I-5-4-56.Bentley v. Chater

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Reconciliation of Implementation
IX Inquiries
Attachment 1 - Final Order Approving Settlement; Entered by the United States District Court for the Middle District of Florida on August 24, 1995.
Attachment 2 - Sample Bentley Court Case Flag/Alert
Attachment 3 - Reconstruction Flag
Attachment 4 - Screening Flag — Inside OHA
Attachment 5 - Bentley Screening Sheet
Attachment 6 - Signature Samples, Dr. Robert Miles and Dr. Juan Martinez-Serra
Attachment 7 - Screening Flag -- Outside OHA
Attachment 8 - Notice of Non-Class Membership
Attachment 9 - Readjudication Flag For OHA Retention Case
Attachment 10 - Readjudication Flag For Non-Consolidation Cases

ISSUED: February 7, 1997

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the Final Order entered by the United States District Court for the Middle District of Florida on August 24, 1995, approving the parties' settlement agreement in the Bentley v. Chater class action. The Bentley class action was principally oriented toward alleged deficiencies in Florida Office of Disability Determinations' (ODD's) actions and procedures.

Adjudicators throughout the country must be familiar with this TI because of case transfers and because Bentley class members who now reside outside of Florida must have their cases processed in accordance with the requirements of the Final Order and settlement agreement.

II. Background

On January 10, 1992, the named plaintiffs filed a class action law suit against ODD and asked for declaratory and injunctive relief. On June 1, 1992, the court granted the Secretary's [1] motion to intervene as a party-defendant. On April 19, 1993, the court entered an order certifying a class.

Plaintiffs alleged, among other things, that the defendants are not following the Social Security Act because they are applying a different standard at the initial and reconsideration level than is being applied at the Federal administrative review level. According to plaintiffs, the deliberations of the Florida ODD result in: improper residual functional capacity (RFC) determinations; failure to properly consider all relevant medical and nonmedical evidence; illegal discounting of subjective complaints, including pain; and inadequate evaluation of nonexertional limitations.

The case went to trial on April 3, 1995. During the trial, and at the court's direction, the parties engaged in settlement negotiations and, on April 20, 1995, reached a proposed settlement. On May 22, 1995, the court entered a preliminary order approving the settlement. On June 18, 1995, plaintiffs published notice of the action (pursuant to Rule 23(e) of the Federal Rules of Civil Procedure) in Florida newspapers. On August 24, 1995, following a public hearing, the district court gave final approval to the parties' proposed settlement (see Attachment 1).

III. Guiding Principles

Under the Bentley settlement, the Florida ODD (and the Commissioner) will readjudicate the claims of those persons who: 1) respond to notice informing them of the opportunity for review; and 2) are determined, after screening, to be class members entitled to relief (see Part V. B. 3. below). Regardless of the state of the claimant's current residence, the Florida ODD will, in most cases, perform the agreed-upon readjudications. OHA will screen cases and perform readjudications under limited circumstances (see Parts V. and VI. below).

The type of readjudication will be a "redetermination." A redetermination consists of a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period that was at issue in the administrative determination(s) that forms the basis for the claimant's class membership. If the redetermination results in a favorable decision, the adjudicator must also determine whether the class member's disability and eligibility has been continuous through the date of the readjudication, i.e., through the current date or the date of the most recent allowance. The adjudicator will also assess disability through the current date if a class member claim is consolidated with a common-issue current claim.

Cases readjudicated by the Florida ODD will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. The class member claim(s) will be adjudicated under current policies and procedures. Subject to the above limitations, class members who receive readjudications that result in RFCs different from the ones done by the ODD physicians identified in this action (i.e., Dr. Juan Martinez-Serra and Dr. Robert Miles) will have full appeal rights, i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review. Class members who receive readjudications in which the RFC assessment remains the same will have no appeal rights.

Other than “waterfall” cases, i.e., appealed cases, the primary implementation impact of the Bentley settlement on OHA will be the responsibility for screening when a potential class member claim or current claim is pending or stored at OHA. Under the terms of the settlement, SSA will usually consolidate current claims and class member claims at the ODD level. However, under certain circumstances, as described in Part VI. below, an ALJ or the Appeals Council may consolidate a class member claim and a current claim for the purpose of issuing a decision.

In addition to readjudication as part of the settlement, the Florida ODD will insert in the letter sent to each new claimant for disability benefits (the M-48 letter) a sentence informing the claimant that a letter (the M-1 letter) has been sent to his or her doctor asking for information concerning the claimant's medical history, clinical findings, laboratory findings, treatment and response, diagnosis, prognosis and a statement about what the claimant can do despite his or her impairment(s). Also, as part of the settlement, the Florida ODD issued a reminder to all ODD medical consultants regarding completion of RFC forms. The reminder stated that in order to make an informed assessment of RFC, the consultant must review the case file information to the extent required by the Programs Operations Manual System and to the degree sufficient to establish that, in the consultant's professional judgment, the assessment is supported by the medical and nonmedical evidence.

IV. Definition of Class

Except as noted below, the Bentley class members entitled to relief are those persons whose claims for disability under titles II and/or XVI contain:

  • a disability denial determination(s) issued by the Florida ODD at the initial or reconsideration levels; and

  • a physical RFC form (SSA-4734-U8) signed by Dr. Robert Miles dated November 1, 1992, through March 1, 1994; or

  • a physical RFC form (SSA-4734-U8) signed by Dr. Juan Martinez-Serra dated June 1, 1992, through June 30, 1993.

    EXCEPTIONS:

    A person is not a Bentley class member entitled to relief if he or she:

    • received a subsequent physical RFC assessment (form SSA-4734-U8) signed by another ODD physician or medical consultant other than the two physicians mentioned above, prepared on the same or another claim, which covered the entire period at issue in the potential Bentley claim(s); or

    • requested an ALJ hearing on the potential Bentley claim(s), or on a subsequent claim which covered the entire period at issue in the potential Bentley claim(s); or

    • received a determination(s) on the potential Bentley claim(s) not issued by the Florida ODD; or

    • received a denial on the potential Bentley claim(s) for nonmedical reasons (e.g., a denial was issued based on substantial gainful activity).

