|Definition of Class|
|Determination of Class Membership and Preadjudication Actions|
|Processing and Adjudication|
|- Dixon v. Shalala Implementation Order; Issued by the United States District Court for the Southern District of New York on December 22, 1993.|
|- Dixon Court Case Flag/Alert|
|- Route Slip or Case Flag for Screening|
|- Dixon Screening Sheet|
|- Route Slip for Routing Class Members Alert (and Prior Claim File(s) -- OHA No Longer Has Current Claim)|
|- Non-Class Member/Member Not Entitled to Relief Notice|
|- Route Slip for Non-Class Member/Member Not Entitled to Relief Cases|
|- Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.”|
|- Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period expired)|
|- Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)|
|- ALJ Dismissal to DDS|
|- Notice Transmitting ALJ Order of Dismissal|
|- Dixon Class Member Flag for HO Use (DDS Readjudication)|
ISSUED: November 30, 1995; REVISED: November 18, 1996
This Temporary Instruction (TI) sets forth procedures for implementing the relief ordered in the Dixon v. Shalala class action involving the “no severe impairment” issue. The United States District Court for the Southern District of New York issued the relief order on December 22, 1993. The United States Court of Appeals for the Second Circuit upheld the district court order, in its entirety, on April 19, 1995.
Adjudicators throughout the country must be familiar with this TI because Dixon class members who now reside outside of New York must have their cases processed in accordance with the requirements of the implementation order.
On July 25, 1984, the United States District Court for the Southern District of New York conditionally certified a statewide class consisting of all disability claimants whose benefits had been, or would in the future be, denied or terminated pursuant to the severity regulations (20 CFR §§ 404.1520(c), 404.1521, 416.920(c) and 416.921) or Social Security Ruling (SSR) 82-55, on or after July 20, 1983. The court also granted a preliminary injunction, prohibiting the Secretary from denying or terminating disability benefits on the basis of the severity regulations, and directed the Secretary to identify, notify and reconsider the claims of those class members whose claims had been rejected or whose benefits had been terminated. On March 7, 1986, the United States Court of Appeals for the Second Circuit affirmed the district court's order granting a preliminary injunction and the Secretary petitioned the United States Supreme Court for a writ of certiorari.
On June 8, 1987, in Bowen v. Yuckert, 482 U.S. 137 (1987), the Supreme Court held that the severity regulation was facially valid and an appropriate de minimis screening device for disability determinations. The Court did not consider directly whether the regulation had been misapplied by the Secretary. However, in a concurring opinion, Justice O'Connor noted that “[e]mpirical evidence cited by the respondent and the amici [supported] the inference that the regulation [had] been used in a manner inconsistent with the statutory definition of disability.” Id. at 157.
On June 16, 1987, following its decision in Yuckert, the Supreme Court granted certiorari in Dixon, vacated the judgment of the court of appeals and remanded the case for further consideration in light of Yuckert. Thereafter, on July 15, 1987, the Second Circuit vacated the district court's preliminary injunction and remanded the case for further proceedings in light of Yuckert.
On September 1, 1987, the Secretary filed a motion for summary judgment and informed plaintiffs that, as of October 5, 1987, use of the severity regulations would be reinstated in New York State disability adjudications. In response, plaintiffs urged the district court to reinstate its injunction.
On September 17, 1987, the district court stayed all discovery with respect to prospective claims but allowed discovery with respect to plaintiffs' claims for retrospective relief. The court found that plaintiffs had made a sufficient threshold showing under Bowen v. City of New York, 476 U.S. 467 (1986), to justify further discovery as to whether the Secretary followed a clandestine policy which could support a finding that the statute of limitations should be tolled. On November 5, 1987, the district court denied plaintiffs' motion to reinstate the preliminary injunction, but held that plaintiffs still had standing because several of the cases of the named plaintiffs had yet to be readjudicated and all the requirements for class certification were still present.
