I-5-4-4.Hyatt v. Apfel
| Purpose | |
| Background | |
| Guiding Principles | |
| Definition of Hyatt Class | |
| Determination of Class Membership and Preadjudication Actions | |
| Processing and Readjudication of Primary Subclass Member Claims | |
| Processing, Reassessment and Appeal of Settlement Subclass Member Claims | |
| Case Coding | |
| Reconciliation of Implementation | |
| Inquiries | |
| Application for Hyatt Class Membership | |
| Sample Alert | |
| Request for Association and Possible Consolidation | |
| Route Slip to Litigation Staff Transmitting Hyatt III Case Not Entitled to Relief | |
| Notice of Non-Entitlement to Relief | |
| Acknowledgment Letter with Sample Hyatt III Language | |
| Route Slip to DDS Requesting Readjudication of Primary Subclass Member Claim | |
| Dismissal of Request for Hearing on Current Claim — Current Claim and Primary Subclass Member Claim to Be Consolidated at DDS Level | |
| Notice Transmitting ALJ Order of Dismissal — Current Claim and Primary Subclass Member Claim to Be Consolidated at DDS Level | |
| Route Slip to DDS Requesting Readjudication of Consolidated Claims and Return of Files to Less Than Fully Favorable Determination Issued | |
| Hyatt III Favorable Decision Worksheet and Transmittal | |
| December 19, 1996 Hyatt Desk Guide | |
| Dismissal of Request for Hearing in Settlement Subclass Member Case — No New and Material Evidence Submitted | |
| Notice Transmitting ALJ Order of Dismissal in Settlement Subclass Member Case | |
| ALJ Reassessment Decision in Settlement Subclass Member Case — Claimant Not Disabled During Reassessment Period | |
| Notice Transmitting ALJ Hyatt III Reassessment Decision in Settlement Subclass Member Case | |
| November 4, 1996 Signed Agreement Supplementing the March 21, 1994 Settlement Order in Hyatt III | |
| Dismissal of Request for Hearing — Remand to DDS for New Reassessment of Settlement Subclass Denial | |
| Route Slip to DDS Requesting a New Reassessment of Settlement Subclass Denial | |
| Dismissal of Request for Hearing in Settlement Subclass Member Case after a New Reassessment at the DDS Level — No New and Material Evidence Submitted | |
| Notice Transmitting ALJ Order of Dismissal in Settlement Subclass Member Case after a New Reassessment at the DDS Level | |
| ALJ Reassessment Decision in Settlement Subclass Member Case after a New Reassessment at the DDS Level — New and Material Evidence Submitted - Claimant Not Disabled During Reassessment Period | |
| Notice Transmitting ALJ Hyatt III Reassessment Decision in Settlement Subclass Member Case after a New Reassessment at the DDS Level — New and Material Evidence Submitted - Claimant Not Disabled During Reassessment Period | |
| October 21, 1999 Order of the United States District Court for the Western District of North Carolina |
Issued: November 15, 2000 (Revised)
Expires: No expiration date
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the parties' joint Stipulation and Order of Settlement, approved by the United States District Court for the Western District of North Carolina on March 21, 1994, in the Hyatt v. Shalala class action involving the standard for evaluating complaints of pain in disability claims.
Adjudicators throughout the country must be familiar with this TI because Hyatt class members who now reside outside North Carolina must have their cases processed in accordance with the requirements of the Stipulation and Order of Settlement.
II. Background
On December 19, 1985, the Office of Hearings and Appeals (OHA) issued Interim Circular (I.C.) No. 163 (Revised), subsequently incorporated into HALLEX as TI 5-4-4, to implement the Fourth Circuit's order of March 20, 1985, and the district court's implementation order of June 25, 1985. The class of individuals granted relief by those orders later became known as the Hyatt I class.
On August 9, 1988, OHA issued Supplement A to I.C. 163, also incorporated into HALLEX as TI 5-4-4, to implement the Fourth Circuit's order of December 5, 1986, and the district court's implementation orders of December 10, 1987, and February 5, 1988. The class of individuals granted relief by those orders became known as the Hyatt II class.
On July 28, 1988, before OHA issued its Hyatt II instructions, the Secretary had filed a report with the district court regarding SSA's implementation instructions for Hyatt II. On August 9 and August 31, 1988, plaintiffs filed motions with the district court challenging the Secretary's pain standard as enunciated in Social Security Ruling (SSR) 88-13, and in the Program Operations Manual System (POMS). On October 7, 1988, the district court issued an order directing SSA to cease denying cases based on a lack of objective evidence concerning the degree and intensity of pain. On March 31, 1989, the district court ordered the Secretary to: 1) rescind SSR 88-13 and the POMS instructions for evaluating pain; 2) use a ruling issued by the court for evaluating North Carolina disability claims involving pain; and 3) extend the class closing date to include denials issued before implementation of the court-ordered ruling.
On March 30, 1990, following the Secretary's appeal of the district court's order, the Fourth Circuit upheld the district court's order rescinding the affected POMS sections in the Fourth Circuit. The court indicated that the district court's objections to SSR 88-13 were valid but held that it was unnecessary to set the ruling aside if SSA undertook certain actions. The court held that SSR 88-13 could remain in effect if SSA amended the ruling to make it clear that it is not a reiteration of previous policy and that it has a more current effective date. The Fourth Circuit extended the class closing date until the date when the Secretary would implement its order.
On August 6, 1990, SSA published SSR 90-1p, which superseded SSR 88-13 in the Fourth Circuit. On February 1, 1991, the district court held that SSR 90-1p did not comply with the mandate of the Fourth Circuit and ordered the Secretary to amend the ruling to comply with the Fourth Circuit's decision. On May 1, 1991, the district court adopted a new implementation order proposed by plaintiffs. The Secretary appealed the district court's orders to the Fourth Circuit.
On November 14, 1991, SSA published expanded regulations, effective nationwide, concerning the evaluation of subjective complaints, including pain. While the Secretary's appeals were pending before the Fourth Circuit, the parties reached agreement regarding settlement, and on March 21, 1994, the district court approved the parties' joint Stipulation and Order of Settlement. The class of individuals granted relief by the settlement is referred to as the Hyatt III class.
On October 31, 1995, SSA published SSR 95-5p, which superseded both SSR 88-13 and SSR 90-1p, and clarified that the Agency's policies considering allegations of pain in assessing residual functional capacity and of requiring explanations of the conclusions reached about pain, apply to the evaluation of all symptoms, not just pain. SSR 95-5p also clarified that SSA's policies apply to the preparation of the individualized functional assessment in the evaluation of disability for individuals under age 18 claiming benefits under title XVI of the Social Security Act (the Act) as well as to the assessment of RFC for other persons claiming benefits based on disability under title II or title XVI of the Act; and that an explanation of the functional impact of symptoms, such as pain, when applicable, is required.
On June 28, 1996, plaintiffs filed their first motion to enforce the March 21, 1994 settlement order. They argued that SSA was incorrectly denying class membership to various claimants pursuant to subparagraph 1(b)(i) of the settlement order. SSA interpreted this subparagraph to permit the denial of class membership if the entire period covered by the Hyatt III claim was already readjudicated by SSA on or after November 14, 1991.
On July 2, 1996, SSA published SSR 96-7p, which superseded SSR 95-5p and clarified when the evaluation of symptoms, including pain, under 20 CFR 404.1529 and 416.929 requires a finding about the credibility of an individual's statements about pain or other symptom(s) and its functional effects; explained the factors to be considered in assessing the credibility of the individual's statements about symptoms and stated the importance of explaining the reasons for the finding about the credibility of the individual's statements in the disability determination or decision.
