I-5-4-16-A.Wilson, et al. v. Sullivan

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Reconciliation of Implementation
IX Inquiries
Attachment 1 Wilson v. Sullivan Stipulation and Order Filed October 22, 1991.
Attachment 2 WILSON COURT CASE FLAG/ALERT
Attachment 3 Route Slip or Case Flag for Screening
Attachment 4 Wilson Screening Sheet
Attachment 5 Route Slip for Routing Class Member Alert (and Prior Claim Folder(s)) to ODIO or PSC — OHA No Longer Has Current Claim
Attachment 6 Non-Class Membership Notice
Attachment 7 Route Slip for Non-Class Membership Cases
Attachment 8 Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.”
Attachment 9 Wilson Class Member Flag for Headquarters Use (DDS Readjudication)
Attachment 10 ALJ Dismissal to DDS
Attachment 11 Notice Transmitting ALJ Order of Dismissal
Attachment 12 Wilson Class Member Flag for Headquarters Use (DDS Readjudication)

ISSUED: July 9, 1993; REVISED: November 20, 1996

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the October 22, 1991 Stipulation and Order of the United States District Court for the District of New Jersey in the Wilson, et al. v. Sullivan class action involving the “not severe” impairment issue.

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

II. Background

On October 9, 1985, the United States District Court for the District of New Jersey certified a statewide class challenging the Secretary's regulations, policies and practices for evaluating disability claims at step two of the sequential evaluation.

On October 28, 1985, the court found that Social Security Ruling (SSR) 85-28 represented a policy of constructive nonacquiescence and granted plaintiffs' motion for a preliminary injunction enjoining the Secretary from applying the severity regulation to present and future claims. In reaffirming its class certification order, the court waived the administrative exhaustion requirement for class members who had active claims pending on or after July 26, 1984, and reserved the right to broaden or narrow the scope of the class in the future. On November 14, 1985, the court issued a final order with detailed implementation instructions and a supplemental clarifying opinion.

On July 14, 1986, the United States Court of Appeals for the Third Circuit affirmed the district court's decision to issue a preliminary injunction. Moreover, the appellate court found that the district court did not abuse its discretion in establishing timetables for effecting class relief, but emphasized that the injunction applied only to claims of New Jersey residents and remanded the case to the district court for the limited purpose of making this clarification. The circuit court declined to rule on the Secretary's appeal of the exhaustion issue on jurisdictional grounds.

On June 15, 1987, the Supreme Court granted the Secretary's petition for a writ of certiorari, vacated the judgment of the Court of Appeals and remanded for further consideration in light of Bowen v. Yuckert, 482 U.S. 137 (1987). On August 27, 1987, the Court of Appeals remanded to the district court for reconsideration in light of Yuckert, but refused to vacate the preliminary injunction. On November 5, 1987, the district court ordered that the preliminary injunction remain in force.

On March 31, 1989, after both parties filed motions for summary judgment, the district court vacated its injunction and partially granted the Secretary's motion for summary judgment.

On March 19, 1990, as amended March 29, 1990, the district court held that the Secretary's pre-1984 policy of not considering the combined effect of an individual's multiple “not severe” impairments violated the Social Security Act. The court found that, although the policy was “openly applied” after the promulgation of regulations on August 20, 1980, the Secretary followed an illegal, clandestine, non-combination policy between December 1978 and August 20, 1980. Therefore, the court expanded the plaintiff class to include those claimants whose benefits were denied between December 1, 1978, and August 20, 1980, at step two of the sequential evaluation. The court also waived exhaustion of administrative remedies and tolled the 60-day statute of limitations requirement embodied in § 205(g) of the Social Security Act for class members from the filing date of the complaint and for the December 1, 1978 through August 20, 1980 retroactive period.

On October 22, 1991, the district court approved the Stipulation of Settlement and Consent Order of Dismissal setting forth the definition of the subclasses and the terms for the implementation of relief (Attachment 1).

III. Guiding Principles

Under Wilson, the Secretary will redetermine the claims of those persons who (1) respond to notice or to the public information campaign informing them of the opportunity for review and (2) are determined to be class members after screening (see Part V. below). Regardless of the claimant's current state of residence, the Northeastern Program Service Center (NEPSC) will, in most cases, screen for class membership and the New Jersey Disability Determination Service (DDS) will perform the court-order readjudications, regardless of the level of administrative review that last decided the claim.

EXCEPTION:

The DDS servicing the claimant's current address will screen for class membership and perform the readjudication if a face-to-face review is appropriate; i.e., cessation cases.

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

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

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

IV. Definition of Class

Except as noted below, for purposes of implementing the October 22, 1991 order, the Wilson class includes two subclasses of persons eligible for relief.

