I-5-4-42.Bozzi v. Shalala

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 - Stipulation and Order Dated April 26, 1993; Approved and Filed by the Court on May 26, 1993
Attachment 2 - Bozzi COURT CASE FLAG/ALERT
Attachment 3 - Route Slip or Case Flag for Screening
Attachment 4 - Bozzi SCREENING SHEET
Attachment 5 - Route Slip for Routing Class Member Alerts and Prior Claim File(s) to ODIO and PSC -- OHA No Longer Has Current Claim
Attachment 6 - Bozzi Non-Class Membership Notice
Attachment 7 - Route Slip for Non-Class Membership Cases
Attachment 8 - Text for Notice of Revised Class Membership
Attachment 9 - Bozzi Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Expired)
Attachment 10 - Bozzi Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Has Not Expired)
Attachment 11 - ALJ Dismissal Order to DDS
Attachment 12 - Notice Transmitting ALJ Order of Dismissal
Attachment 13 - Bozzi Class Member Flag for HO Use (DDS Readjudication)
Attachment 14 - Appeals Council Remand to DDS

ISSUED: June 29, 1994


I. Purpose


This Temporary Instruction (TI) sets forth procedures for implementing the parties' April 26, 1993 Stipulation and Order, approved and filed by the United States District Court for the Eastern District of Pennsylvania on May 26, 1993, in the Bozzi v. Shalala class action involving the standard for determining disability in surviving spouse claims.


Adjudicators throughout the country must be familiar with this TI because Bozzi class members who now reside outside the Third Circuit (Delaware, New Jersey, Pennsylvania and the Virgin Islands) must have their cases processed in accordance with the requirements of the Stipulation and Order.


II. Background


On April 13, 1990, plaintiff filed a complaint challenging the Secretary's listings-only policy of evaluating disability with respect to the title II claims of widows, widowers and surviving divorced spouses.[1] On July 11, 1990, plaintiff filed an amended complaint seeking class status and relief. On February 14, 1991, the district court certified a class (see Part IV. below, for class definition).


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.


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. Following a public hearing, on May 26, 1993, the district court approved and filed the parties' April 26, 1993 Stipulation and Order setting forth the terms for the implementation of relief to class members (Attachment 1).


III. Guiding Principles


Under Bozzi, the Secretary will reopen and readjudicate the claims of those persons who: 1) respond to notice informing them of the opportunity for review; and 2) are determined to be class members after screening (see Part V. below). The Disability Review Section in the Mid-Atlantic Program Service Center (PSC) will screen for class membership, unless the potential class member claim or a subsequent (current) claim is pending or stored at OHA. Regardless of the state of the claimant's current residence, the Disability Determination Services (DDSs) in Delaware, New Jersey, Pennsylvania and the Virgin Islands will, in most cases, perform the agreed-upon readjudications, irrespective of the administrative level at which the claim was last decided.


EXCEPTIONS:

The DDS servicing the claimant's current address will perform the readjudication if a face-to-face review is necessary, i.e., cessation or terminal illness (TERI) cases. The Great Lakes Program Service Center has review jurisdiction if there is railroad involvement in the Bozzi claim.


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


Cases readjudicated by the DDSs 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 (42 U.S.C. § 423(d)(2) (1992)) and SSR 91-3p for evaluating disability in Bozzi 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 5-3-15, 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


The Bozzi class consists of all individuals residing in Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time of the most recent administrative determination or decision who:


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

    
    

  • were issued a less than a fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, at the reconsideration level or above, between April 1, 1983, and May 5, 1990, inclusive; or

    
    

  • were issued determinations or decisions on two or more separate claims at any administrative level, between April 1, 1983 and December 31, 1990, inclusive; or

    
    

  • were issued a less than a fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, at any administrative level between May 6, 1990, and December 31, 1990, inclusive.

    
    

    EXCEPTIONS:

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

    
    

    (1) filed a claim for disability benefits under titles II or XVI, either concurrently with, or after, all potential class member DWB claims, and received a final administrative denial or a final adverse judgment from a Federal district or appellate court at steps one, two, four or five of the sequential evaluation process, that covered the entire timeframe at issue in the potential Bozzi claim(s); or

    
    

    (2) filed a complaint in Federal district court based on an administrative denial or termination of any potential class member DWB claim, and received a final judgment from a Federal district or appellate court; or

    
    

    (3) filed a DWB claim on or after January 1, 1991, that was denied administratively on the ground that the claimant did not meet the disability standard set forth in § 5103 of OBRA 90 and had no claim for entitlement to DWB for any month(s) before January 1991; or

    
    

    (4) had a claim for DWB denied on the ground that he or she did not satisfy the disability standard of SSR 91-3p; or

    
    

    (5) the individual's only potential Bozzi claim was pending administratively on or after January 1, 1991; or

    
    

    (6) at the time the class membership determination is made, has been determined to be a member of another class certified in another circuit, which has challenged in Federal court the Secretary's interpretation or application of the former 42 U.S.C. § 423(d)(2)(B) as it was in effect before January 1, 1991; or

    
    

    (7) received a fully favorable decision on a subsequent DWB claim, with entitlement commencing at the earliest possible month of entitlement, as described in ¶ 15 of the Stipulation and Order.

    
    

V. Determination of Class Membership and Preadjudication Actions


A. Pre-Screening Actions - General


1. Notification


SSA will send notices to all potential class members identified by computer run. Individuals have 120 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Bozzi Stipulation and Order. Notices returned as undeliverable will be mailed a second time; either to a different address, if SSA can obtain one, or to the last known address. SSA will provide potential class members who request readjudication with a dated, written confirmation of receipt.


Individuals who do not respond on a timely basis will be denied class membership, but will be advised of their opportunity to establish good cause. The good cause provisions of 20 CFR § 404.911 and SSR 91-5p will apply. However, in no circumstance will a potential class member who satisfies any of the aforementioned good cause provisions be entitled to readjudication unless he or she requests such readjudication within three years of the date on which SSA sends notice of potential class membership (see ¶ 6 of the Stipulation and Order).


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 Bozzi 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 Mid-Atlantic PSC for retrieval of any additional claim files and screening (see Part III. above).


3. Alerts Sent to OHA


If the Mid-Atlantic PSC determines that either a potential class member claim or a subsequent (current) claim is pending 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).


The Mid-Atlantic PSC will send all alerts potentially within OHA jurisdiction and related prior claim file(s) to the Office of Civil Actions (OCA), Division II, at the following address:


Office of Hearings and Appeals
Office of Civil Actions, Division II
One Skyline Tower, Suite 800
5107 Leesburg Pike
Falls Church, VA 22041-3200 

ATTN: Bozzi Screening Unit


4. Folder Reconstruction


In general, ODIO or the Mid-Atlantic PSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential class member cases should be rare. However, if it becomes necessary for OHA to request reconstruction, the OHA component (if not OCA, Division II) will return the alert and any accompanying claim file(s) to OCA, Division II. OCA, Division II will direct any necessary reconstruction requests to the servicing FO with a covering memorandum requesting that the reconstructed folder be forwarded to OHA. OHA will send a copy of the covering memorandum to:


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

ATTN: Bozzi Coordinator


5. Class Membership Denials


The Mid-Atlantic PSC or OHA, as appropriate, will hold all non-class member claim files for 90 days pending review by class counsel. If an individual wishes to request SSA's further consideration of a class membership denial determination, he or she must do so through class counsel. Class counsel has 60 days from receipt of notice of the class membership denial to notify the Secretary's counsel of their disagreement. Upon timely request by class counsel (i.e., within 60 days of receipt of the notice of class membership denial) to review claim files, the Office of the Deputy Commissioner for Programs' Litigation Staff will coordinate with the Mid-Atlantic PSC or OHA to forward claim files to:


SSA District Office
801 Arch Street
2nd Floor
Philadelphia, PA 19107

Upon review of the files, class counsel will have an additional 30 days, if necessary, to contact the Office of the General Counsel (OGC) directly to resolve any remaining class membership disputes.


B. OHA Screening Actions


1. Pre-Screening Actions


a. Current Claim in OHA

As provided in Part V. A. 3. above, if there is a current claim pending at OHA, OCA will receive the alert and related Bozzi claim file(s). OCA will determine which OHA component has the current claim and forward for screening as follows.