On August 1, 1996, any organization that received funding from the Legal Services Corporation may not participate in any class action against the Federal government. See P.L. 104-134, sections 504(a)(7), 503(b)(2)(B), 110 Stat. 1321 (1996). As a result, Legal Services of Southern Piedmont withdrew as representative of the Hyatt class and Carlene McNulty, Esq. of the North Carolina Justice and Community Development Center entered her appearance as counsel on behalf of the plaintiff class.
On October 31, 1996, plaintiffs filed their second motion to enforce the parties' March 21, 1994 settlement order. In this motion, plaintiffs alleged that SSA was improperly denying Hyatt III class membership relief to anyone who withdrew or failed to pursue a request for Hyatt II relief.
On November 4, 1996, SSA and the attorneys representing the plaintiff class entered into an agreement supplementing the Hyatt Settlement Order of March 21, 1994 as it pertains to reassessment cases. The agreement is enforceable by the court and indicates that a new reassessment determination will be made for certain subclass denials.
On September 13, 1999, the district court held a hearing on plaintiffs' 1996 motions to enforce the March 21, 1994 settlement order. The court issued an order from the bench in which it agreed with plaintiffs and ordered them to draft a proposed order containing the relief which they requested and to send it to SSA for review. Any disagreements between the parties in the proposed order would be resolved by the court.
On October 21, 1999, the district court issued its order containing the relief which plaintiffs requested. The order states that SSA may not deny class membership when:
(1) a subsequent claim was adjudicated by an Administrative Law Judge (ALJ) or Appeals Council Judge (AAJ) on or after August 6, 1990 or by the Disability Determination Services (DDS) on or before November 14, 1991, unless:
it is clear that the DDS/ALJ/AAJ reopened and readjudicated the entire period covered by the Hyatt III claim and
the notice of determination/decision identified the claim that had been reopened and readjudicated, or
(2) the claimant was a Hyatt (HY) responder and before receiving a final determination/decision under HY, withdrew or failed to pursue HY relief.
(3) A subsequent claim also adjudicated a Hyatt III claim based upon an amended onset date of disability, unless the Hyatt III claim was reopened and was in the process of being adjudicated at the time the claimant amended his/her onset date.
III. Guiding Principles
A. General
The settlement order expressly provides that all readjudications and reassessments of Hyatt claims must be in accordance with §§ 201 through 233 and 1601 through 1635 of the Social Security Act, as amended, the rules, regulations, policies and procedures pertaining thereto, the national regulations for the evaluation of pain (20 CFR §§ 404.1529 and 416.929) and the settlement order.
Paragraph 10.e. of the settlement order further provides:
In readjudicating and reassessing Class Claims pursuant to this Settlement Order, all adjudicators in and for the State of North Carolina shall apply the national regulations for the evaluation of pain [20 CFR §§ 404.1529 and 416.929] in a manner consistent with the following standard:
ONCE AN UNDERLYING PHYSICAL OR MENTAL IMPAIRMENT THAT COULD REASONABLY BE EXPECTED TO CAUSE PAIN IS SHOWN BY MEDICALLY ACCEPTABLE OBJECTIVE EVIDENCE, SUCH AS CLINICAL OR LABORATORY DIAGNOSTIC TECHNIQUES, THE ADJUDICATOR MUST EVALUATE THE DISABLING EFFECTS OF A DISABILITY CLAIMANT'S PAIN, EVEN THOUGH ITS INTENSITY OR SEVERITY IS SHOWN ONLY BY SUBJECTIVE EVIDENCE. IF AN UNDERLYING IMPAIRMENT CAPABLE OF CAUSING PAIN IS SHOWN, SUBJECTIVE EVIDENCE OF THE PAIN, ITS INTENSITY OR DEGREE CAN, BY ITSELF, SUPPORT A FINDING OF DISABILITY. OBJECTIVE MEDICAL EVIDENCE OF PAIN, ITS INTENSITY OR DEGREE (I.E., MANIFESTATIONS OF THE FUNCTIONAL EFFECTS OF PAIN SUCH AS DETERIORATINGNERVE OR MUSCLE TISSUE, MUSCLE SPASM, OR SENSORY OR MOTOR DISRUPTION), IF AVAILABLE, SHOULD BE OBTAINED AND CONSIDERED. BECAUSE PAIN IS NOT READILY SUSCEPTIBLE OF OBJECTIVE PROOF, HOWEVER, THE ABSENCE OF OBJECTIVE MEDICAL EVIDENCE OF THE INTENSITY, SEVERITY, DEGREE OR FUNCTIONAL EFFECT OF PAIN IS NOT DETERMINATIVE.
In readjudicating or reassessing Hyatt III class member claims that involve hypertension or diabetes, adjudicators must evaluate the condition in a manner consistent with the holding in Martin v. Secretary of HEW, 492 F.2d 905 (4th Cir. 1974). Adjudicators must fully consider the disabling effects of hypertension or diabetes without requiring the presence of end-organ damage for a finding of disability.
NOTE:
Administrative Law Judge (ALJ) and Appeals Council decisions must expressly state the standard used in readjudicating or reassessing Hyatt III class claims.
B. Treatment of Pending Hyatt II Claims
Individuals with pending Hyatt II class claims need not respond to a Hyatt III notice to be considered under the March 21, 1994 settlement order. Adjudicators will treat these individuals as primary subclass members and must give them priority.
C. Right to File New Claim or Request Reopening
Class members retain their usual rights to file a new application or request for reopening.
IV. Definition of Hyatt Class
A. Class Definition - General
All individuals who responded to a Hyatt III notice, including those previously denied class membership under the March 21, 1994 court order, are class members as a result of the October 21, 1999 court order unless he or she can be excluded pursuant to Part IV.C. The type of review that a member is entitled to receive depends on whether he or she is a Primary Subclass or Settlement Subclass Member.
B. Subclass Definitions
1. Primary Subclass
The Primary Subclass consists of all individuals:
whose claims which included allegations of pain were finally denied or terminated on or after July 7, 1981, and before August 6, 1990;
provided, however, that an ALJ decision issued before August 6, 1990, shall be considered final for the subclass membership purposes if the Appeals Council denied a request for review of the ALJ decision on or after August 6, 1990.
NOTE:
Members of the Primary Subclass will have their claims reopened. Primary Subclass members receive full appeal rights. Also, a claimant is a Primary Subclass member even if his/her Hyatt III claim was reopened or readjudicated in a decision on a subsequent application after August 6, 1990.
2. Settlement Subclass
The settlement subclass consists of individuals whose class claims were finally denied or whose benefits were terminated at the initial or reconsideration level by the North Carolina Disability Determination Service (DDS) on or after August 6, 1990, and before November 14, 1991.
3. Settlement Subclass Denials Subject To A New Reassessment
Settlement subclass denials subject to a new reassessment are those of individuals whose claims were denied on reassessment by the North Carolina DDS under Hyatt III prior to May 21, 1996.
NOTE:
Not all members of the Settlement Subclass are entitled to a review. Only Settlement Subclass members whose claims were finally denied or terminated at the initial or reconsideration level of review are entitled to a review of their class claims. The type of review is a disability determination. Settlement Subclass members have limited appeal rights.
C. Exclusions from Class Definition
As the result of the October 1999 court order, SSA has decided to no longer screen claims for Hyatt III class membership. Consequently, class membership screening has been eliminated. Thus, all future claims will receive a Hyatt III merits determination/decision, unless in the processing of a claim, it is found that Hyatt III relief is clearly inappropriate. That is,
No application for disability benefits under title II and/or title XVI was filed;
No final medical determination was issued by a NC adjudicator (DDS, ALJ, AAJ) between July 7, 1981 and November 13, 1991. (A non-medical determination/decision is one based on fraud, insufficient quarters of coverage, excess income or resources, substantial gainful activity (SGA) or any other reason not related to proof of disability, unless the claim was a concurrent claim filed in connection with a class claim. Also, in the preceding sentence, the term “final” does not include Hyatt III claims reopened or redjudicated prior to September 30, 1999. Such claims are entitled to Hyatt III relief.)
