I-5-4-43.Taylor v. Shalala

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Individuals Entitled to Taylor Relief
V Determination of Persons Entitled to Relief and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Inquiries
Attachment 1 Settlement Agreement Dated April 5, 1994.
Attachment 2 TAYLOR COURT CASE FLAG/ALERT
Attachment 3 ROUTE SLIP OR CASE FLAG FOR SCREENING
Attachment 4 TAYLOR SCREENING SHEET
Attachment 5 Route Slip for Routing Court Case Alert and Prior Claim File(s) to ODIO or PSC - OHA No Longer Has Current Claim
Attachment 6 Non-Entitlement to Relief Notice
Attachment 7 Route Slip for Non-Entitlement to Relief Cases
Attachment 8 Text for Notice of Revised Entitlement to Relief Determination
Attachment 9 Taylor Court Case Flag for Headquarters Use (DDS Readjudication - retention period expired)
Attachment 10 Taylor Court Case Flag for Headquarters Use (DDS Readjudication - retention period has not expired)
Attachment 11 ALJ Dismissal to DDS
Attachment 12 Notice Transmitting ALJ Order of Dismissal
Attachment 13 Taylor Court Case Flag for Headquarters Use (DDS Readjudication)

ISSUED: November 30, 1994

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the parties' April 5, 1994 joint settlement agreement in the Taylor v. Shalala class action involving the standard for determining disability in surviving spouse claims.

Adjudicators throughout the country must be familiar with this TI because individuals entitled to relief under the Taylor settlement who now reside outside of the states of Ohio and Kentucky must have their cases processed in accordance with the requirements of the settlement agreement.

II. Background

On December 21, 1990, plaintiffs filed a class complaint alleging that the Secretary failed to consider residual functional capacity (RFC) for any gainful activity in determining eligibility for title II disability benefits for widows, widowers, and surviving divorced spouses.[1]

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 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.

Because the merits of plaintiffs' challenge were resolved by the enactment of § 5103 of OBRA 90 and the publication of SSR 91-3p, the parties agreed to settle the remaining class relief issues.

On February 17, 1993, in anticipation of the expected satisfactory conclusion of settlement negotiations, the district court dismissed the case without prejudice. The court retained jurisdiction to reinstate the action, if necessary, for cause shown that settlement had not been completed.

On April 5, 1994, the parties concluded settlement negotiations with the execution of a joint settlement agreement setting forth the terms for the implementation of relief (Attachment 1). Pursuant to ¶ 16, the parties provided the district court with an informational copy of the settlement agreement and asked the court to place it in the court file.

III. Guiding Principles

Under Taylor, the Secretary will readjudicate the claims of those persons who: 1) respond to notice informing them of the opportunity for review; and 2) are determined to be entitled to review after screening (see Part V.). The Disability Review Section in the Great Lakes Program Service Center (GLPSC) will screen the claims of individuals potentially entitled to relief, unless there is a current claim pending at the Office of Hearings and Appeals (OHA) (in which case OHA will have screening responsibility). Regardless of the state of the claimant's current residence, the Disability Determination Services (DDSs) in Ohio and Kentucky, in most cases, will perform the agreed-upon readjudications, irrespective of the administrative level at which the claim was last decided.

EXCEPTIONS:

The DDS servicing the claimant's current address will perform the readjudication if a face-to-face review is necessary; i.e., terminal illness (TERI) cases. The Great Lakes Program Service Center has review jurisdiction if there is railroad involvement in the Taylor claim.

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

Cases readjudicated by the DDSs will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. Individuals entitled to relief 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 (42 U.S.C. § 423(d)(2) (1992)) and SSR 91-3p for evaluating disability in Taylor claims. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later.[2] (See HALLEX TI 5-3-15, 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 Individuals Entitled to Taylor Relief

For purposes of implementing the terms of the settlement agreement, individuals entitled to relief under Taylor will include any individual who:

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

  • was issued a less than fully favorable (i.e. later onset, closed period, or denied) administrative determination or decision between January 1, 1991, and June 4, 1991, inclusive, that became the final decision of the Secretary, that was based on whether the individual's impairment met or equalled a listed impairment and did not consider the individual's RFC for gainful activity (see Part V.B.2.b., 2d note, for further explanation of the final decision concept);

  • was not issued a final determination or decision by the Secretary or a court which considered the individual's RFC for gainful work for the entire period at issue in the Taylor claim(s) in denying any other title II or title XVI disability claim;

  • was residing in Ohio or Kentucky at the time the final administrative decision was issued; and

  • did not have the Secretary's final decision in the potential Taylor claim reviewed and decided by a Federal court.

    EXCEPTIONS:

    An individual is not entitled to relief under Taylor if he or she

    (1) filed a claim for disability benefits under titles II or XVI, either concurrently with, or after, any DWB claim(s) which was denied between January 1, 1991, and June 4, 1991, inclusive, and received a final administrative denial or a final adverse judgment from a Federal district or appellate court on the disability claim at steps one, two, four or five of the sequential evaluation process that covered the entire timeframe at issue in the Taylor claim(s); or

    (2) filed a complaint in Federal district court based on an administrative denial of any DWB claim(s) between January 1, 1991, and June 4, 1991, inclusive, and received a final judgment from a Federal district or appellate court; or

    (3) first filed a DWB claim on or after January 1, 1991, and that claim did not involve entitlement to DWB for any month(s) before January 1991 (i.e., did not involve an alleged onset date that could result in entitlement prior to January 1991), and was denied administratively on the ground that the claimant did not meet the statutory standard for disability set forth in § 5103 of OBRA 90, that became effective January 1, 1991; or

    (4) had a claim for DWB denied on the ground that he or she did not satisfy the disability standard of SSR 91-3p for all relevant periods of time at issue.

V. Determination of Persons Entitled to Relief and Preadjudication Actions

A. Pre-Screening Actions - General

  1. Notification

    SSA will send notices to all individuals potentially entitled to relief under Taylor as identified by a computer run. Individuals have 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Taylor settlement agreement. SSA will presume an individual's receipt of the notice five days after mailing, unless the individual establishes that receipt actually occurred later. The Office of Disability and International Operations (ODIO) will retrieve the claim files of late responders and send them, together with the untimely responses, to the servicing Social Security field office (i.e., district or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards set forth in 20 CFR § 404.911 and SSR 91-5p. If good cause is established, the field office will forward the claim to the GLPSC for screening.

