I-5-4-21-B.McDonald et. al. v. Bowen

Table of Contents
I Background
II Definition of Class
III Implementation of Court Order
IV Adjudication of Cases
V Questions
Attachment 1 Option for Appeals Council Review
Attachment 2 - AC Remand

ISSUED: December 8, 1987

NOTE:

This Instruction applies only to cases involving persons residing in Massachusetts. It is being issued nationally for informational purposes only.

I. Background

SGPD Bulletin No. III-19(86) dated September 3, 1986, described the order issued on July 17, 1986 by the U.S. Circuit Court of Appeals for the First Circuit in the McDonald case. The circuit court reversed the district court's decision of December 19, 1985, insofar as it enjoined the Secretary from applying the “not severe” regulations. However, the circuit court upheld the district court's supplemental order, issued on March 10, 1986, requiring the Secretary to consider the combined effects of multiple nonsevere impairments when readjudicating claims of class members who received final decisions of the Secretary prior to December 1, 1984. This TI sets out procedures for readjudicating cases under the McDonald court order. SSA will readjudicate the claims of all class members who exhausted their administrative remedies and who were denied benefits based on the policy of not considering the combined effects of multiple nonsevere impairments (the policy which was in effect through November 30, 1984).

II. Definition of Class

For purposes of this TI, the McDonald class consists of Massachusetts title II and title XVI disability claimants who were denied benefits because they did not have a severe impairment (s) and:

  1. who exhausted their administrative remedies (that is, had an AC decision or AC denial of the request for review of an ALJ decision) between 6/28/84 and 11/30/84; and

  2. whose claims were denied without consideration of the combined effect of multiple nonsevere impairments.

III. Implementation of Court Order

A. Identification of Class Members

Identification of the class members began January 5, 1987 with the receipt in OHA Headquarters of a computer-generated list of Appeals Council actions and decisions. The Litigation Staff, Office of Deputy Commissioner for Programs (ODCP), has sent OHA Headquarters an updated list of file locations of potential class member cases. The Division of Support Services, OAO, will retrieve files from OHA components, State agencies and Social Security field offices. ODCP Litigation Staff will arrange for the retrieval of files located in the Federal Records Center and Processing Centers (including the Office of Disability Operations (ODO)). All located files will be sent to OAO Branch 3 which is responsible for screening and processing the McDonald cases. (OGC has provided notice of class relief in all pending court cases. Accordingly, OHA will not have to take any action to identify class members with cases pending before the courts.)

B. Notification of Class Members

OAO should prepare and send a letter and option form (Attachment 1), with a self-addressed, franked envelope, to each identified class member. The claimant must complete and return the option form within 20 days from the date of the letter and the analyst must establish a control diary for 30 days. If the claimant affirmatively replies to the letter or does not return the option form, the Appeals Council or ALJ must readjudicate the case. If the claimant returns the form stating he or she does not want another Appeals Council review, it is not necessary for the Appeals Council to readjudicate the case. Since these cases involve implementation of a court order, all cases must receive expeditious handling.

IV. Adjudication of Cases

The appeals Council will readjudicate the McDonald cases under SSA's current policy, in effect since December 1, 1984, of considering the combined effects of multiple nonsevere impairments. Current policy is described in SSR 85-28.

The Appeals Council should issue a decision in the case if possible, or, if not, remand the case to an ALJ for a new hearing and decision. (See sample remand order in Attachment 2).

The Appeals Council or Administrative Law Judge must issue a replacement decision, that is, a decision which covers the period only through the date of the prior decision. New evidence may be considered only if it pertains to the period covered by the prior decision. For consideration of disability after the period covered by the prior decision, the claimant must file a new application.

If the AC or ALJ determines that the claimant was in fact under a “disability” on or before the date of the prior decision, it must be further determined through appropriate development whether such “disability” has continued to the current date. The rules of retroactivity and res judicata will apply to all new applications. A notation should be made in every decision that, if res judicata is applicable in any future cases, it will apply only as of the date of the prior decision; not from the date of the new decision. The existing regulatory provisions for reopening prior applications will apply to a new application.

V. Questions

Any HO questions concerning this TI should be directed to the OHA RO Hotline. RO and CO questions should be directed to the Division of Litigation Coordination and Implementation on FTS 235-3743.