V. Determination of Class Membership and Preadjudication Actions

A. Pre-Screening Actions - General

  1. Identification, Notification and Routing

    Based on the foregoing class definition, Litigation Staff identified potential class members by a computer run and, in a single mailing on October 31, 1995, sent notices to all potential class members. Individuals had 60 days from the date of receipt of the notice to return a reply form to the Office of Disability and International Operations (ODIO), requesting that SSA readjudicate their claims under the terms of the Bentley settlement and order. Undeliverable notices were returned to ODIO to update the Civil Action Tracking System (CATS). Litigation Staff through CATS will screen reply forms received more than 65 days after the mailing date. If the reply form is not timely, the Social Security field office (FO) will develop good cause for late filing.

    Individuals can also request review by contacting any FO in person, in writing or by telephone. The FO will assist the claimant in completing the reply form, or if the claimant lost the reply form or never received one, the FO will complete a Request for Court Case Review/Change of Address Worksheet.

  2. Alert and Folder Retrieval Process

    ODIO will enter the reply form information into the CATS, and CATS will generate court case folder alerts (see Attachment 2 for a sample Bentley Court Case Flag/Alert). The alerts and appropriate systems queries will be used to locate and retrieve the Bentley claim file(s).

    ODIO will associate the computer-generated alerts with ODIO jurisdiction title II and concurrent title II and title XVI potential class member claim file(s), except those pending in OHA or the Florida ODD, and conduct the screening. The Program Service Centers (PSCs) will retrieve PSC jurisdiction title II and concurrent title II and title XVI potential class member claims, except for those pending in OHA or the Florida ODD. The Wilkes-Barre Data Operations Center (WBDOC) and the FOs will retrieve title XVI potential class member claims. The PSCs, WBDOC and the FOs will forward retrieved claims to the Florida ODD for screening.

  3. Alerts Sent to OHA

    If ODIO, the PSCs, WBDOC or the FOs determine that a current claim, i.e., either a potential class member claim or a subsequent claim, is pending appeal 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 a claim is located in an OHA hearing office (HO), ODIO, the PSCs, WBDOC or the FOs will forward the alert/query package and claim file(s), if any, directly to the HO for processing. If the claim is pending or stored at OHA Headquarters, ODIO, the PSCs, WBDOC or the FOS will forward the alert/query package and claim file(s), if any, to the Office of Appellate Operations (OAO), at the following address (case locator code 5007):

     

    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

    NOTE:

    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 Coordinator should maintain a record of all alerts received and the location, if any, to which they are transferred. SSA needs this information to do the final class membership reconciliation.

  4. Folder Reconstruction

    In general, ODIO, the PSCs or FOs will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential Bentley cases should be rare. 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. OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the servicing FO. The request will be made by memorandum and will include the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) as attachments. The request will also include documentation of the attempts to locate the file. The memorandum will request the FO to send the reconstructed file to OHA after it completes its reconstruction action. HOs will route any reconstruction requests directly to the servicing FOs. The OAO branch will also route reconstruction requests directly to the servicing FO and will send a copy of the request to the OAO Class Action Coordinator. For CATS purposes, 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 Policy and Planning
    Litigation Staff
    3-K-26 Operations Building
    6401 Security Boulevard
    Baltimore, MD 21235

     

    Attn: Bentley 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.

    The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to receipt of the reconstructed folder, the HO or OAO, as appropriate, will forward the class action material, including the alert, if still in its possession, unneeded claim files, if any, and a copy of the reconstruction request directly to the servicing FO using Attachment 3. The HO or OAO will send a copy of the covering attachment to the OAO Class Action Coordinator, along with a copy of the action taken on the pending claim. For additional information on reconstruction procedures, see Class Action Implementation instructions in HALLEX I-1-7-5 C.

    Occasionally, the situation may arise where OHA is in possession of a Bentley alert, and is ready to take action on a pending, non-Bentley claim, but the Bentley file has not been located and reconstruction appears necessary but has not yet been requested. In this situation, OHA will not delay its action on the pending claim. OHA will proceed with its action on the pending claim and concurrently send the Bentley alert and a reconstruction request to the servicing FO using Attachment 3, modified to fit the circumstances of the case.

B. OHA Screening Actions

  1. Determining Jurisdiction for Screening

    1. Current Claim Pending or Stored in OHA

      As provided in Part V. A. 3. above, if there is a current claim pending or stored at OHA Headquarters, the OAO Class Action Coordinator will receive the alert and related Bentley claim file(s). The OAO Class Action Coordinator will determine OHA jurisdiction for screening and forward as follows.

      • If the current claim is in an HO, the Coordinator will forward the alert and any prior claim file(s) to the HO for screening using Attachment 4. (Part V. B. 3. a. below provides instructions to HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

      • If the current claim is before the Appeals Council, or is located in an OAO branch mini-docket or in the OAO Docket and Files Branch (DFB), the Coordinator will forward the alert and any prior claim file(s) to the appropriate OAO branch for screening using Attachment 4. (Part V. B. 3. a. below provides instructions to the OAO branches regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

      If the Coordinator (or designee) is unable to locate the current claim file within OHA, the Coordinator (or designee) will broaden the claim file search and arrange for alert transfer or folder reconstruction, as necessary.

      NOTE:

      Do not screen pending cases unless an alert has been received. 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 a claimant with a non-alerted pending case should allege class membership, contact the Bentley coordinator in the Division of Litigation Analysis and Implementation (DLAI) for assistance in determining the claimant's status. DLAI's address is:

       

      Division of Litigation Analysis
         and Implementation
      Office of Hearings and Appeals
      One Skyline Tower, Suite 702
      5107 Leesburg Pike
      Falls Church, VA 22041-3255

      ATTN: Bentley Coordinator

      Telephone Number: (703) 305-0717

    2. Current Claim Pending in Court

      If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or 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 4. See Part V. B. 3. b. below for special screening instructions when a civil action is involved.

  2. Pre-Screening Actions - Specific

    Prior to screening an individual case, the screening component will obtain appropriate systems information to determine whether:

    • there is a subsequent claim pending at any other administrative level or in court;

    • there are additional claims within the class dates which have not been associated;

    • the claimant has received a determination/decision on a subsequent claim with respect to the time period at issue in the potential class member claim, thus providing a basis for determining that the claimant is not a class member eligible for relief.

