I-5-4-13.Stieberger v. Sullivan

Table of Contents
I	Purpose
II	Background
III	Guiding Principles
IV	Stieberger Procedures For Application of Holdings in Published Second Circuit Disability Decisions
V	Definition of the Class, Class Members Entitled to Reopening
VI	Receipt of Requests for Reopening from Potential Class Members
VII	Determination of Entitlement to Reopening and Preadjudication Actions
VIII	Processing and Readjudication
IX	Case Coding
X	Inquiries
Attachment A	Judgment Approving Settlement Dated June 19, 1992 as Modified July 29, 1992, by Stipulation and Order
Attachment 1
Attachment 2
Attachment 3
Attachment B	July 2, 1992 Teletype From the Director, Litigation Staff, Office of the Deputy Commissioner for Program
Attachment C	Manual of Second Circuit Disability Decisions
Attachment D	Acknowledgment of Request for Stieberger Review
Attachment E	Stieberger Court Cause Flag/Alert
Attachment F	Notice of Non-Entitlement to Stieberger Reopening
Attachment H	Stieberger Supplement
Attachment I	Corroboration of Stieberger § 10(e)(5)(i)-(ii) Conditions Worksheet
Attachment J
Attachment K	Stieberger Payment Period Examples
Attachment L	Examples of Stieberger Cessation Case Readjudication Considerations and Guidance as to Whether an SSA-831 or SSA-833 is Proper
Attachment M	Flag for Forwarding Prior Claim to DDS When the ALJ or Appeals Council Finds There Are No Common Issues for Consolidation
Attachment N	Flag for Forwarding Prior Claim to DDS when the Appeals Council Intends to Dismiss, Deny Review, or Issue a Denial Decision on the Current Claim
Attachment O	Parties' Stipulation for Remanding Court Case to SSA for Stieberger Review
Attachment P	Order of the Appeals Council Remanding Court Case to ALJ

ISSUED: February 21, 1997

I. Purpose

This Temporary Instruction (TI) provides specific OHA instructions for implementing the June 19, 1992 judgment approving settlement, as modified July 29, 1992, of the United States District Court for the Southern District of New York in the Stieberger v. Sullivan class action involving the issue of acquiescence in Second Circuit disability decisions when adjudicating the disability claims of New York State residents.

Adjudicators throughout the country must be familiar with this TI because Stieberger class members entitled to reopening who now reside outside of New York State must have their cases processed in accordance with the requirements of the court's order.

II. Background

This section provides general information on the history of the Stieberger class action litigation plus some general information about the settlement.

On August 19, 1985, the United States District Court for the Southern District of New York certified a statewide class of New York State residents (see Part V. below for class definition). The class action challenged the Secretary's1 acquiescence policies with regard to published decisions of the United States Court of Appeals for the Second Circuit that address the issue of whether an individual is disabled or that address the standards or procedures for making such determinations. The class action also challenged the Secretary's policies and practices concerning own motion review of decisions of selected Administrative Law Judges (ALJs).

Also on August 19, 1985, the district court granted, in part, the preliminary relief sought by plaintiffs. OHA issued TI 5-4-13 (originally designated Interim Circular No. 187) to comply with that order. Subsequently, OHA issued Supplement A on October 23, 1985, to give further instructions concerning the Second Circuit's decision in Bluvband v. Heckler, 730 F.2d 886 (1984). On March 26, 1986, OHA issued Supplement B concerning the Second Circuit's decision in Moore v. Secretary of Health and Human Services, 778 F.2d. 127 (1985).

On September 6, 1986, the Second Circuit vacated the district court's preliminary injunction on the ground that the relief granted in Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986), had removed the necessity for the injunction.

On May 29, 1990, the district court found that SSA was bound by the holdings of the courts of appeals in adjudicating subsequent cases in the same circuit and had engaged in an unlawful policy of “nonacquiescence.” Stieberger v. Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990).

The court held that SSA had “nonacquiesced” with respect to four specific holdings of the Second Circuit. In addition to the general treating physician rule set out in the Court of Appeals' second decision in Schisler v. Heckler, 851 F.2d 43 (2d Cir. 1988), the other nonacquiescence findings involved the Second Circuit's holdings to the effect that: 1) a disability decision cannot be based upon a report obtained after a hearing before an ALJ if the claimant against whom the report is introduced is not given an opportunity to cross-examine the author(s) of the report; 2) an ALJ may accord his personal observations of the claimant's physical and mental condition only limited weight in deciding the substantive issues in the case; and 3) the testimony of a claimant with a good work record claiming an inability to work because of a disability is to be deemed substantially credible. The court granted plaintiffs' motion for summary judgment to the extent it related to those particular holdings.

The court found that plaintiffs had not established “nonacquiescence” with regard to certain other holdings of the Second Circuit. The court denied plaintiffs' motion for summary judgment without prejudice to the extent that it related to the Second Circuit's holdings that: 1) a finding that the witness is not credible must be set forth with sufficient specificity to permit intelligible plenary review of the record; 2) the determination of another government agency that a claimant is disabled, while not binding upon SSA, is entitled to some weight and should be considered; and 3) a conclusory opinion by a pro se claimant's treating physician cannot be rejected unless the ALJ informs the claimant of his proposed action and provides an opportunity for the claimant to obtain a more detailed statement.

The court denied plaintiffs' motion for summary judgment with prejudice to the extent that it related to Second Circuit holdings that: 1) opinions of non-examining medical personnel cannot, in themselves, constitute substantial evidence to override the opinion of the treating source; 2) a treating physician's medical testimony need not be supported by objective clinical or laboratory evidence; 3) the testimony of a relative could be probative of certain issues about which the relative has knowledge; 4) ALJs have a duty to fully develop the record for pro se claimants; 5) ALJs must inform pro se claimants of their right to subpoena and cross-examine witnesses; and 6) an ALJ must inquire into a pro se claimant's previous disability and subjective complaints.

On June 19, 1992, the district court entered a judgment approving a negotiated settlement agreement. The court entered an order modifying the settlement on July 29, 1992. This TI attaches the judgment approving settlement, with its attachments, and the modifying order (Attachment A). The settlement agreement is effective for eight years (i.e., until June 19, 2000) although obligations to take action incurred during the pendency of the agreement continue.

The approved settlement agreement required SSA to publish an instruction (Attachment 1 to the settlement agreement (hereinafter simply identified as Attachment 1)) concerning the application of holdings in published Second Circuit disability decisions to the Social Security Act disability benefit claims of New York State residents. On July 2, 1992, the Director, Litigation Staff, of the former Office of the Deputy Commissioner for Programs, transmitted a teletype (Attachment B) to all individuals and offices involved in adjudicating Stieberger claims, to notify them of the settlement and publish the mandated instruction. Within days, the Director of Litigation Staff also distributed a Manual of Second Circuit Disability Decisions (hereinafter simply referred to as Manual) (Attachment C) to all affected decision makers and reviewers. Attachment 1 was reprinted in the Manual. As originally printed, the Manual contained excerpted quotations of the principal holdings of published Second Circuit disability decisions issued as of June 18, 1992.

The settlement also requires SSA to promptly provide each office of decision makers and reviewers of decisions with a copy of each published Second Circuit disability decision issued after June 17, 1992. This requirement sunsets on June 19, 2000. Pursuant to the settlement agreement, each office must maintain these copies in a volume that is readily accessible to decision makers and reviewers of decisions.

Since 1992, the Manual and volume of decisions have been updated with excerpts from the holdings of six subsequenyt Second Circuit decisions in the Manual and to add a copy of the decisions to the volume of decisions (Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993); Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995); Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995); Perez v. Chater, 77 F.3d 41 (2d Cir. 1996); Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996); and Bush v. Chater, 94 F.3d 40 (2d Cir. 1996). Detailed instructions concerning the procedures for applying the holdings in published Second Circuit disability decisions are set forth in Part IV. below.

III. Guiding Principles

The Stieberger settlement agreement provides both prospective and retroactive relief. The Stieberger settlement establishes procedures for applying the holdings of published Second Circuit disability decisions. These procedures, described below in Part IV., are to be followed for decision making in all disability claims arising in New York (i.e., in current and future claims, and not just in claims that are subject to reopening under the settlement).

Under the Stieberger settlement agreement, class members will have an opportunity to have certain cases reopened and readjudicated (see Part V. below). SSA has identified potential class members and notified them of the opportunity to request reopening of their claims. Potential class members may also request reopening at SSA field offices (FOs), hearing offices (HOs) and the Appeals Council, and SSA must provide written acknowledgments of the requests (see Part VI. below). SSA will reopen and readjudicate the claims of class members who are determined after screening to be entitled to readjudication (see Part VII. below)

In general, screening will be performed by either the Office of Disability and International Operations (ODIO) or an FO, and the New York State Disability Determination Services (DDS) will reopen a class member's claim and readjudicate it de novo at the reconsideration level. OHA will perform readjudications under limited circumstances if the Stieberger claim subject to reopening is consolidated with a claim pending at the OHA level (see Parts VIII. I. and J. below). Class members who receive adverse DDS readjudication determinations will have full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).

The Stieberger settlement contains several unique features that affect development and payment and involve certain presumptions relating to establishing a disability onset date, insured status and work activity. These issues are touched on briefly in this Part and addressed in greater detail in Part VIII. below.

The Stieberger settlement is intended to generally limit evidence development to a basic period that begins with the 48th month prior to the date of SSA's receipt of a class member's request for Stieberger reopening and runs through the date of readjudication. This is referred to as the “Development Period.” The 48-month period may be adjusted if certain exclusions apply and may begin earlier or later than the 48th month. If the claimant is found “not disabled” during the Development Period and certain conditions are met, SSA may have to develop back to the alleged onset of disability (AOD) in the earliest title II Stieberger claim, the date of filing in the earliest title XVI Stieberger claim, or to the date of the comparison point decision in cessation cases. The actual Stieberger claim files will only be retrieved and associated with the readjudication folders if it is necessary to develop all the way back to the aforementioned dates. Part VIII. B. below provides a more detailed discussion of the Stieberger Development Period.

The Stieberger settlement also limits benefit payments. The settlement limits Stieberger payments for months prior to December 1, 1991, to a period not to exceed 48 months. This is referred to as the “Payment Period.” The Payment Period will cover the 48 months immediately prior to December 1, 1991, if the claimant is found disabled for that period, unless certain payment period exclusions (e.g., months for which the claimant has already received benefits) require an earlier Payment Period. However, in no case may payment be made for any period prior to the first day of potential entitlement or eligibility on the earliest Stieberger claim. Benefits payable pursuant to a Stieberger reopening will never exceed 48 months for the period prior to December 1, 1991; however, less than 48 months of payments is possible. Because the factors affecting the computation of the Payment Period for title II and title XVI claims are different, a concurrent case may have different Payment Periods under each title. SSA will continue (or begin) benefits after November 30, 1991, if the claimant continues to meet SSA's disability entitlement and eligibility criteria. Part VIII. D. below provides a more detailed discussion of the Stieberger Payment Period.

With respect to establishing a disability onset date, the Stieberger onset date will usually be an “administrative onset” date, selected to permit payment in the first month of the Stieberger Payment Period. If the claimant is found to be disabled back to the start of the Development Period, his or her payment period will ordinarily start with December 1987. For Childhood Disability Benefit (CDB) claims and other no waiting period cases and for title XVI disability cases, when a finding of disability is warranted, the claimant will be presumed disabled as of the first day of the first month of the Payment Period. For all other title II disability cases, when a finding of disability is warranted, the claimant will be presumed disabled as of the first day of the fifth month before the first month of the Payment Period. Because of this unique feature of the settlement, the Stieberger onset will usually have no relation to the actual AOD. The Stieberger onset will also be more closely related to the Payment Period than the Development Period. Part VIII. E. below provides additional discussion of the Stieberger onset date and its relationship to the Stieberger Payment Period.

For purposes of the Stieberger adjudication of title II cases, a class member generally will be presumed to have insured status as of the Stieberger onset if he or she was insured as of the AOD of the claim that resulted in entitlement to relief. However, in those cases where the Stieberger file must be retrieved and developed all the way back to the AOD, actual insured status will be determined rather than presumed and disability must have begun prior to the date last insured. Part VIII. F. below covers this instruction regarding insured status.

With respect to work activity, work activity prior to December 1, 1991, will be considered in calculating the Development Period and certain presumptions will be applied. Also, work activity prior to December 1, 1991, will be considered in making determinations of initial disability but will not be used in assessing trial work months or in otherwise making determinations of substantial activity (SGA). This restriction, however, does not apply to work activity performed after November 30, 1991, or while the class member was in payment status based on another claim and the work was already counted as trial work or SGA. Part VIII. C. below provides a more detailed discussion of these work activity considerations.

Generally, the FO will be responsible for computing the Development and Payment Periods and identifying the potential Stieberger administrative onset date prior to sending the case to the DDS for readjudication. SSA has developed a Worksheet and examples for use in calculating the relative periods and dates and they are included as attachments to this TI and expressly referenced in Part VIII. below. OHA adjudicators will need to become familiar with these principles and related calculations in order to resolve Stieberger issues that are appealed to OHA.

Finally, the settlement agreement contains certain other requirements that adjudicators must follow in deciding the disability claims of both current and former New York State residents.

Adjudicators shall not preclude the determination of whether the claimant is disabled on the ground that the issue had previously been determined administratively in considering a prior claim for benefits between October 1, 1981, and July 2, 1992, inclusive, (i.e., apply res judicata), unless one of the following exceptions apply:
- the claimant was not a resident of New York State at the time of the prior administrative determination;
- an action for judicial review or administrative appeal of the prior determination was filed or would have been timely on orr after July 2, 1992; or
- the issue to which preclusion applies concerns any issue other than medical or vocational issues, such as the assets, incomme, quarters of coverage, earnings of the claimant, fraud, or whether the claimant had engaged in SGA.
NOTE:

These court-approved provisions concerning res judicata must be followed in deciding the disability claims of both current and former New York State residents during the effective life of the settlement agreement. The application of these provisions is not just limited to the readjudication of the claims of class members entitled to reopening.
As the Director, Litigation Staff, of the former Office of the Deputy Commissioner for Programs, advised adjudicators in the teletype dated July 2, 1992 (Attachment B), pursuant to paragraph 22 of the settlement agreement, POMS and HALLEX instructions related to the 1985 Stieberger preliminary injunction (including HALLEX TIs 5-4-13, 5-4-13 Supplement A and 5-4-13 Supplement B) are rescinded. In addition, pursuant to paragraph 6 of the settlement agreement, any instructions that could in any way be interpreted as calling for “nonacquiescence” in holdings of the Second Circuit in disability cases are rescinded and are no longer of force or effect. (SSA does not believe such instructions exist; this further reminder is simply precautionary.)

IV. Stieberger Procedures For Application of Holdings in Published Second Circuit Disability Decisions

A. General

The Stieberger settlement agreement requires all persons who decide Social Security Act disability benefit claims of New York State residents, or who review such decisions, to follow and apply the published holdings of the United States Court of Appeals for the Second Circuit as explained below; decisions are not followed and applied, however, when SSA issues written instructions to the contrary (concerning a particular published Second Circuit disability holding) (see D. below).

B. Attachment 1 and the Manual of Second Circuit Disability Decisions

As referenced in Part II. above, paragraph 3 of the approved settlement agreement required SSA to publish an instruction (Attachment 1) concerning the application of published Second Circuit decisions to the Social Security Act disability benefit claims of New York State residents. (Attachment 1 can be found in its original form at Attachment A of this TI as Attachment 1 to the settlement agreement; Attachment 1 can also be found in its reprinted form, at Attachment C, as part of the Manual of Second Circuit Disability Decisions.) Paragraph 4 required SSA to provide each office of decision makers and reviewers of decisions with a copy of the settlement agreement (Attachment A).

Attachment 1 instructs, among other things, that the holdings in published Second Circuit disability decisions must be applied at all levels of administrative decision making and review in adjudicating or reviewing the title II and/or title XVI claims for disability benefits filed by New York State residents. The Attachment 1 instructions are binding on all personnel, including state employees, ALJs, Appeals Council Administrative Appeals Judges, quality assurance staff, and all other personnel who process, render decisions on, or review claims of New York residents for disability benefits under the Social Security Act. Adjudicators must apply the published Second Circuit disability holdings in good faith and to the best of their ability and understanding whether or not they view them as correct or sound. Adjudicators must apply the holdings in a decision once the decision becomes effective. A decision of the Second Circuit generally becomes effective 522 days after the decision is issued by the court, unless a specific written instruction is issued that requires the decision to be applied earlier or later.

Under separate cover, all individuals involved in adjudicating the claims of New York State residents have received the court-approved Manual of Second Circuit Disability Decisions (Manual) (Attachment C). The Manual contains excerpted quotations of the principal holdings of published Second Circuit disability decisions issued as of June 18, 1992. Attachment 1 explains how to use the Manual and, as noted above, is reprinted in the Manual.

C. Distribution of Second Circuit Disability Decisions Issued After June 17, 1992, and Instructions About Such Decisions

Each office of decision makers who decide the disability claims of New York State residents, and reviewers of those decisions, shall maintain a volume containing copies of all published Second Circuit disability decisions that are issued after June 17, 1992. SSA will provide each such office with a copy of each published Second Circuit disability decision promptly after it is issued by the court, for inclusion in the volume. The volume shall be readily accessible to decision makers, and reviewers of decisions, in each office.

Within ten days after the Second Circuit issues a mandate in a case that will result in a published opinion or designates the opinion for publication, whichever is later, SSA will distribute to affected disability decision makers and reviewers, for inclusion in the Manual, either a copy of the decision or an instruction.

An instruction will include a summary of the decision together with a directive to follow the decision. If copies of the court's opinion are initially distributed without an instruction, SSA Central Office (CO) will issue written instructions within 90 days after the Second Circuit issues its mandate in the case or designates the opinion for publication, whichever is later. Once SSA has issued an instruction, it may at any subsequent time issue further instructions. Any instruction will be included in the Manual.

Attachment 1 explains that decision makers should familiarize themselves with the Manual, with SSA's instructions on Second Circuit holdings, and with Second Circuit decisions as they are issued. Attachment 1 further explains that, while SSA will take the steps described above, decision makers must apply the holdings in published Second Circuit disability decisions even in the absence of an instruction, and even if the decisions or instructions are not included in the Manual. (For example, if an adjudicator becomes aware of a Second Circuit disability decision (e.g., a claimant draws it to the adjudicator's attention or the adjudicator receives notification of the decision from SSA), but the adjudicator has not yet received an instruction from SSA on how to apply the decision and the decision is not yet in the Manual, the adjudicator must nonetheless apply the holding(s) of that decision to all claims where it is relevant.)

NOTE:

As of the issuance date of this TI, SSA has updated the Manual and Volume of Second Circuit Disability Decisions six times. The first update involved the November 29, 1993 inclusion of the Second Circuit's August 23, 1993 holding and full text opinion in Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993). The second update involved the June 15, 1995 E-Mail instructions regarding the Second Circuit's April 19, 1995 holding and full text opinion in Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995). The third update involved the August 16, 1995 E-Mail of the Second Circuit's June 20, 1995 holding in Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995). The fourth update involved the April 22, 1996 transmission of the full text of the Second Circuit's February 22, 1996 opinion in Perez v. Chater, 77 F.3d 41 (2d Cir. 1996). On July 3, 1996, SSA issued a teletype instruction in Perez. The fifth update involved the October 17, 1996 teletype instruction regarding the August 14, 1996 opinion in Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996). The sixth update involved the October 22, 1996 teletype instruction regarding Bush v. Chater, 94 F.3d 40 (2d Cir. 1996).

D. Instructions Not To Apply Holdings in Second Circuit Disability Decisions

If further action with respect to rehearing or appeal is pending in a Second Circuit disability decision, SSA may instruct decision makers not to apply all or some of the holdings stated in that decision. The specific instruction will explain which holdings are not to be applied and identify the issues addressed by those holdings. Those instructions will be published in the Federal Register.

When such instructions are issued, decision makers must maintain a list of disability claims determinations or decisions that may be affected because the Second Circuit holding is not applied. Any notice sent to claimants on the list, denying benefits in whole or in part, must include the following language:

If you do not agree with this decision, you can appeal. You must ask for an appeal within 60 days.

You should know that we decided your claim without applying all of what the court said about the law in ______________. ____________ is a recent court ruling that we do not consider final because it may be reviewed further by the courts. If it becomes final, we may contact you again.

If you disagree with our decision in your case, do not wait for us to contact you. You should appeal within 60 days of the date you receive this notice. If you do not appeal within 60 days, you may lose benefits.

NOTE:

Appeals Council notices denying a request for review, as well as Appeals Council decisions, must include this language.

E. Instruction Not to Apply Holding in a Second Circuit Disability Decision Rescinded or Modified

As set forth in paragraph D. 3. of Attachment 1, when no further judicial review of a Second Circuit decision will occur, SSA will promptly (within ten days from the date that the Second Circuit disability decision is no longer subject to further review or within ten days from the date a final decision on the merits is rendered) rescind or modify any instructions issued pursuant to D. above, and will advise decision makers and reviewers of decisions about the final decision in the case. The instruction rescinding or modifying the previous instruction not to apply a holding will be published in the Federal Register.

F. Readjudication of Cases That Did Not Apply a Holding in a Second Circuit Disability Decision

If the instruction not to apply a holding in a published Second Circuit disability decision is rescinded or modified, the responsible level of adjudication will, where appropriate, promptly retrieve and readjudicate the following claims:

all listed claims, and
the claim of any individual who shows that his or her decision made after the effective date of the instruction not to apply the holding may have been affected by the application of the final court decision.

The readjudication shall assess disability for only the time period covered by the claim decision under review, unless the application of the final court decision requires development of the evidence. When development of the evidence is required, the readjudication shall also assess current disability. The individual will retain full appeal rights with respect to the determination or decision on readjudication.

However, if review results in a determination or decision that the final court decision is inapplicable to the individual's case, the individual may only appeal the issue of whether or not the final court decision is applicable to the individual's case.

G. Issuance and Rescission of Acquiescence Rulings

Notwithstanding the provisions of the settlement agreement regarding the application of Second Circuit disability decisions, SSA may issue or rescind Acquiescence Rulings or relitigate issues pursuant to 20 CFR §§ 404.985 and 416.1485.

V. Definition of the Class, Class Members Entitled to Reopening

A. General

On August 19, 1985, the United States District Court for the Southern District of New York certified a statewide class, as subsequently modified on December 20, 1985, defined as:

All New York State residents whose claims for benefits or continuation of benefits have been, or will be denied or terminated since October 1, 1981, based on a determination that they do not have a disability that prevents them from engaging in substantial gainful activity and whose benefits have not been granted or restored through subsequent appeals.

B. Class Members Entitled To Reopening

Potential class members may request reopening in response to a notice from SSA or by self-identifying at any SSA office. For purposes of implementing the settlement agreement, class members who meet the following criteria will have an opportunity to have their claims reopened and readjudicated:

the class member had a disability claim finally denied or terminated,
- at any administrative level between October 1, 1981, and October 17, 1985, inclusive; or
- at the Administrative Law Judge or Appeals Council level between October 18, 1985, and July 2, 1992, inclusive; and
the class member was a New York State resident at the time of the denial or termination; and
the disability claim was denied or terminated on the ground that the class member was not, or was no longer, disabled (denials or terminations for fraud, quarters of coverage, excess income or resources, earnings at the SGA level, or for other reasons unrelated to disability are not included).

C. Class Member Claims Not Subject To Reopening

The following class member claims are not subject to reopening:

claims that were the subject of a final decision or determination by SSA on the merits on a date when the individual no longer resided in New York State;
claims for which the denial or termination of benefits was affirmed on the merits by a final decision of a federal court, unless the claim was pending in court as of September 1, 1992, and the claimant never received notice from the United States Attorney that he or she had a right to have that claim remanded for further administrative proceedings;
title II claims (that otherwise afford class membership) that were already reevaluated under another class action after July 2, 1992, and the reevaluation determined that the claimant was not disabled as of the date last insured;
title II claims in which there was a subsequent claim with a final determination or decision on the merits issued after July 2, 1992, that the claimant was not disabled as of the date last insured;
claims (that otherwise afford class membership) that were already reevaluated under other class actions provided that the reevaluation in the other class action:
- occurred after July 2, 1992;
- covered the time periods for which payment is possible under Stieberger and did not restrict payments for such time periods;
- considered evidence to the extent provided for in the development requirements of Stieberger; and
- afforded the claimant full appeal rights.
claims, in which there was:
- a subsequent claim that covered the issues and time period at issue in the prior Stieberger claim, andd
- the subsequent claim was decided after July 2, 1992.

VI. Receipt of Requests for Reopening from Potential Class Members

A. General

On March 8, 1993, and in subsequent mailings, SSA CO sent notices to potential class members identified by computer run. Individuals had 180 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Stieberger settlement agreement. In addition to requesting Stieberger relief in response to a notice, under the Stieberger settlement agreement, potential class members also could and may continue to request reopening of a prior claim at any SSA FO, HO or the Appeals Council. The potential class member may make the request in writing, by telephone or in person. Any response to the class notice that is ambiguous or unclear will be construed as a request for Stieberger relief. SSA must acknowledge the request in writing.

B. OHA Action on Receipt of Requests for Reopening from Potential Class Members

If an HO or the Appeals Council receives a request for reopening of a claim under the Stieberger settlement agreement, it will take the following action:

record the claimant's name, Social Security Number, address, date of receipt of the request, and representative's name and address, if any;
for individuals who request reopening in person, provide the claimant and representative, if any, written, dated substantiation that the request was received;
for individuals who request reopening in writing or by telephone, do not provide any written, dated substantiation that the request for reopening was received; SSA CO will provide a written acknowledgment (Attachment D) that a request for reopening was received to all individuals other than those who request reopening in person; and
forward the above information and any written request for reopening on a biweekly basis to:

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: Stieberger Coordinator

NOTE:

HOs should send this material via E-Mail to S3GK1 OPPE/DLAI at ~S3GA04, if practicable.

If an HO or the Appeals Council receives a request for Stieberger reopening in conjunction with an action on a current claim, it will follow the procedures set forth above. The HO or the Appeals Council will inform the claimant, and representative, if any, that the Stieberger reopening will be processed separately from the current claim and that such separate Stieberger processing is not the same as an appeal on the current claim and that a failure to pursue all appeal rights in connection with the current claim could result in a loss of benefits. See Part VIII. J. 1. below for further instructions. Also, if the request for Stieberger reopening is not timely filed, the HO or the Appeals Council should obtain a “good cause” statement concurrent with accepting the request for reopening.

The Division of Litigation Analysis and Implementation will forward the information and requests to SSA CO (Litigation Staff) as received, for coordination of the written acknowledgment, as necessary, and input into the SSA Class Action Tracking System (CATS).

VII. Determination of Entitlement to Reopening and Preadjudication Actions

A. SSA CO Actions

1. Undeliverable Notices

Undeliverable notices were returned to CO and, as required by the settlement agreement, SSA secured updated addresses from the New York Department of Social Services' records. New notices were mailed to each potential class member for whom any updated address was received. Undeliverables from the second mailing will be given to class counsel so that they can attempt to locate new addresses for another mailing.

2. Alert Handling, Screening, Folder Preparation and Routing

SSA CO will track all response forms and the CATS will generate alerts for all responses. (See Attachment E for a sample Stieberger alert.) The alerts will be forwarded to the ODIO Class Action Section for processing.

If a request for relief is not timely, ODIO may request the FO to develop for “good cause” and return the material to SSA CO for a good cause determination. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411. Where the individual responds, by telephone or in person, more that 185 days after the Stieberger notice was generated, the SSA component receiving the response should include an SSA-5002 (report of contact) regarding the reason(s) for the late response and will send it with the response to ODIO (via the Division of Litigation Analysis and Implementation for OHA cases; see Part VI. above). For each case alerted, ODIO will prepare a green Stieberger responder jacket containing: 1) a reply form; 2) Stieberger Court Case Flag/CATS alert; 3) any medical or other evidence or forms submitted with the reply form (e.g., SSA 1696-U4, Appointment of Representative); 4) record of claims activity (e.g., MBR, FACT, SSR/STALE and OHAQ queries); 5) record of folder locations (e.g., AR-25, BDIQ, and ODIO Overnight queries); and 6) record of earnings (SEQY or similar extract). ODIO will separate potential class member cases into four categories: “Title Unknown,” “Subsequent Allowance,” “Civil Action Pending,” and “All Others.” ODIO will screen the “Title Unknown” and “Subsequent Allowance” cases and send notice of non-entitlement to relief. ODIO will forward the “Civil Action Pending” cases and the “All Others” to the FO for screening. ODIO will not retrieve the Stieberger claim files. Only the green Stieberger responder jacket will be forwarded to the FO. The only claims files that ODIO will retrieve and forward to the FO with the green responder jacket will be the subsequent allowance claim files in the “Subsequent Allowance” cases.

NOTE:

ODIO and the FOs will only screen a case out if query responses clearly indicate that the claimant is not entitled to reopening on any Stieberger class claim.

B. Post-Screening Actions

1. Individuals Determined Not to be Class Members Entitled to Reopening

Using Attachment F, if the screening component determines that the individual is not a class member entitled to reopening, the component will notify the individual, and representative, if any, of the determination that he or she is not entitled to relief as a class member and furnish a copy of the dated notice to the Office of the General Counsel (OGC) at the address below.

If the individual disagrees with this determination he or she must notify OGC in writing within 60 days of receipt at the following address:

Office of the General Counsel
Stieberger Implementation
Altmeyer Building, Room 611
6401 Security Boulevard
Baltimore, MD 21235

FOs also will accept on behalf of OGC an individual's written disagreement and forward it to OGC.

Failure to request review of the class membership determination in writing within 60 days of receipt makes the determination final, unless the individual demonstrates good cause for late notification of his/her disagreement with the determination.

The individual or his or her representative may request to inspect the administrative record on which the determination was based, and, as needed, the claim file.

SSA will notify the individual when the record and/or file is available for inspection. The individual will have 45 days from notification of record availability to inspect it at a mutually agreeable location.

OGC will notify class counsel of all disputes, and class counsel may also inspect the administrative record and/or claim file.

OGC will attempt to resolve all disputes through negotiation.

If the parties cannot resolve the dispute, OGC will send the individual, his or her representative, if any, and class counsel a notice confirming that the dispute cannot be resolved.