A. A “Non-Combination” Subclass

The “non-combination” subclass includes persons who between December 1, 1978, and August 20, 1980, inclusive:

  1. received a final administrative decision denying or terminating their title II or title XVI disability benefits based on a finding of “no severe” impairment (i.e., a step two denial) under the Secretary's policy not to consider impairments in combination as set forth in Disability Insurance State Manual 321B;

  2. alleged the existence of more than one impairment;

  3. did not have their multiple impairments considered in combination;

  4. resided in the State of New Jersey at the time of the final administrative decision; and

  5. did not appeal to or have a case pending in federal court

B. A “Non-Severe” Subclass

The “non-severe” subclass includes persons who between August 7, 1983, and July 25, 1984, inclusive:

  1. received a final administrative decision denying or terminating their title II or XVI disability benefits based on a finding of “no severe” impairment, i.e., a step two denial;

  2. resided in the State of New Jersey at the time of the final administrative decision; and

  3. did not administratively or judicially appeal their step two denial or cessation after July 25, 1984

EXCEPTION:

A person is not a class member if:

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

(2) for the non-severe subclass, the last administrative denial or termination the individual received on the Wilson claim was issued after July 25, 1984; or

(3) the individual had a subsequent claim denied after July 25, 1984, and the onset date alleged in connection with the subsequent claim is on or before the onset date alleged in connection with the potential Wilson claim.

V. Determination of Class Membership and Preadjudication Actions

A. Non-OHA Actions

1. Notification

Potential class members will be notified by written notice or by a public information campaign.

(a) SSA will notify potential non-combination subclass members by displaying bilingual posters in English and Spanish in all SSA field offices serving residents of New Jersey, and by issuing a one-time press release to New Jersey, New York and Philadelphia newspapers advising potential non-combination class members of their rights under the settlement agreement. SSA also will send up to 75 posters to New Jersey state and county public service offices identified by plaintiffs' counsel. Furthermore, SSA will request public service announcements on radio and television stations that, in SSA's determination, serve New Jersey residents.

(b) SSA will identify potential non-severe subclass members by computer run, and send individual notice by first-class mail. Individuals will be encouraged to respond within 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Wilson Stipulation and Order. Notices returned as undeliverable will not be sent a second time. In addition to the one-time mailing, the one-time press release and public service announcements referred to above will include notice to potential non-severe subclass members of their rights under the settlement agreement. However, the potential non-severe subclass members will not be included in the poster notice.

All claimants seeking relief under the Wilson class action must identify themselves as potential class members by February 28, 1994.

The Office of Disability and International Operations (ODIO) and the Program Service Centers (PSCs) will send all untimely responses to the servicing Social Security field office (i.e., district office or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411.

2. Alert and Folder Retrieval Process

Litigation Staff in the Office of the Deputy Commissioner for Programs will track all response forms and send alerts to ODIO and the PSCs to use in locating claim folders. See Attachment 2 for a sample Wilson alert.

In most instances, ODIO or the PSCs will associate the Wilson alert and the claimant's response form with the claim file(s) and forward the file(s) to the NEPSC for screening and to the New Jersey DDS for readjudication.

3. Alerts Sent to OHA

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

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

Office of Hearings and Appeals
Office of Appellate Operations
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200

NOTE:

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

4. Folder Reconstruction

Generally, ODIO or the PSCs will initiate any necessary reconstruction of prior claim files through the servicing FO. Consequently, OHA requests for reconstruction of potential Wilson class member cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the claim would not confer class membership. However, if it becomes necessary for OHA to request reconstruction, the OHA component (the HO or the OAO branch) will forward the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) to the servicing FO along with documentation of attempts to locate the file and a covering memorandum requesting that the reconstructed file be forwarded to OHA. HOs will route any reconstruction requests directly to the servicing FOs. The OAO branch will route requests to the servicing FO and will send a copy to the OAO Class Action Coordinator. For Civil Action Tracking System purposes, HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:

Litigation Staff
Office of Policy and Planning
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 2123
ATTN: Wilson Coordinator

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

5. Class Membership Denials

The Camden, New Jersey district office, located at Mt. Ephraim Office Center, 2600 Mt. Ephraim Avenue, Camden, New Jersey 08104-3210, will hold all non-class member claim files pending review by class counsel. Upon review of the files, class counsel will contact the Office of the General Counsel (OGC) directly to resolve class membership disputes.

B. OHA Actions

1. Pre-Screening Actions

a. Current Claim in OHA

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

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

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

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

b. Current Claim Pending in Court

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

2. Screening

a. General Instructions

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

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

  • Follow all instructions on the screening sheet and the screening sheet instructions;

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

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

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

    ATTN: Wilson Coordinator

    NOTE:

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

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

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

NOTE:

Final determinations or decisions made after July 25, 1984, on a claim filed by a potential Wilson class member, may adjudicate the same timeframe covered by the Wilson claim. Instead of applying the doctrine of administrative res judicata to the Wilson claim, these claims should be denied class membership.