    The screening component will also:

    • obtain the files for all unassociated claims that fall within the class dates, as well as the files for any inactive claims that postdate the class period (which potentially provide a basis for screen-out or for limiting class relief); and

    • if necessary, request reconstruction of any potential class member claim files that cannot be located, unless available systems data or other information provides satisfactory proof that the particular claim would not confer class membership.

  3. Screening

    1. General Instructions

      The screening component will associate the alert and any prior claim file(s) with the claim file(s) in its possession and then complete a screening sheet (see Attachment 5) as follows.

      • Consider all applications denied during the Bentley timeframe;

      • Follow all instructions on the screening sheet and the screening sheet instructions (Attachment 5);

      • Review the signature samples at Attachment 6;

      • 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 or an HO, 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 enter information from the screening sheet into a database and will forward the screening sheet to DLAI.) HO personnel may also forward material by telefax to DLAI at (703) 305-0655. (DLAI will retain a copy of each screening sheet, share a copy with the OAO Class Action Coordinator and forward a copy to Litigation Staff.)

      If the HO 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 or forward 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 located in OHA Headquarters, will forward the alert and any accompanying claim file(s) to the responsible OAO branch for screening, using Attachment 4. If the file(s) is no longer in OHA, the Coordinator will use Attachment 7 to send the alert and any accompanying claim file(s) to the non-OHA location.

      If an OAO branch receives an alert only, or an alert associated with a prior claim file(s), and no longer has the current claim file (and it is not located in mini-dockets or the OAO DFB), it will determine the location of the current claim file. If the current claim file is located within OHA, the OAO branch will use Attachment 4 to forward the material to the OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 7 to forward the material to the non-OHA location. The OAO branch will also advise the OAO Class Action Coordinator of its actions.

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

      As noted in Part V. B. 1. b. above, the CCPRB will screen for Bentley class membership/eligibility for relief when a civil action is involved. The CCPRB's class membership/eligibility for relief determination will dictate the appropriate post-screening action.

      • If the claimant is a class member eligible for relief, the CCPRB will immediately notify Regional OGC so that Regional OGC can take appropriate action. Regional OGC will advise the CCPRB of the action to be taken.

      • If the claimant is not a class member eligible for relief, the CCPRB will follow the instructions in 4. a. below.

  4. Post-Screening Actions

    1. Screened Out Cases

      If the screening component determines that the individual is not a class member eligible for relief, the component will:

      • notify the individual, and representative, if any, of that determination using Attachment 8 (modified as necessary to fit the circumstances and posture of the case when there is a current claim); and

        NOTE:

        In addition to the date and claim number entries on page 1 of the notice, include the address and telephone number of the servicing Social Security FO on page 2 of Attachment 8 in the spaces indicated.

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

      • hold the claim file(s) for the normal retention period, then forward to the appropriate storage location if not otherwise needed.

        NOTE:

        There are no class membership dispute procedures in Bentley.

    2. Cases Determined to be Class Members

      If the screening component determines that the individual is a class member eligible for relief, it will proceed with processing and adjudication in accordance with the instructions in Part VI. below.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

The Florida ODD will usually conduct the Bentley review. An exception will apply for cases consolidated at the OHA level (see Part VI. D.). The ODD determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with appeal rights (i.e., ALJ hearing, Appeals Council and judicial review) only if the RFC assessment on readjudication is different from the one made by the ODD physicians identified in this action. (See Part VI. B. below.) However, the following processing and adjudication procedures will apply when OHA has responsibility for screening, i.e., when a potential class member claim or another claim is pending or stored in OHA, and when the claimant is a class member.

B. OHA Adjudication of Class Member Claims

The following instructions apply to consolidation cases (see Part D. below) in which the ALJ or Appeals Council conducts the Bentley readjudication and to DDS readjudication cases in which the claimant requests, and is eligible for, a hearing or Appeals Council review. As noted in Part III. and in A. above, class members who receive readjudications in which the RFC assessment remains the same will have no appeal rights. Except as noted herein, HOs and OHA Headquarters will process Bentley class member cases according to all other current practices and procedures including coding, developing evidence, routing, etc.

  1. Type of Review and Period to Be Considered

    1. Pursuant to the Bentley Order, the type of review to be conducted is a redetermination. The redetermination consists of a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period that was at issue in the administrative determination or decision(s) that forms the basis for Bentley class membership. Because any new evidence must relate to the time period that was at issue in the administrative determination(s) forming the basis for the claimant's class membership, ordering consultative examinations should be done only rarely.

    2. If the redetermination results in a favorable decision, the adjudicator will determine whether the individual's disability has been continuous through the date of the redetermination or to the date of the most recent allowance.

    3. If the evidence establishes that disability began only at some point after the administrative determination(s) that forms the basis for Bentley class membership, the class member must file a new application to establish eligibility.

  2. Disability Evaluation Standards

    Adjudicators must use the disability evaluation standards contained in the statute, regulations and Rulings.

  3. Class Member Is Deceased

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

C. Claim at OHA But No Current Action Pending

If a claim file (either a class member or another disability claim) is located in OHA Headquarters but there is no claim actively pending administrative review, e.g., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO branches 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. 4., above, for non-class member processing instructions.)

  • Whether the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired or not, OAO will attach a Bentley class member flag (see Attachment 9), to the outside of the file and immediately forward the original or photocopies (if less than 120 days) of the claim file(s) pertaining to the Bentley claim(s) to the Florida ODD for review of the Bentley class member claim.

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

Because the receipt of a subsequent RFC assessment by a Florida ODD medical consultant other than Dr. Robert Miles, or Dr. Juan Martinez-Serra, is a basis for screen-out (item 9. of the screening sheet), a claimant who filed a subsequent, common-issue claim is unlikely to be a class member. Moreover, by class member definition, claimants who received RFC assessments at the reconsideration level by Dr. Miles or Dr. Martinez-Serra will not be class members with respect to any claims appealed to OHA (regardless of disposition). However, for those few class members who may have class member claims that can be associated with another claim pending or stored at OHA, the following instructions will apply.

NOTE:

Even claims subject to consolidation should be consolidated only to the extent practicable. Thus, if consolidation would unreasonably delay a decision on the current claim, consolidation is not required.

  1. General

    If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Bentley class member claims with the current claim at the level at which the current claim is pending.