The confirmation notice will indicate that the individual has 60 days from receipt to request district court review. Class counsel may also request district court review. Failure to request district court review within 60 days of receiving the OGC confirmation notice renders SSA's determination final and not subject to further review.

NOTE:

If no protest of the non-class member determination is received within 180 days from the date of the notice of the determination (60-day limit, plus 120 days for a possible “good cause” late notification of the protest), the screening component will destroy the green responder jacket and queries, and route any other material according to normal procedures.

2. Individuals Determined to be Class Members Entitled to Reopening

If ODIO determines that the individual is a class member entitled to reopening, it will forward the green responder jacket to the FO for processing. If the FO determines that the claimant is a class member entitled to reopening, it will proceed as described in Part VIII. below.

VIII. Processing and Readjudication

A. General

There are two types of Stieberger reopenings, “pipeline cases” and “non-pipeline cases.” One of the first things that the FO will do, when initiating the processing of a Stieberger reopening, will be to determine whether the case is a pipeline or non-pipeline case. This is an important first step because the processing will be very different depending on the type determination.

A Stieberger claim is a pipeline case if, as of the date of request for Stieberger review, either an administrative or judicial review had been requested on the Stieberger claim but no determination or decision had yet been issued on that request, OR a request for such administrative or judicial review would still have been timely if filed. Pipeline cases, including those that result in a favorable decision, will be processed in accordance with the normal case processing rules. Pipeline cases will be entitled to full development and reopening consideration at the level of review that they were last considered (unless consolidated with a current claim pending at another level of review in accordance with the instructions set forth in J. below). The special Stieberger processing rules set forth in this HALLEX TI do not apply to pipeline cases.

Non-pipeline cases are all other Stieberger retroactive cases that resulted in denials or cessations AND that satisfy the Stieberger class membership requirements for reopening. Unless consolidated with a current claim pending at OHA (see J. below), the New York DDS will usually process Stieberger non-pipeline cases. The special Stieberger processing rules set forth in this HALLEX TI apply. DDS determinations on the non-pipeline cases are fully appealable to the OHA and judicial levels of review.

After determining whether the Stieberger reopening is a pipeline or non-pipeline case, the next key processing step in the non-pipeline cases is to calculate the Development Period. This is a necessary step in order to know what period to cover in completing the disability interview report (SSA-3368-BK for initial claims and the SSA-454-BK for cessation cases). The FO will use the Development/Payment Period Worksheet (Attachment G) to compute the Development Period. (See B. below for more detailed information about calculating the Development Period.) (See G. below for special considerations involving cessation cases.)

After determining the Development Period, the FO will contact the class member and/or representative, if any, to obtain the disability interview report and medical release authorizations for the Development Period. At the time of the contact, the FO will offer the class member the opportunity to submit medical evidence covering the period from the beginning of the Stieberger Development Period through the present. If the claimant is currently entitled to an unreduced benefit or a disability benefit, the Development Period will only cover up to the beginning date of the current entitlement. The FO will accept any evidence, regardless of its date.

If the class member has a current claim pending at any administrative level at the time of the FO contact, the FO will also offer the individual the opportunity to object to consolidation of the Stieberger claim with the current claim. If the individual objects to consolidation at that time, the claims will not be consolidated. This is discussed further in J. 1. below.

In a limited number of cases, the FO may be required to consider work activity in determining the Development Period (see C. below). As the final action in contacting the class member, the FO will obtain the claimant's responses to the questions on a “Stieberger Supplement,” i.e., a form created to gather additional information needed to review Stieberger claims (Attachment H).

The medical questions in Part II at the Stieberger Supplement are designed for use in determining whether SSA will be required to retrieve the Stieberger claim file and develop all the way back to the earliest date covered by the Stieberger claim (i.e., AOD for title II, date of filing for title XVI) if the claimant is found not disabled for all or part of the Development Period.

The questions in Part III of the Stieberger Supplement elicit information about months that would affect the Payment Period, (i.e., months of felony-related confinement (title II) and months of absence from the United States and/or institutionalization (title XVI)).

The questions in Part IV of the Stieberger Supplement are designed to establish protective filing for any auxiliary beneficiaries.

After concluding its contact with the claimant, the FO will compute the Stieberger Payment Period using the same Development/Payment Period Worksheet. (See D. below for more detailed information about the Payment Period calculation.) Using the Development/Payment Period Worksheet, the FO will determine the potential Stieberger administrative onset date and enter it on both the Worksheet and the Disability Determination Transmittal (SSA-831-U3) that it will prepare in assembling the disability material in a “DIB jacket” that it will send to the DDS along with the green Stieberger response jacket.

Information available at the OHA level may materially affect the Development and/or Payment Periods or cause an ALJ or the Appeals Council to question the determinations made with respect to the Development and/or Periods or any of the other Stieberger issues. Accordingly, OHA adjudicators must be familiar with the complexities of the Stieberger issues and processing in order to hear and resolve any appealable issues.

B. Stieberger Development Period

1. General

As introduced in Part III. and discussed in A. above, SSA will reopen and redevelop retroactive Stieberger claims, but, in most cases, not for the entire retroactive period. For non-pipeline cases (see A. above), the settlement agreement limits how far back into the retroactive period SSA must develop the evidence. This limited period of development is called the Development Period.

In most cases, the Stieberger Development Period will begin with the 48th month immediately preceding the date of SSA's receipt of the class member's request for Stieberger reopening and end at the point of readjudication. In some cases, however, the Development Period may start earlier or later than the 48th month, or may even consist of two (or more) non-consecutive periods.

The FO is responsible for determining the Development Period and it must be calculated on a case-by-case basis using the Stieberger Development/Payment Period Worksheet (Attachment G). The Development Period may overlap, but will generally not be identical with, the Payment Period (see D. below).

2. Determining When the Stieberger Development Period Begins

The Stieberger Development Period generally starts with the later of:

for title II or title XVI claims, 48 months prior to the date that SSA receives the request for Stieberger reopening; OR
for title II claims, the date of onset alleged (or the date of cessation) in the earliest claim subject to Stieberger reopening; or
for title XVI claims, the date of filing (or the date of cessation) of the earliest claim subject to Stieberger reopening.

EXCEPTION:

If the class member is deceased, the Development Period begins with the later of:

for title II or title XVI claims, 48 months prior to the date of the class member's death;OR
for title II claims, the date of onset alleged (or date of cessation) in the earliest claim subject to Stieberger reopening; or
for title XVI claims, the date of filing (or date of cessation) of the earliest claim subject to Stieberger reopening.

In calculating the Stieberger Development Period and in counting back 48 months from the date SSA received the request for Stieberger review (or date of death, if the class member is deceased), the following periods will not be included:

periods that the class member was already entitled (even if in suspense) to unreduced title II benefits (i.e., unreduced “A”, “HA”, “DWB”, or “CDB”); or
periods of title XVI eligibility (even in suspense); or
periods of potential entitlement to title II benefits or title XVI payments, based on a claim pending at any administrative level or in Federal court, regardless of whether consolidation is possible or has occurred;
periods covered by a medical denial or cessation decision that was issued while the class member was not a New York State resident; or
years that the computer earnings query shows annual earnings levels that exceeded the SGA guidelines (see Part C. below for a more detailed discussion of how work activity may affect the Development Period).

If any of these periods are not counted, the Development Period will be extended back an equivalent period of time.

3. When the Stieberger Development Period Ends

The Stieberger Development Period ends with the earlier of:

the date of readjudication; or
the date of current entitlement to title II or title XVI disability benefits or payments, unreduced title II retirement benefits, or title XVI aged payments.

4. Earlier Development Period Required When Stieberger Settlement Agreement ¶ 10(e)(5) Exception Applies

In some cases, in accordance with ¶ 10(e)(5) of the Stieberger Settlement Agreement, it may be necessary to develop the record for the entire retroactive period.

a. The DDS must develop the record, for a ¶ 10(e)(5) exception, all the way back to the earliest retroactive date, if it is determined at any step of the sequential evaluation process that the class member was not disabled during all or part of the Development Period, i.e., the 48-month period plus the period from the date of receipt of the Stieberger request for reopening to the present, and if one of the following conditions is corroborated by the class member's answers to the medical questions asked on the Stieberger Supplement.

The individual had a chronic impairment during the Development Period and alleged that the impairment was more severe in the past, and more information is needed about any earlier acute phase (e.g., rheumatoid arthritis in major joints that was not active during the Development Period, or previously uncontrolled epilepsy, or diabetes that was under control during the Development Period); or
The individual's treating source(s) during the Development Period differed from the individual's treating source(s) prior to the Development Period, or the individual had no treating source during the Development Period, and it is learned that other evidence may be available (e.g., from an earlier treating source) that may attest to more serious impairment in the past.

NOTE:

Before developing the additional potential period of disability, the DDS must determine whether one of the conditions described in the bullets above has been corroborated by the combination of a statement from the class member, a medical report submitted by the class member and/or information in SSA's records. However, if the reopened case is a cessation case, then ¶ 10(e)(5) is deemed to be met.

If the ¶ 10(e)(5) conditions are not met, there is no need to develop for an earlier period. The DDS will develop and make a determination based on the Stieberger Development Period.

If the ¶ 10(e)(5) conditions are met, the DDS will return the green Stieberger responder jacket to the FO and request that the FO obtain the Stieberger claim file(s) and verify the class member's date last insured (DLI). The FO will:

Request the Stieberger claim file(s), or initiate reconstruction, if necessary;
Obtain Work Activity Reports (SSA-821s), as necessary;
Verify the DLI; and
Return the green responder jacket, etc., to the DDS.

Upon return of the case to the DDS, the DDS will:

Review the Stieberger claim file(s);
Attempt to develop the record where there are gaps or conflicts in the evidence;
Request any necessary additional information related to relevant gaps or conflicts from sources mentioned in the Stieberger claim file(s) (e.g., sources identified by the claimant); and
Adjudicate the earlier period (the entire Development Period) based on all the evidence of record.

If development leads to a determination that the individual was not disabled as of his or her date last insured, the claim will be adjudicated on that basis. If the individual was disabled as of the date last insured, further consideration will be given as to whether disability continued through the ending date of the Stieberger Development Period as calculated pursuant to B. 3. above. As appropriate, the adjudicator must establish either an actual or administrative onset date, as controlled by Payment Period considerations.

b. If an OHA adjudicator is required to address the Stieberger Settlement Agreement ¶ 10(e)(5) evidence development exception in connection with a Stieberger case that is pending at the OHA level, the OHA adjudicator shall retrieve the Stieberger file(s) or arrange for reconstruction, if necessary, to ensure full and fair consideration of the Stieberger claim, unless disability can otherwise be found and would result in full payment for the Stieberger Payment Period.

5. Special Considerations for Claims of Disabled Widow(er)s, Surviving Divorced Spouses and Disabled Children

Disabled widow(er)s benefit (DWB) (including Surviving Divorced Spouses) and CDB claims require special handling under the Stieberger readjudication procedures because the development and payment limitations differ from the standard DWB and CDB development provisions.

Therefore, in establishing the Development Period for DWB and CDB claims, it is necessary to ignore the Stieberger development limitations and develop back to determine whether:

The DWB claimant had a disability that began within the 7-year prescribed period; or
The CDB claimant had a disability that began before age 22 (or the close of the 84-month period following the month in which the child's most recent entitlement to CDB benefits terminated because the child's disability ceased).

C. Work Activity and the Development Period

1. General

Periods of SGA are one of the exclusions listed in calculating the basic 48-month Development Period. SGA may cause the Development Period to begin more or less than 48 months prior to the date on which SSA received the class member's request for Stieberger review.

Because the question as to whether the Development Period has been properly established may be raised as an issue before an ALJ or the Appeals Council, OHA decision makers must understand the relationship between work activity and the Development Period.

As a developmental tolerance, SSA (including ALJs and the Appeals Council) will accept class members' allegations as to periods of employment, subsidy and earnings for periods prior to December 1, 1991, absent evidence to the contrary.

NOTE:

The green responder jacket will include an SEQY, which could provide evidence contrary to the class member's allegations. Decision makers should review the SEQY.

2. Effect of Work Activity on the Development Period

In initially determining SGA, the FO will assume, absent evidence to the contrary, that SEQY postings in excess of the SGA level for a particular year represent continuous work activity at the SGA level for all months of that year. These years are referred to as “Presumed SGA Years.” Years before 1990 with over $3,600 posted and years after 1989 with over $6,000 posted are Presumed SGA Years.

The FO will examine the SEQY, that is located in the green responder jacket, for years in which the annual earnings levels have exceeded the SGA guidelines. Such years will not be counted in calculating the beginning of the Development Period.

NOTE:

Work activity prior to December 1, 1991, will be used in making determinations of initial disability but will not be used in assessing trial work months or in otherwise making determinations of SGA. This restriction does not apply to work activity performed after November 30, 1991.

If the DDS becomes aware of work activity not reflected on the SEQY, that may affect the Development Period, it will return the case to the FO for further consideration and recalculation of the Development Period, if necessary.

Work activity will only result in an SGA denial if there is no period of non-SGA lasting at least 12 consecutive months subsequent to the alleged onset date (title II) or date of filing (title XVI).

3. Examples of the Effect of Work Activity on the Development Period

Attachment J provides examples of how work activity and presumed SGA years affect the calculation of the Development Period.

D. Stieberger Payment Period

1. Payment Period Defined

As introduced in Part III. and discussed in A. above, the Stieberger settlement limits Stieberger payments for months prior to December 1, 1991, to a period not to exceed 48 months. This period is referred to as the Stieberger Payment Period. The Payment Period will cover the 48 months immediately before December 1, 1991, if the class member is found disabled for that period, unless certain payment exclusions (e.g., months for which the class member has already received benefits) require an earlier payment period. However, in no case may payment be made for any month prior to the first month of potential entitlement on the earliest Stieberger claim. Benefits are continued (or begun) after November 30, 1991, if the class member continues to meet SSA's disability entitlement and eligibility criteria.

The first month of the Payment Period is generally the later of:

December 1987; or
the earliest date of potential entitlement.

The FO is responsible for calculating the Stieberger Payment Period using the Development/Payment Period Worksheet (Attachment G). Because the factors affecting the computation of the Payment Period for title II and title XVI claims are different, a concurrent case may have different Payment Periods under each title and separate calculations must be made. However, the same Development/Payment Period Worksheet can be used.

2. Computing the Title II Payment Period

In computing the Stieberger Payment Period for title II cases, the following periods will not be counted:

months the class member was already entitled to title II “A” (reduced or unreduced), “HA”, “CDB”, or “DWB” benefits;
months of title XVI eligibility including nonpayment months that occur during a period of title XVI eligibility;
months of potential entitlement to any type of benefit listed above, based on a pending claim;
months covered by a non-New York medical decision of denial (or cessation); and/or
months, any part of which, the individual was incarcerated after conviction for commission of a felony or an offense in the nature of a felony.

3. Computing the Title XVI Payment Period

In computing the Stieberger Payment Period for title XVI cases, the following periods will not be counted:

months the class member was already entitled to title II “A” (reduced or unreduced), “HA”, “CDB”, or “DWB” benefits;
months of title XVI eligibility including nonpayment months that occur during a period of title XVI eligibility;
months of potential eligibility to title XVI payments based on a pending claim;
months covered by a non-New York medical denial or cessation decision;
months the class member would not be eligible for a title XVI payment due to institutionalization; and/or
months the class member would not be eligible for title XVI payment because he/she was out of the United States.

4. Effect of Excluded Periods on Calculating the Payment Period

If any of these periods are not counted, extend the beginning date of the Payment Period back an equivalent period of time. However, payment will not be made for any period prior to the earliest period of entitlement or eligibility on the application on which the opportunity for reopening is established.

5. Examples of How the Payment Period is Calculated

Attachment K provides examples of how the Payment Period is calculated in title II and title XVI cases.

E. Calculating the Stieberger Onset Date; Relationship to the Stieberger Payment Period

As discussed in Part III., an actual disability onset date will not be established in most cases. Because of the unique provision of the Stieberger settlement agreement that limits benefit payments for months prior to December 1, 1991, to a period not to exceed 48 months, the Stieberger onset date will usually be an “administrative onset” date, selected to permit payment in the first month of the Stieberger Payment Period. In this regard, the Stieberger onset date will be more closely related to the Payment Period than the Development Period.

As mentioned in A. above, while completing the Stieberger Development/Payment Period Worksheet in the course of its first phase processing of a Stieberger non-pipeline reopening case, the FO will determine the potential Stieberger administrative onset date and enter it on both the Development/Payment Period Worksheet and the Disability Determination Transmittal (SSA-831-U3).

Unless the DDS must adjust the onset based on its development, the Stieberger onset date will be:

the first day of the fifth month prior to the first month of the Payment Period for title II waiting period cases; or
the first day of the first month of the Payment Period for title II CDB claims and other “no waiting period” cases; or
the first day of the first month of the Payment Period for title XVI claims.

If the DDS cannot establish disability for the entire Development Period, the ¶ 10(e)(5) exception may be met and the actual onset date would then need to be established. The Payment Period limitations, however, will still apply. When an actual onset date is established, the presumption of insured status (discussed in F. below) will not apply, i.e., the actual onset date must be prior to the DLI.

If the actual onset is later than the potential administrative onset shown on the Development/Payment Period Worksheet Summary, payments will be limited to the actual period of disability, after taking into consideration and applying the normal rules regarding any waiting period. If the actual onset date is earlier than the potential administrative onset, the administrative onset will be used and payment will be limited to the Payment Period calculated on the Worksheet.

If entitlement is limited to a closed period of disability because of a later medical denial on a non-New York case, both disability and entitlement end with the AOD (or date of filing if a title XVI claim) in the non-New York case. The entire period adjudicated in the non-New York case is a non-entitlement period. If the class member is currently disabled, a new period of disability may be established no earlier than the day after the date of the non-New York decision.

Further, the Stieberger onset date may be presumed when there is an allowance on a subsequent disability claim, as follows:

Where the established onset in a subsequent disability claim coincides with or is earlier than the Stieberger onset date and additional payment is possible based on the Stieberger claim, the subsequent allowance decision will be adopted.
Where the established onset is later than the Stieberger onset date, the file for the subsequent claim will be retrieved. Absent evidence to the contrary (e.g., a traumatic or acute onset, or a new impairment), the decision maker may presume that disability relates back to the Stieberger onset date and establish onset as of that date.

F. Insured Status

As discussed in Part III., for purposes of the Stieberger adjudication of title II claims, a class member generally will be presumed to have insured status as of the established Stieberger onset date if he or she was insured as of the AOD of the Stieberger claim.

As referred to in E. above, however, in those cases where an actual onset date is established, the presumption of insured status will not apply, i.e., the actual onset date must be prior to the DLI.

G. Special Considerations in Cessations Cases and other Continuing Disability Considerations

Readjudicating Stieberger cessation cases (title II and/or title XVI) requires the following special handling because of limitations on development and payment.

Adjudication of the Development Period generally is completed without retrieving the Stieberger claim file(s) using the adjudicatory standards applied to initial disability claims. However, if the Developmental Period extends back to the date of cessation in a Stieberger cessation case, special processing is needed; e.g., retrieving the Stieberger claim file(s), using the medical improvement review standard (MIRS), and deciding whether to make an initial disability determination (SSA-831) or a continuing disability/cessation determination (SSA-833)
If all or part of the Development Period cannot be allowed, the claimant is deemed, in cessation cases, to meet the ¶ 10(e)(5) criteria of the settlement and the case is developed back to the date of the comparison point decision using the Stieberger claim file(s) and any new evidence and is adjudicated back to the cessation date by applying the MIRS standard. The comparison point decision is the last favorable decision that preceded the cessation
If the case is adjudicated back to the date of cessation and the claimant is found to have a continuing disability, either a continuance or new allowance determination is prepared, depending on whether the beginning of the Payment Period is during the termination month in the Stieberger claim or later
If a claim is not continued or allowed based on MIRS, the possibility of a later allowance sometime during the reopened period is considered

Whether the DDS uses the MIRS will depend on whether the DDS is required to develop all the way back to the comparison point decision.

Whether an SSA-831 or an SSA-833 (which means having offered a face-to-face hearing) is prepared by the DDS depends on whether the determination is based on MIRS, and also on whether the 48-month limit on payments prior to December 1, 1991, prevents resumption of benefits in the month benefits were terminated in the Stieberger cessation case. Attachment L provides examples of Stieberger cessation case readjudication considerations and guidance on whether an SSA-831 or SSA-833 is the proper disability determination form for DDS to use in readjudicating the case.

In cases where there has been an allowance on a subsequent disability claim, in the absence of evidence to the contrary, it will be assumed that the favorable decision on the subsequent claim was correct. Development and readjudication of the Stieberger claim will be limited to the period up to the date of onset established in connection with the subsequent claim. However, if new evidence submitted or developed in connection with the Stieberger readjudication raises a question of continuing disability, adjudicators will not be barred from considering and deciding the issue under normal continuing disability review procedures.

H. Cases Readjudicated by the DDS

In most cases, the New York DDS will conduct the Stieberger readjudication (even if the class member no longer resides in New York) except for cases consolidated at the OHA level (see J. below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).

If the class member currently resides outside of New York State, in readjudicating the Stieberger claim the New York DDS will apply the holdings in Second Circuit disability decisions in accordance with Attachment 1. See I. below for procedures OHA decision makers will follow in readjudicating the Stieberger claims of class members who currently reside outside of New York State.

Except as otherwise noted in this instruction, ALJs and the Appeals Council should process and adjudicate requests for hearing on Stieberger DDS review cases in the same manner as for any other case.

I. OHA Readjudication of Class Member Claims Subject to Reopening

1. General

The following instructions apply to both consolidation cases in which the ALJ or Appeals Council conducts the first level of Stieberger readjudication and to DDS readjudication cases in which the claimant subsequently requests a hearing or Appeals Council review. However, they do not apply to the reopening readjudication of court cases remanded at the claimants' option pursuant to ¶ 10(b) of the settlement agreement or to other current or pipeline claims. See K. below.

Except as noted herein, HOs and the Appeals Council will process Stieberger class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.

2. Class member Currently Resides Outside of New York State

If the class member currently resides outside of New York State, in readjudicating the Stieberger claim, OHA decision makers will use the standards and procedures in effect in the state in which the individual resides at the time of the decision. OHA decision makers will apply the relevant portions of the HALLEX Circuit Court Case Reporter in accordance with normal operating procedures. OHA adjudicators will not apply the holdings in Second Circuit disability decisions in accordance with Attachment 1. See H. above for the procedures DDS decision makers will follow in readjudicating the Stieberger claims of class members who currently reside outside of New York State.

3. Application of the Medical Improvement Review Standard in Non-Cessation Cases

If the readjudication results in a favorable decision, the adjudicator will determine, under the medical improvement review standard, whether the class member's disability has continued through the date of the readjudication (or through the date of onset of disability established in any allowance on a subsequent application).

4. Class Member Deceased

If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining standing to pursue a claim and distribution of any potential underpayment apply. See B. above on how to calculate the Development Period for deceased class members.

5. Developing the Record

OHA adjudicators should be guided by the Development Period and Payment Period instructions that apply to the FO and DDS processing as set forth in A. through G. above. OHA adjudicators have a duty to update and develop the evidence as necessary.

6. Content and Routing of Decisions

OHA decisions on Stieberger class member claims must set forth the following information, in addition to the information that OHA decisions routinely include:

the dates of the periods for which disability was considered;
the dates of the periods for which disability is established;
the dates of the periods for which title II benefits or title XVI payments are being awarded; and
the basis for any finding of nondisability or denial of benefits.

Copies of all OHA decisions in Stieberger cases must be sent to both the:

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: Stieberger Coordinator

and

Litigation Staff
Office of Policy and Planning
P.O. Box 17729
Baltimore, Maryland 21235

ATTN: Stieberger Coordinator

J. Processing and Readjudicating Class Member Claims Subject to Reopening in Conjunction with Current Claims (Consolidation Procedures)

1. General

If a class member entitled to reopening has a current disability claim pending at any administrative level at the time of the FO contact, SSA may, unless the claimant objects, consolidate the Stieberger reopening claim with the current disability claim as follows:

in OHA, if the active claim is pending in OHA; or
at the reconsideration level, if the active claim is pending at the initial or reconsideration level.

If the claimant does not object, SSA retains the discretion as to whether or not the claims will be consolidated. As stated in A. above, if a current claim is pending at any administrative level at the time of the FO contact, the FO will offer the claimant the opportunity to object to consolidation of the Stieberger claim with the current claim. If the claimant objects to consolidation at that time, the claims will not be consolidated and OHA will defer processing of the Stieberger reopening until after the active pending claim is finally adjudicated. OHA components will not separately offer the individual a second consolidation option subsequent to the FO contact. Claims remanded from Federal court are considered to be active pending claims.

NOTE:

A claimant may request Stieberger reopening in conjunction with action on a current claim. If so, follow the procedures in Part VI. B. above. Inform the claimant, and representative, if any, that the Stieberger reopening will be processed separately from the current claim and that such separate Stieberger processing is not the same as an appeal on the current claim and a failure to pursue all appeal rights in connection with the current claim may result in a loss of benefits.

Do not conduct any Stieberger reopening unless it has been properly “alerted,” i.e., until an FO has received a green Stieberger responder jacket, determined entitlement to relief and contacted the claimant, as described in A. above, and forwarded the Stieberger alert and responder jacket to OHA.

However, in conjunction with action on a current claim an ALJ or the Appeals Council may reopen and revise a determination or decision on a claim that affords class membership in the absence of an alert if the regulatory conditions for reopening are met. The Stieberger settlement agreement qualifies as a change of legal interpretation and does not alone provide good cause for reopening under SSA's regulations.

2. Current Claim Pending in the Hearing Office at the Time that the Stieberger Claim is Identified for Reopening; ALJ Level is the First Level of Readjudication for the Stieberger Claim

a. General

Except as noted below, if a Stieberger class member has an initial request for hearing pending on a current claim and the individual did not object to consolidation at the time of the FO contact, the ALJ will consolidate the Stieberger case with the appeal on the current claim.

EXCEPTIONS:

The ALJ shall not consolidate the claims if:

the current claim and the Stieberger claim do not have any issue(s) in common. For example:

if the current claim is a title II retirement or survivors insurance benefits claim or a title XVI claim involving only nondisability issues, e.g., income, resources or residency, it will not have any issue(s) in common with the Stieberger claim; however, if the current claim is a disability claim, for consolidation purposes, it is deemed to have an issue in common with the Stieberger claim, regardless of the period at issue or the title under which the current claim was filed;

or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

If the claims are consolidated, follow b. below.

If the claims are not consolidated, follow c. below.

b. Action if Claims Consolidated

If the ALJ decides to consolidate the current claim with the Stieberger claim(s), 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 Stieberger claim raises any additional issue(s) (including the issue of disability for a different period of time) not raised by the current claim;
offer the claimant a supplemental hearing if the ALJ has already held a hearing and the Stieberger claim raises any additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Stieberger claim;
issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Stieberger claim (the ALJ's decision must clearly indicate that the ALJ considered the Stieberger claim pursuant to the Stieberger settlement agreement).

c. Action if Claims Not Consolidated

If the ALJ decides not to consolidate the current claim with the Stieberger claim, the HO will:

flag the Stieberger claim for DDS review using Attachment M;
immediately route it to the appropriate DDS (see Part III. above) for adjudication;
retain a copy of Attachment M in the current claim file;
inform the claimant that the Stieberger claim will not be consolidated with the current claim; and
take the necessary action to complete the record and issue a decision on the current claim.

3. Current Claim Pending at the Appeals Council at the Time that the Stieberger Claim is Identified for Reopening; Appeals Council Level is the First Level of Review for the Stieberger Claim

The action the Appeals Council takes on the current claim determines the disposition of the Stieberger claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify the possible Appeals Council actions on the current claim and the appropriate corresponding action on the Stieberger claim.

a. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — No Stieberger Issue(s) Will Remain Unresolved; ALJ Decision Issued On or After July 3, 1992

This will usually arise when the current claim addresses all of the issues of the Stieberger review claim, i.e., the Stieberger claim raises an issue of disability for a period covered by the current claim. In this instance, if the class member did not object to consolidation of the claims (see J. 1. above), the Appeals Council will consolidate the claims and proceed with its intended action. The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Stieberger claim.

All applicable requirements of this TI will be implemented with respect to the Stieberger claim; e.g., any decision on a class member's Stieberger claim must set forth the information required in I. 6. above, in addition to the information that OHA decisions routinely include.

For class action reporting purposes, the Appeals Council will send copies of its decision to the Stieberger coordinators listed in I. 6. above.

NOTE:

Individuals who received an ALJ decision issued on or before July 2, 1992, will be entitled to reopening as class members if that decision becomes the final decision of the Secretary.

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

This will usually arise when the current claim does not address all of the issues of the Stieberger claim, e.g., the Stieberger claim raises an issue of potential entitlement to disability benefits for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim. The Appeals Council's order, decision or notice of action will inform the claimant that the Stieberger claim will be sent to the DDS for readjudication.

OAO staff will attach a Stieberger case flag (Attachment N) to the Stieberger claim, immediately forward the Stieberger claim to the appropriate DDS (see Part III. above) for adjudication, and retain a copy of Attachment N in the current claim file. Attachment N indicates that the Appeals Council action on the current claim does not resolve all Stieberger issues and that the Stieberger class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ or Appeals Council decision or order on the current claim and the exhibit list used for the ALJ or Appeals Council decision.

c. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — No Stieberger 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 Stieberger claim, the Appeals Council will proceed with its intended action. In this instance, if the class member did not object to consolidation of the claims (see J. 1. above), the Appeals Council will consolidate the claims, reopen the final determination or decision on the Stieberger claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Stieberger claim pursuant to the Stieberger court order.

Further, any decision on a class member's Stieberger claim must set forth the information required in I. 6. above, in addition to the information that OHA decisions routinely include.

For class action reporting purposes, the Appeals Council will send copies of its decision to the Stieberger coordinators listed in I. 6. above.

d. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — Stieberger Issue(s) Will Remain Unresolved

If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Stieberger claim, the Appeals Council will proceed with its intended action. The Appeals Council's order, decision or notice of action will inform the claimant that the Stieberger claim will be sent to the DDS for readjudication.