  2. Alert and Folder Retrieval Process

    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 Taylor alert.

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

  3. Alerts Sent to OHA

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

    GLPSC will send all alerts potentially within OHA jurisdiction and related prior claim files to the Office of Civil Actions (OCA), Division III, at the following address:

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

  4. Folder Reconstruction

    In general, ODIO or the GLPSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential Taylor cases should be rare. However, if it becomes necessary for OHA to request reconstruction, the OHA component (if not OCA, Division III) will return the alert and any accompanying claim file(s) to OCA, Division III. OCA, Division III, will direct any necessary reconstruction requests to the servicing FO with a covering memorandum requesting that the reconstructed folder be forwarded to OHA. OHA will send a copy of the covering memorandum to:

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

  5. Denials of Entitlement to Relief

    The GLPSC or OHA, as appropriate, will hold for 90 days all files of individuals determined not to be entitled to relief under Taylor pending a possible request for review of that determination by the individual or the individual's representative. If the individual or representative make a timely written request (i.e., within 60 days of receipt of notice of non-entitlement to relief) to review the claim file, GLPSC or OHA will forward the files to a mutually agreed upon SSA office for review. SSA has 30 days to make the folder available, and the claimant has 30 days to inspect it. If the claimant is still dissatisfied after reviewing the file or if the claimant chooses to dispute the determination without looking at the claim folder, he or she must notify the Office of the General Counsel (OGC) within 60 days of initially having notified SSA.

B. OHA Screening Actions

  1. Pre-Screening Actions

    1. Current Claim in OHA

      As provided in Part V.A.3., if there is a current claim pending at OHA, OCA will receive the alert and related Taylor claim file(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 use Attachment 3 to forward the alert and the prior claim file(s) to the HO for screening.

      • If the current claim is before the Appeals Council, OCA will use Attachment 3 to forward the alert and prior claim file(s) to the appropriate Office of Appellate Operations (OAO) branch for screening.

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

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

      NOTE:

      OCA, Division III, is responsible for controlling and reconciling the OHA Taylor alert workload. Because the number of individuals potentially entitled to relief is small, the OHA alert workload will be minimal and a manual accounting should suffice. OCA will maintain a record of all alerts transferred to other locations (to include the pertinent information about destinations), and a copy of all screening sheets. This information will be necessary to do a final alert/screening reconciliation.

    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 file(s) (or court transcript) and screen for entitlement to relief under Taylor. See Part V.B.2.b. for special screening instructions when a civil action is involved.

  2. Screening

    1. General Instructions

      The OHA screening component will associate the alert and prior claim file(s), if any, with the claim file(s) in its possession and then complete a screening sheet (see Attachment 4) as follows:

      NOTE:

      If the claim pending at OHA is the only potential Taylor claim, then the individual is not entitled to relief under Taylor (see Part IV.). Complete the screening sheet and follow the instructions in Part V.B.3.a. for processing non-Taylor claims.

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

        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 Taylor screening purposes.

      • Follow all instructions on the screening sheet;

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

      • Forward a copy of the screening sheet to:

        Office of Hearings and Appeals
        Division of Litigation Analysis and Implementation
        One Skyline Tower, Suite 702
        5107 Leesburg Pike
        Falls Church VA 22041-3200

        ATTN: TaylorCoordinator

      The Division of Litigation Analysis and Implementation (DLAI) will forward copies of the screening sheet to OCA, Division III, (if not the screening component) and the Litigation Staff at SSA Central Office.

      If the HO or OAO branch receives an alert only or an alert associated with a prior claim file(s) for screening, and no longer has the current claim file, it will return the alert and the prior claim file(s) to OCA, Division III (see address in Part V.A.3.), and advise OCA of what action was taken on the current claim. OCA will determine the claim file location and forward the alert and any accompanying prior claim file(s) to that location (see Attachment 5).

      NOTE:

      Final determinations or decisions made on or after January 1, 1991, on a subsequent claim filed by an individual potentially entitled to Taylor relief may have adjudicated the timeframe at issue in the potential Taylor claim.

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

      As noted in Part V.B.1.b., OCA, Division III, will screen for individuals entitled to relief under Taylor when a civil action is involved. OCA's determination will dictate the appropriate post-screening action.

      NOTE:

      A remand by a Federal court under sentence four of § 405(g) of the Social Security Act is a “final” judgment for screening purposes.

      • If the claim pending in court is the potential Taylor claim, OCA will immediately notify OGC so that OGC can notify the claimant of the option to have the case remanded for readjudication.

      • If the claim pending in court is a subsequent claim and the final administrative decision on the claim was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, OCA will modify the case flag in Attachment 13 to indicate that there is a subsequent claim pending in court, but that the Taylor 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.

  3. Post-Screening Actions

    1. Cases of Individuals Not Entitled to Relief Under Taylor

      If the screening component determines that the individual is not entitled to relief under Taylor, the component will:

      • notify the individual, and representative, if any, of non-entitlement to Taylor relief using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);

        NOTE:

        Include the date and claim number at the top of Attachment 6.

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

      An individual who wishes to dispute a determination that they are not entitled to relief under Taylor may do so directly, through their representative of record or through Taylor counsel, as explained in the notice (Attachment 6).

      • retain the claim file(s) for 90 days pending a possible dispute regarding the individual's entitlement to relief; if the screening component is not OCA, Division III, and the file(s) is not needed for adjudication, forward the file(s) for storage to OCA, Division III, at the address in Part V. A.3. (see Generic Class Action HALLEX Instruction I-1-7-9);

      • if the individual makes a timely request to review the claim file (i.e., within 60 days from receipt of notice of non-entitlement to relief), DLAI will notify the OHA component housing the claim file to send it to the individual's local SSA office or a mutually agreed upon SSA office using the routing slip in Attachment 7 (see Part V.A.5.). OHA has 30 days to make the file available. Thereafter, the individual will have 30 days to review the file(s).

        NOTE:

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

      • if through OGC, SSA resolves the dispute in the claimant's favor: 1) rescreen the case; 2) send the notice of revised entitlement to relief determination (Attachment 8) to the claimant and representative, if any; 3) proceed in accordance with Part VI.; and 4) notify DLAI, at the address in Part V.B.2., of the revised determination by forwarding a copy of the revised screening sheet (DLAI will forward copies of the revised screening sheet to OCA, Division III (if OCA is not the screening component), and to Litigation Staff at SSA Headquarters); and

      • if after 90 days no review is requested, return the file(s) to the appropriate location.

