I-5-4-29.Begley, et al. v. Sullivan

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Inquiries
Attachment 1 - District Court Order dated November 19, 1990
Attachment 2 - District Court Order dated January 2, 1992
Attachment 3 - Begley Screening Sheet
Attachment 4 - Route Slip or Case Flag for Screening
Attachment 5 - Route Slip for Routing Class Member Alert and Prior Claim Folder(s) to ODIO or PSC (OHA No Longer Has Current Claim)
Attachment 6 - Notice of Non-Class Membership
Attachment 7 - Route Slip or Case Flag for Routing Non-Class Member Claim Folders to a Servicing Field Office
Attachment 8 - Route Slip or Case Flag for HO Use (for DDS Readjudication)
Attachment 9 - Sample Dismissal Order Language
Attachment 10 - Route Slip or Case Flag for Headquarters Use (DDS Readjudication)

ISSUED: May 20, 1992; REVISED: May 14, 1993

I. Purpose

This Temporary Instruction (TI) sets forth the procedures for implementing the April 20, 1990, November 19, 1990, February 25, 1991 and January 2, 1992 orders of the U.S. District Court for the Eastern District of Tennessee in the Begley, et al. v. Sullivan class action involving the standard for determining disability in surviving spouse claims.

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

II. Background

On October 21, 1988, plaintiffs filed a class complaint challenging the Secretary's listings-only policy of evaluating disability with respect to the title II claims of widows, widowers and surviving divorced spouses.[1] The U.S. District Court for the Eastern District of Tennessee certified the class on September 25, 1989 (see Part IV. below, for class definition).

On April 20, 1990, the district court resolved the substantive issues when it granted plaintiffs' class and individual motions for summary judgment. The court held that adjudicators must consider residual functional capacity when they find that a widow's impairment(s) does not meet the specific criteria of the listings. The court reasoned that the stricter statutory standard for surviving spouses did not justify the Secretary's “inflexible” equivalency approach.

On November 19, 1990, the district court issued an order setting forth the terms for implementation of class relief, but specifically declined to announce a new disability evaluation standard for widows (Attachment 1). The court noted that, “the Secretary and not this Court has the duty, power and authority to make rules and regulations and to establish procedures consistent with the provisions of the Social Security Act to carry out its provisions.” The court directed the Secretary to submit a new standard for evaluating disability in widows' claims. In response, the Secretary submitted the Kier Acquiescence Ruling (AR) as the disability evaluation standard. On February 25, 1991, the court overruled plaintiffs' objections and approved the Kier AR standard.

On November 5, 1990, Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (Pub. L. 101-508). Section 5103 of OBRA 90 amended section 223 of the Social Security Act to repeal the special definition of disability applicable in widows' claims and conform the definition of disability for widows to that for all other title II claimants and title XVI adult disability claimants. The amendment became effective for entitlement to monthly benefits payable for January 1991, or later, based on applications filed or pending on January 1, 1991, or filed later.

On May 22, 1991, the Commissioner of Social Security rescinded the Kier AR and published Social Security Ruling (SSR) 91-3p to provide a uniform, nationwide standard for the evaluation of disability in widows' claims for the pre-1991 period. On January 2, 1992, the district court approved the Secretary's motion to substitute SSR 91-3p for the previously court-approved Kier AR standard and affirmed the Secretary's draft class relief processing instructions (Attachment 2).

III. Guiding Principles

Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in Begley class member claims. The disability evaluation standard enacted by OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later. (See HALLEX TI 5-315, issued February 11, 1991, for further instructions on processing disabled widows' claims under the provisions of § 5103 of OBRA 90.) The disability evaluation standard announced in SSR 91-3p must be used for the evaluation of disability and entitlement to benefits payable for the pre-1991 period.

The district court's November 19, 1990 order contains detailed provisions for the implementation of class relief. The pertinent provisions are summarized below.

  • The Secretary shall readjudicate all class member claims in accordance with the instructions issued pursuant to the court's order, using the standards described above.

  • The type of review and the period to be considered depend on whether the claim subject to review was an initial claim or a cessation case (see Part VI.B. below, for a more detailed explanation).

    • If the claim subject to review is an initial claim, the type of review to be conducted is a “redetermination.”

    • If the claim to be reviewed is a cessation case, the type of review to be conducted is a reopening.

The Tennessee Disability Determination Section (DDS) will have review jurisdiction for Begley cases, even if the claimant no longer resides in Tennessee, except that:

  • if the Tennessee DDS issues a cessation determination, the claimant is entitled to a face-to-face hearing and the “resident” DDS will assume review jurisdiction;

  • if there is a subsequent claim pending adjudication in another state, a DDS Disability Hearing Unit or in OHA, the Begley claim folder(s) will be sent to the office with jurisdiction of the pending claim for screening, consolidation consideration and readjudication, if consolidated (see Part VI.E. below, for OHA consolidation instructions).

IV. Definition of Class

On September 25, 1989, the U.S. District Court for the Eastern District of Tennessee certified a class consisting of:

“All Tennessee residents who have claimed, are claiming, or will claim initial or continued disability benefits as a widow, widower or a surviving divorced spouse under Title II of the Social Security Act, as amended, whose claims were, are or will become subject to any policy or practice on the part of the defendant Secretary of determining disability without weighing the combined effects and impacts of the claimants' multiple impairments, or without considering and assessing such multiple impairments or the claimants' residual functional capacities, who received or will receive from the defendant Secretary (or a responsible State agency) adverse decisions concerning their claims for such Title II disability insurance benefits, but limited to those Tennessee residents whose notices of such adverse decisions concerning their claims for such Title II disability insurance benefits are dated not earlier than 65 days before October 21, 1988, and to any additional Tennessee residents who received notices of such adverse decisions, regardless of the dates of the notices, not earlier than 60 days before October 21, 1988.”

For purposes of implementing the November 19, 1990 order, the class consists of all individuals who:

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

  • were residents of Tennessee at the time their claim was denied or ceased for medical reasons; and

  • were issued a final adverse administrative determination or decision between August 15, 1988, and May 22, 1991, inclusive, or did not receive notice of such adverse determination or decision until on or after August 20, 1988.

    NOTE:

    The Begley class effectively closed with the Secretary's publication of SSR 91-3p on May 22, 1991. Adjudications under the OBRA 90 and SSR 91-3p standards satisfy the Begley court's mandate.

    In the rare instance in which a Begley class member filed a subsequent claim raising issues identical to those raised in the prior claim, the class member claim will be processed by the state DDS as a res judicata denial if the subsequent claim was finally adversely decided after May 22, 1991, adjudicated under the OBRA 90 and SSR 91-3p standards and resolved all class member relief issues (see Part VI.E.4. below).

V. Determination of Class Membership and Preadjudication Actions

A. Non-OHA Actions

Potential class members will be identified by computer run, and system-generated notices will be mailed by first class mail. Individuals have 60 days (unless extended for good cause) from the date of receipt of the notice to request Begley review by returning a Begley Court Case Review Request form in a selfaddressed postage-paid envelope provided. A systems-generated acknowledgment letter will be sent when a timely reply is received. District offices will develop good cause in those cases where a reply is not received timely. Unless there is a subsequent claim (current claim) pending that could cause jurisdiction to shift to another state or OHA, class membership screening will be done by the Tennessee DDS and a copy of the screening sheet (Attachment 3) will be placed in the claim file. The screening component will send notice of non-class membership and return non-class member files, pending possible review in the event of a class membership dispute, to:

Social Security Administration
530 Gay Street, Suite 425
P.O. Box 1312
Knoxville, TN 37902

Class membership disputes will be resolved by negotiations between the claimant or his or her counsel and the Secretary, or, if necessary, by the court.