The Appeals Council will request the effectuating component to forward the claim files to the appropriate DDS (see Part III. above) after the Appeals Council's decision is effectuated. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: “Stieberger court case review needed — following effectuation, forward the attached combined folders to (insert address of the DDS having jurisdiction for review of the Stieberger class member claim).”

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

If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action, and include consolidation instructions, unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Stieberger claim with the action on the current claim pursuant to the instructions in 2. above.

EXCEPTIONS:

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

the current claim and the Stieberger claim do not have any issue(s) in common. For example:

if the current claim is a title II retirement or survivors insurance benefits claim or a title XVI claim involving only nondisability issues, e.g., income, resources or residency, it will not have any issue(s) in common with the Stieberger claim; however, if the current claim is a disability claim, for consolidation purposes, it is deemed to have an issue in common with the Stieberger claim, regardless of the period at issue or the title under which the current claim was filed;

or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Stieberger class member claim to the appropriate DDS (see Part III. above) for separate review using the case flag in Attachment M.

K. Processing Court Remands Pursuant to ¶ 10(b) of the Settlement Agreement

The United States Attorney has given class members with civil actions pending in one of the four United States District Courts in New York State or at the United States Court of Appeals for the Second Circuit, based on an administratively final decision issued on or before July 2, 1992, the option of proceeding with their individual court cases or receiving reopening pursuant to the Stieberger settlement. If the class member accepted reopening, the parties stipulated to remanding the claim for reopening as a pending claim (see sample in Attachment O; however, the court, may have modified this language).

If, after being notified of the right to remand, the class member decided to proceed with the individual court case, the class member waived the right to reopening of that claim under the settlement, but retained the right under the settlement to reopen other claims.

If the class member or his or her representative in court did not receive the option notice, the class member retains the right to have his or her claim reopened under the settlement, as a pending claim under ¶ 10(e)(3), even after issuance of an adverse federal court decision, so long as the class member's court case was pending on or before (as appropriate) September 1, 1992. The Appeals Council will remand these cases using the remand order at Attachment P. ALJs shall process these cases in the same fashion as with any other pending claim and shall develop the record pursuant to 20 CFR §§ 404.1512 - .1518 or 416.912 - .918.

NOTE:

The Stieberger Development Period, developmental presumptions, and Payment Period rules and limitations do not apply to stipulated court remands pursuant to ¶ 10(b).

L. Cases That Satisfy the Stieberger Reopening Criteria and Were Decided By an ALJ On or Before July 2, 1992, and Acted On By the Appeals Council After July 2, 1992

Cases that meet the Stieberger criteria for reopening, but that involve action taken by the Appeals Council after July 2, 1992, on ALJ decisions rendered on or before July 2, 1992, are referred to as “bridge cases.” SSA agreed to stipulate to Stieberger remand of such cases, with certain exceptions.

SSA offered to stipulate to a remand of bridge cases for Stieberger reopening in civil actions in which the Appeals Council denied the class member's request for review. However, bridge cases in which the Appeals Council issued a decision were not eligible for reopening under Stieberger and stipulations for remand were not offered with respect to those cases
Stipulated court remands of bridge cases were made in accordance with the ¶ 10(b) provisions of the Stieberger settlement, except that the ¶ 10(b)(4) principle, the entitlement to the right to reopening if a class member or representative did not receive notice of the Stieberger right to remand, even after issuance of an adverse court decision, will not apply if: 1) the court's decision was issued after May 19, 1993 (unless appealed); or 2) the court had been informed before issuing its judgment that the class member was offered the opportunity for remand as provided in ¶ 10(b).
SSA did not offer to stipulate to Stieberger remands in bridge cases that were civil actions in which SSA asserted that the court did not have jurisdiction to review the case. In such situations, the claimant may still respond to the Stieberger class relief notice. SSA will not decline to administratively reopen solely on the ground that the court case had been dismissed or decided against the claimant on jurisdictional grounds. If the court decided that it had jurisdiction, SSA agreed to stipulate to remand
With respect to bridge cases where no civil action was filed, claimants may seek reopening in accordance with the Stieberger settlement and/or implementation instructions. SSA will not decline to provide a reopening in such cases solely on the basis that the Appeals Council's action is on or after July 2, 1992

M. Combining Stieberger Readjudication With Readjudication Under Another Class Action

SSA may combine the reopening and readjudication of class member's claims under Stieberger (including any appeal) with a review, reexamination or other reevaluation/readjudication under another class action (including any appeal) if the class member is accorded his or her full rights under both class actions.

Further, SSA need not reopen disability claims under Stieberger that were already reevaluated under other class actions provided that the reevaluation in the other class action:

occurred after July 2, 1992;
covered the time periods for which payment is possible under Stieberger and did not restrict payments for such time periods;
considered evidence to the extent provided for in the development requirements of Stieberger; and
afforded the claimant full appeal rights.

N. Copy Requirements

For all cases in which OHA is the first level of readjudication for the Stieberger claim (i.e., the Appeals Council or an ALJ consolidates the Stieberger claim with action on a current claim and OHA-jurisdiction pipeline cases, as defined in A. above), HO or OAO personnel, as appropriate, will send copies of any OHA decision to the Stieberger coordinators at the addresses listed in I. 6. above.

IX. 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 J. 2. 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.” To identify class member cases in HOTS, HO personnel must code “ST” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

X. 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 Implementation and Analysis at 305-0708.

Attachment A. Judgment Approving Settlement Dated June 19, 1992 as Modified July 29, 1992, by Stipulation and Order

Social Security Library-Cases 801 F.Supp. 1079, Stieberger v. Sullivan

Page 801 F.Supp. 1079 follows:

Theresa STIEBERGER, et al., Plaintiffs,

Louis W. SULLIVAN, et al., Defendants.

No. 84 Civ. 1302 (LBS).

United States District Court,

S.D. New York.

July 29, 1992.

Jane E. Booth, Director of Litigation (Matthew Diller, of counsel), Civ. Appeals & Law Reform Unit, The Legal Aid Soc., David S. Udell, Jonathan A. Weiss, Legal Services for the Elderly, Nancy Morawetz, Burt Neuborne, New York City, for plaintiffs and plaintiff Class.

Jill Ann Boskey, of counsel, Wayne G. Hawley, M.F.Y. Legal Services, New York City, for plaintiffs Theresa Stieberger, Milagros Sullivan, Patricia Happy and plaintiff Class.

O. Peter Sherwood, Corp. Counsel of the City of New York by Neil Corwin, Asst. Corp. Counsel, New York City, for plaintiff The City of New York.

Brook Hedge, Brian G. Kennedy, Terry M. Henry, Attys., U.S. Dept. of Justice, Civ. Div., Federal Programs Branch, Washington, D.C., for defendants; Donald A. Gonya, Chief Counsel, Randolph W. Gaines, Deputy Chief Counsel, for Social Sec., A. George Lowe, Deputy Chief Counsel, for Disability Litigation, Donna J. Fuchsluger, Marlene W. Heiser, Attys., Social Sec. Div., Office of the Gen. Counsel, U.S. Dept. of Health and Human Services, of counsel.

STIPULATION AND ORDER REGARDING MODIFICATION OF SETTLEMENT

SAND, District Judge.

The parties, by their respective attorneys, hereby stipulate and agree as follows:

The parties construe the definition of the class on page 1 of the Settlement Agreement entered on the docket by the Court on June 22, 1992, 792 F.Supp. 1376, as including individuals who resided in New York State on the date of the SSA decision to deny or terminate their claim for or continuation of disability benefits, unless they later established residence outside of New York State and SSA thereafter issued a final termination or denial on administrative review of the same claim.
The Settlement Agreement is modified as follows, with alterations indicated by strikeouts and underlining:

(A) “[9](d) A class member shall be considered to have requested reopening if the class member (i) mails a postage prepaid, pre-addressed form enclosed with the individual notice, or (ii) makes a written request to any SSA FO or hearing office within the State of New York or to the Appeals Council, or (iii) telephones a request to any SSA FO or hearing office within the State of New York or the Appeals Council, or (iv) makes a request in person at any SSA FO or hearing office within the State of New York, or (v) makes a request in writing or in person to any SSA field office if the individual no longer resides in New York State.”

(B) “10. After a class member described in paragraph 8 requests reopening under paragraph 9 and is determined to meet the criteria in paragraphs 8 and 9, SSA will provide relief as explained in this paragraph. In adjudicating reopened claims, SSA shall require its decisionmakers and reviewers of decisions to apply the holdings in Second Circuit disability decisions in accordance with the provisions set forth in this settlement agreement, including the instruction set forth as Attachment 1, except that, in adjudicating reopened claims at the hearing and Appeals Council review levels outside of New York State for individuals who no longer reside in New York State, decisionmakers will use standards and procedures in effect in the state in which the individual resides at the time of the OHA decision. SSA will issue a reminder to decisionmakers and reviewers to apply the Circuit Court Case Guide in HALLEX in adjudicating reopened claims at the hearing and Appeals Council review levels outside of New York State for individuals who no longer reside in New York State. SSA shall require decisionmakers and reviewers to apply the law in effect on the date on which the new determination on the reopened claim is rendered.”

(C) “[10](a) SSA shall reopen, and review de novo, class member claims, except that no claims shall be reopened pursuant to this settlement for which SSA denied or terminated benefits on administrative review (on grounds other than that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1) in a final decision or determination on a date when the individual no longer resided in New York State, and no claims shall be reopened pursuant to this settlement for which the denial or termination of benefits was affirmed on the merits by a final decision of a federal court under 42 U.S.C. Sec. 405(g), , except as provided by subparagraph 10(b)(4). No claim shall be subject to reopening for which the denial or termination of benefits was overturned as the result of an administrative or judicial appeal.”

(D) “[10](b) Class members entitled to reopening under paragraph 8, who have civil actions pending pursuant to 42 U.S.C. Sec. 405(g) or Sec. 1383(c)(3) in one of the four United States District Courts situated in New York State or in the United States Court of Appeals for the Second Circuit based upon an Appeals Council denial of a request for review or an Appeals Council decision of denial or termination, issued on or before thhe date of issuance of Attachment 1, will be given the option of proceeding with their individual court cases or receiving reopening pursuant to this settlement. SSA shall promptly provide each such class member or the class member's representative in court with a notice (Attachment 3) explaining this option.”

(E) “[10(b) ](4) If any such class member or his or her representative in court does not receive this notice, the class member shall have the right to have his claim reopened under this settlement, as a pending claim under subparagraph 10(e)(3), even after issuance of an adverse federal court decision, so long as the class member's court case was pending on or before (as appropriate) 60 days after the date of issuance of Attachment 1.”

(F) “[10(d) ](3) As alerts are transferred to the FOs, reopened claims for class members currently residing in New York State will be integrated into the regular claims determination workload of the New York ODD and will be completed within a reasonable time and with no less priority than such regular claims. Reopened claims for class members who do not reside in New York State will also be completed within a reasonable time.”

(G) “[10(e) ](4) In conducting each reopening of claims that are not pending, SSA shall develop the record in accordance with 20 C.F.R. Secs.404.1512-.1518, 416.912-.918 for a four-year period preceding the date SSA receives the request for reopening of the claim(s). In computing the four-year period, SSA shall not count any period for which the person (i) received disability benefits, (ii) received retirement benefits, (iii) has an active claim for disability or retirement benefits, or (iv) has a final denial or termination (on grounds other than that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1) issued on a date when the person no longer resided in New York State. SSA shall also develop the record for the period subsequent to the date SSA receives the request for reopening, unless the person has already demonstrated entitlement to benefits for this period. SSA need not develop the record for any period of time prior to the effective date [bsol ]of the earliest claim subject to reopening or for any period of time for which SSA determines that the individual is disabled without further development.”

(H) “[10(e) ](5) If SSA determines (at any step of the sequential evaluation process) that the individual is not disabled, or is not entitled to disability benefits because of SGA, for all or any part of the period for which the record is developed under subparagraph 4, SSA will also develop the record for the additional earlier period for which there is in effect an application the determination on which establishes the opportunity for reopening as set forth in paragraph 8 (except for periods for which SSA has issued a final denial or termination on a date when the individual resided outside of New York State on grounds other than that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1), if....”

(I) "[10(e)](7) When a person is found entitled to disability benefits on a non-pending claim or claims reopened under this paragraph, all payments on such claims are subject to the regular payment, nonpayment and reduced payment provisions of the Social Security Act and payments will be made as follows ...

(iii) In computing the period for which payment is possible under subparagraphs 10(e)(7)(i) and (ii), SSA shall not count periods for which the person has already been paid disability or retirement benefits, periods for which the person may be eligible for payment under an active claim, or periods for which SSA has issued a final denial or termination (on grounds other than that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1) when the person resided outside of New York State. In addition, payment need not be made on the basis of any application filed earlier than the application the determination on which establishes the opportunity for reopening as set forth in paragraph 8. Earrlier periods of entitlement followed by periods of nonentitlement will be treated as closed periods ..."

SO ORDERED.

FIRST MODIFIED SETTLEMENT AGREEMENT

(INCORPORATING MODIFICATIONS APPROVED BY THE COURT ON July 29, 1992)

WHEREAS, an amended class action complaint was filed on August 3, 1984, and

WHEREAS, a plaintiff class was certified on August 19, 1985, and subsequently modified on December 20, 1985, and is now defined as

All New York residents whose claims for benefits or continuation of benefits have been, or will be denied or terminated since October 1, 1981, based on a determination that they do not have a disability that prevents them from engaging in substantial gainful activity and whose benefits have not been granted or restored through subsequent appeals

WHEREAS, on May 29, 1990, the court rendered a decision on plaintiffs' motion for summary judgment and on defendants' motion for partial summary judgment and cross motion for judgment on the pleadings; and

WHEREAS, the parties wish to avoid further litigation in this matter,

THEREFORE, all parties to this civil action by their undersigned counsel, hereby agree, subject to the approval of the court, to the settlement of plaintiffs' claims in this litigation, in accordance with the following terms and conditions:

Definitions that apply to this Settlement.

(a) Disability Benefits—Benefits provided by the Social Security Administration pursuant to Titles II and XVI of the Social Security Act for personss who meet the definition of disability contained therein.

(b) Social Security Administration (“SSA”)—The Federal agency that is responsible for deciding claims for disability benefits. SSA includes the Office of Hearings and Appeals (“OHA”) that decides such claims at the Administrative Law Judge (“ALJ”) and Appeals Council levels of administrative review, and components that supervise and review the adjudication of claims by the Office of Disability Determinations. SSA also includes various offices which employ disability examiners.

(c) Office of Disability Determinations (“ODD”)—The state agency that decides disability claims in the State of New York at the initial and reconsideration levels of administrative review on behalf of SSA pursuant to 20 C.F.R. Secs. 404.1600 ff; 416.1000 ff.

(d) Decisionmakers—SSA and ODD personnel who decide disability benefit claims of New York State residents under 20 C.F.R. Part 404, Subpart P; Part 416, Subpart I.

(e) Reviewers of decisions—SSA and ODD personnel who conduct quality assurance, pre-effectuation or other reviews of determinations on disability claims of New York State residents.

(f) Second Circuit disability decisions—Decisions of the United States Court of Appeals for the Second Circuit in which the Secretary of HHS is a party that are or will be published, that address the issue of whether an individual, or individuals is or are disabled within the meaning of 42 U.S.C. Secs. 423(d), 1382(c) or that address the standards or procedures for making such determinations. Pursuant to this definition the following decisions are among those not considered “Second Circuit disability decisions:” Gutierrez v. Bowen, 898 F.2d 307 (2d Cir.1990) Valente v. Sullivan (“Valente II”), 897 F.2d 54 (2d Cir.1990); Barone v. Bowen, 869 F.2d 49 (2d Cir.1989); Conley v. Bowen, 859 F.2d 261 (2d Cir.1988); DeRienzis v. Heckler, 748 F.2d 352 (2d Cir.1984); Matsibekker v. Heckler, 738 F.2d 79 (2d Cir.1984); Valente v. Sec. of Health and Human Services, 733 F.2d 1037 (2d Cir.1984); Delamater v. Schweiker, 721 F.2d 50 (2d Cir.1983); Dietsch v. Schweiker, 700 F.2d 865 (2d Cir.1983).

(g) Date of settlement—Date on which this settlement is entered by the Court.

(h) Computation of time—Time periods under this agreement: (i) exclude the day of the event from which the time period runs; (ii) for time periodss of less than 11 days, exclude any day that an office that is responsible for taking the action under this agreement during the time period is closed for business (e.g., Saturday, Sunday, legal holiday, or due to weather or other emergency); and (iii) if such an office is closed on the date an action under this agreement is due, such action shall be due the next day the office is open for business.
SSA shall direct all decisionmakers and reviewers of decisions to comply with holdings in Second Circuit disability decisions in adjudicating or reviewing claims for disability benefits in accordance with the provisions of this settlement agreement.
SSA shall issue the attached instruction to all decisionmakers and reviewers of decisions (Attachment 1) within ten days of the date of settlement. The instruction shall be binding on all decisionmakers and reviewers of decisions. SSA shall publish the instruction in the Federal Register, the HALLEX, the Manual of Second Circuit Disability Decisions, described below at subparagraph 4(b), and the Program Operations Manual System (“POMS”) and shall include the instruction in all introductory training materials distributed to decisionmakers and reviewers of decisions and all materials provided to administrative law judges who travel to New York to decide disability claims of New York State residents. SSA shall make good faith efforts to publish the instruction within 90 days after the date of settlement.
(a) SSA shall provide each office of decisionmakers and reviewers of decisions with a copy of this settlement agreement.

(b) SSA shall provide a Manual of Second Circuit Disability Decisions (“Manual”) to all decisionmakers and reviewers of decisions. The Manual shall contain statements of the principal holdings of Second Circuit disability decisions issued before the date of settlement. The Manual need not describe each Second Circuit disability decision issued before the date of settlement but must state principal holdings that address whether an individual or individuals is or are disabled within the meaning of 42 U.S.C. Secs. 423(d) or 1382(c) or the procedures and standards for making such determinations.

(c) The parties agree that the statements of the holdings of Second Circuit disability decisions set forth in the Manual are good faith interpretations of the court's holdings. However, the parties do not stipulate that these statements are complete, or that they are the correct interpretations of Second Circuit disability decisions.

(d) Following issuance of the Manual, SSA may, but is not required by this settlement agreement to, issue instructions with respect to any Second Circuit disability decision issued before the date of settlement. The provisions of subparagraphs 5(c) and 5(d) (with the exception of the first sentence of subparagraph 5(c)) apply to such instructions.

(e) SSA shall add in a prominent location at the beginning of the section of the Circuit Court Case Guide in HALLEX that discusses caselaw of the Second Circuit the following text: “Adjudicators of disability claims of New York State residents involving medical or vocational issues are reminded that they are required to apply the controlling Second Circuit holdings set forth in the Manual of Second Circuit Disability Decisions attached to the instructions for implementing the Stieberger court-approved settlement.” SSA shall also add this same text to the other sections of the HALLEX that discuss caselaw of the Second Circuit, including: (i) HALLEX I-3-3-7 (“Other Bases for Appeals Council Review”) and (ii) HALLEX I-3-3-90, Exhibit 1 (“Citation Guide Circuit Court Cases for Citation”). The Manual shall be available for inspection and copying by the public in SSA field and hearing offices in New York.

(f) SSA may remove the instruction in the Manual concerning Schisler v. Sullivan at such time as the instruction is rescinded due to the modification, stay, or vacatur of the order in Schisler v. Sullivan, dated October 25, 1991, 1991 WL 224407, or oother event that operates to rescind the instruction. The inclusion of the instruction concerning Schisler does not constitute an admission of any kind by SSA and is without prejudice to any claim, defense, or other contention that SSA may assert or raise in any other action.
SSA shall use the following procedures with respect to Second Circuit disability decisions rendered after the date of settlement:

(a) SSA shall require each office of decisionmakers and reviewers of decisions to maintain a volume containing copies of all Second Circuit disability decisions that are issued after the date of settlement. SSA shall provide each office of decisionmakers and reviewers of decisions with a copy of each Second Circuit disability decision promptly after it is issued by the Court for inclusion in the volume. The volume shall be readily accessible to decisionmakers and reviewers of decisions in each office.

(b) Within ten days after the Second Circuit issues the mandate in a case or designates an opinion for publication, whichever is later, SSA will, by teletype or other written means, transmit to decisionmakers and reviewers of decisions a copy of or instruction pertaining to the Second Circuit disability decision. An instruction will include a summary of the decision together with a directive to follow the decision. Any decision or instruction distributed pursuant to this subparagraph shall be issued for inclusion in the Manual described in subparagraph 4(b).

(c) If SSA distributes a decision pursuant to subparagraph 5(b) without an instruction, then within 90 days after the Second Circuit issues a mandate in a case or designates an opinion for publication, whichever is later, SSA will issue a written instruction to decisionmakers and reviewers of decisions at the initial and reconsideration levels regarding application of the holding of the Second Circuit disability decision. SSA may, but need not, issue such instructions to decisionmakers and reviewers of decisions in OHA. Once SSA has issued an instruction, it may at any subsequent time issue further instructions. If SSA determines that a holding of a Second Circuit disability decision has become obsolete (lacking in any precedential force at all, e.g., overruled by the Supreme Court, by the Second Circuit or by statute) SSA may issue written instructions to decisionmakers and reviewers of decisions stating the good faith basis of this determination and instructing them accordingly. SSA shall send any such instructions to five individuals or other entities specified on a list which plaintiffs' counsel will provide to defendants' counsel. Plaintiffs' counsel may periodically have the list revised or updated upon request communicated by plaintiffs' counsel to defendants' counsel. All instructions shall be issued for inclusion in the Manual described in subparagraph 4(b).

(d) This agreement does not mandate minimum standards of sufficiency or accuracy for instructions issued pursuant to this paragraph. However, this agreement does mandate that instructions issued pursuant to this paragraph shall be based on good faith interpretations of disability decisions. This agreement does not preclude any claims brought in another action challenging the sufficiency or accuracy of such instructions, other than claims that the instructions are not based on good faith interpretations of disability decisions, nor does this agreement authorize such challenges or imply an agreement that such challenges may be maintained.

(e)(1) If any party to an action decided by the Second Circuit seeks further review of the decision, either through a petition for rehearing or certiorari, or at any point when such a petition would be timely, SSA may issue written instructions to decisionmakers and reviewers of decisions not to apply some or all holdings stated in the decision and may rescind any instruction issued under subparagraphs 5(b) or (c) regarding that decision. The time period in which to issue instructions pursuant to subparagraph 5(c) regarding that decision shall be tolled for any period in which an instruction not to apply a Second Circuit holding issued pursuant to this subparagraph is in effect.

(2) In the event that instructions are issued pursuant to subparagraph 5(e)(1) not to apply a holding of a Second Circuit disability decision and neither a petition for rehearing nor a petition for certiorari is granted, then, within ten days from the date the Second Circuit decision is no longer subject to further review through rehearing or certiorari, SSA shall, by teletype or other written instruction, rescind any instructions that were issued pursuant to subparagraph 5(e)(1).

(3) In the event that instructions are issued pursuant to subparagraph 5(e)(1) not to apply a Second Circuit disability decision and a petition for rehearing or certiorari is granted, then within ten days from the date a final decision on the merits is rendered in that case, SSA shall by teletype or other written instruction notify decisionmakers and reviewers of decisions about the court's final decision. If the final decision is a new decision by the Second Circuit on rehearing, the new decision on rehearing shall replace the previous Second Circuit decision to the extent that decision has been superseded by the rehearing decision, and SSA shall modify or rescind any instructions that were issued pursuant to subparagraph 5(e)(1) accordingly. If the final decision is a Supreme Court decision, then SSA shall rescind any instructions issued pursuant to subparagraph 5(e)(1) for any holding of the Second Circuit to the extent it is not superseded by the Supreme Court's decision, and shall comply with any such holding in accordance with the procedures set forth in this paragraph for Second Circuit disability decisions generally.

(4) When SSA issues a subparagraph 5(e)(1) instruction not to apply a holding of a Second Circuit disability decision, the instruction shall identify the issues addressed by the holding, and shall instruct each office of decisionmakers and reviewers of decisions to list any cases that might be affected if the holding were to be applied. In addition, the notice denying or partially denying any such claim will include the notice language stated in paragraph D.2 of Attachment 1. After a subparagraph 5(e)(1) instruction is rescinded, the responsible decisionmaking components shall promptly review the listed decisions as well as the decision of any unlisted claimant who shows that his or her claims decision made after the effective date of the subparagraph 5(e)(1) instruction may have been affected by application of the final court decision. Such reviews shall apply the final court decision unless it is inapplicable and shall assess disability for the time period covered by the claims decision under review unless the application of the final court decision requires development of the evidence; when development of the evidence is required, the review shall also assess current disability. Each claimant may appeal the decision made on his or her claim after such review. However, if review results in the determination that the final court decision is inapplicable to the claimant's case, the claimant may only appeal the issue of whether or not the final court decision is applicable to the claimant's case. This paragraph does not waive or foreclose any appeal rights that any claimant may have apart from the review provided for by this paragraph. SSA need not review any cases pursuant to this subparagraph in order to apply holdings of the Second Circuit to the extent that the holdings have been superseded by the Supreme Court or by the Second Circuit on rehearing.

(5) Any instructions issued pursuant to subparagraph 5(e)(1) and any modification or rescission of such instructions issued pursuant to subparagraphs 5(e)(2) and (3) shall be published in the Federal Register.
SSA shall rescind, insofar as applicable to claims of New York State residents for disability benefits, all written, oral, or computer-based instructions, policies, procedures, and rulings, other than regulations, (if any) to the extent that such directives state: (a) a general policy of nonacquiescence; (b) that the Secretary's decisionmakers and reviewers of decisions are bound only by rulings of the United States Supreme Court; (c) that decisionmakers and reviewers of decision shall not follow the law of the courts of appeals where the courts' holdings are in disagreement with the Secretary's interpretation of Titles II or XVI of the Social Security Act oor the Secretary's implementation thereof; (d) that the Secretary's decisionmakers and reviewers of decisions are not to consider a decision of a court of appeals to be binding absent adoption of the holding in an acquiescence ruling; (e) that decisions of the courts of appeals apply only in a specific case in which a court of appeals ruling was rendered; or to the extent that such directives are inconsistent with the terms of this settlement. SSA shall instruct all decisionmakers and reviewers of decisions that any regulations are not to be applied to the extent that they contain statements or policies described in this paragraph. This paragraph does not require the Secretary of HHS to repeal 20 C.F.R. Secs. 404.985, 416.1485.
(a) In making any determination on any claim for benefits by any class member, SSA shall not, except to the extent stated in subparagraph (b), preclude the determination of whether a claimant is or, at any material time, was disabled under the Social Security Act on the ground that the issue had previously been determined administratively in considering a prior claim for benefits between October 1, 1981, and the date of issuance of Attachment 1.

(b) This paragraph shall not apply in any of the following circumstances:

(1) the class member was not a resident of New York State at the time of the prior administrative determination;

(2) an action for judicial review or administrative appeal of the prior determination was filed or would be timely on or after the date of issuance of Attachment 1;

(3) the issue as to which preclusion applies concerns any issue other than medical or vocational issues, such as the assets, income, quarters of coverage, earnings of the claimant, fraud, or whether the claimant had engaged in substantial gainful activity (“SGA”).
Those class members who meet the following criteria will have an opportunity to have their cases reopened in accordance with paragraphs 9 and 10:

(a) The class member had a disability claim denied or terminated between October 1, 1981, and the date of issuance of Attachment 1 on the ground that the class member was not, or was no longer, disabled (denials or terminations for fraud, quarters of coverage, excess income or resources, earnings at the SGA level, or for other reasons unrelated to disability are not included); and

(b) The class member was a New York State resident at the time of the denial or termination; and

(c) The class member had a disability claim denied or terminated,

(i) at any level of administrative review between October 1, 1981, and October 17, 1985, inclusive; or

(ii) at the ALJ or Appeals Council level between October 18, 1985, and the date SSA issues Attachment 1, inclusive.
(a) SSA shall identify class members who, on the basis of data available in SSA's data processing systems are potentially within the portion of the class described in paragraph 8. SSA shall identify class members by name, Social Security Number (“SSN”) or claim number (or both where available), and last known address and shall make good faith efforts to complete identification within 120 days after the date of settlement. SSA shall notify plaintiffs' counsel, within 90 days after the date of settlement, of the status of the identification process. If SSA does not expect to complete identification within the 120-day period, it shall provide class counsel a schedule for completion. Upon completion of identification, SSA shall provide plaintiffs' counsel with two lists of the persons identified as class members: (1) one alphabetical, by last name, (2) one by zip code. The lists will set forth each person's name, SSN or claim number (or both where available), and most current address available to the Social Security Administration. The lists may be supplied on computer disk or other method agreed to by the parties.

(b) SSA shall send individual notice (Attachment 2) by first-class mail to the last known address of the individuals identified pursuant to subparagraph 9(a). Within 120 days of identification, SSA shall mail the nootices to all individuals who are scheduled to receive notice under this settlement. The notice shall state that the individual may be entitled to reopening of his or her claim for benefits, and that, in order to request reopening the individual should mail an enclosed, postage pre-paid, pre-addressed form to SSA. The notice shall also state that the individual may request assistance at any field office (“FO”) within New York State.

(c) Individuals who receive the notice referred to in subparagraph 9(b) shall have 180 days from receipt within which to respond to the notice. The date the individual receives the notice will be deemed to be five days after the date on the notice, unless the individual shows that he or she did not receive it within the five-day period. If an individual who received an individual notice does not respond within 180 days of receipt, his or her disability claim will not be considered for reopening under this settlement agreement absent a finding of “good cause,” as defined in 20 C.F.R. Secs. 404.911; 416.1411.

(d) A class member shall be considered to have requested reopening if the class member (i) mails a postage prepaid, pre-addressed form enclosed with the individual notice, or (ii) makes a written request to any SSA FO or hearing office within the State of New York or to the Appeals Council, or (iii) telephones a request to any SSA FO or hearing office within the State of New York or the Appeals Council, or (iv) makes a request in person at any SSA FO or hearing office within the State of New York, or (v) makes a request in writing or in person to any SSA field office if the individual no longer resides in New York State.