    2. Cases of Individuals Determined to be Entitled to Relief Under Taylor

      If the screening component determines that the individual is entitled to relief under Taylor, it will proceed with processing and adjudication in accordance with the instructions in Part VI.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

As previously indicated, the DDSs servicing Ohio and Kentucky residents will usually conduct the first Taylor review. An exception may apply when the Taylor claim is a TERI case. An exception will also apply for cases consolidated with claims pending or being held at the OHA level (see Part VI.D.).

The DDS determination will be a reconsideration determination, regardless of the administrative level at which the Taylor claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).

B. OHA Adjudication of Claims of Individuals Entitled to Relief Under Taylor

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

NOTE:

Implementation of the Taylor order must never delay the processing of TERI claims and must never interfere with the operation of TERI procedures on such claims. (See HALLEX I-2-1-40, I-3-1-51.)

  1. Type of Review and Period to be Considered

    Pursuant to the Taylor settlement agreement, the type of review to be conducted is a “reopening.” The readjudication shall be a de novo reevaluation of the individual's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence relevant to the period of time at issue in the administrative decision(s) through the present or the date of a subsequent allowance.

  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 claims of individuals entitled to relief under Taylor. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for determining entitlement to monthly benefits payable for January 1991 or later. (See HALLEX TI 5-3-15, 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 evaluating disability and determining entitlement to benefits payable for the pre-1991 period.

  3. Individual Entitled to Relief Is Deceased

    If an individual entitled to relief is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.

C. Claim at OHA But No Current Action Pending

If a claim file (either a Taylor claim or a subsequent claim file) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., OHA Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OCA will associate the alert with the file and screen for entitlement to relief under Taylor. (See Part V.B.3., for instructions on processing claims of individuals not entitled to relief under Taylor.)

  • If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OCA will attach a Taylor flag (see Attachment 9) to the outside of the file and forward the claim file(s) to the appropriate DDS for review of the Taylor claim.

  • If less than 120 days have elapsed, OCA will attach a Taylor case flag (see Attachment 10) to the outside of the file to ensure the case is routed to the 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 file(s) to the appropriate DDS in a timely manner.

D. Processing and Adjudicating Taylor Claims in Conjunction with Current Claims (Consolidation Procedures)

  1. General

    If an individual entitled to relief under Taylor has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Taylor 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 an individual entitled to relief under Taylor 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 Taylor case with the appeal on the current claim.

      EXCEPTIONS:

      The ALJ will not consolidate the claims if:

      • the current claim and the Taylor 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.D.2.c. If the claims are not consolidated, follow Part VI.D.2.d.

    2. Hearing Not Scheduled

      Except as noted below, if an individual entitled to relief under Taylor 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 Taylor claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Taylor claim and the current claim to the DDS for further action (see Part VI.D.2.d.).

      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 entitled to Taylor relief, the ALJ will consolidate the claims.

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

    3. Actions If Claims Consolidated

      When consolidating a Taylor 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 Taylor claim with the current claim, the ALJ will:

      • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Taylor 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 Taylor claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Taylor claim; and

      • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Taylor claim (the ALJ's decision will clearly indicate that the ALJ considered the Taylor claim pursuant to the Taylor settlement agreement).

    4. Action If Claims Not Consolidated

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

      • dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 11 and the covering notice in Attachment 12;

      • send both the Taylor claim and the current claim to the appropriate DDS for consolidation and further action.

        If the ALJ decides not to consolidate the Taylor claim with the current 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 Taylor claim for DDS review using Attachment 13; immediately route it to the appropriate DDS for adjudication; retain a copy of Attachment 13 in the current claim file; 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 Taylor claim. Therefore, OAO must keep the claim files 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 Taylor claim.

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

      This will usually arise when the current claim duplicates the Taylor review claim, i.e., the current claim raises the issue of disability and covers the period adjudicated in the Taylor 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 Taylor claim.

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

      This will usually arise when the current claim does not duplicate the Taylor claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Taylor claim. For example, the Taylor claim raises the 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 Taylor case flag (Attachment 13; appropriately modified) to the Taylor claim, immediately forward the Taylor claim to the appropriate DDS for readjudication, and retain a copy of Attachment 13 in the current claim file. OAO will modify Attachment 13 to indicate that the Appeals Council's action on the current claim does not resolve all Taylor issues and that the Taylor claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.

    3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Taylor 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 an individual entitled to relief under Taylor, 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 Taylor claim and issue a decision that adjudicates both applications.

      The Appeals Council's decision will clearly indicate that the Appeals Council considered the Taylor claim pursuant to the Taylor settlement agreement.

    4. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Taylor 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 Taylor 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 files to the appropriate 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: "Taylor court case review needed -- following effectuation, forward the attached combined folders to the appropriate DDS."

    5. Appeals Council Intends to Remand the Current Claim to an ALJ.

      If the Appeals Council intends to remand the current claim to an ALJ, 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 Taylor claim with the action on the current claim pursuant to the instructions in Part VI.D.2.a.

      EXCEPTIONS:

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

      • the current claim and the Taylor 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 Taylor claim to the DDS for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an Administrative Law Judge, is forwarding the Taylor claim for separate processing.

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.D.), 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.” If the conditions described in Part VI.D.2.b. apply, the ALJ should dismiss the request for hearing on the current claim, and HO personnel should enter “OTDI” in the “DSP” field.

To provide for HOTS identification of the cases of individuals entitled to relief, HO personnel will code “TA” 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. Settlement Agreement Dated April 5, 1994.

