I-5-4-11.Johnson, et.al., v. Sullivan

Attachment 1. Final Judgment Order dated April 3, 1991

[Date Filed 04/3/1991]

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

FINAL JUDGEMENT ORDER

This case comes before the Court on remand from a unanimous en banc decision of the court of appeals. Johnson v. Sullivan, 922 F.2d 346 (7th Cir. 1990), directing, inter alia, “[t]he implementation of relief for those who qualify . . . [to] begin and begin immediately.” Id. at 357. In conformity with the court of appeals' directions, it is hereby ORDERED, ADJUDGED, AND DECREED that:

1. As used herein, the following terms have the meanings indicated:

   1. “Class Members” means the class of persons defined as:

      1. All persons in Illinois who are filing or have filed applications for disability benefits under Title II and/or Title XVI of the Social Security Act whose benefits (on or after February 26, 1979) have been or are being denied pursuant to the practices applied under 20 C.F.R. § § 404.1520(c) and .1522 (1983), 416.920(c) and .922 (1983), and Social Security Rulings cum ed. 82-55, 82-56 (1982), if such persons had claims for those benefits pending at any level of the administrative process (at the initial claims level, on reconsideration, before an Administrative Law Judge, or before the Appeals Council) on or after June 12, 1983, or had fully exhausted their administrative remedies pursuant to 20 C.F.R Part 404, Subpart J, or Part 416, Subpart N, prior to June 12, 1983.

      2. All recipients of disability benefits under Title II and/or Title XVI of the Social Security Act who (on or after February 26, 1979) have made claims for continued benefits (through participation in a Continuing Disability Interview), and whose benefits have been or are being terminated pursuant to the practices specified in paragraph 1(a) (i), if such recipients had claims for such continued benefits or claims that their benefits should not have been terminated pending at any level of the administrative process (at the initial claims stage, at the reconsideration stage, before an Administrative Law Judge, or before the Appeals Council) on or after June 12, 1983 or had fully exhausted their administrative remedies pursuant to 20 C.F.R. Part 404, Subpart J, or Part 416, Subpart N, prior to June 12, 1983.

   2. “Secretary” or “defendant” means the defendant Secretary of Health and Human Services.

   3. “SSA” means the Social Security Administration.

   4. “BDDS” means the Illinois Bureau of Disability Determination Services.

   5. “DDS” means any state disability determination service unit (other than BDDS) having jurisdiction over the redetermination of a class member's claim under 3 infra, or other state or federal entitiles designated by SSA to have such jurisdiction.

   6. “disability benefits” means benefits paid under Title II and/or XVI of the Social Security Act, to persons who were or are eligible for them, because they were or are disabled within the meaning of the Act.

   7. “SSA administrative decision” means any decision on a claim when rendered by an SSA administrative unit or decision maker, including BDDS (or any DDS), an Administrative Law Judge (ALJ), or the Appeals Council.

   8. “redermination class members” mean:

      1. class members (as defined in paragraph 1 (a) supra) who claimed to be or were suffering from multiple “nonsevere” or “severe” impairments and:

         1. whose de novo applications for disability benefits were denied at the severity step of the sequential evaluation process by any SSA administrative decision between August 20, 1980 and May 1, 1985 inclusive, or;

         2. whose previously awarded disability benefits where terminated at the severity step of the sequential evaluation process by any SSA administrative decision between August 20, 1980 and May 1, 1985 inclusive, or;

         3. whose claims for disability benefits were denied or terminated at the severity step of the sequential evaluation process by the BDDS between February 26, 1979 and August 19, 1980 inclusive, if they were listed by the BDDS under listing code 922.

      2. Under the definition in paragraph 1(h) (i) no person otherwise a redetermination class member shall be deemed not such a class member because: he appealed any denial or termination of a claim (within the administrative appeals process, or to the federal courts); or the time for such an administrative appeal lapsed on or after June 12, 1983 and such an appeal was not taken; or the time for taking a judicial appeal under 42 U.S.C. § 405(g) lapsed and an appeal was not taken; or based on a later application, he was found eligible for disability benefits for a period of time later than that with respect to which his benefits were initially denied or terminated; or he failed to allege multiple impairments but the evidence establishes the existence of more than one impairment; or he received a judicial decision on his claim.

