I-5-4-31.Marcus, et al. v. Sullivan

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

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.

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

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.

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

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.

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

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

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.

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

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:

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

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.

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

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.

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.

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)