 
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
 
DELPHINE TAYLOR, )  
  )  
Plaintiffs, ) Civil Action No. 1:90 CV 2287
  )  
vs. ) Judge Ann Aldrich
  )  
DONNA E. SHALALA, ) Magistrate Judge David A. Perelman
SECRETARY OF HEALTH AND )  
HUMAN SERVICES, )  
  )  
Defendant. )  
 
SETTLEMENT AGREEMENT
 

WHEREAS Delphine Taylor, plaintiff, Katherine Courtney, proposed intervenor, and Donna E. Shalala, Secretary of Health and Human Services (Secretary), defendant, have agreed to resolve all of the outstanding disputes in this case without further litigation,

THEREFORE, the parties, by their undersigned counsel, hereby agree to a settlement of plaintiffs' claims in this litigation in accordance with the following terms and conditions:

  1. The individuals who shall be entitled to seek relief pursuant to this settlement shall be limited to those defined as follows:

    1. Plaintiff Delphine Taylor (Taylor) and proposed intervenor Katherine Courtney (Courtney); and

    2. individuals whose applications for widow's, widower's, or surviving divorced spouse disability benefits (DWB) under the Social Security Act were denied at any administrative level by a determination or decision of the Secretary that became final and binding pursuant to 20 C.F.R. §§ 404.905, 404.921, 404.955 , or 404.981 (hereinafter the “final decision(s)”), and that meets all the requirements of paragraphs 1.c. through 1.g.

    3. The final decision(s) was rendered when such individual was residing in the State of Ohio or Kentucky.

    4. The final decision(s) was rendered on or after January 1, 1991, but before June 5, 1991.

    5. The final decision(s) was based on the merits of this litigation (i.e. whether claimant met or equaled a listed impairment) and not on an issue unrelated to the merits of this litigation (e.g., substantial gainful activity, no severe impairments, prescribed period expired prior to alleged onset of disability).

    6. The final decision(s) failed to consider the claimant's residual functional capacity (RFC) in connection with the claimant's DWB claim, and the Secretary or any court did not, for the same period involved in such claim, consider claimant's RFC in connection with the denial of another DWB claim, or a parallel claim covering the same time period for disability insurance benefits or Supplemental Security Income disability benefits in the same or a different proceeding.

    7. The final decision(s) was not reviewed by any court that rendered a decision adverse to that claimant's entitlement to DWB.

  2. Those persons meeting the definition in paragraph 1 are hereinafter referred to as the “Taylor claimants”.

  3. The Social Security Administration (SSA) shall identify the names, Social Security numbers and last known addresses of the potential Taylor claimants within 120 days after this settlement agreement is signed by all the parties (hereinafter “signing date”). SSA shall notify David B. Dawson, Legal Aid Society of Cleveland, 1223 West Sixth Street, Cleveland, Ohio 44113 (hereinafter “counsel Dawson”) of the total number of claimants identified, but, in accordance with the Privacy Act, 5 U.S.C. § 552a, SSA shall not be required to provide individual names, addresses, or Social Security numbers to counsel Dawson unless he personally represents such individual or such individual signs an appropriate written consent authorizing SSA to release such information to counsel Dawson.

  4. Within 120 days of the signing date, SSA will issue the final instructions for effectuation of this agreement to the responsible adjudicators and send a copy of all instructions to counsel Dawson.

  5. Included in the instructions will be copies of the form of the notice to be sent to potential Taylor claimants. The notice will include statements:

    1. that the potential Taylor claimant may be entitled to have their DWB claim readjudicated,

    2. that the potential Taylor claimant must return the preaddressed postage-paid envelope and accompanying response form within 60 days from the date of receipt of the notice in order to receive consideration for relief,

    3. that, if the potential Taylor claimant is deceased, benefits may still be payable and SSA should be contacted for further assistance,

    4. that the notice and opportunity for a readjudication of the potential Taylor claimant's claim is the result of the settlement of a law suit brought in part by counsel Dawson whose address and telephone number will be provided,

    5. that the potential Taylor claimant may contact counsel Dawson or any other attorney of his or her choosing for information or assistance,

    6. that the potential Taylor claimant may be represented by counsel of his or her choice.

  6. Within 60 days of the issuance of the instructions described in paragraph 5, SSA shall send a notice by first class mail to each potential Taylor claimant at their last known address.

  7. Should more than 10 per cent of the notices be returned as undeliverable, SSA shall attempt to obtain updated addresses for such potential Taylor claimants by requesting the States of Ohio and Kentucky to search their records to provide current addresses through a computerized match with public assistance, medical assistance, food stamp or other relevant records.

    1. SSA requests for computer matches with the State agencies' data systems will be subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a. Furthermore, SSA shall not be required to institute legal proceedings to gain access to State data system records or to reimburse or compensate the States of Ohio or Kentucky for this matching operation.

    2. SSA will thereafter mail the notice a second time by first class mail to all potential Taylor claimants for whom the computerized match produces an updated address. SSA will have no further obligation to locate those individuals whose current addresses have not been obtained despite the efforts undertaken pursuant to this Agreement.

  8. If a person who receives a notice pursuant to paragraphs 6 or 7b requests a review of his or her claim by responding more than 60 days after receiving such notice, SSA shall determine whether that person has “good cause” for the late request, as defined in 20 C.F.R. § 404.911 and Social Security Ruling 91-5p.

  9. SSA will screen the claims folders of those individuals who timely respond to the notice described in paragraphs 6 or 7b to determine if such individuals meet the definition of Taylor claimants in paragraph 1 and are entitled to have their DWB claim(s) readjudicated. If SSA determines that an individual is not entitled to readjudication, a notice will be sent to the individual and their attorney of record that indicates:

    1. the reason they are not a entitled to readjudication,

    2. that this determination will become final unless, within 60 days of receipt of the notice, the individual notifies SSA in writing that he or she desires to dispute the determination, and

    3. that the individual may be represented in this matter by counsel of his or her choice including counsel Dawson whose address and telephone number will be given.

    If counsel Dawson does not already represent such individual, SSA will send him a listing which will identify the individual and screen-out reason by code numbers that do not violate the Privacy Act.

  10. Within 60 days of receiving the SSA notice described in paragraph 9, an individual must notify SSA in writing that he or she desires to dispute the determination. If the individual fails to provide such a timely notification, the determination that the individual is not a Taylor claimant will become final and not subject to further review. If such a notice to dispute is made, an individual may request in that notice that they or their counsel be allowed to examine their claim file and any other records relied upon by SSA in making the determination described in paragraph 9. Within 30 days of such written request,

    SSA will make such records available for review at a mutually agreed upon SSA office for a 30 day period.