  2. Current Claim Pending in the Hearing Office

    Except as noted below, if a Bentley class member has a request for hearing pending on a current claim, and in all remand cases, including court remands, the ALJ will consolidate the Bentley case with the appeal on the current claim.

    EXCEPTIONS:

    The ALJ will not consolidate the claims if

    • the current claim and the Bentley 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, or

    • a consolidation will unreasonably delay action on either the current claim or the Bentley claim.

    If the claims are consolidated, follow Part VI. E. 2. a. below. If the claims are not consolidated, follow Part VI. E. 2. b. below.

    1. Actions if Claims Consolidated

      When consolidating a Bentley claim with any current claim, and when the two claims involve overlapping periods at issue, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present or to the date of the most recent allowance (or through the claimant's date last insured or the date the claimant last met prescribed period requirements, if applicable and earlier). Accordingly, consolidation will result in a reopening of the Bentley claim through the time period at issue in the current claim. However, if the period to be adjudicated in the current claim does not overlap the period to be adjudicated in the Bentley claim, the two claims should be considered separately. Nevertheless, if the claimant is found to be disabled within the timeframe of the Bentley claim, the claim will be reopened through the date at issue in the current claim. If the current claim and the Bentley claim are consolidated, the HO will:

      • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Bentley 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 Bentley claim raises an additional issue(s);

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

      • indicate in the decision which determinations are appealable and which are not because there are no appeal rights with respect to redeterminations of Bentley claims unless such redeterminations result in an RFC different from the one last done by Dr. Miles or Dr. Martinez-Serra.

      • forward a copy of the decision directly to DLAI at the address in Part V. B. 1. a. above.

    2. Action if Claims Not Consolidated

      If the ALJ decides not to consolidate the current claim with the Bentley claim because: 1) the claims do not have any issues in common, or 2) there is a court-ordered time limit, or 3) consolidation would unreasonably delay action on either the current claim or the Bentley claim, the ALJ will:

      • flag the Bentley claim for ODD review using Attachment 10; immediately route it to the Florida ODD for readjudication (photocopies of any relevant material from either file should be made and placed in the other file before shipping) and retain a copy of Attachment 10 in the current claim file;

      • 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 Bentley 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 Bentley claim.

    1. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim

      In this instance, the Appeals Council will proceed with its intended action on the current claim. OAO staff will attach a Bentley case flag (Attachment 10; appropriately modified) to the Bentley claim, immediately forward the Bentley claim to the Florida ODD for adjudication, and retain a copy of Attachment 10 in the current claim file. 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.

    2. Appeals Council Intends to Issue a Favorable Decision on the Unresolved Claim -- No Bentley Issue(s) Will Remain Unresolved

      If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Bentley class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Bentley claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Bentley claim and will indicate which determinations are appealable and which are not because there are no appeal rights with respect to redeterminations of Bentley claims unless such redeterminations result in an RFC different from the one done by Dr. Miles or Dr. Martinez. OAO staff will forward a copy of the decision, for coordination with DLAI, to the OAO Class Action Coordinator at the address in Part V. A. 3. above.

    3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Bentley Issue(s) Will Remain Unresolved

      If the Appeals Council intends to issue a fully favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Bentley claim, the Appeals Council will proceed with its intended action. OAO staff will flag the Bentley claim for ODD review using Attachment 9 and immediately route it to the Florida ODD for readjudication (OAO staff will make photocopies of any relevant material from either file and place in the other file before shipping) and will retain a copy of Attachment 9 in the current claim file.

    4. Appeals Council Intends to Remand the Current Claim to an Administrative Law Judge

      If the Appeals Council intends to remand the current claim to an 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 Bentley claim with the action on the current claim pursuant to the instructions in Part VI. E. 2. above.

      EXCEPTIONS:

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

      • the current claim and the Bentley 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, or

      • consolidation would unreasonably delay action on either the current claim or the Bentley claim.

      If any of the above-listed exceptions apply, OAO will immediately forward the Bentley class member claim to the Florida ODD, for separate review. The case flag in Attachment 10 should be modified to indicate that the Appeals Council, rather than the ALJ, is forwarding the Bentley class member 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. 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. b. above apply, the ALJ should dismiss the request for hearing 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 “BT” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Reconciliation of Implementation

At an appropriate time, Litigation Staff will request SSA components to reconcile their screening activity and disposition of class member claims with information available on CATS. Within OHA, the OAO Class Action Coordinator is responsible for maintaining a personal computer-based record of OHA implementation activity (i.e., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA), as reported by HOs and OAO.

IX. 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. OHA Headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0708.

Attachment 1. - Final Order Approving Settlement; Entered by the United States District Court for the Middle District of Florida on August 24, 1995.

 

[DATE FILED 08/24/1995]

 

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

 
 
KATHY J. BENTLEY et al.,    
     

Plaintiffs,

   
     
v.   Case No. 92-40-Civ-J-20
     
J. DAVID SELLARS,    
Director of Florida Department of HRS,    
Office of Disability Determinations, and    
SHIRLEY S. CHATER, in her official capacity    
As the Commissioner of Social Security,    
     

Defendants,

   

ORDER

 

     This Court conducted a Final Approved Hearing on August 22, 1995, to determine whether the Settlement Agreement reached by the parties, and lodged with the Court on April 18, 1995, is fair, reasonable, and adequate. The Court notes that after publishing this Settlement Agreement on June 18, 1995, in newspapers of general circulation in the major metropolitan areas of the State of Florida, the Court received one objection. The Court has considered this one objection, filed by Julian S. Mangum Sr. and Ida Frances Mangum and finds that the objection is without merit because it does not relate to the issues covered by the Settlement Agreement and the Magnums are not class members.

     The Court has also considered the Memorandums filed by all parties in support of the Settlement Agreement, as well as the arguments of counsel.

 

FACTS

 

     This suit is based on Plaintiffs' allegations that Defendants are not following the Social Security Act because they are applying a different standard at the application and reconsideration level than is being applied at the federal administrative review level. According to plaintiffs, the deliberations of the Florida Office of Disability Determinations (“ODD”) result in: improper residual functional capacity (“RFC”) determinations, failure to properly consider all relevant medical and nonmedical evidence, illegal discounting of subjective complaints, including pain; and inadequate evaluation of non-exertional impairments. Trial commenced on April 3, 1995. In support of these allegations, Plaintiffs relied on evidence of a higher allowance rate at the Administrative Law Judge (“ALJ”) level and on the testimony of witnesses which they argue establishes that federal law was not being properly administered by the State Defendant and enforced by the Federal Defendant.

