I-5-4-31.Marcus, 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 - Final Judgement Order dated June 12, 1989; Order Amending Final Judgment date June 30, 1989; and Order Dated May 23, 1991, Establishing April 12, 1991, Establishing April 12, 1991, as the Effective Date of the Court's Final Judgment Order
Attachment 2 - MARCUS COURT CASE FLAG/ALERT
Attachment 3 Route Slip or Case Flag For Screening
Attachment 4 MARCUS SCREENING SHEETS
Attachment 5 MARCUS VERIFICATION FORM FOR AUTOMATIC CLASS MEMBERSHIP
Attachment 6 - Route Slip For Routing Class Member Alert and Prior Claim Folder(s) to ODIO or PSC — OHA No Longer Has Current Claim
Attachment 7 - Marcus Non-Class Membership Notice
Attachment 8 - Route Slip For Non-Class Membership Cases
Attachment 9 - Marcus Class Member Flag For Headquarters Use (DDS Readjudication)
Attachment 10 - ALJ Dismissal Order to DDS
Attachment 11 - Notice of Dismissal
Attachment 12 - Marcus Class Member Flag For HO Use (DDS Adjudication)

ISSUED: February 12, 1993

I. Purpose

This Temporary Instruction (TI) provides instructions for implementing the June 12, 1989 order of the United States District Court for the Northern District of Illinois in the Marcus, 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 Marcus class members who now reside outside of Illinois must have their cases processed in accordance with the requirements of the court's order.

II. Background

On January 19, 1985, 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 complaint also challenged the standard for evaluating disability in title XVI child claims; however, the merits of this aspect of the complaint were resolved by the Supreme Court's decision in Sullivan v. Zebley, and relief will flow through the national class. The U.S. District Court for the Northern District of Illinois certified the class in October 1985 (see Part IV. below, for class definition).

On September 22, 1988, the district court resolved the substantive issues when it granted plaintiffs' class motion for summary judgment. The court held that the Secretary's practice of denying disability benefits on the basis of the Listings alone did not comport with the statutory requirements. The court reasoned that the Listings do not cover all medical conditions and impairments, and that a realistic evaluation of a person's ability to work requires an individualized assessment of functional capacity. The order did not specify any relief, except with respect to the three named litigants whose claims were remanded to the Secretary.

On April 17, 1989, the district court entered an order resolving the disputes between the parties' proposed orders. On May 16, 1989, the court entered an order allowing the Secretary to continue to use the invalidated standards and policies on an interim basis but also requiring protection for class members whose claims were denied thereunder.

On June 12, 1989, as technically amended on June 30, 1989, the district court issued a final order setting forth the terms for the implementation of class relief (Attachment 1). The Secretary's motion for a stay pending appeal was granted on September 26, 1989. On February 21, 1991, the United States Court of Appeals for the Seventh Circuit affirmed the district court's jurisdictional and substantive rulings on all issues. By order dated May 23, 1991, the district court approved plaintiffs' motion to enforce compliance with the June 12, 1989 implementation order and set April 12, 1991, as the effective date of the Final Judgment Order.

Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (Pub. L. 101-508) on November 5, 1990. Section 5103 of OBRA 90 amended § 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 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 July 8, 1992, SSA published revised regulations in the Federal Register reflecting the provisions of § 5103.)

On May 22, 1991, the Commissioner of Social Security 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.

III. Guiding Principles

Under Marcus, the Secretary will reopen and readjudicate the claims of “automatic” class members (see Part IV. below), and the claims of those persons who (1) respond to the notice informing them of the opportunity for review and (2) are determined to be class members after screening (see Part V. below). The Disability Review Section in the Great Lakes Program Service Center (GLPSC) will screen folders for class membership, unless there is a current claim pending in OHA. Regardless of the state of the claimant's current residence, the Illinois Disability Determination Service (DDS) will, in most cases, perform the court-ordered readjudications, irrespective of the level of administrative review that last decided the claim.

EXCEPTION:

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

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

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

Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in Marcus class member claims. The disability evaluation standard enacted by § 5103 of 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.

IV. Definition of Class

For purposes of implementing the June 12, 1989 order, the Marcus class consists of all individuals who:

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

  • were issued a less than fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision based on medical reasons between November 19, 1984, and May 22, 1991, inclusive.; and

  • were residents of Illinois at the time their claim was adversely decided or ceased or at some time during the pendency of their claim.

    NOTE:

    Individuals whose claims were finally and adversely decided or terminated at any administrative level between March 16, 1989, and May 22, 1991, inclusive, are “automatic” class members and need not elect review.

    EXCEPTION:

    A person is not a class member if

    (1) the last administrative denial or termination the individual received on the potential Marcus claim was not based on medical reasons (e.g., engaging in substantial gainful activity, disability did not begin within the prescribed period, or other technical reason); or

    (2) the individual was concurrently denied on a worker's claim for disability benefits under title II or title XVI (adult) at steps 4 or 5 of the sequential evaluation (and the concurrent denial was not later reversed on administrative or judicial appeal); or

    (3) the individual received an unfavorable determination or decision issued after May 22, 1991, on the potential class member claim; or

    (4) the individual received an unfavorable deter- mination or decision after May 22, 1991, on a subsequent claim that raised the issue of disability and covered the timeframe at issue in the potential Marcus claim, i.e., the onset date alleged in connection with the subsequent claim was on or before the onset date alleged in connection with the potential Marcus claim.

V. Determination of Class Membership and Preadjudication Actions

A. Non-OHA Actions

  1. Notification

    On May 20, 1992, SSA sent notices to all potential class members identified by computer run. Individuals have 240 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Marcus court order.

    EXCEPTION:

    No notice was sent to “automatic” class members, nor will they be required to request readjudication.

    Notices returned as undeliverable will be mailed a second time. The Office of Disability and International Operations (ODIO) will retrieve the folders of late responders and send them, together with the untimely responses, to the servicing Social Security field office (i.e., district office or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR § 404.911 as modified by the district court's June 12, 1989 Final Judgment Order. The court's order provides that SSA will automatically find good cause if a class member requests review within four years of the close of the class notice response period and alleges that his or her failure to respond was due to homelessness, mental illness, hospitalization, imprisonment, or other good cause.

  2. Alerts and Folder Retrieval

    All response forms will be returned to ODIO and the information will be entered into the Civil Actions Tracking System (CATS). CATS will generate alerts to ODIO. See Attachment 2 for a sample Marcus alert.

    In most instances, ODIO will associate the computer-generated alerts with any ODIO-jurisdiction potential class member claim folder(s) and forward them to the GLPSC for retrieval of any additional claims files and screening (see Part III above).

  3. Alerts Sent to OHA

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

    ODIO will send all alerts potentially within OHA jurisdiction and related prior claim folders 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: Marcus Screening Unit
    Suite 704
  4. Folder Reconstruction

    In general, GLPSC will coordinate any necessary reconstruction of prior claim folders.

  5. Class Membership Denials

    The Chicago, Illinois district office located at 77 West Jackson Boulevard, Room 300, Chicago, IL 60604 will hold all non-class member claim folders (except those of “automatic” class members determined not to meet class membership criteria — see Part V.B.3.a. below) pending review by class counsel. Upon review of the folders, class counsel will contact the Office of the General Counsel (OGC) directly to resolve class membership disputes.