  11. Within 60 days of notifying SSA of their intention to dispute as described in paragraph 10, the individual must notify the Office of the General Counsel in Chicago (hereinafter OGC) that, after having had the opportunity to review the pertinent record, the individual still disputes the determination that he or she is not a Taylor claimant. If the individual fails to make such timely notice, SSA's determination will become final and not subject to further review. If OGC does receive such a timely notice, OGC will then make every reasonable attempt to resolve the dispute with the individual or their counsel. If OGC determines that the dispute cannot be resolved, OGC will notify the individual in writing. SSA's determination will become final 30 days after such written notice is mailed.

  12. Except as noted in paragraph 14 of this agreement, all claimants entitled to readjudication under the terms of this settlement shall have their claims readjudicated at the reconsideration level, with determinations being appealable to an Administrative Law Judge (ALJ) upon request made pursuant to the procedures set forth at 20 C.F.R. § 404.933. The decision of the ALJ will be appealable to the Appeals Council, upon request made pursuant to the procedures set forth at 20 C.F.R. § 404.968. Taylor claimants will retain rights to judicial review as provided in 42 U.S.C. § 405(g).

  13. On readjudication of DWB claims covered by paragraph 1, SSA will determine entitlement to DWB:

    1. for the months prior to January 1991 under the standards set forth in Social Security Ruling 91-3p, and

    2. for the months January 1991 and after under the standards set forth in the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. 101-508, § 5103, 104 Stat. 1388 (1990).

    SSA will apply all other laws and regulations applicable at the time of the readjudication and will develop the record in accordance with SSA policy. Taylor claimants may submit new evidence relevant to the time period covered by the readjudication.

  14. At the option of SSA, Taylor claimants with subsequent disability claims, active and simultaneously pending at any administrative level of review at the time their DWB claim is being readjudicated, may have all claims consolidated and reviewed simultaneously.

  15. Counsel for Taylor and Courtney shall receive attorney's fees and costs of $35,000.00. This payment shall fully satisfy all claims under any statute or other basis for attorneys fees and costs by Taylor and Courtney against the United States government or its agents through the date this settlement agreement is signed. Further, in consideration for the receipt of these fees, Taylor and Courtney and their counsel agree not to seek any further payment from the United States government or its agents for attorneys fees and costs incurred in the future at the administrative level, in court, or otherwise in connection with the claims involved in this litigation unless there is a subsequent court finding that the Secretary materially breached this settlement agreement. Such future fees are limited to time spent on issues directly related to such a material breach and shall not include time on any other matters including the implementation or monitoring of this settlement agreement that is unrelated to the material breach.

  16. A copy of this settlement agreement will be submitted to the district court judge who presided over this case for association with the court's file. The parties will simultaneously submit a letter to the court, a copy of which is attached as Exhibit A. Taylor and Courtney agree not to reopen this court case, and further agree not to initiate new court litigation concerning the subject matter of this settlement agreement except for the limited purpose of an action for the material breach of this agreement.

  17. This settlement is entered into by agreement of the parties, as a means of avoiding further litigation. The terms of this agreement shall not be cited as precedent in any other case nor are they an admission by the Secretary that the district court had the jurisdiction or venue to adjudicate the claims made in this litigation. This agreement is not an admission by the Secretary of the truth of any allegation or the validity of any claim asserted in this action or of the Secretary's liability therein, nor is it a concession or an admission of any fault or omission in any act or failure to act, or in any statement, written document or report heretofore issued, filed, or made by the Secretary or her predecessors nor shall this agreement or any of its terms be offered or received in evidence or in any way referred to in any civil, criminal, or administrative action or proceeding other than such proceedings as may be necessary to consummate or enforce this agreement, nor shall the terms of this agreement be construed by anyone for any purpose as an admission of any wrongdoing on the part of defendant Secretary.

  18. The terms in this agreement fully settle and satisfy all claims and demands that Taylor and Courtney had or may hereafter acquire against the Secretary, and any of her agencies, agents, employees, or instrumentalities on account of and with respect to the incidents, claims or circumstances giving rise to and/or alleged in the pleadings filed in this action.

  19. The undersigned counsel for Taylor and Courtney hereby represent, warrant, and guarantee that they are duly authorized to execute this agreement on behalf of Taylor and Courtney.

  20. This settlement agreement shall be effective as of the date the last counsel below signs this agreement.

     
COUNSEL FOR DELPHINE TAYLOR AND KATHERINE COURTNEY:   COUNSEL FOR DEFENDANT SECRETARY:
     

____________/s/____________ Date 4/5/94
Edward A. Icove
Lustig, Icove & Lustig Co., L.P.A.
615 Leader Building
Cleveland, Ohio 44114
(216) 241-5735

 

____________/s/____________ Date 3/31/94
Michael Anne Johnson
Assistant United States Attorney
1800 Bank One Center
600 Superior Avenue, East
Cleveland, Ohio 44004-2600
(216) 622-3600

     

____________/s/____________ Date 4/5/94
David B. Dawson
Legal Aid Society of Cleveland
1223 West Sixth Street
Cleveland, Ohio 44113
(216) 687-1900

 

____________/s/____________ Date Date 3/23/94
Robert C. Stephens
Assistant Regional Counsel
Department of Health and
Human Services
105 West Adams, 19th Floor
Chicago, Illinois 60603
(312) 353-1640

     

____________/s/____________ Date 4/5/94
Louise McKinney
School of Law, Law School Clinic
Case Western Reserve University
11075 East Boulevard
Cleveland, Ohio 44106
(216) 368-2766

   
     
COUNSEL FOR KATHERINE COURTNEY:    
     

____________/s/____________ Date 4/5/94
Stephen C. Sanders
Central Kentucky Legal Services, Inc.
McClure Building, Suite 600
306 Main Street
Frankfort, Kentucky 40801
(502) 875-5403

   
     
     
 
CASE WESTERN RESERVE UNIVERSITY
 
 
 
The Honorable Ann Aldrich
United States District Court
 
  Re: Delphine Taylor v. Donna E. Shalala,
    Case No. 1:90 CV 2287 (N.D. Ohio, E. Div.)
     

Your Honor:

 

     As you may recall, in 1993 you dismissed the above referenced case without prejudice, in view of an impending settlement among the parties. The parties, through counsel, have finalized the enclosed settlement agreement.

We provide the settlement agreement for your information, and we ask that it be placed in the court file. We are available to meet with you, if you have any questions concerning the agreement.

     We thank you for your consideration of the matter.