In addition, a claimant is not eligible for class membership review based on the March 21, 1994 order if:
The individual received a class membership notice pursuant to either the prior Hyatt order dated June 25, 1985, or December 10, 1987,but failed to timely respond to that class membership notice. (Individuals who failed to file a response to these notices may have their Hyatt III claims reviewed if they establish good cause for not responding sooner. Failure to receive a notice may constitute good cause.)
NOTE:
A claim will not be excluded as a class claim for failure to respond to a notice pursuant to the order dated June 25, 1985, if an individual establishes that he/she responded to a notice issued pursuant to the Hyatt order dated March 27, 1984. Good cause notices to the “postcard” responders were processed through Central Office.
An AAJ denial of a request for review, while not the “final” decision of the Commissioner must be reopened as a decision if it would permit class membership, e.g., if the ALJ's decision was before 7/7/81 and the AAJ denied review during the Hyatt III period, the claimant is entitled to Hyatt III relief. An AAJ denial of request for review must not be considered a decision if it would preclude class membership, e.g., if the ALJ's decision was before 8/6/90 and the AAJ denied review on or after that date, the claimant is also entitled to Hyatt III relief.
Also, a non-medical determination/decision is one based upon fraud, insufficient quarters of coverage, excess income of resources, substantial gainful activity (SGA) or any other reason not related to proof of disability, unless the claim was a concurrent claim filed in connection with a class claim.
Failure to timely appeal a DDS determination or an ALJ or Appeals Council decision is not a basis for denying class relief. In addition, a claimant will not be denied relief on the basis of having received an unfavorable court decision on his or her claim unless the court expressly ruled on the issue of the standard applicable to subjective complaints of pain.
V. Determination of Class Membership and Preadjudication Actions
A. Notification of Potential Class Members
SSA sent notices on or about November 17, 1994, to all potential class members identified by computer run. Notices returned as undeliverable were mailed a second time if SSA obtained an updated address.
In addition to mailing notices to claimants, SSA mailed information regarding the class to members of the North Carolina State Bar. SSA publicized Hyatt III relief through radio and television public service announcements, press releases to North Carolina newspapers, and posters placed in North Carolina Department of Social Services offices, SSA field offices (FOs), all offices of the North Carolina DDS, hospital emergency rooms and state and county senior citizens centers in North Carolina.
In OHA, every hearing office (HO) servicing North Carolina residents publicized the availability of relief under Hyatt III by displaying posters which will be provided by SSA Headquarters. The HOs displayed the posters for a 90-day period beginning with the date of the initial mailing of notices to potential class members, and again for another 30-day period beginning with the date of the second mailing of class notices.
Finally, every HO servicing North Carolina residents has prominently displayed applications for Hyatt class membership in their waiting areas (Attachment 1). The HOs displayed the Hyatt applications for a period of two years commencing with the date SSA mails the initial class notices.
B. Requests for Readjudication
Individuals had 120 days from the receipt of the notice of potential class membership to request that SSA readjudicate or reassess their claims under the terms of the Hyatt III order. SSA presumed that the individual received the notice five days after mailing, unless the individual establishes that receipt actually occurred later. The SSA FOs will develop for good cause and determine, pursuant to 20 CFR §§ 404.911 and/or 416.1411, whether good cause exists.
Individuals who did not receive a notice of potential class membership in the mail had two years from the date SSA mailed the initial class notices to complete and return an application for Hyatt class membership pursuant to the Hyatt III settlement order. The SSA FOs will develop for good cause and determine, pursuant to 20 CFR §§ 404.911 and/or 416.1411, whether good cause exists.
The court order required that HO personnel give Attachment 1 to any individual who inquires in any way, in person or by telephone, about the Hyatt case and assist that individual in completing the application. If the individual is unclear about whether they wish to apply for class review, treat the inquiry as a request for review. Do not try to dissuade anyone from requesting review. The HO will accept the application, date it, verify the claimant's Social Security number and determine whether the claimant has any potential Hyatt III class claims located in the HO in connection with a subsequent claim that is pending (hereinafter, a “current claim”).
The HO will send the application for Hyatt III class membership, along with an explanation of which Hyatt III files, if any, are located in the HO and which are still needed, to:
Office of Central Operations (OCO)
Attn: Hyatt Coordinator
P.O. Box 32909
Baltimore, MD 21241-2909
The OCO Hyatt Coordinator will determine whether SSA previously sent the claimant a Hyatt III notice and, if appropriate, will generate an alert to request any missing claim file(s) (see Part C. below). In most instances, OCO will forward the alert and any claim files to the Office of Appellate Operations (OAO) for coordination (see Part D. below). The HO should not delay processing a current claim awaiting potential class claim(s). The claim consolidation procedures in Part VI.B. below do not apply unless all potential Hyatt III claim files are in the HO.
C. SSA Central Office Issuance of Alerts and Screening or Transfer of Files to Another Screening Component
SSA Central Office will generate alerts for all Hyatt III responders. See Attachment 2 for a sample Hyatt III alert. In general, OCO will associate the alerts with all claim files relating to the Hyatt III timeframe and forward to the appropriate FO, DDS or HO for adjudication.
For those individuals who respond untimely, either to a notice or as a result of some other source of information, the alert will indicate that good cause development is necessary. The SSA FOs will develop for good cause and determine, pursuant to 20 CFR §§ 404.911 and/or 416.1411, whether good cause exists. In cases involving a mental impairment, FOs will also consider the requirements of SSR 91-5p and Acquiescence Ruling 90-4(4).
If a current claim is pending in OHA, and OCO cannot locate the Hyatt class claim, OCO will contact the OHA component having jurisdiction over the current claim to determine if the prior file is associated with the current claim, and, if so, will forward the alert to OHA for a consolidation determination. If the current claim is pending at the HO or OAO, forward the Hyatt class claim to the appropriate HO or OAO branch for a consolidation determination as set forth in Part VI.B. or Part VI.C.
If the current claim is no longer pending in OHA but the potential Hyatt class claim is being stored in OHA Headquarters along with the current claim, i.e., awaiting potential filing of a request for Appeals Council review or a civil action, OHA should ask OCO to forward the alert to OAO at the following address:
Office of Hearings and Appeals
Office of Appellate Operations
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: OAO Class Action Coordinator
D. OHA Actions
1. Alerts Received in OHA
For each alert received, the HO or OAO branch, as appropriate, will make a determination as to consolidation.
If the HO receives an alert only, or an alert associated with a prior claim file(s), and it no longer has the current claim file, the HO will return the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V.C. above) and advise the Coordinator of what action was taken on the current claim and its destination. The Coordinator will determine the current claim file location and, if it is being stored in OHA Headquarters, will forward the alert and any accompanying prior claim file(s) to the responsible OAO Branch and flag the files for association and possible consolidation using Attachment 3.
If an OAO branch receives an alert only, or an alert associated with a prior claim file(s), and it no longer has the current claim file, or responsibility for the claim file (i.e., the file is in a Docket and Files Branch or minidockets) the branch will determine the location of the current claim file. If the current claim file is located elsewhere within OHA, the OAO branch will flag the files for association and possible consolidation using Attachment 3, forward the alert and any accompanying prior claim file(s) to the current OHA location, and advise the OAO Class Action Coordinator of its actions.