      3. Under the definition in paragraph 1(h) (i), a person who would otherwise be a redetermination class member because a particular claim was denied or terminated at the severity step of the sequential evaluation process is not such a member if:

         1. the last SSA administrative denial or termination he received respecting that particular claim was based on any step of the sequential evaluation process other than the severity step; or

         2. he received an SSA administrative decision on a subsequent claim for disability benefits that reopened an earlier severity denial or termination of that claim, which decision determined entitlement to benefits for a period beginning no later than the first date with respect to which his eligibility would otherwise be redetermined under this order, and either the last SSA administrative denial on the subsequent claim was based on any step of the sequential evaluation process other than the severity step, or the last administrative denial on the subsequent claim was based on the severity step of the sequential evaluation process, but the denial came after May 1, 1985.

   9. “responding claimants” means the persons on whose behalf the election forms described in paragraph 3(a) and (b) infra are returned to SSA.

   10. “claims” when used in connection with “redetermination class members” means such class members' applications for disability benefits under Titles II and/or XVI of the Social Security Act, or their claims for continuing disability benefits under Titles II and/or XVI of the Act, or any request for disability benefits to which they may be entitled under this order.

   11. “redetermination” or “redetermine” when used in connection with “claims” and/or “redetermination class members” means:

       1. for a redetermination class member whose Title XVI application was denied or whose Title XVI benefits were terminated, a new determination by BDDS (or an appropriate DDS) on the class member's claim, the new determination to establish eligibility vel non for disability benefits for the entire period from the date of the class member's Title XVI application (that was denied) or from the date of the termination Title XVI benefits, to the date the new determination decision is made (and thereafter until eligibility ends). “Redetermination” also includes the issuance of a written decision explaining the result of the determination to the individual claimant (whose claim has been redetermined) and to his designated representative (if any);

       2. for a redetermination class member whose Title II application was denied or whose Title II benefits were terminated, a new determination by BDDS (or an appropriate DDS) on the class member's claim, the new determination to establish eligibility vel non for disability benefits for the entire period from the seventeenth month prior to the date of the Title II application or from the date of termination of Title II benefits (or date of alleged onset, which is later, to the date the redetermination decision is made (and thereafter until eligibility ends). “Redetermination” also includes the issuance of a written decision explaining the result of the determination to the individual claimant (whose claim has been redetermined) and to his designated representative (if any);

   12. “retroactive benefits” when used to refer to the payment of disability benefits to “redetermination class members” means the payment of disability benefits to such persons for all periods from February 26, 1979 inclusive to the date of the redetermination decision, provided that they are eligible for them, as determined by the redeterminations required by paragraphs 3, 4 and 9 of this order,

   13. “sequential evaluation process” means the process for determining eligibility for disability benefits described in 20 C.F.R. §§ 404.1520 and 416.920, and the “severity step” is the step of that process described at 20 C.F.R §§ 404.1520(c) and 416.920(c);

   14. “combination criteria” means the following statutory eligibility criteria:

       In determining whether an individual's physical or mental impairments are of sufficient medical severity that such impairment or impairments could be the basis of eligibility ... [for disability benefits], the Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairments, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairment shall be considered throughout the disability determination process.

       42 U.S.C. § 423(d)(2)(C);

2. Within 30 days of the entry of this Order, the Secretary, through the use of SSA's automated data base, shall complete identification of the persons who may be redetermination class members (and verify the list of such persons).

3. SSA administrative decisions made prior to May 2, 1985 upon the claims of responding claimants determined to be redetermination class members are vacated, and the Secretary shall make redeterminations (reopening if necessary) of the claims of all such responding claimants who are determined to be redetermination class members. In making these redeterminations, and on appeals from adverse redeterminations (see paragraph 9 infra), the sequential evaluation process, including the Act's combination criteria, shall be employed. The Secretary shall be entitled to verify that redetermination class members meet all the nondisability related eligibility criteria for payment of disability benefits. The procedure governing the conduct of such redeterminations (including the procedure for notifying claimants of such redetermination decisions and appeal rights, and for paying benefits owed) shall be as follows:

   1. No later than sixty (60) days after the entry of this order, the Secretary shall send to each person who has been identified as a redetermination class member whose de novo application for disability benefits was denied the notice attached hereto as Exh. A-1. (Such notices shall be sent by first class mail, postage prepaid, and to such class member's last known address). With the Exh. A-1 notice, defendant shall provide Exh. A-2, which, as printed, shall be an election form by which the election described in Exh. A-1 notice may be made. The election form shall either be accompanied by a pre-addressed postage pre-paid envelope in which the election form can be returned to SSA, or it will itself be returned to SSA, or it will itself be returnable to SSA as a postage prepaid postcard. The pre-addressed envelope or postcard, which is used, shall be pre-addressed to a single location (as opposed to various SSA local offices).

