I-5-4-7.Polaski, et al. v. Bowen
|Definition of Class|
|Implementation of Court Order|
|OHA Adjudication of Class Member Claims|
|Eighth Circuit Court of Appeals Order Dated July 17, 1984|
|Polaski Screening Instructions|
|Polaski Screening Sheets|
|Non-Member Notice (Title II)|
|Non-member Notice (Title XVI)|
|List of Field Office Addresses and Destination Codes|
|Route Slip - OAO or ALJ Sending Non-Class Member's Claims File to the Field Office|
|Route Slip - OAO Sending Polaski Class Member's Claim File to Servicing Hearing Office|
|Option Notice: Arkansas Class Member with Claim Pending at AC|
|Polaski Reply Form: Enclosure for Attachment I|
|Option Notice: Non-Arkansas Class Member with Claim Pending at Appeals Council|
|Polaski Reply Form: Enclosure for Attachment K|
|AC Remand of Arkansas Case to ALJ|
|AC Remand of Non-Arkansas Case to DDS|
|Attachment O - Notice Transmitting AC Order of Remand|
|Option Notice: Non-Arkansas Class Member with Claim Pending at the ALJ Level|
|Polaski Reply Form: Enclosure for Attachment P|
|Notice Transmitting AC Order of Remand|
|ALJ Remand of Non-Arkansas Case to DDS|
|List of Addresses for Legal Aid Offices|
|Polaski Option 2 Claim Flag|
ISSUED: August 2, 1989
This Temporary Instruction (TI) contains instructions for implementing orders dated April 12, 1985, July 18, 1988 and February 14, 1989 from the U.S. District Court for the District of Minnesota in the Polaski, et al. v. Bowen class action. Those orders direct the reopening and readjudication of the title II and XVI disability claims of certain Eighth Circuit residents and former residents which were denied in 1983 and 1984. The TI also contains previously disseminated information concerning the Eighth Circuit Court of Appeals' order dated July 17, 1984, which OHA has followed since that order was issued.
Adjudicators in all jurisdictions must be thoroughly familiar with this TI, because Polaski class members who now reside in states outside the Eighth Circuit must have their claims processed in accordance with the requirements of the court orders, regardless of their current state of residence.
The Polaski class action included two primary issues: (1) the evaluation of whether disability has ceased (the medical improvement issue), and (2) the evaluation of pain and other subjective complaints (the pain issue).
In July 1984, the Eighth Circuit accepted the Secretary's and the plaintiffs' settlement language regarding the evaluation of pain and other subjective complaints and ordered that this standard be followed in all administrative and judicial proceedings within the Eighth Circuit. OHA immediately notified its adjudicators of the court's order and the standard to use in adjudicating all Eighth Circuit claims involving pain or other subjective complaints. That order remains in effect.
On December 31, 1984, the Court of Appeals for the Eighth Circuit remanded to SSA Polaski class pursuant to all medical cessation claims in the Section 2 of Public Law 98-460, the Social Security Disability Benefits Reform Act of 1984. This aspect of the court order has been implemented, and these claims are not the subject of the current instruction.
On April 12, 1985, the District Court for the District of Minnesota issued an order directing SSA to notify certain individuals whose claims were denied before the Eighth Circuit issued its order of July 17, 1984 of their right to a readjudication of their claims under the court ordered pain standard. On October 30, 1986 the Eighth Circuit upheld the district court's order and on June 15, 1987, the Supreme Court denied the Government's petition for a writ of certiorari.
Based upon a stipulation by the Secretary and the plaintiffs, the district court issued a detailed implementation order on July 18, 1988. The district court ruled on the issue of consolidation of claims in an order dated February 14, 1989. A further order on May 5, 1989, contained additional implementation requirements.
III. Guiding Principles
A. Evaluation of Pain and Other Subjective Complaints
In its order dated July 17, 1984, the Eighth Circuit accepted language upon which plaintiffs and the Secretary had agreed. The court found the language to be a correct restatement of Eighth Circuit case law concerning evaluation of pain and other subjective complaints. The Secretary promptly notified adjudicators of the language which the court approved. The court's order remains in effect for all administrative and judicial proceedings within the Eighth Circuit, including the readjudications ordered by the district court. A copy of the Eighth Circuit's order is contained in Attachment A.