2. Class Members
As a result of the district court's October 21, 1999 order, SSA eliminated the prior screening procedures for Hyatt III cases. All Hyatt III cases, including those cases that have been previously denied class membership, will receive a merits decision unless in the processing of a claim, the North Carolina DDS or OHA finds that Hyatt III relief is clearly inappropriate because:
no application for disability benefits under title II and/or title XVI was filed, or
no final medical determination was issued by NC adjudicator (DDS, ALJ, AAJ) between July 7, 1981 and November 13, 1991. (A non-medical determination/decision is one based on fraud, insufficient quarters of coverage, excess income or resources, substantial gainful activity (SGA), or any other reason related to proof of disability, unless the claim was a concurrent claim filed in connection with a class claim. Also, in the preceding sentence, the term “final” does not include Hyatt III claims reopened and readjudicated prior to September 30, 1999.) Such claims are entitled to Hyatt III relief.
NOTE:
In all cases in which the ALJ is required to issue a merits decision, the claimant must be offered the opportunity to participate in a hearing. These cases may not be dismissed even if the ALJ believes that the claimant has erroneously been determined to be a class member.
In addition, in cases in which the claimant amended his/her onset date and an ALJ has previously issued a fully favorable decision, the ALJ is required to issue a new decision regarding the period from the original onset date to the amended onset date.
Any class member files which meet one of the exceptions (bulleted above) will be sent to the Litigation Staff Hyatt III Coordinator using Attachment 4. Litigation Staff will double check to make sure that one of the exceptions applies. A notice will be sent to the claimant, class counsel, and to the claimant's representative, if any, informing the claimant that he/she is not entitled to relief using Attachment 5. If SSA does not receive an objection to the notice within 120 days, the denial regarding class membership will be final. In cases in which an objection is made, Litigation Staff will provide the claim file(s) to the Office of the General Counsel. OGC will send the claim file(s) or pertinent materials supporting the ineligibility determination to the Raleigh, North Carolina district office for class counsel's review. OGC will then negotiate with class counsel regarding SSA's determination that the claimant is not a class member entitled to relief. If the parties cannot reach an agreement, class counsel may file its objections with the district court.
3. Acknowledgment Letters
For all claimants who are entitled to receive a Hyatt merits determination, the HO will follow the normal procedures for informing a claimant that it has received a Hyatt case which will be scheduled for a hearing including sending out standard acknowledgment letters. In the first paragraph of the acknowledgment letter, appropriate Hyatt language should be inserted (see Attachment 6) for sample language.
4. Procedures for Locating Claimants Whose Whereabouts are Unknown
If the claimant's whereabouts are unknown anytime during the redetermination/readjudication process, make reasonable efforts to locate the claimant. Follow the procedures in HALLEX I-2-4-25 C. If the claimant's whereabouts are still unknown after following the procedures in HALLEX I-2-4-25 C., contact the local field office for further assistance.
5. Primary Subclass Member Claims
If there is a current claim pending before an ALJ, and the HO determines that the claimant is a primary subclass member, the ALJ will consider whether claim consolidation is appropriate as provided in Part VI.B. below. If there is a current claim pending before the Appeals Council, and OAO determines that the claimant is a primary subclass member, OAO will follow the procedures in Part VI.C. below.
If there is no current claim pending in OHA, and the OAO branch determines that the claimant is a primary subclass member, the OAO branch will send all available files to the DDS or HO, as appropriate, after expiration of the period for requesting review or filing a civil action and advise the OAO Class Action Coordinator of its action. (See Part VI.A. below.)
6. Settlement Subclass Member Claims
If there is a current claim pending before an ALJ or the Appeals Council and the HO or OAO determines, following issuance of an ALJ decision or completion of the Appeals Council's action on a current claim, that the claimant is a settlement subclass member, the HO or OAO will send the settlement subclass claim to the DDS, after disposition of the current claim, for the DDS to conduct its reassessment and advise the OAO Class Action Coordinator of its action.
If there is no current claim pending in OHA, and the OAO branch determines that the claimant is a settlement subclass member, the OAO branch will send all available files to the DDS for reassessment after expiration of the period for requesting review or filing a civil action and advise the OAO Class Action Coordinator of the action taken.
7. Settlement Subclass Denials Subject To A New Reassessment
In the course of normal processing, the HO will identify settlement subclass cases which were denied by the NCDDS before May 21, 1996, whether or not they have been identified by class counsel, and process them pursuant to Part VII.B. below.
8. Required Decisional Language for Non-Qualifying Hyatt Claims
If the earliest application that a claimant filed within the Hyatt III period (July 7, 1981 through November 13, 1991) is not a Hyatt III eligible claim, include the following language in the procedural history of the case. “We did not review your claim(s) on (fill in date of claim(s) ineligible for Hyatt III review) because (fill in reason claim(s) was not eligible for Hyatt III review). We reviewed your claim(s) filed after that date.” (See HALLEX I-2-8-25 C. for the content and format of an ALJ decision.)
E. Special Procedures for Class Member Claims Pending in Court as of May 21, 1994
The Hyatt III Stipulation and Order of Settlement became effective on May 21, 1994, the 61st day after approval by the court. OGC is responsible for screening all North Carolina civil actions that were pending as of May 21, 1994, and offering all plaintiffs who are Hyatt III class members the option to choose between obtaining another administrative review pursuant to the settlement order or continuing with the civil action. If the class member elects another administrative review, the class member and the Secretary will stipulate to a remand of the class member claim under sentence four of § 205(g) of the Social Security Act for readjudication under the settlement order. If the class member elects to proceed with the court case, he or she waives any right to a readjudication or reassessment under the settlement order.
VI. Processing and Readjudication of Primary Subclass Member Claims
A. No Current Claim Pending
The DDS will readjudicate primary subclass member claims that the DDS finally determined. If the claimant is not satisfied with the DDS readjudication, he or she is entitled to request an ALJ hearing with full appeal rights.
ALJs will readjudicate primary subclass member claims that an ALJ, the Appeals Council or a Federal court finally decided. If the claimant is not satisfied with the ALJ's decision, he or she is entitled to request Appeals Council and judicial review.
For claimants with more than one primary subclass claim, ALJs will readjudicate all claims if at least one of the claims was finally decided by an ALJ, the Appeals Council or a Federal court.
B. Current Claim Pending in HO (Consolidation Procedures)
NOTE:
Even claims subject to consolidation should be consolidated only to the extent practicable. Thus, if consolidation would unreasonably delay a decision on the current claim, consolidation is not required.
1. Hearing Held but Decision Not Issued
Except as noted below, if a primary subclass member has a request for hearing pending on a current claim and the ALJ has already held a hearing but not yet issued a decision, the ALJ will not consolidate the Hyatt case with the appeal on the current claim.
EXCEPTION:
The ALJ will consolidate the claims if 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 Hyatt claim.
If the claims are not consolidated, follow Part 5 below. If the claims are consolidated, the ALJ will issue one decision that addresses both the issues raised by the hearing on the current claim and those raised by the Hyatt claim. The ALJ's decision on the consolidated claims must clearly indicate that the ALJ considered the Hyatt claim pursuant to the Hyatt order.
2. Hearing Has Been Scheduled but Not Held, and All Remand Cases
Except as noted below, if a primary subclass member has a request for hearing pending on a current claim and the ALJ has scheduled but not held a hearing, and in all remand cases, the ALJ will consolidate the Hyatt case with the appeal on the current claim.
EXCEPTIONS:
The ALJ will not consolidate the claims if:
the current claim and the Hyatt 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 4. below. If the claims are not consolidated, follow Part 5. below.
3. Hearing Not Scheduled
Except as noted below, if a primary subclass 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 Hyatt case with the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Hyatt claim and the current claim to the DDS for consolidation and further action (see Part 5. 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 Hyatt claim, the ALJ will consolidate the claims.
4. Actions if Claims Consolidated at ALJ Level
When consolidating a Hyatt claim with a current claim, the issue before the ALJ is whether the claimant was disabled at any time from the earliest alleged onset date through the present (or, if earlier, through the date the claimant last met any applicable insured status, age or prescribed period requirements).