B. OHA Actions

  1. Pre-Screening Actions

    1. Current Claim in OHA

      As provided in Part V.A.3. above, if there is a current claim pending in OHA, OCA will receive the alert and related Marcus claim folder(s). OCA will determine which OHA component has the current claim and forward for screening as follows:

      • If the current claim is in a hearing office (HO), OCA will forward the alert and the prior claim folder(s) to the HO for screening (or verification of class membership criteria) using Attachment 3.

      • If the current claim is before the Appeals Council, OCA will forward the alert and prior claim folder(s) to the appropriate Office of Appellate Operations (OAO) branch for screening (or verification of class membership criteria) using Attachment 3.

      • If the current claim folder is in an OAO branch minidocket or Docket and Files Branch (DFB), OCA will request the folder, associate it with the alert and prior claim folder(s) and perform the screening (or class membership verification).

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

    2. Current Claim Pending in Court

      If OCA receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, OCA Division III will associate the alert with the claim folder(s) and screen for Marcus class membership. See Part V.B.2.b. below for special screening instructions when a civil action is involved.

  2. Screening

    1. General Instructions

      The screening component will associate the alert, if any, and any prior claim folder(s) with the claim folder(s) in its possession and then complete a screening sheet or verification form as appropriate.

      If the potential class member claim was finally and adversely decided or terminated between November 19, 1984, and March 15, 1989, inclusive, complete a screening sheet (see Attachment 4) and follow the instructions below.

      If the potential class member claim was finally and adversely decided or terminated between March 16, 1989, and May 22, 1991, inclusive, the individual is an “automatic” class member and as such is not subject to the class notice or “screening” process. Nevertheless, these claim files must be reviewed to “verify” that the individual meets the class membership criteria. (For simplicity, we include the “verifying” class membership process and criteria within the generic instructions for “screening.”) Complete a Marcus Verification Form for Automatic Class Membership (see Attachment 5) and follow the instructions below.

      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.

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

      • Follow all instructions on the screening sheet or verification form;

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

      • Forward a copy of the screening sheet or verification form to:

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

        ATTN: Marcus Coordinator - Suite 702

      The Division of Litigation Analysis and Implementation will forward a copy of the screening sheet to the Litigation Staff at SSA Headquarters.

      If the HO 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 the prior claim folder(s) to OCA Division III (see address in Part V.A. above) and advise OCA of 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 6).

      NOTE:

      Final determinations or decisions made after May 22, 1991, on a claim filed by a potential Marcus class member may adjudicate the same timeframe covered by the Marcus claim. Instead of applying the doctrine of administrative res judicata to the Marcus claim, these claims should be denied class membership.

    2. Special OCA Screening Instructions if a Civil Action is Involved

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

      • If the current claim pending in court was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p and resolved all Marcus issues, the claimant is not a Marcus class member. OCA staff will follow the instructions in Part V.B.3.a. below for processing non-class member claims.

      • If the current claim pending in court was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, but did not resolve all Marcus issues, e.g., there is a prior (inactive) Marcus claim and the current claim does not include the entire period covered by the Marcus claim, OCA staff will forward the Marcus claim to the Illinois DDS for separate review. OCA will modify the case flag in Attachment 9 to indicate that the pending court case does not resolve all Marcus issues and that the Marcus class member claim is being forwarded for separate processing.

      • If the final administrative decision on the claim pending in court was not adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, or is legally insufficient for other reasons, OCA will initiate voluntary remand proceedings and consolidate the claims.

      NOTE:

      OCA will immediately notify OGC if the pending court case is a Marcus class member claim so that OGC can notify the claimant of the option to have the case remanded for readjudication.

  3. Post-Screening Actions

    1. Non-Class Member Cases — Excluding “Automatic” Class Member Claims

      If the screening component determines that the individual is not a class member, the component will (see the EXCEPTION below for processing “automatic” class member claims that do not meet class membership criteria):

      • notify the individual, and representative, if any, of non-class membership using Attachment 7 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);

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

      • send a copy of the notice to:

        Legal Assistance Foundation of Chicago
        Suite 700
        343 South Dearborn Street
        Chicago, Illinois 60604
        Attn: Marcus
      • send the non-class member claim folder to the Chicago, Illinois (Jackson Boulevard) district office using the pre-addressed route slip in Attachment 8.

        NOTE:

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

      An individual who wishes to appeal a determination of non-class membership may do so only through class counsel, as explained in the notice (Attachment 7).

      EXCEPTION:

      If, using the verification form in Attachment 5, it is determined that an “automatic” class member does not meet the class membership criteria

      • do not send a non-class membership notice,

      • return the claim file to the prior location,

      • send a copy of the verification form to the address in Part V.B.2.a., and

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

    2. Cases Determined to be Class Members

      If the screening component determines that the individual is a class member, it 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 Illinois DDS, or any other DDS servicing Illinois residents, will conduct the first Marcus review except for cases consolidated at the OHA level (see Part VI.E. below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review). Except as otherwise noted in this instruction, ALJs should process and adjudicate requests for hearing on Marcus DDS review cases in the same manner as for any other case.

B. Payment Reinstatement for Cessation Cases

If the Marcus claim involves a cessation, the class member may elect to have disability benefits reinstated pending readjudication. In general, the servicing Social Security field office has responsibility for:

  1. contacting the class member, who may have reinstatement rights;

  2. completing the election forms;

  3. verifying non-disability factors; and

  4. making a good faith effort to quickly reinstate benefits after retrieval or reconstruction of the Marcus claim folder.

    NOTE:

    For OHA jurisdiction cases, the screening component will

    1. identify Marcus claims involving cessations;

    2. immediately notify the servicing field offices by telephone of the pending Marcus claims that may be eligible for benefit reinstatement and document the file accordingly; and

    3. provide the servicing field office with identifying information and any other information requested.

C. OHA Adjudication of Class Member Claims

The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Marcus readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and Headquarters will process Marcus class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.

  1. Type of Review and Period to be Considered

    Pursuant to the Marcus order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a reopening. The claim of each class member must be fully reopened to determine whether the claimant was disabled at any time from the onset date alleged in the Marcus claim through the present (or through the date the claimant last met the prescribed period requirements if earlier).

  2. Disability Evaluation Standards

    Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in class member claims. The disability evaluation standard enacted by § 5103 of 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.

  3. Class Member is Deceased

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

  4. Reporting Requirements

    Pursuant to the terms of the Marcus order, for the first 18 months of class relief (through November 1993), OHA must send copies of all Marcus decisions to class counsel no later than the date the decisions are sent to class members. Use the address in Part V.B.3.a.

    In addition, on a quarterly basis, we must report the number of identified class members who appeal adverse redetermination decisions to the ALJ hearing level.

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. (See Part V.B.3. for non-class member processing instructions.)

  • 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 Marcus class member flag (see Attachment 9) to the outside of the folder and send the claim folder(s) to the Illinois, or other appropriate, DDS for review of the Marcus class member claim.

  • If less than 120 days have elapsed, OCA will attach a Marcus class member flag (see Attachment 9) to the outside of the folder to ensure the case is routed to the Illinois, or other appropriate, DDS after expiration of the retention period. Pending expiration of the retention period, OCA will also:

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

    • 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 Illinois 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 and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Marcus class member claims with the current claim at the level at which the current claim is pending.