B. Res Judicata
In general, an Administrative Law Judge (ALJ) may dismiss a request for hearing with respect to one or more issues if SSA previously made a final determination or decision under the same title on a claim involving the same facts, parties and issues. However, if there has been an intervening change of position, i.e., a change of legal interpretation or administrative ruling, which applies to the facts in the case, the previously adjudicated period may not be considered res judicata.
In considering whether a request for hearing on a subsequent claim by an Eighth Circuit resident should be dismissed in whole or in part for res judicata, consider the Eighth Circuit's order of July 17, 1984, as implementing a change of position. Therefore, for subsequent claims involving evaluation of pain or other subjective complaints, if the final decision or determination on the prior claim was made at any time on or before July 17, 1984, do not consider the previously adjudicated period res judicata.
The above discussion applies to whether a request for hearing on a subsequent claim by any Eighth Circuit resident may be dismissed for res judicata. For a discussion of res judicata in Polaski class member claims, see section VI. C.
IV. Definition of Class
As stated in the Polaski court order, potential Polaski class members are:
All persons who, at the time their applications were processed, resided in Minnesota, North Dakota, South Dakota, Nebraska, Iowa, or Arkansas and who:
applied for title II or title XVI benefits: and
alleged that they are unable to work in whole or in part as a result of pain or other subjective complaints; and
received final adverse administrative determinations or decisions on their claims dated as follows:
In Minnesota, North Dakota, South Dakota, and Nebraska, those persons who received an adverse decision on their claims at any level of the administrative review process between January 30, 1984, and July 17, 1984, inclusive;
In Iowa, those persons who received an adverse decision on their claims at any level of the administrative review process between November 26, 1983, and July 17, 1984, inclusive; or
In Arkansas, those persons who received an adverse decision on their claims at the ALJ or Appeals Council (AC) levels between February 20, 1984 and July 17, 1984, inclusive.
The district court orders which this TI implement do not apply to Missouri residents. The pending class action in Boyd, et al. v. Secretary applies to Missouri residents with previously denied claims involving pain or other subjective complaints. As of the publication of this TI, the Boyd court has not yet issued a final implementation order.
An individual's residency at the time of the final adverse decision or determination is controlling for purposes of determining class membership. This is particularly important because of the different timeframes in each jurisdiction. For example, a resident of Nebraska who received an adverse determination dated November 30, 1983, from the Iowa Disability Determination Service (DDS), is not a class member, but a resident of Iowa who received an adverse determination dated November 30, 1983, from the Nebraska DDS, is a class member.
Only those individuals whose adverse determinations or decisions were based on medical or medical-vocational grounds can qualify for class membership. A res judicata dismissal qualifies a person for class membership as long as all of the other requirements are met with respect to that dismissal, i.e., the individual received the dismissal within the applicable timeframe for class membership, and the prior determination or decision was based on medical or medical-vocational grounds.
Excluded from class membership are individuals who received adverse determinations or decisions based on reasons other than medical or medical-vocational grounds, such as failure to cooperate, whereabouts unknown, or technical reasons such as no insured status. (See question 8.a. on the Polaski screening sheet in Attachment C.)
In order to be a class member, the individual must have received a final determination or decision on his or her claim which was dated within the applicable timeframe for class membership. Therefore, if an individual received a determination or decision dated within the applicable timeframe for class membership, appealed that determination or decision, and received a final determination or decision dated after July 17, 1984, that person is not a Polaski class member. (See question 8 on the Polaski screening sheet in Attachment C.)
A potential Polaski class member received an ALJ decision dated April 17, 1984, that would qualify him for class membership. However, the claimant requested AC review and received a final decision from the AC dated July 29, 1984. This claimant is not a Polaski class member. However, if the AC had denied the claimant's request for review on July 29, 1984, instead of issuing a decision on the merits, the ALJ decision of April 17, 1984, would have become the final decision of the Secretary and the claimant would be a Polaski class member.
Similarly, a claimant may have received a determination or decision dated during the applicable timeframe for class membership which became final through lack of appeal or exhaustion of administrative remedies. If SSA reopened and revised that final determination or decision after July 17, 1984, either at the claimant's request or on its own initiative, the revised determination or decision would have become final, if not appealed, and the individual would not be a class member. (See question 8 on the Polaski screening sheet in Attachment C.)