If the ALJ consolidates the Hyatt claim with the current claim, the ALJ will:
give proper notice of any new issues(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b) if the Hyatt claim raises any additional issue(s) not raised by the current claim; and
issue one decision that addresses both the issues raised by the request for hearing on the current claim and those raised by the Hyatt claim (the ALJ's decision must clearly indicate that the ALJ considered the Hyatt claim pursuant to the Hyatt order and expressly state the standard used).
NOTE:
Class counsel must be sent copies of all merits determinations and decisions. The ALJ must consider SSA's failure to send a copy of a Hyatt III determination to class counsel when making a good cause determination as to whether a request for hearing was timely filed.
5. Actions if Claims Not Consolidated at ALJ Level
If the ALJ does not consolidate the Hyatt claim with the current claim because: 1) a hearing has already been held, 2) the claims do not have any issues in common, or 3) there is a court-ordered time limit, and the primary subclass member claim was finally denied at the initial or reconsideration level, the ALJ will:
request DDS review by attaching a copy of Attachment 7 to the Hyatt claim file and mailing the file to the North Carolina DDS;
retain a copy of Attachment 7 in the current claim file; and
take the necessary action to complete the record and issue a decision on the current claim.
If the ALJ does not consolidate the Hyatt claim with the current claim because: 1) a hearing has already been held, 2) the claims do not have any issues in common, or 3) there is a court-ordered time limit, and the primary subclass member claim was finally denied by an ALJ, the Appeals Council or a Federal court, the HO will process the claims independently.
If common issues exist but the DDS must consolidate the Hyatt claim 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 8 and the covering notice in Attachment 9, and
send both the Hyatt claim and the current claim to the North Carolina DDS for consolidation and further action using Attachment 10.
If the DDS does not issue a fully favorable determination on the consolidated claims, the settlement order provides that the claimant is automatically entitled to an ALJ hearing. In this situation, the DDS will return the files to the HO.
On receipt of the files, the ALJ will vacate the prior dismissal of the request for hearing and will schedule the consolidated claims for hearing, using the original request for hearing date to determine scheduling priority.
NOTE:
Class counsel must be sent copies of all merits determinations and decisions. The ALJ must consider SSA's failure to send a copy of a Hyatt III determination to class counsel when making a good cause determination as to whether a request for hearing was timely filed.
C. Current Claim Pending at the Appeals Council (Consolidation Procedures)
NOTE:
Even claims subject to consolidation should be consolidated only to the extent practicable. Thus, if consolidation would unreasonably delay a decision on the current claim, consolidation is not required.
Except as noted below, if a primary subclass member has a current claim pending before the Appeals Council, the Appeals Council will not consolidate the Hyatt claim with the current claim. Instead, if the primary subclass member claim was finally denied at the initial or reconsideration level, the Appeals Council will use Attachment 7 to forward the Hyatt claim to the North Carolina DDS for readjudication. If the primary subclass member claim was finally denied by an ALJ, the Appeals Council or a Federal court, the Appeals Council will forward the Hyatt claim to the servicing HO for readjudication.
EXCEPTION:
If the Appeals Council is prepared to issue a fully favorable decision on the current claim, and this decision would be fully favorable with respect to all issues raised by the Hyatt claim, the Appeals Council will consolidate the claims, state in its decision that it is reopening the final determination or decision on the Hyatt claim and issue a decision that adjudicates both applications.
D. Processing Priorities
The March 21, 1994 court order sets forth four types of primary subclass claims to be given priority in processing. The following order of priority processing applies to primary subclass member claims that were pending as of May 21, 1994, the effective date of the court order. Because Hyatt III primary subclass member claims, by definition, must have been finally denied by SSA before August 6, 1990, the only Hyatt III claims that potentially could have been pending as of May 21, 1994, are claims that were pending judicial review as of that date. Adjudicators must also give priority to any previously uncompleted Hyatt II readjudications which are now being completed under the Hyatt III implementation procedures. See Part III.B. above.)
NOTE:
The October 21, 1999 order (see Attachment 24) requires to the extent practicable, at each stage of class membership review and merits adjudication, SSA shall accord priority to the cases entitled to relief over other Hyatt III implementation.
First Priority: Hyatt claims pending at the ALJ hearing level as of May 21, 1994, that are consolidated with current claims and returned to the DDS for review under the procedures in Parts B.3. and B.5. above. This priority also applies to the automatic right to an ALJ hearing for unfavorable DDS determinations in these cases.
Second Priority: Hyatt claims pending in court as of May 21, 1994, that are remanded for Hyatt readjudication under the procedure described in Part V.E. above. The court order provides that the Appeals Council may decide these claims on remand if a favorable decision on the record can be rendered.
Third Priority: Hyatt claims pending before the Appeals Council as of May 21, 1994. The Appeals Council must make a good faith effort to issue a decision on the record or remand the claim to an ALJ within 90 days after receipt of the claim file, reconstructed claim file, or (if the Appeals Council already has the file) the claimant's request for Hyatt review. If the Appeals Council remands to an ALJ, the ALJ must make a good faith effort to schedule a hearing within 120 days of the date of the Appeals Council's remand order.
Fourth Priority: Hyatt claims pending before an ALJ as of May 21, 1994. The ALJ must make a good faith effort to schedule a hearing within 120 days of the date of receipt in the HO of the claim file, reconstructed claim file, or (if the HO already has the file) the claimant's request for Hyatt review.
The Hearing Office Chief ALJ will assign all other Hyatt III claims in order of:
E. Type of Review and Period to Be Adjudicated
Primary subclass members are entitled to a full reopening of their Hyatt claims. In conducting readjudications of primary subclass member claims, adjudicators must consider the issue of whether the claimant was disabled at any time from the earliest alleged onset date through the present (or, if earlier, through the date any applicable insured status, age or prescribed period requirements were last met). All Hyatt decisions must indicate the dates of all applications reopened under Hyatt, as well as indicating the type of benefit sought in each claim.
In readjudicating Hyatt class member claims of individuals who have received or are receiving disability benefits, adjudicators must limit their consideration to the period(s) before or after any periods for which the claimant has already been found disabled. Adjudicators may not disturb the favorable portions of previous decisions or determinations.
The court order provides that the medical record of each primary subclass member claim must be fully developed for the entire period at issue, using treating physicians whenever possible and employing consultative examiners when necessary (see 20 CFR §§ 404.1519 through 404.1519t, 404.1527, 416.919 through 416.919t and 416.927).
F. Developing Evidence of Work Activity
If the screening process reveals SGA-level work activity after the prior final decision, the adjudicator must develop the issue to the extent needed in order to evaluate disability throughout the entire period at issue.
G. Readjudication of Reconstructed Claims
If SSA is unable to fully reconstruct a primary subclass member claim file, adjudicators must readjudicate the claim based on current medical evidence. If the claimant was found disabled based on a claim filed after the Hyatt III claim was filed, adjudicators will infer, in the absence of substantial evidence to the contrary, that the claimant became disabled as of the earliest date on which all other requirements for disability benefits (including filing a claim) were met. Substantial evidence to the contrary may include, but is not limited to, evidence of a traumatic onset of disability or a new impairment or a contrary medical judgment. If the claimant was found not disabled based on a claim filed after the Hyatt III claim was filed, or the claimant's subsequent claim is still pending, and evidence of the past condition is not readily available, the adjudicator will presume that the claimant's past condition and impairments were as they are currently if such presumption is reasonable based on the nature of the impairment.
H. Effectuating Decisions After OHA Action
If a fully favorable medical decision was issued either because of a subsequent application or a previous Hyatt III reopening, the OHA adjudicator will complete the Favorable Decision Worksheet and Transmittal (see Exhibit 11) and forward the folder to the appropriate field office for payment verification.