Attachment 1. Option for Appeals Council Review

SSN

Name and Address of Claimant

Dear

The Appeals Council notified you on ___________________ of its [action] [decision] in your case. The United States District Court for the District of Massachusetts has issued an order in the case of Claire McDonald et al. v. Bowen that requires the Social Security Administration to reexamine certain claims and consider the combined effect of multiple “nonsevere” impairments in determining whether an individual is or was disabled.

You now have the opportunity to have your claim reviewed again by the Appeals Council and to receive a new decision because of the McDonald court order. The new decision will cover the period only through the date of your prior decision. If you submit new evidence the Appeals Council will consider it only if it pertains to the period covered by your prior decision. You must file a new application if you wish to seek consideration of the issue of disability for any period of time not covered by the prior decision.

If you choose to have the Appeals Council review your claim again, you must complete the enclosed option form. You may submit additional evidence and/or a written statement about the facts and law in your case. If you wish to submit additional evidence and/or a written statement you must submit the information and the option form to the Appeals Council within 20 days from the date of this letter. Please mail the material in the enclosed self-addressed envelope which requires no postage. If you need more time to submit additional evidence, you must indicate on the option form when you will send the evidence.

If you have any questions about this letter, you may contact any Social Security office. Most questions can be handled by telephone or mail. If you visit an office, please take this letter with you.

  Sincerely,
  ______________________
  Member, Appeals Council

Enclosures:

Option Form

Self-addressed Envelope

cc:
(Representative, if any)

Enclosure for Attachment 1
Option for Another AC Review

OPTION FORM FOR McDONALD CASE

____________________

Claimant's Name

____________________

Social Security Number

(Please check appropriate box)

______

I request that the Appeals Council review my case under the terms of the McDonald court order. I understand that if it is determined that I am not disabled, I will be notified of my appeal rights.

I plan to submit additional evidence and/or written statement. (please check yes or no)

Yes _________ If yes: Information is attached _________

Information will be submitted by __________ (date)

No __________

______

I do not wish to have my case reviewed by the Appeals Council.

_________________________

Signature

_________________________

Date

Current Address:

______________________
______________________
_______________________

Telephone:

(___)_____________________
Area/Number

Attachment 2. - AC Remand

Department of
HEALTH AND HUMAN SERVICES
Social Security Administration
Office of Hearings and Appeals

ORDER OF APPEALS COUNCIL

REMANDING CASE TO ADMINISTRATIVE LAW JUDGE

In the case of

Claim for

___________________________

(Claimant)

___________________________

___________________________

(Wage Earner) (Leave blank if same above)

___________________________

(Social Security Number)

The United States District Court for the District of Massachusetts, in McDonald et al. v. Bowen, (applicable to residents of the State of Massachusetts), has directed the Social Security Administration to readjudicate those cases involving “nonsevere” impairments in which the combined effect of multiple “nonsevere” impairments was not considered prior to December 1, 1984.

[Insert statement of additional reasons for remand.]

Therefore, the Appeals Council under authority of section 404.977 and/or 416.1477 of Social Security Administration Regulations Nos. 4 and/or 16 (20 CFR 404.977 and 416.1477, respectively), vacates the prior decision of the Administrative Law Judge [or Appeals Council] dated ____________, and remands this case to an Administrative Law Judge for further proceedings, including a (new) hearing and decision.

The Administrative Law Judge should issue a replacement decision, that is, a decision which covers the period only through the date of the prior decision. A notation should be made on the decision that, if res judicata is applicable in any future case, it will apply only as of the date of the prior decision; not from the date of the new decision. New evidence may be considered only if it pertains to the period covered by the prior decision. For consideration of disability after the period covered by the prior decision, the claimant will be required to file a new application.

The Administrative Law Judge should give consideration to the specific issues raised in the March 10, 1986 order of the United States District Court for the District of Massachusetts in McDonald et al. v. Bowen, and shall afford the claimant the opportunity to present further evidence on these issues.

[Specify development if needed]

The Administrative Law Judge may take any (additional) action not inconsistent with this order.

APPEALS COUNCIL

_____________________

Member

_____________________

Member