  • If the current claim is in a hearing office (HO), OCA will use Attachment 3 to forward the alert and the prior claim file(s) to the HO for screening.

    
    

  • If the current claim is before the Appeals Council, OCA will use Attachment 3 to forward the alert and prior claim file(s) to the appropriate Office of Appellate Operations (OAO) branch for screening.

    
    

  • If the current claim file is in an OAO branch minidocket or Docket and Files Branch (DFB), OCA will request the file, associate it with the alert and prior claim file(s) and perform the screening.

    
    

If OCA is unable to locate the current claim file within OHA, OCA will broaden its claim file search and arrange for folder retrieval, alert transfer or folder reconstruction, as necessary.


NOTE:

OCA Division II is responsible for controlling and reconciling the OHA Bozzi class alert workload. Bozzi is the largest of the surviving spouse disability class actions with approximately 8,000 potential class members. OCA should maintain a record of all alerts transferred to other locations (to include the pertinent information about destinations), and a copy of all screening sheets. This information will be necessary to do the final class membership reconciliation.


b. Current Claim Pending in Court

If OCA receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, OCA Division II will associate the alert with the claim file(s) (or court transcript) and screen for Bozzi class membership. See Part V. B. 2. b. below for special screening instructions when a civil action is involved.


2. Screening


a. General Instructions

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


NOTE:

If the claim pending at OHA is the only 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 Bozzi timeframe;

    
    

    NOTE:

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

    
    

  • 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

    
    

  • Forward 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: Bozzi Coordinator
    
    

    The Division of Litigation Analysis and Implementation (DLAI) will forward copies of the screening sheet to OCA Division II (if not the screening component) and the Litigation Staff at SSA Central Office.

    
    

    If the HO or OAO branch receives an alert only or an alert associated with a prior claim file(s) for screening, and no longer has the current claim file, it will return the alert and the prior claim file(s) to OCA Division II (see address in Part V. A. 3. above) and advise OCA of what action was taken on the current claim. OCA will determine the claim file location and forward the alert and any accompanying prior claim file(s) to that location (see Attachment 5).

    
    

    NOTE:

    Final determinations or decisions made on or after January 1, 1991, on a subsequent claim filed by a potential Bozzi class member may have adjudicated the entire timeframe at issue in the potential Bozzi claim. Pursuant to ¶ 2 of the Stipulation and Order, these claims should be denied class membership rather than dismissed under the doctrine of administrative res judicata.

    
    

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

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


  • If the claim pending in court is the potential Bozzi class member claim, OCA will immediately notify OGC so that OGC can notify the claimant of the option to have the case remanded for readjudication.

    
    

  • 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 Bozzi issues, the claimant is not a Bozzi class member. OCA staff 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 Bozzi issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Bozzi claim, OCA staff will forward the Bozzi claim to the servicing DDS for separate review. OCA will modify the case flag in Attachment 10 to indicate that the pending court case does not resolve all Bozzi issues and that the Bozzi class member claim is being forwarded for separate processing.

    
    

  • 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, OCA will initiate voluntary remand proceedings and consolidate the claims.

    
    

3. Post-Screening Actions


a. Non-Class Member Cases

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


  • notify the individual, representative, if any, and class counsel 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:

    Bozzi Counsel
    Community Legal Services, Inc.
    1226 South Broad Street
    Philadelphia, PA 19146-3119

    
    

  • retain the claim file(s) for 90 days pending a possible class membership dispute; if the screening component is not OCA, Division II, and the file(s) is not needed for adjudication, forward the file(s) for storage to OCA, Division II at the address in Part V. A. 3. above;

    
    

  • if class counsel makes a timely request to review the claim file (i.e., within 60 days from receipt of the notice of class membership denial), DLAI will notify the OHA component housing the non-class member claim file to send it to the SSA District Office using the pre-addressed route slip in Attachment 7 (see Part V. A. 5. above) (upon review of the files, class counsel will have an additional 30 days, if necessary, to contact OGC directly to resolve any class membership issues);

    
    

    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.

    
    

  • if SSA through OGC resolves the dispute in the claimant's favor: 1) rescreen the case; 2) send the notice of revised class membership determination (Attachment 8) to the claimant and representative, if any, and to the class counsel; 3) proceed in accordance with Part VI. below; and 4) notify DLAI, at the address in Part V. B. 2. above, of the revised determination by forwarding a copy of the revised screening sheet (DLAI will forward copies of the revised screening sheet to OCA, Division II (if OCA is not the screening component) and to Litigation Staff at SSA Central Office); and

    
    

  • if after 90 days no review is requested, return the file(s) to the appropriate location.

    
    

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


b. Cases Determined to be Class Members

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


VI. Processing and Adjudication


A. Cases Reviewed by the DDS


As previously indicated, the DDSs servicing Third Circuit residents will conduct the first Bozzi review, except for cases consolidated with claims pending or held 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.


B. Payment Reinstatement for Cessation Cases


If the Bozzi claim involves a cessation, the class member may elect to have disability benefits reinstated pending readjudication. In general, the servicing Social Security Field Office (FO) has responsibility for:


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

    
    

  2. completing the election forms;

    
    

  3. verifying non-disability factors; and

    
    

  4. making a good faith effort to quickly reinstate benefits after retrieval or reconstruction of the Bozzi claim file.

    
    

    NOTE:

    For OHA jurisdiction cases, the screening component will

    
    

    (1) identify Bozzi claims involving cessations;

    
    

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

    
    

    (3) provide the servicing FO 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 Bozzi 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 Bozzi class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.


NOTE:

Implementation of the Bozzi order must never delay the processing of TERI claims and must never interfere with the operation of TERI procedures on such claims.


1. Type of Review and Period To Be Considered


Pursuant to the Bozzi Stipulation and Order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a reopening. The claim of each class member must be fully reopened to determine whether the claimant was disabled at any time from the onset date alleged in the Bozzi claim through the present (or through the date the claimant last met the prescribed period requirements, if earlier).


Pursuant to ¶ 15 of the Bozzi Stipulation and Order, adjudicators will not consider disability for any period in which a class member has already received disabled widows benefits. Pursuant to ¶ 16, the administrative record in Bozzi claims will be developed in accordance with the regulations and policies governing the development of disability claims. SSA will reconstruct missing files to the best of its ability. Class members may submit new evidence.


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 5-3-15, 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, OCA will associate the alert with the file and screen for class membership. (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, OCA will attach a Bozzi class member flag (see Attachment 9) to the outside of the file and forward the claim file(s) to the servicing DDS for review of the Bozzi class member claim.

    
    

  • If less than 120 days have elapsed, OCA will attach a Bozzi class member flag (see Attachment 10) to the outside of the file to ensure the case is routed to the servicing DDS after expiration of the retention period. Pending expiration of the retention period, OCA will also:

    
    

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

      
      

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

      
      

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


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

1. General


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


2. Current Claim Pending in the Hearing Office


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

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


EXCEPTIONS:

The ALJ will not consolidate the claims if


  • the current claim and the Bozzi claim do not have any issues in common; or

    
    

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

    
    

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


b. Hearing Not Scheduled

Except as noted below, if a Bozzi 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 Bozzi claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim without prejudice and forward both the Bozzi 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 Bozzi class member, the ALJ will consolidate the claims.


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


c. Actions if Claims Consolidated

When consolidating a Bozzi 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 Bozzi claim(s) with the current claim, the ALJ will:


  • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Bozzi 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 Bozzi claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Bozzi claim; and

    
    

  • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Bozzi claim (the ALJ's decision will clearly indicate that the ALJ considered the Bozzi claim pursuant to the Bozzi Stipulation and Order).

    
    

d. Action if Claims Not Consolidated

If common issues exist but the ALJ decides not to consolidate the Bozzi claim(s) with the current claim because the hearing has not yet been scheduled, the ALJ will:


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

    
    

  • send both the Bozzi claim and the current claim to the servicing DDS for consolidation and further action.