On June 29, 1989, after the Secretary renewed his motion for summary judgment, the district court granted plaintiffs' motion for further discovery. For purposes of deciding, under 42 U.S.C. § 405(g), whether the 60-day statute of limitations could be tolled, the court held that discovery would establish whether the Secretary's published policies were contrary to his actual practices and whether the Secretary had engaged in systematic misapplication. Although the court denied the Secretary's motion for summary judgment, it stated that the Secretary could resubmit the motion following completion of discovery. Pursuant to this order, plaintiffs deposed several SSA administrators who were instrumental in the development of the Agency's severity policy and the severity regulations. Subsequently, the parties agreed to a trial on a stipulated record and filed a joint partial stipulation of facts and a joint appendix.
On May 8, 1992, the district court issued an opinion and order regarding the merits of the case. In the Secretary's favor, the court: 1) upheld the facial validity of SSR 82-55 and Program Operations Manual System (POMS) DI § 2102; 2) rejected plaintiffs' claim that allegations of pain were not fully considered at step two of the sequential evaluation; and 3) followed the Third Circuit's lead in Bailey v. Sullivan, 885 F.2d 52 (3d Cir. 1989), and held that SSR 82-55 and POMS DI § 2102 were interpretative instructions and, therefore, SSA's issuance of them did not violate the notice and comment provisions of the Administrative Procedure Act.
Adverse to the Secretary, however, the court found that: 1) SSA adjudicators engaged in a pattern and practice of misapplication of the severity regulation fostered by SSR 82-55 and POMS DI § 2102; 2) SSA adjudicators engaged in a pattern and practice of misapplication of the severity regulation even before the issuance of POMS DI § 2102 in April 1981, i.e., since June 1976; and 3) SSA's policy of refusing to consider whether different non-severe impairments, when considered in combination, result in a significant restriction of any basic work activities, violated the Social Security Act.
Following its 1992 merits opinion and order, the court requested that the parties present separate versions of proposed implementation orders. At a September 1992 conference, the court adopted the Secretary's proposal to apply a set of presumptions concerning disability in class member cases where the claim file could not be located. During the ensuing months, the parties resolved all major implementation issues except the scope of readjudication and the necessity for folder reconstruction. On December 22, 1993, the court adopted plaintiffs' proposed implementation order with respect to ordering the Secretary to reconstruct the claims files of any class member whose file had been destroyed, and to whom the presumptions did not apply, and to provide full reopening-type readjudications to all qualified class members (Attachment 1). On April 1, 1995, the Second Circuit affirmed the district court's May 8, 1992 merits decision and December 22, 1993 implementation order, in their entirety.
On October 27, 1995, plaintiffs sent a letter to the district court alleging that SSA was refusing to comply with its regular evidence development responsibilities in readjudicating Dixon claims. In response, SSA asserted that, according to the Second Circuit's April 19, 1995 order, its obligation to assist in the development of medical evidence in connection with the “reconstruction” provision would be satisfied by requesting material evidence from sources specifically identified by class members and that it was not required to reconstruct the names of doctors or medical centers that the claimant visited, but was now unable to recall. Furthermore, SSA believed that if it wrote to a source requesting a report and no response or evidence was received, no further action by the Agency was necessary to obtain the evidence.
On December 13, 1995, the district court resolved the issue primarily in favor of plaintiffs and ruled that SSA must follow its regular evidence development procedures. However, the court also ruled that SSA is not required to provide consultative examinations if its requests for evidence are unsuccessful.
Under Dixon, the Commissioner will readjudicate the claims of those persons who: 1) respond to individual notice informing them of the opportunity for readjudication; and 2) are determined to be class members eligible for relief after screening (see Part V. below). Regardless of the claimant's current state of residence, the Office of Disability and International Operations (ODIO) and/or the Northeastern Program Service Center (NEPSC) will, in most cases, screen for class membership and the New York Office of Disability Determinations (ODD) will perform the agreed upon readjudications, regardless of the administrative level at which the class member claim was last decided.
The Disability Determination Service (DDS) servicing the claimant's current address will perform the readjudication if a face-to-face review is appropriate, i.e., cessation or terminal illness (TERI) cases.
If the potential class member claim or a subsequent claim is pending or stored in OHA when class membership becomes an issue, OHA will perform the screening and readjudications under the limited circumstances described in Part V. B. below.
