I-5-4-16-A.Wilson, et al. v. Sullivan

Attachment 1. Wilson v. Sullivan Stipulation and Order Filed October 22, 1991.

[DATE FILED 10/22/1991]

MICHAEL CHERTOFF
United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102
(201) 621-2921

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STIPULATION OF SETTLEMENT
AND CONSENT ORDER OF DISMISSAL

IT IS HEREBY STIPULATED by plaintiffs and defendant, through their respective counsel, that the following terms are agreed to in full settlement of the above-captioned civil action:

1. This settlement shall apply to:

   1. a non-combination subclass which includes:

      those persons whose permanent residence was in the State of New Jersey at the time of their most recent administrative decision prior to 8/20/80 denying or terminating their Social Security disability benefits or Supplemental Social Security Income disability payments under the Secretary's policy not to consider impairments in combination as set forth in Disability Insurance State Manual 321B who a) alleged the existence of more than one impairment, b) whose impairments were not considered in combination, and c) who between December 1, 1978 and August 20, 1980:

      1. had received a final decision of the Secretary and either did not appeal to federal court or had a pending case challenging the denial of benefits; or

      2. had not exhausted administrative remedies but had received an unfavorable result due to the application of the Secretary's policy not to consider impairments in combination, including all persons denied as a result of the Secretary's application of the policy not to consider impairments in combination who had not taken an appeal to the federal courts.

      This subclass includes only claimants who were denied at Step Two (non-severe) of the sequential evaluation procedure (as set forth in 20 C.F.R. §§404.1520, 416.920). The “final decision” in subparagraph (a) means the decision of the Secretary which is subject to judicial review as set forth in 42 U.S.C. §405(g).

   2. a “non-severe” subclass, which is defined as those persons whose permanent residence was in the State of New Jersey at the time they received a denial or cessation at Step Two of the sequential evaluation process, which was issued between August 7, 1983 and July 25, 1984. This subclass shall not include those persons who administratively or judicially appealed their Step 2 denials or cessations after July 25, 1984.¹

2. Any claimant who meets either of the subclass definitions, but whose claim was adjudicated by a federal court, shall not be included in either subclass.

3. The disability claims of subclass members shall be redetermined in accordance with the applicable statutory and regulatory standards for disability adjudication and the standards set forth in Social Security Ruling (SSR) 85-28.

4. The non-combination subclass and the non-severe subclass shall be treated the same with respect to retroactivity of benefits and redetermination procedures.

5. Members of the non-combination subclass shall be given notice by the Social Security Administration (SSA) as follows:

   1. SSA will conduct a public relations campaign consisting of bilingual posters in English and Spanish, a one-time press release to New Jersey, New York City and Philadelphia newspapers, and a request for a public service announcement on radio and television stations which in SSA's determination serve New Jersey. SSA will compose and distribute the posters, press releases and requests for public service announcements. Class counsel will provide a list of newspaper and TV and radio stations which SSA will consider in determining appropriate distribution. SSA will prominently display posters in all SSA field offices serving residents of the State of New Jersey to which the public has access. Class counsel will provide a list of the addresses, not to exceed 75, of New Jersey's county offices of Social Services, Legal Aid and Legal Services offices and Office on Aging. SSA will send a poster to each address on class counsel's list.

6. Members of the non-severe subclass shall be given notice by SSA as follows:

   1. SSA shall, by means of its data processing systems, identify the names, Social Security numbers, and last known addresses of potential class members. SSA shall send a notice by first-class mail to the last know address of each claimant identified by SSA as a potential non-severe subclass member. The notice will instruct potential class members of their possible entitlement to a redetermination of their claims and will further inform them that they should return an enclosed letter or form within 60 days of receipt in order to expedite their claims and in the event that a redetermination is desired. If a claimant does not respond to the notice, or the notice is undeliverable, there will be no follow-up to this one-time notice.

   2. The one-time press release to New Jersey, New York City and Philadelphia newspapers, and the request for a public service announcement on radio and television stations which in SSA's determination serve New Jersey residents referred to in subparagraph 5) A) will include the non-severe subclass. However, notice to the non-severe sub-class will not be provided by poster.

7. Claimants seeking relief under this stipulation and order shall have one year and six months from the date of entry of this stipulation and order to identify themselves as subclass members by means of the following procedure:

   1. Claimants shall make a threshold showing that they are entitled to such relief during the relevant time periods as set forth in ¶1 by presenting at an SSA field office, by mail or in person, one of the following:

      1. a denial letter from the relevant time period;

      2. a modified Form SSA-795, “Statement of the Claimant”, containing a checklist of eligibility criteria which is completed, signed by the claimant, and affirms that: a) (for non-severe subclass members) they were denied at the non-severe step during the relevant time period or b) (for non-combination subclass members) they were denied at the non-severe step during the relevant period and that they had alleged more than one impairment. The affirmation paragraph will be identical to that in Form SSA-795 appended hereto. The form will be available at SSA field offices. Claimants may obtain the form in person or by telephone request.