(e) SSA shall maintain a computerized tracking system that records the name and address of each person who requests reopening by returning the form enclosed with the individual notice (Attachment 2) and the date the request was received by SSA. SSA shall enter the same information into the tracking system for other requests for review as such information is received by SSA's central office. SSA will provide information reasonably available from this tracking system on request by plaintiffs' counsel.

(f) (1) After a request for reopening is received by SSA, SSA will provide the person who requests reopening (“requester”) with a written acknowledgment that a request for reopening was received. Unless the acknowledgment states the date of the request or, pursuant to subparagraph 9(f)(2) states that the timeliness of the request is disputed or uncertain, the request shall be deemed timely.

(2) If it appears to SSA that the request for reopening may be untimely, SSA will state in the acknowledgment (a) that the timeliness of the request is uncertain or disputed by SSA, and (b) either the date on which the request was received or that the request was received on or after a date certain that is at least 240 days after the date on which SSA sent the notice to which the requester is responding.

(3) SSA shall make good faith efforts to provide the acknowledgment within 30 days of SSA's receipt of the request. For individuals who request reopening in person, SSA shall, at the time of the request, provide either (a) the acknowledgment contemplated in this paragraph, or (b) other written, dated substantiation that the request was made.

(g) A class member's request for reopening of his or her claim shall constitute a request for reopening of all of his or her claims subject to reopening under this agreement. Class members' responses to individual notices shall be construed by SSA to be requests for reopening where the class member's intention is ambiguous or unclear.

(h) SSA will determine whether each requester meets the criteria in paragraph 8 and has properly requested reopening in accordance with subparagraphs 9(c),(d), and (g). SSA shall make this determination within a reasonable time.

(1) If SSA determines that a requester does not meet the criteria in paragraph 8 or has not properly requested reopening in accordance with subparagraphs 9(c), (d), and (g), SSA will send a notice of the determmination to the requester. The notice will state the reasons for SSA's determination and explain that: (a) the requester will have 60 days from receipt of the notice to notify in writing the Office of the General Counsel (“OGC”), Department of Health and Human Services, Altmeyer Building, Room 600, 6401 Security Boulevard, Baltimore, Maryland 21235, that he or she disagrees with the determination; (b) the requester may request inspection of his or her administrative record upon which the determination was based and, as needed, the relevant claims file; and, (c) the requester will have 45 days to inspect the record at an SSA office mutually agreeable to the parties once the requester is notified that the record is available for inspection. If the requester does not notify OGC in writing that he or she disagrees with the determination within 60 days of receipt of the notice, the determination shall become final and shall not be subject to further review absent a finding of good cause, as defined in 20 C.F.R. Secs. 404.911, 416.1411. For purposes of this subparagraph only, SSA district and branch offices will accept on behalf of OGC a requester's written notification of disagreement with the determination.

(2) OGC will attempt to resolve through negotiation all disputes concerning the determinations made pursuant to this subparagraph. OGC shall apprise class counsel of all such disputes, and class counsel shall make good faith efforts to assist in resolving such disputes. To further such resolution of disputes, class counsel shall be allowed to inspect the administrative record on which the decision was based and, as needed, the relevant claims file, if so requested, without regard to whether the requester made such a request in response to a notice sent pursuant to subparagraph 9(h)(1). If the requester has made such a request, OGC may arrange for the requester and class counsel to make such inspection concurrently. If the parties cannot resolve the question of a requester's entitlement to relief through negotiation, OGC will confirm to the requester and class counsel, in a written notice, that the dispute cannot be resolved. This notice shall be sent within a reasonable time. The notice will state that if within 60 days of receipt of OGC's written confirmation, the requester does not request the district court's review of the determination, the determination will become final and not subject to further review. The requester or class counsel may request the district court's review by filing a “Notice of Challenge to Decision Denying Reopening Under Stieberger v. Sullivan” with the district court in this action. Such a notice may be filed no later than 60 days after receipt of OGC's confirmation that the dispute cannot be resolved. Upon filing of such a notice, SSA shall file such agency records as the Court determines relevant to resolution of the dispute. Disputes under this paragraph that are submitted to the Court pursuant to paragraph 19 may be referred to a magistrate judge.

(3) For purposes of this subparagraph 9(h), the date of receipt of a notice will be deemed to be five days after the date on the notice, unless the requester shows that he or she did not receive it within the five-day period.

(i) When individual notices are returned as undeliverable, SSA will attempt to obtain updated addresses by providing a computer tape to the New York State Department of Social Services and the New York City Human Resources Administration for the sole purpose of obtaining addresses through a computerized match with public assistance, food stamp, and/or other relevant records. SSA's attempt to obtain updated addresses is subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. Sec. 552a (“Privacy Act”). SSA shall not be obligated to bring legal proceedings to gain access to such data system records. SSA shall mail notices to potential class members for whom new addresses are provided. SSA shall identify for class counsel all potential class members for whom it did not obtain new addresses, and shall also identify for class counsel such potential class members whose notices were returned as undeliverable after the mailing to the new addresses. Thee information shall be provided in increments as it becomes available to SSA. Plaintiffs' counsel shall have 180 days after receipt of this information to furnish current addresses for such individuals. Upon timely receipt of such addresses from plaintiffs' counsel, SSA will mail a final notice to potential class members.
After a class member described in paragraph 8 requests reopening under paragraph 9 and is determined to meet the criteria in paragraphs 8 and 9, SSA will provide relief as explained in this paragraph. In adjudicating reopened claims, SSA shall require its decisionmakers and reviewers of decisions to apply the holdings in Second Circuit disability decisions in accordance with the provisions set forth in this settlement agreement, including the instruction set forth as Attachment 1, except that, in adjudicating reopened claims at the hearing and Appeals Council review levels outside of New York State for individuals who no longer reside in New York State, decisionmakers will use standards and procedures in effect in the state in which the individual resides at the time of the OHA decision. SSA will issue a reminder to decisionmakers and reviewers to apply the Circuit Court Case Guide in HALLEX in adjudicating reopened claims at the hearing and Appeals Council review levels outside of New York State for individuals who no longer reside in New York State. SSA shall require decisionmakers and reviewers to apply the law in effect on the date on which the new determination on the reopened claim is rendered.

(a) SSA shall reopen, and review de novo, class member claims, except that no claims shall be reopened pursuant to this settlement for which SSA denied or terminated benefits on administrative review (on grounds other than that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1) in a final decision or determination on a date when the individual no longer resided in New York State, and no claims shall be reopened pursuant to this settlement for which the denial or termination of benefits was affirmed on the merits by a final decision of a federal court under 42 U.S.C. Sec. 405(g), except as provided by subparagraph 10(b)(4). No claim shall be subject to reopening for which the denial or termination of benefits was overturned as the result of an administrative or judicial appeal.

(b) Class members entitled to reopening under paragraph 8, who have civil actions pending pursuant to 42 U.S.C. Sec. 405(g) or Sec. 1383(c)(3) in one of the four United States District Courts situated in New York State or in the United States Court of Appeals for the Second Circuit based upon an Appeals Council denial of a request for review or an Appeals Council decision of denial or termination, issued on or before the date of issuance of Attachment 1, will be given the option of proceeding with their individual court cases or receiving reopening pursuant to this settlement. SSA shall promptly provide each such class member or the class member's representative in court with a notice (Attachment 3) explaining this option.

(1) If the class member decides to accept reopening while the court case is still pending, SSA will stipulate to remanding the claim for reopening under the settlement as a pending claim under subparagraph 10(e)(3).

(2) If, after being notified of the right to remand, the class member decides to proceed with the individual court case, the class member waives any right to reopening of that claim under this settlement, but retains any right under this settlement to reopen other claims.

(3) If the class member does not timely respond to this notice, SSA may defend the case in court, move to remand the case for reopening under this settlement, or otherwise seek resolution of the case.

(4) If any such class member or his or her representative in court does not receive this notice, the class member shall have the right to have his claim reopened under this settlement, as a pending claim under subparagraph 10(e)(3), even after issuance of an adverse federal court decision, so long as the class member's court case was pending on or before (as appropriate) 60 days after the date of issuance of Attachment 1.

(c)(1) SSA may consolidate the reopening of a class member's claim(s) under this agreement (and/or any appeal from such reopening) with a review, reexamination, or other reevaluation mandated by another class action (and/or any appeal from such review, reexamination, or other reevaluation) whenever the class member is accorded his or her full rights under this settlement as well as those under the other class action.

(2) SSA need not reopen disability claims that were already reevaluated under other class actions if (a) the reevaluation in the other class action occurred after the date of issuance of the instruction set forth in Attachment 1, (b) the reevaluation in the other class action covered the time periods for which payment is possible under this settlement and did not restrict payments for such time periods, (c) the reevaluation in the other class action considered evidence to the extent provided in subparagraphs 10(e)(3)-(6) of this paragraph, and (d) the reevaluation procedure in the other class action afforded the claimant full appeal rights.

(d) SSA will process claims reopened pursuant to this paragraph in accordance with the following schedule:

(1) SSA will make good faith efforts to forward to plaintiffs' counsel within 120 days after the date of settlement a draft of POMS instructions and HALLEX instructions, if any, needed to effectuate paragraphs 8, 9, and 10 of this agreement.

(2) Within 60 days after these POMS instructions are printed and distributed, SSA shall generate and transfer to the appropriate FOs computer-generated alerts pertaining to the claims of all individuals, up to 10,000, who have requested reopening. Within each 90-day interval thereafter, SSA shall transfer alerts pertaining to all, up to 10,000, remaining individuals who have requested reopenings. SSA shall continue such transfers until alerts pertaining to all individuals who have requested reopenings have been transferred. Nothing in this subparagraph shall preclude SSA from transferring more than 10,000 alerts within each interval.

(3) As alerts are transferred to the FOs, reopened claims for class members currently residing in New York State will be integrated into the regular claims determination workload of the New York ODD and will be completed within a reasonable time and with no less priority than such regular claims. Reopened claims for class members who do not reside in New York State will also be completed within a reasonable time.

(4) Within 90 days of issuing any allowance determinations on these reopened claims, SSA will undertake development of title II nondisability factors of eligibility and auxiliary applications and of title XVI nondisability factors of eligibility in order to determine payment amounts and effectuate payments.

(e) SSA will follow these procedures for reopening Stieberger claims:

(1) Class members who request reopening, and are due reopening, will be contacted by the appropriate FO after the FO is alerted by SSA to the request. The FO will inform the class member of his or her right to submit evidence in support of the class member's claim of disability. An appointment will be made to fill out a disability report on the class member's impairment(s) and medical sources. Information obtained at the FO interview will be sent to the component responsible for rendering a determination on the reopened claim.

(2) When the class member has no active disability claim pending at any administrative level at the time of the FO interview, SSA will reopen the Stieberger claim(s) at the reconsideration level. When the class member has an active disability claim pending at any administrative level at the time of the FO interview, SSA may, unless the class member objects, consolidate the Stieberger claim(s) reopening with the active disability claim (i) in OHA, if the active disability claim is pending in OHA or (ii) at the reconsideration level, if the active disability claim is pending at the initial or reconsideration level.

(3) In conducting each reopening of claims that are pending, SSA shall develop the record pursuant to 20 C.F.R. Secs. 404.1512-.1518, 416.912-.918. For purposes of this subparagraph and subparagraphs 10(e)(4), (7), and (8), a pending claim is one for which judicial or administrative review at any level has been requested or would be timely, but for which a determination or decision at that level has not been rendered as of the date reopening is requested.

(4) In conducting each reopening of claims that are not pending, SSA shall develop the record in accordance with 20 C.F.R. Secs. 404.1512-.1518, 416.912-.918 for a four-year period preceding the date SSA receives the request for reopening of the claim(s). In computing the four-year period, SSA shall not count any period for which the person (i) received disability benefits, (ii) received retirement benefits, (iii) has an active claim for disability or retirement benefits, or (iv) has a final denial or termination (on grounds otherthan that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1) issued on a date when the person no longer resided in New York State. SSA shall also develop the record for the period subsequent to the date SSA receives the request for reopening, unless the person has already demonstrated entitlement to benefits for this period. SSA need not develop the record for any period of time prior to the effective date of the earliest claim subject to reopening or for any period of time for which SSA determines that the individual is disabled without further development.

(5) If SSA determines (at any step of the sequential evaluation process) that the individual is not disabled, or is not entitled to disability benefits because of SGA, for all or any part of the period for which the record is developed under subparagraph 4, SSA will also develop the record for the additional earlier period for which there is in effect an application the determination on which establishes the opportunity for reopening as set forth in paragraph 8 (except for periods for which SSA has issued a final denial or termination on a date when the individual resided outside of New York State on grounds other than that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1), if:

(i) the individual has a chronic impairment that the individual alleges was more severe in the past, and more information is needed about any earlier, acute phase (e.g., rheumatoid arthritis in major joints that is not currently active, previously uncontrolled epilepsy that is now under control, previously uncontrolled diabetes that is now under control); or

(ii) the individual has a new treating source(s) or no treating source and it is learned that other evidence may be available, e.g., from former treating source(s) that may attest to more serious impairment.

(6) If further development is required under subparagraphs 10(e)(5)(i)-(ii), SSA shall secure prior folders and reconstruct evidence to ensure full and fair consideration of the claim, unless disability can otherwise be found for such period.

(7) When a person is found entitled to disability benefits on a non-pending claim or claims reopened under this paragraph, all payments on such claims are subject to the regular payment, nonpayment and reduced payment provisions of the Social Security Act and payments will be made as follows:

(i) Persons found disabled during the period specified in subparagraph 4 will be paid for the period ending with (and including) the month that includes the date halfway between April 1, 1991, and the date of settlement and beginning with (and including) whichever of the following is later: (a) the first full month that began within 4 years of the date halfway between April 1, 1991, and the date of settlement or (b) the earliest datHP LaserJet II D (Additional)HLIIDADD.PRS so long as that person continued to be disabled and otherwise eligible.

(ii) Persons found disabled pursuant to development exceptions under subparagraphs 10(e)(5)(i)-(ii) above will be paid for the latest possible entitlement period, of up to 4 years, preceding the first day of the first month beginning on or after the date halfway between April 1, 1991, and the date of settlement. Any such person will also be paid for the period beginning on or after the first day of the first month beginning on or after the date halfway between April 1, 1991, and the date of settlement so long as that person continued to be disabled and otherwise eligible.

(iii) In computing the period for which payment is possible under subparagraphs 10(e)(7)(i) and (ii), SSA shall not count periods for which the person has already been paid disability or retirement benefits, periods for which the person may be eligible for payment under an active claim, or periods for which SSA has issued a final denial or termination (on grounds other than that disability had been previously determined administratively in New York State prior to the issuance of Attachment 1) when the person resided outside of New York State. In addition, payment need not be made on the basis of any application filed earlier than the application the determination on which establishes the opportunity for reopening as set forth in paragraph 8. Earlier periods of entitlement followed by periods of nonentitlement will be treated as closed periods.

(iv) A person claiming Title II benefits shall be considered insured, unless a determination is made after appropriate development that the claimant was not disabled as of the date last insured.

(8) Persons found disabled on pending claims will be paid pursuant to 20 C.F.R. Secs. 404.315-.325; 416.501-.502, and payment shall not be subject to the restrictions of subparagraph 7. Payment on a pending claim does not limit any rights to payment on nonpending claims reopened under this paragraph, except that payment shall not be made more than once for the same period.

(f) SSA will notify each class member of the outcome of the reopening of his or her claims. SSA notices shall set forth the following information, in addition to the information that is routinely included in such notices: (i) the dates of the periods for which disability was considered; (ii) the dates of the periods for which disability is established; (iii) the dates of the periods for which benefits are being awarded, if any; (iv) the basis for any finding of nondisability or denial of benefits.

(g) SSA shall promptly certify payment to the Department of the Treasury for those class members found eligible for payments. Any and all payments of retroactive Title II or Title XVI benefits resulting from reopenings under this settlement shall be made in accordance with the Social Security Act and regulations, as amended.

(h) Individual class members retain all statutory and regulatory rights to administrative and judicial review of any decision on reopening under this settlement. However, the outcome of individual reopenings is not reviewable in this action.
SSA shall provide plaintiffs' counsel with the following information about implementation of this settlement:

(a) Beginning 180 days after SSA issues Attachment 1, SSA shall provide plaintiffs' counsel with a statistical report every 120 days on implementation of this settlement. The report shall state the number of individual notices (Attachment 2) mailed; the number of notices returned as undeliverable; the number of requests for reopening by requesters identified pursuant to subparagraph 9(a); the number of other requests for reopening pursuant to paragraph 9; the number of alerts transferred to FOs pursuant to subparagraph 10(d)(2); and the total number of disability claims SSA reopens at the OHA and ODD levels under this settlement subdivided by the number of allowances, denials and dismissals. SSA may cease furnishing plaintiffs' counsel with the reports described in this subparagraph when SSA has completed reopening or otherwise made determinations concerning at least 90 percent of the reopenings requested during a one year period after the last mailing of notices pursuant to subparagraph 9(b). However, if SSA does cease to furnish such reports, SSA shall, upon request by plaintiffs' counsel, provide information that would have been inccluded in such reports.

(b) SSA shall permit plaintiffs' counsel reasonable access to materials reasonably relevant to implementation of paragraphs 9 and 10 of this settlement, and a sample of cases reopened under this settlement solely for the purpose of monitoring compliance with the settlement.

(c) SSA shall furnish plaintiffs' counsel with a copy of instructions issued under paragraphs 4 and 5.

(d)(i) Instructions for implementation of paragraphs 8, 9, and 10 of this settlement shall be issued in HALLEX and the POMS. At least 30 days prior to issuance of any such HALLEX and POMS materials, SSA shall provide plaintiffs' counsel with the proposed instructional materials.

(ii) Plaintiffs' counsel shall have 30 days to respond with objections to or comment on such materials. The parties will first attempt to resolve any objection by negotiation. If plaintiffs' counsel determine that further negotiation would be fruitless, plaintiffs' counsel shall so notify defendants and state either that judicial resolution will be sought or that the objection should be considered resolved. If defendants conclude that further negotiation would be fruitless, defendants shall so notify plaintiffs' counsel; plaintiffs' counsel shall respond within 14 days and state either that judicial resolution will be sought, or that the objection should be considered resolved.

(iii) If plaintiffs' counsel objects to any portion of the instructional materials, SSA shall not issue the material that is the subject of the objection until the objection is resolved except to the extent provided by subparagraph 11(d)(iv). Any time period required by this agreement for undertaking or completing the actions addressed by the materials provided to plaintiffs' counsel, or that is dependent upon the undertaking or completion of such actions, shall be tolled until plaintiffs' counsel advise that there are no objections or any such objections are resolved.

(iv) In the event that only some portions of proposed instructional materials are objected to, the parties will attempt in good faith to reach a prompt agreement as to whether transmitting to decisionmakers and reviewers of decisions other portions of the instructional materials prior to resolution of the objection will, on balance, advance the effective, prompt, and efficient administration of the settlement agreement. If the parties are unable to reach agreement, the defendants will determine whether transmittal of some or all of the unobjected-to portions of the instructional materials prior to resolution of the objection will, on balance, advance the effective, prompt, and efficient administration of the settlement agreement, and may thereupon transmit such unobjected-to materials. The provisions of subparagraph 11(d)(iii) will cease to apply with respect to those portions of the materials as to which no objection is made and that are transmitted to agency decisionmakers and reviewers of decisions pursuant to this subparagraph.

(v) In no event shall subparagraph 11(d)(iv) or any other provision of this settlement agreement be deemed to require that defendants transmit to decisionmakers and reviewers of decisions any instructional materials or portion of instructional materials that would require any action to be taken (for example, development of any aspect of a class member's claim for benefits) prior to resolution of any objections if the resolution of such objections could require such action to be taken again (for example, resolution of the objection would require redevelopment of an aspect of a class member's claim). The purpose of this provision is to avoid requiring the defendants to develop or reopen a class member's claim more than once, by virtue of having transmitted portions of instructional materials to which plaintiffs have not objected.

(e) SSA shall provide copies of all final materials implementing this settlement or concerning application of Second Circuit disability decisions to plaintiffs' counsel at the time of issuance to decisionmakers or reviewers of decisions, including, but not limited to, all instructions, teletypes, program circulars, training materials, and videotapes. SSA shall provide plaintiffs' counsel with a copy of the final Manual of Second Circuit Disability Decisions at the time that SSA distributes the Manual pursuant to paragraph 4.

(f) Plaintiffs' counsel shall be notified of SSA team visits to the New ODD described in paragraph F of Attachment 1. Plaintiffs' counsel, or their designated co-counsel, may attend such visits solely in the capacity of observers.
This settlement does not preclude SSA from issuing acquiescence rulings or suspending or rescinding such rulings in accordance with 20 C.F.R. Secs. 404.985 or 416.1485. In the event that SSA suspends or rescinds an acquiescence ruling pursuant to 20 C.F.R. Secs. 404.985 or 416.1485, this settlement does not preclude SSA from suspending, precluding or modifying any instructions issued pursuant to this settlement agreement addressing the same holding of the Second Circuit in order to reflect the action taken pursuant to those regulations. This settlement neither precludes nor authorizes any challenges to application of the procedures and criteria set forth in 20 C.F.R. Secs. 404.985(c-e); 416.1485(c-e) in any particular instance, or a challenge to such procedures on their face in any other action. Similarly, this settlement neither precludes nor authorizes any challenges in any other actions to the suspension, rescission or modification of instructions issued pursuant to this agreement in order to reflect action taken pursuant to 20 C.F.R. Secs. 404.985(c-e) or 416.1485(c-e).
This settlement does not supersede or preclude orders or injunctions issued in other actions delaying or accelerating application of a Second Circuit decision, and does not provide a stay of any injunction or order issued in another action.
This agreement resolves all claims made by plaintiffs Theresa Stieberger, Milagros Sullivan, and Patricia Happy against defendants in this action. This agreement resolves all claims of all present and future class members that the Social Security Administration (in making determinations of claims for disability benefits of New York State residents) fails or failed, at any time on or after October 1, 1981, and before the eighth anniversary of the date of settlement, to have a policy, or to have instructed, that holdings in Second Circuit disability decisions should be followed by SSA or ODD personnel when making decisions in subsequent cases involving residents of the states within the circuit. See Stieberger v. Sullivan, 738 F.Supp. 716, 728-30 (S.D.N.Y.1990). This agreement also resolves all claims of all class members prior to the date of settlement challenging (i) any policies or practices for determining which allowance decisions of ALJs would be examined for possible own-motion review or be subject to own-motion review that used as a criterion in such determination either the percentage of cases in which the ALJ rendering such decisions granted benefits or the percentage of cases in which own-motion review of decisions of such ALJ had been granted; (ii) any policies or practices of random selection of allowance decisions for possible own-motion review; or (iii) any policies or practices determining the percentage of cases to be considered for own-motion review that would be allowance cases. This agreement does not resolve any claim preserved in subparagraphs 5(c) or 5(d) or in paragraphs 12 or 13 of this agreement; any claim that SSA failed or fails properly to comply with the decision of the Second Circuit in Schisler v. Bowen, 851 F.2d 43 (2d Cir.1988); any claim challenging the regulations issued by the Secretary on August 1, 1991, 56 Fed.Reg. 36932-70; any claim heretofore raised in Zebley v. Sullivan, Civ. No. 83-3314 (E.D.Pa.); Hill v. Sullivan, 87 Civ. 4344 (S.D.N.Y.) (LBS); Dixon v. Sullivan, 83 Civ. 7001 (S.D.N.Y.) (WCC); Rios v. Sullivan, Civ. No. 86-2548 (E.D.N.Y.) (Spatt, J); State of New York v. Sullivan, 83 Civ. 5903 (S.D.N.Y.) (RLC); Kendrick v. Sullivan, 90 Civ. 3776 (S.D.N.Y.) (RJW); S.P. v. Sullivan, Civ. No. 90 Civ. 6294 (S.D.N.Y.) (MGC); any claim that SSA has nonacquiesced in Second Circuit decisions that are not Second Circuit disability decisions as defined in subparagraph 1(f) of this agreement; or any claim not raised in this action. The enumeration in the preceding sentence of claims not addressed in this action does not represent or imply agreement by defendants that any such claims would state a claim upon which relief can be granted or would otherwise be valid. Nothing in this agreement shall prevent any class member from pursuing an individual administrative appeal, a request for reopening, or a judicial appeal. Nothing in this agreement shall preclude any class member from arguing in the course of such review that any judicial decision was not applied, or was improperly applied, in his or her individual case.
(a) Counsel for the parties may, at any time, mutually agree to modify this settlement. If counsel for the parties agree that a modification is minor, i.e., does not significantly affect the rights of plaintiffs under this settlement, the parties will notify the Court. Such minor modifications shall become effective ten (10) days after notification to the Court unless the Court objects to the proposed modification. Modifications that may be minor include extensions of time limits, revised instructional formats, and changes with respect to reporting to class counsel.

(b) Modifications agreed to by the parties that are not minor, or that the parties cannot agree are minor, shall not become effective until approved by the Court through a “so-ordered” stipulation or other procedure specified by the Court.

(c) Any party may seek to modify this settlement by duly noticed motion to the Court (1) if there is an occurrence that undermines a fundamental basis of this settlement (for example, enactment of legislation that renders this settlement inconsistent with law; enactment of legislation that expressly empowers SSA to nonacquiesce in decisions of the courts of appeals in situations that are precluded by this settlement; issuance of a decision of the United States Supreme Court upholding a policy of nonacquiescence by SSA; or alteration of the system of judicial review of denials of disability benefits that fundamentally changes the role of the Second Circuit Court of Appeals in reviewing such denials), or (2) for any other reason that would be appropriate under Fed. Rule Civ. 60(b).
This settlement does not constitute an admission by the defendants of any pattern or practice that violates or fails to comply with any law, rule, or regulation dealing with any matter within the scope of the allegations contained in the complaint or otherwise raised by plaintiffs in this action. This settlement does not constitute an admission by the defendants that their position in this litigation was not substantially justified. Nor is this settlement an admission of liability for attorneys fees on the part of the defendants, their agents, or employees. This settlement does not constitute an admission by defendants that the procedure in this agreement for applying the holdings of the Second Circuit to applicable claims of New York residents will result in consistent or errorless agency decisionmaking and review of decisions or in sound administration of the Social Security Act.
Plaintiffs' counsel and defendants' counsel, by their signatures below, warrant that they are sole counsel to the plaintiffs and to the defendants whose interests were represented in this action and that they are authorized to stipulate to the settlement of issues in this action. This settlement shall not be effective until counsel for defendants receives from counsel for the City of New York a letter or other written notice attesting that all required approvals needed to make this settlement binding on the City of New York have been obtained.
This settlement shall be submitted to the district court and shall be effective only upon approval of the court.
The district court shall retain jurisdiction over this action only for the purposes of enforcing this settlement, resolving disputes over whether claimants are entitled to reopenings as provided by subparagraph 9(h) of this agreement, determining matters concerning modification of this agreement pursuant to paragraph 15, and determining whether plaintiffs are entitled to any attorneys' fees.
This agreement shall remain in effect for a period of eight years beginning on the date of settlement. At the end of thiis eight-year period the agreement will expire. Such expiration, however, will not affect obligations to take action incurred during the pendency of the agreement, benefits or entitlements to benefits awarded pursuant to the reopenings provided herein, the release and settlement of claims accrued during the eight-year period, or any action or motion to enforce the provisions of the agreement with respect to the eight-year period.
(a) Theresa Stieberger—SSA agrees that Theresa Stieberger will be paid title II disability insurance benefits beginning with the month of December 1981 based on the onset date of June 15, 1981, which was alleged in both her October 1981 and her April 1983 applications. (Ms. Stieberger has already been paid all title XVI Supplemental Security Income disability benefits to which she is retroactively entitled based on her October 1981 application.)

SSA also agrees that Ms. Stieberger may present evidence that mental incapacity prevented her from timely requesting review of the adverse determination made in her case in November 1974 and that she had no one legally responsible for prosecuting her claim at that time. If Ms. Stieberger presents such evidence, SSA will determine whether or not good cause exists for extending the time to request review as provided in Social Security Ruling (“SSR”) 91-5p. If good cause is determined to exist, the time to request review of the November 1974 determination will be extended and the action that would have been appropriate had Ms. Stieberger filed a timely request for review will be taken.

(b) Milagros Sullivan—SSA agrees that Milagros Sullivan will be paid title II disability insurance benefits beginning with the month of October 19982, the onset date alleged in her October 1982 application. (Ms. Sullivan has already been paid all title XVI Supplemental Security Income disability benefits to which she is retroactively entitled based on her application of October 6, 1982.)

SSA also agrees that Ms. Sullivan may present evidence that mental incapacity prevented her from timely requesting review of the adverse determination made in her case on July 2, 1980, and that she had no one legally responsible for prosecuting her claim at that time. If Ms. Sullivan presents such evidence, SSA will determine whether or not good cause exists for extending the time to request review as provided in SSR 91-5p. If good cause is determined to exist, the time to request review of the July 2, 1980, determination will be extended and the action that would have been appropriate had Ms. Sullivan filed a timely request for review will be taken.

In addition, Ms. Sullivan may request reopening of the June 25, 1979, initial denial determination as provided in 20 C.F.R. Secs. 404.987-.989 and 416.1487-.1489. If Ms. Sullivan makes such a request, SSA will determine whether or not a basis exists for such reopening employing the regulations cited above. If a basis is determined to exist, Ms. Sullivan's June 25, 1979, denial will be reopened.

(c) Patricia Happy—SSA agrees that Patricia Happy will be paid title II disability insurance benefits beginning the month of April 1983, based on an onset date of October 1982 when she alleges that she stopped working. (Ms. Happy has already been paid title XVI benefits from February 1985 to September 1989 based on an order of the Court.)

SSA agrees that Ms. Happy will be paid title XVI SSI disability benefits from August 1983, the month of her SSI application, through January 1985.

Benefits for months beginning January 1989 for title II and September 1989 for title XVI will be paid subject to the trial work period, extended period of disability, work incentive and overpayment provisions of the statute and regulations.

(d) Any payments issued to plaintiffs Stieberger, Sullivan, and Happy pursuant to the terms in this paragraph shall be offset against benefit payments already received by these plaintiffs, in accordance with regular program requirements.