Cases readjudicated by the ODD will be adjudicated at the reconsideration level regardless of the final level at which the case was previously decided. Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).
Dixon does not require any change in OHA's current adjudicatory policies or practices because the severity regulations (20 CFR §§ 404.1520(c), 404.1521, 416.920(c) and 416.921) and SSR 85-28 remain the proper standard for adjudicating claims at step two of the sequential evaluation.
Except as noted below, for purposes of implementing the court's December 22, 1993 order, the Dixon class consists of all individuals:
whose title II and/or title XVI disability claim was finally denied or ceased by the New York ODD or by SSA between June 1, 1976, and July 19, 1983, inclusive; and
whose denial or cessation was based on a finding that they did not have a severe impairment, or that their impairment(s) was only slight; and
who resided in the State of New York at the time of the final decision by the Secretary to deny or cease their disability benefits.
A person is not a class member entitled to relief if
the individual appealed the administrative denial or termination which the individual received on the potential Dixon claim and a final Agency determination/decision was made after July 19, 1983; or
the last administrative denial or termination which the individual received on the potential Dixon claim was issued on or before July 19, 1983, and that determination/decision was based on a finding other than “no severe impairment,” i.e., denied at a step other than step two of the sequential evaluation; or
a Federal court affirmed the Agency's denial or termination of the potential Dixon claim; or
the individual had a subsequent claim decided after July 19, 1983, and the subsequent claim covered the entire period of disability at issue in the potential Dixon claim; or
the potential Dixon claim involved a denial or termination which was based on a non-medical factor (e.g., a denial based on substantial gainful activity).
Between August 17 and 21, 1995, SSA sent notices to all potential class members identified by computer run. Individuals will have 90 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Dixon implementation order.
SSA will also display English and Spanish posters (no smaller than 17“ by 22”) in all SSA field offices in the State of New York for a six-month period, beginning within seven (7) days of the date of the initial mailing of notices. At plaintiffs' request, SSA will place posters at a reasonable number of additional locations and SSA will make all reasonable efforts to distribute the posters to the requested locations. Potential class members who do not receive an individual notice will have until August 18, 1998, to request that SSA readjudicate their claims under the terms of the Dixon implementation order (i.e., within 3 years of the 70th day after the issuance of the court mandate).
If mailed notices are returned as undeliverable, Litigation Staff will attempt to obtain updated addresses through computer matches with any compatible New York State Department of Social Services or New York City Human Resources Administration data system or any other New York State or municipal human services agency data system containing public assistance, food stamp and/or other relevant records. After the computer matches are completed, Litigation Staff shall provide class counsel with a list of potential class members whose notices were returned as undeliverable and for whom no updated addresses were obtained. Class counsel will then have 90 days after receipt of such names to furnish current addresses for such individuals. Thereafter, Litigation Staff will mail a second notice to all potential class members for whom updated addresses are obtained.
ODIO and/or NEPSC will send untimely responses to the servicing Social Security field office (FO) (i.e., district office 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 416.1411 and SSR 91-5p. If good cause is established, the field office will forward the claim for screening.
All reply forms and undeliverable notices will be returned to ODIO where they will be entered into the Civil Action Tracking System (CATS). CATS will generate folder alerts for all reply forms. See Attachment 2 for a sample Dixon alert.
In most instances, ODIO and/or NEPSC will associate the computer-generated alerts with any Dixon claim file(s) that it has within its jurisdiction or that it retrieves from another location. For Dixon claim file(s) which can be located, ODIO and/or NEPSC (or the component with jurisdiction) will screen for class membership or entitlement to relief. ODIO and/or NEPSC will then forward the screened-in Dixon claims to the FO for updating. After updating the file, the FO will send the file to the NY ODD, or to the appropriate DDS, for readjudication.
For Dixon claims which are declared lost or destroyed, ODIO and/or NEPSC will attempt to screen the claim(s) solely on the basis of information shown on the queries (FACT, SSIRD, etc.). If the lost or destroyed claim(s) is screened in on the basis of the queries alone, ODIO and/or NEPSC will attempt to apply the presumptions outlined in Part VI. E. If the lost or destroyed claim(s) cannot be readjudicated on the basis of the presumptions, ODIO and/or NEPSC will initiate claim file reconstruction through the FO. After reconstructing the file, the FO will send the file to the NY ODD, or to the appropriate DDS, for readjudication.