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

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

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

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

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

3. Post-Screening Actions

a. Non-Class Member Cases

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

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

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

  • send a copy of the notice to:

    Richard E. Yaskin, Esq.
    Evans & Yaskin
    Village Greene East - Suite 8
    152 Himmelein Road
    Medford, New Jersey 08055
    ATTN: WilsonClass Action Unit
  • send the non-class member claim folder(s) to the Camden, New Jersey district office using the pre-addressed route slip in Attachment 7.

    NOTE:

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

  • if SSA, through OGC, resolves the dispute in the claimant's favor: 1) the original screening component or Litigation Staff will prepare a revised screening sheet; 2) OHA jurisdiction cases will proceed in accordance with Part VI. below; 3) the rescreening component will notify DLAI, at the address in Part V.B.2. above, of the revised screening determination by forwarding a copy of the revised screening sheet to DLAI; and 4) DLAI will coordinate with the OAO Class Action Coordinator, as necessary. OGC will notify class counsel of the reversal of class membership, and class counsel will notify the claimant.

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, the screening component will proceed with processing and adjudication in accordance with the instructions in Part VI. below.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

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

B. OHA Adjudication of Class Member Claims

The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Wilson 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 Wilson class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.

1. Type of Review and Period To Be Considered

  1. Pursuant to the Wilson order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a redetermination. The readjudication shall be a de novo re-evaluation of the class member's eligibility for benefits based on all evidence in his or her file including newly obtained evidence relevant to the period that was at issue in the administrative determination(s)/decision(s) that forms the basis of the Wilson class membership. Evidence will be reviewed as follows:

    • Title II denial cases - from the twelfth month prior to the date of the original application, or the date of the earliest alleged onset of disability, whichever is later, through the date of the latest administrative decision resulting in class membership;

    • Title XVI denial cases - from the original date of application for the earliest Wilson claim through the date of the latest administrative decision resulting in class membership; and

    • Title II/title XVI cessation cases - from the date of termination of disability benefits through the date of the latest administrative decision resulting in class membership.

  2. If the readjudication results in a favorable decision, the adjudicator will determine, under the medical improvement standard, whether the class member's disability has continued through the date of the readjudication (or through the date of onset of disability established in any allowance on a subsequent application).

  3. If the evidence establishes that disability began only at some point after the administrative determination(s)/decision(s) that forms the basis of the Wilson class membership, the class member must file a new application to establish eligibility. Use the standards in 20 CFR §§ 404.621 and 416.335 in determining whether a new application is timely filed

2. Step Two of the Sequential Evaluation

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

3. Class Member Is Deceased

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

C. Claim at OHA but No Current Action Pending

If the claim file (either a class member or a subsequent claim) is located in OHA Headquarters, but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO will associate the alert with the file and screen for class membership. (See Part V.B.3., above, for non-class member processing instructions.)

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

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

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

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

The respective OAO components will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the folder(s) to the New Jersey DDS (see Part III. above) in a timely manner.

D. 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 Wilson 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 Scheduled or Held and all Remand Cases

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

EXCEPTIONS:

The ALJ will not consolidate the claims if:

  • the current claim and the Wilson claim do not have any common issues, 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.D.2.c. below. If the claims are not consolidated, follow Part VI.D.2.d. below.

b. Hearing Not Scheduled

Except as noted below, if a Wilson 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 Wilson claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Wilson claim and the current claim to the New Jersey DDS for further action (see Part VI.D.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 issues raised by the application that makes the claimant a Wilson class member, the ALJ will consolidate the claims.

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

c. Action if Claims Are Consolidated

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

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

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

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

  • send copies of the consolidated hearing decision to both:

    Office of Hearings and Appeals
    Division of Litigation Analysis and
    Implementation
    5107 Leesburg Pike
    Suite 702
    Falls Church, VA 22014-3255

    ATTN: Wilson Coordinator
    Suite 702

    and

    Litigation Staff
    Office of Policy and Planning
    3-K-26 Operations Building
    Baltimore, Maryland 21235

    ATTN: Wilson Coordinator

d. Action if Claims Are Not Consolidated

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

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

  • send both the Wilson claim and the current claim to the New Jersey DDS for DDS consolidation and further action.

If the ALJ decides not to consolidate the current claim with the Wilson 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 Wilson claim for DDS review using Attachment 12; immediately route it to the New Jersey DDS for adjudication; and retain a copy of Attachment 12 in the current claim file; and

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

3. Current Claim Pending at the Appeals Council

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

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

This usually will occur when the current claim duplicates the Wilson review claim, i.e., the Wilson claim raises an issue of disability for a period covered by the current claim, and the current claim has been adjudicated in accordance with the provisions of SSR 85-28. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action.