    
    

If the ALJ decides not to consolidate the Bozzi claim(s) with the current 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 Bozzi claim for DDS review using Attachment 13; immediately route it to the servicing DDS for adjudication; and retain a copy of Attachment 13 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 Has Issue in Common with the Bozzi Claim


The action the Appeals Council takes on the current claim determines the disposition of the Bozzi 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 Bozzi claim.


a. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim

If, after consideration of the merits, the Appeals Council would otherwise dismiss, deny the request for review or issue an unfavorable decision, OAO personnel will combine the claims and forward them to the appropriate DDS for readjudication through the date of the ALJ's decision on the current claim or, if the ALJ had dismissed, through the date of reconsideration of the current claim (see sample remand language at Attachment 14).


b. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Bozzi 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 Bozzi 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 Bozzi claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Bozzi claim pursuant to the Bozzi Stipulation and Order.


c. Appeals Council Intends To Issue a Favorable Decision on the Current Claim -- Bozzi 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 Bozzi 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 DDS after the Appeals Council's decision is effectuated. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: "Bozzi court case review needed -- following effectuation forward the attached combined folders to the appropriate DDS."


d. 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 ALJ, it will proceed with its intended action unless the exception below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Bozzi claim with the action on the current claim pursuant to the instructions in Part VI. E. 2. a. above.


EXCEPTION:

The Appeals Council will not direct the ALJ to consolidate the claim if a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated. If a court-ordered time limit makes consolidation impractical, OAO will forward the Bozzi class member claim to the appropriate DDS for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Bozzi class member claim for separate processing.


4. Current Claim Pending at the Appeals Council Does Not Have Issue in Common with the Bozzi Claim


OAO will forward the Bozzi class member claim to the appropriate DDS for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Bozzi 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.” If the conditions described in Part VI. E. 2. b. above apply, the ALJ should dismiss the request for hearing on the current claim, and HO personnel should enter “OTDI” in the “DSP” field.


To identify class member cases in HOTS, HO personnel will code “BZ” 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.


Attachment 1. - Stipulation and Order Dated April 26, 1993; Approved and Filed by the Court on May 26, 1993


IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

     
LOUISE BOZZI, et al., )  
  )  
Plaintiffs )  
                    v. ) CIVIL ACTION NO. 90-2580
  )  
DONNA E. SHALALA, )  
Secretary of Health )  
and Human Services )  
  )  
Defendant. )  
     
ORDER
     
AND NOW this 26 day of May, 1993, a hearing on the fairness of proposed Stipulation of Settlement having been held on May 26, 1993, it is hereby ordered that the Stipulation of Settlement received by the Court on April 23, 1993 is approved and immediately effective.
     
   

                                      /s/                                

    John P. Fullam.              

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LOUISE BOZZI, et al., )  
  )  
Plaintiffs )  
                    v. ) CIVIL ACTION NO. 90-2580
  )  
DONNA E. SHALALA,1 )  
Secretary of Health )  
and Human Services, )  
  )  
Defendant. )  
     

STIPULATION AND ORDER

     
WHEREAS the court rendered a decision on February 14, 1991, certifying a plaintiff class (plaintiffs) and denying defendant's motion to dismiss, and
     
WHEREAS the parties have agreed to resolve all of the outstanding dis putes in this case without further litigation,
     
THEREFORE, the parties to this action, by their undersigned counsel, hereby agree to a settlement of plaintiffs' claims in this action in accordance with the following terms and conditions:

Scope of the Class


  1. The class members who shall be entitled to seek relief under the terms of this stipulation and order, shall include, subject to the provisions of ¶ 2 of this stipulation and order, any individual who:

    
    

    (a)(1) had a claim for disabled widow's, widower's, or surviving divorced spouse's benefits (DWB) under 42 U.S.C. § 402 (e) or (f) denied, or had entitlement to such benefits terminated because disability had ceased, at the reconsideration level of administrative review, 20 C.F.R. § 404.907 (1991), or higher, 20 C.F.R. § § 402.929, 404.967 (1991), between April 1, 1983 and May 5, 1990; or had two or more claims for DWB denied at any administrative level between April 1, 1983 and January 1, 1991; or

    
    

    (a)(2) had a claim for DWB denied, or had entitlement to such benefits terminated because disability had ceased, at any level of administrative review between May 6, 1990 and January 1, 1991; and

    
    

    (b) was residing in Pennsylvania, New Jersey, Delaware, or the Virgin Islands when the last administrative decision she or he received, which satisfies the provisions of (a)(1) or (a)(2), was made (i.e., on the date of the notice of that decision); provided that

    
    

    (c) the last administrative decision referred to in (b) was issued by a State Disability Determination Service (DDS) or an office of the Office of Hearings and Appeals (OHA) of the Social Security Administration (SSA) which adjudicates claims of residents of Pennsylvania, New Jersey, Delaware, or the Virgin Islands, based on a finding that she or he did not satisfy the disability standard of 42 U.S.C. § 423 (d) (2) (B) before that section was amended by the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. No. 101-508, § 5103, 104 Stat. 1388 (1990) (amending 42 U.S.C. § 423 (d) (2) (A) and (B)) (effective January 1, 1991).

    
    

  2. The class shall exclude any individual who:

    
    

    (a) filed a claim for Title II disability insurance benefits (DIB) or Title XVI disability benefits (SSI) concurrently with, or after, all DWB claims(s) by virtue of which she or he would satisfy ¶ 1(a)(1) or (a)(2), and received a final administrative denial or a final judgment adverse to the individual from a federal district or appellate court at steps one, two, four or five of the sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920 (1991), or

    
    

    (b) filed a complaint in federal district court based on an administrative denial of any DWB claim(s) or termination of DWB by virtue of which she or he would satisfy ¶

    
    
    1(a)(1) or (a)(2), and received a final judgment adverse to the individual from a federal district or appellate court, or
    
    

    (c) filed a claim for DWB on or after January 1, 1991, which was denied administratively on the ground that the claimant did not meet the disability standard set forth in OBRA, Pub. L. No. 101-508, § 5103, 104 Stat. 1388 (1990) (amending 42 U.S.C. § 423 (d)(2)(A) and (B)) (effective January 1, 1991), or

    
    

    (d) had a claim for DWB denied on the ground that she or he did not satisfy the disability standard of Social Security Ruling (SSR) 91-3p, or

    
    

    (e) at the time the class membership determination is made under ¶ 7 of this stipulation and order, has been determined to be a member of another class certified in another circuit, which has challenged in federal court the Secretary's interpretation or application of the former 42 U.S.C. § 423 (d) (2) (B) as it was in effect prior to January 1, 1991, or who

    
    

    (f) received a fully favorable decision on a subsequent DWB claim, with entitlement commencing at the earliest possible month of entitlement, as described in ¶ 15 of this stipulation and order.

    
    

    Standard for Readjudication

    
    

  3. In readjudicating claims pursuant to this stipulation and order, SSA shall apply: (a) the standard set forth in SSR 91-3p in determining entitlement to DWB for any month(s) before January 1991; and (b) the standard set forth in OBRA, Pub. L. No. 101-508, § 5103, 104 Stat. 1388 (1990) (amending 42 U.S.C. § 423 (d) (2) (A) and (B)) (effective January 1, 1991), in determining entitlement to DWB for any month(s) after December 1990.

    
    

    Identification of Potential Class Members

    
    

  4. SSA will, by means of its data processing systems, identify the names, Social Security Numbers and last known addresses of potential class members who meet the provisions of ¶ 1 of this stipulation and order. SSA will identify potential class members within 195 days of the date that the court enters this stipulation and order.