If ODIO and/or NEPSC determines that either a potential class member claim or a subsequent (current) claim is pending or stored 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).
If the claim is located in a hearing office (HO), ODIO and/or NEPSC will forward the alert directly to the HO for processing. If the claim, is located in OHA headquarters, ODIO and/or NEPSC will send the alert to the Office of Appellate Operations (OAO) at the following address:
Office of Hearings and Appeals
Office of Appellate Operations
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: OAO Class Action Coordinator
The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters for association with pending or stored claims. The OAO Class Action Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final class membership reconciliation.
In general, ODIO and/or NEPSC will coordinate any necessary reconstruction of prior claim files. When developing evidence in connection with the reconstruction of a lost or destroyed Dixon claim(s) file, SSA is not required to reconstruct the names of doctors or medical centers which the claimant visited when the claimant is now unable to recall that information. SSA will contact only those sources identified by the claimant. If SSA writes to the source requesting a report and no response or evidence is received, SSA will make one follow-up request. If the evidence received from the treating source(s) or other medical sources is insufficient for adjudication, SSA will recontact the source for additional information.
OHA requests for reconstruction of potential class member cases should be rare. However, prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the particular claim would not confer class membership. If it becomes necessary for OHA to request reconstruction, the OHA component (the HO or the OAO branch) will forward the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) to the servicing FO with a covering memorandum requesting that folder reconstruction be initiated and that the reconstructed file be sent to OHA after file reconstruction action is completed. The OAO branch will route requests through the OAO Class Action Coordinator. HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:
Office of the Deputy Commissioner
for Programs, Policy, Evaluation and
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 21235
ATTN: Dixon Coordinator
HO personnel and the OAO branch will identify in the reconstruction request the OHA location of any existing claim file(s) being retained for adjudication purposes, and the date(s) of the claim(s) involved.
As provided in Part V. A. 3. above, if there is a current claim pending or stored at OHA, the OAO Class Action Coordinator will receive the alert and related Dixon claim file(s). The OAO Class Action Coordinator will determine which OHA component has the current claim and forward for screening as follows:
If the current claim is in an HO, the Coordinator will use Attachment 3 to forward the alert and prior claim file(s) to the HO for screening. (Part V. B. 2. a. below provides instructions to HOs regarding the action to take if they receive an alert package from the OAO Class Action Coordinator but no longer have a current claim pending.)
If the current claim is pending before the Appeals Council or is located in an OAO branch mini-docket or in an OAO Docket and Files Branch (DFB), the Coordinator will use Attachment 3 to forward the alert and prior claim file(s) to the appropriate OAO branch for screening. (Part V. B. 2. a. below provides instructions to the OAO branches regarding the action to take if they receive an alert package from the OAO Class Action Coordinator but no longer have a current claim pending.)
If the Coordinator (or his designee) is unable to locate the current claim file within OHA, the Coordinator (or his designee) will broaden the claim file search and arrange for alert transfer or claim file reconstruction, as necessary.
Do not screen pending cases in newly implemented class actions unless an alert has been received. Claimants sometimes allege class membership before their cases have been alerted. The presence of an alert is evidence that the claimant has responded to notice of potential class membership and that his or her case is ready for review. However, if class action implementation is nearly complete and a claimant with a non-alerted pending case should allege class membership, contact the Dixon coordinator in the Division of Litigation Analysis and Implementation (DLAI) for assistance in determining the claimant's status. DLAI's address is
Office of Hearings and Appeals
Division of Litigation Analysis
Office of Policy, Planning and
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3255
ATTN: Dixon Coordinator
The DLAI Dixon Coordinator's telephone number is (703) 305-0328.
If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, the Coordinator will forward the alert and any accompanying claim file(s) to the appropriate OAO Court Case Preparation and Review Branch (CCPRB) for screening using Attachment 3. See Part V. B. 2. b. below for special screening instructions when a civil action is involved.