8. When a claimant identifies himself as a potential subclass member to an SSA field office by means of the “threshold showing” set forth above in ¶7) A) and class membership cannot be determined through SSA records other than the claimant's file, a determination on class membership will be based on a review of the claimant's file. If the claimant's file cannot be located, and is needed for a class membership determination, SSA shall make best efforts to reconstruct the file. In the absence of contrary evidence in either the file or other agency records, a claimant's threshold allegations of subclass membership shall be accepted.

9. After SSA determines that a claimant is a class member, SSA shall conduct a redetermination of the evidence in the claimant's file at the reconsideration level and shall consider any additional medical evidence the class member submits which relates to the relevant period of time. If a claimant cannot, for good and sufficient reason, obtain such medical evidence, SSA shall make reasonable efforts to obtain that evidence. However, the evidence and its location must be identified with specificity by a claimant and SSA must deem the evidence necessary to make a redetermination. A redetermination does not include a review of evidence to determine whether the claimant became disabled for different or subsequent periods of time. A claim will not be favorably redetermined unless the evidence pertaining to the relevant time period supports an allowance or continuance. In cases decided favorably to the subclass member, retroactive benefits shall be payable based on the application that resulted in the denial which established the subclass membership, assuming that all other non-disability factors of entitlement are met. When a claim has been favorably redetermined, any subsequant medical termination must meet the standard in 42 U.S.C §423 (f).

10. If the redetermination results in a decision that is less than fully favorable, the claimant will be informed of his right to pursue administrative review. Claimants whose claims are denied at the reconsideration level shall have the right of appeal directly to an Administrative Law Judge. Appeal rights on redetermination shall apply as set forth in 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N.

11. If SSA determines that a claimant who responded to the notice procedure set forth above is not a class member as described in 1 and 2 of this settlement, SSA will send notice of this determination to the claimant and class counsel: Richard E. Yaskin, Esq., Evans & Yaskin, Village Greene East - Suite 8, 152 Himmelein Road, Medford, New Jersey 08055; ATTN: Wilson Class Action Unit. Claimants will be informed that if they disagree with the determination, they may contact class counsel within 60 days.

    1. Class counsel may, within 60 days of the date following receipt of SSA's determination denying class membership, write the Office of the General Counsel (OGC), Region II, Department of Health and Human Services, New York, explaining any disagreement. Any delay by class counsel beyond the sixty days may be excused for another 60 days, only if OGC determines that he meets the criteria set forth in 20 C.F.R. §404.911. A claimant's delay in contacting class counsel may also be excused if OGC determines that the claimant has satisfied the criteria set forth at 20 C.F.R §404.911. The parties will attempt to resolve the dispute. If they cannot do so within 90 days after OGC receives the written disagreement, OGC will send a letter to class counsel stating that a resolution cannot be reached. Within 45 days of the receipt of the non-resolution letter, class counsel may, upon duty noticed motion, submit the matter to the Court for resolution.

    2. Class counsel may request to review the folder or other material upon which the class membership denial was based. SSA will make the folders or other materials available at one Social Security field office designated by class counsel. The file or other material will remain at the designated SSA field office for thirty days. Class counsel will use this information solely for the purpose of pursuing the individual's claim.

    3. If OGC does not receive written notification from class counsel disputing the class membership determination within the 60 days described in subparagraph A, it is final and not subject to further review.

    4. If class counsel receives the non-resolution letter and does not submit the matter to the Court for resolution within 45 days of receipt, SSA's determination is final and not subject to further review.

12. Beginning 150 days after the commencement of the public relations campaign, and on a quarterly basis thereafter, defendant will provide to plaintiffs' counsel the following:

    1. The number of claimants who have requested subclass membership.

    2. The number of claimants who have been screened into the subclass.

    3. The number of claimants who have been screened out of the subclass.

    4. The number of claimants whose claims were favorably (or partially favorably) redetermined.

    5. The number of claimants whose claims were unfavorably redetermined.

13. SSA shall promulgate instructions to all personnel charged with implementing this order and with responding to inquiries from potential subclass members as described in this order. The advance copies of all final instructions, including POMs instructions, will be provided to class counsel. Class counsel will have seven days from the date on which he received the instructions to comment on them.

14. This Court will retain jurisdiction over this action solely for the implementation of the specific provisions of this stipulation and order and to ensure that individual subclass members are properly identified for purposes of obtaining relief pursuant to this stipulation and order. The Court shall not monitor or review the Secretary's adjudication of any individual claim. However, no claimant is barred by this settlement from exercising their judicial appeal rights by filing an individual civil action pursuant to 42 U.S.C. §405(g).

15. The relief offered herein is in no way to be construed as an admission of wrongdoing by the defendant and is agreed to by the defendant solely to settle the case and to avoid the cost of further litigation.

16. This settlement waives the rights of both parties to appeal this Court's March 19, 1990 decision and its April 11, 1990 order.