    
    

    Notices to Potential Class Members

    
    

  5. SSA will mail notices within forty-five (45) days of the date on which it issues instructions to the SSA offices in accordance with ¶ 20 of this stipulation and order to potential class members identified pursuant to ¶ 4 of this stipulation and order, at the addresses last shown in SSA's records. (“SSA offices” for purposes of this stipulation and order are defined as SSA district and branch offices, OHA hearing offices, DDS offices, Program Service Centers, and the Appeals Council.) SSA will send all notices by first class mail. SSA will notify class counsel of the date of the mailing of the notices thirty (30) days in advance of mailing. The notice will inform the potential class member that she or he may be entitled to have her or his DWB claim readjudicated; the notice that SSA will use, and to which the parties agree, is attached hereto as Attachment 1. SSA will mail the notices required by this paragraph with a request for review form and postage-paid envelope pre-addressed to the SSA office designated by SSA to receive the request for review forms. If a notice is returned as undeliverable, SSA will attempt to obtain a current address by requesting that the State governments in the states of Pennsylvania, New Jersey, Delaware, as well as the government in the Virgin Islands, subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a, provide current addresses through a computerized match with the records of an appropriate agency or agencies of each State and the Territory of the Virgin Islands; provided that the defendant shall not be required to institute legal proceedings to gain access to these data system records or to reimburse or compensate the States or Territory for searching such records. SSA will send the notice a second time by first class mail to all potential class members for whom the computerized match produces a different address. The second notices will be sent promptly after SSA's receipt of computer information from all the above-described states. If the computerized match does not produce a different address for a potential class member, SSA will send the notice a second time to the address last shown on its records. Within a reasonable time after the expiration of the time for response to the second notice, SSA will provide class counsel with a list of the names of all potential class members whom SSA is still unable to locate. The list shall be organized in alphabetical order by last name and contain the last known address and the date the notice was last mailed.

    
    

  6. Potential class members who wish to seek relief under this stipulation and order must request readjudication of their DWB claims within 120 days of the date on which they receive the notice referred to in ¶ 5 of this stipulation and order. SSA will presume that notices are received five (5) days after mailing, unless the potential class member establishes that receipt actually occurred later, in which case the 120 days to request readjudication shall be counted from the date of actual receipt. SSA will presume that a request for review was mailed five (5) days before it was received by SSA unless the respondent establishes that it was mailed earlier, in which case the date of actual mailing will be used in determining whether the response was timely. To request readjudication of their DWB claims, potential class members must return the request for review form enclosed with the class action notice referred to in ¶ 5. However, potential class members may also request such readjudication in a writing (other than the request for review form) mailed to SSA, or by visiting a social security district office or branch office and stating an intent to request readjudication. In determining whether a potential class member has requested readjudication by either of the means described in the preceding sentence, SSA shall construe all inquiries received from potential class members concerning eligibility to DWB as requests for readjudication if they can be reasonably construed as such. SSA will provide potential class members who request readjudication as provided in this paragraph with a dated, written confirmation of receipt. The good cause provisions of 20 C.F.R. § 404.911 (1991) and SSR 91-5p shall apply to requests for readjudication under this stipulation and order. In no case may a potential class member who satisfies one of the conditions of the preceding sentence be entitled to readjudication under this stipulation and order unless she or he requests such readjudication within three years of the date on which SSA sends the notices described in ¶ 5.

    
    

    Determination of Class Membership

    
    

  7. SSA will determine whether each potential class member who requests readjudication meets the criteria of ¶ 1 of this stipulation and order and is not excluded under ¶ 2, and has timely and properly requested readjudication in accordance with ¶ 6 of this stipulation and order. SSA will make this determination within a reasonable period of time.

    
    

  8. If SSA determines that an individual who requests readjudication under this stipulation and order is not a class member or is otherwise not entitled to readjudication under the terms of ¶ ¶ 1 and 2 of this stipulation and order, or did not file a timely or proper request for readjudication under ¶ 6, SSA will send a notice of this determination to the individual, the individual's representative in any proceeding described in ¶ 13, if known, and class counsel. The notice will contain the name and address of class counsel and will inform the individual that she or he must obtain assistance from class counsel if she or he wishes to request SSA's further consideration of the denial of class membership. The notice that SSA will use and to which the parties agree is attached hereto as Attachment 2.

    
    

  9. If class counsel disagrees with a determination of class membership made under ¶ 8 of this stipulation and order, counsel must, within sixty (60) days of receipt of the notice described in ¶ 8, notify the Office of the General Counsel (OGC), Department of Health and Human Services, 3535 Market Street, Philadelphia, Pennsylvania 19104, in writing of class counsel's disagreement, and specify the reasons for the disagreement.

    
    

  10. Except as provided in ¶ 11, if class counsel does not notify OGC in writing within the sixty (60) days specified under ¶ 9 of this stipulation and order, the determination of non-class membership shall take immediate effect and shall not be subject to review.

    
    

  11. Class counsel may inspect, and photocopy at no charge, the papers SSA relied on in making the determination of an individual's class membership, but must request such inspection in writing within sixty (60) days of receipt of the notice described in ¶ 8. SSA and class counsel will appoint a mutually agreeable time and SSA office at which class counsel will inspect the requested papers. Should class counsel seek to postpone the appointment, the appointment can be postponed for no more than thirty (30) days. If, and only if, class counsel does inspect the papers, the time in which class counsel must inform OGC of its disagreement with the class membership determination is tolled until thirty (30) days after such inspection. To protect the privileged information contained in the claims file, class counsel may not use or disclose any information obtained from the claims file without the permission of the individual, except for the purpose of pursuing the individual's claim pursuant to this stipulation and order. All such records may be disclosed only to potential class members as described in ¶ 1, or their legal representatives, class counsel and persons regularly employed by such legal representatives, and may be used only for the purpose of pursuing an individual's claim in this action for purposes directly related to this action, except with permission of the individual.

    
    

  12. The parties will attempt to resolve any question of an individual's class membership by negotiations between class counsel and OGC. If, after negotiation, the parties cannot resolve the question of an individual's class membership, OGC will send to class counsel and the putative class member a written confirmation of denial of class membership. Subject to the provisions of ¶ 10 of this stipulation and order, class counsel may, by duly noticed motion, submit the unresolved matter to this court for resolution. Such motion must be filed no later than sixty (60) days after class counsel's receipt of the written confirmation sent by OGC that the dispute over class membership cannot be resolved.

    
    

    Procedures for Readjudication

    
    

  13. SSA shall readjudicate all DWB claims finally decided on or after April 1, 1983, of class members entitled to relief under ¶ ¶ 1 and 2 who requested readjudication pursuant to ¶ 6. All DWB claims entitled to readjudication under the terms of this stipulation and order shall be readjudicated at the reconsideration level of administrative review, 20 C.F.R. § 404.907 (1991), except as otherwise provided in this paragraph. If any class member has another active Title II or Title XVI disability claim simultaneously pending before SSA at any administrative review level, SSA may, at its option, consolidate that claim(s) with the claim being readjudicated under this stipulation and order. The consolidated claims will be readjudicated at the reconsideration level of administrative review, 20 C.F.R. § § 404.907, 416.1407 (1991), unless the active claim(s) is (are) pending at the hearing or Appeals Council level of administrative review, 20 C.F.R. §§ 404.929, 404.967, 416.1429, 416.1467 (1991). If the active claim is pending at the hearing or Appeals Council level, SSA may consolidate the claims at the hearing level for a supplemental hearing, if necessary, and decision, or may remand them to the DDS. In no case will SSA consolidate claims for review at the Appeals Council, except to issue a fully favorable decision.

    
    

  14. If a class member has more than one DWB claim subject to readjudication pursuant to this stipulation and order, SSA will consolidate all such claims and readjudicate them at the reconsideration level of review. In no event will SSA readjudicate any claim finally decided before April 1, 1983.

    
    

  15. In readjudicating claims under this stipulation and order in accordance with ¶¶ 1, 2, and 14 of this stipulation and order, SSA will consider the issue of disability from five months before the class member's earliest potential entitlement date (or from the alleged onset date if the class member's prescribed period, described in 20 C.F.R. § 404.335 (c)(1) (1991), ended prior to five months before the earliest potential entitlement date) through the date on which the readjudication determination is made. SSA will not readjudicate the issue of disability for any period in which a class member received DWB.

    
    

  16. In readjudicating claims under this stipulation and order, SSA shall develop the record in accordance with applicable regulations and policy governing development of social security disability claims, 20 C.F.R. §§ 404.1512-.1518 (1991). Class members are required to cooperate with and provide information needed by SSA to adjudicate her or his claim, as provided in 20 C.F.R. §§ 404.704-.728 (1991). Class members may submit new evidence pertaining to the readjudication of their claim(s). SSA shall make all reasonable efforts to obtain its file(s) on claims that are readjudicated, unless a determination that a class member is eligible for DWB can be made based on the information already before SSA. If SSA is unable to obtain such files, it shall reconstruct the missing files to the best of its ability.