The screening component will associate the alert and any prior claim file(s) with the claim file(s) in its possession and complete the screening sheet (see Attachment 4) as follows:
If the claim pending at OHA is the only potential Dixon claim, then the individual is not entitled to relief under Dixon (see Part IV. above). Complete the screening sheet and follow the instructions in Part V. B. 3. a. below for processing non-Dixon claims.
Consider all applications denied (including res judicata denials/dismissals) during the Dixon timeframe;
Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.
Follow all instructions on the screening sheet and screening sheet instructions;
Sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and
If the screening component is an OHA Headquarters component, forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V. A. 3. above. (The Coordinator will forward the copy of the screening sheet to DLAI after recording the relevant information in its class action data base.) If the screening component is a HO, forward a copy of the screening sheet directly to DLAI. (DLAI will retain a copy of each screening sheet and forward a copy to Litigation Staff.)
Final determinations or decisions made after July 19, 1983, on a subsequent claim filed by a potential Dixon class member may have adjudicated the entire time period at issue in the Dixon claim. If that is the case, the adjudication on the subsequent claim will provide a basis for denying class relief in connection with the Dixon claim.
If the HO receives an alert only, or an alert associated with a prior claim file(s), and the HO no longer has the current claim file, it will send the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V. A. 3. above) and advise the Coordinator of the action taken on the current claim and its destination. The Coordinator will determine the current claim file location and, if it is being stored in OHA Headquarters, will forward the alert and any accompanying prior claim file(s) to the responsible OAO Branch for screening using Attachment 3. If the file(s) is no longer in OHA, the Coordinator will use Attachment 5 to send the alert and any accompanying prior claim file(s) to the non-OHA location of the current claim and request that the file(s) be forwarded to ODIO and/or NEPSC for screening.
If an OAO branch receives an alert only, or an alert associated with a prior claim file(s), and the branch no longer has the current claim file (and it is not located in mini-dockets or an OAO DFB), it will determine the location of the current claim file. If the current claim is located within OHA, the OAO branch will use Attachment 3 to forward the alert and any accompanying prior claim file(s) to the current OHA location. If the files are no longer in OHA, the OAO branch will use Attachment 5 to forward the alert and any accompanying prior claim file(s) to the non-OHA location of the current claim and request that the file(s) be forwarded to ODIO and/or NEPSC for screening. The OAO branch will advise the OAO Class Action Coordinator of its actions.
As noted in Part V. B. 1. b. above, the CCPRB will screen for Dixon class membership when a civil action is involved. The CCPRB's class membership determination will dictate the appropriate post-screening action.
If the claim pending in court was adjudicated in accordance with SSR 85-28 and resolved all Dixon issues, the claimant is not a Dixon class member entitled to relief. The CCPRB staff will follow the instructions in Part V. B. 3. a. below for processing non-class member claims.
If the claim pending in court was adjudicated in accordance with SSR 85-28, but did not resolve all Dixon issue(s), e.g., there is a prior (inactive) Dixon claim and the claim pending in court did not adjudicate the entire period covered by the Dixon claim, and the claimant elects to have the case remanded to the Commissioner for further administrative proceedings (instead of continuing in court), the CCPRB will forward the Dixon claim to the New York ODD for separate review. The CCPRB will modify the case flag in Attachment 9 to indicate that the pending court case does not resolve all Dixon issues and that the Dixon class member claim is being forwarded for separate processing. The CCPRB will notify the Class Action Coordinator of this action.
If the final administrative decision on the claim pending in court was not adjudicated in accordance with SSR 85-28 or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings and consolidate the claims.