V. Implementation of Court Order
The Polaski court orders require the Secretary to reopen and reconsider the claims of most class members at the DDS reconsideration level with full appeal rights to the next level of appeal, i.e., an ALJ hearing. The only Polaski claims which will come directly to OHA for review are Arkansas claims. As used in the remainder of this TI, an “Arkansas claim” refers to a claim by an individual who is a potential or actual Polaski class member by virtue of having been an Arkansas resident at the time an ALJ or the AC issued the decision qualifying him or her for class membership, regardless of current state of residence. A “non-Arkansas claim” is a potential or actual Polaski class member claim in which the claimant resided in Minnesota, North Dakota, South Dakota, Nebraska, or Iowa at the time SSA issued the determination or decision qualifying him or her for class membership, regardless of current residence.
Except as noted herein, hearing offices (HOs) and the AC must process Polaski review claims according to all other current adjudicatory practices and procedures such as coding, scheduling, evidence development, adjudication, routing, attorney representation issues, etc. Use current medical listings and other criteria when adjudicating class member claims.
B. Proqram Service Center, Field Office and DDS Actions
SSA headquarters sent system-generated notices to all potential class members advising them of their rights under the court orders and offering them the opportunity to request that their claims be reviewed again. The Program Service Centers (PSCs) will screen each response to ensure that the individual replied to the notice of potential class membership within 35 days after the notice was mailed. The PSCs will associate each response with the claim file and forward the file for screening. The PSCs will send Arkansas claims to OHA headquarters and non-Arkansas claims to the appropriate DDSs. The PSCs will send all untimely responses to the servicing Social Security field offices for development of good cause for the untimely responses.
The field office will deem that good cause exists for a late response if the claimant alleges a mental impairment or the record reflects a mental impairment. If a mental impairment is not involved, the field office will develop good cause for the late response and apply the same regulatory standard (20 C.F.R. 404.911 and 416.1411) for finding good cause as SSA applies to any other missed deadline for requesting review. The field office will send notices to those claimants who do not show good cause for failing to respond timely to the potential class membership notice. That notice explains that SSA will not review the claim under Polaski because the claimant did not respond timely. These determinations not to review a responder's claim because the response was untimely will be reviewable in the same manner as any other class membership denial, as explained in section C. 3. below. If the field office finds good cause for the late response, it will forward the folder to OHA or the appropriate DDS for class membership screening.
Office of Appellate Operations Actions
OHA headquarters staff will screen most Arkansas claims for class membership. The PSCs will use system-generated folder alerts to retrieve the Arkansas claim files and will send the files to the Office of Appellate Operations (OAO). Upon receipt of the folder, the Docket and Files Branch (DFR) of OAO will code in receipt on the Case Control System (Code: 5012). DFB will also keep a running tally of the number of Polaski claims received for screening.
If the system-generated folder alert shows that a potential class member folder from any state is associated with a subsequent claim pending at the AC level, the PSC will send the folder alert to the Division of Litigation Analysis and Implementation (DLAI) in the Office of Civil Actions. DLAI will forward the folder alert to the Office of the Deputy Director for Operations, OAO, for action. That office will send the alert to the OAO Program Review Branch which is processing the subsequent claim. The paralegal specialist to whom the claim is assigned will make the class membership determination. The AC must not take any action on the subsequent claim until the claimant's class membership status is resolved.
If a potential Polaski class member from any state has a subsequent claim pending at the ALJ level, DLAI will send the folder alert to the HO processing the subsequent claim. The Supervisory Staff Attorney or his or her designee will make the class membership determination. The ALJ must not take any action on the subsequent claim until the claimant's class membership status is resolved.
HO and OAO Actions
If the HO or OAO receives a folder alert but does not have the prior folder, note on the alert that you do not have the file and send the alert to DLAI at the following address:Office of Civil Actions
Division of Litigation Analysis
P.O. Box 10723
Room 302, BCT II
Arlington, VA -22210
Attn: Polaski Coordinator
DLAI will return the folder alert to the PSC to locate or reconstruct the prior folder for class membership determination.