IT IS FURTHER STIPULATED that all claims in the amended complaint for which relief has not been granted in this order are dismissed with prejudice, except that plaintiffs may apply for counsel fees and costs pursuant to 28 U.S.C. §2412 (d).

_______________

Persons who had administrative or judicial appeals pending on or after July 26, 1984 were entitled to the remedies provided by the court's order of November 14, 1985. Wilson v. Heckler, 622 F.Supp. 649, 661 (D.N.J.1985).

Attachment 2. WILSON COURT CASE FLAG/ALERT

                  WILSON 

COURT CASE FLAG/ALERT

                     TITLE:        CATEGORY:


        REVIEW 

OFFICE   PSC       MFT     DOC     ALERT 

DATE

        BOAN 
OR 
PAN    NAME

                CAN 

OR HUN          RESP 
DTETOE

     FOLDER LOCATION 
INFORMATION
TITLE  CFL     CFL 
DATE    ACN           PAYEE 

ADDRESS

   SCREENING OFFICE 
ADDRESS:
   Social Security 
Administration
   Northeastern Program Service 
Center
   P.O. Box 
4100
   Jamaica, NY 
11432

          OR

   Appropriate 

DDS

   ATTN: Wilson Screening 
Unit

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

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

   ATTN: OAO Class Action 
Coordinator

   (Case locator code 
5007)

Attachment 3. Route Slip or Case Flag for Screening

Wilson Class Action Case

SCREENING NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

Please refer to HALLEX Temporary Instruction 5-4-16, Supp. A, (Revised) for additional information and instructions.

TO: ______________________________

___________________________________

___________________________________

___________________________________

Attachment 4. Wilson Screening Sheet

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

REMARKS

WILSON CASE

Claimant: _____________________________

SSN: ________________________________

OHA received the attached alert [and prior claim folder(s)] for screening and no longer has the current claim folder. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim folder(s) for association with the current claim. After associating the alert with the current claim, please forward to the the NEPSC for screening. SEE POMS DI 42523.001ff OR DI 12523.001ff.

Attachment

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

OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206

Attachment 6. Non-Class Membership Notice

SOCIAL

SECURITY Important Information

NOTICE

______________________________________

From: Department of Health and Human Services
Social Security Administration

______________________________________

___________________________ DATE: ______________________

___________________________ CLAIM NUMBER: __________________

___________________________ DOC: ___________________________

We are writing to tell you that we received your request to review your earlier claim for disability benefits under the Wilson case. We have looked at your case and have decided that you are not a class member. This means that we will not review our earlier decision that you were not disabled.

A copy of this letter is being sent to the attorney for the Wilson class. If you think we are wrong, you should write or call the class attorney, who will answer your questions about class membership. If the attorney thinks that we are wrong, we may look at your case again. The name and address of the attorney is:

REASON FOR UNFAVORABLE DECISION

You are not a Wilson class member because:

We Are Not Deciding If You Are Disabled

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not a Wilson class member. If you do not agree with this decision, you have 60 days after receiving this notice to notify the class attorney, listed on page 1, that you want to protest this decision.

If You Are Disabled Now

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

If You Have Any Questions

If you have any questions, you may contact your local Social Security office. If you call or visit one of our offices, please have this letter with you. It will help us answer your questions.

cc: Richard E. Yaskin, Esq.
Medford, NJ 08055

Attachment 7. Route Slip for Non-Class Membership Cases

REMARKS

WILSON CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Wilson class member. (See screening sheet and copy of non-class membership notice in the attached claim folder(s).) SEE POMS DI 12531.001ff.

Attachment

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

OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206

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

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

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

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

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

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

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

Wilson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

[If there is a current claim pending in court, but that claim does not resolve all Wilson issue(s), e.g., there is a prior inactive) Wilson claim and the current claim does not include the entire period covered by the Wilson claim, forward the Wilson claim to the New Jersey DDS for separate review; modify this flag pursuant to the instruction in Part V.B.2.b.]

Send folders to:

(Destination code: ____)

Attachment 10. ALJ Dismissal to DDS

DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

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

In accordance with an order of the United States District Court for the District of New Jersey in the case of Wilson, et al. v. Sullivan, No. 83-3771 (D.N.J. October 22, 1991), the claimant has requested a redetermination of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Wilson class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Wilson final judgment order. Because the claimant's current claim shares certain issues in common with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the New Jersey Disability Determination Service which will conduct the Wilson redetermination.

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

Attachment 11. Notice Transmitting ALJ Order of Dismissal

NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip

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

What This Order Means

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

The Next Action on Your Claim

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

Do You Have Any Questions?

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

Enclosure

cc:
(Name and address of representative, if any)
(Social Security Office (City, State))

Attachment 12. Wilson Class Member Flag for Headquarters Use (DDS Readjudication)

Wilson Class Action Case

READJUDICATION NECESSARY

Claimant's Name: __________________________________

SSN: __________________________________

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

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

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

(Destination code: ____ )