If the screening component determines that the individual is not a class member, the component will:
notify the individual, and representative, if any, of non-class membership using Attachment 6 (modified as necessary to fit the facts and posture of the case when there is a current claim);
Include the address and telephone number of the servicing Social Security field office at the top of Attachment 6.
retain a copy of the notice in the claim file;
send a copy of the notice to:
Donna H. Lee
The Legal Aid Society
841 Broadway, 3rd Floor
New York, NY 10003
ODIO and/or NEPSC or OHA, as appropriate, will hold for 95 days all claim files of individuals to whom SSA sends notice of non-class membership or ineligibility for relief. If an individual wishes to request SSA's further consideration of the non-class membership determination, he or she may contact SSA in writing within 90 days from the date of the receipt of the non-class membership determination. An individual may also request assistance through class counsel. Copies of each request for review submitted directly by the claimant will be sent by SSA to class counsel promptly after it is received by SSA. Upon timely request by class counsel (i.e., within 60 days from the date SSA forwards the individual's request for review), Litigation Staff will coordinate with ODIO and/or NEPSC or OHA to forward the claim files, using the pre-addressed route slip in Attachment 7, to:
SSA, Disability Program Branch
26 Federal Plaza, Room 40-112
New York, NY 10278
The files may also be sent to another mutually acceptable SSA location.
After SSA notifies class counsel of the availability of the claim file or other available administrative records, class counsel has 90 days from the date of notification to inspect the file or other records. (The 90 day time period may be extended upon consent of both parties.) If at the end of the period for inspecting the files, class counsel has not reviewed the requested file, it will be assumed that review of the file is not desired. Class counsel must attempt to resolve disputes concerning an individual's class membership denial by negotiating with counsel for SSA at the Office of the General Counsel, Baltimore, Maryland. If, after negotiation, SSA still adheres to a determination that an individual is not a class member, SSA will send class counsel and the individual a written confirmation of SSA's denial. After receipt of a confirmation notice, class counsel or the individual will have 60 days to submit the matter to the United States District Court for the Southern District of New York for resolution.
Photocopy any material contained in the Dixon file that is relevant to the current claim and associate it with the current claim before shipping the Dixon file for class counsel's review.
if SSA, through OGC, resolves the dispute in the claimant's favor: 1) the original screening component or Litigation Staff will prepare a revised screening sheet; 2) OHA jurisdiction cases will proceed in accordance with Part VI. below; 3) the rescreening component will notify DLAI of the revised determination by forwarding a copy of the revised screening sheet to DLAI; and 4) DLAI will correlate with the OAO Class Action Coordinator as necessary. If the individual appealed the dispute of his or her class membership determination through class counsel, OGC will advise class counsel of the reversal of class membership determination, and class counsel will notify the claimant. However, if the individual appealed directly to SSA, OGC will notify the claimant in writing of the reversal of class membership determination and send a copy of the correspondence to class counsel.
See the “NOTE” in the screening sheet instructions for Item 12 regarding the action that needs to be taken if full retroactive benefits were not paid on a subsequent claim.
If the screening component determines that the individual is a class member entitled to relief, it will proceed with processing and adjudication in accordance with the instructions in Part VI. below.
Due to the particular circumstances of the Dixon case, the implementation order provides for the following presumptions to be used in the readjudication of class members claim(s) when the file(s) cannot be located.
The class member will be found disabled if he/she received a favorable decision awarding benefits for any subsequent period of disability; and
the medical evidence relevant to that decision demon- strates that, given the class member's condition at the time of the favorable decision (e.g., the impairment(s) at the time of the favorable determination reasonably related to that alleged in the original Dixon claim), it is reasonable to presume that he/she was disabled as of the date of the prior administrative determination which resulted in class membership (i.e., the earliest Dixon claim); or
absent evidence to the contrary that suggests the class member was not disabled, a class member was 55 years of age or older at the time of the administrative determination which resulted in class membership.
If the presumptions are not overcome by evidence to the contrary and the class member will be found disabled as a result, he/she will be found to be disabled from the earliest date based on the application which results in class membership up to the date of onset established by the subsequent allowance regardless of whether the subsequent allowance is continuing, ceased or was a closed period.
In title II claims, the onset established is that alleged on the earliest Dixon claim. In title XVI claims, disability is established as of the filing date of the earliest Dixon claim.