(e) Notwithstanding any other provision of this agreement, the relief provided pursuant to this paragraph is the sole and exclusive relief to be provided to plaintiffs Theresa Stieberger, Milagros Sullivan, and Patricia Happy in this action.
Within ten (10) days of the date of settlement, SSA will inform decisionmakers and reviewers of decisions that SSA instructional materials pertaining to the preliminary injunction that was issued in this case on August 19, 1985, including POMS Sec. 12586.001-095 (Transmittal No. 1, SSA Pub. No. 68-0412500, April 1986), Sec. 32586.001-095 (Transmittal No. 1, SSA Pub. No. 68-0432500, April 1986), Sec. 42586.001-015 (Transmittal No. 1, SSA Pub. No. 68-0442500, April 1986), and HALLEX Secs. I-5-4-13, -4-13-A, -4-13-B, are no longer of force or effect.
The parties will jointly seek an order from the Court permitting the disclosures contemplated by this agreement as a limited exception to otherwise applicable requirements of the Privacy and Social Security Acts. In the event that such an order is not granted in whole or part, the portions of the agreement requiring disclosures that would otherwise be inconsistent with the Privacy or Social Security Acts will not take effect except to the extent permitted by the Court's order, but the validity of the remainder of this agreement shall not be affected by the denial or partial denial of (or inaction upon) the request for such an order.
This agreement does not preclude any defendant, any counsel for defendants, any agent for defendants, or any other person (regardless of his or her state of residence) from disagreeing with any Second Circuit decision or holding, from expressing such disagreement or otherwise criticizing any Second Circuit decisions or holdings, or from seeking to overturn or to limit or to have superseded any Second Circuit decision. This paragraph does not, however, authorize any statement that could be reasonably understood by decisionmakers or reviewers of decisions as instructing or authorizing them not to follow any Second Circuit decision or holding.
Neither this settlement agreement nor any assertion by plaintiffs that instructions were not issued in good faith shall be deemed to constitute a waiver by defendants of either any applicable privileges or any applicable protection of the work-product doctrine with respect to: (i) drafts of the instructions required by paragraph 5; (ii) any recommendations or deliberations concerning whether or how to promulgate any such instruction; (iii) any recommendations or deliberations concerning whether to appeal, seek rehearing, or seek certiorari with respect to the decision or decisions subject to such instructions; (iv) any draft of, or recommendations or deliberations concerning whether or how to issue, any ruling or proposed ruling of acquiescence under 20 C.F.R. Secs. 404.985 and 416.1485; (vi) any materials prepared in connection with or in anticipation of litigation; or (vii) any predecisional materials concerning individual cases, including but not limited to predecisional notes of Appeals Council Administrative Appeals Judges, administrative law judges, or other decisionmakers, and any communications between any such decisionmakers and persons assigned to assist them in preparation of a decision or opinion in an individual case. The omission of a class of privileged documents from the foregoing list shall not give rise to an inference that defendants have waived any privilege except to the extent (if any) that a privilege is expressly waived by specific provision of this agreement. Nor does the inclusion of any class of documents in this paragraph give rise to an inference that such documents are privileged or that plaintiffs have waived any rights with respect to such documents.

Attachment 1.

APPLICATION OF SECOND CIRCUIT DECISIONS TO SOCIAL SECURITY
ACT DISABILITY BENEFIT CLAIMS OF NEW YORK RESIDENTS

A. General Rule

Effective immediately, all persons who decide Social Security Act disability benefit claims of New York State residents or who review such decisions shall follow and apply the holdings of the United States Court of Appeals for the Second Circuit, except when written instructions to the contrary are issued pursuant to paragraphs D and E. This instruction applies to all Second Circuit disability decisions except those that are expressly designated not for publication.

B. How to Apply Holdings

Holdings of the Second Circuit Court of Appeals must be applied at all levels of administrative review to all claims for title II and title XVI disability benefits filed by New York State residents, unless written instructions to the contrary are issued pursuant to paragraphs D and E. You must apply those holdings in good faith and to the best of your ability and understanding whether or not you view them as correct or sound.

In general, a holding in a decision is a legal principle that is the basis of the court's decision on any issue in the case. There may be more than one holding in a decision. A holding must be applied whenever the legal principle is relevant.

Not all of the discussion in a decision is a holding. For example, the factual discussion in a decision is not a holding although it can help you understand the holding by placing it in context. Also, in their decisions courts may make observations or other remarks that are helpful in understanding the court's reasoning. You are required to apply the holdings, not those observations or other comments of the court.

Of course, you should continue to make sure that the decision whether a claimant is disabled is an individualized decision based on the evidence regarding that claimant.

C. Availability of Decisions and Instructions

To help ensure that decisionmakers and reviewers of decisions apply Second Circuit holdings, SSA will do the following:

SSA will provide each office of decisionmakers and reviewers of decisions with a copy of the settlement approved by the Court in Stieberger v. Sullivan.
SSA will provide all decisionmakers and reviewers of decisions with a Manual of Second Circuit disability decisions (“Manual”) containing excerpts of the principal holdings of the Second Circuit issued before [XXXX date], the date that the settlement in Stieberger was approved by the Court.
SSA will provide each office of decisionmakers and reviewers of decisions with a copy of each Second Circuit disability decision issued after [XXX date] promptly after the decision is issued by the Court. Each such office shall maintain a volume containing copies of these decisions. This volume shall be readily accessible to decisionmakers and reviewers of decisions.
SSA will issue instructions to ODD decisionmakers and reviewers of decisions about applying Second Circuit decisions rendered after [xxxx date]. These instructions must be added to the Manual as supplements. SSA may issue instructions to OHA adjudicators.

You should familiarize yourself with the Manual, with SSA's instructions on Second Circuit holdings, and with Second Circuit decisions as they are issued.

While SSA will take the steps described above to help you apply Second Circuit holdings, you must apply the holdings even in the absence of an instruction, and even if they are not included in the Manual.

Example: You have become aware of a Second Circuit disability decision (for example, a claimant draws it to your attention or you receive notification of it from SSA), but you have not yet received an instruction from SSA on how to apply the decision and it is not in the Manual. You must apply the holding(s) of that decision to all claims where it is relevant.

D. Instructions Regarding When Decisions Become Effective

You must apply the holdings in a decision once the decision becomes effective. A decision of the Second Circuit generally becomes effective 20 days after the decision is issued by the Court, unless a specific written instruction is issued that requires the decision to be applied earlier or later. If you have not received instructions about a particular Second Circuit decision issued after the date of this instruction, consult with your supervisor for further guidance about whether the decision has become effective. (If you are an administrative law judge, you may inquire with the Regional Office concerning the status of the decision.)
As long as a Second Circuit decision is pending further court review, SSA may instruct decisionmakers and reviewers of decisions not to apply some or all holdings stated in that Second Circuit decision. In such instances SSA will issue specific instructions explaining which holdings are not to be applied and identifying the issues addressed by those holdings. When such instructions are issued, decisionmaking and reviewing offices will maintain a list of disability claims decisions that may be affected because the Second Circuit holding is not being applied. Any notice sent to claimants on the list, denying benefits in whole or in part, will include the following language:

If you do not agree with this decision, you can appeal. You must ask for an appeal within 60 days.

You should know that we decided your claim without applying all of what the court said about the law in _________. __________ is a recent court ruling that we do not consider final because it may be reviewed further by the courts. If it becomes final, we may contact you again.

If you disagree with our decision in your case, do not wait for us to contact you. You should appeal within 60 days of the date you receive this notice. If you do not appeal within 60 days, you may lose benefits.
When no further judicial review of a Second Circuit decision will occur, SSA will promptly rescind any instructions issued under this paragraph D, and will advise decisionmakers and reviewers of decisions about the final decision in the case. SSA will also explain what action is to be taken, including any reopenings, with respect to claimants whose cases may have been affected by the instruction not to apply the Second Circuit decision pending further court review.

E. Issuance and Rescission of Acquiescence Rulings

This instruction on application of Second Circuit decisions to disability benefit claims does not prevent SSA from issuing or rescinding acquiescence rulings, or relitigating issues under 20 C.F.R. 404.985 and 416.1485.

F. Questions Concerning this Instruction and Second Circuit Decision

This instruction is issued pursuant to the settlement agreement in Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.). A copy of the complete agreement is available in your office. Any questions about applying Second Circuit decisions that you cannot resolve yourself may be directed to your supervisors and, if more guidance is needed, through supervisory channels to the Litigation Staff in SSA Central Office in Baltimore, Maryland. In addition, a team of SSA personnel will visit the New York ODD one month after you receive this instruction and quarterly thereafter for 3 years to discuss any questions decisionmakers and reviewers of decisions have about applying Second Circuit disability decisions.

G. Binding Effect of This Instruction

This instruction is binding on all personnel, including state employees, ALJs, Appeals Council Administrative Appeals Judges, quality assurance staff, and all other personnel who process, render decisions on, or review claims of New York residents for disability benefits under the Social Security Act.

Because this instruction arises out of a lawsuit, it does not apply to claims of any persons who do not reside in the State of New York. However, this limitation does not lessen the extent to which court decisions are to be applied to claims of persons who reside in any other state. This limitation also should not be deemed to suggest that such decisions are not given or should not be given proper consideration in any other state.

Attachment 2.

HEADING

We have good news for you about your past claim for disability benefits. We are writing to you about a court case that may affect you. Because of this court case you may be entitled to money from Social Security. Please read this letter carefully.

INFORMATION ABOUT THE COURT CASE

You may be entitled to Social Security or Supplemental Security Income disability payments based on a past claim you filed. In a recent court case called Stieberger v. Sullivan, we agreed to look again at certain claims that were denied or where payments were stopped. We believe that your claim may be one of those that we agreed to look at again.

HOW TO ASK FOR A REVIEW

We will not look at your claim again unless you ask us to do so. If you want us to do this, fill out the enclosed reply form that came with this letter and mail it right away in the enclosed envelope. You have 180 days from the day you received this letter to ask us to look at your claim again, but don't wait. If you don't send the form back, we will not look at your claim again. We will write to you when we receive your reply form.

IF YOU NOW GET MONEY FROM SOCIAL SECURITY

Even if you get money from Social Security, we may still owe you more money. Return the reply form in this letter within 180 days to ask us to look at your past claim again.

PROTECTING YOUR RIGHTS

Sending in the enclosed reply form does not protect your rights on any other claim for benefits. If you have a claim for benefits that we are still considering or that we recently denied and you disagree with our decision, you must follow the guidelines that we tell you about in the notice on that claim.

IF YOU HAVE ANY QUESTIONS

If you have any questions, you may contact any Social Security Office. The address and phone number of your local Social Security office are printed at the top of this page. If you call or visit an office, please take this letter with you. It will help us answer your questions.

FOR HELP

Additionally, if you have someone helping you with your claim, you should contact him/her. You also may contact one of the following offices to obtain a legal representative, or you may contact the lawyers in this case. These offices are listed below.

OFFICES THAT WILL REFER YOU TO ORGANIZATIONS THAT PROVIDE FREE LEGAL REPRESENTATION

New York City area:

Legal Services for New York City, (212) 431-7200, or

The Legal Aid Society, (212) 227-2755.

The Rest of New York State:

Greater Upstate Law Project, (800) 724-0490, or (800) 635-0355

OFFICE THAT WILL REFER YOU TO AN ATTORNEY WHO WILL CHARGE A FEE FOR REPRESENTATION

Throughout New York State:

National Organization of Social Security Claimants' Representatives, (800) 431-2804, or (914) 735-8812

OFFICES OF THE LAWYERS THAT REPRESENTED CLAIMANTS IN THIS LAWSUIT

The Legal Aid Society of New York
Civil Division, Civil Appeals & Law Reform Unit
11 Park Place Room 1805
New York, New York 10007
(212) 406-0745

Legal Services for the Elderly
130 W. 42nd Street 17th Floor
New York, New York 10036-7803
(212) 391-0120

MFY Legal Services
35 Avenue A
New York, New York 10009
(212) 475-8000

Attachment 3.

NOTICE OF AVAILABILITY OF RELIEF UNDER STIEBERGER V. SULLIVAN

In Stieberger v. Sullivan, Civil Action No. 84 CIV 1302 (LBS) (S.D.N.Y.1990), the Court granted relief to a class of New York residents whose Title II or Title XVI disability benefits were denied or terminated. YOU ARE A MEMBER OF THE STIEBERGER CLASS. Since you also have this separate lawsuit pending, you now need to make a choice.

You can proceed with this individual lawsuit. If you do this, you will not get relief as a STIEBERGER class member on the claim before the court.

You can request dismissal of your individual lawsuit and receive consideration as a Stieberger class member. As a Stieberger class member, you are entitled to reopening of your claim by the Social Security Administration. In this process, you may present any further evidence you wish to present in relation to your claim. Once the Social Security Administration makes a decision on your claim, you will have a right to both agency and judicial review of the Social Security Administration's decision if you disagree with it.

Defendant's counsel will be happy to give you a copy of the Court's order in the Stieberger case. You may also contact the following offices that were counsel for the class:

The Legal Aid Society
Civil Division, Civil Appeals & Law Reform Unit
11 Park Place Room 1805
New York, New York 10007
(212) 406-0745

Legal Services for the Elderly
130 W. 42nd Street 17th Floor
New York, New York 10036-7803
(212) 391-0120

MFY Legal Services
35 Avenue A
New York, New York 10009
(212) 475-8000

They can answer any questions about the Stieberger case that you may have.

____________________
Defendant's Counsel

Attachment B. July 2, 1992 Teletype From the Director, Litigation Staff, Office of the Deputy Commissioner for Program

TELEGRAPHIC MESSAGE

Agency: HHS, SSA

Author: Gaye Wallace Date: July 2, 1992

Phone: (410) 965-1770

From: ODCP, Litigation Staff, Baltimore, MD

TO: SSARC in Region II

TO: All SSAARCSFOS/SSAARCSPGS in New York State

TO: New York State DDS

TO: SSAODCPLS (SAWNY)

TO: SSAOHACO (SAWDY)

TO: All SSAPSCS/PSCDRS in New York State

TO: ODIO

TO: All SSADOS/SSABOS/SSATSCS in New York State

TO: SSAOOMPI

TO: All SSAADS in New York State

TO: ALL SSAROPIR/SSADQBS

TO: All SSADPEQS/SSADPEQSOS

TO: All SSAOPIRS

TO: SSAOHARO in Region II

TO: All OHAHOS in New York State

TO: SSAOD

TO: SSADCO

TO: COS

TO: Chief Counsel, Region II

TO: (SSARO - Deliver)

IT-92-11

Emergency DI/SSI Instructions OD-92-071 (2782)

Published Instructions Will Follow Shortly

SUBJECT: Stieberger v. Sullivan Class Action Lawsuit Settlement Agreement - Adjudication Instructions—ACTION

INTRODUCTION

On June 18, 1992, Judge Sand, of the Southern District of New York, signed the Stieberger v. Sullivan class action lawsuit settlement agreement. In accordance with the provisions of the settlement agreement, all state and federal adjudicators must comply with Second Circuit holdings in adjudicating or reviewing claims of New York State residents for disability benefits, as set forth below. POMS and HALLEX instructions related to the 1985 Stieberger preliminary injunction (including POMS DI 12586.001-095 (Transmittal No. 1, SSA Pub. No. 68-0412500, April 1986), DI 32586.001-095 (Transmittal No. 1, SSA Pub. No. 68-0432500, April 1986), DI 42586.001-015 (Transmittal No. 1, SSA Pub. No. 68-0442500, April 1986), and HALLEX I-5-4-13, I-5-4-13A, I-5-4-13B) are hereby rescinded. Also rescinded are any instructions that could in any way be interpreted as calling for nonacquiescence in holdings of the Second Circuit in disability cases. (SSA does not believe such instructions exist; this direction is simply precautionary).

The following instruction is taken verbatim from Attachment 1 of the Stieberger settlement agreement, and will be published for placement in the “Manual of Second Circuit Disability Decisions”, which is discussed below, within the next 3 months. In the meantime, however, please use this teletyped instruction on how to apply Second Circuit holdings in adjudicating or reviewing claims of New York State residents. Please distribute a copy of this teletype to all decisionmakers and reviewers of decisions as soon as possible.

SSA realizes that adjudicators and reviewers will have questions about this. Please either get them to the Litigation Staff (3K26 Operations, Baltimore MD 21235) via the New York Regional Office or accumulate them for the first team visit to the New York ODD which will take place in about one month. OHA personnel should route any questions through the usual channels.

APPLICATION OF SECOND CIRCUIT DECISIONS TO SOCIAL SECURITY ACT DISABILITY BENEFIT CLAIMS OF NEW YORK RESIDENTS

General Rule

Effective immediately, all persons who decide Social Security Act disability benefit claims of New York State residents or who review such decisions shall follow and apply the holdings of the United States Court of Appeals for the Second Circuit, except when written instructions to the contrary are issued pursuant to paragraphs D and E. This instruction applies to all Second Circuit disability decisions except those that are expressly designated not for publication.
How to Apply Holdings

Holdings of the Second Circuit Court of Appeals must be applied at all levels of administrative review to all claims for title II and title XVI disability benefits filed by New York State residents, unless written instructions to the contrary are issued pursuant to paragraphs D and E. You must apply those holdings in good faith and to the best of your ability and understanding whether or not you view them as correct or sound.

In general, a holding in a decision is a legal principle that is the basis of the court's decision on any issue in the case. There may be more than one holding in a decision. A holding must be applied whenever the legal principle is relevant.

Not all of the discussion in a decision is a holding. For example, the factual discussion in a decision is not a holding although it can help you understand the holding by placing it in context. Also, in their decisions courts may make observations or other remarks that are helpful in understanding the court's reasoning. You are required to apply the holdings, not those observations or other comments of the court.

Of course, you should continue to make sure that the decision whether a claimant is disabled is an individualized decision based on the evidence regarding that claimant.
Availability of Decisions and Instructions

To help ensure that decisionmakers and reviewers of decisions apply Second Circuit holdings, SSA will do the following:
1. SSA will provide each office of decisionmakers and reviewers of decisions with a copy of the settlement approved by the Court in Stieberger v. Sullivan.
2. SSA will provide all decisionmakers and reviewers of decisions with a Manual of Second Circuit disability decisions (“Manual”) containing excerpts of the principal holdings of the Second Circuit issued before June 18, 1992, the date that the settlement in Stieberger was approved by the Court.
3. SSA will provide each office of decisionmakers and reviewers of decisions with a copy of each Second Circuit disability decision issued after June 17, 1992 promptly after the decision is issued by the Court. Each such office shall maintain a volume containing copies of these decisions. This volume shall be readily accessible to decisionmakers and reviewers of decisions.
4. SSA will issue instructions to ODD decisionmakers and reviewers of decisions about applying Second Circuit decisions rendered after June 17, 1992. These instructions must be added to the Manual as supplements. SSA may issue instructions to OHA adjudicators.
You should familiarize yourself with the Manual, with SSA's instructions on Second Circuit holdings, and with Second Circuit decisions as they are issued.

While SSA will take the steps described above to help you apply Second Circuit holdings, you must apply the holdings even in the absence of an instruction, and even if they are not included in the Manual.

Example: You have become aware of a Second Circuit disability decision (for example, a claimant draws it to your attention or you receive notification of it from SSA), but you have not yet received an instruction from SSA on how to apply the decision and it is not in the Manual. You must apply the holding[s] of that decision to all claims where it is relevant.
Instructions Regarding When Decisions Become Effective
1. You must apply the holdings in a decision once the decision becomes effective. A decision of the Second Circuit generally becomes effective 203 days after the decision is issued by the Court, unless a specific written instruction is issued that requires the decision to be applied earlier or later. If you have not received instructions about a particular Second Circuit decision issued after the date of this instruction, consult with your supervisor for further guidance about whether the decision has become effective. (If you are an administrative law judge, you may inquire with the Regional Office concerning the status of the decision.)
2. As long as a Second Circuit decision is pending further court review, SSA may instruct decisionmakers and reviewers of decisions not to apply some or all holdings stated in that Second Circuit decision. In such instances SSA will issue specific instructions explaining which holdings are not to be applied and identifying the issues addressed by those holdings. When such instructions are issued, decisionmaking and reviewing offices will maintain a list of disability claims decisions that may be affected because the Second Circuit holding is not being applied. Any notice sent to claimants on the list, denying benefits in whole or in part, will include the following language:
  If you do not agree with this decision, you can appeal. You must ask for an appeal within 60 days.
  
  You should know that we decided your claim without applying all of what the court said about the law in . is a recent court ruling that we do not consider final because it may be reviewed further by the courts. If it becomes final, we may contact you again.
  
  If you disagree with our decision in your case, do not wait for us to contact you. You should appeal within 60 days of the date you receive this notice. If you do not appeal within 60 days, you may lose benefits.
3. When no further judicial review of a Second Circuit decision will occur, SSA will promptly rescind any instructions issued under this paragraph D, and will advise decisionmakers and reviewers of decisions about the final decision in the case. SSA will also explain what action is to be taken, including any reopenings, with respect to claimants whose cases may have been affected by the instruction not to apply the Second Circuit decision pending further court review.
Issuance and Rescission of Acquiescence Ruling

This instruction on application of Second Circuit decisions to disability benefit claims does not prevent SSA from issuing or rescinding acquiescence rulings, or relitigating issues under 20 C.F.R. 404.985 and 416.1485.
Questions Concerning this Instruction and Second Circuit Decisions

This instruction is issued pursuant to the settlement agreement in Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.). A copy of the complete agreement is available in your office. Any questions about applying Second Circuit decisions that you cannot resolve yourself may be directed to your supervisors and, if more guidance is needed, through supervisory channels to the Litigation Staff in SSA Central Office in Baltimore, Maryland. In addition, a team of SSA personnel will visit the New York ODD one month after you receive this instruction and quarterly thereafter for 3 years to discuss any questions decisionmakers and reviewers of decisions have about applying Second Circuit disability decisions.
Binding Effect of This Instruction

This instruction is binding on all personnel, including state employees, ALJs, Appeals Council Administrative Appeals Judges, quality assurance staff, and all other personnel who process, render decisions on, or review claims of New York residents for disability benefits under the Social Security Act.

Because this instruction arises out of a lawsuit, it does not apply to claims of any persons who do not reside in the State of New York. However, this limitation does not lessen the extent to which court decisions are to be applied to claims of persons who reside in any other state. This limitation also should not be deemed to suggest that such decisions are not given or should not be given proper consideration in any other state.

	__________________________________
	Jean H. Hinckley, Director, ODCP Litigation Staff

File Code: HA-4-7

Published instructions are targeted to reach users by October 2, 1992.

Attachment C. Manual of Second Circuit Disability Decisions

Manual of Second Circuit Disability Decisions

MANUAL
OF SECOND CIRCUIT
DISABILITY DECISIONS

MANUAL OF SECOND CIRCUIT DISABILITY DECISIONS

TABLE OF CONTENTS
Preface	ii
Instruction	iii
Credibility	1
Credibility — Demeanor; ALJ Observations	3
Cross Examination and Testimony of Witnesses and Authors of Adverse Reports	4
Duration of Impairments	6
Duty to Develop Record	7
Findings Requirement — What Must be in a Disability Decision	10
Impairments — Particular Impairments	12
Medical Evidence	15
Onset of Disability	19
Pain	21
Post Hearing Development	25
Residual Functional Capacity Assessment	26
Sedentary Work	28
Severe / Non-Severe Impairments	30
Shifting Burden of Proof	31
Vocational Considerations — Medical-Vocational Guidelines (Grid)	32
Vocational Considerations — Expert Testimony	35
Vocational Considerations — Employability	37
Weight to be Accorded Other Agency Findings on Disability	38

PREFACE

This Manual is being issued as part of the settlement agreement in Stieberger v. Sullivan. It excerpts principal holdings of the Second Circuit Court of Appeals as of June 18, 1992 concerning standards and procedures for determining disability issued by the Court. The Manual does not contain all holdings of the Second Circuit. Following this preface the Manual includes an instruction issued as part of the Stieberger settlement that explains how holdings are to be applied and describes the ways in which SSA will inform personnel of Second Circuit decisions issued after June 18, 1992. A copy of the full settlement in Stieberger has been distributed to all offices that adjudicate or review the adjudication of claims filed by New York State residents.

Many of the quotations excerpted in this Manual discuss how claims should be handled at the Administrative Law Judge (ALJ) or Appeals Council level and thus may not have direct applicability to prior decisionmaking levels (e.g., cases dealing with cross-examination). Those quotations are nevertheless available in this Manual for decisionmakers at prior levels both to provide information on how claims are developed and decided in the Office of Hearings and Appeals and because, in some instances, the specific holdings of how ALJs should handle cases may help illuminate a more general principle that also applies at the DDS level.

Accordingly, cases or sections of this Manual which have more impact on decisionmaking at the Office of Hearings and Appeals level as opposed to the Office of Disability Determinations level have been asterisked.

APPLICATION OF SECOND CIRCUIT DECISIONS TO SOCIAL SECURITY ACT DISABILITY BENEFIT CLAIMS OF NEW YORK RESIDENTS

General Rule

Effective immediately, all persons who decide Social Security Act disability benefit claims of New York State residents or who review such decisions shall follow and apply the holdings of the United States Court of Appeals for the Second Circuit, except when written instructions to the contrary are issued pursuant to paragraphs D and E. This instruction applies to all Second Circuit disability decisions except those that are expressly designated not for publication.
How to Apply Holdings

Holdings of the Second Circuit Court of Appeals must be applied at all levels of administrative review to all claims for title II and title XVI disability benefits filed by New York State residents, unless written instructions to the contrary are issued pursuant to paragraphs D and E. You must apply those holdings in good faith and to the best of your ability and understanding whether or not you view them as correct or sound.

In general, a holding in a decision is a legal principle that is the basis of the court's decision on any issue in the case. There may be more than one holding in a decision. A holding must be applied whenever the legal principle is relevant.

Not all of the discussion in a decision is a holding. For example, the factual discussion in a decision is not a holding although it can help you understand the holding by placing it in context. Also, in their decisions courts may make observations or other remarks that are helpful in understanding the court's reasoning. You are required to apply the holdings, not those observations or other comments of the court.

Of course, you should continue to make sure that the decision whether a claimant is disabled is an individualized decision based on the evidence regarding that claimant.
Availability of Decisions and Instructions

To help ensure that decisionmakers and reviewers of decisions apply Second Circuit holdings, SSA will do the following:
1. SSA will provide each office of decisionmakers and reviewers of decisions with a copy of the settlement approved by the Court in Stieberger v. Sullivan.
2. SSA will provide all decisionmakers and reviewers of decisions with a Manual of Second Circuit disability decisions (“Manual”) containing excerpts of the principal holdings of the Second Circuit issued before June 18, 1992, the date that the settlement in Stieberger was approved by the Court.
3. SSA will provide each office of decisionmakers and reviewers of decisions with a copy of each Second Circuit disability decision issued after June 17, 1992 promptly after the decision is issued by the Court. Each such office shall maintain a volume containing copies of these decisions. This volume shall be readily accessible to decisionmakers and reviewers of decisions.
4. SSA will issue instructions to ODD decisionmakers and reviewers of decisions about applying Second Circuit decisions rendered after June 17, 1992. These instructions must be added to the Manual as supplements. SSA may issue instructions to OHA adjudicators.
You should familiarize yourself with the Manual, with SSA's instructions on Second Circuit holdings, and with Second Circuit decisions as they are issued.

While SSA will take the steps described above to help you apply Second Circuit holdings, you must apply the holdings even in the absence of an instruction, and even if they are not included in the Manual.
Example: You have become aware of a Second Circuit disability decision (for example, a claimant draws it to your attention or you receive notification of it from SSA) but you have not yet received an instruction from SSA on how to apply the decision and it is not in the Manual. You must apply the holding(s) of that decision to all claims where it is relevant.
Instructions Regarding When Decisions Become Effective
1. You must apply the holdings in a decision once the decision becomes effective. A decision of the Second Circuit generally becomes effective 20 days after the decision is issued by the Court, unless a specific written instruction is issued that requires the decision to be applied earlier or later. If you have not received instructions about a particular Second Circuit decision issued after the date of this instruction, consult with your supervisor for further guidance about whether the decision has become effective. (If you are an administrative law judge, you may inquire with the Regional Office concerning the status of the decision.)
2. As long as a Second Circuit decision is pending further court review, SSA may instruct decisionmakers and reviewers of decisions not to apply some or all holdings stated in that Second Circuit decision. In such instances SSA will issue specific instructions explaining which holdings are not to be applied and identifying the issues addressed by those holdings. When such instructions are issued, decisionmaking and reviewing offices will maintain a list of disability claims decisions that may be affected because the Second Circuit holding is not being applied. Any notice sent to claimants on the list, denying benefits in whole or in part, will include the following language:
  If you do not agree with this decision, you can appeal. You must ask for an appeal within 60 days.
  
  You should know that we decided your claim without applying all of what the court said about the law in __________. ___________ is a recent court ruling that we do not consider final because it may be reviewed further by the courts. If it becomes final, we may contact you again.
  
  If you disagree with our decision in your case, do not wait for us to contact you. You should appeal within 60 days of the date you receive this notice. If you do not appeal within 60 days, you may lose benefits.
3. When no further judicial review of a Second Circuit decision will occur, SSA will promptly rescind any instructions issued under this paragraph D, and will advise decisionmakers and reviewers of decisions about the final decision in the case. SSA will also explain what action is to be taken, including any reopenings, with respect to claimants whose cases may have been affected by the instruction not to apply the Second Circuit decision pending further court review.
Issuance and Rescission of Acquiescence Rulings

This instruction on application of Second Circuit decisions to disability benefit claims does not prevent SSA from issuing or rescinding acquiescence rulings, or relitigating issues under 20 C.F.R. 404.985 and 416.1485.
Questions Concerning this Instruction and Second Circuit Decisions

This instruction is issued pursuant to the settlement agreement in Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.). A copy of the complete agreement is available in your office. Any questions about applying Second Circuit decisions that you cannot resolve yourself may be directed to your supervisors and, if more guidance is needed, through supervisory channels to the Litigation Staff in SSA Central Office in Baltimore, Maryland. In addition, a team of SSA personnel will visit the New York ODD one month after you receive this instruction and quarterly thereafter for 3 years to discuss any questions decisionmakers and reviewers of decisions have about applying Second Circuit disability decisions.
Binding Effect of This Instruction

This instruction is binding on all personnel, including state employees, ALJs, Appeals Council Administrative Appeals Judges, quality assurance staff, and all other personnel who process, render decisions on, or review claims of New York residents for disability benefits under the Social Security Act.