In general, the Office of Disability and International Operations (ODIO) or the Program Service Centers (PSCs) will associate computer-generated potential class member alerts with the potential class member claim folder(s) and forward them to the Tennessee DDS for screening and readjudication. However, if ODIO or the PSC determines that a current claim is located in OHA (pending in the hearing office (HO) or Headquarters, or stored at Headquarters), ODIO or the PSC will forward the alert along with any potential class member claim files not in OHA's possession to OHA for association and necessary action, i.e., screening, consolidation consideration, and readjudication (if consolidated). All potential OHA jurisdiction alerts, and related prior claim folders, will be sent to the Office of Civil Actions (OCA), Division III, at the following address:

Office of Hearings and Appeals
Office of Civil Actions, Division III
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: Begley Screening Unit - Suite 704

NOTE:

In general, ODIO or the PSCs will coordinate any necessary reconstruction of prior claim folders.

Generally, a claim folder will be considered lost if it cannot be located within 120 days of the date the file search is initiated.

B. OHA Actions

In general, cases will be screened by the same component (DDS or OHA) that readjudicates the case.

  1. Pre-Screening Actions

    1. Current Claim Pending; No Class Member Prior Claims

      • Absent evidence to the contrary, all claims adjudicated subsequent to the May 22, 1991 publication of SSR 91-3p are presumed to have been adjudicated under standards that comply with the mandates of the Begley court orders. Claims adjudicated under the provisions of OBRA 90 and SSR 91-3p are not class member claims. No formal screening of these claims is necessary.

    2. Current Claim Pending; Alert Received; Prior (Inactive) Potential Begley Claim(s) Associated

      • If OCA determines that the current claim is pending in a HO, OCA will forward the alert and the prior claim folder(s) to the HO for screening. (See Attachment 4.)

      • If OCA determines that a current claim is pending before the Appeals Council, OCA will forward the alert and the prior claim folder(s) to the appropriate OAO branch for screening. (See Attachment 4.)

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

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

      • If OCA determines that a current claim is pending in court, it will notify OGC. (See Part VI.E.4. below.)

  2. Screening

    • The screening component must associate the alert, if any, and any prior claim folder(s), with the claim folder(s) in its possession. The screening component will then complete the screening sheet. (See Attachment 3.)

    • The individual performing the screening must place the original screening sheet in the claim folder (on the top right side of the file) and forward a copy of the screening sheet to:

      Office of Hearings and Appeals
      Office of Civil Actions
      Division of Litigation Analysis
      and Implementation
      P.O. Box 10723
      Arlington, VA 22210

      ATTN: Begley Coordinator - Suite 702
    • If the hearing office or OAO branch receives an alert only or an alert associated with a prior claim folder(s) for screening, and no longer has the current claim folder, it will return the alert and prior claim folder(s) to OCA, Division III (see address in Part V.A. above), and advise as to what action was taken on the current claim. OCA will determine the folder location and forward the alert and any accompanying prior claim folder(s) to that location. (See Attachment 5.)

  3. Post-Screening Actions

    1. Cases Determined Not to be Class Members

      • On determining that an individual is not a class member, the HO or Headquarters screening component must provide the individual, and representative, if any, with notice of non-class membership (Attachment 6), and must place a copy of the notice in the claim folder.

      • The HO or Headquarters screening component must also provide class counsel with a copy of the notice of non-class membership. Send such notice to:

        Rural Legal Services of Tennessee, Inc.
        P.O. Box 5209
        Oak Ridge, TN 37831
        ATTN: Lenny L. Croce

        NOTE:

        In cases involving a current claim, screeners may need to modify the notice of non-class membership to fit the circumstances and posture of the case.

      • An individual who has been determined “not a class member” may appeal the determination, either directly or through class counsel. The notice of non-class membership explains the individual's appeal options.

      • On completion of the screening component's actions, non-class member claim folders must be routed to:

        Social Security Administration
        530 Gay Street, Suite 425
        P.O. Box 1312
        Knoxville, TN 37902

        Attach a copy of the case flag provided in Attachment 7.

    2. Cases Determined to be Class Members

      • On determining that an individual is a class member, the responsible HO or Headquarters component will proceed with processing and adjudication in accordance with the instructions in Part VI. below.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

The Tennessee DDS will conduct the first Begley review except for cases consolidated at the OHA level (see Part VI.E. below). The DDS determination will be an initial determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., reconsideration, Administrative Law Judge hearing, Appeals Council and judicial review). Administrative Law Judges should process and adjudicate requests for hearing on Begley DDS review cases in the same manner as for any other case.

B. Type of Review and Period to be Considered in Begley Claims

The type of review and the period to be considered depend on whether the claim subject to review was an initial claim or a cessation case.

  1. If the claim subject to review is an initial claim, the type of review to be conducted is a “redetermination.” The readjudication shall be a de novo reevaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period of time at issue in the administrative decision(s) that forms the basis of the claimant's class membership. If the readjudication results in a favorable decision, the adjudicator must determine whether the class member's disability has been continuous through the date of the readjudication.

  2. If the claim to be reviewed is a cessation case, the type of review to be conducted is a reopening. The readjudication shall be an assessment of the class member's disability from the date disability was previously ceased through the date of the readjudication.

C. Processing and Adjudicating Current Claims; No Class Member Prior Claims

All claims adjudicated subsequent to the May 22, 1991 publication of SSR 91-3p are presumed to have been adjudicated under standards that comply with the mandates of the Begley court orders, absent evidence to the contrary. Claims adjudicated under the provisions of OBRA 90 and SSR 91-3p are not class member claims.

D. Claim at OHA But No Current Action Pending

If a claim folder (either a class member or a subsequent claim folder) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the folder awaiting potential receipt of a request for review or notification that a civil action has been filed, OCA will associate the alert with the folder and screen for class membership.

  1. If the 120-day retention period for holding a claim folder after an ALJ decision or Appeals Council action has expired, OCA will attach a Begley class member flag (see Attachment 8) to the outside of the folder and send the claim folder(s) to the Tennessee DDS for review of the Begley class member claim (see Part III. above).

  2. If less than 120 days has elapsed, OCA will attach a Begley class member flag to the outside of the folder (see Attachment 8) to ensure that the case is routed to the Tennessee DDS after expiration of the retention period (see Part III. above). Pending expiration of the retention period, OCA will also:

    1. return the unappealed ALJ decisions and dismissals to DFB, OAO; and

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

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

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

  1. General

    If a class member has a current claim pending at any administrative level, all Begley class member claims will be consolidated with the current claim at the level at which the current claim is pending.

    EXCEPTION:

    In general, consolidation will not occur at the Appeals Council Level (see Part VI.E.3. below for more specific instructions in this regard).

  2. Current Claim Pending in the Hearing Office

    Disposition of a Begley review claim that is first associated with a current claim pending at the hearing level depends on whether a hearing has been scheduled or held and on whether the claims share a common issue.

    1. Request for Hearing Cases in Which a Hearing Has Been Scheduled or Held, and All Remand Cases

      If a Begley class member has a request for hearing pending on a current claim and the Administrative Law Judge has scheduled or held a hearing, the Administrative Law Judge must consolidate the Begley review with action on the current claim. The Administrative Law Judge must also consolidate the claims if the Begley class member's current claim is before the Administrative Law Judge on remand from the Appeals Council or a court.

      If the Begley review claim raises any additional issue(s) not raised by the current claim, the Administrative Law Judge must give proper notice of the new issue(s) as required by 20 CFR § 404.946(b). If the Administrative Law Judge has already held a hearing and the Begley review claim raises an additional issue(s), the Administrative Law Judge must offer the claimant a supplemental hearing unless the Administrative Law Judge is prepared to issue a decision that is wholly favorable with respect to the Begley claim.

