I-5-4-34.Verla Turner 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 Inquiries
Attachment 1 Joint Stipulation and Order Dated January 27, 1993; Approved by the Court on January 29, 1993, and Filed on February 1, 1993
Attachment 2 Verla Turner Court Case Flag/Alert
Attachment 3 Route Slip or Case Flag for Screening
Attachment 4 Verla Turner Screening Sheets and Screening Sheet Instructions
Attachment 5 Route Slip for Routing Class Member Alert and Prior Claim File(s) to ODIO or PSC -- OHA No Longer Has Current Claim
Attachment 6 Non-Class Membership Notice
Attachment 7 Route Slip for Non-Class Membership Cases
Attachment 8 Turner Class Member Flag for Headquarters USe (DDS Readjudication -- retention period expired)
Attachment 9 Turner Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)
Attachment 10 ALJ Dismissal Order to DDS
Attachment 11 Notice Transmitting ALJ Order of Dismissal
Attachment 12 Turner Class Member Flag for HO Use (DDS Readjudication)

ISSUED: November 11, 1993; REVISED: August 2, 1996

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the parties' January 27, 1993 Joint Stipulation and Order, approved by the United States District Court for the Western District of Louisiana on January 29, 1993, in the Verla Turner v. Sullivan class action involving the standard for determining disability in surviving spouse claims.

Adjudicators throughout the country must be familiar with this TI because of case transfers and because Verla Turner class members who now reside outside of Louisiana must have their cases processed in accordance with the requirements of the joint stipulation and order.

II. Background

On April 17, 1990, plaintiff filed a class complaint challenging the Commissioner's listings-only policy of evaluating disability with respect to the title II claims of widows, widowers and surviving divorced spouses.[1]

Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (Pub. L. 101-508) on November 5, 1990. Section 5103 of OBRA 90 amended § 223 of the Social Security Act to repeal the special definition of disability applicable in widows' claims and conform the definition of disability for widows to that for all other title II claimants and title XVI adult claimants. The amendment became effective for entitlement to monthly benefits payable for January 1991, or later, based on applications filed or pending on January 1, 1991, or filed later.

On May 22, 1991, the Commissioner of Social Security published Social Security Ruling (SSR) 91-3p to provide a uniform, nationwide standard for the evaluation of disability in widows' claims for the pre-1991 period.

The U.S. District Court for the Western District of Louisiana certified a statewide class on July 1, 1991. On October 24, 1991, the district court amended the class certification order (see Part IV. below, for class definition).

Because the merits of plaintiffs' challenge were resolved by the enactment of § 5103 of OBRA 90 and the publication of SSR 91-3p, the parties agreed to settle the remaining class relief issues. On January 29, 1993, the district court approved the parties' January 27, 1993 Joint Stipulation and Order setting forth the terms for the implementation of relief to class members (Attachment 1).

III. Guiding Principles

Under Verla Turner, the Secretary will 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). The Disability Review Section in the Mid-America Program Service Center (MAMPSC) will screen for class membership, unless there is a current claim pending or stored at OHA. Regardless of the state of the claimant's current residence, the Louisiana Disability Determination Service (LDDS) will, in most cases, perform the agreed-upon readjudications, irrespective of the administrative level at which the claim was last decided.

EXCEPTION:

The DDS servicing the claimant's current address will perform the readjudication if a face-to-face reviw is necessary; i.e., cessation cases.

OHA will screen cases and perform readjudications under limited circumstances (see Part V.B. below).

Cases readjudicated by the LDDS will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).

Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in Verla Turner, class member claims. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later.[2](See HALLEX TI 5-315, issued February 11, 1991, for further instructions on processing disabled widows' claims under the provisions of § 5103 of OBRA 90.) The disability evaluation standard announced in SSR 91-3p must be used for the evaluation of disability and entitlement to benefits payable for the pre-1991 period.

IV. Definition of Class

Except as noted below, for purposes of implementing the terms of the joint stipulation and order, the Verla Turner class consists of all Louisiana residents who:

  • filed for or received title II benefits as a disabled widow, widower or surviving divorced spouse; and

  • were issued a less than fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, between February 13, 1990, and May 21, 1991, inclusive; and

  • timely filed a request for reconsideration of the initial determination or reapplied for disabled widow's benefits between the date of the initial determination and May 21, 1991, inclusive.

    EXCEPTIONS:

    A person is not a class member eligible for class relief if

    (1) the last administrative denial or termination the individual received on the potential Verla Turner claim was not based on medical reasons (e.g., engaging in substantial gainful activity, disability did not begin within the prescribed period, or other technical reason); or

    (2) the individual received an adverse decision on a worker's claim for disability benefits under title II or title XVI (adult) at steps 4 or 5 of the sequential evaluation and that decision covered the timeframe at issue in the potential Verla Turner claim; or

    (3) the individual's potential Verla Turner claim was pending either administratively or in federal court on or after May 22, 1991; or

    (4) the individual received an unfavorable determination or decision after May 21, 1991, on a subsequent claim that raised the issue of disability and covered the timeframe at issue in the potential Verla Turner claim, i.e., the onset date alleged in connection with the subsequent claim was on or before the onset date alleged in connection with the potential Verla Turner claim.

V. Determination of Class Membership and Preadjudication Actions

A. Non-OHA Actions

  1. Notification

    SSA will send notices to all potential class members identified by computer run. Individuals have 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Verla Turner joint stipulation and order. Notices returned as undeliverable will be mailed a second time if SSA obtains an updated address.

    The Office of Disability and International Operations (ODIO) and the MAMPSC will retrieve the claim files of late responders and send them, together with the untimely responses, to the servicing Social Security field office (i.e., district or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR § 404.911.

  2. Alert and Folder Retrieval Process

    All response forms will be returned to ODIO and the information will be entered into the Civil Actions Tracking System (CATS). CATS will generate alerts to ODIO. See Attachment 2 for a sample Verla Turner alert.

    In most instances, ODIO will associate the computer-generated alerts with any ODIO-jurisdiction potential class member claim file(s) and forward them to the MAMPSC for retrieval of any additional claim files and screening (see Part III. above).