Absent evidence to the contrary, there is a rebuttable presumption that a class member will be found not disabled if:
he/she received a denial or termination of benefits for any reason after July 19, 1983, or for a reason other than a step two denial, i.e., no severe impairment(s) before July 19, 1983, on a disability claim subsequent to the one that forms the basis of class membership; or
employment records available to SSA (e.g., earnings record or SEQY) indicate: 1) a period of employment longer than 6 months following the denial or termination that forms the basis of class membership; and 2) earnings in that period which are in excess of the minimum monthly amounts prescribed in 20 C.F.R. §§ 404.1574 and 416.974; or
he/she had a claim reviewed pursuant to Stieberger v. Sullivan which was denied.
When a decision is made that a class member is not disabled based on the presumptions, the class member must be informed of his or her right to submit evidence to rebut the presumptions of non-disability. Existing evidence of record must be considered in the light most favorable to the class member. If the presumptions cannot be applied, reconstruction is required.
When the Dixon claim(s) is located or reconstructed, the New York ODD will conduct the Dixon review, except for cases consolidated at the OHA level (see Part VI. D. below) and cases in which a face-to-face review is appropriate (see the exception in Part III above). The ODD determination will be a reconsideration determination, regardless of the administrative level at which the class member's claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).
Except as otherwise noted in this instruction, ALJs should process and adjudicate requests for hearing on Dixon DDS review cases in the same manner as for any other case.
The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Dixon readjudication and to ODD readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and Headquarters will process Dixon class member cases according to all other current practices and procedures, including coding, scheduling, developing evidence, routing, etc.
Pursuant to the Dixon implementation order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a reopening. The reopening shall be a de novo reevaluation of the class member's eligibility for benefits based on all evidence in his or her file including newly obtained evidence. The claim of each class member must be reopened to determine whether the claimant was disabled at any time from the earliest alleged onset date of the Dixon claim(s) through the date of readjudication (or, in title II cases in which the claimant is no longer insured, through the date last insured). If the individual had a subsequent claim, the Dixon claim(s) will not be developed and reopened past the alleged onset date or established onset date, as appropriate, of the subsequent claim. When readjudicating Dixon claims, SSA will only consider subsequent impairment(s) that can reasonably be said to be related to the impairment(s) which provided the basis for the determination in the Dixon claim(s).
In cases where the claim file(s) cannot be located, adjudicators are not required to consider any subsequent period(s) during which the claimant had an impairment(s) unrelated to the disability alleged in the Dixon claim(s). Also, in cases where the claim file(s) cannot be located, if the evidence establishes that disability began only at some point after the administrative determination(s)/decision(s) that forms the basis for Dixon class membership, the class member must file a new application to establish eligibility. If the presumptions do not apply, the case must be reconstructed and reopened. A new application is not necessary.
Dixon does not require any change in OHA's current adjudicatory policies or practices with respect to step two of the sequential evaluation. Effective with the enactment of the 1984 Amendments to the Social Security Act, OHA's adjudicators have considered the combined effect of individual “not severe” impairments in evaluating disability claims at step two. ALJs and the Appeals Council will evaluate Dixon claims in accordance with the Social Security Act, the sequential evaluation process set forth in 20 CFR §§ 404.1520 - 1524, 416.920 - 924, including the current severity regulations, 20 CFR §§ 404.1520(c), 416.920(c), SSR 85-28, and other policies and procedures of SSA.
The Acting Associate Commissioner's memorandum, dated February 21, 1991 (Attachment 8), regarding the proper standard for adjudicating claims at step two, remains in effect.
If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.
If the claim file (either a class member claim or a subsequent claim) is located in OHA Headquarters, but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO will associate the alert with the file and screen for class membership (the OAO Class Action Coordinator will coordinate the necessary actions as explained in Part V.). (See Part V. B. 3., above, for non-class member processing instructions.)
If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OAO will attach a Dixon class member flag (see Attachment 9) to the outside of the file and send the claim file(s) to the New York ODD (or to the appropriate DDS if the exception in Part III above applies) for review of the Dixon class member claim.
If less than 120 days have elapsed, OAO will attach a Dixon class member flag (see Attachment 10) to the outside of the file to ensure that the case is routed to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) after expiration of the retention period. Pending expiration of the retention period, the OAO branch will also:
return unappealed ALJ decisions and dismissals to DFB, OAO; and
return unappealed Appeals Council denials to the appropriate OAO mini-docket.