Use the screening instructions contained in Attachment B and the Polaski screening sheet at Attachment C to screen for class membership.
Res judicata is not a basis for denial of class membership.
Follow existing procedures for contacting the local Social Security field office if any additional information is needed to make the class membership determination. Also, develop information in the file which indicates an individual may be a class member. For example, block 10 of the SSA-831-U5 or other information in the folder may indicate that there are one or more other claims which might be subject to readjudication under the Polaski order. Document the claim file regarding any development undertaken.
The individual making the class membership determination must sign the screening sheet. File the original screening sheet in the claim file and send a copy of the first page to DLAI at the address shown on page 7.
D. Timeliness of Class Membership Determinations
On May 5, 1989, the district court ordered the Secretary to complete class membership determinations, begin readjudication of the claims of class members and issue denial of class membership notices to those found not to be class members by August 14, 1989. Accordingly, all OHA personnel involved in screening cases for Polaski class membership must do so expeditiously in order to meet the court-ordered deadline.
E. Non-Class Member Determinations
Use Attachment D for title II claims and Attachment E for title XVI claims to notify individuals that they are not class members. In concurrent claims, send two separate notices. For each notice, send a copy to the responder's representative, if one is shown in file, and file a copy in the claim file.
A specific field office in each state in the Eighth Circuit (except Missouri) has been designated to serve as a contact point for class membership issues. These offices are listed in Attachment F. The designated Polaski field offices will hold non-class member claim files for 120 days for review by the plaintiffs' counsel or co-counsel. Transmit all non-class member claim files to the field office which has been designated to service the responder's state using the route slip in Attachment G. Enter the claim file transfer on the Case Control System; see Attachment F for the destination codes.
Upon review of the files, plaintiffs' counsel will contact the Office of the General Counsel directly if there is any class membership dispute. The district court will resolve any disputes which the parties are unable to resolve. Refer any inquiries concerning non-class membership determinations to DLAI.
If the claimant is not a Polaski class member, it is not necessary to consolidate or otherwise coordinate action on the class membership determination with action on a subsequent claim pending at the ALJ or AC levels. However, if there is a subsequent claim pending, photocopy any material contained in the prior folder which is pertinent to the subsequent claim and place it in the subsequent claim folder before shipping the non-class member folder to the field office designated to service the responder's state.
Following completion of these actions, resume processing the subsequent claim.
F. Initial Handlins of Polaski Class Member Claims
For Arkansas claims screened by OAO in which there is no subsequent claim pending at the AC, the analyst will use the route slip in Attachment H to send the Polaski class member folder to the HO servicing the claimant's current address. Reflect the claim file transfer on the Case Control System. For non-Arkansas claims in which there is no subsequent claim pending at the AC, send the claim to the DDS servicing the claimant's current address.
If a Polaski class member from any state has a subsequent claim pending at the AC level, send an option notice, as explained in G. below.
For Arkansas claims screened in the HO in which a subsequent claim is pending before an ALJ, consolidate the Polaski review with the pending claim. See Section B. in Part VI. below for more information on consolidation. If the claimant is a non-Arkansas Polaski class member who has a subsequent claim pending at the ALJ level, OHA must send the claimant an option notice. See G. below for further information concerning the option procedure.
G. Option Notice Procedures
Under the terms of the district court's order of February 14, 1989, the Secretary must notify any Polaski class member with a subsequent claim pending at the ALJ hearing level or the AC level of the right to choose to proceed with the subsequent claim or have it consolidated with the Polaski claim. Accordingly, SSA and the plaintiffs' counsel have developed option notices, which OAO and the HOs will use to notify these claimants of their options, as well as reply forms which the claimants will use to respond.
Option 1 is the consolidation option. Option 1 is to have the subsequent claim and the Polaski claim reviewed together by the component performing the Polaski review. Option 2 is the separate processing option. It calls for OHA to proceed with the action on the current claim and for the component which will conduct the Polaski review to defer action on the class member claim until the Secretary issues a final decision on the subsequent claim.