Because this instruction arises out of a lawsuit, it does not apply to claims of any persons who do not reside in the State of New York. However, this limitation does not lessen the extent to which court decisions are to be applied to claims of persons who reside in any other state. This limitation also should not be deemed to suggest that such decisions are not given or should not be given proper consideration in any other state.

CREDIBILITY

Evaluation of credibility in general

Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979), CCH 16,657

"The Secretary is not obliged to accept without question the credibility of such subjective evidence . . . the Administrative Law Judge has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, and other evidence, in light of medical findings regarding the true extent of pain alleged by the claimant.
Specific findings on credibility required

* Williams on behalf of Williams v. Bowen, 859 F.2d 255 (2d Cir. 1988).

"As a fact finder the ALJ is free to accept or reject testimony like that given by Joyce and Loretta Williams. A finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record. Carroll v. Secretary of Health and Human Servs., Cir. 705 F.2d 638 (2d 1983). The failure to make credibility findings regarding the critical testimony fatally undermines the Secretary's argument that there is substantial evidence adequate to support his conclusion that claimant is not under a disability. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

Dumas v. Schweiker, 712 F.2d 1545 (2d Cir. 1983), 2 S.S.R.S. 362, CCH 14,650

“The Secretary is entitled to rely not only on what the record says, but also on what it does not say. Rutherford v. Schweiker, 685 F.2d at 63; Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) (per curiam). The Secretary is entitled to rely on the medical record and his evaluation of claimant's credibility in determining whether the claimant suffers from disabling pain. Rutherford v. Schweiker, 685 F.2d at 63; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). . . . Miles v. Harris, 645 F.2d at 124.'”
Assessing credibility of claimant with a good work record

Rivera v. Schweiker, 717 F.2d 719 (2d Cir. 1983), 3 S.S.R.S. 21, CCH 14,771

“Second, any evidence of a desire by Rivera to work would merely emphasize the positive value of his 32-year employment history. A claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability. Singletary v. Secretary of Health, Education and Welfare, 623 F.2d 217, 219 (2d Cir. 1980).”
Duty of ALJ to consider possible bias of evidence source

Cullinane v. Sec. of Health and Human Services, 728 F.2d 137 (2d Cir. 1984), 4 S.S.R.S. 164, CCH 15,137

It can hardly be questioned that a report submitted by a witness whose self-interest may well have dictated its contents cannot and should not be permitted to constitute substantial evidence. Echevarria v. Secretary of Health and Human Services, supra." [Claimant was suing treating physician for malpractice].

References:

Social Security Rulings: SSR 88-13, Evaluation Of Pain and Other Symptoms

Social Security Regulations: 20 CFR §§ 404.1529 and 416.929

* CREDIBILITY — DEMEANOR; ALJ OBSERVATIONS

Observations of claimant's demeanor entitled to limited weight

De Leon v. Sec. of Health and Human Services, 734 F.2d 930, (2d Cir. 1984), 5 S.S.R.S. 232, CCH 15,100

“Finally, insofar as the ALJ relied on factors such as De Leon's demeanor or appearance, such factors really do not contribute toward meeting the substantial evidence burden in cases of this nature. See Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1981). As we said in Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 n. 6 (2d Cir. 1972), '[t]o receive benefits . . . one need not be completely helpless or unable to function....' The applicant for disability need not be 'a total 'basket case,' Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). However De Leon may have appeared at his hearing, we cannot ignore the overwhelming evidence that he has severe, disabling psychological and other problems.”

Varela v. Sec. of Health and Human Services, 711 F.2d 482 (2d Cir. 1983), 2 S.S.R.S. 289, CCH 14,649

“The ALJ's finding that appellant is not disabled by her psychiatric condition was based on her demeanor at the hearing and her failure to testify as to any continuing psychiatric problem. Evidently, the ALJ disregarded the medical report of Dr. Garcia, and the concern of Dr. Braaf, in favor of his own observations during the hearing.... Although we do not reject the possibility that on the basis of his own direct observations an ALJ may disregard an examining psychiatrist's diagnosis, nevertheless, before doing so the ALJ should make a more complete and revealing record than has been established here.”

Carroll v. Sec. of Health and Human Services, 705 F.2d 638 (2d Cir. 1983), 2 S.S.R.S. 10, CCH 14,549

“The ALJ's observation that Carroll sat through the hearing without apparent pain, being that of a lay person, is entitled to but limited weight, see Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982), and since only a 40-minute period was involved it is not inconsistent with the medical evidence and Carroll's own testimony.”

Rivera v. Schweiker, 717 F.2d 719 (2d Cir. 1983)

“In assessing Rivera's allegations of pain, the ALJ placed principal, if not sole, reliance upon his observations at the hearing. The ALJ's observations, under these circumstances, are entitled to limited weight. See Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 643 (2d Cir. 1983).”

* CROSS-EXAMINATION AND TESTIMONY
OF WITNESSES AND AUTHORS OF ADVERSE REPORTS

Cross examination of medical advisor [medical expert]

McLaughlin v. Sec. of the HEW, 612 F.2d 701 (2d Cir. 1980)

“While we agree with this conclusion [that the agency decision is supported by substantial evidence] we reverse because the ALJ imposed undue limitations on cross-examination of the 'medical advisor' with respect to a highly material point.”
Cross examination of author of adverse report and presentation of rebuttal evidence

Townley v. Heckler, 748 F.2d 109, 113 (2d Cir. 1984), 7 S.S.R.S. 236, 240, CCH 15,662

“A disability benefits claimant has a right to cross examine the author of an adverse report and to present rebuttal evidence. Treadwell v. Schweiker, 698 F.2d 137, 143 (2d Cir. 1983); Allison v. Heckler, 711 F.2d 145, 147 (10th Cir. 1983.); Gullo v. Califano, 609 F.2d 649 (2d Cir. 1979); Lonzollo v. Weinberger, 534 F.2d 712, 714 (7th Cir. 1976). Appellant's attorney, however, was not informed of the need for expert vocational evidence until after the report was filed with the ALJ. Further, appellant was denied an opportunity to examine that vocational report, and, despite claimant's request, no additional hearing was held. Although the ALJ asked appellant's attorney to submit objections and additions to the interrogatories posed to the vocational expert, there is no evidence that the attorney's suggestions were ever forwarded. Moreover, appellant was denied his due process rights to cross-examine the expert and to present rebuttal evidence.”
Testimony from lay witness on claimant's pain and inability to function

Lopez v. Secretary of HHS, 728 F.2d 148, 150 (2d Cir. 1984)

“Moreover, it was simply unfair to preclude the testimony of a sole corroborative witness as cumulative by assuring appellant that her testimony would be accepted and then rejecting it as incredible. . . [T]he [lay] witness was competent to testify as to her observations - of the claimant's evident pain, . . . and her hearing of the claimant's contemporaneous state of mind declarations concerning pain. . . . The ALJ should therefore have allowed appellant's witness to testify. Appellant was unrepresented and speaks little English. - The prospective witness, a young woman, apparently has regular contact with appellant, probably speaks English, and could have provided effective testimony about appellant's inability to function on a daily basis.”
Duty to instruct pro se claimant of right to subpoena and cross-examine a treating physician

Cullinane v. Secretary of HHS, 728 F.2d 137 (2d Cir. 1984)

“[The ALJ] failed, however, to pursue [the pro se claimant's] assertion that [the treating physician's] report was unreliable or to question [the treating physician] concerning the contradiction between the November 6th [1980] prognosis and the two reports filed in October, 1980. In addition the ALJ neglected to instruct the pro se claimant that she had the right to subpoena and cross-examine a treating physician whose documentary evidence had been called into question. [Claimant was suing the treating physician for malpractice.] As a result, the evidence concerning the 'quality and trustworthiness' of the challenged oral surgeon was never sufficiently developed. Fernandez v. Schweiker, 650 F.2d 5, 8 (2d Cir. 1981).”

References:

Richardson v. Perales, 402 U.S. 389 (1971) SSR 71-53c.

DURATION OF IMPAIRMENTS

Moore v. Sec. of the United States Department of Health and Human Services, 778 F.2d 127 (2d Cir. 1985), 12 S.S.R.S. 4, 7, CCH 16,516

“The thrust of the Secretary's position on appeal is simply that Moore has failed to show that his condition in the twelve months prior to April of 1982 continuously precluded him from engaging in his past relevant work as a porter . . . . The fact that Moore responded at least somewhat to treatment simply is not persuasive evidence to the contrary: following closely on the heels of each advance was a relapse into a worsening condition. Although Moore's various discharge summaries noted improvement in his condition, none offered cause for vocational optimism. Cf. Morrone v. Secretary of Health, Education and Welfare, 372 F.Supp. 794, 800 (E.D.Pa. 1974).”

DUTY TO DEVELOP RECORD

Affirmative duty to assist pro se claimant

Cullinane v. Sec. of Health and Human Services, 728 F.2d 137 (2d Cir. 1984), 4 S.S.R.S. 164, CCH 15,137

“An ALJ has an affirmative duty to assist a pro se claimant and 'to scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts.' Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982), citing Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980). A reviewing court is charged with the responsibility of ensuring the evidence is both 'developed and considered.'”
Lay representation

Echevarria v. Secretary, 685 F.2d 751 (2d Cir. 1982)

“[A lay person's] nominal representation . . . did not suspend the ALJ's special duty to pro se claimants, [lay person] only intended to testify and not act as a representative. . . . [a lay person's] nominal representation, Notwithstanding the ALJ was under a special duty to protect Echevarria's rights by ensuring that the hearing be 'fair and adequate.”
Right to counsel

Robinson v. Secretary, 733 F.2d 255 (2d Cir. 1984), 5 S.S.R.S. 96.

"The claimant is entitled to be represented by counsel at the hearing and the ALJ must ensure that the claimant is aware of this right. See Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975).
Failure to develop the record fully results in lack of fair hearing

Robinson v. Secretary, 733 F.2d 255 (2d Cir. 1984), 5 S.S.R.S. 96.

“In sum, the failure of the ALJ to develop the record fully and to afford [the claimant] . . . who was unrepresented by counsel, an adequate opportunity to do so, denied [the claimant] . . . a fair hearing. Accordingly, we reverse the order of the district court with directions to remand the case to the Secretary for further proceedings consistent with this opinion.”
Duty to probe frequency and severity of episodic impairments (e.g., asthma) for pro se claimant

Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir. 1990)

“The ALJ failed to probe into the frequency and severity of [Cruz's] attacks. . . . The ALJ did not explore what circumstances had triggered Cruz's attacks, how often he had been treated or when he had last visited the emergency room. Instead, the ALJ only asked at which hospital Cruz had been treated, and yet did not seek to obtain those hospital records. Further the ALJ never inquired as to whether the nature of Cruz's asthma had changed over the years. Although we do not at all suggest that the ALJ was indifferent to Cruz's condition, it is our view that he did not adequately fulfill his 'affirmative obligation to assist this pro se claimant in developing [his] case.”
ALJ duty to notify pro se claimant of opportunity to contact treating physician for a “more detailed statement”

* Hankerson v. Harris, 635 F.2d 893 (2d Cir. 1980)

“The ALJ also erred in failing to advise plaintiff that he should obtain a more detailed statement from his treating physician. . . . Before the ALJ can reject an opinion of a pro se claimant's treating physician because it is conclusory, basic principles of fairness require that he inform the claimant of his proposed action and give him an opportunity to obtain a more detailed statement”

* Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990)

"Although the ALJ sent a letter to one of several treating physicians four days after the hearing, requesting a more detailed explanation of the causes of Cruz's inability to work, he clearly failed to advise Cruz, a pro se claimant, that he should obtain a more detailed statement from [the treating physician]. Had Cruz been apprised of the ALJ's skepticism, he, unlike the ALJ, may have been persistent about obtaining his medical records and a detailed statement from [the treating physician].
Duty to inquire about a prior period of disability

Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984)

"[W]e find that [the ALJ] failed to adequately develop the record so as to provide Mimms with a full and fair hearing. Specifically, despite the fact that the claimant testified that he had been determined disabled in June of 1977 and had received disability benefits until October 1980, when he voluntarily attempted to resume gainful employment, the ALJ failed to ask one question of the claimant about his prior disability and its relationship to the disability claim he was now pursuing before the ALJ. The existence of a prior established disability is highly relevant when the nature of that disability appears to be the very same cause of the alleged disability then under examination.
Duty to obtain documents identified by pro se claimant

Robinson v. Secretary, 733 F.2d 255 (2d Cir. 1984)

“[W]e conclude that Robinson was not afforded a fair hearing by reason of the ALJ's failure to develop the record. The record is replete with instances where the claimant referred to missing documents and the ALJ failed to follow up the claimant's inquiries.”
Duty to pro se claimant to inquire about symptoms

Echevarria v. Secretary, 685 F.2d 751 (2d Cir. 1982)

“The ALJ failed adequately to explore the nature and extent of Echevarria's subjective symptoms. A claimant's testimony about pain and suffering ”is not only probative on the issue of disability, but “may serve as the basis for establishing disability, even when such pain is unaccompanied by positive clinical findings or other 'objective' medical evidence. Hankerson, supra 636 F.2d at 895.”
Duty to inquire about requirements and nature Of pro se claimant's past relevant work

Donato v. Secretary of HHS, 721 F.2d 414, 419 (2d Cir. 1983)

“[B]efore deciding whether Mrs. Donato was physically capable of resuming her factory work, the ALJ, in fulfillment of his 'heightened duty' to explore for all relevant facts, Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir. 1982), should have inquired further into the nature and extent of the physical exertion required of her by her former job, the number of hours she worked each day, the length of time she stood for any one period, the distance she would be required to walk in commuting to work, and the like.”

Echevarria v. Secretary, 685 F.2d 751, 756 (2d Cir. 1982)

“An inquiry also should have been conducted in to whether Echevarria's former employment was made possible only by special accommodation on the part of his employer that would not be matched by potential future employers. The record fails to disclose the reasons for Echevarria's increasingly frequent absences and his having been given easier tasks as his ailments became more serious.”
Duty to claimant to seek clarification where medical document is illegible

Cutler v. Weinberger, 516 F.2d 1282 (2d Cir. 1975)

“Many of the medical records included in the case are illegible, either because of the poor quality of the reproduction, the handwriting of the physician, or both. Under the circumstances this court has no way to determine whether the Secretary fully understood some of the medical reports before him. Where the medical records are crucial to the plaintiff's claim, illegibility of important evidentiary material has been held to warrant a remand for clarification and supplementation”

References:

Social Security Regulations: 20 CFR §§ 404.944, 404.951, 416.1444, 404.950, 416.1450, and 416.1451

Social Security Act: Sections 205(b) and 1631(c)(1)

FINDINGS REQUIREMENT — WHAT MUST BE IN A DISABILITY DECISION

Specific findings on credibility required

* Williams on behalf of Williams v. Bowen, 859 F.2d 255 (2d Cir. 1988).

"[A]n ALJ is free to accept or reject testimony like that given by Joyce and Loretta Williams. A finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record. Carroll v. Secretary of Health and Human Servs., 705 F.2d 638 (2d Cir, 1983). The failure to make credibility findings regarding the Williams' critical testimony fatally undermines the Secretary's argument that there is substantial evidence adequate that to support his conclusion that claimant is not under a disability. See Ferraris v. Heckler, 728 F.2d 582, 587 (2nd Cir. 1984).
Specific findings regarding testimony of pain required

Carroll v. Secretary of HHS, 705 F.2d 638 (2d Cir. 1983).

“His testimony regarding pain was also corroborated to some extent by the doctors who examined him, none of whom indicated any doubts about his credibility. Although the ALJ was not required to credit Carroll's testimony, he would normally be expected to note his rejection of it in whole or part. Yet he failed to indicate any such disbelief, resting his finding of capability of sedentary work on 'the medical evidence.'”

Donato v. Secretary of HHS, 721 F.2d 414 (2d Cir. 1983)

“[T]he ALJ must make credibility findings when there is conflicting evidence with respect to a material issue such as pain or other disability. If the claimant is found credible, his or her subjective pain may not be disregarded.”
Specific findings on claimant's RFC required

Ferraris v. Secretary of Health and Human Services, 728 F.2d 582 (2d Cir. 1984), 4 S.S.R.S. 192, CCH 15,169

[I]n making any determination as to a claimant's disability, the Secretary must explain what physical functions the claimant is capable of performing. . . [T]he crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence."

White v. Sullivan, 910 F.2d 64 (2d Cir. 1990)

“Failure to specify the basis for a conclusion as to residual functional capacity is reason enough to vacate a decision of the Secretary.”
Specific findings required with respect to each impairment alleged

Aponte v. Secretary of HHS, 728 F.2d 588, 593 (2d Cir. 1984)

"[W]here the ALJ has stated no findings or conclusions with respect to a claim of disabling impairment, especially one as to which the claimant arguably has demonstrated the symptoms described in the Secretary's regulations, we cannot determine whether the ALJ'S conclusion was based on a correct application of the law and whether there is substantial evidence in the record to support.
Rationale regarding listed impairment required

Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)

“[I]n future cases in which the disability claim is premised upon one or more listed impairments of Appendix 1, the Secretary should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment.”
Specific findings on transferability of skills required

Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984)

“[P]ast experience as a supervisor may not necessarily indicate the possession of skills, or that they are transferrable. Specific findings on these issues are required.”
Specific findings regarding whether claimant is literate and able to communicate in English required

Vega v. Harris, 636 F.2d 900, 903-04 (2d Cir. 1981)

“Under the [Medical Vocational guidelines] the ALJ's findings of fact in this case are inadequate with respect to Vega's education. The ALJ did not determine, as required under the circumstances whether Vega was literate and whether she was able to communicate in English. See 20 C.F.R. §§ 404.1507(f), 416.907(f)(1980) [now 20 C.F.R. §§ 404.1564(b)(5); 416.964(b)(5)]. The circumstances are that appellant's less than four years of formal education took place in Puerto Rico and that, although she has lived in this country some thirty years, the hearing had to be conducted with a Spanish-English interpreter. . . .[A] brief exchange [in English, between claimant and ALJ], of course, is not a substitute for a determination on the question of ability to communicate in English.”

IMPAIRMENTS — PARTICULAR IMPAIRMENTS

Listing of Impairments, in general

Williams on behalf of Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988)

“[T]he Secretary must be mindful that 'the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Gold v. Secretary of Health, Educ. and Welfare, 463 F.2d 38, 41 (2d Cir. 1972). Moreover, “a claimant need not be an invalid to be found disabled under Title XVI of the Social Security Act.” Murdaugh v. Secretary of Health and Human Servs., 837 F.2d 99, 102 (2d Cir. 1988) (citation omitted). The Secretary read the requirements in the Listing of Impairments in a constricted and crabbed manner, forgetting in this case that this remedial statute is to be broadly construed.
Visual Impairment

McBrayer v. Secretary of HHS, 711 F.2d 795, 798 (2d Cir. 1983)

“The statements by McBrayer in previous applications for disability are not substantial evidence that he did not qualify for benefits. The forms were filled out by representatives of the Social Security Administration[mdash ]McBrayer could not even read the answers he was signing[mdash ]and, even if they accurately reflect the answers he gave to SSA questions, they are explicable in light of his psychological unwillingness to admit disability or his confusion, shared with the Secretary as to the distinction between legal blindness and inability to perform a sufficient quantity of tasks as to be unemployable.”
Asthma

See Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir. 1990), supra, at page 7 (describing duty to probe into frequency and severity of asthma attacks).
Cardiovascular System

State of New York v. Sullivan, 906 F.2d 910, 919 (2d Cir. 1990)

“[T]he Secretary should consider all available relevant evidence when evaluating claims of ischemic heart disease.”

“Since Congress left no doubt that individualized treatment of disability claims is the rule, sole reliance on the treadmill test results to the exclusion of other available relevant evidence clearly violates Congress's requirement of particularized treatment and significant input from treating physicians.”

See also District Court Order in State of New York v. Sullivan; HALLEX Temporary Instruction 5-____; POMS DI 32594.000 ff.
Epilepsy

De Leon v. Secretary of HHS, 732 F.2d 930, 935 (2d Cir. 1984)

“The ALJ found that De Leon did not have a severe neurological impairment because he had only one seizure in the last year and thus did not satisfy the numerical frequency test for neurological impairment relative to epilepsy under the regulations. Ignoring De Leon's testimony that he had a seizure only two months before the hearing while taking Tegretol, the ALJ concluded that De Leon's epilepsy 'is under total control with medication.' The ALJ also made no mention of the testimony that De Leon was experiencing significant side effects from using Tegretol. There is no substantial evidence on the record to support the ALJ's finding that De Leon's epilepsy is 'under total control.'”
Mental Disorders

De Leon v. Secretary of HHS, 734 F.2d 930, 934 (2d Cir. 1984)

"The appellant at least facially meets the listings in the regulations for chronic brain syndrome and functional psychotic disorders, and the record does not contain substantial evidence to support the Secretary's contrary conclusion.

"A claimant's denial of psychiatric disability or the refusal to obtain treatment for it is not necessarily probative. See Cullison v. Califano, 613 F.2d 55, 58 (4th Cir. 1980).
Alcohol and other drug abuse

Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1983)

“If there is a continuing relationship between excess consumption of alcohol and the disability, such that termination of the former will end the latter, the issue for the Secretary is whether the claimant has lost the voluntary ability to control this drinking.”

Singletary v. Sec. of HEW, 623 F.2d 217 (2d Cir. 1980)

“The claimant's son attempted to testify concerning claimant's alcoholism and inability to work: however, the ALJ rejected his testimony because he is not a doctor and he is the claimant's son. While possible bias is undoubtedly a factor which would go to the weight of the son's testimony, the son had first hand knowledge of claimant's alcohol intake and life style. The testimony of lay witnesses has always been admissible with regard to drunkenness.” 623 F.2d at 219 (citing Rule 701, F.R. Evid.; People v. Eastwood, 14 N.Y. 562, 566 (1856)).

References:

Program Circular: SSA Disability Program Circular 04-91-OD, Pub. No. SSA 64-044 (April 8, 1991) (“Evaluation of Substance Addiction Disorder Cases - Reiteration of Current Policy”)

Social Security Rulings: SSR 82-60, Evaluation Of Drug Addiction And Alcoholism

Social security Regulations: 20 CFR 404, Subpart P, Appendix 1, Section 12.09; 20 CFR §§ 404.1525(e) and 416.925(e).

MEDICAL EVIDENCE

Substitution of medical judgment by lay decisionmaker

McBrayer v. Sec. of Health and Human Services, 712 F.2d 795, 799 (2d Cir. 1983), 2 S.S.R.S. 343, 347

“But the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion. Grable v. Secretary of HEW, 442 F.Supp. 465, 470 (W.D.N.Y. 1977). As stated by the Third Circuit, '[w]hile an administrative law judge is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who testified before him.' Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978); see also, Dousewicz v. Harris, 646 F.2d at 774.”
Cannot reject medical evidence without explanation

Fiorello v. Heckler, 725 F.2d 174, 176 (26 Cir. 1983), 4 S.S.R.S. 22, 24, CCH 15,021

“Although we do not require that, in rejecting a claim of disability, an ALJ must reconcile explicitly every conflicting shred of medical testimony, Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), we cannot accept an unreasoned rejection of all the medical evidence in a claimant's favor, see SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943).”
Weight to be accorded opinion of consultative examining physician

Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)

“[I]n evaluating a claimant's disability, a consulting physician's opinions or report should be given limited weight. Cf. Bluvband, 730 F.2d at 894 (ALJ should not baldly accept consulting physician's evaluations which are disputed and formulated after they had examined claimant only once). This is justified because consultative exams are often brief, are generally performed without benefit or review of claimant's medical history and, at best, only give a glimpse of the claimant on a single day. Often, consultative reports ignore or give only passing consideration to subjective symptoms without stated reasons.'” (citing Torres v. Bowen, 700 F.Supp. 1306, 1312 (S.D.N.Y. 1988)).

Ed. Note: Cruz was decided before the issuance of regulations regarding consultative examinations and medical evidence of record, 20 C.F.R. §§ 404.1519-1519t; 416.919-919t, which require that consultative examinations be complete, include a medical history, and address claimants' subjective symptoms.
Physician's failure to use the conclusory term “disabled”

Gold v. Sec. of HEW, 463 F.2d 38 I 42 n.7 (2d Cir. 1972)

“Nor is the absence of the conclusory term 'disabled' from some of the reports as crucial as the government would have us believe, for a physician might not consider that essential in a contemporaneous record of symptoms.”
Full text of the basic standard of the Second Circuit (Schisler II)

Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988), 22 S.S.R.S. 304, 308, CCH 16,706

“Having taken the position that he has adopted the treating physician rule of this circuit, the Secretary is thereby bound to offer a formulation of the rule based on our caselaw.... The version of the SSR we approve is printed in full in Appendix A.”

Appendix A Titles II and XVI: Consideration of the Opinions of Treating Sources

Purpose

"To clarify the Social Security Administration's (SSA) policy on developing medical evidence from treating sources and describe how SSA evaluates such evidence, including any opinion about disability, in determining whether an individual is disabled in accordance with the provisions of the Social Security Act. Particularly, this Ruling clarifies when a medical opinion by a treating source will be conclusive as to the medical issues of the nature and severity of an impairment(s) individually or collectively bearing on the claimant's ability to engage in substantial gainful activity, and indicates how the determination or decision rationale is to reflect the evaluation of evidence from a treating source.

"The preferred source of medical evidence is the claimant's treating source(s). Medical evidence from a treating source is important because it will often provide a medical history of the claimant's impairment based on the ongoing treatment and physician-patient relationship with the claimant.

"In addition to providing medical history, a treating source often provides an opinion about disability, i.e., diagnosis and nature and degree of impairment. Such opinions are carefully considered in evaluating disability. Although the decision as to whether an individual is disabled under the Act is made by the Secretary, medical opinions will be considered in the context of all the medical and other evidence in making that decision.

"Section 223(d)(5) of the Act, as amended by the Social Security Disability Benefits Reform Act of 1984, requires the Secretary to make every reasonable effort to obtain from the individual's treating source all medical evidence, including diagnostic tests, needed to make properly a determination regarding disability, prior to evaluating medical evidence obtained from any other source on a consultative basis.

“A claimant's treating source is his or her own physician, osteopath or psychologist (including an outpatient clinic, and health maintenance organization) who has provided the individual with medical treatment or evaluation and who has or had an ongoing treatment and physician-patient relationship with the individual. The nature of the physician's relationship with the patient, rather than its duration or its coincidence with a claim for benefits, is determinative.”

"Medical evidence and opinion from claimant's treating source is important because the treating source, on the basis of the ongoing physician-patient relationship, is most able to give a detailed history and a reliable prognosis. Therefore, treating source evidence should always be requested and every reasonable effort should be made to obtain it. Treating sources should be requested to provide complete medical reports consisting of a medical history, clinical findings, laboratory findings, diagnosis, treatment prescribed and response to any treatment, prognosis, a medical assessment; i.e., a statement of the individual's ability to do work-related activities. If the treating source provides an incomplete medical report, the adjudicator will request the necessary additional information from the treating source. Where SSA finds that the opinion of a treating source regarding medical issues is inconsistent with other evidence in file including opinions of other sources, the adjudicator must resolve the inconsistency, according to the principles set forth below. If necessary to resolve the inconsistency, the adjudicator will secure additional evidence and interpretation or explanation from the treating source(s) and/or consulting source(s).

"Once the adjudicator has made every reasonable effort to obtain the medical evidence and to resolve all conflicts, the adjudicator must evaluate all of the evidence in file in arriving at a determination. Initially, the adjudicator must review the record to determine what is the treating source's opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment. The adjudicator should then examine the record for conflicting evidence. Upon finding conflicting evidence, the adjudicator should compare the probative value of the treating source's opinion with the probative value of the conflicting evidence.

"The treating source's opinion on the subject of medical disability—i.e., diagnosis and nature and degree of impairment—is (1) binding on the fact-finder unless contradicted by substantial evidence and (2) entitled to some extra weight, even if contradicted by substantial evidence, because the treating source is inherently more familiar with a claimant's medical condition than are other sources. Resolution of genuine conflicts between the opinion of the treating source, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder.

"Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Opinions of nonexamining medical personnel cannot in themselves and in most situations, constitute substantial evidence to override the opinion of a treating source.

Where the opinion of a treating source is being rejected or overridden, there must be a discussion documented in the file of the opinion(s) and medical findings provided by the medical sources, an explanation of how SSA evaluates the reports, a description of any unsuccessful efforts to obtain information from a source(s), the pertinent nonmedical findings, and an explanation as to why the substantial medical evidence of record contradicts the opinion(s) of a treating source(s). This discussion must be set out in a determination or decision rationale."

References:

HALLEX Temporary Instructions: 5-4-23 (OHA Interim Circular No. 167: Schisler, et al. v. Heckler)

MANUAL at page 19: “Onset of Disability”

Social Security Regulations: 20 CFR §§ 404.1527 and 416.927

ONSET OF DISABILITY

Retrospective opinion of physician

Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981)

“While Dr. Sanfacon did not treat the appellant during the relevant period, before September 30, 1971, his opinion is entitled to significant weight. '[A] diagnosis of a claimant's condition may properly be made even several years after the actual onset of the impairment' ... . Such a diagnosis must be evaluated in terms of whether it is predicated upon a medically accepted clinical diagnostic technique and whether considered in light of the entire record, it establishes the existence of a physical impairment prior to [the date last insured].”

“[T]he fact that a condition is more disabling today than it was yesterday does not mean that the condition was not disabling yesterday.”

Wagner v. Secretary, 906 F.2d 856, 861 (2d Cir. 1990)

"With regard to the requirement stated in Dousewicz of a clinically acceptable diagnostic technique, we believe that Dr. Naumann's diagnosis of hemiplegic migraine, adopted by the Secretary as the basis for post-1983 disability, is sufficient. The Secretary may be doubtful of the connection between Wagner's present condition and her pre-1983 symptomatology, but, if so, he should have offered medical testimony specifically addressed to that nexus or lack thereof. Except for Dr. Blatchley's [treating physician] opinion, none of the medical evidence in the record confronts the question of whether the 1983 trauma explains the preceding three years' ailments.