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

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

This usually will occur when the current claim does not duplicate the Wilson claim, e.g., the Wilson claim raises an issue of potential entitlement to disability benefits for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim in accordance with the provisions of SSR 85-28.

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

c. Appeals Council Intends To Issue a Favorable Decision on the Current Claim — No Wilson 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 Wilson class member, the Appeals Council will proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Wilson claim, and issue a decision that adjudicates both applications.

The Appeals Council's decision will indicate clearly that the Appeals Council considered the Wilson claim pursuant to the Wilson court order. For class action reporting purposes, the Appeals Council will send copies of its decision to the Wilson coordinators listed in Part VI.D.2.c. above.

d. Appeals Council Intends To Issue a Favorable Decision on the Current Claim —Wilson 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 Wilson claim, the Appeals Council will proceed with its intended action. The Appeals Council will request the effectuating component to forward the claim folders to the New Jersey 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: “Wilson court case review needed — following effectuation forward the attached combined folders to the Division of Disability Determinations, Department of Labor, P.O Box 649, Newark, New Jersey 07101.”

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

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

EXCEPTIONS:

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

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

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

If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Wilson class member claim to the New Jersey DDS for separate review. The case flag in Attachment 9 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Wilson class member claim for separate processing.

E. Copy Requirements

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

VII. Case Coding

HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI. above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.”

To identify class member cases in HOTS, HO personnel will code “WL” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Reconciliation of Implementation

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

IX. Inquiries

HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022.

Attachment 1. Wilson v. Sullivan Stipulation and Order Filed October 22, 1991.

[DATE FILED 10/22/1991]

MICHAEL CHERTOFF
United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102
(201) 621-2921

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN WILSON, and MARY CHRISTOPHER, on
their own behalf and on behalf of
others similary situated

Plaintiffs,

 

v.

Hon. Stanley Brotman
Civil Action
No. 83-3771

LOUIS W. SULLIVAN, M.D.,
SECRETARY OF HEALTH,
AND HUMAN SERVICES,

Defendant.

 

STIPULATION OF SETTLEMENT
AND CONSENT ORDER OF DISMISSAL

IT IS HEREBY STIPULATED by plaintiffs and defendant, through their respective counsel, that the following terms are agreed to in full settlement of the above-captioned civil action:

  1. This settlement shall apply to:

    1. a non-combination subclass which includes:

      those persons whose permanent residence was in the State of New Jersey at the time of their most recent administrative decision prior to 8/20/80 denying or terminating their Social Security disability benefits or Supplemental Social Security Income disability payments under the Secretary's policy not to consider impairments in combination as set forth in Disability Insurance State Manual 321B who a) alleged the existence of more than one impairment, b) whose impairments were not considered in combination, and c) who between December 1, 1978 and August 20, 1980:

      1. had received a final decision of the Secretary and either did not appeal to federal court or had a pending case challenging the denial of benefits; or

      2. had not exhausted administrative remedies but had received an unfavorable result due to the application of the Secretary's policy not to consider impairments in combination, including all persons denied as a result of the Secretary's application of the policy not to consider impairments in combination who had not taken an appeal to the federal courts.

      This subclass includes only claimants who were denied at Step Two (non-severe) of the sequential evaluation procedure (as set forth in 20 C.F.R. §§404.1520, 416.920). The “final decision” in subparagraph (a) means the decision of the Secretary which is subject to judicial review as set forth in 42 U.S.C. §405(g).

    2. a “non-severe” subclass, which is defined as those persons whose permanent residence was in the State of New Jersey at the time they received a denial or cessation at Step Two of the sequential evaluation process, which was issued between August 7, 1983 and July 25, 1984. This subclass shall not include those persons who administratively or judicially appealed their Step 2 denials or cessations after July 25, 1984.1

  2. Any claimant who meets either of the subclass definitions, but whose claim was adjudicated by a federal court, shall not be included in either subclass.

  3. The disability claims of subclass members shall be redetermined in accordance with the applicable statutory and regulatory standards for disability adjudication and the standards set forth in Social Security Ruling (SSR) 85-28.

  4. The non-combination subclass and the non-severe subclass shall be treated the same with respect to retroactivity of benefits and redetermination procedures.

  5. Members of the non-combination subclass shall be given notice by the Social Security Administration (SSA) as follows:

    1. SSA will conduct a public relations campaign consisting of bilingual posters in English and Spanish, a one-time press release to New Jersey, New York City and Philadelphia newspapers, and a request for a public service announcement on radio and television stations which in SSA's determination serve New Jersey. SSA will compose and distribute the posters, press releases and requests for public service announcements. Class counsel will provide a list of newspaper and TV and radio stations which SSA will consider in determining appropriate distribution. SSA will prominently display posters in all SSA field offices serving residents of the State of New Jersey to which the public has access. Class counsel will provide a list of the addresses, not to exceed 75, of New Jersey's county offices of Social Services, Legal Aid and Legal Services offices and Office on Aging. SSA will send a poster to each address on class counsel's list.