     Defendants denied these allegations and suggested that the evidence submitted by Plaintiff does nothing more than establish the obvious-that mistakes are expected in a system, such as the Social Security System, which is run by humans. Defendants also raised the possibility that the differences in the allowance rates at the initial and ALJ level was the result of additional evidence which was submitted after the initial and reconsideration stages and as a result of the use of a skilled lawyer at the hearing level.

     Other than evidence suggesting that two of Defendants' doctors may have been improperly reviewing cases at the state level, the first three days of trial produced little evidence in support of Plaintiffs' allegations. On April 6 1995, the parties held a settlement conference. Although no settlement was reached on that date, the parties continued their negotiations while continuing to try the case. Little additional evidence supporting Plaintiff's allegations was heard.

     The parties reached an agreement on April 20, 1995, with following terms.

  1. The Office of Disability Determinations (ODD) will insert in the letter sent to each new claimant for disability benefits (the M-48 letter) a sentence informing the claimant that a letter (the M-1 letter) has been sent to his or her doctor asking for information concerning the claimant's medical history, clinical findings, laboratory findings, treatment and response, diagnosis, prognosis and a statement about what the claimant can do despite his or her impairments.

  2. The ODD will readjudicate claims de novo in which either Dr. Juan Martinez-Serra or Dr. Robert Miles signed a physical RFC for the period of November 1, 1992 through March 1, 1994 for Dr. Miles and the period from June 1992 through June 1993 for Dr. Martinez-Serra in cases in which the claimant requested readjudication. These claims will be limited to those in which there was not subsequent physical RFC performed by another physician and to claims where the individual did not request an ALJ hearing. The readjudication of these claims which result in an RFC different from the ones done by Dr. Miles and Dr. Martinez will carry with them full appeal rights. The federal defendant will send individual notices to each person in this group. All individual notices will contain the name, address and telephone number of plaintiffs' class counsel who the claimant may call for additional information. Further, the federal defendant will supply plaintiffs' counsel with the number of claimants receiving each notification.

  3. ODD will issue the following reminder to all ODD medical consultants regarding completion of RFC forms: In order to make an informed assessment of RFC the MC/PC must review the case file information to the extent required by the POMS and to the degree sufficient to establish that, in the MC/PC's professional judgment, the assessment is supported by the medical and non-medical evidence.

  4. Concerning the terms of this settlement agreement, the parties agree that any violation of any such terms must be proved to be a custom or usage under 42 U.S.C. section 1983 of the state defendant in order for plaintiffs to prevail in any post-settlement enforcement action at any time prior to the absolute date on which the Court will lose jurisdiction, which date is agreed to be July 1, 1996.

  5. Plaintiffs' counsel waive their attorney's fees, costs, and expenses incurred by counsel employed by legal services. The State Defendant will pay $37,000 to Plaintiffs counsel Charles Sasser for his fees, costs and expenses. No other fees, costs or expenses of any type will be sought by Plaintiffs or paid by State Defendant. The Federal Defendant will not pay any of Plaintiff's fees, costs or expenses associated, directly or indirectly, with litigating this case. The State and Federal Defendants waive any right to collect from Plaintiffs Defendants' attorney's fees, costs or expenses associated with litigating this case. The parties intend this settlement to resolve any claims that were brought or that could have been brought by any party.

     Having preliminarily approved of the settlement agreement, the Court ordered the parties to publish notice of this action in newspapers of general circulation in the major metropolitan areas of the State of Florida. This notice was published on Sunday, June 18, 1995. This notice was reasonably sufficient, under the circumstances, to inform members of the affected class of the existence of the lawsuit, of the proposed settlement, and of their right to file an objection.

 

DISCUSSION

 

     Rule 23(e) of the Federal Rules of Civil Procedure provides that “[lsqb ]a[rsqb ] class action shall not be dismissed without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Therefore, following notice to the members of the class, the Court must approve of any proposed class settlement before a class action can be dismissed. See Piambino v. Bailey, 757 F.2d 1112, 1139-42 (11th Cir. 1985), cert. denied sub nom, Hoffman v. Sylva, 476 U.S. 1169 (1986). In reviewing a proposed settlement to determine whether it should be accepted, the Court must consider whether the proposed settlement is the product of fraud or collusion and whether its terms are fair, adequate, and reasonable. See Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984).

     In determining whether a settlement is fair, adequate and reasonable, the Court considers the following factors.

  1. the likelihood of success at trial;

  2. the range of possible recovery;

  3. the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable;

  4. the complexity, expense and duration of litigation;

  5. the substance and amount of opposition to the settlement; and

  6. the stage of proceedings at which the settlement was achieved.

Bennett, 737 F.2d at 986. In evaluating these considerations, the Court should not try the case on the merits. Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). The Court, in the absence of fraud, “should be hesitant to substitute its own judgment for that of counsel.” Id. With that in mind, the Court now considers the Bennett factors.

 

Absence of Fraud or Collusion

 

     Based on the truly adversarial nature of the pretrial proceedings and partial trial of this matter, as evidenced by the 28 volumes of documents filed by the parties in this case, the Court is convinced, and specifically finds, that there was no fraud or collusion in reaching the proposed settlement. The parties in this case agreed on the proposed settlement agreement after days of extensive, arms-length negotiations. Each advocate in this case represented his or her client's interests to the full extent of the law. The proposed settlement agreement was the result of reasonable compromise among the various interests. Thus, this factor weighs in favor of approving the proposed settlement.