      In all instances in which claims are consolidated, the Administrative Law Judge must issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Begley review. The decision must reflect consideration of the Begley claim pursuant to the Begley court orders. Thus, if the Administrative Law Judge is prepared to issue a favorable decision on a Begley initial claim, or if the Begley claim is a cessation case, the new decision must clearly indicate that the Administrative Law Judge is reopening the final determination or decision on the Begley claim. If the Administrative Law Judge plans to issue an unfavorable decision on a Begley initial claim, the decision must reflect that the Administrative Law Judge is readjudicating the Begley claim pursuant to the Begley court orders, i.e., adjudicating only through the date of the latest determination/decision subject to Begley review. For class action reporting purposes, the HO must send copies of all consolidated hearing decisions to both:

      Office of Hearings and Appeals
      Office of Civil Actions
      Division of Litigation Analysis
      and Implementation
      P.O. Box 10723
      Arlington, VA 22210

      ATTN: Begley Coordinator - Suite 702

      AND

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

      ATTN: Begley Coordinator

      EXCEPTION:

      The Administrative Law Judge will not consolidate prior and current claims if a court remand contains a time limit and it will not be possible to meet the time limit if the claims are consolidated.

      If the Administrative Law Judge does not consolidate the claims, the HO will route the Begley review claim to the Tennessee DDS for any necessary Begley readjudication action (Attachment 8). The Administrative Law Judge will then take the necessary action to complete the record and issue a decision on the current claim.

    2. Request for Hearing Cases — Hearing Not Scheduled

      If a Begley class member has a request for hearing pending on a current claim and the HO has not scheduled a hearing, the Administrative Law Judge must dismiss the request for hearing without prejudice and send the current claim to the Tennessee DDS for consolidation with the Begley review claim unless the exception below applies. (See Attachment 9 for sample dismissal order language.)

      EXCEPTION:

      The Administrative Law Judge must not dismiss the current claim if the Administrative Law Judge is prepared to issue a fully favorable, on-the-record decision on the current claim.

      If the decision on the current claim would be fully favorable with respect to all the issues raised by the Begley claim, the Administrative Law Judge must consolidate the claims as described in Part VI.E.1. above, and issue a consolidated decision. If the decision would be fully favorable with respect to the current claim only, the decision will be issued and the Begley claim forwarded to the Tennessee DDS for processing.

  3. Current Claim Pending at the Appeals Council

    Disposition of a Begley review claim that is first associated with a current claim pending at the Appeals Council level depends on the action the Appeals Council takes on the current claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. Appeals Council actions on current claims and the corresponding actions on Begley review claims are as follows.

    1. Appeals Council intends to dismiss, deny review or issue a denial decision on the current claim — no Begley issue(s) will remain.

      This situation will usually arise when the current claim duplicates the Begley review claim, i.e., the claims present identical facts and issues, and the current claim has been processed in full accordance with the provisions of TI 5-315 and SSR 91-3p. In this instance, the Appeals Council must consolidate the claims and proceed with its intended action. The Appeals Council's order, decision or notice of action must clearly indicate that the Council's action resolves both the current claim and the Begley review claim.

    2. Appeals Council intends to dismiss, deny review or issue a denial decision on the current claim — Begley issue(s) will remain.

      This situation will usually arise when the current claim does not duplicate the Begley review claim. In this instance, the Appeals Council will proceed with its intended action on the current claim in accordance with the provisions of TI 5-315 and SSR 91-3p. OAO staff must attach a Begley flag (Attachment 10) to the combined class member files. If the claimant does not file a civil action, at the end of the retention period OAO staff must forward the combined files to the Tennessee DDS for review of the Begley class member claim. If the claimant files a civil action, OCA staff will coordinate with OGC, separate the files and forward the Begley class member claim to the Tennessee DDS for separate review. (See Part VI.E.4. for additional instructions with respect to coordination with OGC.)

    3. Appeals Council intends to issue a favorable decision on the current claim — no Begley issue(s) will remain

      • If the Appeals Council intends to issue a favorable decision on the current claim, and the decision will be fully favorable with respect to the Begley claim, the Council should proceed with its intended action.

      • In this instance, the Appeals Council must consolidate the claims. The Appeals Council's decision must clearly indicate that the Council is reviewing the final determination or decision on the Begley claim, issuing a decision that considers both applications and considering the Begley claim pursuant to the Begley court orders.

      • For class action reporting purposes, the Appeals Council must send copies of the decision to the Begley coordinators listed in Part VI.E.2.a. above.

    4. The Appeals Council intends to issue a favorable decision on the current claim — Begley issue(s) will remain

      • If the Appeals Council intends to issue a favorable decision on the current claim that would not be fully favorable with respect to the Begley claim, the Council should proceed with its intended action.

      • OAO staff must include the following language on the transmittal sheet that forwards the case for effectuation:

        Begley readjudication needed — following effectuation, forward the attached combined folders to (insert address of the Tennessee DDS).”

    5. Appeals Council intends to remand the current claim to an Administrative Law Judge

      • If the Appeals Council intends to remand the current claim to an Administrative Law Judge, it should proceed with its intended action.

      • The remand order must direct the Administrative Law Judge to consolidate the Begley review with the current claim pursuant to the instructions in Part VI.E.2.a. above.

        EXCEPTION:

        The Appeals Council must not direct the Administrative Law Judge to consolidate the claims if the claims do not share a common issue. If the claims do not share a common issue, OAO must forward the Begley class member claim to the servicing DDS for separate review. (The Route Slip (or Case Flag) in Attachment 8 should be modified to indicate that the Appeals Council, rather than an Administrative Law Judge is forwarding the Begley class member claim for separate processing.)

  4. Current Claim Pending in Court

    Disposition of a Begley review claim when a current claim is pending in federal court will depend on the nature of the final administrative decision.

    1. If the current claim pending in court was adjudicated in accordance with the provisions of OBRA 90 and SSR 91-3p, and no Begley issue(s) will remain, OCA staff must forward the Begley review claim to DDS for separate review and processing as a res judicata denial. Modify the Route Slip (or Case Flag) in Attachment 8 to indicate that: 1) the class member received a determination or decision on a subsequent claim that was adjudicated in accordance with the provisions of OBRA 90 and SSR 91-3p; 2) the subsequent decision applied the proper standard to the entire time period at issue in the retroactive Begley case; and 3) the Begley case is being forwarded for separate processing in accordance with POMS DI 32598.015B.9.

      OCA personnel may determine whether the current claim was adjudicated pursuant to the provisions of OBRA 90 and SSR 91-3p and whether it covered the entire time period at issue in the Begley case by reviewing the current claim court transcript or claim file.

    2. If the current claim pending in court was adjudicated in accordance with the provisions of OBRA 90 and SSR 91-3p, but Begley issue(s) will remain, i.e., the claims do not present identical issues, e.g., the retroactive periods adjudicated or to be adjudicated are not identical, OCA staff must forward the Begley review claim to DDS for separate review. Modify the Route Slip (or Case Flag) in Attachment 8 to indicate that there is not complete identity of issues with the pending court case and that the Begley class member claim is being forwarded for separate processing.

    3. If the final administrative decision on the claim pending in court was not adjudicated in accordance with the provisions of OBRA 90 and SSR 91-3p or is otherwise legally insufficient, initiate voluntary remand proceedings and consolidate the claims. (See Part VI.E.3.e. above.)

F. Copy Requirements in Consolidation Cases

For all cases in which OHA is the first level of review for the Begley claim, i.e., the Appeals Council or an Administrative Law Judge consolidates the Begley review with action on a current claim, HO, OAO or OCA personnel, as appropriate, must send a copy of any OHA decision to the Begley coordinators at the addresses listed in Part VI.E.2.a. above.

VII. Case Coding

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

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

VIII. Inquiries

Hearing office personnel should contact their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge on FTS 365-0022.

Attachment 1. - District Court Order dated November 19, 1990

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
NORTHERN DIVISION

[Filed November 19, 1990]

JAYNELL BEGLEY, et al.,

)

 

Plaintiffs,

)

 
 

)

 

v,

)

NO. CIV-3-88-0841

LOUIS W. SULLIVAN

)

 

Secretary of the United

)

 

States Department of

)

 

Health and Human Services,

)

 

Defendant.

)

 

and

)

 

MARGARET THACKER,

)

 

Plaintiff,

)

 
 

)

 

v.