VII. Processing, Reassessment and Appeal of Settlement Subclass Member Claims
A. Initial Processing of Settlement Subclass Member Claims
1. DDS Processing and Reassessment
Settlement subclass members are entitled to a reassessment by the North Carolina DDS of their Hyatt claims. The period to be reassessed is limited to the period adjudicated in the initial or reconsideration determination that resulted in the claimant's settlement subclass membership. In conducting the reassessment, the DDS will review the evidence on which the prior final determination was based, as well as any new evidence submitted by the individual (see Attachment 12). If the DDS determines that it cannot reassess the claim based on the existing and any new evidence, the DDS will develop any additional evidence needed to reassess the determination on the previously adjudicated period.
If the DDS reassessment results in a finding that the claimant became disabled at any time during the previously adjudicated period, the DDS will treat the claim as a primary subclass member claim, i.e., it will rule through the current date.
2. OHA Processing of Appeals
If a settlement subclass member claim is being treated as a primary subclass member claim because the DDS determines that the claimant was disabled for at least part of the reassessment period, the claimant has the same full appeal rights as a primary subclass member. Appeals of partially favorable determinations to the OHA level will be treated the same as those for primary subclass members.
If the DDS reassessment results in a finding that the claimant was not disabled, the settlement subclass member may request a reassessment hearing by an ALJ by filing a request within 60 days from the date of receipt of the DDS notice of reassessment. The ALJ will only grant the claimant's request for a reassessment hearing if the ALJ determines that there is new and material evidence relating to the reassessment period. The claimant has 105 days from receipt of the DDS notice of reassessment to submit new and material evidence to the ALJ. The ALJ will apply 20 CFR §§ 404.911 and 416.1411 in determining whether there is good cause for late filing of a request for hearing or submitting additional evidence.
a. New and Material Evidence
Evidence is “new and material” for purposes of processing settlement subclass member claims if: 1) the adjudicator who made the initial or reconsideration determination that resulted in the claimant's settlement subclass membership did not consider it, and 2) the evidence, by itself or with the other evidence before the ALJ, would warrant a change in any finding pertinent to any matter at issue or a change in the ultimate decision.
To be found “new and material” by an ALJ, the evidence need not have first been submitted to the ALJ. The ALJ may determine that evidence submitted to the DDS, or developed by the DDS, in connection with the reassessment of the settlement subclass member claim is new and material. Subjective evidence relating to pain may qualify as new and material evidence.
b. ALJ Actions
If the ALJ determines that there is no new and material evidence, he or she will dismiss the claimant's request for a reassessment hearing using the order in Attachment 13 and transmittal notice in Attachment 14. In addition to the usual addressees, the HO must send a copy of the dismissal to class counsel at the address shown in Attachment 9.
There is no right to request further review, i.e., no right to Appeals Council or judicial review. However, a court may review the Secretary's adjudication in an individual case in connection with a claimant's action to enforce the provisions of the settlement order.
If the ALJ determines that there is new and material evidence, he or she will schedule and hold a hearing and reassess the previously considered period. The ALJ must decide whether the final denial is in accordance with the applicable provisions of the Act, regulations and rulings, as indicated in Part III.A. above. If the ALJ cannot reassess the claim based on the evidence of record, including the new and material evidence and any evidence adduced at the hearing, the ALJ will obtain any necessary additional evidence relevant to the time period being reviewed.
If the ALJ finds that the claimant did become disabled at any time during the reassessment period, the claim will be treated as a primary subclass member claim, and the ALJ will rule through the date of the decision (or, if earlier, the date the claimant last met any applicable insured status, age or prescribed period requirements). The claimant in this situation will have the usual rights to request Appeals Council and judicial review.
If the ALJ finds that the claimant did not become disabled at any time during the reassessment period, the ALJ will issue a reassessment decision, using the format in Attachment 15, with the covering notice in Attachment 16. The HO must send a copy of the ALJ's reassessment decision to class counsel at the address shown on Attachment 14. There is no right to request further review of an ALJ reassessment decision, i.e., no right to Appeals Council or judicial review.
As with primary subclass member claims, in reassessing the settlement subclass member claims of individuals who have received or are receiving disability benefits, adjudicators must limit their consideration to the period(s) before or after any periods for which the claimant has already been found disabled. Adjudicators may not disturb the favorable portions of previous decisions or determinations.
B. Settlement Subclass Denials Subject To A New Reassessment
1. DDS Processing and Reassessment
For all individuals determined to have been issued Hyatt III reassessment determinations prior to May 21, 1996, the prior reassessment determination will become void and a new determination will be made (except as provided in Part VII. B.2. below). The new reassessment determination shall be performed by a different adjudicative team than that which made the prior reassessment determination. A notice of determination will be sent to the individual regarding the new reassessment determination and will include the opportunity to appeal pursuant to Part VII. A.2. above.
2. OHA Processing of Appeals
If the settlement subclass denial subject to a new reassessment has been scheduled for a hearing, or a hearing has been held, the claim will continue to be processed by OHA under existing Hyatt III procedures noted in Part V.D.2.c. above.
If the settlement subclass denial subject to a new reassessment has not yet been scheduled for a hearing, OHA will make a determination whether the “new and material evidence” requirement, noted in Part VII.A.2.a. above, has been met.
(1.) If the ALJ determines that there is new and material evidence, he or she will schedule and hold a hearing and reassess the previously considered period. The ALJ must decide whether the final denial is in accordance with the applicable provisions of the Act, regulations and rulings, as indicated in Part III.A. above. If the ALJ cannot reassess the claim based on the evidence of record, including the new and material evidence and any evidence adduced at the hearing, the ALJ will obtain any necessary additional evidence relevant to the time period being reviewed.
If the ALJ finds that the claimant did become disabled at any time during the reassessment period, the claim will be treated as a primary subclass member claim. The claimant in this situation will have the usual rights to request Appeals Council and judicial review.
If the ALJ finds that the claimant did not become disabled at any time during the reassessment period, the ALJ will issue a reassessment decision, using the format in Attachment 22, with the covering notice in Attachment 23. The HO must send a copy of the ALJ's reassessment decision to class counsel at the address shown on Attachment 23. There is no right to request further review of an ALJ reassessment decision, i.e., no right to Appeals Council or judicial review.
As with primary subclass member claims, in reassessing the settlement subclass member claims of individuals who have received or are receiving disability benefits, adjudicators must limit their consideration to the period(s) before or after any periods for which the claimant has already been found disabled. Adjudicators may not disturb the favorable portions of previous decisions or determinations.
(2.) If the ALJ determines that there is no new and material evidence, he or she must determine whether the DDS has made a new reassessment determination as required by the November 4, 1996 signed agreement between the parties (Attachment 17).
If the ALJ finds that the DDS has not made a new reassessment determination as required by the November 4, 1996 signed agreement between the parties (Attachment 17), the case will be remanded to the DDS using the dismissal order in Attachment 18 and the route slip in Attachment 19; the individual will receive a new DDS reassessment determination and will have an additional opportunity to appeal pursuant to Part VII.B.1. above (i.e., if the claim is again denied by the DDS the individual must ask for a new hearing and again must proceed in accordance with Part VII.A.2. above and provide “new and material” evidence). The evidence submitted in connection with the first and second DDS reassessments or the prior reassessment appeal, as well as other evidence proffered, will be considered in making the new and material evidence determination.
NOTE:
Evidence submitted at any time during the Hyatt III review process is “new” evidence.