 

   
  Respectfully,
   
   
  Louise W. McKinney
  Edward A. Icove
  David B. Dawson
   
  Counsel for the Plaintiffs
   
   
   
  Robert C. Stephens
  Michael Anne Johnson
   
  Counsel for the Defendants
   
   
   
  Exhibit A

Attachment 2. TAYLOR COURT CASE FLAG/ALERT

  TITLE: II CATEGORY:
REVIEW OFFICE PSC MFT DOC ALERT DATE
           FUN NAME
 

SSN OR HUN
000-00-0000

RESP DTE TOE
FOLDER LOCATION INFORMATION    
TITLE CFL CFL DATE ACN PAYEE ADDRESS
 

SCREENING OFFICE ADDRESS:

DHHS, SSA
  Great Lakes Program Service Center
  Disability Review Section
  P.O. Box 8470A
  Chicago, IL 60680

 
  ATTN: Taylor Review  
IF CLAIM IS PENDING IN OHA, THEN SHIP FOLDER TO:  
 

Office of Hearings and Appeals
Office of Civil Actions, Division III
One Skyline Tower, Suite 704
5107 Leesburg Pike
Falls Church, VA 22041-3200

 
  ATTN: Taylor Screening Unit  
     
     
CURRENT PAY:     _______YES _______NO    

Attachment 3. ROUTE SLIP OR CASE FLAG FOR SCREENING

Taylor Court Case

SCREENING NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

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

Please refer to HALLEX Temporary Instruction I-5-4-43 for additional information and instructions.

TO:      ______________________
           ______________________
           ______________________
           ______________________

Attachment 4. TAYLOR SCREENING SHEET

CLASS ACTION CODE: T A

 

1. WAGE EARNER'S SSN

    ______ - ____ - ______

 

BIC

___ ___

2. CLAIMANT'S NAME (First, Mi, Last)

 

 

3. SCREENING DATE

     ____-____-____

 

4. a. SCREENING RESULT

 

____ENTITLED TO RELIEF (J) ____NOT ENTITLED TO RELIEF (F)

 

b. SCREENOUT CODE

    ____-____(see item 14 for screenout codes)

 

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

Yes___No___

(if No go to 14)

6. Was a less than fully favorable DWB determination/decision issued on this claim at any administrative level by the Ohio or Kentucky DDS, OHA or any office servicing residents of the states of Ohio or Kentucky on or after January 1, 1991, through June 4, 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 screening purposes.)

Yes___No___

(if No go to 16)

7. Did the individual reside in Ohio or Kentucky at the time the determination/decision on the potential Taylor claim was issued?

Yes___No___

(if No go to 14)

8.Was the denial of benefits on the potential Taylor claim based on some reason other than the individual's medical condition (e.g., SGA)?

Yes___No___

(if No go to 14)

9. Did the individual receive a subsequent fully favorable DWB determination/decision which established entitlement and paid benefits commencing with the earliest possible month of entitlement in the potential Taylor claim?

Yes___No___

(if No go to 14)

10.Did the individual file a claim for DWB on or after January 1, 1991, which did not allege entitlement to DWB for any month(s) prior to January 1, 1991, and was denied administratively on the ground that he or she did not meet the disability standard set forth in § 5103 of OBRA 90?

Yes___No___

(if No go to 14)

11.Did the individual receive a denial under Social Security Ruling 91-3p for alleged disability months prior to January 1, 1991?

Yes___No___

(if No go to 14)

12.Did the individual file claim(s) for title II or title XVI worker's disability covering the entire timeframe at issue in the potential Taylor claim, concurrently with or after all DWB claims; and was the final administrative or court denial determination made on this claim(s) issued at steps 1, 2, 4 or 5 of the sequential evaluation process?

Yes___No___

(if No go to 14)

13.Did the individual receive a final adverse judgment from a Federal district or appellate court based on an administrative denial decision of DWB benefits issued on or after January 1, 1991, through June 4, 1991, inclusive?

Yes___No___

(if No go to 14)

14. The individual is not entitled to Taylor relief. Check the appropriate block in item 4.a. and enter the screenout code in item 4.b. 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".
Enter 12 if question 12 was answered "YES".
Enter 13 if question 13 was answered "YES".

 

 

No other screenout code entry is appropriate.

15. On the lines below, please enter the date(s) of all applications screened the date(s) of all final decision considered in the screening process and indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC).

_______________    __________________    _________________    ________________

PRINT SCREENER'S NAME:

COMPONENT AND PHONE NO.

 

DATE

 

SIGNATURE:

 

   

INSTRUCTIONS FOR COMPLETING TAYLOR SCREENING SHEET

Taylor involves only claims for title II disabled widow(er)'s or surviving divorced spouse's benefits, for individuals who were denied. The individual must have resided in Ohio or Kentucky, during the period January 1, 1991, through June 4, 1991, inclusive. Only one screening sheet and one screenout notice should be prepared for each claimant. Answer questions 1-13 in sequence until the case is either screened in or screened out. Be sure the fill-ins are legible.

Questions 1-3:

Fill in the identifying information as requested. Make sure SSN and BIC of DWB claim are correct and legible. DO NOT USE THE WIDOW'S OWN SSN.

Question 4:

Complete this information last. Do not fill in the information in blocks 4.a. and 4.b. until the screening process is completed.

Question 5:

Screen for claim type. If this question is answered “NO,” enter the appropriate screenout code in item 4.b. as directed in item 14 on the screening sheet and check the “not entitled to relief” block in item 4.a.

Question 6:

Screen for date of decision, not application. Individuals are potentially entitled to relief if they received a denial or less than fully favorable decision (e.g., later onset, closed period, payment of benefits beginning January 1, 1991, under OBRA 90 despite an earlier onset) between January 1, 1991, and June 4, 1991, inclusive, which became the final decision of the Secretary. Be sure to consider earlier eligibility for Medicare and retroactive benefits when determining if the decision is fully favorable. For DDS final determinations, the DDS code should be one of the following: 360/S38, 361/S64, 180/S20, 181/U20 and 182/U21. If the determination was not prepared by a DDS in Ohio or Kentucky, OHA or any office servicing residents of the states of Ohio or Kentucky on or after January 1, 1991, but before June 5, 1991, the individual is not entitled to Taylor relief. (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 screening purposes.)