)

NO. CIV-3-89-0157

LOUIS W. SULLIVAN

)

 

Secretary of the United

)

 

States Department of

)

 

Health and Human Services,

)

 

Defendant,

)

 

MEMORANDUM OPINION

On April 20, 1990, this Court entered a Memorandum Opinion [doc. 140] and Order [doc. 141] in Begley v. Sullivan, No. 3-88-841, a Social Security class action, in which it adopted the Report and Recommendation of United States Magistrate Robert P. Murrian [docs. 111,132]. The plaintiffs have prevailed on the merits of their claims. The Order entered in Begley v. Sullivan included a Show Cause Order to require the defendant Secretary of Health and Human Services to show cause why the same result should not occur in Thacker v. Sullivan, No. 3-88-157, which has been consolidated with the class action in 3-88-841, to which a response has never been filed by the defendant.

Subsequent to the April 20, 1990, Memorandum Opinion and Order, on April 30, 1990, the individual plaintiff Jaynell Begley filed a motion for additional findings and amendment of the judgment [doc. 171] was entered resolving this individual plaintiff's claims. Left unresolved and presently pending before this Court for disposition at this time are two motions: (1) the plaintiffs' petition for an award of attorney's fees [docs.144, 14 , 162], to which the defendant has replied [doc. 165]; and (2) the plaintiffs' motion for additional class relief [docs. 149, 149A, 166, 168], to which the defendant has filed responses [docs. 163, 172].

I. Plaintiffs' Motion for Additional Class Relief

The plaintiffs seek further relief from this Court in the form of an injunction to require the Secretary to conform to the orders of this Court concerning the proper standard to be applied to disability determinations, to require him to readjudicate the plaintiffs' claims for benefits, to reinstate disability benefits unlawfully terminated, and to grant other relief in the way of oversight by the plaintiffs' counsel in the development and implementation of a new standard for disability determinations, including participation in the revision of this standard as well as in the drafting of regulatory and subregulatory directives and attendance and participation in training of agency employees. The plaintiffs, in short, seek extensive injunctive relief of a sort rarely, if ever, seen in this Court. The plaintiffs also contend that the Secretary has indicated that he will not voluntarily comply with the orders of this Court. The defendant has opposed much of the relief sought and made a counter-proposal as to the relief appropriate.

Although some of the documents in this record could be construed to indicate that the Secretary is apparently reluctant to apply a revised or different disability standard in determinations of eligibility of surviving spouses under Title II of the Social Security Act,1 under 42 U.S.C § 405(a), the Secretary and not this Court has the duty, power and authority to make rules and regulations and to establish procedures consistent with the provisions of the Social Security Act to carry out its provisions. The Court is of the opinion that it does not have the power to order the extensive and intrusive oversight of an executive agency proposed by the plaintiffs and nothing in the record presently before the Court indicates that the defendant will not in fact comply with the law as construed and ordered by this Court. If the Secretary should fail to do so, adequate remedies exist. The presumption that administrators comply with the law is certainly not rebutted on this record and such a finding seems premature before the Secretary is actually given the opportunity to comply with the orders of this Court. See Citizens to Preserve Overton Park, Inc. v. Volpe, 91 S.Ct. 814, 823 (1971). The Secretary's statements appear to be in the nature of preserving for appeal his consistently asserted contention that this Court was erroneous in its conclusions about the requirements of the Social Security Act in this case — something that this Court thinks he is entitled to do. Cf. Wyandotte Savings Bank v. National Labor Relations Board, 682 F.2d 119 (6th Cir. 1982) (agency may attempt to persuade an appellate court to reconsider precedent contrary to agency's position on a question of law).

The Secretary's proposed remedial order contains provisions that to a great extent appear reasonable to this Court. The Secretary agrees to make good faith and timely efforts to submit to this Court a disability determination standard consistent with the Court's April 20, 1990, Memorandum Opinion and Order and to develop instructions regarding the determination of eligibility of surviving spouse claimants for disability benefits under the new standard after the submission of the new standard to this Court. The Secretary will then redetermine the claims of the plaintiff class members.

In implementing the order of this Court, the Secretary has proposed providing the plaintiff's counsel with drafts of proposed instructions for readjudicating the class claims and to allow counsel for the plaintiffs to submit objections to the instructions within 10 days. If any objections are unresolved, they can be submitted to this Court for resolution. The defendant further would provide counsel with documentation of compliance with the Court's order and would allow the plaintiffs' counsel to attend, but not participate in, any training sessions held concerning implementation of instructions. The Secretary also agrees to provide notices to all potential class members, including the names and addresses of plaintiffs' counsel, and will inform any claimant that he or she may contact plaintiffs' counsel for assistance. Copies of these notices will be provided to counsel for the plaintiffs, who may then object to the notices, and unresolved objections can be submitted to this Court for resolution. Other proposed provisions of the Secretary's remedial order appear to be just as reasonable. The Court will enter a modified version of this proposed order as it finds it reasonable and fair for the most part.

One aspect of the plaintiffs' proposed injunctive relief relates to interim reinstatement of benefits for those claimants whose benefits were improperly terminated based on the application of the standard invalidated in this case. The Secretary contends that no authority exists for this Court to order payment of interim benefits to claimants pending redetermination of eligibility as required by the orders of this Court.

In Taylor v. Heckler, 769 F.2d 201 (4th Cir. 1985) the Fourth Circuit reversed the judgement of a district court awarding a claimant interim benefits during the pendency of the remand of the action to the Secretary because it found no authority for such an order of interim benefits. The Fourth Circuit noted that “42 U.S.C. [sect ] 423(g) authorizes interim benefits to individuals appealing the termination of their disability benefits on account of an official determination that they are no longer disabled.” Id., at 202 (citations omitted). Any person who has not been a recipient of benefits is not eligible for interim benefits under this provision. The Fourth Circuit also rejected the contention that the district court had the remedial authority to order such benefits under its power to award injunctive relief. Id. See also Doughty v. Bowen, 839 F.2d 644 (10th Cir. 1988).

If any member of the class in this case was a recipient of benefits that were terminated by the defendant as a result of the application of the standard invalidated by this Court, then those persons would be eligible for interim benefits, but no person whose eligibility was denied upon initial application is entitled to interim benefits. An award of back benefits would be the only appropriate relief in the cases of claimants whose eligibility was improperly denied in the first instance. This Court has no authority to make a general award interim benefits as a part of the relief for any claimant who had not been receiving benefits at the time of the determination of ineligibility. Neither the definition of the class certified in this case [doc. 64], which includes “[a]ll Tennessee residents who have claimed, are claiming, or will claim initial or continued disability benefits as a widow, a widower or a surviving divorced spouse,” not the record made before this Court permits the Court readily to identify who among the class would be eligible for interim benefits.

Moreover, 42 U.S.C. § 423(g) does not require the payment of such benefits; rather, this section permits claimants whose benefits have been terminated to elect to receive continued payments during appeal but if the appeal should ultimately fail these payments are considered overpayments, the repayment of which the Secretary may waive under 42 U.S.C § 423(g)(2)(B). The Court is of the opinion that payment of back benefits to all claimants who are determined to be eligible will provide an adequate remedy. Any appropriate member of the class may of course elect to exercise the statutory option available under 42 U.S.C § 423(g), with its attendant risk of liability for any overpayment.

II. Motion for Attorneys' Fees

The plaintiffs' counsel, Lenny Croce, Donna Lefebvre (both of Rural Legal Services of Tennessee, Inc.), and Kenneth Miller, seek attorneys' fees and costs under the Equal Access to Justice Act, 28 U.S.C § 2412(d)(1))(A)(Cum. Supp. 1990), which provides that “[e]xcept as otherwise specifically provided by statute, a court shall award a prevailing party other than the United States fees and other expenses ...incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” Fees are awardable only if the party prevails, the position of government was no substantially justified, and no special circumstances make an aware unjust. See Commissioner, Immigration and Naturalization Service v. Jean, 110 S.Ct. 2316, 2319 (1990).

Counsel seek fees in the following amounts: $47,925.00 for Mr. Croce, for 355 hours at $135 per hour; $6006.50 for Ms. Lefebvre, for 73.25 hours at $82.00 per hour; and $2532.08 for Mr. Miller, for 24.5 hours at $103.35 per hour. Counsel each claims that the hourly rate of $75.00 provided in the statute should be adjusted for increases in the cost of living.