The reply form asks the claimant to select an option, sign the form and return it to the ALJ or AC as appropriate. The claimant must mail the reply form back within 10 days from the date of receipt of the option notice. Assume that the claimant received the option notice within 5 days after the date of the notice. If there is no response within 10 days, assume the claimant wants option 1, the-consolidation option.
OAO will send option notices and reply forms as follows:
Attachment I- Arkansas Class Member With Claim Pending at the AC
Attachment J - Enclosure to Send With Attachment I
Attachment K - Non-Arkansas Class Member With Claim Pending at the AC
Attachment L - Enclosure to Send With Attachment K
If the claim is before the AC on its own motion, rather than on a claimant's request for review, modify the language in the standard notice. Enclose a self-addressed, franked envelope. Send a copy of the notice and the enclosure to the claimant and the claimant's representative, if there is one, and place a copy of the notice and enclosure in the claim file. Diary the case for 25 days.
If the claimant elects option 1, the consolidation option, or does not respond within 10 days of receiving the option notice, the AC will:
take no further substantive action on the subsequent claim;
vacate the ALJ hearing decision; and
remand the subsequent claim to the component which will be conducting the Polaski review. The HO servicing the claimant's current address will conduct the review in Arkansas claims; the servicing DDS will conduct the review in non-Arkansas claims.
Use the language in Attachment M to remand Arkansas claims to an ALJ and Attachment N to remand non-Arkansas claims to a DDS. Attachment O is a covering notice transmitting the AC remand order; select the appropriate language depending on whether you use it to transmit Attachment M or Attachment N.
If the claimant elects option 2, the separate processing option, the AC will continue with its action on the request for review or own motion review. Because the Polaski review will not take place until after the decision on the subsequent claim becomes final, there is no need to separate the subsequent claim file from the Polaski review file.
Send copies of all reply forms electing option 2 to DLAI at the address shown on page 7 of this instruction. In addition, attach an Option 2 Claim Flag (Attachment U) to the outside of both the Polaski review claim file and subsequent application claim file. As indicated on the flag, send a copy of the AC's final disposition in all option 2 claims to DLAI. DLAI will establish controls on all option 2 claims and ensure that they are forwarded to the appropriate DDS or HO after the decision on the subsequent claim becomes final.
The court order requires Arkansas claims to be readjudicated at the ALJ hearing level. Therefore, there is no option notice for Arkansas claims in which a subsequent claim is pending at the ALJ level because both reviews will be conducted at the same adjudicative level. See section VI. B. below for further information on consolidation.
The HO will send option notices in non-Arkansas claims using the following attachments:
Attachment P - Non-Arkansas Class Member With Claim Pending at ALJ Level
Attachment Q - Enclosure to Send With Attachment P
Enclose a self-addressed, franked envelope with the option notice. Send a copy of the notice and the enclosure to the claimant and the claimant's representative, if there is one, and place a copy of the notice and enclosure in the claim file. Diary the case for 25 days.
If the claimant elects option 1, the consolidation option, ordoes not respond within 10 days of receiving the option notice, the ALJ will remand the subsequent claim to the DDS servicing the claimant's current address for consolidation with the Polaksi review claim.
Use the language in Attachment R to remand the claim to the appropriate DDS. Attachment S is a covering notice transmitting the ALJ's remand order; select the appropriate language according to whether the claimant elected option 1 or failed to respond to the option notice within 10 days of receipt.
If the claimant elects option 2, the separate processing option, the ALJ will continue with his or her action on the request for hearing on the subsequent claim. Because the Polaski review will not take place until after the decision on the subsequent claim becomes final, there is no need to separate the subsequent claim file from the Polaski review file.
Send copies of all reply forms electing option 2 to DLAI at the address shown on page 7 of this instruction. In addition, attach an Option 2 Claim Flag (Attachment U) to the outside of both the Polaski review claim file and the subsequent application claim file. As indicated on the flag, send a copy of the ALJ's final disposition of the claim to DLAI. DLAI will establish controls on all option 2 claims and ensure that they are forwarded to the appropriate DDS or HO after the decision on the subsequent claim becomes final.
VI. OHA Adjudication of Class Member Claims
Pursuant to the court's order of May 5, 1989, the Secretary must complete the screening and commence, but need not complete, the readjudication of readily located class members' claims by August 14, 1989.