   2. Not later than sixty (60) days after the entry of this order, the Secretary shall send to each person who has been identified as a redetermination class member whose previously awarded disability benefits were terminated, the notice attached hereto as Exh. B-1. (Such notices shall be sent by first class mail, postage prepaid, and to such class member's last known address). With the Exh. B-1 notice, defendant shall provide Exhibit B-2, which, as printed, shall be an election form by which the election described in Exh. B-1 notice may be made. The election form shall either be accompanied by a pre-addressed postage prepaid envelope in which the election form can be returned to SSA, or it will itself be returnable to SSA as a postage prepaid postcard. The pre-addressed envelope or postcard, whichever is used, shall be pre-addressed to a single location (as opposed to various local SSA offices).

      1. Redetermination class members who return a completed Exh. B-2 election form may elect to have their benefits reinstated (as described in the Exh.B-1 notice), following completion of one of the applicable forms attached as Group Exh. C hereto. (SSA will contact the redetermination class member respecting completion of this form as soon as possible after that class member's claims file is retrieved or reconstructed, but in no event later than thirty (30) days after his claims file is retrieved or reconstructued). However, if a redetermination class member reports, or SSA becomes aware of, current work activity, SSA will secure a statement from him regarding his work activity, the amount of monthly wages, and any other pertinent information pertaining to his employment. Except as provided in section 1619 of the Social Security Act, 42 U.S.C. § 1382h, reinstated (interim) benefits shall not be payable for any month for which earnings are at or beyond the substantial gainful activity level. If interim benefits are not payable for that reason, then defendant shall notify the individual denied such benefits of that fact, and the reason for the denial. Defendant will also inform that individual that if he has any questions, he may contact a social security office, or plaintiffs' counsel (whose names, address, and phone number will be provided).

      2. The Secretary shall make all good faith efforts to reinstate benefits to a redetermination class member within forty-five (45) days after the claims file of such a class member is retrieved (provided that he is determined to be entitled to such benefits), or, if such a class member's claims file is lost, the Secretary shall make all good faith efforts to reinstate benefits to him within forty-five (45) days of the expiration of the four-month period specified in paragraph 3(d) infra. Benefits shall be reinstated in an amount equal to the amount reinstated class members would then be receiving, including subsequent cost-of-living increases, had their benefits never been terminated, and effective with the date that SSA received the Exh. B-2 election form from the redetermination class member. The payment of such reinstated benefits shall continue from month to month until there has been an ALJ determination that the individual whose benefits have been reinstated is not currently eligible for benefits, or until there has been an earlier SSA administrative decision that the individual is not currently eligible for benefits, and that decision became final because the individual did not appeal.

   3. Persons sent notices pursuant to subparagraphs (a) and (b) who do not respond to the notices within sixty (60) days of the day they receive them, as provided therein, shall be given the opportunity to show good cause for such failure to respond pursuant to 20 C.F.R. §§ 404.909, 404.911, 416.1409, 416.1411.

   4. On a schedule to be determined by SSA (that shall be consistent with achieving compliance with the requirements of paragraph 3(e)(ii) infra) SSA shall generate computer alerts showing the processing center having jurisdiction over the claim of redetermination class members, and shall arrange for retrieval of the claims files of such class members. The first computer alerts generated shall call for the claim files of all responding claimants whose benefits have been terminated. Defendants shall begin reconstructing the claim file of any redetermination class member whose file cannot be located within four (4) months after a computer alert has been generated for the claim file of that individual. Redetermination class members whose files are being reconstructed shall be notified of that fact, and shall, consistent with applicable regulations, submit documentary evidence to SSA that will assist defendant in reconstructing the file and that might support their claim.