The respective OAO components will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the New York ODD (or the appropriate DDS if the exception in Part III. above applies) in a timely manner.
If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Dixon class member claims with the current claim at the level at which the current claim is pending.
Except as noted below, if a Dixon class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Dixon case with the appeal on the current claim.
The ALJ will not consolidate the claims if
the current claim and the Dixon claim do not have any issues in common; or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow Part VI. E. 2. c. below. If the claims are not consolidated, follow Part VI. E. 2. d. below.
Except as noted below, if a Dixon class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Dixon claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Dixon claim and the current claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for further action (see Part VI. E. 2. d. below).
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 issues raised by the application that makes the claimant a Dixon class member, the ALJ will consolidate the claims.
If the claims are consolidated, follow Part VI. E. 2. c. below. If the claims are not consolidated, follow Part VI. E. 2. d. below.
If the ALJ decides to consolidate the current claim with the Dixon claim(s), the HO will:
offer the claimant a supplemental hearing if the ALJ already has held a hearing and the Dixon claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Dixon claim; and
issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Dixon claim (the ALJ's decision will clearly indicate that the ALJ considered the Dixon claim pursuant to the Dixon implementation order).
If common issues exist but the ALJ decides not to consolidate the current claim with the Dixon claim because a hearing has not yet been scheduled, the ALJ will:
dismiss, without prejudice, the request for hearing on the current claim, using the language in Attachment 11 and the covering notice in Attachment 12; and
send both the Dixon claim and the current claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for ODD consolidation and further action.
If the ALJ decides not to consolidate the Dixon 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 Dixon claim for ODD review using Attachment 13; immediately route it to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for readjudication; and 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.
The action the Appeals Council takes on the current claim dictates the disposition of the Dixon claim. Therefore, OAO must keep the claim folders together until the Appeals Council completes its action on the subsequent claim. The following sections identify the possible Appeals Council actions on the current claim and the appropriate corresponding action on the Dixon claim.
This situation will usually arise when the current claim duplicates the Dixon review claim, i.e., the current claim raises the issue of disability and covers the entire period adjudicated in the Dixon claim, and the current claim has been adjudicated in accordance with the provisions of SSR 85-28 and the current severity regulations, i.e., 20 CFR §§ 404.1520(c), 404.1521, 404.1523, 416.920(c), 416.921 and/or 416.923. 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 Dixon claim.
This situation will usually arise when the current claim does not duplicate the Dixon claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Dixon claim, i.e., the Dixon 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.
When action on the current claim is completed, OAO staff will attach a Dixon case flag (Attachment 9) to the Dixon claim, forward the Dixon claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for adjudication, and retain a copy of Attachment 9 in the current claim file. OAO will modify Attachment 9 to indicate that the Appeals Council action on the current claim does not resolve all Dixon issues and that the Dixon class member 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.
If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Dixon class member, the Appeals Council will proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Dixon claim, and issue a decision that adjudicates both applications.
The Appeals Council's decision will indicate clearly that the Appeals Council considered the Dixon claim pursuant to the Dixon implementation order.
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 Dixon 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 New York ODD (or to the appropriate DDS if the exception in Part III. above applies) 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: "Dixon court case review needed -- following effectuation forward the attached combined files to:
New York Office of Disability Determinations [address]
(or to the appropriate DDS if the exception in Part III. above applies)."
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 Dixon claim with the action on the current claim pursuant to the instructions in Part VI. E. 2. a. above.
The Appeals Council will not direct the ALJ to consolidate the claim if
the current claim and the Dixon 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 Dixon class member claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for separate review. The case flag in Attachment 9 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Dixon class member claim for separate processing.
HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI. above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” If the conditions described in Part VI. E. 2. c. above apply, the ALJ should dismiss the request for rehearing on the current claim, and HO personnel should enter “OTDI” in the “DSP” field.
To identify class member cases in HOTS, HO personnel will code “DI” in the “Class Action” field. No special identification codes will be used in the OHA CCS.
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. Headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0708.