* * *

“We do offer these facts to demonstrate that a circumstantial critique by nonphysicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion.”

Isabel Rivera v. Sullivan, 923 F.2d 964, 968-69 (2d Cir. 1991)

“The absence of an opinion expressed by [a previous treating physician] regarding disability does not contradict [the subsequent treating physician's] explicit statement that Rivera did suffer from a disability in 1978.”

“[T]he opinions of this Court hold that the mere fact that a condition is degenerative does not establish that it may not have been disabling at an earlier time.”
Contemporaneous medical records not required

Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989)

“Although his [the claimant's] task would be easier if he produced medical evidence from that period, it is conceivable that he could demonstrate such a disability without contemporaneous evidence.” Eiden v. Sec. of HHS, 616 F.2d 63, 65 (2d Cir. 1980)

“[E]vidence bearing upon an applicant's condition subsequent to the date [of eligibility] is pertinent evidence in that it may disclose the severity and continuity of impairments existing before.”
Evidence relied on in finding disability cannot be disregarded in determining onset date

Bell v. Secretary of HHS, 732 F.2d 308, 311 (2d Cir. 1984)

“The ALJ, of course was not required to credit the information contained in these letters [letters written approximately contemporaneously with the date of the hearing by a mental health “case manager” and a psychiatric Social Worker], but it is quite apparent that he did so since he expressly relied on them in finding that Bell was disabled. Having done so, he was not free to disregard them in determining the onset date of that same disability.”
Onset date cannot be determined arbitrarily but must be based on examination of the record

Bell v. Secretary of HHS, 732 F.2d 308, 311 (2d Cir. 1984)

“The ALJ is not entitled to assume that Ms. Bell suddenly became schizophrenic on the day of her hearing absent evidence to support such a view. Even giving Dr. Alper's report the interpretation adopted by the ALJ, he was required to examine the record further to determine the onset date.”
Evidence regarding current condition may be relevant to severity of earlier condition

Gold v. Sec. of HEW, 463 F.2d 38, 42 (2d Cir, 1972)

"[E]vidence bearing upon an applicant's condition subsequent to the date upon which the earning requirement was last met is pertinent evidence in that it may disclose the severity and continuity of impairments existing before the earning requirements date or may identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations as of the earning requirement data.

References:

Social Security Rulings: SSR 83-20, Onset of Disability

PAIN

Consideration of pain, in general

Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984), 8 S.S.R.S. 123, 128-29, CCH 15,667

“This Circuit has long held that the subjective element of pain is an important factor to be considered in determining disability. Ber v. Celebrezze, 332 F.2d 293, 298, 300 (2d Cir. 1964).”
Decisionmaker can review credibility and arrive at independent evaluation of pain

Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984), 8 S.S.R.S. 123, 128-29, CCH 15,667

“While an ALJ 'has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment [regarding that pain, he must do so] in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.' McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 705 (2d Cir. 1980), quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).”
Cannot assume treating physician's estimate of claimant's RFC considered pain

Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984), 8 S.S.R.S. 123 129, CCH 15,667

“It is clear that the ALJ's decision to disregard ... testimony concerning disabling pain was based on his blind assumption that appellant's treating physician considered such pain in determining his residual functional capacity. Especially, given the claimant's pro se status, we hold that the claimant's assertions of disabling pain cannot be rejected solely on the unfounded assumption that the treating physicians considered them. An ALJ is not free to assume that a factor, such as pain, was considered in formulating a medical opinion when there is no evidence that such was the case.”
Need medical impairment; but not objective findings of pain itself

Gallagher on behalf of Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983), 1 S.S.R.S. 21, 23, CCH 14,414

“On appeal, the claimant contends that this conclusion is in conflict with our prior decisions in Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir. 1981), and Marcus v. Califano, 615 F.2d 23 (2d Cir. 1979). Specifically relied upon is the observation in Marcus that 'subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other 'objective' medical evidence.' ... These cases did not signal any departure from the statutory requirement that a disability claimant must prove physical or mental impairment resulting from abnormalities demonstrable by 'medically acceptable clinical and laboratory techniques.' What these cases properly recognized is that once such an impairment has been diagnosed, pain caused by the impairment may be found to be disabling even though the impairment 'ordinarily does not cause severe, disabling pain.' Marcus, supra, 615 F.2d at 28. The pain need not be corroborated by objective medical findings, but some impairment must be medically ascertained, as it was not only in Marcus and Aubeuf, but also in Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980) (heart disease); McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701 (2d Cir. 1980) (discogenic problem); and Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964) (arthritis of cervical spine).”

“[T]he impairment must be attributable to abnormalities demonstrable by medically acceptable techniques. In drawing the line at this point, Congress authorized the Secretary to deny benefits to claimants like Mrs. Gallagher, who though suffering from severe pain, has not produced any medical evidence identifying the underlying impairment.”

Marcus v. Califano, 615 F.2d 23 (1980)

“We therefore reverse and remand this case so that the Secretary may reconsider appellant's application for disability benefits under the standard that a medical impairment which results in severe, disabling pain may give rise to a grant of disability benefits even if 'objective' clinical findings do not provide proof of an affliction ordinarily causing such pain.”

Ber v. Celebrezze, 332 F.2d 293, at 299 (2d Cir. 1964)

“What one human being may be able to tolerate as an uncomfortable but bearable burden may constitute for another human being a degree of pain so unbearable as to subject him to unrelenting misery of the worst sort... .”

Franklin v. Secretary of Health, Education, and Welfare, 393 F.2d 640 (2d Cir. 1968)

“In the present case the hearing examiner's conclusion, as paraphrased by the district court, was that the medical evidence reflected 'an undramatically mild underlying pathology wholly disproportionate to the massive disability plaintiff imposes upon it.' It is no doubt true, as appellant contends, that this court has rejected the view that a claimant will be said to be so disabled as to qualify for benefits only if an 'average man,' suffering from the same objective symptoms as the claimant, would be disabled under the statute, for we have earlier indicated that the subjective element of pain is an important factor in determining disability. Ber v. Celebrezze, 332 F.2d 293, 298, 300 (2d Cir. 1964). However, assuming arguendo [that a medically determinable impairment was present], we nevertheless believe that there was substantial evidence that appellant's assumed impairment had not produced 'inability to engage in any substantial gainful employment.'”

"Conceding, also, that appellant might not be able to return to her former employment as an 'executive secretary' because such a job would require her to keep her neck in a fixed position for prolonged periods of time (e.g., while typing) and hence cause her to have periods of intense pain, there was ample evidence to support a conclusion that appellant could engage in other related forms of employment in which she would not be required to keep her neck in a fixed position.
Work without pain

Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983), 2 S.S.R.S. 362, 369, CCH 14,650

“But, disability requires more than mere inability to work without pain. To be disabling, pain must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment. The severity of pain is a subjective measure - difficult to prove, yet equally difficult to disprove. We must not constrain the Secretary's ability to evaluate the credibility of subjective complaints of pain, particularly where, as here, those complaints were not part of claimant's prima facie case.”
Subjective complaints, when accompanied by objective medical findings, entitled to great weight

Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983), 3 S.S.R.S. 21, 27, CCH 14,771

“In view of the rule that a claimant's subjective evidence of pain, when accompanied by objective medical evidence, as exists here, is entitled to great weight, see, e.g., Dobrowolski v. Califano, 606 F.2d 403, 409 (3d Cir. 1979), we determine that the record supports Rivera.”
Pain endurance as a factor in determining disability

Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989)

“When a disabled person gamely chooses to endure pain in order to pursue important goals, it would be a shame to hold this endurance against him in determining benefits unless his conduct truly showed that he is capable of working.”
ALJ's observation of pain

* Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1984)

“This finding [that the claimant exhibited 'no outward signs that could be related to a severe pain complex'] raises serious questions with respect to the propriety of subjecting claimants to a 'sit and squirm index' and with respect to rendition by the ALJ of an expert medical opinion which is beyond his competence. Thus, [it] does not constitute substantial evidence sufficient to rebut the physicians' findings of pain resulting from Mr. Aubeuf's back injury.”

Rivera v. Schweiker, 717 F.2d 719 (2d Cir. 1983)

"[A]lthough it is clearly permissible for an administrative law judge to evaluate the credibility of an individual's allegations of pain, this independent judgment should be arrived at in light of all the evidence regarding the extent of the pain. See McLaughlin, 612 F.2d at 705. It is clear to us that the ALJ herein did not follow this standard.

References:

Social Security Ruling: SSR 88-13, Evaluation Of Pain And Other Symptoms

Social Security Regulations: 20 CFR §§ 404.1529 and 416.929

Social Security Act: Section 223(d)(5)(A) (1984) (sunset date December 31, 1986)

* POST HEARING DEVELOPMENT

* Townley v. Heckler, 748 F.2d 109, 113 (2d Cir. 1984), 7 S.S.R.S. 236, 240, CCH 15,662

“The interest of an individual in continued receipt of [Social Security disability benefits] is a statutorily created 'property' interest protected by the Fifth Amendment. Matthews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed. 2d 18 (1975). Thus, a disability benefits claimant has a right to cross examine the author of an adverse report and to present rebuttal evidence. Treadwell v. Schweiker, 698 F.2d 137, 143 (2d Cir. 1983); Allison v. Heckler, 711 F.2d 145, 147 (10th Cir. 1983); Gullo v. Califano, 609 F.2d 649 (2d Cir. 1979); Lonzollo v. Weinberger, 534 F.2d 712, 714 (7th Cir. 1976). Appellant's attorney, however, was not informed of the need for expert vocational evidence until after the report was filed with the ALJ. Further, appellant was denied an opportunity to examine that vocational report, and, despite claimant's request, no additional hearing was held. Although the ALJ asked appellant's attorney to submit objections and additions to the interrogatories posed to the vocational expert, there is no evidence that the attorney's suggestions were ever forwarded. Moreover, appellant was denied his due process rights to cross-examine the expert and to present rebuttal evidence.”

RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT

RFC assessment requires consideration of ability to engage in sustained activities

Carroll v. Sec. of Health and Human Services, 705 F.2d 638, 643 (2d Cir. 1983), 2 S.S.R.S. 10, 15, CCH 14,549

“Nor has the Secretary sustained his burden on the basis of (1) Carroll's testimony that he sometimes reads, watches television, listens to the radio, rides buses and subways, and (2) the ALJ's notation that Carroll 'sat still for the duration of the hearing and was in no evident pain or distress.' There was no proof that Carroll engaged in any of these activities for sustained periods comparable to those required to hold a sedentary job.”
Specific findings on claimant's RFC required

Ferraris v. Secretary of Health and Human Services, 728 F.2d 582 (2d Cir. 1984), 4 S.S.R.S. 192, CCH 15,169 [from CCCG section on duty to develop]

“[I]n making any determination as to a claimant's disability, the Secretary must explain what physical functions the claimant is capable of performing. * * * * .... the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.”

White v. Secretary of Health and Human Services, 910 F.2d 64, 65 (2d Cir. 1990), 30 S.S.R.S. 669, 671, CCH 15,663A

“Failure to specify the basis for a conclusion as to residual functional capacity is reason enough to vacate a decision of the Secretary.”
Evaluation of physician's estimates of time that a claimant can walk and stand

Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990), 29 S.S.R.S, 123, 125, CCH 15,310A

“Despite Dr. Pajela's uncontradicted residual functional capacity assessment, the A.L.J. erroneously concluded that Mrs. Vargas could 'stand and walk at least six hours in an eight-hour day.... ' To arrive at this conclusion, the A.L.J. had to interpret Dr. Pajela's report to mean that, after Mrs. Vargas completed the four hours of standing permitted by Dr. Pajela, she could undertake an additional two hours of walking.... This was a distortion of the attending physician's report.... [In construing this physician's report] the two hours of walking must be included in the four hours of standing, not added to it.”
Significance of borderline I.Q. test results

De Leon v. Secretary of HHS, 732 F.2d 930, 935-36 (2d Cir. 1984)

“Surely a borderline IQ has a bearing on employability, even as a moppusher, porter, or maintenance man.”

References:

Social Security Rulings: SSR 83-10, Determining Capability To Do Other Work—The Medical-Vocational Rules of Appendix 2

Social Security Regulations: 20 CFR §§ 404.1567(a) and 416.967(a)

SEDENTARY WORK

Sedentary work requires the ability to sit for long periods of time

Carroll v. Sec. of Health and Human Services, 705 F.2d 638, 643 — (2d Cir. 1983) 2 S.S.R.S. 10, 15, CCH 14,549

“By its very nature 'sedentary' work requires a person to sit for long periods of time even though standing and walking are occasionally required. Three of the four doctors who examined Carroll were never asked what work or activity, such as sedentary employment, Carroll could perform and hence expressed no opinion on that subject. However, the treating physician who examined Carroll many times over a period of more than a year, expressed the opinion that Carroll had a limited ability to stand for any period of time, to sit for any period, to lift or to bend, and that he could sit, walk, or stand for only 'short periods.'”
Alternating sitting and standing not within concept of sedentary work

Nelson v. Bowen, 882 F.2d 45, 48-49 (2d Cir. 1989)

“The magistrate also pointed out that the Secretary cannot sustain his burden [of proving there was 'other work' that Nelson could perform] without a showing that the claimant engages in activity for sustained periods of time comparable to those required to maintain a sedentary job, citing Carroll v. Secretary of Health & Human Services, 705 F.2d 638 (2d Cir. 1983), especially in light of the Secretary's own ruling explaining that sedentary work requires 'that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will,' citing West's Soc. Sec. Rep. Serv. SSR 83-12 at 62 (Supp. 1986).”

Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984), 4 S.S.R.S. 192, 197, CCH 15,169

“We have held that the concept of sedentary work contemplates substantial sitting. Carroll, supra, 705 F.2d at 643. Moreover, alternating between sitting and standing may not be within the concept of sedentary work. Deutsch, supra, 511 F.Supp. at 249. On the basis of the ALJ's insufficient findings here, we cannot determine whether his conclusory statement that Ferraris could carry out sedentary work is supported by substantial evidence. We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence. Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983).”
Performance of some limited daily activities and conservative treatment do not by themselves establish ability to do a full range of sedentary work

Murdaugh v. Bowen, 837 F.2d 99 (2d Cir. 1988)

“Moreover, that appellant receives conservative treatment, waters his landlady's garden, occasionally visits friends and is able to get on and off an examination table can scarcely be said to controvert the medical evidence. In short, a claimant need not be an invalid to be found disabled under Title XVI of the Social Security Act, 42 U.S.C. § 1382c(a)(3)(A).”

References:

Social Security Rulings: SSR 83-12, Capability To Do Other Work—The Medical-Vocational Rules As A Framework For Evaluating Exertional Limitations Within A Range Of Work Or Between Ranges Of Work.

SEVERE / NONSEVERE IMPAIRMENTS

Step 2 of sequential evaluation upheld by Supreme Court

Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287 (1987), 17 S.S.R.S. 661, CCH 17,348

References:

HALLEX Temporary Instructions: 5-4-6 (OHA Interim Circular No. 168: Dixon, et al. v. Heckler)

HALLEX Temporary Instructions: 5-4-16 (OHA Interim Circular No. 195: Wilson, et al. v. Heckler)

Social Security Rulings: SSR 85-28, Medical Impairments That Are Not Severe

SHIFTING BURDEN OF PROOF

Mimms v. Heckler, 750 F.2d 180, 185 (2 Cir. 1984), 8 S.S.R.S. 123, 128, CCH 15,667

“The burden of proving disability is on the claimant. Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir. 1972), 42 U.S.C. § 423(d)(5). However, once the claimant has established a prima facie case by proving that his impairment prevents his return to prior employment, it then becomes incumbent upon the Secretary to show that there exists alternative substantial gainful work in the national economy which the claimant could perform, considering his physical capability, age, education, experience and training. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).”

References:

HALLEX Temporary Instructions: 5-3-7 (“Specific written acknowledgment of the shifting burden at the last step of the sequential evaluation process in unfavorable decisions”)

Social Security Regulations: 20 CFR §§ 404.1520 and 416.920

VOCATIONAL CONSIDERATIONS — MEDICAL-VOCATIONAL GUIDELINES (GRID)

In general, use upheld

Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983), CCH 14,585
Vocational evidence required when nonexertional impairment significantly diminishes the ability to perform a full range of work

Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986), 15 S.S.R.S. 169, 173-74, CCH 17,066

“Application of the Grid guidelines and the necessity for expert testimony must be determined on a case by case basis. If the guidelines adequately reflect a claimant's condition, then their use to determine disability status is appropriate. But if a claimant's nonexertional impairments 'significantly limit the range of work permitted by his exertional limitations' then the grids obviously will not accurately determine disability status because they fail to take into account claimant's nonexertional impairments. Blacknall, 721 F.2d at 1181. Accordingly, where the claimant's work capacity is significantly diminished beyond that caused by his exertional impairment the application of the grids is inappropriate. By the use of the phrase 'significantly diminish' we mean the additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.”

[Ed. Note: This preceding sentence appears in the official text of the court's decision but not in S.S.R.S.]
In order for Medical-Vocational Guidelines (“Grid”) to be applied, Secretary must show that non-exertional limitations do not significantly diminish full range of work noticed by the Grids

Bapp v. Bowen, 802 F.2d at 605-06.

* “Upon remand the ALJ must reevaluate whether the Secretary has shown that plaintiff's capability to perform the full range of light work was not significantly diminished by his coughing and blackout spells. That initial determination can be made without resort to a vocational expert. If nonexertional limitations significantly diminish Bapp's ability to perform the full range of 'light work,' then the ALJ should require the Secretary to present either the testimony of avocational expert or other similar evidence regarding the existence of jobs in the national economy for an individual with claimant's limitations.”

[Ed. Note: Portions of the preceding quotation appear in the official text of the court's decision but not in S.S.R.S.]

* Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989).

“In an individualized evaluation the secretary's burden can be met only by calling a vocational expert to testify as to the plaintiff's ability to perform some particular job and, of course, Nelson will have the opportunity either through medical or vocational or other testimony to rebut the evidence of the Secretary or to prove further his inability to perform sedentary work.”
Ability to communicate in English

Vega v. Harris, 636 F.2d 900, 903-04 (2d Cir. 1981)

“Under the [Medical Vocational guidelines] the ALJ's findings of fact in this case are inadequate with respect to Vega's education. The ALJ did not determine, as required under the circumstances, whether Vega was literate and whether she was able to communicate in English. See 20 C.F.R.§§ 404-1507(f), 416 907(f)(1980) [now 20 C.F.R. §§ 404.1564(b)(5); 416.964(b)(5)]. The circumstances are that appellant's less than four years of formal education took place in Puerto Rico and that, although she has lived in this country some thirty years, the hearing had to be conducted with a Spanish-English interpreter.... [A] brief exchange (in English, between claimant and ALJ], of course, is not a substitute for a determination on the question of ability to communicate in English.”
Specific findings required on the issue of transferability of skills

Ferraris v. Heckler, 728 F.2d 582, 587 and 588 n.4 (2d Cir. 1984)

“[P]ast experience as a supervisor may not necessarily indicate the possession of skills, or that they are transferrable. Specific findings on these issues are required.”

“A certain degree of explicitness is suggested by SSR 82-41 ... which we assume the ALJ will bear in mind on remand.”
Borderline I.Q. may have a bearing on employability

* DeLeon v. Secretary of HHS, 734 F.2d 930, 935-936 (2d Cir. 1984)

“Although he summarized the psychologist's report in his decision, the ALJ did not test the report's conclusions by presenting them in hypothetical questions to the vocational expert .... Surely a borderline I.Q. has a bearing on employability, even as a moppusher, porter or maintenance man.”

References:

Social Security Rulings: SSR 85-15, Capability To Do Other Work—The Medical—Vocational Rules As A Framework For Evaluating Solely Nonexertional Impairments; SSR 83-10, Determining Capability To Do Other Work—The Medical-Vocational Rules of Appendix 2; SSR 83-11, Capability to Do Other Work—The Exertionally Based Medical-Vocational Rules Met; SSR 83-12, Capability to Do other Work—The Medical-Vocational Rules As A Framework For Evaluating Exertional Limitations Within A Range of Work or Between Ranges Of Work; SSR 83-14, Capability To Do Other Work—The Medical-Vocational Rules As A Framework For Evaluating A Combination of Exertional and Nonexertional Impairments; SSR 82-41, Work Skills And Their Transferability As Intended By The Expanded Vocational Factors

Social Security Regulations: 20 CFR §§ 404.1545 and 416.945

VOCATIONAL CONSIDERATIONS — EXPERT TESTIMONY

Vocational testimony about medical condition is not, by itself, substantial evidence

De Leon v. Sec. of Health and Human Services, 734 F.2d 930, 934-35 (2d Cir. 1984), 5 S.S.R.S. 232, 236-37, CCH 15,100

“The consultant's [vocational expert's] evaluation of De Leon's [medical] condition thus directly contradicted that of the claimant's consulting and treating physicians, and of the vocational rehabilitation counselor with whom he had worked closely for nine months. Vocational expert testimony alone does not provide the necessary substantial evidence from which to deduce a capacity to engage in substantial gainful activity when there is overwhelming evidence to the contrary in the record. See Yawitz v. Weinberger, 498 F.2d 956, 961 (8th Cir. 1974).”
Hypothetical questions; proper standard

De Leon v. Sec. of Health and Human Services, 734 F.2d 930, 936 (2d Cir. 1984), 5 S.S.R.S. 232, 238, CCH 15,100

“In positing hypothetical questions to the vocational consultant, the ALJ did not even present the full extent of De Leon's physical disabilities. He made no mention, for example, of De Leon's shoulder or leg problems, or the full implications of his epilepsy. As a result, the record provides no basis for drawing conclusions about whether De Leon's physical impairments or low intelligence render him disabled.”

Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir, 1984)

“[A] vocational expert's testimony is only useful if it addresses whether the particular claimant, with his limitations and capabilities, can realistically perform a particular job.”

Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983), 2 S.S.R.S. 362, 370, CCH 14,650

“Dumas attacks the hypothetical posed by the ALJ because the vocational expert was asked to assume that Dumas was capable of sedentary work. He relies on Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir. 1981), to support his argument that a 'vocational expert's testimony is only useful if it addresses whether the particular claimant, with his limitations and capabilities, can realistically perform a particular job.' Id at 114. His reliance is misplaced. Aubeuf and other decisions critical of hypotheticals that ask a vocational expert to assume a particular physical capability on the part of the claimant all address situations where there was no evidence to support the assumption underlying the hypothetical.... See Brittingham v. Weinberger, 408 F.Supp. 606, 614 (E.D. Pa. 1976) (vocational expert's opinion meaningless '[u]nless there is record evidence to adequately support ... assumption' in hypothetical question).”
ALJ, not vocational expert, is required to determine claimant's RFC

Townley v. Heckler, 748 F.2d 109 (2d Cir. 1984)

Herein, the ALJ did not make the requisite determination which would have enabled him to apply the [Grid] regulations. The ALJ relied on the vocational expert and made no express finding himself of appellant's residual functional capacity. Thus the ALJ violated 20 C.F.R. § 404.1546, which specifically states that in cases at the hearing level, “the responsibility for deciding [a claimant's] residual functional capacity rests with the administrative law judge.”.

VOCATIONAL CONSIDERATIONS — EMPLOYABILITY

Keith v. Heckler, 732 F.2d 1089, 1095 (2d Cir. 1984), 5 S.S.R.S. 72, 78, CCH 15,283

“The ALJ was well justified in having the impression that the trouble was not....inability to work but inability to find work that he can do. However unfortunate this may be, the Ninetieth Congress specifically ruled this out as a ground for disability benefits when it enacted in 1967 what is now 42 U.S.C. § 423(d)(2)(A), see Chico, supra, 710 F.2d at 948-49.”

References:

Social Security Rulings: SSR 83-46c, Inability To Perform Previous Work—Administrative Notice Under the Medical-Vocational Guidelines Of The Existence Of Other Work

Social Security Regulations: 20 CFR §§ 404.1566(c) and 416.966(c)

WEIGHT TO BE ACCORDED OTHER AGENCY FINDINGS ON DISABILITY

General rule - other agency findings on disability are entitled to some weight and must be considered

Cutler v. Weinberger, 516 F.2d 1282 (2d Cir. 1975)

“While the determination of another governmental agency that a Social Security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to some weight and should be considered.”

See Havas v. Bowen, 804 F.2d 783 (2d Cir. 1986) (State of New York disability and Workers Compensation benefits determination); Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975) (Department of Social Services, New York City, determination); Hankerson v. Harris, 636 F.2d 893, 896-97 (2d Cir. 1980) (Veterans Administration [now Department of Veterans Affairs] determination).

Attachment D. Acknowledgment of Request for Stieberger Review

SOCIAL SECURITY ADMINISTRATION
Important Information

Ms. Jane Doe
123 Elm Street
New York, NY 12345

May xx, 1993

Claim number: 123-45-6789DI

We are writing to tell you that we received your request asking for a review of our earlier decision that you were not or no longer disabled.
We expect to receive many requests for review and it may take several months before we look at your file.

When we start our review, we will decide if you are a member of the “class”of people entitled to reopening included in the suit.
1. If you are a member of the class entitled to a review of our earlier decision that you were not or no longer disabled, your local Social Security office will contact you when it is time for you to come in to submit additional evidence (if you have any). You should begin now to collect any evidence you may have that you feel will be pertinent to your review. BUT, PLEASE DO NOT SUBMIT THE EVIDENCE UNTIL WE CONTACT YOU.
2. If you are not a member of the class entitled to reopening we will send you a notice telling you why and advising you of any further rights you may have.
If you have questions you may contact your local Social Security office. If you phone, please call 1-800-772-1213. If you visit a Social Security office, please bring this letter with you. It will help us answer your questions.

Attachment E. Stieberger Court Cause Flag/Alert

999889                                                   00000


CTWALT01          STIEBERGER 

COURT CASE 
FLAG/ALERT


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


SSN (BOAN OR 
PAN)    NAME                          BIRTH 

DATE
 REFERENCE 
#



                                                   FOLDER
LOCATION 

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


PAYEE 
ADDRESS





SHIP TO 
ADDRESS


Servicing 
FO


SPECIAL INSTRUCTIONS:

IF A CURRENT CLAIM IS PENDING AT TIME OF THE FO INTERVIEW, THIS CLAIM MAY BE CONSOLIDATED WITH THE CURRENT CLAIM. SEE DI 12586.025.B. [and HALLEX TI 5-4-13, Part VIII. J.] FOR ADDITIONAL INSTRUCTIONS

Attachment F. Notice of Non-Entitlement to Stieberger Reopening

SOCIAL SECURITY ADMINISTRATION
Important Information

Name

Address

City, State, Zip

DOC:

Date:

Claim Number:

THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY/SUPPLEMENTAL SECURITY INCOME BENEFITS

PLEASE READ IT CAREFULLY!

WE HAVE FOUND THAT YOU ARE NOT ENTITLED TO REOPENING UNDER STIEBERGER v. SULLIVAN.

You asked us to review your case under the terms of the Stieberger court decision. We have looked at your case and decided that you are not a Stieberger class member entitled to reopening. This means that we will not review our earlier decision to deny or cease your benefits. The reason you are not a class member entitled to reopening under the Stieberger court decision is checked below.

WHY YOU ARE NOT A CLASS MEMBER ENTITLED TO REOPENING

YOU ARE NOT A STIEBERGER CLASS MEMBER ENTITLED TO REOPENING BECAUSE:

1.	[ ]	You did not file a claim for social security disability benefits under the social security number provided.
2.	[ ]	You were not a New York State resident at the time your disability benefits were finally denied or ceased.
3.	[ ]	Your benefits were denied or ceased for some reason other than your medical condition. That reason was ____________________________________________.
4.	[ ]	Your benefits were not denied or ceased between October 1, 1981, and October 17, 1985, inclusive; or, between October 18, 1985, and July 2, 1992, inclusive, at the Administrative Law Judge or Appeals Council levels of review.
5.	[ ]	You received a decision review after October 17, 1985, under P.L. 98-460 which covered the same period as your Stieberger claim(s).
6.	[ ]	You received a determination from a non-New York DDS that covered the same period as your Stieberger claim(s).
7.	[ ]	You received a decision under another New York court order such as State of New York, Hill, or Dixon that covered the same period as your Stieberger claim(s).
8.	[ ]	You have received a Federal court decision(s) on your Stieberger claim or you opted for Federal district court review instead of Stieberger reopening.
9.	[ ]	You received a subsequent fully favorable determination/decision with entitlement to benefits as early as possible on your Stieberger claim.
10.	[ ]	Other

WE ARE NOT DECIDING WHETHER YOU ARE DISABLED

It is important for you to know that we are not making a decision about whether you are or were disabled. We are deciding only that you are not a Stieberger class member entitled to reopening.
WHAT YOU MAY DO IF YOU DISAGREE WITH THIS DETERMINATION

You have 60 days from the date you receive this notice to send your written disagreement directly to:

THE OFFICE OF THE GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION
RM. 611 ALTMEYER BLDG.
6401 SECURITY BLVD.
BALTIMORE, MD 21235

ATTN: THE STIEBERGER CASE COORDINATOR

We will assume that you received this notice 5 days after the date of the notice unless you show us otherwise.

You may ask to see the record on which we decided you were not a class member entitled to reopening. If you do ask to see it, you will have 45 days after we tell you that it is available for inspection at a mutually agreed upon Social Security office. You may also ask for your attorney or other representative to look at the record.

When your written disagreement is received, the Office of the General Counsel will look at your case again, notify you of the final determination and advise you of any further appeal rights you may have.
IF YOU HAVE A LEGAL REPRESENTATIVE OR WOULD LIKE TO OBTAIN NOW

If you have a legal representative, you should show this notice to that person.

If you would like to obtain a legal representative, you may contact one of the attorneys representing the Stieberger class at the following address:

The Legal Aid Society of New York
Stieberger Implementation Project
841 Broadway, 3rd Floor
New York, NY 10003
(212) 477-5010

If you would like a referral to an attorney who will charge a fee for representation, you may contact the National Organization of Social Security Claimants' Representatives by calling (800) 431-2804.
YOU CONTINUE TO HAVE THE RIGHT TO FILE A NEW APPLICATION FOR BENEFITS. FILING A NEW APPLICATION IS NOT THE SAME AS CHALLENGING OUR CLASS MEMBERSHIP DECISION, AND OBTAINING A NEW DECISION ON A PAST APPLICATION.