Under subsection (d)(1)(C)(2)(A), “attorney fees shall not be awarded in excess or $75 per hour unless the court determines that an increase in the cost of living or a special factor such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee . . . .” The Sixth Circuit has held that under the terms of the stature the $75.00 per hour rate is a ceiling and not a floor and that cost of living increases are not automatically added. See Chipman v. Secretary of Health and Human Services, 781F.2d 545, 547 (6th Cir. 1986). The stature contemplates the reasoned exercise of a court's discretion in the determination of the proper award of such fees. See Pierce v. Underwood, 108 S.Ct. 2541, 2553 (1988).

Considering the consistent rejection of the Secretary's position by a number of circuits and for practical purposes by the Supreme Court of the United States itself, the Court is of the opinion that the Secretary's position was not substantially justified. See Pierce v. Underwood, supra at 2552. Cf. Keasler v. United States 766 F.2d 1227 (8th Cir 1985). Futhermore, this Court found that the standard employed by the Secretary in these cases was not supported by case law or by the terms of the Social Security Act and that this standard ignored the severity of the claimant's impairment, manifestly contrary to the mandate of the statute. Although the simple fact that some circuits have not agreed with the Secretary's position does not of itself mean that the Secretary's position was not substantially justified or justified to a degree that could satisfy a reasonable person, Commissioner, I.N.S. v. Jean, supra, at 2319, n.6, the consistent rejection of that position by essentially every Court that has addressed it does indicate that the Secretary was not justified in his position.

Nevertheless, although no circumstances appear that would make an award of attorneys' fees unjust, the Court must reject the amount of the hourly fees sought by the plaintiffs' counsel under the terms of the statute and the controlling precedent. Moreover, the Court does not find that in the market in this locality an hourly fee of $75.00 is reasonable. In view of the extensive amount of Social Security litigation that passes through this Court, no shortage of attorneys exists for the representation of claimants in this area. The Court has concluded that, the experience and effort of each attorney in this case, the hourly rates should be reduced as follows: Lenny Croce shall be awarded $65.00 per hour for 355 hours, totaling $23,075.00; Donna LeFebvre is awarded $50.00 per hour for 73.25 hours, a total of $3,662.50; and Kenneth Miller shall be awarded $65.00 per hour for 24.5 hours, totaling $1,837.50. Costs and expenses in the amount of $3,853.41 shall be awarded. The total attorneys' fees, costs, and expenses awarded come to $32,428.41.

III. Conclusion

Accordingly, the Court ORDERS:

  1. That the plaintiffs' claims for benefits in Begley v. Sullivan, civil action number 3-88-841, and in Margaret A. Thacker v. Louis W. Sullivan, civil action number 3-89-157, are REMANDED to the Secretary of Health and Human Services for action consistent with the Memorandum Opinions and Orders of this Court;

  2. That the plaintiffs' attorneys' motion for attorneys' fees [docs. 144, 148, 162] is GRANTED and they are AWARDED attorneys' fees in the amounts of $23,075.00 to Lenny Croce, $3,662.50 to Donna Lefebvre, and $1,837.50 to Kenneth Miller, together with costs and expenses totaling $3,853.41;

  3. That the motion of the plaintiffs for further relief [docs. 149, 149A, 166, 168] is DENIED IN PART and GRANTED IN PART and all prior decisions of the Secretary denying or terminating disability benefits for the members of the class in Begley v. Sullivan, No. 3-88-841, and in Thacker v. Sullivan, No. 3-89-159, are VACATED pursuant to 5 U.S.C § 706(2)(A) and the defendant Secretary of Health and Human Services (“the Secretary”) shall make all good faith efforts to submit to the Court a disability determination standard that is consistent with this Court's Order and Opinion of April 20, 1990 regarding the determination of eligibility for disability benefits for widow, widower and surviving divorced spouse claimants (hereinafter referred to collectively as surviving spouses) within 14 days of the entry of this Memorandum Opinion and Order. The secretary shall make all good faith efforts to develop, within 60 days of the submission to this Court of the new standard, instructions regarding the determination of eligibility of surviving spouse claimants for disability benefits under the new standard to be used in adjudicating all class members' claims.

  4. That upon development of the disability determination process described in ¶ 3, the Secretary shall redetermine the claims of plaintiff class members, as defined by this Court's order dated September 25, 1989 [doc. 64], to wit:

    All Tennessee residents who have claimed, are claiming, or will claim initial or continued disability benefits as a widower or a surviving divorced spouse under Title II of the Social Security Act, as amended, whose claims were, are or will become subject to any policy or practice on the part of the defendant Secretary of determining disability without weighing the combined effects and impacts of the claimants' multiple impairment, or without considering and assessing such multiple impairments or the claimants' residual functional capacities, who received or will receive from the defendant Secretary (or a responsible State agency) adverse decisions concerning their claims for such Title II disability insurance benefits, but limited to those Tennessee residents whose notices of such adverse decisions concerning their claims for such Title II disability insurance benefits, but limited to those Tennessee residents whose notices of such adverse decisions concerning their claims for such Title II disability insurance benefits are dated not earlier than 65 days before October 21, 1988, and to any additional Tennessee residents who received notices of such adverse decisions, regardless of the dates of the notices, not earlier than 60 days before October 21, 1988.

  5. That the Secretary shall draft instructions for redetermining the eligibility of class members for surviving spouse benefits. The Secretary shall provide plaintiffs' counsel with a copy of his proposed instructions for readjudicating cases of class members. Plaintiffs' counsel then shall have 10 days to submit any objections to those instructions to counsel for the Secretary. In the event the parties cannot resolve their differences with 10 days thereafter, the proposed instructions and objections will be submitted to this Court for resolution of the dispute.

  6. That the Secretary shall provide plaintiffs' counsel with copies of all teletypes, program operations manual system (“POMS”) instructions, program circulars and temporary instructions issued to effect compliance with this Order as such documents are issued.

  7. That if the Secretary conducts formal training sessions regarding implementation of the instruction, plaintiffs' counsel may attend but not participate in or otherwise interrupt such training.

    1. Once instructions are issued pursuant to ¶ 3, above, the Secretary shall send a notice (“the notice”) to all potential class members identified by Social Security Administration (“SSA”) records who received a final decision of the Secretary denying or terminating them from entitlement to surviving spouse disability benefits between August 15, 1988, and the date new adjudicative instructions are issued pursuant to ¶3. The notice will instruct the claimant to return an enclosed postage paid postcard (or form) if he or she elects to have his or her claim reviewed pursuant to the Court's Order and Opinion of April 20, 1990 [docs. 141, 140], and this Order. The notice also will contain the name and address of counsel for plaintiffs, and will inform the claimant that he may contact plaintiffs' counsel if he has any questions. Counsel for the plaintiffs may participate in the identification and location of members of the class. The Secretary shall provide plaintiffs' counsel with lists of potential class members derived from Social Security Administration records.

    2. The Secretary shall provide plaintiffs' counsel with copies of his proposed notice to claimants identified under sub-¶ 8(a) above and the accompanying postcard (or form). Plaintiffs' counsel then shall have 10 days to submit any objections to this notice to counsel for the Secretary. The Secretary then shall have 10 days to revise the notice. Thereafter, the notice will be submitted to this Court for approval.

    3. Once the contents of the notice and postcard (or form) in sub-¶¶ 8(a) and 8(b) above have been approved by the Court, and once instructions have been issued pursuant to ¶ 3, the Secretary will begin mailing the notice to potential class members.

    4. Claimants will have 60 days from receipt of the notice to respond to the mailing. The Secretary shall presume that the notice was received 5 days after the date of mailing and the mailing date shall be marked on the notice. Claimants who respond to the notice more than 65 days after date of mailing shall receive full relief as class members if they demonstrate that they responded within 60 days of their actual receipt of the notice, or if they demonstrate that they had “good cause” as defined in 20 C.F.R. § 404.911 (1989) for missing the 60-day deadline.