  3. Alerts Sent to OHA

    If ODIO or MAMPSC determines that 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 MAMPSC will forward all alerts potentially within OHA jurisdiction and related prior claim file(s), 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 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

    In general, ODIO and/or MAMPSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential 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 particular claim would not confer class membership. OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the servicing FO. The request will be made by memorandum and will include the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) as attachments. The request will also include documentation of the attempts to locate the file. The memorandum will request the FO to send the reconstructed file to OHA after it completes its reconstruction action. HOs will route any reconstruction requests directly to the servicing FO. The OAO branch will route reconstruction requests through 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:

     

    Office of the Deputy Commissioner
    for Programs and Policy
    Litigation Staff
    3-K-26 Operations Building
    6401 Security Boulevard
    Baltimore, MD 21235

     

    ATTN: Verla Turner Coordinator

    HO personnel and the OAO branch will identify in the reconstruction request the OHA location of any existing claim file(s) being retained for adjudication purposes, and the date(s) of the claim(s) involved.

    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 receipt of the reconstructed folder, 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. The OAO Class

    Action Coordinator will forward the class action material to the FO for association with the reconstruction request. A covering route slip will explain that OHA has completed its action on the pending claim, will attach a copy of the final OHA decision and/or other disposition documents, and will instruct the FO to forward the reconstructed file to ODIO or the MAMPSC for screening. For additional information on reconstruction procedures, see the Class Action Implementation instructions in HALLEX I-1-7-5C.

  5. Class Membership Denials

    The MAMPSC or OHA, as appropriate, will hold for 80 days all claim files of individuals to whom SSA sends notice of non-class membership, pending review by class counsel. If an individual wishes to dispute SSA's class membership determination, he or she must contact class counsel. Class counsel may dispute a denial within 30 days from the receipt of notice by providing written notice of the disagreement to the Office of the General Counsel, Dallas. Upon notification of a request by class counsel to review claim files, MAMPSC or OHA will forward claim files to:

     

    SSA Field Office
    Brandywine I, Suite 100
    825 Kaliste Saloom Road
    Lafayette, Louisiana 70508

     

    Tel. # (318) 261-0606

B. OHA Actions

  1. Determining Jurisdiction for Screening

    1. 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 Verla Turner alert and related claim file(s). The Class Action Coordinator will determine OHA jurisdiction for screening and forward as follows:

      • If the current claim is in an HO, the Coordinator will forward the alert and any prior claim file(s) to the HO for screening using Attachment 3. (Part V. B. 2. a. below provides instructions to 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 (DFB), the Coordinator will forward the alert and any prior claim file(s) to the appropriate OAO branch for screening using Attachment 3. (Part V. B. 2. a. below provides instructions to the OAO branches regarding the action to be taken if they receive an alert package 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 the claim file search and arrange for alert transfer or folder reconstruction, as necessary.

      NOTE:

      Do not screen pending cases in newly implemented class actions unless an alert has been received. Claimants sometimes allege class membership before their cases have been alerted. The presence of an alert is evidence that the claimant has responded to notice of potential class membership and that his or her case is ready for review. However, if class action implementation is nearly complete and a claimant with a non-alerted pending case should allege class membership, contact the Verla Turner coordinator in the Division of Litigation Analysis and Implementation (DLAI) for assistance in determining the claimant's status at the following address

       

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

      The DLAI Verla Turner Coordinator's telephone number is (703) 305-0721.

    2. 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 a subsequent or prior claim, the Class Action Coordinator will forward the alert and any accompanying claim file(s) to the appropriate OAO 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

    1. General Instructions

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

      NOTE:

      If the claim pending at OHA is the potential class member claim, then the individual is not a class member (see Part IV. above). Complete the screening sheet and follow the instructions in Part V. B. 3. a. below for processing non-class member claims.

      • Consider all applications denied (including res judicata denials/dismissals) during the Verla Turner timeframe;

        NOTE:

        Although not the “final decision of the Commissioner,” an Appeals Council denial of a request for review is the last action of the Commissioner, and the date of such a denial controls for class membership screening purposes.

      • 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 will forward the copy of the screening sheet to DLAI. If the screening component is an HO, forward a copy of the screening sheet directly to DLAI at the address in Part V. B. 1. a. above. HO personnel may also forward material to DLAI by telefax at (703) 305-0655. (DLAI will retain a copy of each screening sheet and forward a copy to Litigation Staff.)

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

      If an 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 mini-dockets or the OAO DFB), it will determine the location of the current claim file. If the current claim 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 files are 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 of the current claim and request that the file(s) be forwarded to ODIO and/or MAMPSC for screening. The OAO branch will advise the OAO Class Action Coordinator of its actions.

      NOTE:

      Final determinations or decisions made after May 21, 1991, on a subsequent claim filed by a potential Verla Turner class member may have adjudicated the entire time period at issue in the Verla Turner claim. Instead of applying the doctrine of administrative res judicata to the Verla Turner claim, these claims should be denied class membership.

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

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

      • If the claim pending in court is the potential class member claim, then the individual is not a class member (see Part IV. above). Complete the screening sheet and follow the instructions in Part V. B. 3. a. below for processing non-class member claims.

      • If the claim pending in court is a subsequent claim and was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p and resolved all Verla Turner issues, the claimant is not a Verla Turner class member. The CCPRB will follow the instructions in Part V. B. 3. a. below for processing non-class member claims.

      • If the claim pending in court was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, but did not resolve all Verla Turner issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Verla Turner claim, the CCPRB will forward the Verla Turner claim to the LDDS for separate review. The CCPRB will modify the case flag in Attachment 12 to indicate that the pending court case does not resolve all Verla Turner issues and that the Verla Turner class member claim is being forwarded for separate processing. The CCPRB will notify the OAO Class Action Coordinator of its action.

      • If the final administrative decision on the claim pending in court was not adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings and consolidate the claims.

  3. Post-Screening Actions

    1. 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 circumstances and posture of the case when there is a current claim);

        NOTE:

        Include the address and telephone number of the servicing Social Security field office at the top of Attachment 6.

