I-5-4-21-C.McDonald, et. al., v. Bowen
| Background | |
| Definition of Class | |
| Implementation of Court Order | |
| Adjudication of Cases | |
| Reporting Requirements | |
| Questions | |
| - Notice to Claimant | |
| Postcard Reply Form | |
| MCDONALD SCREENING SHEET | |
| Denial of Class Membership | |
| Request for Review of Denial of Class Membership | |
| AC Remand |
ISSUED: March 11, 1988
NOTE:
This instruction applies only to cases involving persons residing in Massachusetts. It is being issued nationally for informational purposes only.
I. Background
For background and history of the McDonald case before January 29, 1987, please refer to Interim, Circular No. #200.
On January 29, 1987, the U.S. District Court for the District of Massachusetts issued an order requiring that the claims of certain denied class members be redetermined under the current severity regulations as clarified by SSR 85-28 and by the court of appeals in McDonald. The court held that all class members were, entitled to resume the process of administrative review even if they had failed to exhaust their administrative remedies of appeal pursuant to 42 U.S.C. 405(g). It ruled that HHS should inform the affected class members of their right to revive their claims and resume the administrative review process where they left off earlier.
On April 10, 1987, the district court issued a final order which set forth its requirements for implementation of the relief granted on January 29, 1987. A stay of the April 10 district court order was granted on May 1, 1987 pending an appeal to the United States Court of Appeals for the First Circuit. On December 8, 1987, the court of appeals affirmed the district court order.
Based on the April 10, 1987 district court order, SSA must redetermine the denied class members' claims for-entitlement to disability using the present severity regulations as clarified by SSR 85-28 and McDonald v. Secretary of H.H.S., 795 F.2d 1118 (1st Cir. 1986) to ensure that the prior decision was correct based on the evidence of record in file.
II. Definition of Class
To meet the definition of the McDonald class, the individual:
Must have been a resident of the State of Massachusetts at the time of the most recent administrative determination made by SSA between June 28, 1984 and February 28, 1986; and
Must have received a denial determination for title II or title XVI disability benefits on or after June 29, 1984, and prior to February 28, 1986, at any level of administrative review based on a finding of a “not severe” impairment(s); or
Have an individual complaint pending in Federal district court on or after June 28, 1984, and prior to February 28, 1986. (OGC will provide notice of class relief in all pending court cases. Accordingly, OHA will not have to identify class members with cases pending before court.)
Those individuals who have a court decision affirming the denial of benefits are not class members and are not entitled to any relief.
NOTE: The class also includes those persons who received a denial determination/decision of the Secretary on or after June 28, 1984, and prior to February 28, 1986, and did not appeal to the next level of administrative review (Reconsideration, ALJ hearing, or AC review) within 60 days after the date they received the decision or did not file a complaint in Federal district court.
Individuals whose claims were readjudicated under the McDonald court order of March 10, 1986 are not entitled to any further relief under the April 10, 1987 McDonald order, (These cases are AC decisions or denials of requests for review of ALJ decisions which were based on “not severe” issued between June 28, 1984 and November 30, 1984 and which have been redetermined under I.C. No, 200).
An individual who was denied at one level on the basis of a “not severe” impairment(s) and who was later denied on a basis other than a “not severe” impairment does not qualify as a member of the class. The controlling factor is whether the last/most recent administrative action made on a particular claim on or after June 28, 1984, and prior to February 28, 1986, was on the basis of a “not severe” impairment(s).
Title II disabled widow benefit (JWB) claims and title XVI disabled child (DC) claim for children under age 16 are not a part of the McDonald class because their impairment(s) must meet or equal the medical listings as a requirement for entitlement to disability under the statute.
III. Implementation of Court Order
A. Notification of Potential Class Members
Systems-generated notices will be sent by Baltimore to potential McDonald class members by certified mail. The notice (Attachment A) advises the individual that he or she may be a McDonald class members and can request review of his or her Claim within 120 days from the date the notice is received.
B. Screening for Class Members
If a potential class member responds to the notice by returning the pre- addressed postcard reply (Attachment B), the claims file must be obtained. The Division of Litigation Coordination and Implementation in conjunction with the Litigation Staff, Office of Deputy Commissioner for Programs, will request claims files for ALJ and AC level cases. The files will be sent to Docket and Files, Room 668 Webb Building, P.O. Box 3200, Arlington, VA 22203. Analysts from the Office of Appeals Operations (OAO) Brach 3 will then screen the cases in the Docket and files for class membership. A good faith effort must be made to determine class membership within one day of the receipt of the claim file. The McDonald Screening Sheet (Attachment C) must be used to determine if the claimant meets the class membership criteria. One copy of the completed screening sheet should be placed in the folder and one copy sent to Division of Litigation Coordination and Implementation.
If a claimant is determined to be a class member, the claim file will be sent to the last adjudicative level for redetermination under the McDonald criteria. If the last action was an ALJ decision, the case should be sent by an HA -505 to the appropriate Hearing Office to be redetermined under the McDonald court order. If the last action was an AC denial of a request for review, the case should be remanded to ALJ to be redetermined (see sample remand order in Attachment F). If the last action was an AC decision, the case should be sent to OAO, Branch 3 for further action under the McDonald order (see section IV, Adjudication of Cases).