  6. Members of the non-severe subclass shall be given notice by SSA as follows:

    1. SSA shall, by means of its data processing systems, identify the names, Social Security numbers, and last known addresses of potential class members. SSA shall send a notice by first-class mail to the last know address of each claimant identified by SSA as a potential non-severe subclass member. The notice will instruct potential class members of their possible entitlement to a redetermination of their claims and will further inform them that they should return an enclosed letter or form within 60 days of receipt in order to expedite their claims and in the event that a redetermination is desired. If a claimant does not respond to the notice, or the notice is undeliverable, there will be no follow-up to this one-time notice.

    2. The one-time press release to New Jersey, New York City and Philadelphia newspapers, and the request for a public service announcement on radio and television stations which in SSA's determination serve New Jersey residents referred to in subparagraph 5) A) will include the non-severe subclass. However, notice to the non-severe sub-class will not be provided by poster.

  7. Claimants seeking relief under this stipulation and order shall have one year and six months from the date of entry of this stipulation and order to identify themselves as subclass members by means of the following procedure:

    1. Claimants shall make a threshold showing that they are entitled to such relief during the relevant time periods as set forth in ¶1 by presenting at an SSA field office, by mail or in person, one of the following:

      1. a denial letter from the relevant time period;

      2. a modified Form SSA-795, “Statement of the Claimant”, containing a checklist of eligibility criteria which is completed, signed by the claimant, and affirms that: a) (for non-severe subclass members) they were denied at the non-severe step during the relevant time period or b) (for non-combination subclass members) they were denied at the non-severe step during the relevant period and that they had alleged more than one impairment. The affirmation paragraph will be identical to that in Form SSA-795 appended hereto. The form will be available at SSA field offices. Claimants may obtain the form in person or by telephone request.

  8. When a claimant identifies himself as a potential subclass member to an SSA field office by means of the “threshold showing” set forth above in ¶7) A) and class membership cannot be determined through SSA records other than the claimant's file, a determination on class membership will be based on a review of the claimant's file. If the claimant's file cannot be located, and is needed for a class membership determination, SSA shall make best efforts to reconstruct the file. In the absence of contrary evidence in either the file or other agency records, a claimant's threshold allegations of subclass membership shall be accepted.

  9. After SSA determines that a claimant is a class member, SSA shall conduct a redetermination of the evidence in the claimant's file at the reconsideration level and shall consider any additional medical evidence the class member submits which relates to the relevant period of time. If a claimant cannot, for good and sufficient reason, obtain such medical evidence, SSA shall make reasonable efforts to obtain that evidence. However, the evidence and its location must be identified with specificity by a claimant and SSA must deem the evidence necessary to make a redetermination. A redetermination does not include a review of evidence to determine whether the claimant became disabled for different or subsequent periods of time. A claim will not be favorably redetermined unless the evidence pertaining to the relevant time period supports an allowance or continuance. In cases decided favorably to the subclass member, retroactive benefits shall be payable based on the application that resulted in the denial which established the subclass membership, assuming that all other non-disability factors of entitlement are met. When a claim has been favorably redetermined, any subsequant medical termination must meet the standard in 42 U.S.C §423 (f).

  10. If the redetermination results in a decision that is less than fully favorable, the claimant will be informed of his right to pursue administrative review. Claimants whose claims are denied at the reconsideration level shall have the right of appeal directly to an Administrative Law Judge. Appeal rights on redetermination shall apply as set forth in 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N.

  11. If SSA determines that a claimant who responded to the notice procedure set forth above is not a class member as described in 1 and 2 of this settlement, SSA will send notice of this determination to the claimant and class counsel: Richard E. Yaskin, Esq., Evans & Yaskin, Village Greene East - Suite 8, 152 Himmelein Road, Medford, New Jersey 08055; ATTN: Wilson Class Action Unit. Claimants will be informed that if they disagree with the determination, they may contact class counsel within 60 days.

    1. Class counsel may, within 60 days of the date following receipt of SSA's determination denying class membership, write the Office of the General Counsel (OGC), Region II, Department of Health and Human Services, New York, explaining any disagreement. Any delay by class counsel beyond the sixty days may be excused for another 60 days, only if OGC determines that he meets the criteria set forth in 20 C.F.R. §404.911. A claimant's delay in contacting class counsel may also be excused if OGC determines that the claimant has satisfied the criteria set forth at 20 C.F.R §404.911. The parties will attempt to resolve the dispute. If they cannot do so within 90 days after OGC receives the written disagreement, OGC will send a letter to class counsel stating that a resolution cannot be reached. Within 45 days of the receipt of the non-resolution letter, class counsel may, upon duty noticed motion, submit the matter to the Court for resolution.