If the ALJ finds that the DDS has made a new reassessment determination as required by the November 4, 1996 signed agreement between the parties (Attachment 17), he or she will dismiss the claimant's request for a reassessment hearing using the order in Attachment 20 and transmittal notice in Attachment 21. In addition to the usual addressees, the HO must send a copy of the dismissal to class counsel at the address shown in Attachment 20. There is no right to request further review, i.e., no right to Appeals Council or judicial review.
If a decision on the merits of the reassessment claim has been made by OHA, the claim will not be reviewed under the terms of Parts VII. B.2.a. and b. above (NOTE: a decision “on the merits” will not include a claim in which the request for hearing was dismissed).
VIII. Case Coding
The HO should code both primary and settlement subclass member claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as reopenings. If a class member claim is consolidated with a current claim already pending at the hearing level (see Part VI.B.), do not code it as a separate hearing request. Instead, change the hearing type on the current claim to a reopening.
Code current claims that are dismissed for consolidation with primary subclass member claims and readjudication by the DDS as “administrative” dismissals (code ADDI). If these claims are later returned by the DDS because the consolidated determination is not fully favorable, code the hearing type as a new request for hearing (or a second or subsequent claim, if appropriate). Do not code as a reopening. Use the original request for hearing date to ensure prompt processing.
Code settlement subclass member claims that are dismissed because the claimant did not submit new and material evidence as “other” dismissals (code OTDI). Code Hyatt III reassessment decisions in settlement subclass member claims as unfavorable affirmations.
NOTE:
The HO must code cases in which an ALJ conducts the first review under Hyatt III as “H3” in the HOTS “Class Action” field. Leave the Class Action field blank if the DDS conducted the first Hyatt III review. Because the Hyatt III reporting will be based on HOTS data, it is essential that the “H3” code be used correctly.
No special identification coding is needed for the OHA CCS.
IX. 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 (i.e., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA), as reported by HOs and OAO.
X. 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) 605-8530. OHA headquarters personnel should contact the Hyatt Coordinator at the Special Counsel Staff at 605-8278.
Attachments
Application for Hyatt Class Membership
Sample Alert
Request for Association and Possible Consolidation
Route Slip to Litigation Staff Transmitting Hyatt III Case Not Entitled to Relief
Notice of Non-Entitlement to Relief
Acknowledgement Letter with Sample Hyatt III Language
Route Slip to DDS Requesting Readjudication of Primary Subclass Member Claim
Dismissal of Request for Hearing on Current Claim — Current Claim and Primary Subclass Member Claim to Be Consolidated at DDS Level
Notice Transmitting ALJ Order of Dismissal — Current Claim and Primary Subclass Member Claim to Be Consolidated at DDS Level
Route Slip to DDS Requesting Readjudication of Consolidated Claims and Return of Files to ALJ if Less Than Fully Favorable Determination Issued
Hyatt III Favorable Decision Worksheet and Transmittal
December 19, 1996 Hyatt Desk Guide
Dismissal of Request for Hearing in Settlement Subclass Member Case — No New and Material Evidence Submitted
Notice Transmitting ALJ Order of Dismissal in Settlement Subclass Member Case
ALJ Reassessment Decision in Settlement Subclass Member Case — Claimant Not Disabled During Reassessment Period
Notice Transmitting ALJ Hyatt III Reassessment Decision in Settlement Subclass Member Case
November 4, 1996 Signed Agreement Supplementing the March 21, 1994 Settlement Order in Hyatt III.
Dismissal of Request for Hearing — Remand to DDS for New Reassessment of Settlement Subclass Denial
Route Slip to DDS Requesting A New Reassessment of Settlement Subclass Denial
Dismissal of Request for Hearing in Settlement Subclass Member Case after a New Reassessment at the DDS Level — No New and Material Evidence Submitted
Notice Transmitting ALJ Order of Dismissal in Settlement Subclass Member Case after a New Reassessment at the DDS Level — No New and Material Evidence Submitted
ALJ Reassessment Decision in Settlement Subclass Member Case after a New Reassessment at the DDS Level — New and Material Evidence - Claimant Not Disabled During Reassessment Period
Notice Transmitting ALJ Hyatt III Reassessment Decision in Settlement Subclass Member Case after a New Reassessment at the DDS Level — New and Material Evidence - Claimant Not Disabled During Reassessment Period
October 21, 1999 Order by the United States District Court for the Western District of North Carolina
Attachment 17. November 4, 1996 Signed Agreement Supplementing the March 21, 1994 Settlement Order in Hyatt III
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Social Security |
Charles McBrayer Sasser
Douglas S. Sea
Cox, Gage and
Sasser
Suite 2160
227 West Trade Street
Charlotte, North
Carolina 28202
John Wester
Robinson, Bradshaw and Hinson
1900 Independence
Center
101 North Tyron Street
Charlotte, North Carolina 28246
Carlene McNulty
North Carolina Justice and Community Development
Center
P.O. Box 28068
Raleigh, North Carolina 27611
Dear Class Counsel:
This agreement pertaining to adjudication of reassessment of cases is to be applied in conjunction with the Hyatt Stipulation and Order of Settlement (Civ. No. C-C-83-655-MU) filed on March 21, 1994 (hereinafter “Hyatt Settlement Order”) and the parties agree that the terms of this agreement are enforceable by the court pursuant to paragraphs 14, 19 and 22 of the Hyatt Settlement Order. This agreement does not constitute a modification of the Hyatt Settlement Order, but serves to supplement the Hyatt Settlement Order as it pertains to reassessment cases.
Within sixty days from the date of this agreement, class counsel will make their best efforts to identify by name, social security number (SSN) and BIC, the individuals whose claims were denied on reassessment by the North Carolina Disability Determination Service (DDS) under Hyatt III prior to May 21, 1996. The list provided by class counsel may be overinclusive. This information will be provided to SSA on a disc in ascii format with a record layout. Class counsel may also send to SSA, on a disc, the names and available SSN(s) of additional individuals (to total no more than 400 persons) who, according to class counsel's records, may have reassessment cases covered by this agreement. If SSA is unable to identify from the Civil Action Tracking System (CATS) that these are cases subject to this agreement, class counsel will submit additional evidence concerning these cases. The Office of Hearings and Appeals (OHA) will, in the course of normal processing, identify reassessment cases pending on appeal which were denied by the DDS before May 21, 1996 whether or not they have been identified by class counsel and process them pursuant to paragraph 3 below. SSA (and/or DDS) shall determine whether these and all other individuals identified by class counsel, SSA or the DDS have reassessment cases denied by the North Carolina DDS under Hyatt III prior to May 21, 1996. Later identified cases will be processed by SSA and DDS in a manner consistent with this agreement.
For all individuals determined to have been issued Hyatt III reassessment determinations prior to May 21, 1996, the prior reassessment determination will become void and a new determination will be made (except as provided in paragraph 3 below). The new, complete reassessment will be performed in accordance with the terms of the Hyatt Settlement Order, the Hyatt Program Operation Manual System (POMS) and this agreement. The new reassessment shall be performed by a different adjudicative team than that which made the prior reassessment decision. A notice of determination will be sent to the individual regarding the new reassessment determination and will include the opportunity to appeal pursuant to paragraph 10(l)(iii) of the Hyatt Settlement Order.
Reassessment claims subject to this agreement which are pending at or have been decided by OHA will be processed as follows:
If the reassessment claim subject to this agreement has not yet been scheduled for a hearing, or a hearing has been held, the claim will continue to be processed by OHA under existing Hyatt III procedures.
If the reassessment claim subject to this agreement has not yet been scheduled for a hearing, OHA will make a determination on whether the “new and material evidence” requirement of paragraph 10(m) of the Hyatt Settlement Order has been met.
If the “new and material” evidence standard is met, the case will remain at OHA and be processed pursuant to the Hyatt Settlement Order.