If the claimant is determined not to be a class member, Office of Appeals Operations must prepare the “Notice of Denial of Class Membership” (Attachment D). The notice must be signed by the analyst screening the case. One copy most be placed in the claim file, one copy sent to the Division of Litigation Coordination and Implementation, one copy sent to plaintiff's counsel at Greater Boston Legal Services, 68 Essex Street, Boston, MA 0211, and one copy sent to the claimant along with the “Request for Review of Denial of Class Membership” (Attachment E). The claimant has 60 days to, seek a further review of the denial of class membership. For this reason Docket and Files must retain all claim files of those individuals who are denied class membership for 90 days. The claimant will request review of the class members issue by returning the form at Attachment E to McDonald Class Action, Office of hearings and Appeals, Docket and files, Room 603 Webb Building, P.O. Box 3200, Arlington, VA 22203. Upon receipt, this form must be associated with the claim file and sent to the Division of Litigation Coordination and Implementation. Division of Litigation Coordination and Implementation will send the claim file to Litigation Staff, Office of Deputy Commissioner for Programs, which will forward the case to the Office of General Counsel. The court order requires the Secretary and class counsel, or their designees, to attempt to resolve the issue of denial of class membership.
If the claimant returns the postcard reply form after the 120-day time period, or a “Request for Review of Denial of Class Membership” form after 60 days, the claimant must be given the opportunity to show good cause for failure to respond timely. In determining whether good cause exists, the criteria used in establishing good cause for late filing of a request for hearing or request for review will be used.
IV. Adjudication of Cases
The McDonald cases will be redetermined under SSA's policy concerning “non-severe” impairment(s) as set out in SSR 85-28 and McDonald v. Secretary of H.H.S., 795 F.2d 1118 (1st Cir, 1986).
If the case is returned to the AC level, the AC should issue a decision in the case if possible, or if not, remand the case to an ALJ for a new hearing and decision (see sample remand order in Attachment F). If the case is returned to the ALJ level, the claimant must receive a new hearing and decision unless a fully favorable decision can be made based on the evidence already of record. The court order requires that the best efforts be used to schedule hearings promptly and to hold them within a reasonable period of time.
The Appeals Council or Administrative Law Judge must issue a replacement decision, that is, a decision which adjudicates only the period through the date of the prior decision. New evidence must be considered if it pertains to the period covered by the prior decision. For consideration of disability after the period covered by the prior decision, the claimant must file a new application.
The rules of retroactivity and res judicata will apply to all new applications. Every decision must include the following language:
“any future decision, res judicata, if applicable, will apply only as of the date of the prior decision, not as of the date of the redetermined decision.”
The existing regulatory provisions for reopening final determinations and decisions will apply when considering a new application.
V. Reporting Requirements
The McDonald order requires that reports be furnished to the plaintiffs counsel. The following reports form OHA components are required:
A. Office of Appeals Operations (Monthly)
An alphabetical list of the names and social security numbers of claimants whose cases have been reviewed and determined not to be class members, until the secretary's efforts to identify class members have ceased.
The number of non-class members identified, until the Secretary's efforts to identify class members have ceased.
An alphabetical list of the names and social security numbers of the class members who have been identified, until the Secretary's efforts to identify class members have ceased.
The number of class members identified, until the Secretary's efforts to identify class members have ceased.
An alphabetical list of the names and social security numbers of all claimants who have received an Appeals Council replacement decision and whether the decision was an allowance or denial. (A copy of the page containing the concluding decisional paragraph of each replacement decision must be forwarded with the report. The name and social security number of the claimant must be written on the page.) The total number of allowance denial decisions must be provided.
Effective immediately, the above information must be submitted to the Division of Litigation Coordination and Implementation on a monthly basis. Names and social security numbers of class members must be placed in a monthly log as soon as they are identified. The information must be submitted to the Division of Litigation Coordination and Implementation within three (3) workdays after the last workday of the calendar month for which the report is made.
B. Hearing offices (monthly)
A list of the names and social security numbers of all claimants for whom a hearing has been scheduled: and for all claimants who have received a hearing. The total number of cases scheduled for hearings and the number of cases in which hearings were held must be stated.
A list of the names and social security numbers of all claimants who have received a replacement decision and whether the decision was an allowance or denial, (A copy of the page containing the concluding decisional paragraph of each replacement decision must be forwarded with the report. The name and social security number of the claimant should be written on the page.) The total number of allowances and denials must be provided.
Effective immediately the above information must be submitted to the Division of Litigation Coordination and Implementation on a monthly basis. Hearing Offices must forward the information to the Boston RO which will compile and send a report to the Division of Litigation Coordination and Implementation within three workdays after the last workday of the calendar month. Maintain this information on the WANG equipment.
VI. Questions
Field office personnel may call their Regional office. Central Office personnel may call the Division of Litigation Coordination and Implementation on 235-3743.