    
    

  17. If a class member who is entitled to seek relief under this stipulation and order satisfies ¶ 1 because her or his entitlement to DWB was terminated, SSA shall promptly afford her or him an opportunity to elect to receive interim benefits in accordance with 42 U.S.C. § 423 (g). SSA shall give priority to class membership determinations of potential class members whose entitlement to DWB was terminated and will make every effort to determine their class membership pursuant to ¶ 7 of this stipulation and order prior to other class members.

    
    

  18. Except as otherwise expressly provided in this stipulation and order, any class member who elects readjudication in accordance with this stipulation and order will have her or his claim readjudicated in accordance with the Social Security Act, the regulations promulgated thereunder, and the policies and procedures of SSA, including but not limited to the provisions pertaining to retroactive DWB and Medicare benefits and to exclusion of the unspent portion of retroactive benefits from Supplemental Security Income resource determinations.

    
    

  19. Class members shall retain all rights to seek further administrative and judicial review of determinations made on readjudication in accordance with 42 U.S.C. § 405 (g) and 20 C.F.R. pt. 404, subpt. J (1991).

    
    

    Timeframes for Readjudication

    
    

  20. SSA will issue instructions to the SSA offices for processing the readjudications required by this stipulation and order within 195 days of the date on which the court enters this stipulation and order. SSA will send an advance copy of such instructions to class counsel at least thirty (30) days before issuing them.

    
    

  21. SSA will make a good faith effort to complete the readjudication of the claims of each class member identified under ¶ 1 of this stipulation and order and not excluded under ¶ 2, who timely and properly requested readjudication in accordance with ¶ 6, within four years of the date on which the individual requested readjudication.

    
    

  22. The parties may, by written agreement, alter any time period specified in this stipulation and order. Such agreements need not be filed with the court, unless either party deems it appropriate to do so.

    
    

    Reports to Class Counsel

    
    

  23. SSA will use its best efforts to maintain, by a tracking system, a record of the following information:

    
    

    (a) the number of class notices sent;

    
    

    (b) the number of individuals responding to the notices;

    
    

    (c) the number of notices returned as deliverable;

    
    

    (d) the number of individuals screened for class membership and timeliness in accordance with ¶ 7 of this stipulation and order with a breakdown of the number determined not to be members of the class, and the number determined to members of the class;

    
    

    (e) the number of individuals who receive favorable DDS determinations;

    
    

    (f) the number of individuals who receive unfavorable DDS determinations.

    
    

    SSA will provide reports containing the information maintained in the tracking system to class counsel once every three (3) months commencing ninety (90) days after SSA mails the notices required under ¶ 5 of this stipulation and order. Upon request, SSA will provide class counsel with a reasonable random sample of individual files for decisions on class members' claims for inspection at a mutually agreed upon SSA office. Any quality assurance forms or other review forms which are in the file will be left in the file for inspection by class counsel. Class counsel must arrange an appointment for inspection of the files at a mutually agreed upon SSA field office; if class counsel seeks to postpone the appointment, the appointment can be postponed no more than thirty (30) days. Once SSA has substantially completed the readjudications required by this stipulation and order and placed the information identified at (a) through (f) of this paragraph into the tracking system, SSA shall so advise class counsel by providing them a final report.

    
    

    Dispute Resolution

    
    

  24. With respect to this action, the court shall retain jurisdiction only over matters relating to compliance with the terms of this stipulation and order.

    
    

  25. If either party seeks judicial resolution of any dispute arising under this stipulation and order, the time limits set forth in this stipulation and order which are affected thereby will be suspended, and will begin running anew only following resolution of the issue by the court.

    
    

    Precedent

    
    

  26. This stipulation and order is not and shall not be construed as an admission by the defendant of the truth of any allegation or the validity of any claim asserted in this action or of defendant's liability therein, nor is it a concession or an admission of any fault or omission in any act or failure to act, or any statement, written document or report heretofore issued, filed, or made by any defendant, nor shall this stipulation and order nor any papers related hereto, nor any of the terms hereof be offered or received in evidence or in any way referred to in any civil, criminal, or administrative action or proceeding other than such proceedings as may be necessary to consummate or enforce this stipulation and order, nor shall they be construed by anyone for any purpose whatsoever as an admission of any wrongdoing on the part of defendant.

    
    

    Final Judgment

    
    

  27. This stipulation and order resolves all claims by plaintiffs in this action, except those dismissed without prejudice under paragraph 28, that the Secretary applied an incorrect standard in evaluating DWB claims under 42 U.S.C. § 423(d)(2)(B) (repealed 1990).

    
    

  28. The claims of any individuals who were included in the class originally certified by the court, but who are not entitled to readjudication pursuant to ¶¶ 1 and 2 of this stipulation and order, will be dismissed without prejudice.

    
    

  29. The undersigned plaintiffs' counsel hereby represent, warrant, and guarantee that they are duly authorized to execute this stipulation and order on behalf of the plaintiffs, Louise BOZZI, et al., and all of the members of the class they represent. Defendant's counsel, by signing below, represent that they are authorized to stipulate to the settlement of issues in this action.

    
    

  30. This stipulation and order shall be effective only upon entry of the order by the court.

    
    

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

    
    

FOR PLAINTIFFS:   FOR DEFENDANT:
     
                            /s/                            Michael J. Rotko
Catherine C. Carr   United States Attorney
and James M. Lafferty    
Community Legal Services, Inc.   Joan K. Garner
Law Center South   Assistant United States Attorney
1226 South Broad Street   Deputy Chief, Civil Division
Philadelphia, Pennsylvania 19146    
     
                                /s/                         
    Marilyn S. May
    Assistant United States Attorney
    615 Chestnut Street
    Philadelphia, Pennsylvania, 19106
     
    Charlotte Hardnett
    Chief Counsel
     
  By:                                 /s/                           
    Dorothea J. Lundelius
    Division Chief
    3535 Market Street
    P.O. Box 13716
    Philadelphia, Pennsylvania, 19106
     
APPROVED AND ORDERED:    
     
                         /s/                               
John P. Fullam    
United States District Judge    
     
     
            April 26, 1993                     
Date    
IMPORTANT INFORMATION
     
NOTICE    
     
_____________________________________   DATE:  ___________________________
     
_____________________________________   CLAIM NUMBER:  __________________
     
_____________________________________   DOC:  ____________________________

READ CAREFULLY - PLEASE RESPOND TO THIS NOTICE WITHIN 120 DAYS


We are writing to you about your past claim for disabled widow's, widower's or surviving divorced spouse's disability benefits. Because of a court case called Bozzi v. Sullivan you may be able to get money from Social Security. Please read this letter carefully.


What You Need to Do


You can ask us to look at your claim again using our new rules. If you want us to do this, fill out the enclosed reply form and send it to us now. You have 120 days from the day you receive this letter to do it, but don't wait. If you don't send the reply form back, we may not be able to review your claim.


If you lose the form, you can come to a Social Security Office or write a letter to the address above, instead.


After we hear from you, we will check your records to see if you are entitled to review of your disability claim. We will send you a notice about what we decide.


If we were paying you disabled widow's, widower's or surviving divorced spouse's disability benefits in the past and we stopped your benefits, you may be eligible to have your benefits started again while we decide your case. If this applies to you, we will get in touch with you and tell you how you can get these monthly benefits.


If You Now Get Money from Social Security


Even if you now get money from Social Security, we may still owe you more. Return the reply form within 120 days to ask us to review your claim.


If You Have Any Questions


If you have any questions, you may contact 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 bring this letter with you. It will help us to answer your questions.


Additionally, if you have someone helping you with your claim, you should contact him/her. You may also ask for legal help by contacting a legal aid organization in your area, or by contacting the lawyers in the Bozzi case:


BOZZI COUNSEL
COMMUNITY LEGAL SERVICES, INC.
1226 South Broad Street
Philadelphia, Pennsylvania 19146-3119
Telephone No.:


Remember, if you want your claim reviewed, please complete the reply form and return it to us before 120 days is up. You cannot simply call us. You must complete the form, write us a letter, or come into our office before the 120 days is up.


ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL. FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR AL SEGURO SOCIAL, AL 1-800-772-1213 O IR A LA OFICINA DE SEGURO SOCIAL A LA DIRECION INDICADA EN LA PRIMERA PAGINA.















Enclosures:
Reply Form
Envelope

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration

____________________________________________________________________________
     

BOZZI v. SULLIVAN REPLY FORM

     
____________________________________________________________________________
     

IMPORTANT

RETURN THIS FORM WITHIN 120 DAYS TO REQUEST REVIEW OF YOUR CLAIM

     
____________________________________________________________________________
     
     

IF YOU WANT YOUR CLAIM REVIEWED, PLEASE SIGN AND DATE THIS FORM. YOU MUST ALSO FILL IN THE FOLLOWING INFORMATION AND RETURN THE FORM IN THE SELF-ADDRESSED, PRE-PAID ENVELOPE.


SIGNATURE  ____________________________         DATE  _______________________


Write the area code and the telephone number where we can call you.


(AREA CODE)  ____________                        TELEPHONE NUMBER  _________________________


[        ]    Check this block only if your address is different than shown above, and enter your correct address.


______________________________________________________________
ADDRESS (NUMBER AND STREET, APT. NO., P.O. BOX, OR RURAL ROUTE)

_____________________________________________________________
CITY and STATE ZIP CODE

[        ]    Check this block if you filed a Social Security Claim on a number that is different than the claim number shown above, and enter the other number.


________________________________
SOCIAL SECURITY CLAIM NUMBER

Date:

Claim Number:  ;

   

THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY WIDOW'S,

WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S DISABILITY CLAIM.

PLEASE READ IT CAREFULLY!

   
YOU ASKED US TO REVIEW YOUR CASE UNDER THE TERMS OF THE BOZZI V. SULLIVAN SETTLEMENT AGREMENT. WE HAVE LOOKED AT YOUR CASE AND DECIDED THAT YOU ARE NOT A BOZZI CLASS MEMBER. THIS MEANS THAT WE WILL NOT REVIEW OUR EARLIER DECISION TO DENY OR CEASE YOUR BENEFITS. THE REASON YOU ARE NOT A CLASS MEMBER UNDER THE BOZZI SETTLEMENT AGREEMENT IS CHECKED BELOW.
   

WHY YOU ARE NOT A CLASS MEMBER

   
YOU ARE NOT A BOZZI CLASS MEMBER BECAUSE:
   
[      ] YOU DID NOT RESIDE IN PENNSYLVANIA, DELAWARE, NEW JERSEY, OR THE VIRGIN ISLANDS WHEN YOUR CLAIM WAS DENIED.
   
[      ] YOU DID NOT RECEIVE A FINAL DECISION BETWEEN APRIL 1, 1983 AND JANUARY 1, 1991 ISSUED BY THE PENNSYLVANIA, DELAWARE, NEW JERSEY, OR THE VIRGIN LANDS DISABILITY DETERMINATION SERVICES (DDS) OR THE OFFICE OF HEARINGS AND APPEALS DENYING/CEASING DISABILITY BENEFITS
   
[      ] YOU DID NOT APPEAL THE DENIAL DECISION OR FILE A SECOND CLAIM BEFORE JANUARY 1, 1991 (DOES NOT APPLY IF DECISION WAS ISSUED AFTER MAY 5, 1990
   
[      ] YOUR CLAIM WAS DENIED/CEASED FOR SOME REASON OTHER THAN YOUR MEDICAL CONDITION. THAT REASON WAS ________________________.
   
[      ] YOU FILED A CLAIM FOR DISABILITY INSURANCE BENEFITS OR SUPPLEMENTAL SECURITY INCOME AT THE SAME TIME AS YOUR WIDOW'S, WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S CLAIM (OR LATER] AND THAT CLAIM WAS DENIED BECAUSE YOU WERE FOUND NOT DISABLED.
   
[      ] YOU FILED ANOTHER WIDOW'S, WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S CLAIM WHICH WAS DENIED AFTER JANJARY 1, 1991 BECAUSE YOU WERE FOUND NOT DISABLED.
   
[      ] YOUR CLAIM HAS ALREADY BEEN REVIEWED UNDER THE NEW STANDARD USED IN THE BOZZI SETTLEMENT AGREEMENT.
   
[      ] YOUR WIDOW'S, WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S CLAIM WAS REVIEWED BY A UNITED STATES DISTRICT COURT.
   
[      ] YOU HAVE ALREADY RECEIVED ALL THE BENEFITS YOU COULD RECEIVE UNDER THE BOZZI SETTLEMENT AGREEMENT.
   
[      ] YOU DID NOT RETURN YOUR REPLY FORM WITHIN 120 DAYS. IF YOU BELIEVE YOU HAD GOOD CAUSE FOR REQUESTING REVIEW LATE, CONTACT COMMUNITY LEGAL SERVICES AT THE ADDRESS LISTED BELOW.
   
[      ] 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 DISABLED. WE ARE DECIDING ONLY THAT YOU ARE NOT A BOZZI CLASS MEMBER.
     

IF YOU DISAGREE WITH THIS DETERMINATION

YOU MUST CONTACT:     BOZZI COUNSEL
    COMMUNITY LEGAL SERVICES, INC.
    1226 SOUTH BROAD STREET
    PHILADELPHIA, PENNSYLVANIA 19146-3119
    TELEPHONE NO.
    -AND-
     
THE BOZZI LAWYERS CAN ASSIST YOU AND, IF APPROPRIATE, NOTIFY SOCIAL SECURITY THAT YOU DISAGREE WITH THIS DETERMINATION. BECAUSE THE LAWYERS MUST ACT WITHIN 60 DAYS, PLEASE CONTACT THEM IMMEDIATELY TO PROTECT YOUR RIGHTS.
     
ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL. FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR A SU OFICINA DE SEGURO SOCIAL PARA UNA EXPLICACION.
____________________________________________________________________________

1 Donna E. Shalala succeeded Louis W. Sullivan, M.D., as Secretary of Health and Human Services on January 22, 1993. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Donna E. Shalala should be substituted, therefore, for Louis W. Sullivan, M.D., as to the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).


Attachment 2. - Bozzi COURT CASE FLAG/ALERT

 

TITLE: II

 

CATEGORY:

 
REVIEW OFFICE PSC MFT DOC ALERT DATE
           FUN NAME
 
SSN OR HUN
000-00-0000
RESP DTE TOE
FOLDER LOCATION INFORMATION    
TITLE CFL CFL DATE ACN        PAYEE ADDRESS
 

SCREENING OFFICE ADDRESS:

DHHS, SSA
MID-ATLANTIC PROGRAM SERVICE CENTER
P.O. BOX 2857
PHILADELPHIA, PA 19122-9973

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

OFFICE OF HEARINGS AND APPEALS
OFFICE OF CIVIL ACTIONS, DIVISION II
ONE SKYLINE TOWER, SUITE 800
5107 LEESBURG PIKE
FALLS CHURCH, VA 22041-3200

ATTN: Bozzi SCREENING UNIT

 
     
     
CURRENT PAY:     _______YES _______NO    

Attachment 3. - Route Slip or Case Flag for Screening


Bozzi Class Action Case


 SCREENING NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

This claimant may be a Bozzi 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 5-4-42 for additional information and instructions.

  TO:

__________________________________
__________________________________
__________________________________
__________________________________

Attachment 4. - Bozzi SCREENING SHEET

CLASS ACTION CODE: B 2

 

1. WAGE EARNER'S SSN

    ___ ___ ___ ___ - ___ ___ - ___ ___ ___ __

 

BIC

___ ___

2. CLAIMANT'S NAME (FIRST, MI, LAST)

 

 

3. SCREENING DATE (MONTH, DAY, YEAR)

     ___ ___ - ___ ___ - ___ ___

 

4. a. SCREENING RESULT

 

    ___MEMBER (J) ___NONMEMBER (F)

 

b. SCREENOUT CODE

    ___ ___(see item 16 for screenout codes)

 

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

Yes___No___

(if No go to 16)

6. Was a determination/decision issued on this claim at any administrative level by a DDS within the Third Circuit (Delaware, New Jersey, Pennsylvania or Virgin Islands) or OHA office servicing residents of the Third Circuit between April 1, 1983, and December 31, 1990, inclusive, and did this become the "final decision of the Secretary?