  8. That in the event that a notice mailed pursuant to ¶ 8(a) is returned as undeliverable, the Secretary shall remail the notice to the same address. In the event a second notice is returned as undeliverable, the Secretary shall attempt to obtain better addresses by providing a computer tape to the Tennessee Department of Social Services (“TDSS”), so that TDSS can perform a match with its public assistance, food stamps, and other records. If an updated address is not obtained, the defendant shall then attempt to obtain a better address by contacting the post office, checking the Secretary's automated records, and working with the claimants' servicing Social Security Administration (“SSA”) district office for reasonable leads for the purpose of locating the claimant. The Secretary shall mail a third notice to all claimants for whom other addresses are obtained. Counsel for the plaintiffs may assist the Secretary in the location and identification of such claimants.

  9. That upon receipt of a postcard (or form) from a claimant electing review, the Secretary shall screen for class membership, and shall readjudicate class members' claims de novo, using the revised standard disability determinations developed under ¶ 3 above.

    1. A class member with a current claim that is active and pending at any administrative level of review will have all other claims covered by the Court's Order and Opinion of April 20, 1990, consolidated with the current claim.

    2. If a class member does not have a current claim that is active and pending at any administrative level of review, his or her claim shall be returned to the DDS for readjudication. In the event of an adverse decision, the claimant may seek reconsideration. In the event of an adverse decision upon reconsideration, the claimant may appeal to the Administrative Law Judge (“ALJ”). In the event of an adverse ALJ decision, the claimant may petition for review by the Appeals Council. Class members shall retain the right to judicial review as provided in 42 U.S.C § 405(g).

    3. The Secretary shall mail to any claimant determined not to be a class member a notice of that determination. The Secretary also will send a copy of each class membership denial to class counsel. The notice will provide that the claimant will have 60 days from receipt to request that the Secretary reexamine the class membership denial decision. The notice also will contain a telephone number for class counsel that the claimant may call for assistance in requesting review of the denial decision. The parties will attempt to resolve the question of class membership by negotiations between the claimant or his or her counsel and the Secretary. If the parties cannot resolve the question of class membership through negotiations, the claimant may submit the unresolved matter to the Court for resolution.

  10. That class members' readjudication shall be performed in accordance with the instructions issued pursuant to ¶ 3 of this Order.

    1. For claimants who are class members by virtue of a decision denying their application(s) for surviving spouse benefits, the readjudication shall be a de novo reevaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period of time at issue in the administrative decision(s) that form(s) the basis of the claimant's class membership. In the case of any readjudication that results in a favorable decision (i.e., an award of benefits), the Secretary shall determine whether the class member's disability continues as of the date of the readjudication in accordance with the standards and procedures set forth in 42 U.S.C §423(f). For class members who request relief under this Order and whose claims are active and pending at any administrative level as of the date that instructions are issued pursuant to ¶ 3, the period to be adjudicated shall be calculated in accordance with 20 C.F.R. § 404.620(a) (1989).

    2. For claimants who are class members by virtue of a decision terminating surviving spouse disability benefits, the readjudication shall be an evaluation of the class member's eligibility for benefits from the date benefits were ceased until the date of the readjudication.

  11. That for any readjudication that results in a partially or fully favorable decision for the claimant, the Secretary shall find that claimant disabled and restore benefits retroactively, consistent with 42 U.S.C. § 423(a). The Secretary shall find that a class member no longer is disabled (or no longer was disabled for the purpose of finding a “closed” period of disability and shall terminate benefits (or render a “closed” period decision) only upon finding that the class member no longer is (or was) entitled to receive benefits pursuant to 42 U.S.C. § 423(f), provided that such class member shall retain all rights, if any, to continued receipt of benefits during an administrative appeal, pursuant to 42 U.S.C. § 423(g).

  12. That on a quarterly basis, beginning 90 days after the notices in ¶ 8(a) are sent, the Secretary will provide plaintiffs' counsel with reports, which shall include the following:

    1. The number of notices sent;

    2. The number of responses received;

    3. The number of notices returned as undeliverable;

    4. The number of individuals whose claims were favorably readjudicated; and

    5. The number of individuals whose claims were unfavorably readjudicated.

  13. That the Secretary shall provide plaintiffs' counsel with copies of all class members' unfavorable redeterminations, to be sent on a flow basis contemporaneous with the issuance of the actual redetermination(s). Also upon written request submitted within 60 days of a claimant's receipt of an unfavorable decision, the Secretary will make available to plaintiffs' counsel or other counsel designated by the claimant, at a mutually agreeable Social Security Administration office, the case files of that claimant.

  14. That the jurisdiction of this Court over this action shall cease upon full implementation of this Order.

 

ENTER:

_______/s/_____________

Leon Jordon

United States District Judge

________________________________________________________________

1 For example, in the Secretary's motion for leave to file a reply filed in the United States Court of Appeals for the Sixth Circuit [attachment 1 to doc. 168], the defendant stated the his “compliance with these adverse orders should not, however, be construed as an abandonment of the current surviving spouse disability standard.” Id., at p. 4.

Attachment 2. - District Court Order dated January 2, 1992

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

[Filed January 2, 1992]

JAYNELL BEGLEY, et al.,

)  

Plaintiffs,

)  
  )  

v,

)

NO. CIV-3-88-0841

LOUIS SULLIVAN, M.D.

)  

Secretary of Health and

)  

Human Services,

)  

Defendant,

)  
  )  

MARGARET THACKER,

)  

Plaintiff,

)  
  )  

v.

)

NO. CIV-3-89-0157

LOUIS SULLIVAN, M.D.

)  

Secretary of Health and

)  

Human Services,

)  

Defendant,

)  

O R D E R

On August 28, 1991, this Court referred these Social Security cases to United States Magistrate Judge Robert P. Murrian [doc. 197] for a report and recommendation of the disposition of the potion of the defendant to confirm new process and implementing instructions [docs, 193, 193A, 194]. On September 13, 1991, magistrate Judge Murrian entered his Report and Recommendation [doc.200] to which the plaintiffs filed their objections on September 20, 1991 [doc 201], and to which objections the defendant filed a response on October 11, 1991 [doc. 201]. The matter is now ripe for disposition.

This Court previously found in these cases that the prior policies and practices of the defendant for determining benefit eligibility for certain non-wage earner claimants were arbitrary and capricious and consequently required the defendant to revise the determination standard consistent with the rulings of this Court. Since the Court's original rulings on this case, the Social Security Act has been amended to provide that surviving spouse disability claims are considered for benefits under the same standard as disabled wage earners. 42 U.S.C. § 423(d)(2)(A) and (B) (1990), as amended. On May 22, 1991, the commissioner of Social Security issued Social Security Ruling 91-3p, 56 Fed. Reg. 23589, which controls the determination of entitlement to disability benefits for surviving spouses for the months prior to the effective date of the 1990 amendment to the Social Security Act.

The Secretary's proposed standard of eligibility determination expressly considers residual functional capacity (RFC) to determine whether a claimant is disabled and is “patterned after the existing disability determination process (i.e., the sequential evaluation process) to avoid the creation of entirely new and untested methodologies.” 56 Fed. Reg. 23590. A five-step process is used, which is described in 20 CFR § 404.1520. “If application of this process results in a finding of disability at step three (meets or equals a listed impairment in appendix 1), the widow will be found entitled to benefits for all months ..., including those before January 1991 ...,” Id. Furthermore,

“[I]f application of the five-step sequential evaluation process results, at step five, in a finding that the widow is unable to engage in substantial gainful activity, an additional determination will be needed regarding the widow's entitlement to disability benefits for months prior to January 1991, i.e., her ability to engage in any gainful activity. SSA will make this additional determination utilizing the residual functional capacity assessment used in conjunction with steps four and five of the sequential evaluation process, but without considering age, education, and work experience.”