  2. Current Claim Pending in the Hearing Office

    1. Hearing Has Been Scheduled or Held, and All Remand Cases

      Except as noted below, if a Marcus class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Marcus case with the appeal on the current claim.

      EXCEPTIONS:

      The ALJ will not consolidate the claims if

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

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

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

    2. Hearing Not Scheduled

      Except as noted below, if a Marcus class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Marcus claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Marcus claim and the current claim to the DDS for further action (see Part VI.E.2.d. below).

      EXCEPTION:

      If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant a Marcus class member, the ALJ will consolidate the claims.

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

    3. Actions If Claims Consolidated

      Because the Marcus court order requires the Secretary to reopen fully the claims of class members, when consolidating a Marcus claim with any subsequent claim, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present (or through the date the claimant last met the prescribed period requirements, if earlier).

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

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

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

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

      • send copies of the consolidated hearing decision to plaintiffs' counsel and the Marcus coordinators at the addresses below:

        Legal Assistance Foundation of Chicago
        Suite 700
        343 South Dearborn Street
        Chicago, Illinois 60604
        ATTN: Marcus
        Office of Hearings and Appeals
        Office of Civil Actions
        Division of Litigation Analysis and Implementation
        P.O. Box 10723
        Arlington, VA 22210
        ATTN: Marcus Coordinator - Suite 702

        and

        Litigation Staff
        Office of the Deputy Commissioner for Programs, SSA
        P.O. Box 17729
        Baltimore, Maryland 21235
        ATTN: Marcus Coordinator
    4. Action If Claims Not Consolidated

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

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

      • send both the Marcus claim and the current claim to the Illinois DDS for consolidation and further action.

      If the ALJ decides not to consolidate the current claim with the Marcus claim because: 1) the claims do not have any issues in common or 2) there is a court-ordered time limit, the ALJ will:

      • flag the Marcus claim for DDS review using Attachment 12; immediately route it to the Illinois DDS for adjudication; and retain a copy of Attachment 12 in the current claim folder; and

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

  3. Current Claim Pending at the Appeals Council

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

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

      This will usually arise when the current claim duplicates the Marcus review claim, i.e., the Marcus claim raises an issue of disability for a period covered by the current claim, and the current claim has been adjudicated in accordance with the provisions of § 5103 of OBRA 90 and SSR 91-3p. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action.

      The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Marcus claim. For class action reporting purposes, the Appeals Council will send copies of its order, decision or notice to plaintiffs' counsel and the Marcus coordinators at the addresses listed in Part VI.E.2.c. above.

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

      This will usually arise when the current claim does not duplicate the Marcus claim, e.g., the Marcus claim raises an issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim.

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

    3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — No Marcus Issue(s) Will Remain Unresolved.

      If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Marcus class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Marcus claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Marcus claim pursuant to the Marcus court order. For class action reporting purposes, the Appeals Council will send copies of its decision to plaintiffs' counsel and the Marcus coordinators at the addresses listed in Part VI.E.2.c. above.

    4. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — Marcus Issue(s) Will Remain Unresolved.

      If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Marcus claim, the Appeals Council will proceed with its intended action. In this situation, the Appeals Council will request the effectuating component to forward the claim folders to the Illinois DDS after the Appeals Council's decision is effectuated. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: “Marcus court case review needed — following effectuation forward the attached combined folders to Department of Rehabilitation Services, Bureau of Disability Determination Services, 100 N. First Street, Springfield, Illinois 62702.”

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

      EXCEPTIONS:

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

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

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

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

F. Copy Requirements

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

VII. Case Coding

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

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

VIII. Inquiries

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

Attachment 1. - Final Judgement Order dated June 12, 1989; Order Amending Final Judgment date June 30, 1989; and Order Dated May 23, 1991, Establishing April 12, 1991, Establishing April 12, 1991, as the Effective Date of the Court's Final Judgment Order

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

ESTHER MARCUS, et. al.,

)  

Plaintiffs,

)  
  )  

vs.

) No. 85 C 453
  )  

LOUIS W. SULLIVAN, M.D.,

)  

Secretary Of Health and Human Services,

)  

Defendant.

)  

FINAL JUDGMENT ORDER[2]

This court entered a summary judgment order finding “that the Secretary's denial of class members' claim(s) to disability benefits on the basis of the listings alone does not comport with statutory requirements.” Marcus v. Heckler, 696.F.2d 364 (N.D. Ill. 1988) and Order (September 22, 1988) (for named plaintiffs). The class members who were denied lawful determinations under the Social Security Act are those with claims for widow(er)'s, surviving divorced spouse's, or children's disability benefits. The September 22, 1988 order does not specify any relief for those members of the plaintiff class whose rights this court found the Secretary had violated and is continuing to violate. Id. See Marcus v. Heckler, 620 F.Supp. 1218 (N.D. Ill. 1985) (certifying class to include, inter alia, claimants for widow(er)'s, surviving divorced spouse's, and children's disability benefits whose claims were denied on or after November 19, 1984).

Plaintiffs presented a motion for supplemental and injunctive relief, seeking the relief that will implement and enforce the September 22, 1988 order. In an order dated November 16, 1988, this court vacated the September 22, 1988 orders pending resolution of plaintiffs' motion for supplemental and injunctive relief. On November 23, 1988, this court ordered plaintiffs to submit to the court a proposed order for supplemental and injunctive relief. The Secretary filed his comments and objections concerning the proposed order and plaintiffs have replied. On April 17, 1989, this court entered an order resolving the disputes between the parties' proposed orders. On May 16, 1989 this court entered an order allowing the Secretary to continue using the current invalidated standards and policies on an interim basis, but also requiring protection for class members whose claims are denied thereunder. Now, therefore, the court enters the following final judgement order.

  1. As used herein, the following terms have the meanings indicated:

    1. “Plaintiffs” or “Class Members” means the named plaintiffs and the class of all persons who reside or have resided in Illinois, and

      1. who have claimed or are claiming initial or continued disabled widow(er)'s or disabled surviving divorced spouse's benefits under the Old Age, Survivors, and Disability Insurance Benefits Program (Title II) and/or child's disability benefits under the Supplemental Security Income program (Title XVI) of Social Security Act;

      2. whose claim for such benefit was or is being evaluated under the Department of Health and Human Services (HHS) Secretary's evaluation of disability, 20 C.F.R. §§ 404.1520a, 404.1577-404.1580, 416.920a and 416.924; and

      3. whose claims were or are denied initially or on any administrative appeal by a decision on or after November 19, 1984; and

      4. whose claims were or are denied by a decision of “not disabled” made solely on the basis of whether the claimants' impairments meet or equal the listing of impairments at 20 C.F.R., Part 404, Subpart P, Appendix 1, according to the Social Security Rulings 83-19 and 82-56 or 86-8; and

      5. who were not simultaneously denied a concurrent claim for worker's disability benefits under Title II or adult disability benefits under Title XVI of the Social Security Act where the decision was based on an assessment that the claimant retained the residual functional capacity to perform substantial gainful activity.