Si usted habla espanol y no entiende esta carta, favor de llevarla a la oficina de Seguro Social arriba mencionada para que se la expliquen.

Attachment G. Development/Payment Period Worksheet and Summary Sheet

STIEBERGER DEVELOPMENT/PAYMENT PERIOD WORKSHEET
SUMMARY SHEET---KEEP ON TOP!

CLAIMANT'S SSN: __ __ __ - __ __ - __ __ __ __

PERSON WHO COMPLETED THIS WORKSHEET:

__ __ __ __ __ __ __, __; __ __ __ ; (__ __ __) __ __ __- __ __ __ __

Surname and initial Office code Telephone

=================================================================

FIRST MONTH OF DEVELOPMENT PERIOD: __ __ / __ __

=================================================================

TITLE II PAYMENT: BIC: __ __

POTENTIAL ADMINISTRATIVE ONSET: __ __ / 0 1 / __ __

Cessation Case-

POTENTIAL MOET: __ __ / __ __ [ ] See DI 32586.020

[ ] DDS could establish onset as early as __ __ / __ __ / __ __ if 10(e)(5) exception is met.

[ ] If disability is established, benefits terminate __ __ / __ __; if claimant is found currently disabled, re-entitle to benefits effective __ __ / 0 1 / __ __ .

[ ] Prisoner suspension period(s): __ __ / __ __ - __ __ / __ __

__ __ / __ __ - __ __ / __ __.

[ ] Payment is intermittent - see worksheet.

[ ] Consider TWP provisions if there was work after 11/91.

[___]	DDS Established actual onset __ __ / __ __ / __ __ -LATER than administrative onset.
[___]	DDS Established actual onset __ __ / __ __ / __ __ -EARLIER than administrative onset. Pay benefits only from the “Potential MOET”, and only if insured status is met at the established onset date.

TITLE XVI PAYMENT:

POTENTIAL ONSET AND ENTITLEMENT: __ __ / 0 1 / __ __ (“administrative onset”)

DDS could establish onset as early as __ __ / __ __ / __ __ if 10(e)(5) exception is met.

[ ] Payment is intermittent - see worksheet.

[___]	DDS Established actual onset __ __ / __ __ / __ __ -LATER than administrative onset.
[___]

DDS Established actual onset __ __ / __ __ / __ __ -EARLIER than administrative onset. Pay benefits only from the “Potential MOET”.

STIEBERGER DEVELOPMENT/PAYMENT PERIOD WORKSHEET

PART I. GATHER INFORMATION - DEVELOPMENT PERIOD

A. 1. Month request for review rec'd (from alert): __ __ / __ __

2. Month of class member's death: __ __ / __ __

3. Enter the earlier of A.1 and A.2 __ __ / __ __

B. 1. Filing date of the earliest Title II denial covered by Stieberger: __ __ / __ __

2. Alleged onset date in that denial: __ __ / __ __ / __ __

3. If a DWB or surviving child claim, NH's date of death: __ __ / __ __

4. If a CDB claim, month CDB attains age 22: __ __ / __ __

5. If a DWB claim, month DWB attains age 50: __ __ / __ __

6. If a DWB claim, last month of prescribed period; if a CDB reentitlement claim, last month of the reentitlement period: __ __ / __ __

C. Filing date of the earliest Title XVI denial covered by Stieberger: __ __ / __ __

D. If Stieberger determination was a cessation, month of Title II or XVI termination: __ __ / __ __

E. Periods of entitlement to “HA”, DWB, CDB or unreduced “A”benefits before the month shown in A.3

began: __ __ / __ __ ended: __ __ / __ __

began: __ __ / __ __ ended: __ __ / __ __

F. Periods of entitlement to Title XVI benefits before the month shown in A.3

began: __ __ / __ __ ended: __ __ / __ __

began: __ __ / __ __ ended: __ __ / __ __

G. Is there a current claim pending which, if approved, would be retroactive to a month before the month shown in A.1? Y / N

If so, period of potential entitlement based on the current claim:

begins: __ __ / __ __ ends: __ __ / __ __

H. Was there ever a final medical denial issued when (s)he did not reside in NY State? Y / N

Period covered by denial: AOD: __ __ / __ __ Date of decision:__ __ / __ __

J. Using SEQY postings show:

Yrs pre-1990 with earnings over $3600/ stat. blind (do not use year of onset - B2)

1 9 __ __ 1 9 __ __ 1 9 __ __ 1 9 __ __

Yrs after 1989 with earnings over $6000/ stat blind (do not use year of onset - B2)

1 9 __ __ 1 9 __ __ 1 9 __ __ 1 9 __ __

------------------------------------------------------------------------------------------------------------

PART II. DETERMINE THE DEVELOPMENT PERIOD

USE THE CHART ON THE NEXT PAGE TO COMPUTE THE DEVELOPMENT PERIOD

For the following calculations, use the results of Part I.

“X”out any month later than the month shown in A.3.
Find the earlier of the months shown in B.2., C OR D. “X”out any months before this month.
“X”out any months in the periods shown in E, F, G, or H
“X”out ALL months in any year shown in J.
Find the most recent 48 months that were not “X'ed”out. If there are fewer than 48 such months, use all the boxes that were not “X'ed”. Counting back beginning with the month shown in A.3, place a “D”in the 48th month not “X'ed”out. Enter that month here:

__ __ /__ __
If the month in 5. above is later than the month shown in B.4 or B.6, enter the month shown in B.4 or B.6.

__ __ /__ __
The first month of the DEVELOPMENT PERIOD is the earlier of the month in 5. or 6. above. Show that month at the top of the Summary Sheet.

__ __ /__ __

Stieberger DEVELOPMENT PERIOD Chart:

	Jan	Feb	Mar	Apr	May	Jun	Jul	Aug	Sep	Oct	Nov	Dec
1996
1995
1994
1993
1992
1991
1990
1989
1988
1987
1986
1985
1984
1983
1982
1981
1980
1979

PART III: GATHER INFORMATION - PAYMENT PERIOD(S)

Before you compute PAYMENT PERIODS, you will have to show additional infor- mation (from your interview with the class member, if necessary):

K. Periods of entitlement to A (reduced or unreduced), HA, DWB or CDB benefits:

began __ __ / __ __ ended __ __ / __ __

began __ __ / __ __ ended __ __ / __ __

L. Periods the class member was confined due to felony-related conviction (DI 11505.001):

began __ __ / __ __ ended __ __ / __ __

began __ __ / __ __ ended __ __ / __ __

M. Periods the class member absent from the U.S., or institutionalized (N02) (SI 00501.400; 00520.001ff):

began __ __ / __ __ ended __ __ / __ __

began __ __ / __ __ ended __ __ / __ __

-------------------------------------------------------------------------------------------------------------

PART IV: COMPUTE THE TITLE II PAYMENT PERIOD

USE THE CHART ON THE NEXT PAGE TO COMPUTE THE TITLE II PAYMENT PERIOD

Determine the MOET based on the earliest Stieberger claim. If the claimant had no previous Title II entitlement, you can use the following procedure; otherwise, use regular Title II rules for the result of this step.

If the Stieberger determination is a cessation, show the month of termination, as shown in D above: __ __ /__ __

If it was an initial claim for HA, HC, or DWB benefits, subtract 12 months from the month shown in B.1. If it was a claim for C benefits (RSI), subtract 6 months from the month shown in B.1: __ __ /__ __

If it was a claim for HA or DWB benefits, add 5 full calendar months to the date shown in B.2. If it was a claim for C or HC benefits, show the month shown in B.2 (or the following month, if the AOD in B.2 is not the first day of the month): __ __ /__ __

If it was a claim for DWB or surviving child benefits, show the date of death of the number holder as shown in B.3: __ __ /__ __

If it was a claim for DWB benefits, show the date the DWB attained age 50 as shown in B.3: __ __ /__ __

Circle the latest date.
Using the chart on THIS page, “X”out any month before the month you circled in step 1 above.
3. Put a “T”in the box for any month in the period shown in H.
4. “X”out any months in periods shown in F, G, K or L.
5. Count the LATEST 48 months that have not been marked. Mark these boxes with an “E”.

The FIRST “E”month is the potential month of entitlement (MOET):

__ __ / __ __
6. The Potential MOET is also the potential administrative onset for cessations, all SSI claims, and CDB claims. For initial claims for HA or DWB benefits, subtract 5 months from the MOET. This will be the potential established onset date:

__ __ / 0 1 / __ __ .

(note: The DDS may make the onset as early as the AOD [or termination date in cessations], if the 10(e)(5) conditions are met).
7. If any “T”months are shown, benefits AND THE PERIOD OF DISABILITY will TERMINATE with the first “T”month. Benefits and the period of disability will resume with the first non-“T”month if the claimant is found to be currently disabled.

Potential benefits would terminate: __ __ /__ __

Potential resumption of benefits: __ __ /__ __

*Stieberger* PAYMENT PERIOD CHART - Title II
	Jan	Feb	Mar	Apr	May	Jun	Jul	Aug	Sep	Oct	Nov	Dec
1991												///
1990
1989
1988
1987
1986
1985
1984
1983
1982
1981
1980
1979

PART V: COMPUTE THE TITLE XVI PAYMENT PERIOD

USE THE CHART ON THIS PAGE TO COMPUTE THE TITLE XVI PAYMENT PERIOD

*Stieberger* PAYMENT PERIOD CHART - Title XVI
	Jan	Feb	Mar	Apr	May	Jun	Jul	Aug	Sep	Oct	Nov	Dec
1991												///
1990
1989
1988
1987
1986
1985
1984
1983
1982
1981
1980
1979

“X” out any month before the month shown in C.
“X” out any month in the periods shown in F, G, H, K, or M.
Count the LATEST 48 months that have not been marked. Mark these boxes with an “E”.

The FIRST “E”month is the potential established onset date: __ __ / 0 1 / __ __ .

(note: The DDS may make the onset as early as the AOD, if the 10(e)(5) conditions are met).
Payment may be made for all “E”months, subject to the regular rules of eligibility and applying the Stieberger tolerances in DI 12586.080. As of Jan. 1st of the year prior to the year in which the favorable SSA-831 was signed, regular development rules apply.

Attachment H. Stieberger Supplement

STIEBERGER SUPPLEMENT
To be completed in all Stieberger Case Reviews

Name______________________________________________

Social Security Number __ __ __/__ __/__ __ __ __

PART I. (For Social Security Administration Completion)

Earliest Date Covered by a Stieberger Denial/Termination (AOD for Title II, Date of FIling for Title XVI: __ __/__ __/__ __
Earliest Date Covered by the SSA-3368: __ __/__ __/__ __

PART II. Information about your disability.

1. Have any conditions you mentioned on the Disability Report (SSA-3368) changed since the date in A. above? __Y __ N
2. If there was any change in your condition, did it get ___Worse ___Better
3. Describe when and how your condition was worse or better
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
1. Have you had any conditions, during the period between the dates in Part I A. & B above, that you did not describe on the Disability Report (SSA-3368)? __Y __ N
2. If yes, describe the other conditions and when they bothered you
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
3. If the other condition(s) that you described in D.2 made you feel worse during the period between the dates in Part I A & B above, describe how and when.
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
1. Did you receive treatment for any condition, from a medical source (doctor, hospital, clinic, etc.) that is not already listed on the Disability Report (SSA-3368)? __Y __N
2. If yes, show the names and addresses of the source, the dates of treatment and the condition you were treated for.
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________

PART III PAYMENT PERIOD Questions

1. Since the date in A. above, have you been incarcerated due to conviction on a felony or felony-level offense? __Y __N
2. If yes, show the dates and place(s) of confinement below.
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
1. Were there any months since the date in A. above that you resided in a public institution? __Y __N
2. If yes, show the name of the institution and the dates of residence
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
1. Were there any times since the date in A. above that you were outside the United States throughout a calendar month or for 30 days or more? (Outside the United States means outside the 50 states, American Samoa and/or the Northern Mariana Islands)? __Y __N
2. If yes, for each period of absence, show the date you left and the date on which you returned.
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________
  
  ______________________________________________

PART IV. Protective Filing

If you wish to protect the rights of your spouse and/or children to any benefits to which they may be entitled on your record as a result of the Stieberger review, show their name(s) and date(s) of birth below.

______________________________________________

______________________________________________

______________________________________________

______________________________________________

______________________________________________

Signature_________________________________Date_______________

Attachment I. Corroboration of Stieberger § 10(e)(5)(i)-(ii) Conditions Worksheet

WORKSHEET

This 3-page worksheet must be completed, signed and placed in the Stieberger green jacket file, if the DDS determines that the claimant was not disabled for all or part of the basic Stieberger “DEVELOPMENT PERIOD,”which ordinarily begins 48 months prior to SSA's receipt of claimant's request for readjudication.

*****************************************************************

DECISION

If readjudicating a:

DENIAL—Consider factors under CORROBORATION PROCESS below and check 1. or 2, as appropriate.

1.___ EARLIER DEVELOPMENT/ADJUDICATION REQUIRED.

2.___ EARLIER DEVELOPMENT/ADJUDICATION NOT REQUIRED.

CESSATION—Claimant deemed to qualify, so check 3.

3.___ EARLIER DEVELOPMENT/ADJUDICATION REQUIRED.

__________________________, ____________________ __ /__/
SIGNATURE TITLE DATE

*****************************************************************

CORROBORATION PROCESS

Below is an overview of the factors to consider in deciding whether one of the following conditions requires DDS to develop/adjudicate an earlier period when readjudicating a denial:

Claimant had a chronic impairment that s/he alleged was more severe in the past (e.g., rheumatoid arthritis in major joints that is not currently active), and more information is needed about any earlier acute phase; OR
Claimant had a new or no treating source during the DEVELOPMENT PERIOD and it is learned that other evidence may be available (e.g., from a former treating source) that may attest to more serious impairment in the past.

=================================================================

IN APPLYING THE FACTORS BELOW, ALWAYS GIVE THE BENEFIT OF ANY UNCERTAINTY TO THE CLAIMANT.

=================================================================

A. COMPARISON DATE:

Enter here the earliest date covered by the DEVELOPMENT PERIOD: ___/___/___

B. 10(e)(5)(i) CHRONIC IMPAIRMENT:

Did claimant allege that a condition(s) present during the DEVELOPMENT PERIOD was a chronic impairment that was more severe before the above date? If yes, or there is reason to disregard a negative response, e.g., claimant confused, disoriented, poor historian, or, if the file shows a mental condition that would make the negative response questionable: Continue. If no: Go to C.
Does the green jacket file refer to a chronic impairment that started, or could have, before the above date and that could have been worse in the past? If yes: Continue. If no: Go to C.

CONSIDER FACTORS SUCH AS: Is the CI (physical or mental) one that is subject to exacerbations and remissions and might have been more severe in the past? Did the claimant allege, or does the green jacket file show, a past acute phase before the above date that made him/her more severely impaired in the past, e.g., period preceding and/or following open heart surgery, or following some kind of trauma?
Did claimant submit corroboration from a medical source, e.g., a letter from a doctor, that his/her condition(s) was worse in the past and might possibly have been disabling? If yes: EARLIER DEVELOPMENT AND ADJUDICATION REQUIRED. If no: Continue.

NOTE:

Assume that a corroborated past condition might possibly have been disabling unless the corroborating evidence clearly indicates that it could not have been disabling, e.g., it clearly establishes that the condition lasted for too short a period to meet the duration requirement, e.g., severe only a few days or weeks. Resolve uncertainty in the claimant's favor.
If the claimant did not submit corroboration, does the green jacket file show that the condition was worse prior to the above date and might possibly have been disabling? (See NOTE in B.3 above.) If yes: Continue. If no: Go to C.
Is more information needed about any earlier acute phase (e.g., rheumatoid arthritis in major joint that became inactive, or previously uncontrolled epilepsy or diabetes that later was under control)? If yes: Continue. If no: If there is enough information for a favorable decision, prepare one; if not, go to C.
Did claimant, or does the green jacket file, identify a medical source(s) that could substantiate that a chronic impairment was more severe in the past? If yes: EARLIER DEVELOPMENT AND ADJUDICATION REQUIRED. If no: Go to C.

C. 10(e)(5)(ii) NEW OR NO TREATING SOURCE:

The following questions apply whether or not the impairment(s) is chronic.

Did the claimant's treating source(s) (TS) during the DEVELOPMENT PERIOD differ from his/her prior TS(s), or did s/he have no TS(s) during the DEVELOPMENT PERIOD? If yes (new or no TS): Continue. If no: EARLIER DEVELOPMENT AND ADJUDICATION NOT REQUIRED.
Did claimant allege a more severe past condition that might possibly have been disabling? (See NOTE in B.3.) If yes: Go to C.5. If no: Continue.
Did claimant submit corroboration from a medical source, such as a letter from a doctor, that s/he had a past condition that might possibly have been disabling? (See NOTE B.3. above.) If yes: go to C.5. If no: Continue.
Does the green jacket file show a condition prior to the above date that might possibly have been disabling? (See NOTE in B.3 above.) If yes: continue. If no: EARLIER DEVELOPMENT AND ADJUDICATION NOT REQUIRED.
Did claimant identify, or does the green jacket file reference, other medical evidence that may be available, and that may attest to the past condition referred to in C.2, 3 or 4? If yes: EARLIER DEVELOPMENT AND ADJUDICATION REQUIRED. If not: EARLIER DEVELOPMENT AND ADJUDICATION NOT REQUIRED.

Attachment J.

Examples of The Effect of Work Activity
on The Stieberger Development Period

In the following examples, the alleged onset of disability (AOD) date is earlier than the earliest year cited in the sample postings.

Example 1: The summary earnings query (SEQY) shows the following postings for the Stieberger period:

1983	7,000	1990	0
1984	0	1991	0
1985	0	1992	7,100
1986	5,200	1993	8,000
1987	4,200	1993	7,500
1988	0	1994	0
1989	0

Claimant's request for Stieberger relief was received March 1993. Per the SEQY, 1992 and 1993 are “presumed SGA years.” No SGA is indicated for 1988 through 1991. Work other than that reflected on the SEQY is not an issue; no SSA-821 is needed. The Development Period begins January 1988.

Example 2: The SEQY shows the following postings for the Stieberger period:

1981	12,000
1982	0	1988	9,000
1983	3,700	1989	9,500
1984	5,000	1990	9,300
1985	5,000	1991	9,300
1986	6,900	1994	9,000
1987	9,000	1993	9,800

Claimant's request for Stieberger relief was received in April 1993. The only years that are not presumed SGA years are 1991, 1985 and 1982. Each presumed SGA year counts for 12 months. Therefore, counting back from the month of request for review, 48 non-excluded months cannot be found. In this case, the Development Period begins in January 1982, the first month in the earliest non-SGA year within the Stieberger period.

Example 3: One of the other development exclusions applies and the SEQY shows the following posted earnings for the Stieberger period:

1983	7,000	1990	0
1984	0	1991	0
1985	0	1992	7,100
1986	5,200	1993	8,000
1987	4,200	1994	7,500
1988	0	1995	0
1989	0

In this case, two Development Period exclusions apply; a period adjudicated in a non-New York denial (covering the period March 1990 through October 1991) and presumed SGA years (as reflected in the SEQY postings). In counting back 48 months from April 1993 (the month of receipt of the request for review), the months in the presumed SGA years of 1993, 1992, 1987 and 1986 are excluded. Also excluded are the months from October 1991 back to March 1990, the period covered by the non-New York denial.

After considering the applicable exclusions, counting back 48 non-excluded months would go as follows:

Year	Number of Months	Comment
1993	(0)	All months excluded due to presumed SGA.
1992	(0)	All months excluded due to presumed SGA.
1991	(2)	All months excluded due to presumed SGA.
1990	(2)	Two months counted, December 1991 and November 1991; October 1991 through January 1991 excluded - covered by a non-New York denial.
1990	(2)	Two months counted, February 1990 and January 1990; December 1990 through March 1990 excluded - covered by non-New York denial.
1989	(12)	No exclusions apply, all months counted.
1988	(12)	No exclusions apply, all months counted.
1987	(0)	All months excluded due to presumed SGA.
1986	(0)	All months excluded due to presumed SGA.
1985	(12)	No exclusions apply, all months counted.
1984	(8)	No exclusions apply, December 1984 through May 1984 counted.
Total	(48)	(The 48th month is May 1984.) The Development Period begins in May 1984.

Attachment K. Stieberger Payment Period Examples

TITLE II PAYMENT PERIOD EXAMPLES

EXAMPLES:

The earliest Stieberger claim was filed on 3/9/83 and had a 1/16/83 AOD. It was denied on 5/10/84 by the NYDDS on reconsideration. No subsequent claim or period of incarceration involved.

The PAYMENT PERIOD is 12/87 through 11/91.
Same facts as in a., except for incarceration from 7/31/90 until 4/1/93 due to a felony conviction. The PAYMENT PERIOD cannot include months of incarceration for a felony conviction, so count back 48 months beginning with 6/90.

The PAYMENT PERIOD is 7/86 through 6/90.
The earliest Stieberger claim was filed on 6/12/87, and was denied at the ALJ level on 2/16/89. The class member became eligible for AI benefits on 3/31/90.

The PAYMENT PERIOD cannot include months of entitlement to “A”benefits, so 48 months back from 7/90 would be 8/86. Payment, however, cannot be made before 6/87 (i.e., the first possible month of entitlement on the earliest Stieberger claim).

The PAYMENT PERIOD is 6/87 through 7/90. Benefits already paid for 8/90 on will be adjusted, if necessary.

TITLE XVI PAYMENT PERIOD EXAMPLES

EXAMPLES:

A title XVI only claim, filed 7/22/83, was denied by the NYDDS at reconsideration on 3/10/84.

The PAYMENT PERIOD is 12/87 through 11/91.
The same facts as in a., except the class member was institutionalized, resulting in title XVI ineligibility throughout the months of 10/88 - 6/89.

The PAYMENT PERIOD cannot include the period of institutionalization (10/88 - 6/89).

The PAYMENT PERIOD is 7/89 - 11/91 and 3/87 - 9/88.
The earliest Stieberger claim was filed on 6/12/87, and was denied at the ALJ level on 2/16/89. The class member became eligible for AI benefits on 3/31/90.

The PAYMENT PERIOD cannot include months of eligibility to title XVI, so begin counting back with 2/90. Forty-eight full months would be 3/86; BUT, in no case may payment be made for any period prior to the first possible day of eligibility on the earliest Stieberger claim. Since the date of filing of the earliest claim is 6/12/87, the first possible date of eligibility is 6/12/87.

The PAYMENT PERIOD is 6/12/87 through 2/90.

Attachment L. Examples of Stieberger Cessation Case Readjudication Considerations and Guidance as to Whether an SSA-831 or SSA-833 is Proper

CLAIMANT DISABLED:
- SITUATION: The DEVELOPMENT PERIOD does not go back to the cessation month. You do not obtain the Stieberger claim file(s). You apply the initial disability standard and find the claimant disabled during the entire DEVELOPMENT PERIOD
  
  ACTION:
  
  Prepare an SSA-831 allowance.
- SITUATION: You adjudicate the DEVELOPMENT PERIOD, and it goes back to the month of cessation. You obtain the Stieberger claim file(s). You develop back to the comparison point date and apply MIRS. You reverse the cessation determination and benefits can be resumed in the termination month (because the PAYMENT PERIOD goes back that far).
  
  ACTION:
  
  Prepare an SSA-833 continuance.
- SITUATION: You must adjudicate back to the month of cessation because of ¶ 10(e)(5). You obtain the Stieberger claim file(s). You develop back to the comparison point date and apply MIRS. You find that disability is continuing and benefits can be resumed in the month of termination (because the PAYMENT PERIOD goes back that far).
  
  ACTION:
  
  Prepare an SSA-833 continuance.
- SITUATION: You must adjudicate back to the month of cessation, because of ¶ 10(e)(5). You obtain the Stieberger claim file(s). You develop back to the comparison point date and apply MIRS. You find disability continuing, but benefits cannot be resumed during the month of termination (because the PAYMENT PERIOD doesn't go back that far).
  
  ACTION:
  
  Prepare an SSA-831 allowance using an artificial onset.
CLAIMANT NOT DISABLED:
- SITUATION: The DEVELOPMENT PERIOD goes back to the month of cessation. You obtain Stieberger claim file(s), develop back to the comparison point date, and apply MIRS. You affirm the cessation. (Benefits could have been resumed in the month of termination, if claimant had been found disabled because the PAYMENT PERIOD goes back that far).
  
  ACTION:
  
  Prepare an SSA-833 cessation, and evaluate the claim for possible later initial disability.
- SITUATION: The DEVELOPMENT PERIOD does not go back to the month of cessation. You do not obtain the Stieberger claim file(s). You apply the initial disability standard and you find the claimant not disabled.
  
  ACTION:
  
  Prepare an SSA-833 cessation and evaluate the claim for possible later initial disability.
- SITUATION: You must develop back to the comparison point date because of ¶ 10(e)(5). You obtain the Stieberger claim file(s), develop back to the comparison point date, and apply MIRS. You do not find continuing disability.
  
  ACTION:
  
  Prepare an SSA-833 cessation and evaluate the claim for possible later initial disability.

Attachment M. Flag for Forwarding Prior Claim to DDS When the ALJ or Appeals Council Finds There Are No Common Issues for Consolidation

Stieberger Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

The above-identified claimant is a Stieberger class member. The attached Stieberger responder folder was forwarded to the Appeals Council and/or this hearing office for possible consolidation with a current claim.

The Appeals Council or the ALJ has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.
The current claim involves a court remand that contains a court-ordered time limit. The Appeals Council has determined that it would be impractical to consolidate the prior and current claims because it will not be possible to meet the court-ordered time limit if the claims are consolidated.

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

[Enter the Servicing DDS address]

Attachment N. Flag for Forwarding Prior Claim to DDS when the Appeals Council Intends to Dismiss, Deny Review, or Issue a Denial Decision on the Current Claim

Stieberger Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

The above-identified claimant is a Stieberger class member. The attached Stieberger prior responder file was forwarded to the Appeals Council for possible consolidation with a current claim. However, because the Appeals Council intends to dismiss, deny review or issue a denial decision on the current claim, the Stieberger issue(s) will remain unresolved with respect to the prior claim.

Accordingly, we are forwarding the attached alert and Stieberger responder file(s) to your location for any necessary Stieberger action, i.e., for separate processing and readjudication action. The Appeals Council's order, decision or notice of action will inform the claimant that the Stieberger claim has been sent to the DDS for readjudication.

[Enter the Servicing DDS address]

Attachment O. Parties' Stipulation for Remanding Court Case to SSA for Stieberger Review

IN THE UNITED STATES DISTRICT COURT
FOR THE ____________ DISTRICT OF NEW YORK

	*
_________________________________	*
(SSN: ________________)	*
Plaintiff,	*
	*
v.	*	Civil Action No.
	*
Shirley S. Chater	*
Commissioner of	*
Social Security,	*
Defendant.	*
	*

STIEBERGER REMAND STIPULATION

WHEREAS [describe any pertinent case history, including notification of remand opportunity and the response thereto], and

WHEREAS the attorneys for the parties agree that plaintiff is a Stieberger class member entitled to reopening under the settlement in Stieberger v. Sullivan, 792 F. Supp. 1376 (S.D.N.Y. 1992); and

WHEREAS, [describe any court orders pertinent to this stipulation, e.g., the Court directed the parties to submit a proposed remand order].

THEREFORE, it is hereby stipulated and agreed, by and between the attorneys for the defendant and the plaintiff that:

The Commissioner will reopen the [date] final decision (Tr. xx-xx) on plaintiff's [date] claim to reexamine the issue of disability entitlement, pursuant to appropriate provisions of paragraph 10 of the Stieberger settlement.
The plaintiff hereby waives any rights to further relief on the aforementioned claim, including any right under paragraph 10(b)(4) of the Stieberger settlement to have that claim reopened “after issuance of [any] adverse federal court decision”thereon if [s]he does not receive the option notice described in paragraph 10(b)(4). The plaintiff retains all statutory and regulatory rights to administrative and judicial review of the decision on reopening.
Compliance with this order will satisfy the Commissioner's obligation to provide relief to plaintiff on the [date] claim under the Stieberger settlement.
This remand is made pursuant to the fourth sentence of 42 U.S.C. ? 405(g).
The clerk shall enter judgment consistent with this stipulation. [This provision may need to be modified according to local practice.]

	Respectfully submitted, [PLAINTIFF OR PLAINTIFF'S COUNSEL]
Date: ___________________	By_________________________________

	[UNITED STATES ATTORNEY]
Date: ______________________	By__________________________________
	ASSISTANT UNITED STATES ATTORNEY
OF COUNSEL: [Fill in] SO ORDERED.
Date: ______________________	_____________________________________
	UNITED STATES DISTRICT JUDGE

Attachment P. Order of the Appeals Council Remanding Court Case to ALJ

Social Security Administration
Office of Hearings and Appeals

ORDER OF THE APPEALS COUNCIL
REMANDING COURT CASE TO ADMINISTRATIVE LAW JUDGE

IN THE CASE OF		CLAIM FOR
__________________________		__________________________
__________________________		__________________________
(Wage Earner)		(Social Security Number)

The United States District Court for the __________ District of New York has remanded this case to the Commissioner of the Social Security Administration for reopening pursuant to ¶ 10(b) of the Settlement Agreement in Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y. June 19, 1992). Therefore, the Appeals Council vacates the final decision of the Commissioner in this case and remands the case to an Administrative Law Judge for de novo proceedings consistent with the order of the court.

The Administrative Law Judge will provide the claimant an opportunity to appear at a hearing, develop the record pursuant to 20 CFR §§ 404.1512-.1518 and 416.912-.918, and issue a new decision.

	APPPEALS COUNCIL
	______________________________
	Administrative Appeals Judge

Date:

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.
Attachment 1 originally stated that a decision of the Second Circuit generally becomes effective 20 days after the decision is issued by the court. After the Stieberger settlement was approved, court rules increased the time for issuing mandates from 20 to 52 days.
After the Stieberger settlement was approved, court rules increased the time for issuing mandates to 52 days.