   5. Defendant, by BDDS (or the DDS to which a responding class member's case file has been sent), shall:

      1. screen all files to determine if the responding class member is a redetermination class member. Defendant shall mail (by first class mail postage prepaid) to any individual whom he determines is not a redetermination class member a notice, the form of which is attached hereto as Exh. D. A copy of the completed notice will be sent to plaintiffs' counsel. Within forty-five (45) days of plaintiffs' attorneys' subsequent request, or within some other mutually agreed upon time, the Secretary shall make available that individual's claims file to plaintiffs' counsel at some mutually agreed upon location or locations. If plaintiffs' attorneys' review of the file thereafter establishes that there is a dispute between the parties as to whether an individual is a redetermination class member, counsel for plaintiffs and defendant (or their designees) shall seek to resolve such dispute by negotiation; provided, however, that both plaintiffs and defendant shall each designate one or more persons to represent them in the negotiations, which individual(s) shall have final authority to settle such disputes. Either party may submit any unresolved dispute to the court for resolution, by a duly noticed motion;

      2. Redetermine the claims of all responding claimants who have been determined to be redetermination class members, based on the evidence in their claims files; provided, however, that in making such redeterminations the Secretary is obliged to develop and redetermination class members shall provide evidence respecting such class members' claims in accordance with the requirements of: 20 C.F.R. §§ 404.1512, 404.1514, 404.1517, 404.1614; 20 C.F.R. §§ 416.912, 416.914, 416.917, 416.1014, and include such evidence in the case file. Defendant, by the BDDS and any DDS making redeterminations, shall make a good faith effort to complete the redetermination of all redetermination class members entitled to redetermination of their eligibility under this order within two years after the date the notice required by subparagraphs (a) and (b) are first mailed, and shall further make a good faith effort to complete such redeterminations at an average rate of at least eight hundred (800) a month for a two-year period beginning with the first full calendar month sixty (60) days after such notices are first mailed; provided, however, that if the Secretary is required to complete more than 21,000 redeterminations under this order, then he shall notify plaintiffs' counsel of that fact in writing promptly after he ascertains it. Counsel for the parties shall thereafter attempt to agree upon what additional time, if any, beyond the two-year period the Secretary shall be allowed to complete all the redeterminations he must complete. If no agreement can be reached after a one hundred twenty (120) day period of negotiation, during which time either party may take discovery, then either party may, by motion, submit the matter to the court for its resolution.

      While any DDS is permitted to conduct redeterminations pursuant to this order, at least seven hundred (700) of the total number of redeterminations conducted pursuant to this order each month, or a majority of the total redeterminations conducted pursuant to this order each month, whichever is less, must be done by the BDDS.

   6. If an individual is a redetermination class member by virtue of a claim for disability benefits with respect to which there is a pending action in federal court, he may elect to have his case remanded to the BDDS or to the DDS of the state in which he resides for a redetermination identical to the ones required for other redetermination class members, subject to the approval of the court. Defendant shall notify such class members of the opportunity they have to make such an election, and provide a written form by which such an election may be made. If such an election is made, defendant shall move the court to, or agree to, a remand of the case. Defendant shall make a good faith effort to complete the redetermination of a redetermination class member whose case has been remanded from a federal court within four (4) months of the date that defendant receives a copy of the remand order.

   7. Redetermination class members whose eligibility for benefits is redetermined by BDDS (or a DDS) pursuant to subparagraphs (a)-(f), and who are determined eligible for retroactive benefits, shall be paid such benefits for all periods for which they are determined eligible for them, pursuant to paragraph 6 infra.

4. Notwithstanding the requirements of paragraph 3 supra, the Secretary is not required to send notices to or redetermine the eligibility of any redetermination class member who is dead and who:

   1. does not have (as of the date he is determined to be a redetermination class member) a “living with eligible spouse” or “eligible parent,” as described in 20 C.F.R. § 416.542(b); and

   2. between February 26, 1979 and May 1, 1985 inclusive, made application for disability benefits only under Title XVI (as opposed to Title II) of the Social Security Act, or was a recipient of disability benefits only under Title XVI (as opposed to Title II). Redeterminations must be made for all other responding claimants who are determined to be redetermination class members, even if such class members are dead.

5. Any overpayment that results from the ultimate determination of the claim of a redetermination class member whose benefits were reinstated under paragraph 3(b) shall be subject to waiver consideration under 42 U.S.C. § 423(g)(2)(B). No payment to a redetermination class member shall be considered an overpayment, however, unless SSA has determined that the individual allegedly overpaid was ineligible for disability benefits for the months with respect to which the alleged overpayments were made.