    2. Class counsel may request to review the folder or other material upon which the class membership denial was based. SSA will make the folders or other materials available at one Social Security field office designated by class counsel. The file or other material will remain at the designated SSA field office for thirty days. Class counsel will use this information solely for the purpose of pursuing the individual's claim.

    3. If OGC does not receive written notification from class counsel disputing the class membership determination within the 60 days described in subparagraph A, it is final and not subject to further review.

    4. If class counsel receives the non-resolution letter and does not submit the matter to the Court for resolution within 45 days of receipt, SSA's determination is final and not subject to further review.

  12. Beginning 150 days after the commencement of the public relations campaign, and on a quarterly basis thereafter, defendant will provide to plaintiffs' counsel the following:

    1. The number of claimants who have requested subclass membership.

    2. The number of claimants who have been screened into the subclass.

    3. The number of claimants who have been screened out of the subclass.

    4. The number of claimants whose claims were favorably (or partially favorably) redetermined.

    5. The number of claimants whose claims were unfavorably redetermined.

  13. SSA shall promulgate instructions to all personnel charged with implementing this order and with responding to inquiries from potential subclass members as described in this order. The advance copies of all final instructions, including POMs instructions, will be provided to class counsel. Class counsel will have seven days from the date on which he received the instructions to comment on them.

  14. This Court will retain jurisdiction over this action solely for the implementation of the specific provisions of this stipulation and order and to ensure that individual subclass members are properly identified for purposes of obtaining relief pursuant to this stipulation and order. The Court shall not monitor or review the Secretary's adjudication of any individual claim. However, no claimant is barred by this settlement from exercising their judicial appeal rights by filing an individual civil action pursuant to 42 U.S.C. §405(g).

  15. The relief offered herein is in no way to be construed as an admission of wrongdoing by the defendant and is agreed to by the defendant solely to settle the case and to avoid the cost of further litigation.

  16. This settlement waives the rights of both parties to appeal this Court's March 19, 1990 decision and its April 11, 1990 order.

IT IS FURTHER STIPULATED that all claims in the amended complaint for which relief has not been granted in this order are dismissed with prejudice, except that plaintiffs may apply for counsel fees and costs pursuant to 28 U.S.C. §2412 (d).

EVANS & YASKIN
A Professional Corporation
/s/
_________________
RICHARD E. YASKIN
Attorney for Plaintiffs

MICHAEL CHERTOFF
United States Attorney
/s/
_________________
PETER G. O'MALLEY
Attorney for Defendant

SO ORDERED:
/s/
_________________
STANLEY S. BROTMAN
Senior U.S.D.J.
DATE: 10/15/91

 

_______________

Persons who had administrative or judicial appeals pending on or after July 26, 1984 were entitled to the remedies provided by the court's order of November 14, 1985. Wilson v. Heckler, 622 F.Supp. 649, 661 (D.N.J.1985).

Attachment 2. WILSON COURT CASE FLAG/ALERT

                  WILSON 

COURT CASE FLAG/ALERT
                     TITLE:        CATEGORY:


        REVIEW OFFICE   PSC       MFT     DOC     ALERT DATE

        BOAN OR PAN    NAME

                CAN OR HUN          RESP DTETOE

     FOLDER LOCATION INFORMATION
TITLE  CFL     CFL DATE    ACN           PAYEE ADDRESS


   SCREENING OFFICE 
ADDRESS:
   Social Security Administration
   Northeastern Program Service Center
   P.O. Box 4100
   Jamaica, NY 11432

          OR

   Appropriate DDS
   ATTN: Wilson Screening 
Unit

   IF CLAIM IS PENDING OR STORED IN OHA, THEN SHIP 
TO:
   Office of Hearings and 
Appeals
   Office of Appellate Operations (OAO)
   One Skyline Tower, Suite 701
   5107 Leesburg Pike
   Falls Church, VA 22041-3200

   ATTN: OAO Class Action Coordinator

   (Case locator code 5007)

Attachment 3. Route Slip or Case Flag for Screening

Wilson Class Action Case

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

Please refer to HALLEX Temporary Instruction 5-4-16, Supp. A, (Revised) for additional information and instructions.

