility information and forward the file to the DDS for a medical determination. All nonmedical development will be done after the DDS medical determination except if there is an allegation of continuous earnings above the SGA level which began within one year of the alleged onset date. In such a case, the field office will develop the work activity and, if appropriate, prepare a denial.
VI. Processing and Adjudication
All Zebley class member claims will be returned to the servicing DDS for review pursuant to the terms of the May 3, 1990 and March 14, 1991 district court Stipulations and Orders.
Individuals with SSI childhood disability claims denied at the DDS level under the interim standard did not have the right to pursue an appeal beyond the reconsideration level. Pursuant to the terms of the district court's May 3, 1990 Stipulation and Order, only individuals who have had claims adjudicated by DDS under the new regulations published February 11, 1991, have had the right to appeal to the OHA level.
Moreover, the terms of the March 14, 1991 Stipulation and Order dictate that all class member claims be returned to DDS for processing. The Program Operations Manual System (POMS) instructions direct DDS to treat a subsequent claim as a duplicate and consolidate it at the class member claim level. Accordingly, as of the effective date of this instruction, there should be only a limited number of situations where a current SSI childhood disability claim is pending before OHA. If an SSI childhood disability claim is pending at OHA and there is a class member claim pending at the DDS level, follow the instructions in VI.D.1. and 2. below.
The DDS determination will be an initial determination, regardless of the level at which it was previously decided, with full appeal rights (i.e., reconsideration, Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review). ALJs should process and adjudicate requests for hearing on Zebley reviews conducted by the DDS in the same manner as for any other case — subject to the disability evaluation provisions of the February 11, 1991 regulations and the special provisions set forth below.
B. Processing Requests for Hearing — SSI Childhood Disability Claims
Because of the unique nature of the consolidation procedures discussed in VI.D.1. and 2. below, hearing offices will provide all claimants (and their representatives) with a special notice when a request for hearing is filed on an SSI childhood disability claim. In addition to the usual Acknowledgment Letter (described in HALLEX I-2-020), the hearing office will send a copy of the notice in Attachment 4 to the SSI childhood disability claimant and the representative.
C. Type of Review and Period to be Considered in Zebley Claims
The type of review to be conducted is a reopening. Assess the claimant's disability from the effective date of the earliest application accorded Zebley class member status or the date of cessation of SSI disability within the class period through the date of the new hearing decision on the class member claim subject to review.
D. Processing and Adjudicating a Current Claim When a Class Member Claim is Pending Elsewhere (Consolidation Procedures)
If the current claim pending in the hearing office was denied after publication of the new regulations on February 11, 1991, and the determination at the reconsideration level was made pursuant to the new regulations and a DDS advises the hearing office that it is processing a class member claim, the current claim will be dismissed and the claim consolidated with the Zebley class member claim at the DDS level. Use the sample dismissal order in Attachment 5.
If concurrent title II and title XVI claims are pending in the hearing office, dismiss only the SSI childhood disability claim. Process the remaining title II claim in the normal manner. If a favorable decision ensues, forward a copy of the decision to the DDS that requested the current SSI childhood disability claim.
If the ALJ is prepared to issue a favorable decision, the current claim will not be consolidated with the class member claim. The ALJ will issue the favorable decision and forward a copy of the decision (and a copy of the medical evidence, if requested) to the servicing DDS.
If the current claim pending in the hearing office is based on a nonmedical issue, it will not be consolidated with the class member claim. Process the request for hearing using normal procedures.
OAO/Appeals Council Action
The same rules apply as for requests for hearing at the hearing office level. (See VI.D.1. above.)
OCA/Court Level Action
If a current claim is pending at the district or circuit court level, the Assistant U.S. Attorney will move for remand of the case for readjudication under the new regulations as required by ¶ I.C. of the March 14, 1991 Stipulation and Order. OCA will use the remand order in Attachment 6 to effectuate remand to the DDS.
E. Special Procedures
Due to the particular circumstances of the Zebley case, the March 14, 1991 Stipulation and Order provides for the following special procedures to be used in the readjudication of Zebley class member claims.
If the claimant has subsequently been found disabled under any disability program under titles II or XVI of the Social Security Act either as a child or as an adult, in the absence of contrary evidence (such as traumatic onset of disability or a new impairment) or contrary medical judgment, infer that a class member is disabled from the date of the first application for SSI childhood disability benefits which is included within the class period.
If the medical evidence supports a finding of current disability, but evidence of past condition is not readily available, and the class member has not been found disabled on a subsequent disability claim, the adjudicator will determine, based on the nature of the impairment, whether it is reasonable to presume that the class member's past condition and impairments were as severe as they are currently.
Nondisability Eligibility Presumptions
In general, nondisability factors of eligibility will be determined by the field office following a favorable determination or decision of disability. The March 14, 1991 Stipulation and Order provides for special rules and presumptions to be employed. If an appeal reaches the OHA level on a nondisability factor of entitlement, refer to the provisions of ¶ VII.H.2. of the March 14, 1991 order.
If an appeal pending before OHA involves only the amount of benefits due a class member, OHA will not review the underlying disability determination.
Adjudicating the Claims of Deceased Class Members
To the extent that an SSI underpayment could be paid pursuant to 42 U.S.C. § 1383(b)(1)(A), the disability claim of a deceased class member must be readjudicated. Even if there is no individual designated by 42 U.S.C. § 1383(b)(1)(A) to whom an SSI underpayment could be paid, the disability claim of a deceased class member must be readjudicated for purposes of determining Medicaid eligibility if a state with an agreement under § 1634 of the Social Security Act requests readjudication.
VII. Case Coding
HO personnel should code Zebley class member prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as reopenings.
To identify class member cases in HOTS, the hearing office must code “Z” in the “Class Action” field.
To identify class member cases in the OHA CCS, the hearing office must code “Z” in the SPC field.
All “DC” claim types should be coded Z in the SPC field. In addition, some DI claim types will need to be coded; e.g., where the individual is under 18, but married.
Hearing office personnel should contact their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures on FTS 305-0022. Headquarters personnel should contact the Division of Litigation Analysis and Implementation (DLAI) on 305-0708.
Inquiries from class members may be referred to Zebley class counsel, Community Legal Services, at 1-800-523-0000.
 On February 27, 1990, the Social Security Administration instructed all of its adjudicatory components not to deny or terminate any SSI child's disability claim.
 The following class actions involving challenges to aspects of the children's disability regulations are currently pending: Duncan v. Sullivan, No. 3-88-686 (E.D. Tenn.); Hartwell v. Sullivan, No. 88-74 (D. Vt.); Marcus v. Sullivan, No. 85-C-453 (N.D. Ill.).
 For purposes of this Stipulation and Order, the term “designated co-counsel” shall mean co-counsel to class counsel who are designated in writing by class counsel to the Office of the General Counsel, Department of Health and Human Services, Social Security Division, Baltimore, Maryland (hereinafter referred to as “Office of the General Counsel”).
 Class members who filed new claims or who had claims pending on or after February 27, 1990, will have those claims adjudicated pursuant to the Stipulation and Order entered in this action on May 3, 1990.
 Under current procedures, individuals applying for benefits are given the opportunity, if they so indicate, to receive notices in the Spanish language. Accordingly, the Social Security Administration already has in its computer records an indicator of those persons who requested Spanish language notices in connection with any current or prior application.