6. The Secretary shall grant retroactive disability benefits to all redetermination class members for all periods that such persons (upon the redetermination of their eligibility under paragraphs 3, 4, and 9) are found eligible for them. The Secretary shall make all good faith efforts to pay such retroactive benefits within sixty (60) days after the determination of eligibility is made in the individual claimant's case. If the Secretary determines that the redetermination class member to whom retroactive benefits would be paid is dead, then payment of such benefits shall be made in accordance with the underpayment requirements of 20 C.F.R. §§ 404.503, 416.542.

7. With respect to the notices required by paragraph 3(a) and (b) that are returned to the Secretary as undelivered, he shall immediately remail them by first class mail. For those notices returned a second time as undeliverable, the Secretary shall identify the individuals to whom those notices were sent, and then use procedures set forth in SSA Program Operations Manual Systems (“POMS”) procedures to determine the current whereabouts of that class member. Before employing such POMS procedures, defendant shall attempt to establish a procedure for securing from Illinois Department of Public Aid the last known address (if any) that agency may have for that individual. If that address is a later address for the redetermination class member than that initially utilized by the Secretary, then he shall use that later address in seeking to direct such notice. If, after taking the steps required under this paragraph, the Secretary determines the whereabouts of a redetermination class member whose paragraph 3 notice was returned as undelivered, he shall send him a new notice comparable to the first notice. The time within which a redetermination class member sent such a second notice shall be required to make an election shall, however, run from the date this new notice is sent to him.

8. The Secretary shall ensure that a blank copy of the form of any SSA notices related to this case that SSA plans to send or give to redetermination class members, shall be received by plaintiffs' counsel at least twenty-one (21) days prior to the date notices will be sent or given, unless plaintiffs' counsel waives the twenty-one (21) day period in writing. Provision of these notices to plaintiffs' counsel is intended to afford them the opportunity to comment upon such notices, before they are printed.

9. The Secretary, by BDDS or by the DDS making the redetermination, shall notify redetermination class members (and their designated representatives, if any) of favorable and unfavorable decisions made by the BDDS or DDS in their cases, pursuant to paragraph 3 supra. Such notices shall: contain an explanation of the reasons for the decision if less than completely favorable, and appeal rights; inform the redetermination class members that they may submit additional evidence, on appeal, in support of their claim; inform them that if they wish further information they may contact a local social security office, their own representative, or the attorneys for the class (whose names, address, and phone number shall be given); inform them that the attorneys for the class may be able to represent them without charge in prosecuting their appeal; inform them that they have sixty (60) days from the date the notice is sent to them to request an Administrative Law Judge hearing. Individuals sent such notices shall have full rights to seek timely administrative and judicial review of the redetermination decision made pursuant to paragraph 3, 4, and 9 herein, under 20 C.F.R. Part 404, Subpart J. and Part 416, Subpart N, and 42 U.S.C. §§ 405(g), 1383(c).

10. Nothing in this order shall be construed as precluding defendant from employing the quality assurance review procedures set forth in 42 U.S.C. § 421(c)(3) in any class member's case, to the extent defendant deems that appropriate. Nothing in this order shall be construed as precluding class members from obtaining greater relief on alternative grounds. Nothing in this order shall be construed as precluding class members who choose to proceed with their individual court cases from seeking relief in those cases.

11. The Secretary shall:

    1. within thirty (30) days of the entry of this order, issue a teletype to all SSA offices (including BDDS and any appropriate DDS) having responsibilities under this order, which teletype shall provide relevant information relating to the terms of this order needed by SA offices;

    2. Within one hundred fifty (150) days from the entry of this order, issue directives and instructions designed to ensure full compliance with it.

12. The Secretary shall:

    1. provide plaintiffs' attorneys with copies of all teletypes, instructions, directives, transmittals, agency letters, and like documents issued by SSA to describe this order to SSA field offices (including Regional Offices, District Offices, Quality Assurances offices, BDDS or any state DDS with responsibilities under this order), or to effect compliance with this order, just as soon as those documents are issued;

    2. serve upon plaintiffs' attorneys a statement that the mailing of the notices required by paragraph 3(a) and (b) supra has been completed. The statement shall also specify the total number of such notices mailed. The statement shall be served within one (1) week after the mailing has been completed;

    3. serve upon plaintiffs' attorneys, within ninety (90) days after the mailing of the notices required by paragraph 3(a) and (b) supra has been completed, a statement attesting to the number of such notices returned a second time as undelivered, and the number of responding claimants;

    4. serve upon plaintiffs' attorneys a report for each six-month period beginning with the first full month after the date of entry of this order and ending when all relief hereunder has been provided, stating, for that six-month period:

       1. the number of responding claimants given notice that they have been screened out of the class, pursuant to paragraph 3(e)(i) supra;

       2. the number of responding claimants whose benefits have been reinstated pursuant to paragraph 3(b) supra;

       3. the number of responding claimants determined eligible for benefits upon redetermination (for part or all of the redetermination period), and the number determined ineligible upon redetermination (for part or all of the redetermination period), and the number of such claimants determined ineligible whose benefits had previously been reinstated pursuant to paragraph 3(b) supra;

       4. the number of redetermination class members the Secretary has determined he cannot locate, pursuant to paragraph 7 supra.