56 Fed. Reg. 23591. Magistrate Judge Murrian's Report and Recommendation is a thorough explanation of the defendant's proposed standard and an exhaustive consideration of the plaintiffs' contentions in regard to the proposed standard and the Court will not restate them here. The Court does note, however, that one of the main contentions of the plaintiffs has been the defendant's failure to make an individualized, functional inquiry into the effect of medical problems on a person's ability to work.

The plaintiffs continue to complain that the failure of the Secretary to consider RFC at step three, the equivalency stage, fails to comply with this Court's previous rulings and merely continues the defendant's illegal equivalency policy, depriving the claimant of an individualized assessment of disability. The plaintiffs make rather speculative arguments concerning the application of this standard, as revised, as it would apply to claimants such as Laymance and Thacker, contending that “[t]his process will result in the denial of many class members' claims without an indi vidualized assessment of whether their impairments resulting in functional consequences are equal in severity to listed impairments.” [Doc 201, at p.6, emphasis in original.]

In reviewing the proposed standard, the Court is rather puzzled by the plaintiffs' objections since a good faith application of the proposed standard would provide an individualized consideration and clearly does not prevent each consideration of create a sham method of consideration. Magistrate Judge Murrian reached essentially the same conclusion. Absent a showing that in a particular case the defendant is not actually engaging in an individualized evaluation, this Court will not entertain merely speculative arguments concerning the manner in which the defendant may or may not comply with the orders of this Court. The Court is of the opinion that Magistrate Judge Murrian's Report and Recommendation properly determined that SSR 91-3p “corrects the previous inadequacies of the Secretary's process for evaluating surviving spouse disability claims; that the policy and process set forth therein is consistent with the orders of this court, sixth circuit precedent, and the Social Security Act ... .” [Doc 200, at p.22]

Accordingly the Court AFFIRMS the Report and Recommendation of the United States Magistrate Judge Robert P. Murrian [doc.200] and ADOPTS this Report and Recommendation as the opinion of this Court and therefore ORDERS that the objections of the plaintiffs to this Report and Recommendation and to the new process and implementing instructions are OVERRULED. The Court further ORDERS that the defendant's motion to confirm new process and implementing instructions [docs. 193, 193A, 194] is GRANTED.

 

ENTER:

 

_______/s/_____________

Leon Jordon

United States District Judge

Attachment 3. - Begley Screening Sheet

1. CLASS ACTION CODE: B G

2. SOCIAL SECURITY NUMBER

[____] [____] [____] - [____] [____] - [____] [____] [____] [____]

3. BIC [___] [___]

DATE (Month, Day, Year)

Example: May 19, 1992 is 05-19-92

____ - ____ - ____

MEMBER (J) ____

NONMEMBER (F)____

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

 

5. SCREENOUT CODE

[____]-[____]] (see item 13 for screenout codes)

6. Is this a Title II disabled widow/widower or surviving divorced spouse claim?

Yes___No___

(if No go to 13)

7. Did the individual reside in the State of Tennessee at the time the decision was issued?

Yes___No___

(if No go to 13)

8. Was a less than fully favorable determination/decision issued on this claim at any administrative level by the Tennessee DDS or OHA after August 14, 1988, or was notice of such decision received after August 19,1988? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.)

Yes___No___

(if No go to 13)

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

Yes___No___

(if No go to 13)

10. Did the claimant receive a subsequent fully fully favorable decision which covered the timeframe at issue in the potential Begley claim and forestalls receipt of any additional benefits?

Yes___No___

(if No go to 13)

11. Was a claim for title XVI or title II worker's disability covering the timeframe at issue in the potential Begley claim, concurrently denied/ceased at steps 4 or 5 of the sequential evaluation process?

Yes___No___

(if No go to 13)

12. Did the claimant receive a final adverse disability (medical) determination/decision after May 22, 1991,on the potential Begley claim or a subsequent claim, which covered the timeframe at issue in the potential Begley claim?

Yes___No___

(if No go to 13)

13. The responder is not a Begley class member. Check the NONMEMBER block in item 3 and enter the screenout code in item 5 as follows:

Enter 06 if question 6 was answered “NO”.
Enter 07 if question 7 was answered “NO”.
Enter 08 if question 8 was answered “NO”.
Enter 09 if question 9 was answered “YES”.
Enter 10 if question 10 was answered “YES”.
Enter 11 if question 11 was answered “YES”.
Enter 12 if question 12 was answered “YES”.

No other screenout code entry is appropriate.

SIGNATURE OF REVIEWER

 

DATE

 

Enter dates of all applications screened.

_______________ _______________ _______________ _______________

BEGLEY SCREENING SHEET INSTRUCTIONS

Questions 2 - 5

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

Question 6

Screen for claim type. If question is answered “No”, enter the appropriate screenout code in item 5 as directed in item 13 on the screening sheet and check the non-member block in item 3.

Question 7

Screen for residency. If question is answered “No”, enter the appropriate screenout code in item 5 as directed in item 13 on the screening sheet. Remember to check the non-member block found in item 3 of the screening sheet.

Question 8

Screen for date of decision, not application. Individuals are class members if they received a denial, cessation or less than fully favorable decision (e.g., later onset, closed period, payment of benefits beginning 1/1/91 under OBRA despite an earlier onset) which became the final decision of the Secretary. (Note: Although not the “final decision of the Secretary” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.) If the answer to 8 is “No”, enter the appropriate screenout code in item 5 as directed in item 13 on the screening sheet and check the non-member block in item 3.

Question 9

To answer this question look for non-medical denial codes in item 22 of the SSA-831-U3 or SSA-833-U3, or on the SSA-3687-U2 or the SSA-3428-U2. The non-medical denial codes are: N1, N2, L1, L2, M7, M8. (For a complete list of DWB denial codes see SM 00380.270.C.) For cases previously decided at the OHA level, the answer can be found in the Administrative Law Judge or Appeals Council decision. If the answer to question 9 is “Yes”, enter the appropriate screenout code in item 5 as directed in item 13 on the screening sheet. Remember to check the non-member block found in item 3 of the screening sheet.

Question 10

Review the file to determine whether benefits were subsequently allowed or continued from the earliest alleged onset date, cessation date, or control date within the timeframes for class membership (decision issued after 8/14/88, or notice of such decision received after 8/19/88).

The allowance or continuance could have been either on the same claim or on a subsequent application. If the answer to question 10 is “Yes”, enter the appropriate screenout code in item 5 as directed in item 13 on the screening sheet. Remember to check the non-member block found in item 3 of the screening sheet.

Question 11

Check file(s) and queries (e.g., ACT, SSID) to determine whether claimant received a denial/cessation decision on a concurrent claim for SSI, or worker's disability which covered the timeframe at issue in the Begley claim. If so, review file(s) to determine whether the claimant's residual functional capacity (RFC) was assessed. The following codes in block 22 of the SSA-831-U3 and SSA-833-U3 indicate denial/cessation on the basis that claimant retained the RFC to perform SGA: H1, H2, J1, J2 and sometimes E3. For cases previously decided at the OHA level, review the Administrative Law Judge or Appeals Council decision to determine if the claimant's RFC was assessed. If the answer to question 11 is “Yes”, enter the appropriate screenout code in item 5 as directed in item 13 on the screening sheet and check the non-member block in item 3 of the screening sheet.

Question 12

Check the file(s) to determine if claimant received a decision after May 22, 1991 on the Begley claim or a later DWB claim which provided claimant with all relief to which he/she would be entitled under Begley (i.e., adjudication of the entire period at issue in the potential Begley class member claim under the appropriate standard (i.e., OBRA 90 and SSR 91-3p)). If the answer to question 12 is “Yes”, enter the appropriate screenout code in item 5 as directed in item 13 on the screening sheet. Be sure to check the non-member block in item 3 of the screening sheet.

After signing the screening sheet, please remember to list the dates of all applications for which determinations/decisions were screened to determine class membership.

Instructions if Claimant is Determined to be a Class Member

  1. Retain the original screening sheet in the folder. Send a copy to Begley Coordinator at:

    3-K-26 Operations Building
    Baltimore, Maryland 21235
  2. Follow procedures in DI 32598.015 for class member cases.