    2. “Secretary” or “Defendant” means the defendant Secretary of Health and Human Services;

    3. “SSA” means the Social Security Administration;

    4. “BDDS” means the Illinois Bureau of Disability Determinationns Services, or as appropriate, the Disability Determination Service of the state where an identified class member now lives;

    5. “IDPA” means the Illinois Department of Public Aid;

    6. “disability benefits” means benefits paid under Titles II and/or XVI of the Social Security Act, to persons who are eligible for them, because they are disabled within the meaning of the Act, including widows' disability benefits and children's disability benefits as defined below;

    7. “widows' disability benefits” means benefits paid under Title II to disabled widows, widowers, and surviving divorced spouses of a deceased wage earner;

    8. “children's disability benefits” means benefits paid under Title XVI to needy disabled children under the age of eighteen;

    9. “identified class members” means class members whose applications for widow's benefits or children's disability benefits were denied between November 19, 1984 and the date the Secretary complies with paragraph 3 of this order, or whose disability benefits were terminated during this period;

    10. “claim” means claims of identified class members to all disability benefits to which they may be entitled under the terms of this order. All identified class members whose disability benefits were denied or terminated after November 19, 1984 are deemed to raise such claims for purposes of this order;

    11. “redetermination,” when used with respect to a claim, means a new determination by SSA on a claim and the issuance of a written decision explaining the result of that redetermination to the individual claimant (whose claim has been redetermined) and his/her designated representative (if any);

    12. “functional limitation” means limitations on a claimant's sustained exertional, nonexertional, mental and sensory abilities, realistically evaluated in a work-like environment, caused by claimant's impairment or combination of impairments, as individually assessed by the Secretary in each claimant's case;

    13. “listing” means the Listing of Impairments set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1;

    14. “treating physician” means a doctor who provides ongoing treatment for a claimant's impairments;

    15. “examining physician” means a doctor who physically examines a claimant for purposes of evaluating his impairments;

    16. “POMS” means the SSA's Program Operations Manual System;

    17. “redetermination period” means, consistent with 20 C.F.R. §§404.620 and 416.330, the period beginning with the appropriate effective date of an identified class member's application for disability benefits that was denied or the date an identified class member's disability benefits were terminated, and ending with the date the Secretary makes a redetermination of the claim pursuant to paragraph 5 of this order.

  2. (a) Pursuant to Fed.R.Civ.P. 23(c)(1) the court amends the class definition. The new class definition is set forth in paragraph 1(a) hereof. See Marcus v. Bowen, 85 C 453, slip op. at 1-2, fn.1 (N.D. Ill. April 17, 1989) revising Marcus v. Heckler, 620 F.Supp. 1218 (N.D. Ill. 1985).

    2(b) As detailed in the court's September 22, 1988 orders, the Secretary's policy to deny the claims of class members to widows' disability benefits and children's disability benefits solely on the basis of whether their impairment(s) meets or equals the listing and without an assessment of functional limitation, violates the Social Security Act.

  3. (a) Except as provided for in paragraph 3(d) hereof, the Secretary is enjoined from denying the claims of class members for widows' disability benefits or children's disability benefits without making an individualized assessment of the actual level of functional limitation resulting from each class member's listed, unlisted or combination of impairments. The Secretary is further enjoined from denying benefits if the class member's actual functional limitations are less than the level the Secretary deems necessary to engage in any gainful activity (in widows' disability benefits claims), or if the actual functional limitation(s) are of comparable severity to one(s) which would prohibit substantial gainful activity in an adult (for children's disability benefits claims).

    3(b) Within 30 days from the entry of this order the Secretary is directed to issue teletypes, directives, transmittals, or like document, to all employees of BDDS and SSA who are involved in or responsible for making disability determinations for class members, or Illinois residents, to inform them of the terms of this order. The Secretary shall provide plaintiffs' attorneys with copies of such documents prior to issuance.

    3(c) Within a reasonable time from the entry of this order the Secretary is directed to promulgate regulations, acquiescence rulings, Social Security rulings, POMS provisions, or any other rulings necessary to implement subparagraph 3(a) in determining the claims of class members and the provisions of this final order.

    3(d) Until the Secretary complies with paragraph 3(c) he shall issue disability determinations for class members under the standards and procedures currently in existence, in spite of paragraphs 2(b) and 3(a) of this order. Any class members whose claims are denied at any administrative level on or after March 16, 1989, under such existing standards and procedures (otherwise declared illegal and enjoined hereunder) shall be entitled to redeterminations at the time the Secretary complies with paragraph 3(c). Such redeterminations shall consider the eligibility of the class members from the date of their applications for or terminations of benefits, through the date of their redeterminations. No such class members will be required to have exhausted their administrative remedies during the period of time between the denial and the redetermination. The class members entitled to redeterminations under this paragraph are automatically “identified class members” under this order, and they shall not be subject to the notice, election and screening procedures in paragraphs 4(b), 4(c) and 4(d) herein.

  4. (a) The Secretary shall determine, within 90 days from the entry of this order, the persons who are identified class members. No person otherwise an identified class member shall be excluded from that group because she/he commenced court proceedings respecting his/her claim for disability benefits, even if those proceedings have concluded. Identified class members may be excluded pursuant to the screening process contained in paragraph 4(d) hereof.

    4(b) After SSA issues implementing instructions and identifies identified class members, SSA shall send (by first class mail) to each identified class member, at his/her last known address, a notice approved by the parties, or by this court if the parties cannot agree, informing that person, in understandable terms, that a federal court has ordered his/her claim for disability benefits to be redetermined and that SSA will, upon the identified class member's request, redetermine his/her eligibility for disability benefits under the new procedures. The notice shall also advise a claimant that she/he may be entitled to interim benefits if eligibility for widows' or children's disability benefits was previously terminated. The notice shall also state that if, upon redetermination, the identified class member is either found eligible for disability benefits or for reinstatement of previously terminated disability benefits, then the proper amount of retroactive benefits, less any interim benefits received, shall be paid for all periods for which that person was determined eligible. Finally, the notice shall state that the eligibility redeterminations shall be made only for persons who elect such a redetermination within 240 days of their receipt of the notice. Defendant shall provide a postage-paid postcard or a written form by which such an election may be made, and, if a written form is used, a first class, government franked, self-addressed envelope for return of that form.

    4(c) The Secretary shall promulgate written screening criteria instructions. After SSA receives an election form requesting redetermination, the Secretary shall initiate a search for that person's file and forward the case file to the appropriate component of SSA for screening with respect to status as a class member. Whenever a case file cannot be located within four months after SSA initiates its search, the Secretary shall begin reconstructing the case file of the person requesting redetermination. Persons whose case files are being reconstructed shall be notified of that fact and encouraged to submit all documentary evidence that could assist SSA in reconstructing the case file.

    4(d) The Secretary shall screen all files to determine if the claimant is an identified class member. The Secretary shall mail (by the first class mail, postage prepaid) to any individual whom he determines is not an identified class member, a notice, the form of which is attached hereto as Exhibit A. A copy of each completed class membership denial notice will be sent to plaintiffs' counsel. Within 60 days of their receipt of any such copies of completed class membership denial notices, or within 60 days of a request for reopening due to good cause, pursuant to paragraph 9 infra, or within any other mutually agreed upon time, plaintiffs' counsel may request access to the claims files of the claimants denied class membership. Within 45 days of plaintiffs' counsels' request, or within some other mutually agreed upon-time, the Secretary shall make the requested claims files available to plaintiffs' counsel at some mutually agreed-upon location or locations. Plaintiffs' counsel shall have 60 days, or any other mutually agreed-upon time, from the date the Secretary notified them of the availability of the claims files, within which to complete their review of the files. If plaintiffs' counsels' review of the files thereafter establishes that there is dispute between the parties as to whether an individual is an identified class member, counsel for plaintiffs and the Secretary (or their designees) shall seek to resolve such disputes by negotiation, provided, however, that both plaintiffs and the Secretary shall each designate one or more persons with the final authority to settle such disputes who shall represent the parties in the negotiations. Either party may submit, by a duly noticed motion, any unresolved dispute to the court for resolution.