 

Likelihood of Success at Trial

 

     In order to prevail in this suit, Plaintiffs would have been required to establish the existence of a “policy or custom” of the State Defendant which violated the Plaintiffs' right under 42 U.S.C. § 1983. See Hafer v. Melo, 502 U.S. 21, 25 (1991). It is not enough that Plaintiffs may have established that some of the State Defendant's employees violated federal law, for “random acts or isolated incident are insufficient to establish a custom or policy.” Depew v. City of St. Marys, Georgia. 787 F.2d 1496, 1499 (11th Cir. 1986). Additionally, it is not enough that the State Defendant may have denied an application which should have been granted because “[lsqb ]i[rsqb ]t has never been expected that an organization so vast as the Social Security Administration can achieve absolute procedural perfection.” Mercer v. Birchman, 700 F.2d 828, 835 (2d Cir. 1983). Indeed, Plaintiffs bore the burden of establishing that the State Defendant's own policy or custom played a part in the violation of federal law. See Hafer v. Melo, 502 U.S. 21, 25 (1991).

     The evidence submitted by plaintiffs prior to the settlement agreement may not have been sufficient to support a claim that Plaintiffs' rights under 42 U.S.C. § 1983 were violated. Plaintiffs only claim which, so far, was supported by credible evidence was their claim that Dr. Miles and Dr. Martinez-Serra may have improperly reviewed files. However, this does not mean that Plaintiffs, if the trial had continued, could have sustained their burden of proof. Thus, at this stage of the proceedings, it is unlikely that Plaintiffs would have prevailed on some of their claims and this factor weighs in favor of Plaintiffs settling this case and of the Court approving the proposed settlement. Additionally, little, if any, evidence offered by the time the settlement was reached damaged the Federal Defendant.

 

Range of Recovery

 

     In their Complaint, Plaintiff seeks injunctive relief of an unspecified nature. Therefore, it is unclear what relief, it any, would have been granted by this Court. However, in the settlement agreement, Defendants agreed to readjudicate certain claims and to provide information to both the claimants and the reviewers which will serve to decrease the likelihood that the practices alleged by Plaintiff in their Complaint will occur in the future. The settlement agreement addresses each of Plaintiffs' concerns in a manner which is consistent to the type of relief that would have been granted by this Court if Plaintiffs were able to prevail on all of their claims. Accordingly, the relief provided by the settlement agreement is within the Plaintiffs range of the possible recovery and this factor weighs in favor of approval of the proposed settlement.

 

The Point on or Below the Range of Possible Recovery

At Which a Settlement is Fair, Adequate and Reasonable

 

     As was stated above, the proposed settlement provides a remedy which is within the range of Plaintiffs' possible recovery. Additionally, in light of the weakness of Plaintiffs' evidence, this factor is sufficiently satisfied.

 

The Complexity, Expense and Duration of Litigation

 

     This case was scheduled to last for nearly six weeks. Additionally, Plaintiffs' claims were extremely broad in that they alleged that improprieties existed throughout the state system. Plaintiffs would have had to produce a significant amount of evidence to establish that the isolated incidences reported on by some of their witnesses was characteristic of the entire system. Accordingly, the complexity, duration and expense of trying this case all weigh heavily in favor of approving the proposed settlement.

 

The Substance and Amount of Opposition

 

     One objection was filed in response to this notice. This objection, which was filed by Julian S. Mangum Sr. and his wife, Ida Frances Mangum, does not raise an objection to the terms of the settlement agreement, but instead relates to their inability to obtain disability benefits. Additionally, it does not appear that the Magnums are members of the class. Accordingly, their objection does not provide this Court with a reason to reject the proposed settlement agreement. Furthermore, no other persons appeared at the Hearing on August 22, 1995, to orally object to the proposed settlement. Thus, the agreement is before the Court without objection from the Plaintiffs' class and this factor also weighs in favor of approving the proposed settlement.

 

The Stage of the Proceedings

 

     The proposed settlement in this case was achieved after extensive discovery and several days of trial. The facts in this case were developed to the point that a “reasonable judgment on the possible merits of the case.” Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir. 1975). could be made. Both parties were aware of the strength and weaknesses of their cases, and each determined that settlement provided a better option than completing the trial. Given the deference this Court should give to the experienced counsel that participated in this case, this factor also weighs in favor of approving the settlement. See Williams v. Vukovich, 720 F.2d 909, 922-23 (6th Cir. 1983).

 

Attorney's Fees

 

     With respect to the amount of attorney's fees awarded to Plaintiffs' counsel Charles Sasser, these fees did not affect the settlement in any way because they did not reduce any amount that could have been awarded to Plaintiffs. Plaintiffs did not seek money damages in this action. The fees awarded to Mr. Sasser were to be paid to him by the State Defendant as a part of the proposed settlement. Additionally, the amount of fees is reasonable in that they represent only those reasonable fees, costs and expenses incurred by one of Plaintiffs' counsel. Plaintiffs' counsel employed by legal service organizations throughout the State of Florida waived their right to collect fees with respect to this litigation. Therefore, the amount of fees awarded in this case weighs in favor of approving the proposed settlement.

     Accordingly, it is

     ORDERED AND ADJUDGED that pursuant to Rule 23 and in light of the Court's findings with respect to each of the Bennett factors above, the proposed settlement agreement in this case is fair adequate, and reasonable and is hereby APPROVED.

This case is DIMISSED with the Court retaining jurisdiction to enforce the settlement agreement. The Clerk shall close the file.

DONE AND ORDERED at Jacksonville, Florida, this 23rd day of August, 1995.

   
   
  /s/
  ____________________________________
  HARVEY E. SCHLESINGER
  United States District Judge
   
   
Copies to:



Esther O. Yip, Esq.
Sarah H. Bohr, Esq.
Carol A. Jeandheur, Esq.
Morris E. Shelkofsky, Esq.
Steven Hitov, Esq.
Sally Schmidt, Esq.
Charles Sasser, Esq.