TO: ______________________________

___________________________________

___________________________________

___________________________________

Attachment 4. Wilson Screening Sheet

WILSON SCREENING SHEET

1. SOCIAL SECURITY NUMBER
___ ___ ___ - ___ ___ - ___ ___ ___ ___

BIC

___ ___

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

3. SCREENING DATE (Month, Day, Year) -- Example: August 8, 1992 would be: 08-08-92)
___ ___ - ______ - ___ ___

4. a. MEMBERSHIP DETERMINATION

[___] MEMBER (J) [___] NONMEMBER (F)

b. SCREENOUT CODE:
___ ___ (See item 11 for screenout codes)

5. Is this a DIB, CDB claim or a SSID adult claim?

__Yes       __No

(if Yes, go to 6)

(if No, go to 11)

6. Did the individual reside in New Jersey the final decision of the Secretary was made, i.e., December 1, 1978 - August 20, 1980 or August 7, 1983 - July 25, 1984? (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.)

__Yes       __No

(if Yes, go to 7)

(if No, go to 11)

7. Was a claim for disability benefits denied or terminated at any administrative level between December 1, 1978, and August 20, 1980, inclusive (1) based on a finding of non-severe impairment(s), (2) did the claimant allege more than one impairment, and (3) did this denial/cessation 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 a denial controls for class membership screening purposes.)

__Yes       __No

(if Yes, go to 9)

(if No, go to 8)

8. Was a claim for disability benefits denied or terminated at any administrative level between August 7, 1983, and July 25, 1984, inclusive, based on a finding of non-severe impairment(s) and did this denial/cessation 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 a denial controls for class membership screening purposes.)

__Yes       __No

(if Yes, go to 9)

(if No, go to 11)

9. Even if the claimant was issued or received a final adverse determination/decision within the timeframes listed in questions No. 7 or 8, did the individual receive a final adverse decision (i.e., a denial at step two, step four or step five of the sequential evaluation) on or after July 26, 1984, on a subsequent claim with an alleged date of onset on or before the onset date alleged in connection with the Wilson claim?

__Yes       __No

(if Yes, go to 11)

(if No, go to 10)

10. Was the claim decided by a Federal Court?

__Yes       __No

(if Yes, go to 11)

(if No, claimant is a class member)

11.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 08 if question 8 was answered “NO.”
Enter 09 if question 9 was answered “YES.”
Enter 10 if question 10 was answered “NO.”

No other screenout code entry is appropriate.

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

SIGNATURE OF SCREENER

COMPONENT DATE

Enter dates of all applications screened.

________________ _________________ ________________ _________________

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

   

ROUTING AND TRANSMITTAL SLIP

DATE:

TO: INITIALS DATE
1.    
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    
           

REMARKS

WILSON CASE

Claimant: _____________________________

SSN: ________________________________

OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the the NEPSC for screening. SEE POMS DI 42523.001ff OR DI 12523.001ff.

Attachment

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

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

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

Attachment 6. Non-Class Membership Notice

SOCIAL

SECURITY Important Information

NOTICE

______________________________________

From: Department of Health and Human Services
Social Security Administration

______________________________________

___________________________ DATE: ______________________

___________________________ CLAIM NUMBER: __________________

___________________________ DOC: ___________________________

We are writing to tell you that we received your request to review your earlier claim for disability benefits under the Wilson case. We have looked at your case and have decided that you are not a class member. This means that we will not review our earlier decision that you were not disabled.

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

Richard E. Yaskin, Esq.
EVANS & YASKIN
Village Green East
Suite 8, 152 Himmelein Road
Medford, NJ 08055
ATTN: WilsonCLASS ACTION UNIT
(609) 654-7912

REASON FOR UNFAVORABLE DECISION

You are not a Wilson class member because:

_________ You did not receive a denial or termination decision from Social Security between December 1, 1978,and August 20, 1980, nor between August 7, 1983, and July 25, 1984.
_________ You received a denial or termination decision from Social Security between December 1, 1978, and August 20, 1980, inclusive, but it was not based on a not severe impairment(s).
_________ You received a denial or termination from Social Security between August 7, 1983, and July 25, 1984,inclusive, but it was not based on a not severe impairment.
_________ You received a denial or termination decision from Social Security Administration between August 7, 1983, and July 25, 1984, based on a not severe impairment, but you appealed that decision and the appeal was decided on or after July 26, 1984.
_________ You received a decision during one of the timeframes above, but you did not reside in New Jersey at the time the decision was made.
_________ Your case was decided by a Federal Court.
_________

Your benefits were denied for some reason other than your medical condition. The reason was:
_______________________________________________
_______________________________________________
________________________________________________

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 Wilson class member. If you do not agree with this decision, you have 60 days after receiving this notice to notify the class attorney, listed on page 1, that you want to protest this decision.

If You Are Disabled Now

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

If You Have Any Questions

If you have any questions, you may contact your local Social Security office. If you call or visit one of our offices, please have this letter with you. It will help us answer your questions.

cc: Richard E. Yaskin, Esq.
Medford, NJ 08055

Attachment 7. Route Slip for Non-Class Membership Cases

ROUTING AND TRANSMITTAL SLIP DATE:
TO: INITIALS DATE
1. SSA District Office    
2. MT. Ephraim Office Center    
3. 2600 Mt. Ephraim Avenue    
4. Camden, New Jersey 08104-3210    
5.    
6.    
7.    