          The reports required by this subparagraph shall be filed and served not later than thirty (30) days after the close of the six-month period with respect to which the individual report is prepared.

13. The Secretary may petition the court at any time for relief from any one or more of the provisions of paragraph 12 supra. Such relief shall be granted upon a showing made by the Secretary and a determination of the court that the implementation of this order is proceeding smoothly and that the information called for in the particular provision or provisions from which the Secretary seeks relief is no longer required to determined that the Secretary is fully and expeditiously complying with the provisions of this order.

14. This order constitutes a final judgment order. The issue of plaintiffs' entitlement to attorneys' fees and costs is reserved. Plaintiffs' entitlement to attorneys' fees and costs is reserved. Plaintiffs shall file an appropriate petition for fees within the time permitted by the Equal Access to Justice Act, 28 U.S.C. § 2412. Plaintiffs may file a bill of costs when they file their petition for fees, their time to file the bill being thereby extended.

15. Nothing in this order, and no agreement as to form that this order reflects, shall be construed to limit any party's right to pursue, in the appropriate court, a stay of the order or an injunction pending appeal or an appeal.

16. This court shall retain continuing jurisdiction over this case to enforce the terms of this order, or to entertain motions seeking to modify its terms.

IT IS SO ORDERED:

Attachment 2. JOHNSON COURT CASE FLAG/ALERT

                   TITLE: 

       CATEGORY:

    REVIEW OFFICE     PSC 
    MFT    DOC 
     ALERT DATE

    BOAN OR PANNAME

              CAN 

OR 
HUN           RESP 
DTETOE

    FOLDER LOCATION INFORMATION

TITLE CFL   CFL 
DATE    ACN             PAYEE 

ADDRESS

    REVIEWING OFFICE ADDRESS:

    Department of Rehabilitation 
Services

    Bureau of Disability Determination 
Services

    100 N. First Street

    Springfield, IL 62702

    ATTN: Johnson Screening 
Unit

    IF CLAIM IS PENDING OR STORED IN OHA, THEN SHIP 
TO:

    Office of Hearings and Appeals

    Office of Appellate Operations 
(OAO)

    One Skyline Tower, Suite 701

    5107 Leesburg Pike

    Falls Church, VA 22041-3200

    ATTN: OAO Class Action Coordinator

    (Case locator code 5007)

Attachment 3. Route Slip or Case Flag for Screening

Johnson Class Action Case

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

Please refer to HALLEX Temporary Instruction 5-411 for additional information and instructions.

TO: ______________________________

        ______________________________

        ______________________________

        ______________________________

Attachment 4. Johnson Screening Sheet

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

REMARKS

JOHNSON CASE

Claimant: ___________________________

SSN: ________________________________

OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the Illinois DDS for screening and possible readjudication. SEE POMS DI 42531.005 OR DI 12531.10

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

OPTIONAL FORM 41 (Rev. 7-76)

*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA

FPMR (41 CFR) 101-11.206

Attachment 6. Johnson Non-Class Membership Notice

You asked Social Security to look again at your claim for disability benefits. We have looked at your case. You are not a member of the Johnson class for the reason given below. This means that we will not review your claim.

A copy of this letter is being sent to attorneys for the class. If you think we are wrong, you should write class counsel right away at the address shown below. You have 45 days from the date you receive this notice to let class counsel know you disagree with our reason as to why you are not a class member, so do not wait. They will answer your questions about class membership without charge. The names, address and telephone number of these attorneys are:

REASON FOR UNFAVORABLE DECISION

You are not a Johnson class member because:

We Are Not Deciding If You Are Disabled

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not a Johnson class member.

If You Are Disabled Now

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

If You Have Any Questions

If you have questions, you should call, write or visit any Social Security office. Most questions can be answered by telephone. If you visit a Social Security office, please bring this letter with you. It will help us answer your questions.