(NOTE: Although not the "final decision of the Secretary, an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such denial controls for class membership screening purposes.)

Yes___No___

(if No go to 16)

7.Was a decision issued at the reconsideration level or above,by the DDS or OHA denying/ceasing entitlement to DWB between April 1, 1983 and May 5, 1990, inclusive; or

Did the individual receive decisions on two or more separate claims at any level, denying/ceasing entitlement to DWB between April 1, 1983 and December 31, 1990, inclusive; or

Did the individual receive a less than fully favorable DWB decision at any administrative level between May 6, 1990, and December 31, 1990, inclusive?

Yes___No___

(if No go to 16)

8. Did the individual reside in Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time the determination/decision described in question No. 7 was issued?

Yes___No___

(if No go to 16)

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

Yes___No___

(if No go to 16)

10. Did the individual receive a subsequent fully favorable DWB determination/decision which established entitlement and paid benefits commencing with the earliest possible month of entitlement in the potential Bozzi claim(s)?

Yes___No___

(if No go to 16)

11. Did the individual file a claim for DWB on or after January 1, 1991, which was denied administratively on the round that he or she did not meet the disability standard set forth in § 5103 of OBRA 90, and had no claim for entitlement to DWB for any month(s) before January 1991?

Yes___No___

(if No go to 16)

12. Did the individual receive a denial/cessation decision under SSR 91-3p?

Yes___No___

(if No go to 16)

13. Did the individual file claim(s) for title XVI or title II worker's disability covering the entire timeframe at issue in the potential Bozzi claim(s), concurrently with or after all DWB claims; and was the final administrative or court denial/cessation determination made on these claim(s) on the spouse(s) or the widow's own account number, issued at steps 1, 2, 4 or 5 of the sequential evaluation process?

Yes___No___

(if No go to 16)

14. Did the individual receive a final adverse judgment from a Federal district court or appellate court on the potential class member claim(s)?

Yes___No___

(if No go to 16)

15. Has the individual been determined to be a member of another DWB class action?

Yes___No___

(if No go to 16)

16. The individual is not a class member entitled to Bozzi relief. Enter the screenout code in item 4 b. as follows:

Enter 05 if question 5 was answered "NO".
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".
Enter 15 if question 15 was answered "YES".

 

 

No other screenout code entry is appropriate.

17. 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 indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC).

_______________    ________________    ________________    ________________;

PRINT SCREENER'S NAME:

COMPONENT AND PHONE NO.

 

DATE

 

SIGNATURE:

 

   

BOZZI SCREENING SHEET INSTRUCTIONS


COMPLETE ONLY ONE SCREENING SHEET EVEN IF THE CLAIMANT RECEIVED MULTIPLE DETERMINATIONS/DECISIONS WITHIN THE CLASS DATES. HOWEVER, THE SCREENING SHEET PROVISIONS MUST BE CONSIDERED SEPARATELY FOR EACH CLAIM. A CLASS MEMBER WHO RECEIVED MULTIPLE DETERMINATIONS/DECISIONS IS ELIGIBLE FOR READJUDICATION ONLY ON THOSE CLAIMS MEETING ALL CLASS MEMBERSHIP REQUIREMENTS.


Questions 1 - 4


Fill in wage earner's SSN, widow(er)'s or surviving divorced spouse's name, and current date. Also, enter the member/non-member information, and the screenout code, if appropriate, once screening has been completed.


Question 5


Screen for claim type. If question is answered “No,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 6


Screen for date of decision, not application. Individuals are potential class members if they received a denial, cessation or less than fully favorable decision (e.g., later onset, closed period, payment of benefits beginning January 1, 1991, under OBRA despite an earlier onset) between April 1, 1983, and December 31, 1990, inclusive, which became the final decision of the Secretary. (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.) If the answer to question 6 is “No,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 7


This question provides three timeframes for consideration of class membership. If a claimant received only one determination or decision during the class period, and that action was dated between April 1, 1983 and May 5, 1990, inclusive, the claimant is a potential class member only when the action occurred at the reconsideration level or above. However, if a claimant received only one determination or decision and that action was dated between May 6, 1990, and December 31, 1990, inclusive, the claimant is a potential class member when the action occurred at any administrative level. If a claimant filed two or more claims on which he or she received medical determinations or decisions, those actions may have occurred at any time within the class period and at any level. If the answer to question 7 is “No,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a


Question 8


Screen for residency for each claim. The DDS determination (SSA-831/833) or OHA decision must be dated on or after April 1, 1983, but no later than December 31, 1990, to determine residency. If question is answered “No,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 9


To answer this question look for non-medical denial codes in item 22 of the SSA-831-U3 or SSA-833-U3, or on the SSA-3687-U2 or the SSA-3428-U2. The non-medical denial codes are: N1, N2, L1, L2, M7, M8. (For a complete list of DWB denial codes see POMS SM 00380.270.C.) For cases previously decided at the OHA level, the answer can be found in the Administrative Law Judge or Appeals Council decision. The last administrative determination or decision in each and every claim must have been on a non-medical basis for this screen-out to apply. If the answer to question 9 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 10


This class relief exception applies only if the individual has received all benefits to which he or she could be entitled based on the potential class member claim. Review the file to determine whether benefits were subsequently allowed or continued from the earliest alleged onset date, cessation date, or control date of a claim decided within the timeframes for class membership (April 1, 1983, through December 31, 1990, inclusive). The control date is the date by which disability needs to be established to permit a fully favorable determination or decision, based on such factors as the claimant's age, retroactivity of the application, the alleged onset date, etc. The control date is either the alleged onset date, the ending date of the prescribed period or five full months before the first possible month of entitlement. The allowance or continuance could have been either on the same claim or on a subsequent application. Be sure to consider earlier eligibility for Medicare and retroactive benefits during the Bozzi timeframe when determining if the subsequent decision is fully favorable. If the answer to question 10 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 11


Check the file(s) to determine if claimant's potential class member claim was filed on or after January 1, 1991. If the answer to question 11 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 12


Check file(s) to determine if the claimant received a decision under SSR 91-3p which covered the earliest possible entitlement on the potential Bozzi claim(s). If the answer to question 12 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 13


Check file(s) and queries (e.g., AACT, SSID) for the claimant's SSN to determine whether the claimant received a denial/cessation decision on a concurrent claim for SSI or worker's disability which covered the timeframe at issue in the potential Bozzi claim. If so, review the file(s) to determine whether the claimant's residual functional capacity (RFC) was assessed for the entire timeframe at issue in the potential Bozzi claim(s). The following codes in block 22 of the SSA-831-U3 and SSA-833-U3 indicate denial/cessation on the basis that the claimant retained the RFC to perform SGA: title II denials (H1, H2, J1, J2, E3 and E4) and title XVI denials (N31, N32, N42, N43). For cases previously decided at the OHA level, review the Administrative Law Judge or Appeals Council decision to determine if the claimant's RFC was assessed. If the answer to question 12 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 14


Check file(s) and OHAQ query to determine whether a Federal district or circuit court has rendered a final judgment on the potential class member claim. If necessary, OHA screeners should contact the Office of Civil Actions, Division II (if not the screening component), to determine the status of any complaint filed. If the answer to question 14 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Question 15


Check file(s) for screening sheets or any other information indicating that the claimant may be a member of another DWB class action, e.g., Begley, Hill, Martel. If necessary, OHA screeners should contact the Division of Litigation Analysis and Implementation to coordinate with the ODCP Litigation Staff concerning class member data maintained on the Civil Action Tracking System. If the answer to question 15 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 16 on the screening sheet and check the “non-member” block in item 4.a.