Question 7:

For DDS final determinations, review the SSA-831-U3 to determine if the individual resided in Ohio or Kentucky at the time the determination/decision described in question No. 6 was issued. For OHA final decisions, review the file. If the answer to question 7 is “YES,” go to question 8; if “NO,” the individual is not entitled to relief under the Taylor case, go to item 14.

Question 8:

For DDS final determinations, check item 33 of the SSA-831-U3. If the reg-basis codes are N1, N2, L1, L2, M7 or M8, a non-medical denial is involved. A reg-basis code of S1 reflects that the prescribed period requirements were not met. For a complete list of DWB denial codes see DI 26510.045. For OHA final decisions, the answer can be found in the Administrative Law Judge or Appeals Council decision. If the answer to question 8 is “YES,” enter the appropriate screenout code in item 4.b. as directed in item 14 on the screening sheet and check the “not entitled to relief” block in item 4.a.

Question 9:

Review the file to determine whether benefits were subsequently allowed from the earliest possible entitlement date. Be sure to consider earlier eligibility for Medicare and retroactive benefits when determining if the subsequent decision is fully favorable. The allowance could have either been on the same claim or on a subsequent application. If the answer to question 9 is “YES,” enter the appropriate screenout code in item 4.b. as directed in item 14 on the screening sheet and check the “not entitled to relief” block in item 4.a.

Question 10:

For DDS final determinations in claims in which the individual did not allege entitlement before January 1, 1991, review the file to determine if the potential Taylor claim filed on or after January 1, 1991, was denied with the reg-basis codes H1, H2, J1 or J2. For OHA final decisions, review the Administrative Law Judge or Appeals Council decision to determine if the claimant's residual functional capacity was assessed. If the answer to question 10 is “YES,” enter the appropriate screenout code in item 4.b. as directed in item 14 on the screening sheet and check the “not entitled to relief” block in item 4.a.

Question 11:

Review the file to determine if the individual received a determination/decision under SSR 91-3p which covered the earliest possible entitlement on the potential Taylor claim. If the answer to question 11 is “YES,” enter the appropriate screenout code in item 4.b. as directed in item 14 on the screening sheet and check the “not entitled to relief” block in item 4.a.

Question 12:

Review the file(s) and queries (AACT, SSID, etc.) for the individual's SSN to determine if the individual received a denial determination/decision on a concurrent or subsequent claim for SSI or worker's disability which covered the entire timeframe at issue in the potential Taylor claim. For DDS final determinations, the following codes in block 22 of the SSA-831-U3 indicate DDS denial at steps 1, 2, 4 or 5: N1, N2, F1, F2, H1, H2, J1, J2, E1, E2, E3 and E4 for title II claims, or N30, N31, N32, N33, N42 and N43 for title XVI claims. For OHA final decisions, review the Administrative Law Judge or Appeals Council decision to determine the basis for denial. If the answer to question 12 is “YES,” enter the appropriate screenout code in item 4.b. as directed in item 14 on the screening sheet and check the “not entitled to relief” block in item 4.a.

Question 13:

Check file(s) and OHA query (OHAQ) to determine whether a Federal district or circuit court has rendered a final judgment on the potential Taylor claim. NOTE: A remand by a Federal court under sentence four section 405(g) of the Social Security Act is a “final” judgment for screening purposes. If necessary, OHA screeners should contact the Office of Civil Actions, Division III (if not the screening component), to determine the status of any complaint filed. If the answer to question 13 is “Yes,” enter the appropriate screenout code in item 4.b. as directed in item 14 on the screening sheet and check the “not entitled to relief” block in item 4.a.

Instructions for Individuals Entitled to Relief

  1. If “YES” to questions 5, 6 and 7, and “NO” to questions 8, 9, 10, 11, 12 and 13, the individual is "entitled to relief.“ Check the ”entitled to relief" block (J) in item 4.a. of the screening sheet.

  2. Sign and date the screening sheet and retain the original in the claim folder. Enter the name of the screening component, e.g., OHA, OAO, Branch 10, and the screener's phone number.

  3. Send a copy of the screening sheet to:

    Office of Hearings and Appeals
    Division of Litigation Analysis and Implementation
    One Skyline Tower, Suite 702
    5107 Leesburg Pike
    Falls Church, VA 22041-3200
    ATTN: Taylor Coordinator
  4. Follow Part V.B.3.b. for screened-in cases.

Instructions for Individuals Not Entitled to Relief

  1. If “NO” to question(s) 5, 6 or 7, or “YES” to questions 8, 9, 10, 11, 12 or 13, the individual is "not entitled to relief.“ Check the ”not entitled to relief" block (F) in item 4.a. of the screening sheet and fill in the screenout code in item 4.b.

  2. In determining that the individual is not an individual entitled to relief, fill in the information requested in item 15, i.e., the dates of the applications screened, the dates of the decisions considered and the level of adjudication reached.

  3. Sign and date the screening sheet. Enter the name of the screening component, e.g., OHA, OAO, Branch 10, and the screener's phone number.

  4. Retain the original screening sheet in the folder. Send a copy to:

    Office of Hearings and Appeals
    Division of Litigation Analysis and Implementation
    One Skyline Tower, Suite 702
    5107 Leesburg Pike
    Falls Church, VA
    ATTN: Taylor Coordinator
  5. Prepare and send the “Non-Entitlement to Relief” Notice (Attachment 6) to the individual with a copy to his/her representative, if any. Retain a copy in the file.

  6. Follow Part V.B.3.a. for screened-out cases.

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

  ROUTING AND TRANSMITTAL SLIP DATE

TO:

1. Great Lakes Program Service Center

Initials Date
2. Disability Review Section    
3. P.O. Box 8470A    
4. Chicago Illinois 60680    
5. Attn: Taylor Review    
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

TAYLOR CASE

Claimant: ____________________________

SSN:        ____________________________

OHA received the attached alert [and prior claim file(s)] for screening and no longer has the current claim file. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim file(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 42564.001 OR DI 12564.001

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 6. Non-Entitlement to Relief Notice

SOCIAL
SECURITY
NOTICE

Important Information

From:

Department of Health and Human Services Social Security Administration

  TA DATE:
    CLAIM NUMBER:
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY WIDOW'S,
WIDOWER'S OR SURVIVING DIVORCED SPOUSE'S DISABILITY CLAIM.
PLEASE READ IT CAREFULLY!