Esta es una notificacion importante que le dice usted puede tener derecho a una compensacion monetaria debido a incapacidad. Si usted no entiende esta notificacion, por favor haga que esta sea traducida immediatamente.

cc:

Attachment 7. Route Slip for Non-Class Membership Cases

REMARKS

JOHNSON CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Johnson class member. (See screening sheet and copy of non-class membership notice in the attached claim folder(s).) SEE POMS DI 12531.005 and 32531.005

DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.

OPTIONAL FORM 41 (Rev. 7-76)

*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA

FPMR (41 CFR) 101-11.206

Attachment 8. Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.”

During the past few months, the Office of the General Counsel (OGC) has requested voluntary remand in a number of cases, denied by the Secretary at step two of the sequential evaluation, on the grounds that the decisions have not been fully consistent with SSA policy and the Supreme Court's opinion in Bowen v. Yuckert, 482 U.S. 137 (1987).

Despite the Yuckert decision, extensive litigation, both in individual cases and in significant class actions, continues on the issue of how the Agency applies the step two standard expressed in Social Security Ruling (SSR) 85-28. Because the courts continue to give step two denials close scrutiny, I am asking all adjudicators and decision writers to carefully review SSR 85-28 to ensure that they are applying the proper standard for adjudicating claims at step two.

In accordance with SSR 85-28, a step two denial is appropriate only in very limited situations. The evidence must establish that the claimant's impairment, or combination of impairments, is so slight that it does not have more than a minimal effect on the individual's ability to perform basic work activities. When the medical evidence is inconclusive and does not clearly establish the effect of a claimant's impairment(s), or when the evidence shows more than a minimal effect, the claim may not be denied at step two.

Decisions denying claims at step two must include a comprehensive analysis of all the evidence of record and a decisional rationale consistent with SSR 85-28. Even when the medical evidence of record clearly fails to establish that the claimant has more than a slight mental or physical abnormality, the decision must clearly show that the adjudicator evaluated all the evidence and must articulate the reasons for finding that the impairment(s) is not severe. Furthermore, when the claimant has a medically determinable impairment(s) which might reasonably be expected to cause pain or other symptoms, the decision must include an evaluation of the claimant's subjective complaints using the factors outlined in SSR 88-13 or its equivalent, i.e., SSR 90-1p for Fourth Circuit cases.

If hearing office personnel have questions or need copies of applicable instructions, they should contact the appropriate Regional Office. Regional Office personnel should direct their questions to the Division of Field Practices and Procedures, Office of the Chief Administrative Law Judge.

/s/

Attachment 9. Johnson Class Member Flag for Headquarters Use (DDS Readjudication)

Johnson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Johnson class member. After expiration of the retention period, forward claim folder(s) to the Illinois DDS for readjudication.

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

Send folders to:

Attachment 10. Johnson Cases Member Flag for HO Use (DDS Adjudication)

Johnson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

This claimant is a Johnson class member. The attached Johnson claim folder was forwarded to this hearing office for possible consolidation with a current claim.

Accordingly, we are forwarding the attached alert and prior claim folder(s) to your location for any necessary Johnson readjudication action.

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

Attachment 11. ALJ Dismissal to DDS

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

This case is before the Administrative Law Judge pursuant to a request for hearing filed on _________________ with respect to the application(s) filed on _________________.

In accordance with an order of the United States District Court for the Northern District of Illinois in the case of Johnson, et al. v. Sullivan, No. 83 C 4110 (N.D. Illinois April 3, 1991), the claimant has requested reopening and revision of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Johnson class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Johnson final judgment order. Because the claimant's current claim shares certain common issues with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the Illinois Disability Determination Service which will conduct the Johnson readjudication.

The disability determination service will notify the claimant of its new determination and, if unfavorable, give notice of the claimant's right to file a new request for hearing.

Attachment 12. Notice Transmitting ALJ Order of Dismissal

NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the Illinois Disability Determination Service which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge has sent your current claim and your Johnson class member claim back to the Illinois Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

The Illinois Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the Illinois Disability Determination Service within 30 days, contact your local Social Security office.

Do You Have Any Questions?

If you have any questions, contact your local Social Security office. If you visit your local Social Security office, please bring this notice and the Administrative Law Judge's order with you.

Enclosure

cc: (Name and address of representative, if any)

(Social Security Office (City, State))