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

      • send a copy of the notice to:

         

        John D. Thompson, Jr.
        Senior Attorney/Director
        Administrative Law Unit
        Acadiana Legal Service Corporation
        1020 Surrey Street
        P.O. Box 4823
        Lafayette, Louisiana 70502-4823

      • retain the claim file(s) for 80 days pending possible class membership dispute;

      • if class counsel makes a timely review request, send the non-class member claim file to the Lafayette, Louisiana District Office using the pre-addressed route slip in Attachment 7;

      • if after 80 days no review is requested, return the file(s) to the appropriate location.

        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 should do so through class counsel, as explained in the notice (Attachment 6).

    2. 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 LDDS, or any other DDS servicing Louisiana residents, will conduct the first Verla Turner review except for cases consolidated at the OHA level (see Part VI. E. below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member 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 Verla Turner DDS review cases in the same manner as for any other case.

B. Payment Reinstatement for Cessation Cases

If the Verla Turner claim involves a cessation, the usual reinstatement provisions apply. Following an adverse DDS readjudication determination, a class member may elect to have disability benefits reinstated pending appeal. In general, the servicing Social Security field office has responsibility for processing benefit reinstatements.

If a class member contacts OHA requesting benefit reinstatement, OHA will;

  1. contact the servicing field office by telephone and advise them of the pending Verla Turner claim that may be eligible for benefit reinstatement;

  2. 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 Verla Turner 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 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

    The type of review and the period to be considered depend on whether the claim subject to review was an initial claim or a cessation case.

    1. If the claim subject to review is an initial claim, the type of review to be conducted is a “redetermination.” The readjudication shall be a de novo reevaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period of time at issue in the administrative decision(s) that forms the basis of the claimant's class membership. If the readjudication results in a favorable decision, the adjudicator must determine whether the class member's disability has been continuous through the date of the readjudication.

    2. If the claim to be reviewed is a cessation case, the type of review to be conducted is a reopening. The readjudication shall be an assessment of the class member's disability from the date disability was previously ceased through the date of the readjudication.

  2. Disability Evaluation Standards

    Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in class member claims. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later. (See HALLEX TI 5-315, issued February 11, 1991, for further instructions on processing disabled widows' claims under the provisions of § 5103 of OBRA 90.) The disability evaluation standard announced in SSR 91-3p must be used for the evaluation of disability and entitlement to benefits payable for the pre-1991 period.

  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. (The OAO Class Action Coordinator will coordinate the necessary actions as explained in Part V.) (See Part V. B. 3. above, for non-class member processing instructions.)

  • 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 Verla Turner class member flag (see Attachment 8) to the outside of the file and forward the claim file(s) to the LDDS for review of the Verla Turner class member claim.

  • If less than 120 days have elapsed, OAO will attach a Verla Turner class member flag (see Attachment 9) to the outside of the file to ensure the case is routed to the LDDS, or other appropriate DDS, after expiration of the retention period. Pending expiration of the retention period, the OAO branch will also:

    -- return unappealed ALJ decisions and dismissals to DFB; and

    -- return unappealed Appeals Council denials to the appropriate OAO mini-docket.

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 LDDS 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 Verla Turner 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

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

      Except as noted below, if a Verla Turner 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 Verla Turner case with the appeal on the current claim.

      EXCEPTIONS:

      The ALJ will not consolidate the claims if

      • the current claim and the Verla Turner 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.

    2. Hearing Not Scheduled

      Except as noted below, if a Verla Turner 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 Verla Turner claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Verla Turner 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 Verla Turner 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.

    3. Actions If Claims Consolidated

      When consolidating a Verla Turner claim with any subsequent claim, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present (or through the date the claimant last met the prescribed period requirements, if earlier). If the ALJ decides to consolidate the current claim with the Verla Turner 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 Verla Turner 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 Verla Turner claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Verla Turner claim;

      • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Verla Turner claim (the ALJ's decision will clearly indicate that the ALJ considered the Verla Turner claim pursuant to the Verla Turner joint stipulation and order).

    4. Action If Claims Not Consolidated

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

      • dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 10 and the covering notice in Attachment 11;

      • send both the Verla Turner claim and the current claim to the LDDS for consolidation and further action.

      If the ALJ decides not to consolidate the current claim with the Verla Turner 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 Verla Turner claim for DDS review using Attachment 12; immediately route the it to the LDDS for adjudication (if any part of the Verla Turner claim is retained as evidence in the current claim, make photocopies and return them to the LDDS with the Verla Turner claim); and retain a copy of Attachment 12 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 determines the disposition of the Verla Turner 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 Verla Turner claim.

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

      This will usually arise when the current claim duplicates the Verla Turner review claim, i.e., the current claim raises the issue of disability and covers the period adjudicated in the Verla Turner claim, and the current claim has been adjudicated in accordance with the provisions of § 5103 of OBRA 90 and SSR 91-3p. 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 Verla Turner claim.

    2. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- Verla Turner Issue(s) Will Remain Unresolved.

      This will usually arise when the current claim does not duplicate the Verla Turnerr claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Verla Turner claim. For example, the Verla Turner 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.

      OAO staff will attach a Verla Turner case flag (Attachment 12; appropriately modified) to the Verla Turner claim, immediately forward the Verla Turner claim to the LDDS for adjudication, and retain a copy of Attachment 12 in the current claim file. OAO will modify Attachment 12 to indicate that the Appeals Council's action on the current claim does not resolve all Verla Turner issues and that the Verla Turner class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.

    3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Verla Turner 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 Verla Turner class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Verla Turner claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Verla Turner claim pursuant to the Verla Turner joint stipulation and order.

    4. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Verla Turner 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 Verla Turner claim, the Appeals Council will proceed with its intended action. In this situation, the Appeals Council will request the effectuating component to forward the claim files to the LDDS 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: "Verla Turner court case review needed -- following effectuation forward the attached combined folders to Louisiana Health and Human Resources, Office of Family Security, Disability Determinations, 530 Lakeland Drive, Baton Rouge, Louisiana 70802."