  5. Except as provided in paragraph 6 herein, the Secretary is directed to make redeterminations of the claims of all identified class members who have made an election under paragraph 4(b) hereof, determining whether they are eligible for disability benefits for any period of time during their entire redetermination period. In making these redeterminations the Secretary shall comply with the requirements of paragraphs 3 and 4 herein. Such redeterminations will be made on claims of identified class members in the manner described in sections (i) through (ix) below. References to “identified class members” in sections (i) through (ix) below are to those who make an election under paragraph 4(b) hereof that their claims be redetermined and who, after screening under paragraph 4(d), remain “identified class members.” All redeterminations shall be made in the manner described in sections (i) through (ix) below:

    1. Except as provided in subparagraph (ii), BDDS shall make the redeterminations of eligibility at the reconsideration level for all identified class members who elected a redetermination, whether or not such class members ever appealed initial or reconsideration denials of their claims for disability benefits, whether or not the time for such appeals has passed, and whether or not there were proceedings before an administrative law judge, the Appeals Council, or before the federal courts respecting such claims. Such reconsiderations and any subsequent administrative and judicial review shall be conducted under the provisions of 20 C.F.R. Part 404, Subparts J, P and Q, and Part 416, Subparts I, J and N, to the extent all such regulatory provisions are not inconsistent with this Order.

    2. Identified class members who have actions pending in federal court may elect to have their cases remanded to BDDS for a redetermination identical to the ones required by subparagraph (i). Defendant shall notify such class members of the opportunity they have to make such an election, and provide a written form by which such an election may be made. If such an election is made, defendant shall move the court or otherwise agree to a remand of the case. For class members who have had cases remanded from federal court pursuant to an election under this subparagraph, defendant shall complete the redeterminations within a reasonable time unless the applicable district court orders that the redetermination be completed within a specific time; such time to count from the Secretary's implementation of paragraph 3 of this order or from the date of the remand order, whichever is later. Identified class members who filed actions in federal court, but whose actions conclude or have concluded without the class member having an opportunity to elect a remand under this subparagraph, shall have their claims redetermined pursuant to subparagraph (i). If a class member elects to remain in federal court she/he shall nevertheless be entitled to a redetermination under subparagraph (i) if the district court denies his/her claim without applying the criteria the Secretary adopts pursuant to paragraph 3 of this order.

    3. Defendant is directed to forward the case files of the identified class members to the BDDS in sufficient time to ensure that the redeterminations are completed within a reasonable time. On a schedule to be determined by SSA (that shall be consistent with achieving compliance with the requirements of this order), the processing center having jurisdiction over the claims of identified class members, shall arrange for retrieval of the claims files of such class members. Identified class members whose benefits were terminated shall have priority in this process.

    4. prior to making the reconsideration level redetermination of the claim of an identified class member, BDDS shall send notice of and schedule an interview, in person or via telephone, with the identified class member to elicit and record the ncessary information to determine the functional impact of the combined impairments on identified class members. The liability or failure of an identified class member to respond to such notice or attend such interview shall not be deemed a waiver of the class member's right to a redetermination nor affect the Secretary's obligations set forth in this order.

    5. In accordance with paragraph 3(a) of this order BDDS shall make a redetermination decision based upon the functional limitations of an identified class member, as established by consideration of all of the medical and functional limitation evidence in the file.

    6. Prior to making a redetermination of a claim of an identified class member, BDDS shall — in accordance with the Social Security Act, the applicable regulations and POMS — develop the medical evidence relevant to each identified class member's entire redetermination period. In the case of the claimants for children's disability benefits, BDDS shall assist in developing the medical evidence needed to redetermine the child's claim.

    7. Neither BDDS, nor any State Disability Determination Service unit adjudicating claims of identified class members, shall be subject to sanctions for any reasonable delay in adjudicating cases (of individuals who are not identified class members) as a result of their effort to comply with this subparagraph within a reasonable time.

    8. The Secretary shall be responsible for the completion by BDDS of all redeterminations of all identified class members within a reasonable time after entry of this order.

    9. In making these redeterminations the Secretary shall be entitled to verify that identified class members meet all the non-disability related eligibility criteria for payment of disability benefits.

  6. Notwithstanding the requirements of paragraphs 4 and 5, the Secretary is not required to redetermine the eligibility of any identified class member who (1) is dead and who does not have (as of the date she/he is determined to be an identified class member) a “living with eligible spouse” as described in 20 C.F.R. §416.541(b), a “surviving spouse” eligible for payment of underpayments pursuant to POMS SI 2101.001B.2, SI 01210.005 and SI 02101.006, or a surviving parent(s) eligible for payment of underpayments pursuant to SI 02101.001B.2 and SI 02101.007 and (2) between November 19, 1984, and the present, made application for disability benefits only under Title XVI (as opposed to Title II) of the Social Security Act, or was a recipient of disability benefits only under Title XVI (as opposed to Title II). Redeterminations (under paragraph 5 of this order) must be made, and payment (under paragraph 8 of this order) of any underpayment owed must be attempted (as defined in paragraph 9 of this order) for all other identified class members, even if they are dead.

  7. The Secretary shall reinstate current disability benefits for identified class members (not receiving disability benefits as of the date they are identified) who (1) had their disability benefits terminated; (2) are to receive a redetermination of their eligibility for disability benefits, pursuant to paragraph 5, and (3) elect to receive such current benefits. Such benefits shall be reinstated promptly after the class member is identified and elects reinstatement due to a good faith belief of continued eligibility, and shall be paid effective with the date of the class member's election to have his case redetermined. Reinstatement shall be made at the level of benefits that would have been in effect if the benefits had not been terminated. Any overpayment that results from ultimate determination of the claim shall be subject to good faith waiver consideration under 42 U.S.C. §423(g)(2)(B).

  8. Consistent with this court's ruling that all of the identified class members' applications for benefits are still pending under 20 C.F.R. §§404.620 and 416.330, the Secretary shall grant retroactive disability benefits to all identified class members for all periods that such persons (upon the redetermination of their eligibility pursuant to paragraph 5) are found eligible for them. The Secretary shall make a good faith effort to pay such benefits within 30 days after the final determination of eligibility is made in the individual claimant's case (including the Secretary's own motion review, if any). If the Secretary determines that the identified class member to whom retroactive benefits would be paid is dead, then payment of such benefits, if not excepted under paragraph 6 of this order, shall be made in accordance with the requirements of 20 C.F.R. §§404.503, 416.542.