You asked us to review your case under the terms of the Taylor v. Shalala settlement agreement. We have looked at your case. You are not entitled to relief under the Taylor case for the reason given below. This means that we will not review our earlier decision.

A copy of this letter is being sent to your representative of record, if any.

 

WHY YOU ARE NOT ENTITLED TO RELIEF UNDER TAYLOR

You are not entitled to relief under Taylor because:

___ 1.

You never filed a claim for disabled widow(er)'s or surviving divorced spouse's (DWB) benefits.

 

___ 2.

You did not reside in Ohio or Kentucky when your claim was denied.

 

___ 3.

You did not receive a determination or decision which denied any part of your claim for disabled widow's, widower's or surviving divorced spouse benefits between January 1, 1991, and June 4, 1991, that became the final decision on your claim.

 

___ 4.

Your claim was denied for some reason other than your medical condition. That reason was

__________________________________________________

__________________________________________________.

 

___ 5.

We already changed our earlier decision and found that you were disabled and were fully paid.

 

___ 6.

Your claim has already been reviewed under the new standard used in the Taylor settlement agreement.

 

___ 7.

You filed a claim for disability insurance benefits or supplemental security income that covered the entire period as your claim for disabled widow's, widower's or surviving divorced spouse benefits; and the decision on that claim showed that either you did not have a severe health problems or that we already considered whether you could still work in spite of your health problems.

 

___ 8.

Your claim for disabled widow's, widower's or surviving divorced spouse's benefits was reviewed by a United States Federal Court.

 

___ 9.

Other:_____________________________________________

__________________________________________________

   

WE ARE NOT DECIDING IF YOU ARE DISABLED

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not a person entitled to relief under the Taylor settlement agreement.

IF YOU DISAGREE WITH THIS DETERMINATION

If you disagree with our determination, you have the right to review your file and the right to dispute our determination. If you or your representative want to review your file, you have 60 days from the date you receive this notice to write to Social Security at the address below:

Office of Hearings and Appeals
Division of Litigation Analysis and Implementation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, Virginia 22041-3200
ATTN: Taylor Coordinator

If you ask to look at your file, we will send it to your local Social Security office. You will have 30 days to review your file. If you still disagree with our determination after reviewing your claim file, you have 60 days from the date you first wrote to Social Security to write to the Office of the General Counsel in Chicago, Illinois, at the address shown below. If you disagree with our determination but do not want to look at your file, you have 60 days from the date you receive this notice to write to the Office of the General Counsel at the address shown below:

Office of the General Counsel
Department of Health and Human Services
Office of the Chief Counsel, Region V
105 West Adams Street, 19th Floor
Chicago, Illinois 60603-3200
ATTN: Robert C. Stephens

If you have someone helping you with your claim, you should contact him or her. If you need help with your claim and do not have an attorney or representative, you may contact the attorney who represented the plaintiffs in the Taylor case. His name, address, and telephone number are:

David B. Dawson
Legal Aid Society of Cleveland
1223 West Sixth Street
Cleveland, Ohio 44113

Attachment 7. Route Slip for Non-Entitlement to Relief Cases

 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

  TAYLOR CASE
Claimant: ___________________________    
       
SSN: ___________________________    

We have determined that this claimant is not an individual entitled to relief under the Taylor case. We are forwarding the claim file to your office pursuant to the claimant's or the claimant's representative's timely request to review the file.

(See screening sheet and copy of the Notice of Non-Entitlement to Relief in the attached claim file(s).)

 

 

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 8. Text for Notice of Revised Entitlement to Relief Determination

In an earlier letter that we sent you, we said that you were not an individual entitled to relief under the Taylor settlement agreement. After reviewing all of the facts, we have decided that you are entitled to relief. Therefore, we will review your claim using the standards agreed upon by the parties and filed with the court under the Taylor settlement agreement.

We have received a lot of requests for review and it may take several months before we look at your claim file. When we start the review, we will ask you for any additional evidence that you want to give us.

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

If you have any questions, you may call us toll-free at 1-800-772-1213 or you can call your local Social Security office (the number is listed below). We can answer most questions over the phone. You can also write or visit any Social Security office. The office that serves your area is:

District or Branch Office
Address
City, ST ZIP

If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly.

If you have someone helping you with your claim, you should contact him or her. You may also ask for legal help by contacting a legal aid organization in your area, or by contacting the lawyer in the Taylor case:

David B. Dawson
Legal Aid Society of Cleveland
1223 West Sixth Street
Cleveland, Ohio 44113
Telephone: (216) 687-1900

Attachment 9. Taylor Court Case Flag for Headquarters Use (DDS Readjudication - retention period expired)

Taylor Court Case

READJUDICATION NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

This claimant is entitled to relief under Taylor. Accordingly, we are forwarding the attached claim file(s) to the DDS for readjudication.

[ Send folders to the appropriate DDS. ]

Attachment 10. Taylor Court Case Flag for Headquarters Use (DDS Readjudication - retention period has not expired)

Taylor Court Case

READJUDICATION NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

This claimant is entitled to relief under Taylor. After expiration of the retention period, forward claim file(s) to the DDS for readjudication.

[ Send folders to the appropriate DDS. ]

NOTE:

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

Attachment 11. ALJ Dismissal 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 the settlement agreement of the parties, filed with the United States District Court for the Northern District of Ohio in the case of Taylor v. Shalala, No. 1:90 CV 2287 (N.D. Ohio April 5, 1994), the claimant has requested readjudication of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as an individual entitled to relief under Taylor and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Taylor settlement agreement. Because the claimant's current claim shares certain issues in common 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 Disability Determination Service which will conduct the Taylor 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 12. Notice Transmitting ALJ Order of Dismissal

NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the 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 Taylor claim back to the Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

The Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the 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 13. Taylor Court Case Flag for Headquarters Use (DDS Readjudication)

Taylor Court Case

READJUDICATION NECESSARY

Claimant's Name: ___________________________    
       
SSN: ___________________________    

This claimant is entitled to relief under Taylor. The attached Taylor 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 Taylor readjudication action.

 

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

(Destination code: ___)


[1]  Hereinafter (except in Part IV.), 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]  The final rules implementing § 5103 of OBRA 90 were published in the Federal Register on July 8, 1992, at 57 Fed. Reg. 30116. (See 20 CFR §§ 404.1505(a) and 4042.1511(a).)