    5. Appeals Council Intends to Remand the Current Claim to an Administrative Law Judge.

      If the Appeals Council intends to remand the current claim to an Administrative Law Judge, 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 Verla Turner 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 Verla Turner 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 Verla Turner class member claim to the LDDS, or other appropriate DDS, for separate review. The case flag in Attachment 12 should be modified to indicate that the Appeals Council, rather than an Administrative Law Judge, is forwarding the Verla Turner class member claim for separate processing.

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. E. above), HO personnel will 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 “VT” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. 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. OHA Headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0708.

Attachment 1. Joint Stipulation and Order Dated January 27, 1993; Approved by the Court on January 29, 1993, and Filed on February 1, 1993

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION
VERLA TURNER, INDIVIDUALLY * CIVIL ACTION 90-0688
AND ON BEHALF OF ALL OTHERS * [Field February 1, 1993]
SIMILARLY SITUATED, *  
  *  
  * JUDGE DOHERTY
vs. * MAGISTRATE JUDGE METHVIN
  *  
LOUIS W. SULLIVAN, M.D. *  
SECRETARY OF HEALTH *  
AND HUMAN SERVICES *  
     
ORDER

The foregoing stipulation of the parties having been considered,

IT IS HEREBY ORDERED that judgment be entered in conformity therewith.

Thus done and signed this 29th day of January 1993, in Lafayette Louisiana.

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION
     
VERLA TURNER, individually )  
And on behalf of all others )  
similarly situated, )  
  )  
Plaintiffs, )  
  )  
  ) [Field Janaury 27, 1993]
vs. ) CIVIL ACTION NO. 90-0688
  )  
  ) STIPULATION AND ORDER
LOUIS W. SULLIVAN, M.D. )  
SECRETARY OF HEALTH ) JUDGE SHAW
AND HUMAN SERVICES ) MAGISTRATE JUDGE METHVIN
  )  
Defendant. )  
     
JOINT STIPULATION AND ORDER

COME NOW the Plaintiff, VERLA TURNER, individually and on behalf of all other similarly situated, and the Defendant, LOUIS W. SULLIVAN, M.D., the Secretary of Health and Human Services, by and thorough their respective counsel of record, to stipulate to settlement of their above-numbered class action in accordance with the provisions below.

  1. The class members who shall be entitled to relief under the terms of this stipulation and order shall be limited to those defined as follows:

    1. all Louisiana state residents who:

      1. applied for or were receiving widows, widowers or surviving divorced spouses Title II benefits based on disability (“DWB”),

      2. were finally determined between February 12, 1990 and May 22, 1991, to be not disabled under 42 U.S.C. § 423 (d) (2) (B) by either the Louisiana State Disability Determination Services (“DDS”) or an office of the Office of Hearing and Appeals (“OHA”) of the Social Security Administration (“SSA”) which adjudicates claims of Louisiana state residents, and who

      3. timely filed a request for reconsideration of the initial determination or reapplied for DWB between the date of the initial determination and May 22, 1991.

    2. SSA need not readjudicate any DWB claims which were pending administratively or pending in individual civil actions in federal court on or after May 22, 1991.

    3. DWS claim(s) shall not be readjudicated of there was a denial of Title II or Title XVI disability benefits at step four or step five of the sequential evaluation on a concurrent claim or on a claim which covered the entire period of time covered by the DWB claim(s) subject to this stipulation and order.

  2. In readjudicating claims pursuant to this stipulation and order, and in adjudicating all DWB claims, SSA shall apply: (1) the standard set forth in SSR 91-3p to claims for DWB payable for any months prior to January 1, 1991; and (2) the standards set forth in § 5103 of the Omnibus Budget Reconciliation Act of 1990, 42 U.S.C. § 423(d), to claim for DWB payable for any months on or after January 1, 1991.

  3. Within 120 days of the date that this stipulation and order is entered by the court, the Secretary shall release to adjudicators final instructions implementing this settlement. Within 30 days after the issuance of final instructions to adjucators, SSA shall send notices by first class mail to the last known address of all potential class members. The notice will advise then that they maybe entitled to have their DWB claims readjudicated. All notice required by this paragraph shall be mailed with a request for review form and a postage-paid envelope pre-addressed to a SSA office designated to receive written requests for readjudication. A statement written in French, instructing French-speaking individuals to contact the local SSA field office (“FO”), will appear in bold letters on each notice.

  4. SSA shall attempt to obtain current addresses for potential class members whose notices are mailed pursuant to paragraph 3 of this stipulation and order and returned as undeliverable by requesting that Louisiana State provide current addresses through a computerized match with public assistance, food stamp, or other like retards. SSA requests for computer matches with state agencies' data systems will be subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a. SSA shall not be obligated to bring any legal proceedings to gain access to such records. SSA shall not be required to reimburse Louisiana State for this matching operation. SSA shall send a second notice by first class mail to all individuals for whom the computerized match produces a more recent address. The second notices will me be sent promptly after SSA's receipt of Louisiana State computer information. No later than 30 days after the expiration of the timeframe for response to the second notices, SSA shall, provide plaintiffs' counsel with a list of the names of all individuals whom SSA is still unable to locate. The list shall be organized in alphabetical order by last name and contain the date(s) and address(es) of each notice mailed. Plaintiff's counsel shall have 320 days after their receipt of this list to furnish more recent addresses for the listed individuals. SSA shall then mail a final notice to all individuals for whom a new address is furnished by plaintiffs' counsel.

  5. Potential class members shall have 60 days to request readjudication of their DWB claim(s) from the date on which they receive a notice pursuant paragraphs 3 and 4 of this stipulation and order. SSA wi11 presume that the notices are received five (5) days after mailing, unless it is established that receipt actually occurred later, in which case the 60 days to request readjudication shall be counted from the date of actual receipt. The 60 day period for requesting readjudication may be extended for “good cause” as set forth in 20 C.F.R. § 404.9111 and SSR 91-sp.

  6. Potential class members must request readjudication of their DWB claim(s) by returning the request for review form. All individuals who request readjudication will be provided with written confirmation of receipt.