  9. The Secretary shall use all good faith efforts to determine the whereabouts of the identified class members or others to whom notices are to be sent pursuant to paragraph 5, and to whom reinstated and/or retroactive disability benefits are to be paid pursuant to paragraphs 7 and 8 herein. Such good faith efforts shall include, but are not limited to, a requirement that the Secretary, in seeking to provide the benefits owed, shall utilize the last address known to SSA for the identified class members. If the Secretary is unable to determine the whereabouts of identified class members by reference to information in the possession of SSA, within 90 days of the date such notice is to be sent or is returned as undeliverable, then the Secretary shall implement a procedure for securing from IDPA the last known address (if any) that such agency may have for that individual. If that address is a later known address for the identified class member to whom notice is being sent than that initially utilized by the Secretary, then the Secretary shall use that later known address in seeking to ensure delivery of the notice. If SSA cannot locate the identified class member, that person's case will be closed eight months after the last letter was sent without any response from the class member regarding redetermination, except that SSA will automatically reopen the case if within four years the class member reports to SSA that his/her failure to respond was due to homelessness, mental illness, hospitalization, imprisonment, being an unrepresented minor, or other good cause.

    If the response of class members to the notice appears low, plaintiffs have leave to submit a request that the court require the Secretary to issue public service announcements and, if such announcements are not published, to publish notice in newspapers of general circulation respecting such individuals' eligibility of redeterminations and benefits.

  10. The Secretary shall provide plaintiffs' counsel with any notices SSA plans to send or give to identified class members at least 30 days prior to the date SSA commences printing the notices. The providing of these notices to plaintiffs' counsel is intended to afford them the opportunity to comment upon them before they are printed, sent or given to individual class members.

  11. The Secretary shall notify identified class members (and their designated representatives, if any) of favorable and unfavorable decisions made by the BDDS pursuant to paragraph 5 hereof. Such notices shall contain an explanation of why the redetermination was made, reasons for the decision if less than completely favorable, and appeal rights. Identified class members shall have full rights to seek timely administrative review (to the ALJ and Appeals Council) and judicial review (to the federal district court) under 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N and 42 U.S.C. §§405(g) and 1383c, of the redetermination decisions as if they were reconsideration decisions. The Secretary shall send (or have BDDS send) to plaintiffs' counsel, for the first 18 months that redeterminations are made, complete and accurate copies of all individual BDDS redetermination notices. Also, the Secretary shall send to plaintiffs' counsel all copies of ALJ and Appeals Council decisions determining claims of identified class members not later than the date the same decisions are sent to the identified class members and their designated representatives.

  12. Except as required under paragraph 3(b) of this final order, the Secretary shall provide plaintiffs' attorneys with copies of all regulations, rulings, instructions, directives, transmittals, identical letters and like documents issued to effect compliance with this order at least 30 days before the documents are to be issued. Plaintiffs' attorneys shall have an opportunity to comment on such documents before they are issued. The Secretary shall provide plaintiffs' attorneys with copies of all documents in final form upon issuance.

  13. The Secretary shall commence, within 90 days after the first full month after the entry of this order, reporting to plaintiffs' counsel on a quarterly basis, as follows:

    1. A list of the names, addresses and social security numbers of all persons determined to be identified class members;

    2. a list of the names, addresses, and social security numbers of all identified class members whose benefits were reinstated as interim benefits during the previous quarter, pursuant to paragraph 7 hereof;

    3. the numbers of identified class members with pending federal actions who are given the chance to elect a remand under paragraph 5(ii) of this order;

    4. the number of persons sent election forms under paragraph 4(b);

    5. the number of persons electing redeterminations;

    6. the number of identified class members who appeal redetermination decisions to the ALJ.

    Each such report (except the first one) shall include cumulative totals for each of the categories listed above, as computed from the totals in such categories in each report previously prepared. All information provided shall be subject to a protective order limiting its use to the prosecution of this lawsuit.

  14. The Secretary may petition the court at any time for relief from any one or more of the provisions of any paragraph above. Such relief shall be granted upon a determination of the court that such relief is otherwise appropriate.

  15. Nothing in this order shall be construed as precluding the Secretary from employing the quality assurance review procedures set forth in 42 U.S.C. §421(c)(3) in any plaintiff's case, to the extent defendant deems that appropriate. If the quality assurance review process results in or generates general (i.e., not case specific) studies of the decisions in the cases of class members or general (i.e., not case specific) statements of policy or practice governing the redeterminations to be made under this order, copies of each such document shall be provided to plaintiffs' attorneys. Nothing in this order shall be construed as precluding members of the plaintiff class from obtaining greater relief on alternative grounds. Nothing in this order shall be construed as prejudicing class members who choose to proceed with their individual court cases, from obtaining the relief provided herein, except as provided in paragraph 5(ii) of this order.

  16. Upon reasonable notice plaintiffs may take discovery pursuant to the Federal Rules of Civil Procedure, Rules 26-36, regarding the Secretary's compliance with the terms of this order.

  17. This order constitutes the final judgment-order. Except as modified herein, this court's order concerning class claims (dated September 22, 1988) is hereby reinstated. The issue of plaintiffs' entitlement to attorneys' fees and costs is reserved. Plaintiffs shall file an appropriate petition for fees within the time permitted by the Equal Access to Justice Act, 28 U.S.C. §2412. Plaintiffs may file a bill of costs when they file their petition for fees, their time to file the bill being thereby extended.

  18. This court shall retain continuing jurisdiction over this case to enforce the terms of this order or to entertain motions to modify its terms.

  ________________/s/____________________
  James B. Moran
  Judge, United Stated District Court
June 12, 1989.  

IN THE UNITED STATES DISTRIC COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

ESTHER MARCUS, et. al.,

)  

Plaintiffs,

)  
  )  

v.

) No. 85 C 453
  ) Judge Moran

LOUIS W. SULLIVAN, M.D.,

)  

SECRETARY OF THE DEPARTMENT

)  

OF HEALTH AND HUMAN SERVICES,

)  

Defendant.

)  

ORDER AMENDING FINAL JUDGMENT

This case comes before the court on defendant's Motion to Alter or Amend Final Judgment, which was timely filed under Fed. R. Civ. P. 59(e). The court having considered the motion heard the parties and being fully advised in the premises, IT IS HEREBY ORDERED:

The Final Judgment Order dated June 12, 1989, and entered June 13, 1989, is amended as follows:

  1. Paragraph 1(1), which is the definition of “functional limitation”, is amended by adding the words “as sustainable by the claimant” after the words “realistically evaluated”.

  2. The notice referred to as Exhibit A in paragraph 4(d) of the Final Judgment Order was not attached to the Final Judgment Order. It is attached hereto as Exhibit A and incorporated herein by reference as the notice referred to in paragraph 4(d) of the Final Judgment Order.

  3. Paragraph 5(iv) is amended to substitute the word “inability” for the word “liability”.

  4. All time limits in the Final Judgment Order that run from the date of that order are amended to run from the date of this amendatory order.

 

ENTER:_______________________________
James B. Moran
United Stated District Court

Dated: _______________________, 1989  

EXHIBIT A

UNFAVORABLE DECISION ON MARCUS CLASS MEMBERSHIP

A lawsuit has been filed against the Social Security Administration because of the way we made disability decisions in denying claims for benefits in widow(er)'s, surviving divorced spouses', and Supplemental Security Income children's disability claims. The lawsuit is known as Marcus v. Sullivan. The people who filed the Marcus suit also filed it for everyone else in Illinois who was affected since November 19, 1984, by the same kind of decision. This kind of lawsuit is called a “class action”.