XX ACTION   FILE   NOTE AND RETURN
  APPROVAL   FOR CLEARANCE   PER CONVERSATION
  AS REQUESTED   FOR CORRECTION   PREPARE REPLY
  CIRCULATE   FOR YOUR INFORMATION   SEE ME
  COMMENT   INVESTIGATE   SIGNATURE
  COORDINATION   JUSTIFY    
           

REMARKS

WILSON CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Wilson class member. (See screening sheet and copy of non-class membership notice in the attached claim folder(s).) SEE POMS DI 12531.001ff.

Attachment

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

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

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

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

DEPARTMENT OF HEALTH & HUMAN SERVICES

Social Security Administration

___________________________________________________________________________

Refer to:

FEB 21 1991

Office of Hearings and Appeals

PO Box 3200
Arlington, VA 22203
MEMORANDUM TO:

Headquarters Executive Staff
Appeals Council Members
Regional Chief Administrative Law Judges
Hearing Office Chief Administrative Law Judges
Supervisory Staff Attorneys
Decision Writers

FROM: Acting Associate Commissioner
SUBJECT: The Standard for Evaluating “Not Severe” Impairments — ACTION

During the past few months, the Office of the General Counsel (OGC) has requested voluntary remand in a number of cases, denied by the Secretary at step two of the sequential evaluation, on the grounds that the decisions have not been fully consistent with SSA policy and the Supreme Court's opinion in Bowen v. Yuckert, 482 U.S. 137 (1987).

Despite the Yuckert decision, extensive litigation, both in individual cases and in significant class actions, continues on the issue of how the Agency applies the step two standard expressed in Social Security Ruling (SSR) 85-28. Because the courts continue to give step two denials close scrutiny, I am asking all adjudicators and decision writers to carefully review SSR 85-28 to ensure that they are applying the proper standard for adjudicating claims at step two.

In accordance with SSR 85-28, a step two denial is appropriate only in very limited situations. The evidence must establish that the claimant's impairment, or combination of impairments, is so slight that it does not have more than a minimal effect on the individual's ability to perform basic work activities. When the medical evidence is inconclusive and does not clearly establish the effect of a claimant's impairment(s), or when the evidence shows more than a minimal effect, the claim may not be denied at step two.

Decisions denying claims at step two must include a comprehensive analysis of all the evidence of record and a decisional rationale consistent with SSR 85-28. Even when the medical evidence of record clearly fails to establish that the claimant has more than a slight mental or physical abnormality, the decision must clearly show that the adjudicator evaluated all the evidence and must articulate the reasons for finding that the impairment(s) is not severe. Furthermore, when the claimant has a medically determinable impairment(s) which might reasonably be expected to cause pain or other symptoms, the decision must include an evaluation of the claimant's subjective complaints using the factors outlined in SSR 88-13 or its equivalent, i.e., SSR 90-1p for Fourth Circuit cases.

If hearing office personnel have questions or need copies of applicable instructions, they should contact the appropriate Regional Office. Regional Office personnel should direct their questions to the Division of Field Practices and Procedures, Office of the Chief Administrative Law Judge.

 

/s/

  Lawrence W. Mason for Andrew J. Young

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

Wilson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

[If there is a current claim pending in court, but that claim does not resolve all Wilson issue(s), e.g., there is a prior inactive) Wilson claim and the current claim does not include the entire period covered by the Wilson claim, forward the Wilson claim to the New Jersey DDS for separate review; modify this flag pursuant to the instruction in Part V.B.2.b.]

Send folders to:

Division of Disability Determinations
Department of Labor
P.O. Box 649
Newark, New Jersey 07101

(Destination code: ____)

Attachment 10. ALJ Dismissal 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 an order of the United States District Court for the District of New Jersey in the case of Wilson, et al. v. Sullivan, No. 83-3771 (D.N.J. October 22, 1991), the claimant has requested a redetermination of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Wilson class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Wilson final judgment 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 New Jersey Disability Determination Service which will conduct the Wilson redetermination.

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

 

_________________________
Administrative Law Judge

_________________________
Date

Attachment 11. Notice Transmitting ALJ Order of Dismissal

NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip

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

The Next Action on Your Claim

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

Do You Have Any Questions?

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

Enclosure

cc:
(Name and address of representative, if any)
(Social Security Office (City, State))

Attachment 12. Wilson Class Member Flag for Headquarters Use (DDS Readjudication)

Wilson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

__________

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

OR

__________

The claims have not been consolidated because:

______________________________________________

______________________________________________

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

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

Division of Disability Determinations
Department of Labor
P.O. Box 649
Newark, New Jersey 07101

(Destination code: ____ )