|Definitions of the Class|
|Final Order Approving Settlement; Entered by the United States District Court for the District of Nebraska on March 7, 2000|
|Amendment to Settlement Agreement; Entered by the United States District Court for the District of Nebraska on June 9, 2000|
Issued: January 18, 2001
Expiration: No expiration date
This Temporary Instruction advises OHA adjudicators of the Final Order entered by the United States District Court for the District of Nebraska on March 7, 2000, approving the parties' settlement agreement in the Surrell v. Willman class action. The Surrell class action involved alleged deficiencies by the Nebraska Disability Determination Services (DDS) regarding its actions and procedures in processing disability cases.
The final settlement order does not require OHA to process cases any differently. However, we are providing these instructions for informational purposes. Program Operations Manual System instructions have been printed and distributed to advise field office and DDS adjudicators of their responsibilities under the Surrell settlement agreement.
On November 24, 1997, plaintiff filed a class action complaint against the Nebraska DDS and the Commissioner challenging the policies, practices and procedures that the State defendant uses in determining disability for Social Security purposes. Plaintiff also alleged that the Commissioner failed to exercise his oversight authority and to acquiesce in circuit court case law.
Specifically, plaintiff alleged that (1) the DDS did not properly evaluate the claimant's subjective complaints pursuant to 42 U.S.C. § 423(d)(1)(A) and Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), supplemented 751 F.2d 943 (8th Cir. 1984); (2) the DDS did not make an express credibility determination and set forth the inconsistencies in the record that led it to reject the claimant's complaints of pain expressly discussing the Polaski factors; (3) the DDS did not obtain a proper consultative examination and report contrary to the regulations; (4) the DDS failed to utilize the services of a qualified vocational expert in evaluating an applicant's claim contrary to Federal regulations and Eight Circuit case law; and (5) the assessments by the DDS of residual functional capacity did not support an adjudicative conclusion. Plaintiffs requested declaratory and injunctive relief, redeterminations for all class members and monitoring of future State and Federal disability determinations.
On September 4, 1998, the court issued a memorandum and order conditionally denying the Federal defendant's motion to dismiss plaintiff's complaint provided that the complaint was amended within ten days. The court observed that plaintiff had not alleged or argued that she had exhausted her administrative remedies under the Social Security Act but instead argued that waiver of exhaustion should apply. The court then noted that in order to warrant waiver of administrative remedies under 42 U.S.C. § 405(g), plaintiff must show that (1) her claim was collateral to her claim for disability benefits; (2) irreparable injury will follow and (3) exhaustion would be futile. The court found that although plaintiff had satisfied the first prong, she had failed to make any allegations with regard to the second and third prerequisites to waiver of administrative remedies. The order also granted the State defendant's motion to dismiss to the extent that plaintiff sought retroactive money damages and a declaration that the State defendant had violated the law. On September 25, 1998, plaintiff filed an amended complaint which contained allegations regarding the second and third waiver of exhaustion factors.
On February 19, 1999, claimant Tammy Shutt filed a motion to intervene, and, on March 30, 1999, following the approval of her motion, filed an intervenor's complaint. On September 17, 1999, the court issued a memorandum and order denying plaintiff's motion for class certification.
In October 1999, the parties filed a jointly negotiated settlement proposal with the court. The agreement provided relief to all Nebraska residents who have been denied title II and/or title XVI disability benefits because either they received (1) a final reconsideration denial by the Nebraska DDS on or after September 25, 1997 through February 8, 1999 based on certain findings by the Nebraska DDS and did not appeal to an Administrative Law Judge; or (2) a final initial denial by the Nebraska DDS on or after September 25, 1997 through January 1, 2000 based on certain findings by the Nebraska DDS and did not appeal to the reconsideration level.
On December 3, 1999, the court gave its preliminary approval to the parties' settlement agreement and scheduled a fairness hearing. On March 7, 2000, following the fairness hearing, the court issued a final judgment approving the settlement agreement. The agreement became final on May 9, 2000.
Subject to the exclusions in Part III B., Surrell class members eligible to request relief are:
All Nebraska residents who:
received a final reconsideration denial by the Nebraska DDS at step four or five of the sequential evaluation process, on or after September 25, 1997 through February 8, 1999 and did not appeal the reconsideration level denial at issue to an ALJ; and
applied for title II and/or title XVI disability benefits after February 8, 1999 through October 31, 2000 and receive a medical allowance at the reconsideration level; or
received a final initial denial by the Nebraska DDS, at step four or step five of the sequential evaluation process on or after September 25, 1997 through January 1, 2000 and did not appeal the initial level denial at issue to the reconsideration level; and
applied for title II and/or title XVI disability benefits after January 1, 2000 through January 1, 2001 and receive a medical allowance at the initial level;
All Nebraska residents who meet the requirements in Part III A. 1. (first or third bullets) and
who were receiving title II and/or title XVI disability benefits on May 9, 2000; or
have a claim for title II and/or title XVI disability benefits pending at any administrative level or in Federal court on May 9, 2000, and subsequently receive a medical allowance on that claim; or
apply for title II and/or title XVI disability benefits within one year after May 9, 2000 and receive at the reconsideration level, a res judicata denial based on the prior denials in Part III A. 1. (first bullet) or at the initial level, a res judicata denial based on the prior denial(s) in Part III A.1. (third bullet).
A person is not a Surrell class member eligible for relief if he or she:
has already received a final subsequent award of benefits with respect to the same period of time at issue as the denial in Part III A. 1. (first or third bullets);
has received a determination on reconsideration from the Nebraska DDS after February 8, 1999 covering the same period of time as the denial in Part III.A.1. (first bullet); or
has received an initial determination from the Nebraska DDS after January 1, 2000 covering the same period of time at issue as the denial in Part III. A. 1. (third bullet); or
appealed, or appeal all of their reconsideration denials to an ALJ, the Appeals Council or to court; or
applied for title XVI childhood disability benefits; or
are not eligible for reasons unrelated to disability.
At the OHA level, the Surrell settlement agreement does not require any difference in the processing of class member claims. OHA should follow normal processing and adjudication procedures. In addition, unlike other class action processing instructions, OHA does not have any screening responsibilities pursuant to the settlement agreement and the consolidation of Surrell claims with subsequent claims should not arise.
If the potential class member has a claim pending at any administrative level or in Federal court on May 9, 2000, and that claim is subsequently allowed, the potential class member will later be sent a notice inquiring as to whether he or she wishes to request review of their Surrell claim(s). The potential class members will have their claim(s) reviewed under the terms of the Surrell settlement agreement. The notice will include a reply card to request the redetermination.
Hearing Office 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) 605-8530. OHA Headquarters personnel should contact the Special Counsel Staff at (703) 605-8250.
1 — Final Order Approving Settlement; Entered by the United States District Court for the District of Nebraska on March 7, 2000
2 — Amendment to Settlement Agreement; Entered by the United States District Court for the District of Nebraska on June 9, 2000