Everyone who is one of the “class” of people included in the suit will have the earlier decision denying or terminating their claim for benefits reviewed again under new standards set by the Court. Based on this review, we may determine that a class member is owed cash disability benefits for past months and in the future.

We have looked at your case. We think that you are not a member of the Marcus class for the reason given below. This means that we will not review your claim to redetermine it.

A copy of this letter is being sent to attorneys for the class. If they think that we are wrong, we may change our minds and look at your case again. If you think we are wrong, you may write or call class counsel, who will answer your questions about class membership without charge. The names, address, and telephone number of these attorneys are:

John Bouman, Mary Elizabeth Kopko, Martha Tonn
Legal Assistance Foundation of Chicago
343 S. Dearborn St.
Suite 700
Chicago, Illinois 60604
Attn: Marcus
Phone: (312)347-8_____

You may also contact your personal legal representative, if you have one or if you obtain one.

REASON FOR UNFAVORABLE DECISION

Your are not a Marcus class member because:

____________________________________________________

(Checklist to be developed by SSA in consultation with plaintiffs' attorneys)

You may contact your local Social Security Office if you have any questions about this notice.

(Tag in Spanish: This is an important notice about social security benefits. Please have it translated right away and call your Social Security Office for an explanation.)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

ESTHER MARCUS, et. al.,

)  

Plaintiffs,

)  
  )  

v.

) No. 85 C 453
  ) Judge Moran

LOUIS W. SULLIVAN, M.D.,

)  

Secretary of Health and

)  

Human Services,

)  

Defendant.

)  

ORDER

Plaintiffs have filed a Motion to Enforce Compliance with the Final Judgment Order in this cause. In their Motion, plaintiffs request that April 12, 1991 be established as the effective date of the Court's Final Judgment Order.

IT IS HEREBY ORDERED THAT April 12, 1991 is the effective date on the Court's Final Judgment Order in this cause. All deadlines contained in the Final Judgment Order shall be calculated from April 12, 1991.

 

________________/s/____________________

JUDGE

 

                5/23/91                

DATE

Attachment 2. - MARCUS COURT CASE FLAG/ALERT

                   TITLE: 

II         CATEGORY: 
1

REVIEW OFFICE     PSC      MFT       DOC       ALERT DATE
    1140           Y        W        511        11/08/91

           FUN                        NAME


 SSN OR HUN            RESP DTE               TOE
 000-00-0000                                  840

 FOLDER LOCATION INFORMATION
TITLE     CFL     CFL DATE       ACN            PAYEE ADDRESS
  II      2930    01/13/89




                    SHIP TO: DHHS, SSA
                             GREAT LAKES PSC
                             600 WEST MADISON STREET
                             CHICAGO, ILLINOIS 60606

                     IF CLAIM IS PENDING IN OHA,
                     THEN SHIP FOLDER TO OHA.

Attachment 3. Route Slip or Case Flag For Screening

MARCUS CLASS ACTION CASE

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

Please refer to HALLEX Temporary Instruction 5-4-31 for additional information and instructions.

TO: ______________________________
______________________________
______________________________
______________________________

Attachment 4. MARCUS SCREENING SHEETS

1. SOCIAL SECURITY NUMBER

[___] [___] [___] - [___] [___] - [___] [___] [___] [___]

BIC

[___] [___]

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

 

3. SCREENING DATE

[___] [___] - [___] [___] - [___] [___]

4. a. MEMBERSHIP DETERMINATION

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

b. SCREENOUT CODE

[___] -[___] (see item 12 for screenout codes)

5. Is this a title II disabled widow/widower or surviving divorced spouse claim?

Yes___No___

(if No go to 12)

6.Did the responder reside in the State of Illinois at any time from November 19, 1984, through May 22, 1991, inclusive?

Yes___No___

(if No go to 12)

7. Was a less than fully favorable determination/decision issued on this claim at any administrative level by the Illinois DDS, OHA, or any office servicing the State of Illinois, from November 19, 1984, through May 22, 1991, inclusive, and did this become the final decision of the Secretary? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.)

Yes___No___

(if No go to 12)

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

Yes___No___

(if Yes go to 12)

9.Did the claimant receive a subsequent fully favorable determination/decision based on the earliest alleged onset date?

Yes___No___

(if Yes go to 12)

10.Was a claim for title XVI or title II worker's disability concurrently denied/ceased at steps 4 or 5 of the sequential evaluation process?

Yes___No___

(if Yes go to 12)

11.Even if the claimant was issued an adverse determination/decision within the timeframe given in Question No. 7, did the individual later receive a final adverse determination/decision after May 22, 1991, on the potential Marcus claimor a subsequent claim which raised the issue of disability and covered the timeframe at issue in the potential Marcusclaim?

Yes___No___

(if Yes go to 12)

12. The responder is not a Marcus class member.

Enter the screenout code in item 4 as follows:
Enter 05 if question 5 was answered “NO”.
Enter 06 if question 6 was answered “NO”.
Enter 07 if question 7 was answered “NO”.
Enter 08 if question 8 was answered “YES”.
Enter 09 if question 9 was answered “YES”.
Enter 10 if question 10 was answered “YES”.
Enter 11 if question 11 was answered “YES”.

No other screenout code entry is appropriate.

SIGNATURE OF SCREENER

COMPONENT

DATE

Enter dates of all applications screened.

___________________ _______________ __________________ ________________

Attachment 5. MARCUS VERIFICATION FORM FOR AUTOMATIC CLASS MEMBERSHIP

1. SOCIAL SECURITY NUMBER

[___] [___] [___] - [___] [___] - [___] [___] [___] [___]

BIC

[___] [___]

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

 

3. SCREENING DATE

[___] [___] - [___] [___] - [___] [___]

4. a. MEMBERSHIP DETERMINATION

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

b. SCREENOUT CODE

[___] -[___] (see item 12 for screenout codes)

5. Is this a title II disabled widow/widower or surviving divorced spouse claim?

Yes___No___

(if No go to 12)

6.Did the responder reside in the State of Illinois at any time from November 19, 1984, through May 22, 1991, inclusive?

Yes___No___

(if No go to 12)

7. Was a less than fully favorable determination/decision issued on this claim at any administrative level by the Illinois DDS, OHA, or any office servicing the State of Illinois, from November 19, 1984, through May 22, 1991, inclusive, and did this become the final decision of the Secretary? (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.)

Yes___No___

(if No go to 12)

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

Yes___No___

(if Yes go to 12)

9.Did the claimant receive a subsequent fully favorable determination/decision based on the earliest alleged onset date?

Yes___No___

(if Yes go to 12)

10.Was a claim for title XVI or title II worker's disability concurrently denied/ceased at steps 4 or 5 of the sequential evaluation process?

Yes___No___

(if Yes go to 12)

11.Even if the claimant was issued an adverse determination/decision within the timeframe given in Question No. 7, did the individual later receive a final adverse determination/decision after May 22, 1991, on the potential Marcus claimor a subsequent claim which raised the issue of disability and covered the timeframe at issue in the potential Marcus claim?

Yes___No___

(if Yes go to 12)

12. The claimant is not a Marcus class member.

Enter the screenout code in item 4 as follows:
Enter 15 if question 5 was answered “NO”.
Enter 16 if question 6 was answered “NO”.
Enter 17 if question 7 was answered “NO”.
Enter 18 if question 8 was answered “YES”.
Enter 19 if question 9 was answered “YES”.
Enter 20 if question 10 was answered “YES”.
Enter 21 if question 11 was answered “YES”.