  7. SSA shall determine whether each individual who requests readjudication meets the criteria in paragraph 1 and has properly requested readjudication in accordance with paragraphs 5 and 6. SSA shall make this determination within a reasonable time.

    1. If SSA determines that an individual who responded to the notice procedures, set forth above, is not a class member as described in paragraph 1 or is not otherwise entitled to relief as provided by the terms of paragraph 1 of this stipulation and order, SSA will send notice of this determination to class counsel and to the claimant.

    2. The notice described in paragraph 8 (a) will state that:

      1. class counsel will have 30 days from the receipt of notice to notify, in writing, the Office of the General Council (OGC), Department of Health and Human Services, Dallas, if class counsel disagrees with the determination. An extension of time to respond may be granted upon a showing of good cause;

      2. class counsel may request inspection of the claimant's administrative record upon which a determination was based and, as needed, the relevant claim file; and

      3. class counsel will have 45 days to review the record, measured from the day they are notified that the record is available for inspection at an SSA office mutually agreeable to the parties.

    3. The parties will attempt to resolve the question of an individual class membership by negotiations between class counsel, and the Office of the General Counsel. If, after negotiation, the parties cannot resolve the question of an individuals class membership, OGC will send to class counsel a written confirmation of denial of class membership.

    4. Class counsel, may submit, by duly noticed motion, the resolved matter to the Court for resolution. Such notice mast be filed no later than 60 days after OGC's written confirmation to class counsel that the dispute cannot be resolved. If class counsel does not notify OGC in writing that they disagree with the determination within 60 days of receipt of the notice, the determination shall become final and shall not be subject to further review.

  8. All DWB claim(s) entitled to readjudication under the terms of this stipulation under the terms of this stipulation and order shall be readjudicated at the reconsideration level of administrative review. 20 C.F.R. § 404.907. At the option of SSA, class members with subsequent disability claim(s) which are active and simultaneously pending at any administrative level of review at the time the class claim(s) is being evaluated may have the current claim consolidated with all claims covered by this stipulation and order. If a class member has more than one (1) DWB claim subject to readjudication pursuant to this stipulation and order, all such claims may be consolidated and shall be readjudicated at the reconsideration level of review. Class members shall retain all rights to seek administrative and judicial review of determinations made on readjudicatian under the procedures specified in 20 C.F.R. Part 404, subpart J, and 42 U.S.C. § 405(g).

  9. SSA shall use its best efforts to maintain by computerized tracking system a record of the following information:

    1. the number of class notices sent;

    2. the number of individuals responding to the notices;

    3. the number of individuals returned as undeliverable;

    4. the number of individuals determined not to be members of the class;

    5. the number of individua1s who received favorable determinations by DDS;

    6. the number of individuals who received unfavorable determinations by DDS.

    SSA shall provide reports containing the information maintained in this computerized tracking system to plaintiffs' counsel once every three (3) months commencing 180 days after this stipulation and order is entered by the court. Once the readjudications of DWS required by this stipulation and order have bean substantially completed and input, into the computerized tracking system, SSA shall so advise plaintiffs' counsel by providing them a final report.

  10. The relief order herein to the class members as define in paragraph 1 of this stipulation and order is in no way to be construed as an admission of wrongdoing by the Secretary or be offered in any proceeding as evidence of any past violation of, or failure to comply with federal law, rules, and regulations at issue in this action. This stipulation and order is agreed to by the Secretary solely to settle the case and to avoid the cost of further litigation.

  11. Plaintiffs are the prevailing parties for purposes of an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. Plaintiff's entitlement to, and the amount of such fees shall be determined at a later date by the parties or the court, upon timely application made pursuant to 28 U.S.C. § 2412.

  12. The Secretary shall bear the cost of implementing this stipulation and order.

  13. The court shall retain jurisdiction over this action solely for the enforcement of the specific provisions of this stipulation and order and to resolve disputes pursuant to paragraph 8. The claims of all persons who were included in the class certified by the court, but who are not entitled to readjudication pursuant to paragraph 1, will be dismissed.

  14. This stipulation and order resolves all claims by plaintiffs that the Secretary applied an incorrect standard in evaluating DWB claims.

  15. Plaintiff's council and defendant's counsel, by their signatures below, warrant that they are sole counsel to the plaintiff class or to the defendant whose interests were represented in this action and that they are authorized to stipulate to the settlement of issues in this action.

  16. This stipulation and order shall be submitted to the court and shall be effective only upon entry of the order by the court.

_____________________________ _____________________________

JOHN D. THOMPSON

JOHN A. BROADWELL

 

Assistant United States Attorney

   
_____________________________ _____________________________

GREGORY L. LANDRY
Attorneys for Plaintiffs

Rodney A. Johnson

 

Assistant Regional Counsel

 

Office of the General Counsel

 

U.S. Department of H.H.S.

 

Attorneys for Defendant

Attachment 2. Verla Turner Court Case Flag/Alert

    VT 999887   VT 00000
CTWALT01 Verla Turner Court Case Flag/Alert  

REVIEW OFFICE

PSC DOC TOE ALERT DATE RESPONSE DATE OLD BOAN/PAN
SSN (BOAN or PAN) NAME BIRTH DATE REFERENCE #
    FOLDER LOCATION INFORMATION
CAN/HUN BIC/MFT CATG TITLE CFL CFL DATE ACN

PAYEE ADDRESS

SHIP TO SCREENING OFFICE ADDRESS:

 

SSA
Mid-America PSC
Disability Review Section
P.O. Box 15608
601 East 12th Street
Kansas City, Missouri 64106

  ATTN: Verla Turner Screening Unit

SPECIAL INSTRUCTIONS:

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

  Verla Turner Class Action Case

SCREENING NECESSARY

Claimant's name ___________________________    
SSN ___________________________    

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

Please refer to HALLEX Temporary Instruction 5-4-34 for additional information and instructions.