Garry Randolph, Deputy Clerk
Law Clerk

Attachment 2. - Sample Bentley Court Case Flag/Alert

CTWALTO1  99985 000000

Bentley COURT CASE FLAG/ALERT

REVIEW OFFICE PSC DOC TOE ALERT DATE RESPONSE DATE OLD BOAN/PAN
SSN

(BOAN or PAN)

       NAME BIRTH DATE REFERENCE #
             

   FOLDER LOCATION INFORMATION

CAN/HUN BIC/MFT CATG TITLE CFL CFL DATE ACN

*NOTE:

A SEPARATE SCREENING SHEET MUST BE PREPARED FOR EACH CLAIM NUMBER NOTED ABOVE

PAYEE ADDRESS

 

 

SHIP TO ADDRESS:

Office of Disability Determinations
ATTN: Mr. Robert A. Rumbley
1321 Executive Center Drive, Ashley Bldg.
Suite 100
Tallahassee, FL 32399-6512

SPECIAL INSTRUCTIONS:

IF A CLAIM IS PENDING OR STORED IN OHA HEADQUARTERS OR FEDERAL DISTRICT COURT, THEN SHIP THE ALERT PACKAGE (AND ANY ASSOCIATED CLAIMS FILE(S)) TO:

Office of Hearings and Appeals
Office of Appellate Operations (OAO)
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, Virginia 22041-3200

Attn: OAO Class Action Coordinator

(Case locator code 5007)

IF A CLAIM IS PENDING IN AN OHA HEARING OFFICE, SHIP THE ALERT PACKAGE (AND ANY ASSOCIATED CLAIM FILE(S)) DIRECTLY TO THAT OFFICE

Attachment 3. - Reconstruction Flag

 

Bentley Class Action Case

 

RECONSTRUCTION NECESSARY

   
Claimant's name: _________________    
       
SSN: _________________    

This claimant is a potential Bentley class member. However, a definitive class membership determination can not be made without locating or reconstructing the potential Bentley claim file. An alert on the potential Bentley claim was originally sent to OHA because the SSA Case Control System indicated that a current claim was pending or stored at OHA or because the claimant had a pending civil action. On ____________, we sent your office a memorandum requesting reconstruction (a copy of the memorandum is attached).

OHA has now completed its action on the pending or stored claim and we are forwarding the attached class action material to your office for association with the pending reconstruction request. Upon completion of your reconstruction actions, you will need to forward the class action material, along with the reconstructed file, to the Florida ODD for screening and possible readjudication.

Attachment 4. - Screening Flag — Inside OHA

Bentley Class Action Case

 

SCREENING NECESSARY

   
Claimant's name: _________________    
       
SSN: _________________    

This claimant may be a Bentley class member. The attached folder location information indicates that a current claim file is located 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 5-4-56 for additional information and instructions.

  TO:

__________________________________
__________________________________
__________________________________
__________________________________

     

Attachment 5. - Bentley Screening Sheet

CLASS ACTION CODE:     BT

 

1. CLAIMANT'S SSN:     ___ ___ ___ - ___ ___ - ___ ___ ___ ___

      

2. CLAIMANT'S NAME:     _________________________

  (Please Print)                                       _____ 
                              (Last)                       (First)

 

3. DATE OF BIRTH:      ____/____/____

                                         (MM/DD/YYYY)

 

 

4. CLAIM NUMBER:

     ____-____-____-________

 

(BIC/ID)

___-___

5. DATE OF SCREENING: ___ ___/___ ___/___ ___ ___ ___

                                                           (MM/DD/YYYY)

 

 

6.SCREENING RESULT:

 

___REVIEW (J) REQUIRES   ___ REVIEW (F)


  ____DOES NOT REQUIRE

 

SCREENOUT CODE

    ___ ___(See item 11)

 

7. Was the disability determination(s) on the potential Bentley claim(s) issued by the Florida Office of Disability Determinations (ODD)?

Yes___No___

If No, go to 11.

8. Does the file contain a physical RFC assessment form (SSA-4734) signed by Dr. Juan Martinez-Serra dated June 1, 1992, through June 30, 1993;

             or,

Does the file contain a physical RFC assessment form (SSA-4734) signed by Dr. Robert Miles dated November 1, 1992,through March 1, 1994?

Yes___No___

If No, go to 11.

9.Has a subsequent physical RFC assessment form (SSA-4734), which was signed by another ODD physician/medical consultant, been prepared on the same or another claim number, applicable to the claimant, which covered the entire period of the potential Bentley claim(s)?

Yes___No___

If Yes, go to 11.

10.Did the claimant appeal the prior denial determination on the potential Bentley claim(s), or on a subsequent claim which covered the entire period of the potential Bentley claim(s), on the same or another claim number, to an Administrative Law Judge (ALJ)?

Yes___No___

If Yes, go to 11.

11.SCREENING INFORMATION

If questions 7 and 8, were answered “YES” and questions 9 and 10 were answered “NO,” check (J) “REQUIRES REVIEW,” in number 6. If questions 7 or 8 were answered “NO” or if questions 9 or 10 were answered “YES,” check (F) “DOES NOT REQUIRE REVIEW,” in number 6 and enter the 2-digit screenout code as follows:

Enter 07 if question 7 was answered NO.
Enter 08 if question 8 was answered NO.
Enter 09 if question 9 was answered YES.
Enter 10 if question 10 was answered YES.

12.Enter application dates of ALL applications screened.

     _____________________

     _____________________

     _____________________

These applications were screened under:    

    TII___ TXVI___ BOTH___    

    TII___ TXVI___ BOTH___    

    TII___ TXVI___ BOTH___    

These applications were screened

    IN____ OUT____

    IN____ OUT____

    IN____ OUT____

SIGNATURE OF REVIEWER

 

OFFICE

INSTRUCTIONS FOR COMPLETING BENTLEY SCREENING SHEET

General Instructions: A separate screening sheet must be prepared for each claim number. Make sure the claim number, BIC/ID and SSN, are the same as on the Bentley Case Flag Alert to ensure proper case clearance.

Question 1:

Please fill in the claimant's SSN from BOAN/PAN field on alert.

Question 2:

Print the claimant's name (last name, and first name).

Question 3:

Fill in the claimant's date of birth (month, day, 4-digit year).

Question 4:

Fill in the claim number (social security number) under which this claim is being processed. Include the BIC (Title II)/ID (Title XVI).

Question 5:

Complete the screening date using 2-digit month, 2-digit day, and 4-digit year.

Question 6:

Complete this information last. Do not fill in until the screening process has been completed.

Questions 7-11:

Each of these questions must be answered either “YES” or “NO.” Answer each question in the order in which it appears on the screening sheet. You may leave a question blank only when it has been determined that the claimant is not eligible for review. For example, if question 7 is checked “NO,” go to number 11 and screen out as directed. Once the claimant is screened out, it is not necessary to continue to answer the remaining questions through number 11.