Processing Class Member Determinations


  1. Check the “Member” block in item 4.a. of the screening sheet.

    
    

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

    
    

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

    
    

  4. Retain the original screening sheet in the claim file. 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: Bozzi Coordinator

    
    
  5. For cessation cases, follow HALLEX Temporary Instruction (TI) 5-4-42, Parts VI. B. and D. or E.

    
    

  6. For initial entitlement cases, follow TI 5-4-42, Parts VI. D. or E.

    
    

Processing Non-class Member Determinations


  1. Check the “Non-member” block in item 4.a. of the screening sheet.

    
    

  2. Follow items b. - d. above.

    
    

  3. Prepare notice and forward the claim file(s) as indicated in TI 5-4-42, Part V. B. 3.

    
    

Attachment 5. - Route Slip for Routing Class Member Alerts and Prior Claim File(s) to ODIO and 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


BOZZI 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-Atlantic Program Service Center for screening and possible readjudication. SEE POMS DI 42534.010 OR DI 12534.005A.3.

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

FROM:

      Office of Hearings and Appeals

SUITE / BUILDING

 

PHONE NUMBER

_______________

 

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

Attachment 6. - Bozzi 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 WIDOW'S,
WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S DISABILITY CLAIM.

PLEASE READ IT CAREFULLY!


You asked us to review your case under the terms of the Bozzi v. Shalala settlement agreement. We have looked at your case and decided that you are not a Bozzi class member. This means that we will not review our earlier decision to deny or cease your benefits. The reason you are not a class member under the Bozzi settlement agreement is checked below.


WHY YOU ARE NOT A CLASS MEMBER


You are not a Bozzi class member because:

___

You did not reside in Pennsylvania, Delaware, New Jersey, or the Virgin Islands when your claim was denied.

___

You did not receive a final decision between April 1, 1983 and January 1, 1991 issued by the Pennsylvania, Delaware, New Jersey, or the Virgin Islands Disability Determination Services (DDS) or the Office of Hearings and Appeals denying/ceasing disability benefits.

___

You did not appeal the denial decision or file a second claim before January 1, 1991 (does not apply if decision was issued after May 5, 1990).

___

Your claim was denied/ceased for some reason other than your medical condition. That reason was __________________________________________________________

__________________________________________________________

___

You filed a claim for disability insurance benefits or supplemental security income at the same time as your widow's, widower's or surviving divorced spouse's claim [or later] and that claim was denied because you were found not disabled.

 

___

You filed another widow's, widower's or surviving divorced spouse's claim which was denied after January 1, 1991 because you were found not disabled.

___

Your claim has already been reviewed under the new standard used in the Bozzi settlement agreement.

___

Your widow's, widower's or surviving divorced spouse's claim was reviewed by a United States District Court.

___

You have already received all the benefits you could receive under the Bozzi settlement agreement.

___

You did not return your reply form within 120 days. If you believe you had good cause for requesting review late, contact Community Legal Services at the address listed below.

___ 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 disabled. We are deciding only that you are not a Bozzi class member.


IF YOU DISAGREE WITH THIS DETERMINATION

You must contact:

Bozzi Counsel Community Legal Services, Inc. 1226 South Broad Street Philadelphia, Pennsylvania 19146-3119

Telephone No.: 1-800-88 WIDOW                        (1-800-889-4369)

-AND-

The Bozzi lawyers can assist you and, if appropriate, notify Social Security that you disagree with this determination. Because the lawyers must act within 60 days, please contact them immediately to protect your rights.


ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL. FAVOR DE PEDIR QUE SE LO TRADUZCAN INMEDIATAMENTE Y DE LLAMAR A SU OFICINA DE SEGURO SOCIAL PARA UNA EXPLICACION.


NOTE:

Make sure the address and telephone number of the servicing Social Security field office are inserted at the top of this notice. (See Part V. B. 3. a. for non-class member processing instructions.)


cc: Bozzi Counsel
Community Legal Service, Inc.


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

TO:

1. SSA District Office

INITIALS DATE
2. 801 Arch Street    
3. Second Floor    
4. Philadelphia, PA 19107    
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
  BOZZI CASE
Claimant: ___________________________    
       
SSN: ___________________________    

We have determined that this claimant is not a Bozzi class member. (See screening sheet and copy of non-class membership notice in the attached claim file(s).) Class counsel has requested to review the attached claim file. SEE POMS DI 12534.010


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

FROM:

       Office of Hearings and Appeals

SUITE / BUILDING

 

PHONE NUMBER

_______________

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


Attachment 8. - Text for Notice of Revised Class Membership


In an earlier letter that we sent you, we said that you were not a member of the Bozzi, et al. v. Shalala class action. After reviewing all of the facts, we have decided that you are a class member. Therefore, we will review your claim using the standards agreed upon by the parties and approved by the court under the Bozzi Stipulation and Order.


We have received a lot of requests for review and it may take several months before we look at your claim file. When we start the review, we will ask you for any additional evidence that you want to give us.


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


If you have any questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at XXX-XXXX. We can answer most questions over the phone. You can also write or visit any Social Security office. The office that serves your area is located at:


District or Branch Office
Address
City, ST ZIP


If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly.


If you have someone helping you with your claim, you should contact him or her. You may also ask for legal help by contacting a legal aid organization in your area, or by contacting the lawyers in the Bozzi case:


Bozzi Counsel Community Legal Services, Inc.
1226 South Broad Street
Philadelphia, PA 19146-3119
Telephone: 1-800-88 WIDOW (1-800-889-4369)


Attachment 9. - Bozzi Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Expired)


Bozzi Class Action Case


READJUDICATION NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

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


[Send folders to the appropriate DDS.]


Attachment 10. - Bozzi Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Has Not Expired)


Bozzi Class Action Case


READJUDICATION NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

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


[Send folders to the appropriate DDS.]


NOTE:

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


Attachment 11. - ALJ Dismissal Order to DDS


DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

   
IN THE CASE OF CLAIM FOR
__________________________ ___________________________
   
__________________________ ___________________________

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

In accordance with the Stipulation and Order negotiated by the parties and approved by the United States District Court for the Eastern District of Pennsylvania in the case of Bozzi v. Shalala, 90 Civ. 2580 (E.D. Pennsylvania, May 26, 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 Bozzi class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the 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 Disability Determination Service which will conduct the Bozzi 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 12. - Notice Transmitting ALJ Order of Dismissal


NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip


Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the 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 Bozzi class member claim back to the Disability Determination Service for further processing. The enclosed order explains why.


The Next Action on Your Claim


The Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the 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 13. - Bozzi Class Member Flag for HO Use (DDS Readjudication)


 Bozzi Class Action Case


READJUDICATION NECESSARY

Claimant's Name: ___________________________    
       
SSN: ___________________________    

This claimant is a Bozzi class member. The attached Bozzi 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 Bozzi readjudication action.


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

 

(enter address of appropriate DDS)
__________________________________
__________________________________
__________________________________
__________________________________

(Destination code: ___)

Attachment 14. - Appeals Council Remand to DDS

DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS

 ORDER OF REMAND

   
IN THE CASE OF CLAIM FOR
__________________________ ___________________________
   
__________________________ ___________________________

On ___________, the claimant filed a request for review by the Appeals Council on the issues raised by ((his/her) application dated ___________.) OR (the Administrative Law Judge's dismissal action.) The claimant has also been identified as a member of the Bozzi class action and is entitled to have the final administrative denial of (his/her) application(s) dated ___________ readjudicated by the Disability Determination Service under the terms of the May 26, 1993 Stipulation and Order.


Accordingly, the Appeals Council grants the claimant's request for review, vacates the Administrative Law Judge's (decision/dismissal action) and remands this case to the Disability Determination Service. The Disability Determination Service will readjudicate, through the date of the Administrative Law Judge's decision or, if the Administrative Law Judge dismissed, through the date of reconsideration, the issues raised by the applications. The Disability Determination Service will issue one determination covering (both or all) claims. If the Disability Determination Service does not issue a fully favorable determination, it will notify the claimant of the right to request a hearing before an Administrative Law Judge.

   

_____________________________
Administrative Appeals Judge

DATE:


Notes

 
 [1]

Hereinafter (except for use in Part IV. below), 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. (See 20 CFR §§ 404.1505(a) and 404.1511(a).)


[1]  Hereinafter (except for use in Part IV. below), 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. (See 20 CFR §§ 404.1505(a) and 404.1511(a).)