NOTE: OHA screeners, see TI 5-429 for instructions.

Instructions if Claimant is Determined to be a Non-class Member

  1. Retain the original screening sheet in the folder. Send a copy to Begley Coordinator at:

    3-K-26 Operations Building
    Baltimore, Maryland 21235
  2. Route the folder according to the procedures in DI 32598.010.

NOTE: OHA screeners, see TI 5-429 for instructions.

Attachment 4. - Route Slip or Case Flag for Screening

BEGLEY CLASS ACTION CASE

SCREENING NECESSARY

Claimant's name ___________________________

SSN ___________________________

The above-identified claimant may be a Begley class member. The attached folder location information indicates that a current claim folder is pending in your location. Accordingly, we are forwarding the attached alert [and prior claim folder(s)] for association, screening for class membership, consolidation consideration and possible readjudication. Please refer to TI 5-429 for additional information and instructions.

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

ROUTING AND TRANSMITTAL SLIP

DATE:

TO:(Name/Office Symbol/Room Number/Building/Agency)

1.

Initials

Date

2.

   

3.

   

4.

   

5.

   

______

ACTION

______

FILE

______

NOTE AND RETURN

___XX_

APPROVAL

______

FOR CLEARANCE

______

PER CONVERSATION

______

AS REQUESTED

______

FOR CORRECTION

______

PREPARE REPLY

______

CIRCULATE

______

FOR YOUR INFORMATION

______

SEE ME

______

COMMENT

______

INVESTIGATE

______

SIGNATURE

______

COORDINATION

______

JUSTIFY

______

OTHER

REMARKS

BEGLEY CASE

Claimant:___________________________

SSN:________________________________

OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records indicate that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the Tennessee DDS for screening and possible readjudication. SEE POMS DI 42598.005 A.5.

ATTACHMENT

FROM: (Name, Org. Symbol, Agency/Post)

Office of Hearings and Appeals

__________________________________________

SUITE/BUILDING

PHONE NUMBER

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

Attachment 6. - Notice of Non-Class Membership

  Date:
  Claim Number:

THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY BENEFITS
PLEASE READ IT CAREFULLY!

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

WHY YOU ARE NOT A CLASS MEMBER

YOU ARE NOT A BEGLEY CLASS MEMBER BECAUSE:

  • YOU DID NOT RESIDE IN THE STATE OF TENNESSEE.

  • YOU DID NOT RECEIVE A DECISION BY THE TENNESSEE DISABILITY DETERMINATION SERVICE (DDS) OR THE OFFICE OF HEARINGS AND APPEALS DENYING/CEASING DISABILITY BENEFITS AFTER AUGUST 19, 1988 OR YOUR NOTICE BY THE TENNESSEE DDS OR THE OFFICE OF HEARINGS AND APPEALS DENYING/CEASING DISABILITY BENEFITS WAS NOT DATED AFTER AUGUST 14, 1988.

  • YOUR BENEFITS WERE DENIED/CEASED FOR SOME REASON OTHER THAN YOUR MEDICAL CONDITION. THAT REASON WAS _____________________________________________________________________

  • YOU HAVE RECEIVED A SUBSEQUENT FULLY FAVORABLE REVERSAL OF THE PRIOR DENIAL/CESSATION DECISION. WE WILL BE IN TOUCH WITH YOU IF YOU ARE OWED ANY ADDITIONAL RETROACTIVE BENEFITS.

  • OTHER ______________________________________________________

    __________________________________________________________________

WE ARE NOT DECIDING IF YOU ARE DISABLED

IT IS IMPORTANT FOR YOU TO KNOW THAT WE ARE NOT MAKING A DECISION ABOUT WHETHER YOU ARE DISABLED. WE ARE DECIDING ONLY THAT YOU ARE NOT A BEGLEY CLASS MEMBER.

IF YOU DISAGREE WITH THIS DETERMINATION

IF YOU WANT US TO REVIEW THE DETERMINATION THAT YOU ARE NOT A CLASS MEMBER, YOU MUST ASK US TO DO SO WITHIN 60 DAYS OF THE DATE OF THIS NOTICE.

IF A REPRESENTATIVE IS HANDLING YOUR SOCIAL SECURITY CLAIM, YOU MAY WANT TO TELL HIM OR HER ABOUT THIS LETTER. IF YOU DO NOT HAVE A LAWYER OR REPRESENTATIVE YOU MAY WANT TO CONTACT THE FOLLOWING:

RURAL LEGAL SERVICES OF TENNESSEE, INC.,
P.O. BOX 5209
OAK RIDGE, TN 37831
ATTN: MR. LENNY L. CROCE
TELEPHONE: (615) 483-8454

IF YOU HAVE ANY QUESTIONS, YOU MAY CALL, WRITE OR VISIT ANY SOCIAL SECUTIRY OFFICE. IF YOU WISH TO CALL OR VISIT YOUR LOCAL OFFICE, THE ADDRESS AND TELEPHONE NUMBER APPEAR ON THE TOP OF THIS NOTICE. IF YOU VISIT A SOCIAL SECURITY OFFICE, PLEASE BRING THIS LETTER WITH YOU. IT WILL HELP US ANSWER YOUR QUESTIONS.

cc:
Lenny L. Croce
Class Counsel

Attachment 7. - Route Slip or Case Flag for Routing Non-Class Member Claim Folders to a Servicing Field Office

BEGLEY CLASS ACTION

NON-CLASS MEMBER CASE

75-DAY HOLD NECESSARY

Claimant's name___________________________

SSN___________________________

The above-identified claimant has been determined to be a non-class member. Accordingly, we are forwarding the attached claim folder(s) to your location to be held for 75 days pending possible appeal of the non-class member determination. We are forwarding the attached claim folder(s) to:

Social Security Administration
530 Gay Street, Suite 425
P.O. Box 1312
Knoxville, TN 37902

(Destination Code H38)

Attachment 8. - Route Slip or Case Flag for HO Use (for DDS Readjudication)

BEGLEY CLASS ACTION CASE

READJUDICATION NECESSARY

Claimant's name___________________________

SSN___________________________

The above-identified claimant is a Begley class member. The attached Begley prior claim folder was forwarded to this hearing office for possible consolidation with a current claim.

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

or

_____ The claims have not been consolidated because (state reason(s)) ___________________________________.

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

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

Disability Determination Section
Division of Rehabilitation Services
400 Deadrick Street, 11th Fl.
P.O. Box 77
Nashville, Tennessee 37202

(Destination code S48.)

Attachment 9. - Sample Dismissal Order Language

On ___________, the claimant filed a request for hearing on the issue(s) raised by (his/her) application(s) dated ___________. The claimant has now been identified as a member of the Begley class and is entitled to have the final administrative denial of (his/her) prior application(s) reviewed under the terms of the district court's November 19, 1990 order. Because the claims share common issues, the undersigned hereby dismisses without prejudice the request for hearing filed on __________, on the application(s) dated __________.

The claimant's (date of current application(s)) application(s) (is/are) being associated with (his/her) prior claim(s) and forwarded to the Tennessee State Disability Determination Section, which will conduct the Begley review.

Attachment 10. - Route Slip or Case Flag for Headquarters Use (DDS Readjudication)

BEGLEY CLASS ACTION

READJUDICATION NECESSARY

Claimant's name ___________________________

SSN ___________________________

The above-identified claimant is a Begley class member. The attached Begley prior claim folder was forwarded to the Appeals Council because a current claim was pending before the Appeals Council. The Appeals Council has now completed its action on the current claim. After expiration of the retention period, forward the attached claim folders to:

Disability Determination Section
Division of Rehabilitation Services
400 Deadrick Street, 11th Fl.
P.O. Box 775
Nashville, Tennessee 37202

(Destination code S48.)


[1]  Hereinafter, the term “widows” is used only for convenience; it is intended to refer to all persons treated similarly under title II, i.e., widows, widowers and surviving divorced spouses.