Question 7:

Review the SSA-831-U5 to determine if the individual's claim was denied by the Florida Office of Disability Determinations (ODD). Check block 12 of the SSA-831-U5. If the field office code is A20, C22, C30, 255, 659, 660, 663, or 668, answer this question “Yes” and go to question 8. NOTE: CDR terminations are not reviewed under the Bentley settlement.

Question 8:

Review the file to determine whether the claim involved a physical RFC assessment that was signed by either Dr. Juan Martinez-Serra which was dated June 1, 1992, through June 30, 1993, or a physical RFC assessment that was signed by Dr. Robert Miles which was dated November 1, 1992, through March 1, 1994. NOTE: As Dr. Robert Miles is a psychiatrist, be sure that the RFC assessment used to determine Bentley class membership is a “physical” RFC assessment, not a “mental” RFC assessment.

Question 9:

Review the file to determine if an ODD physician/medical consultant other than Dr. Martinez-Serra or Dr. Miles made a subsequent physical RFC assessment, either on reconsideration or on a later claim, on this or another claim number, covering the entire time period covered in the RFC assessment on the potential Bentley claim.

Question 10:

Review the file to determine if the claimant requested a hearing on the potential Bentley claim, or a subsequent claim filed on this or another claim number which covered the entire period covered in the potential Bentley claim. If such hearing request was filed, answer this question “YES.” Based on the parties' settlement agreement, the filing of a request for an Administrative Law Judge hearing excludes the claim from class relief.

Question 11:

Screening instructions. Self-explanatory.

Question 12:

Enter the dates of ALL the applications that were screened under Bentley. Indicate whether these applications were screened under title II, title XVI, or both. Also indicate whether these applications were screened-in (REQUIRES REVIEW) or screened-out (DOES NOT REQUIRE REVIEW).

IF CLAIM REQUIRES REVIEW

  1. If you checked “YES” to questions 7 and 8 and you checked “NO” to questions 9 and 10, the claim requires review. Go to number 6, and check (J) “REQUIRES REVIEW.”

  2. Sign screening sheet and fill in office code. Retain the original screening sheet in the claim file.

  3. OHA Headquarters components and hearing offices (HOs) will send a copy of the screening sheet to:

    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 will enter the screening sheet information into a data base and forward the screening sheet to the Division of Litigation Analysis and Implementation (DLAI). [DLAI will retain a copy of each screening sheet received from the OAO Class Action Coordinator and forward a copy to Litigation Staff at SSA Central Office for entry into the Civil Action Tracking System.]

  4. Follow HALLEX I-5-4-56, V. B. 4. b.

IF CLAIM DOES NOT REQUIRE REVIEW

  1. If you checked “NO” to question 7 or 8, or you checked “YES” to question 9 or 10, the claim does not require review. Go to number 6 and check (F) “DOES NOT REQUIRE REVIEW.” Fill in the 2-digit screenout code according to the directions given in number 11.

  2. Follow items b. and c. above.

  3. Prepare and send the class membership denial letter (Attachment 7) to the claimant with a copy to his/her representative, if any. Retain a copy of the denial letter in the claim file.

  4. Retain the claim file(s) for the normal retention period, then forward to the appropriate storage location if not otherwise needed.

Attachment 7. - Screening Flag -- Outside OHA

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  

REMARKS

 

Bentley 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 Florida Office of Disability Determinations for screening and possible readjudication. SEE POMS DI 42538.010 OR DI 12538.005A.6.

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. - Notice of Non-Class Membership

SOCIAL SECURITY ADMINISTRATION
Important Information
Name BT Date:
Address        Claim Number:
City, State, Zip DOC:  
     

You asked Social Security to look again at your prior claim for disability benefits. We have looked at your case. You are not eligible for review under the Bentley court case for the reason given below. This means that we will not review your claim.

You are not entitled to review under Bentley because:

___

Your potential Bentley claim(s) was not denied by the Florida Office of Disability Determinations (ODD).

   
___

Your claim file does not contain a physical residual functional capacity (RFC) assessment form (SSA-4734) signed by either Dr. Juan Martinez-Serra dated June 1, 1992, through June 30, 1993; or Dr. Robert Miles dated November 1, 1992, through March 1, 1994.

   
___

You appealed your potential Bentley claim to an Administrative Law Judge of the Office of Hearings and Appeals.

   
___

A subsequent physical RFC assessment form (SSA-4734) was signed by an ODD physician/medical consultant other than Dr. Juan Martinez-Serra or Dr. Robert Miles, on the same or another claim number used by you, which covered the entire period at issue in the potential Bentley claim(s).

   
___

Other (Explain)

____________________________________________________

____________________________________________________

   

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 eligible for review under Bentley v. Chater.

If You Have Any Questions

If you have any questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at ___________. 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 located at:

District 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.

The attorneys who represented the plaintiffs in this case are:

Robert Hornstein
Peter Sleasman
Southern Legal Counsel, Inc.
1229 NW 12th Ave.
Gainesville, FL 32601-4113

Telephone: (352) 955-2144

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

Attachment 9. - Readjudication Flag For OHA Retention Case

 Bentley Class Action Case

 READJUDICATION NECESSARY

Claimant's name: _________________    
       
SSN: _________________    

This claimant is a Bentley class member. We are forwarding the attached claim file(s) to the Florida ODD for readjudication at the following address:

Office of Disability Determinations
ATTN: Mr. Robert A. Rumbley
1321 Executive Center Drive, Ashley Bldg.
Suite 100
Tallahassee, FL 32399-6512

Attachment 10. - Readjudication Flag For Non-Consolidation Cases

 

Bentley Class Action Case

 

READJUDICATION NECESSARY

Claimant's name: _________________    
       
SSN: _________________    

This claimant is a Bentley class member. The attached Bentley 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 Bentley readjudication action.

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

Office of Disability Determinations
ATTN: Mr. Robert A. Rumbley
1321 Executive Center Drive, Ashley Bldg.
Suite 100
Tallahassee, FL 32399-6512

[1]  Pursuant to Pub. L. No. 103-296, the Social Security Independence and Program Improvements Act of 1994, the functions of the Secretary of Health and Human Services (the "Secretary") in Social Security cases were transferred to the Commissioner of Social Security (the "Commissioner") effective March 31, 1995. In accordance with section 106(d) of Pub. L. 103-296, Shirley S. Chater, Commissioner of Social Security, was substituted as the defendant in this action.