If the “new and material” evidence standard is not met, the case will be remanded to the DDS; the individual will receive a new DDS reassessment determination and will have an additional opportunity to appeal pursuant to subparagraph 10(1)(iii) of the Hyatt Settlement Order (i.e., if the claim is again denied by the DDS and the individual must ask for a new hearing and again must proceed in accordance with subparagraph 10(l)(iii) of the Hyatt Settlement Order and must provide “new and material” evidence.) If the claim is appealed, the evidence submitted in connection with the first and second DDS reassessments or the prior reassessment appeal, as well as other evidence proffered, will be considered in making the new and material evidence determination.
If a decision on the merits of the reassessment claim has been made by OHA, the claim will not be reviewed under the terms of this agreement. (NOTE: A decision “on the merits” will not include a claim in which the request for hearing was dismissed).
The DDS shall give reassessments performed subject to this agreement (i.e., those replacing determinations made prior to May 21, 1996) priority over other Hyatt reassessments, when practicable.
The DDS will use the attached desk guide [see Attachment 12] in performing all Hyatt reassessments and will comply with the guide and all referenced POMS sections in a manner consistent with the Hyatt Settlement Order and this agreement.
The DDS shall not deny any reassessment claim in which the case record does not contain evidence that the DDS has attempted to obtain statements from the claimant, his or her treating or examining physician(s) or psychologist(s), and other related symptoms, and the factors described in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) to the degree that the information about each factor is available and relevant to the case and the claimant or other person providing the information has a basis to know about the factor. The notice in Exhibit 6 in POMS DI 32548.095 is not sufficient to meet this requirement.
DDS will comply with Hyatt POMS DI 32548.015D.4. concerning contacting appointed representatives in performing reassessments. (NOTE: If there was an appointed representative in a claim prior to the Hyatt III claim, the representative does not have to be contacted; if there is an appointed representative in a claim subsequent to a Hyatt III claim(s), that representative will be contacted.) The absence of an SSA-1696-U4 (Appointment of Representative) form will not relieve the DDS from compliance with POMS DI 32548.015D.4. if there is another indication in the file that there is representation.
The DDS shall review and evaluate medical records or opinions submitted by the claimant, including records or opinions submitted in connection with a post Hyatt claim for benefits, that are dated after the date of the denial being reassessed to determine whether they relate to a condition that may have begun prior to the date of the prior denial. If the claimant has informed the DDS or SSA of the existence of medical records dated after the date of the prior denial that pertain to a condition that may have begun prior to the date of the prior denial, the DDS shall make “every reasonable effort” to obtain and review the evidence. If a claimant wishes to submit medical evidence dated after the date of the denial being reassessed, the DDS shall not discourage the claimant from submitting the medical evidence, even if it pertains to a condition that began after the date of the prior denial.
The DDS shall document the case record as to the consideration given to the statements of the claimant, his or her treating or examining physician(s) or psychologist(s), and others, as set forth in 20 C.F.R. §§ 404.1529 and 416.929 and the Hyatt Settlement Order. Further, the DDS shall follow Social Security Ruling (SSR) 96-7p (POMS DI 24515.066) and prepare a finding as to the credibility of the individual's statements about any alleged symptom(s) and its functional effects in all cases in which the claimant's statements abut the intensity, persistence, or limiting effects of symptoms are not substantiated by the objective medical evidence. As described in SSR 96-7p (POMS DI 24515.066), the case record must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.
DDS shall assure that both title II and title XVI claims are reassessed and that notice(s) addressing the Title II and Title XVI reassessment determination(s) are issued.
The DDS will follow Social Security Rulings 85-28 and 96-3p in determining whether a claimant's medically determinable physical or mental impairment or combination of impairments has more than a minimal effect on his or her ability to do basic work activities. Where the claimant's alleged symptoms can reasonably be expected to be produced by the established impairment(s), the intensity, persistence, and limiting effects of the symptom(s) must be considered along with the objective medical and other evidence in determining severity. If the claim is denied at step 2 of the sequential evaluation process, the personalized disability notice to the claimant must include a credibility finding that is sufficiently specific as to make clear the weight given to the claimant's statements abut his or her symptoms in determining severity and the reasons for that weight.
DDS reassessment notices will comply with POMS DI 32548.045 and DI 26530.020 and will, additionally, prominently indicate that it is a new determination replacing the prior reassessment determination and that claimants will have another opportunity to appeal this determination pursuant to paragraph 10(l)(iii) of the Hyatt Settlement Order. Copies of all notices will be contemporaneously mailed to class counsel.
The new language added to the notice will state in bold type:
Based on an agreement with class counsel, this is a new determination replacing the prior Hyatt determination made in your case. YOU HAVE A NEW OPPORTUNITY TO APPEAL THIS DETERMINATION, as explained below.
In addition, new language will be added to the SSA-831 as follows: “This replaces the reassessment decision of __________________.”
The requirements contained above as numbers 5-11 shall be followed, as applicable, in all other Hyatt reassessments performed by the DDS after the date of this agreement.
In conjunction with the monitoring report sent to class counsel pursuant to paragraph 11 of the Hyatt Settlement Order, SSA shall report to class counsel in a manner that distinguishes from other Hyatt decisions, the results of all new reassessment determinations made pursuant to this agreement (i.e., those replacing those determined prior to May 21, 1996).
Our signatures below indicate our concurrence with this agreement.
| Sincerely, | |
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/s/ Clifford C. Marshall Assistant United States Attorney Room 306, United States Courthouse 100 Otis Street Asheville, North Carolina 28801-2611 /s/ A. George Lowe Acting Associate General Counsel Litigation Division /s/ Deborah Feustle Blair Attorney Office of the General Counsel Social Security Administration 6401 Security Boulevard Baltimore, Maryland 21235 |
Class Counsel also indicates concurrence with this agreement by signing below and returning this letter to the Office of the General Counsel.
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/s/ Charles McBrayer Sasser /s/ Douglas S. Sea /s/ John Wester /s/ Carlene McNulty Dated: November 4, 1996 |
HYATT DESK GUIDE
(To Be Used in
HYATT Reassessment Cases Only)
ALL EXPLANATIONS MUST BE CLEARLY SET FORTH IN THE APPROPRIATE PLACE IN THE CASE RECORD.
Is there a medically determinable physical or mental impairment?
(DI 24515.001.A.; 24515.061.A)
Can impairment(s) be reasonably expected to produce alleged symptoms?
(DI 24515.061.B.)
Is impairment(s) severe? If NO, EXPLAIN.
Were symptoms considered in determining severity? If NO, EXPLAIN.
(DI 24505.003.B.)
Were activities of daily living developed? If NO, EXPLAIN.
(DI 24515.061.C.3.)
If alleged symptom-related limitations or restrictions are greater than would be expected on the basis of the physical impairment(s), was the possibility of a medically determinable mental impairment considered? If NO, EXPLAIN.
(DI 24515.061.B.)
Does the severity of the claimant's medically determinable impairment(s) meet or equal any listing?
(DI 24515.061.D.2.; DI 24515.061.D.3.), If NO, ASSESS RFC.
(DI 24515.061.D.4.; DI 24515.062); Complete Section II (SYMPTOMS) and Section III (TREATING OR EXAMINING SOURCE STATEMENTS) of the SSA-4734-U8, as appropriate. (DI 24510.001, DI 24510.005, DI 24510.006, DI T24510.001, DI E24510.005)
Does a function-by-function assessment establish the claimant is able to perform past relevant work? If YES, DENY.
Considering RFC, age, education and work experience, can the claimant perform other work? If YES, DENY. If NO, ALLOW.
Do List Codes 251 or 252 apply? (DI 22510.011.D.)
Is decision rationale and PDN in file? (DI 24515.066.B.1., DI 24515.067.A.2., DI 26515.001ff, DI 26530.001ff.)