  TO: ____________________________
    ____________________________
    ____________________________
    ____________________________

Attachment 4. Verla Turner Screening Sheets and Screening Sheet Instructions

VERLA TURNER SCREENING SHEET

1. CLASS ACTION CODE: V T

 

2. WAGE EARNER'S SSN

______ - ____ - ______

 

BIC

___ ___

3. CLAIMANT'S NAME

 

 

4. SCREENING DATE

____-____-____

 

5. a. MEMBERSHIP DETERMINATION

 

____MEMBER (J) ____NONMEMBER (F)

 

b. SCREENOUT CODE

____-____(see item 12 for screenout codes)

6. Is this a title II disabled widow/widower or surviving divorced spouse claim?

Yes___No___

(if No go to 15)

7. Was a less than fully favorable determination/decision issuedon this claim at the reconsideration level by the Louisiana DDS, Or at a higher level by an OHA office servicing residents of the State of Louisiana, from February 13, 1990, through May 21, 1991, inclusive, and did this decision become the final decision of the Commissioner? (Note: Although not the “final decision of the Commissioner,” an Appeals Council denial of a request for review is the last action of the Commissioner, and the date of such a denial controls for class membership purposes.)

                  or

Did the claimant file a second application for DWB from February 13, 1990, through May 21, 1991, inclusive?

Yes___No___

(if No go to 15)

8.Did the claimant reside in the State of Louisiana at the time the potential Verla Turner determination/decisionwas issued?

Yes___No___

(if No go to 15)

9.Was the denial/cessation of benefits on the potential Verla Turner claim for some reason other than the claimant's medical condition (e.g. SGA)?

Yes___No___

(if No go to 15)

10.Did the claimant receive a subsequent fully favorable determination/decision with entitlement to benefits commencing with the earliest possible month of the potential Verla Turner claim?

Yes___No___

(if No go to 15)

11.Was the potential Verla Turner claim pending administratively or in federal court on or after May 22, 1991?

Yes___No___

(if No go to 15)

12.Did the claimant receive a final adverse disability (medical) determination/decision after May 21, 1991, on a subsequent claim which raised the issue of disability and covered the timeframe at issue in the potential Verla Turner claim?

Yes___No___

(if No go to 15)

13.Was a claim for title XVI or title II worker's disability denied/ceased at one of the last two steps of the sequential evaluation process on a concurrent claim or on a claim which covered the timeframe at issue in the potential Verla Turner claim?

Yes___No___

(if No go to 15)

14.Did the individual file a claim for DWB on or after January 1, 1991, which was denied/ceased under the Omnibus Budget Reconciliation Act of 1990 (OBRA) and had no claim for entitlement to DWB for any month(s) before January 1991?

Yes___No___

(if No go to 15)

15. The responder is not a Verla Turner class member. Enter the screenout code in item 5 b. as follows:

Enter 06 if question 6 was answered "NO".
Enter 07 if question 7 was answered "NO".
Enter 08 if question 8 was answered "NO".
Enter 09 if question 9 was answered "YES"
Enter 10 if question 10 was answered "YES".
Enter 11 if question 11 was answered "YES".
Enter 12 if question 12 was answered "YES".
Enter 13 if question 13 was answered "YES".
Enter 14 if question 14 was answered "YES"

 

No other screenout code entry is appropriate.

16 .On the lines below, please enter the date(s) of all applications screened the date(s) of all final decision considered in the screening process and the administrative level at which the final decision was made (i.e., DDS, ALJ, AC).

Date of Application(s)    Date of Decisions     Level of Final Decision

_______________    __________________    ________________

_______________    __________________    ________________

_______________    __________________    ________________

 

SIGNATURE OF SCREENER

COMPONENT

 

DATE

 

TEL.

 

 

INSTRUCTIONS FOR COMPLETING VERLA TURNER SCREENING SHEET

The VERLA TURNER case involves only claims for title II disabled widow(er)'s or surviving divorced spouse's benefits, for individuals who were denied. The individual must have resided in Louisiana, during the period February 13, 1990, through May 21, 1991, inclusive. Only one screening sheet and one screen-out notice should be prepared for each claimant. Answer questions 1-14 in sequence until the case is either screened-in or screened-out. Be sure the fill-ins are legible.

Questions 1-4:

Fill in the identifying information as requested. Make sure SSN and BIC of DWB claim are correct and legible. DO NOT USE THE WIDOW'S OWN SSN.

Question 5:

Complete this information last. Do not fill in the information in blocks 5.a. and 5.b. until the screening process is completed.

Question 6:

Screen for claim type. If this question is answered “NO,” enter the appropriate screen-out code in item 5.b. as directed in item 15 on the screening sheet and check the “nonmember” block in item 5.a.

Question 7:

Individuals are potential class members if they received a denial or less than fully favorable decision (e.g., later onset, closed period, payment of benefits beginning January 1, 1991, under OBRA 90 despite an earlier onset) between February 13, 1990, and May 21, 1991, inclusive, which became the final decision of the Commissioner. Individuals are also potential class members if they received a denial or less than fully favorable decision prior to February 13, 1990, and reapplied for DWB between February 13, 1990, and May 22, 1991, instead of pursuing an appeal. Be sure to consider earlier eligibility for Medicare and retroactive benefits when determining if the decision is fully favorable. For DDS final determinations, the DDS code should be one of the following: 191/S75, 192/S76, or 193/S77. If the determination was not prepared by a DDS in Louisiana, OHA or any office servicing residents of the state of Louisiana on or after February 13, 1990, but before May 21, 1991, the individual is not a Verla Turner class member. (Note: Although not the “final decision of the Commissioner,” an Appeals Council denial of a request for review is the last action of the Commissioner, and the date of such a denial controls for screening purposes.)

Question 8:

For DDS final determinations, review the SSA-831-U3 to determine if the individual resided in Louisiana at the time the determination/decision described in question 7 was issued. For OHA final decisions, review the file. If the answer to question 8 is “YES,” go to question 9; if “NO,” the individual is not a class member in the Verla Turner case, go to item 15.

Question 9:

For DDS final determinations, check item 33 of the SSA-831-U3. If the reg-basis codes are N1, N2, L1, L2, M7 or M8, a non-medical denial is involved. A reg-basis code of S1 reflects that the prescribed period requirements were not met. For a complete list of DWB denial codes see POMS SM 00380.270. For OHA final decisions, the answer can be found in the Administrative Law Judge or Appeals Council decision. If the answer to question 9 is “YES,” enter the appropriate screen-out code in item 5.b. as directed in item 15 on the screening sheet and check the “nonmember” block in item 5.a.