No other screenout code entry is appropriate.

SIGNATURE OF SCREENER

COMPONENT

DATE

Enter dates of all applications screened.

___________________ _______________ __________________ ________________

Attachment 6. - 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:

1.

INITIALS DATE

2.

   

3.

   

4.

   

5.

   

6.

   

7.

   
_XX_ACTION ____FILE ____NOTE AND RETURN
____APPROVAL ____FOR CLEARANCE ____PER CONVERSATION
____AS REQUESTED ____FOR CORRECTION ____PREPARE REPLY
____CIRCULATE ____FOR YOUR INFORMATION ____SEE ME
____COMMENT ____INVESTIGATE ____SIGNATURE
____COORDINATION ____JUSTIFY ____OTHER

REMARKS

MARCUS CASE

Claimant: ___________________________

SSN: ________________________________

OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the Great Lakes Program Service Center for screening and possible readjudication. SEE POMS DI 42599.005 OR DI 12599.005

Attachment

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

FROM:

Office of Hearings and Appeals

__________________________________________

SUITE/BUILDING

PHONE NUMBER

OPTIONAL FORM 41 (Rev. 7-76)

*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA

FPMR (41 CFR) 101-11.206

Attachment 7. - Marcus Non-Class Membership Notice

UNFAVORABLE DECISION ON MARCUS CLASS MEMBERSHIP
  Date
  Claim Number:

A lawsuit has been filed against the Social Security Administration because of the way we made disability decisions in denying claims for benefits in widow(er)'s and surviving divorced spouses' claims. The lawsuit is known as Marcus v. Sullivan. The people who filed the Marcus suit also filed it for everyone else in Illinois who was affected since November 19, 1984, by the same kind of decision. This kind of lawsuit is called a “class action.”

Everyone who is one of the “class” of people included in the suit will have the earlier decision denying or terminating their claim for benefits reviewed again under new standards set by the court. Based on this review, we may determine that a class member is owed cash disability benefits for past months and in the future.

We have looked at your case. We think that you are not a member of the Marcus class for the reason given below. This means that we will not review your claim to redetermine it.

A copy of this letter is being sent to the attorneys for the class. If they think that we are wrong, we may change our minds and look at your case again. If you think we are wrong, you may write or call class counsel, who will answer your questions about class membership without charge. The name, address and telephone number of these attorneys are:

Legal Assistance Foundation of Chicago
343 S. Dearborn St.
Suite 700
Chicago, Illinois 60604
ATTN: Marcus

You may also contact your personal legal representative, if you have one or if you obtain one.

REASON FOR UNFAVORABLE DECISION

You are not a Marcus class member because:

_______ You never filed a claim for disabled widow(er)'s or surviving divorced spouse's benefits.
_______ You did not live in Illinois at any time from November 19, 1984, through May 22, 1991, inclusive.
_______ Your claim was not finally denied or ceased at any administrative level between November 19, 1984, and May 22, 1991.
_______ Your claim was not denied or ceased for medical reasons. Your claim was denied because ____________________________________________________.
_______ We already changed our earlier decision and found that you were disabled, and we have paid you in full for all past-due benefits.
_______ You had a concurrent claim for disability benefits which was denied or ceased and the determination or decision on that claim was based on an assessment of what you can still do despite your impairment(s), i.e., residual functional capacity or a finding that you had no severe impairment.
_______ You received a final adverse decision after May 22, 1991, on a subsequent claim which ruled on the issue of disability and covered the period at issue in the potential Marcus claim.

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 Marcus class member.

If You Are Disabled Now

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

If You Have Any Questions

If you have questions, you should call, write or visit any Social Security office. Most questions can be answered by telephone. If you visit a Social Security office, please bring this letter with you. It will help us answer your questions.

ESTA ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL. FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR A SU OFICIANA DE SEGURO SOCIAL PARA UNA EXPLICACION.

cc: Legal Assistance Foundation of Chicago
Claimant's Representative

Attachment 8. - Route Slip For Non-Class Membership Cases

     
ROUTING AND TRANSMITTAL SLIP DATE:

TO:

1. SSA District Office

INITIALS DATE

2. 77 West Jackson Boulevard

   

3. Room 300

   

4. Chicago, IL 60604

   

5.

   

6.

   

7.

   
_XX_ACTION ____FILE ____NOTE AND RETURN
____APPROVAL ____FOR CLEARANCE ____PER CONVERSATION
____AS REQUESTED ____FOR CORRECTION ____PREPARE REPLY
____CIRCULATE ____FOR YOUR INFORMATION ____SEE ME
____COMMENT ____INVESTIGATE ____SIGNATURE
____COORDINATION ____JUSTIFY ____OTHER

REMARKS

MARCUS CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a MARCUS CASE class member. (See screening sheet and copy of non-class membership notice in the attached claim folder(s).) SEE POMS DI 32599.005

Attachment

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

FROM:

Office of Hearings and Appeals

__________________________________________

SUITE/BUILDING
PHONE NUMBER

OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206

Attachment 9. - Marcus Class Member Flag For Headquarters Use (DDS Readjudication)

Marcus Class Action Case

READJUDICATION NECESSARY

Claimant's Name: _________________

SSN: _________________

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

If the claimant has filed a civil action and elected to remain in court for review of the current claim, forward the Marcus claim folder(s) without delay to the Illinois DDS for readjudication.

Send folders to:

Department of Rehabilitation Services
Department of Disability Determination Services
100 N. First Street
Springfield, Illinois 62702

(Destination code: S16)

Attachment 10. - ALJ Dismissal Order to DDS

DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

IN THE CASE OF CLAIM FOR
______________________ ______________________
______________________ ______________________

This case is before the Administrative Law Judge pursuant to a request for hearing filed on _________________ with respect to the application(s) filed on _________________.

In accordance with an order of the United States District Court for the Northern District of Illinois in the case of Marcus, et al. v. Sullivan, No. 85 C 453 (N.D. Illinois June 12, 1989) the claimant has requested reopening and revision of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Marcus class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Marcus final judgment order. Because the claimant's current claim shares certain common issues with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the Illinois Disability Determination Service which will conduct the Marcus readjudication.

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

 

_____________________________
Administrative Law Judge

 

_____________________________
Date

Attachment 11. - Notice of Dismissal

Claimant's Naeme
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the Illinois Disability Determination Service which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge has sent your current claim and your Marcus class member claim back to the Illinois Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

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

Do You Have Any Questions?

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

Enclosure

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

Attachment 12. - Marcus Class Member Flag For HO Use (DDS Adjudication)

Marcus Class Action Case

READJUDICATION NECESSARY

Claimant's Name: _________________

SSN: _________________

This claimant is a Marcus class member. The attached Marcus claim file 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 file(s) to your location for any necessary Martel readjudication action.

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

Department of Rehabilitation Services
Department of Disability Determination Services
100 N. First Street
Springfield, Illinois 62702

(Destination code: S16)


[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.

[2]   Pursuant to Fed.R.Civ.P. 25(d), Louis W. Sullivan, M.D. is substituted as defendant in this action. He succeeded Otis R. Bowen, M.D., originally named as a defendant, as Secretary on March 1, 1989.