All decisions in Polaski class member claims, as well as all other decisions within the jurisdiction of the Eighth Circuit, must indicate that we have applied Polaski v. Bowen 739 F.2d 1320 (8th Cir. 1984) (Attachment A), when deciding claims involving allegations of pain or other subjective complaints. The decision rationale must reflect careful consideration of all pertinent facts in accordance with the pain standard enunciated in Polaski for Eighth Circuit claims.
Pursuant to the Polaski court order, we must fully readjudicate the claim of each class member to determine whether the claimant was disabled at any time from the date of onset alleged in the Polaski review claim up to the present (or, if earlier, up to the date last insured in title II cases). The ALJ must ensure that the record is fully documented for the entire period at issue. The ALJ must follow normal case development procedures to obtain necessary evidence for the entire reopened period. Arkansas class members having their claims readjudicated at the hearing level have a right to a hearing and a right to submit additional evidence relating to the disabling condition(s) alleged in the Polaski claim.
For Arkansas Polaski class member claims in which there is no subsequent claim pending at the hearing level, HOs should use the date of receipt from OHA headquarters as the request for hearing date.
B. Consolidation of Polaski Review With a Pending Subsequent Application
The only Polaski review claims which we will consolidate at the ALJ level of review with an appeal on a subsequent application are:
Arkansas Polaski claims in which a subsequent claim is pending at the ALJ hearing level, and
Arkansas Polaski claims in which a subsequent claim is pending at the AC and the claimant elects option 1, the consolidation option.
The ALJ's action following consolidation will depend on the status of the pending claim at the time of consolidation and whether the issues are the same. For example, the Polaski claim may involve an earlier alleged onset date than the subsequent claim. The Polaski claim would thus raise an additional issue of disability between the first alleged onset date and the second. If the ALJ has already held a hearing at the time the Polaski review claim is consolidated with the subsequent claim, the ALJ will need to notify the claimant of the new issue and hold a supplemental hearing if payment from the earliest alleged onset cannot be made. In all instances, the ALJ will issue a combined decision which considers both the Polaski review claim and the subsequent claim.
C. Effect of a Previously Decided Subsequent Claim
The Polaski class member may have filed a new claim and received a final determination or decision before the Polaski review begins, or the claimant may have elected to defer the Polaski review pending the outcome of his or her appeal of a determination or decision on a subsequent claim (option 2 cases).
Under the terms of the court order, SSA, in reopening and issuing new determinations or decisions on Polaski class member claims, will apply the normal rules of administrative res judicata as described in the regulations with respect to any final determinations or decisions made after July 17, 1984.
A claimant received a March 1984 ALJ hearing decision which qualifies him for Polaski relief. The ALJ's decision ruled on the period from the alleged onset date in July 1982 through the date of the decision in March 1984. The claimant filed a new application in August 1984, alleging the same onset date; a second ALJ considered the entire period from the alleged onset date in July 1982 through the date of her decision in July 1986. An ALJ or DDS now has the first claim to reopen and review pursuant to the Polaski court order. If the claimant has submitted no additional evidence, and all other conditions for a res judicata dismissal are present, the Polaski class member claim can be dismissed entirely for res judicata because the entire period at issue has already been considered under the Polaski standard.
In the example above, the second ALJ might have dismissed the request for hearing with respect to the issue of disability during the previously adjudicated period from July 1982 through March 1984 on the basis of res judicata. In this instance, the second ALJ would have only considered the merits of the period from the date of the first ALJ's decision in March 1984 through the date of her decision in July 1986. A DDS or ALJ conducting the Polaski review in 1989 must reopen the first claim and consider the period from the July 1982 to March 1984. However, the issue of disability after March 1984 can be dismissed on the basis of res judicata because that period has already been considered under the Polaski standard.
D. Substantial Gainful Activity Denials
The court order directs that no class member shall be denied benefits on the basis of substantial gainful activity unless the record conclusively shows that the person actually engaged in substantial gainful activity for the entire period of his or her alleged disability or for such a period as would preclude him or her from establishing a 12 month period of disability.
E. 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.
Hearing office personnel may call the Regional Office. Regional Office personnel may call the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge on FTS 235-3504. Headquarters personnel may call DLAI on 235-3743.