Question 10:

Review the file and case control queries to determine whether benefits were subsequently allowed from the earliest possible entitlement date. Be sure to consider earlier eligibility for Medicare and retroactive benefits when determining if the subsequent decision is fully favorable. If the answer to question 10 is “YES,” enter the appropriate screen-out code in item 5.b. as directed in item 15 on the screening sheet and check the “nonmember” block in item 5.a.

Question 11:

Check file(s) and OHA query (OHAQ) to determine whether the potential Verla Turner claim was pending administratively or in a Federal court on or after May 22, 1991. NOTE: A remand by a Federal court under sentence four section 405(g) of the Social Security Act is a “final” judgment for screening purposes. If necessary, OHA screeners should contact the appropriate CCPRB (if not the screening component), to determine the status of any complaint filed. If the answer to question 11 is “Yes,” enter the appropriate screen-out code in item 5.b. as directed in item 15 on the screening sheet and check the “nonmember” block in item 5.a.

Question 12:

If the claimant received a final adverse disability (medical) determination/decision on a DWB claim after May 21, 1991, the claimant already received the same relief as he/she would receive under the Verla Turner settlement agreement, and, therefore, is not entitled to further review. If the answer to question 12 is “YES,” enter the appropriate screen-out code in item 5.b. as directed in item 15 on the screening sheet and check the “nonmember” block in item 5.a.

Question 13:

Review the file(s) and queries (AACT, SSID, etc.) for the individual's SSN to determine if the individual received a denial determination/decision on a concurrent or subsequent claim for SSI or worker's disability which covered the entire timeframe at issue in the potential Turner claim. For DDS final determinations, the following codes in block 22 of the SSA-831-U3 indicate DDS denial at steps 4 or 5: H1, H2, J1, J2, E3 and E4 for title II claims, or N31, N32, N42 and N43 for title XVI claims. For OHA final decisions, review the Administrative Law Judge or Appeals Council decision to determine the basis for denial. If the answer to question 13 is “YES,” enter the appropriate screen-out code in item 5.b. as directed in item 15 on the screening sheet and check the “nonmember” block in item 5.a.

Question 14:

For DDS final determinations in claims in which the individual did not allege entitlement before January 1, 1991, review the file to determine if the potential Verla Turner claim filed on or after January 1, 1991, was denied with the reg-basis codes H1, H2, J1 or J2. For OHA final decisions, review the Administrative Law Judge or Appeals Council decision to determine if the claimant's residual functional capacity was assessed. If the answer to question 14 is “YES,” enter the appropriate screen-out code in item 5.b. as directed in item 15 on the screening sheet and check the “nonmember” block in item 5.a.

Instructions for Class Members

  1. If “YES” to questions 6, 7 and 8, and “NO” to questions 9, 10, 11, 12, 13 and 14, the individual is a class member. Check the “class member” block (J) in item 5.a. of the screening sheet.

  2. Sign and date the screening sheet and retain the original in the claim folder. Enter the name of the screening component, e.g., OHA, OAO, Branch 10, and the screener's phone number.

  3. Send a copy of the screening sheet to:

     

    Office of Hearings and Appeals
    Division of Litigation Analysis and
    Implementation
    One Skyline Tower, Suite 702
    5107 Leesburg Pike
    Falls Church, VA 22041-3200

    ATTN: Verla Turner Coordinator

  4. Follow Part V. B. 3. b. for screened-in cases.

Instructions for Non-Class Members

  1. If “NO” to question(s) 6, 7 or 8, or “YES” to questions 9, 10, 11, 12, 13 or 14, the individual is not a class member. Check the “nonmember” block (F) in item 5.a. of the screening sheet and fill in the screen-out code in item 5.b.

  2. In determining that the individual is not a class member, fill in the information requested in item 16, i.e., the dates of the applications screened, the dates of the decisions considered and the level of adjudication reached.

  3. Sign and date the screening sheet. Enter the name of the screening component, e.g., OHA, OAO, Branch 10, and the screener's phone number.

  4. Retain the original screening sheet in the folder. Send a copy to:

     

    Office of Hearings and Appeals
    Division of Litigation Analysis and
    Implementation
    One Skyline Tower, Suite 702
    5107 Leesburg Pike
    Falls Church, VA 22041-3200

    ATTN: Verla Turner Coordinator

  5. Prepare and send the “Non-Class Member Notice” (Attachment 6) to the individual with a copy to his or her representative, if any. Retain a copy in the file.

  6. Follow Part V. B. 3. a. for screened-out cases.

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

ROUTING AND TRANSMITTAL SLIP DATE
TO: Initials Date
1.    
2.    
3.    
4.    
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 ____OTHER

REMARKS

  VERLA TURNER CASE

Claimant: ___________________________

SSN: ______________________________

OHA received the attached alert [and prior claim file(s)] for screening and no longer has the current claim file. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the current claim. After associating the alert with the current claim, please forward to the Mid-America Program Service Center (using the address indicated on the alert) for screening and possible readjudication. SEE POMS DI 42561.005 OR DI 12561.005

Attachment

FROM: SUITE / BUILDING
   

Office of Hearings and Appeals

__________________________

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. Non-Class Membership Notice

SOCIAL SECURITY NOTICE

Important Information

From:

Department of Health and Human Services
Social Security Administration

   
  ____________________________Date:____-____-____
   
  ____________________________Claim Number:____________________
   
  ____________________________DOC___________________________

THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY BENEFITS

PLEASE READ IT CAREFULLY

You asked us to review your case under the terms of the Verla Turner v. Sullivan court decision. We have looked at your case and decided that you are not a Verla Turner class member. This means that we will not review our earlier decision to deny or cease your benefits.

WHY YOU ARE NOT A CLASS MEMBER

You are not a Verla Turner class member because:

[ ]

You did not file a claim for title II disabled widow's, widower's or surviving divorced spouse's (DWB) benefits.

 

[ ]

You did not reside in the State of Louisiana between February 13, 1990, and May 21, 1991, inclusive.

 

[ ]

Between February 13, 1990, and May 21, 1991, inclusive, you did not request reconsideration of a less than fully favorable initial determination/cessation or file a second application for disabled widow's, widower's or surviving divorced spouse's benefits.

 

[ ]

Your claim was denied or ceased for some reason other than your medical condition. That reason was: _________________________________________________________________.

 

[ ]

You received a subsequent fully favorable decision which covered the timeframe at issue in the potential Verla Turner claim, and all benefits have been paid.

 

[ ]

You received a final adverse decision after May 21, 1991, on a subsequent claim which covered the timeframe at issue in the potential Verla Turner claim. Thus, you have already received the relief that you would otherwise be entitled to under Verla Turner.

 

[ ]

Your claim was pending administratively or in federal court on or after May 22, 1991.

 

[ ]

You had a concurrent claim for title XVI or title II worker's disability benefits denied or ceased at steps 4 or 5 of the sequential evaluation process, and that claim covered the period at issue in the potential Verla Turner claim.

 

[ ]

Other _________________________________________________

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 currently disabled. We are deciding only that you are not a Verla Turner class member.

IF YOU DO NOT AGREE WITH THIS DETERMINATION

If you want us to review the determination that you are not a class member, you must ask us to do so within 30 days of the date of this notice.

A copy of this letter is being sent to the attorney for the Verla Turner class. If you disagree with this determination, you should write or call the class attorney, who will answer your questions about class membership. If the attorney thinks that this determination is incorrect, we may look at your case again. The name and address of the attorney is:

 

John D. Thompson, Jr.
Acadiana Legal Service Corporation
1020 Surrey Street
P.O. Box 4823
Lafayette, Louisiana 70502-4823

Telephone (318) 237-4320

You may also contact your personal legal representative, if you have one or if you obtain one.

IF YOU HAVE ANY QUESTIONS

If you have any questions, you may contact the class attorney or your local Social Security Office. The address and phone number are printed at the top of this letter. If you call or visit an office, please have this letter with you. It will help us answer your questions.

SI VOUS AVEZ BESOIN D'ASSISTANCE POUR COMPRENDRE CET AVIS, VOUS DEVEZ VOUS METTRE EN CONTACT AVEC LE BUREAU DE SECURITE SOCIALE LE PLUS PROCHE. IL Y A QUELQU'UN LA QUI VOUS AIDERA VOLONTIERS.

cc: John D. Thompson, Jr.
Lafayette, LA 70502-4823

Attachment 7. Route Slip for Non-Class Membership Cases

ROUTING AND TRANSMITTAL SLIP DATE

TO:

1. SSA District Office

Initials Date
2. Brandywine I, Suite 100    
3. 825 Kaliste Saloom Road    
4. Lafayette, Louisiana 70508    
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 ____OTHER

REMARKS

  VERLA TURNER CASE

Claimant: ___________________________

SSN: ______________________________

We have determined that this claimant is not a Verla Turner class member.

(See Screening sheet and copy of non-class membership notice in the attached claim file(s).) This file has been transferred to your office because class counsel has requested review of the non-class membership determination. SEE POMS DI 12561.010

Attachment

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

FROM: SUITE / BUILDING
   

Office of Hearings and Appeals

__________________________

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. Turner Class Member Flag for Headquarters USe (DDS Readjudication -- retention period expired)

Verla Turner Class Action Case

READJUDICATION NECESSARY

Claimant's name: ___________________________    
SSN: ___________________________    

This claimant is a Verla Turner class member. Accordingly, we are forwarding the attached claim file(s) to the Louisiana DDS for readjudication.

Send folders to:

 

Louisiana Health and Human Resources
Office of Family Security
Disability Determinations
530 Lakeland Drive
Baton Rouge, Louisiana 70802

(Destination code: S21)

Attachment 9. Turner Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)

Verla Turner Class Action Case

READJUDICATION NECESSARY

Claimant's name: ___________________________    
SSN: ___________________________    

This claimant is a Verla Turner class member. After expiration of the retention period, forward claim file(s) to the Louisiana DDS for readjudication.

Send folders to:

 

Louisiana Health and Human Resources
Office of Family Security
Disability Determinations
530 Lakeland Drive
Baton Rouge, Louisiana 70802

(Destination code: S21)

NOTE:

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

Attachment 10. ALJ Dismissal Order to DDS

DEPARTMENT OF HEALTH AND HUMAN SERVICES OFFICE OF HEARINGS AND APPEALS ORDER OF DISMISSAL

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 the Joint Stipulation of the parties and an order of the United States District Court for the Western District of Louisiana in the case of Verla Turner v. Sullivan, No. 90-0688 (W.D. Louisiana, January 29, 1993), the claimant has requested readjudication of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Verla Turner class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Joint Stipulation and Order. Because the claimant's current claim shares certain issues in common 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 Louisiana Disability Determination Service which will conduct the Verla Turner readjudication.

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

 

_____________________________
Administrative Law Judge

 

_____________________________
Date

Attachment 11. 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 Louisiana 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 Verla Turner class member claim back to the Louisiana Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

The Louisiana Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the Louisiana 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))

Attachment 12. Turner Class Member Flag for HO Use (DDS Readjudication)

Verla Turner Class Action Case

READJUDICATION NECESSARY

Claimant's name: ___________________________    
SSN : ___________________________    

This claimant is a Verla Turner class member. The attached Verla Turner claim file 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 file(s) to your location for any necessary Verla Turner readjudication action.

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

 

Louisiana Health and Human Resources
Office of Family Security
Disability Determinations
530 Lakeland Drive
Baton Rouge, Louisiana 70802

(Destination code: S21)


[1]  Hereinafter, the term “widows” is used only for convenience; it is intended to refer to all persons treated similarly under title II, i.e., widows, widowers and surviving divorced spouses.

[2]  The final rules implementing § 5103 of OBRA 90 were published in the Federal Register on July 8, 1992, at 57 Fed. Reg. 30116.