I-5-4-28-A.OHA Zebley Readjudication Instructions
| Purpose | |
| Zebley Readjudication Cases | |
| Screening for Zebley Claimants Who Have Attained Age 18 | |
| Zebley Claimant Has Attained Age 18 | |
| The Zebley Presumptions of Retroactive Disability | |
| Childhood Standards To Be Applied | |
| Hearing Office Procedures | |
| Appeals Council Procedures | |
| Inquiries | |
| - Findings and Decisional Paragraphs | |
| - Notice OHA Will Send to Zebley Claimants Who Had A Hearing Before Enactment of Public Law 104-193 | |
| - Issues | |
| - Memorandum for Protest Cases |
ISSUED: December 8, 1997
I. Purpose
This instruction provides procedures for processing Zebley class member childhood disability claims in light of the childhood disability provisions of Public Law 104-193 (Pub. L. No. 104-193), the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, effective August 22, 1996. Among other provisions, Pub. L. No. 104-193 provides a new statutory definition of disability for children and mandates changes to the evaluation process for children's disability claims. These instructions apply with respect to Zebley cases which are and will be pending before the Office of Hearings and Appeals (OHA). These procedures amend and supplement existing procedures contained in HALLEX Temporary Instructions (TIs) I-5-4-28 and I-5-4-30.
II. Zebley Readjudication Cases
A Zebley readjudication case is any Zebley class member childhood disability claim which received a less than fully favorable determination at any level or which was terminated on or after January 1, 1980, through February 27, 1990. New claims for SSI childhood disability benefits are not evaluated using the same procedures as Zebley class member cases. New claims for SSI childhood disability are processed using the June 6, 1997, OHA instructions and the appropriate regulations and Rulings.
As explained in the Associate Commissioner's April 26, 1994 memorandum entitled “Readjudication Claims Folders for Zebley Medical Redeterminations”, SSA agreed to redetermine certain Zebley class member cases which had already been readjudicated, and certain categories of non-Zebley class member SSI childhood claimants as outlined in the Stipulation and Order issued May 4, 1993. However, pursuant to the court order, these two categories of redetermined cases do not have appeal rights to OHA and these instructions do not apply to cases redetermined under the Stipulation and Order issued May 4, 1993.
III. Screening for Zebley Claimants Who Have Attained Age 18
Hearing offices (HOs) should screen all Zebley cases to determine whether the claimant has attained age 18.
NOTE:
If the Zebley claimant is now an adult, apply the adult standard beginning with the date the claimant attained age 18. Remember that pursuant to 20 CFR 416.120(c)(4), an individual attains a given age on the first moment of the day preceding the anniversary of his birth corresponding to such age.
IV. Zebley Claimant Has Attained Age 18
If a Zebley claimant has attained age 18, first use the disability standard for an adult beginning with the day the claimant attained age 18. Apply the Zebley presumptions of retroactive disability as explained in V. below for the period before the claimant attained age 18. If the decision is not fully favorable using the adult standard and the presumptions, use the process described in VI. below to adjudicate the period before the claimant attained age 18.
The Notice of Hearing must advise the claimant that the period beginning with the attainment of age 18 will be evaluated under the existing adult disability standard. The Notice of Hearing must provide the appropriate childhood disability criteria (possibly both September 1993 regulations and the current (new) standard) as well as the adult criteria and state that all issues will be decided.
The adjudicator should issue one decision to adjudicate the entire period, i.e., prior to attainment of age 18 and after attainment of age 18 (three standards may apply). The decision should contain appropriate issues, rationale, findings and decisional language for each period at issue.
V. The Zebley Presumptions of Retroactive Disability
The March 14, 1991 Zebley Stipulation and Order states that SSA will instruct adjudicators to infer that, in the absence of contrary evidence (such as traumatic onset of disability or a new impairment) or contrary medical judgment, a class member is disabled from the date of the first application for children's SSI disability payments which is included within the class period (i.e., on or after January 1, 1980), if he or she has subsequently been found disabled under title II or title XVI, either as an adult or as a child.
If the medical evidence supports a finding of current disability, but evidence of past condition is not readily available, and the class member has not been found disabled on a subsequent disability claim, the adjudicator will determine, based on the nature of the impairment, whether it is reasonable to presume that the class member's past condition and impairments were as severe as they are currently. See TI I-5-4-28 VI.E.1. and TI I-5-4-30.
If the adjudicator finds current disability, the adjudicator must establish disability as of the earliest Zebley application within the class period unless there is contrary evidence (such as a later traumatic/acute onset or a different impairment manifesting itself after the Zebley application date) or a contrary medical judgment (a medical judgment which indicates that, under the applicable regulations, the impairment, especially a progressive impairment, was not disabling at the time of the earliest application.) If the adjudicator finds current disability, and there is contrary evidence or contrary medical judgment, the adjudicator must readjudicate the Zebley claim based on all available evidence, including any medical evidence in any prior folders which can be obtained.
VI. Childhood Standards To Be Applied
OHA will process Zebley readjudication cases by making one decision using two different standards if necessary (possibly three standards if the claimant has attained age 18) (see IV. above for instructions if the claimant has attained age 18).
SSA issued the new childhood disability evaluation regulations on February 11, 1997, at 62 FR 6408 as interim final rules, effective April 14, 1997. However, because some Zebley readjudication cases will be evaluated under the September 1993 regulations, for the period before August 22, 1996, DO NOT DISCARD THE SEPTEMBER 1993 REGULATIONS.
Apply the following process in readjudicating these cases if the claimant has not attained age 18.
OHA adjudicators will first apply Pub. L. No. 104-193 and the new childhood disability evaluation regulations issued on February 11, 1997, (“the current (new) childhood disability standard”), from the date of the earliest Zebley application/termination to the present. If the decision is fully favorable, follow the instructions in VII. below. If the decision is not fully favorable follow B. below.
If the decision is not fully favorable based on the current (new) childhood disability standard, apply the standard contained in the September 9, 1993 childhood disability regulations (58 FR 47532), for the period from the earliest Zebley application/termination through August 21, 1996, or age 18, whichever is earliest. (Only the new regulations can be used for the period beginning August 22, 1996, the date of enactment of Pub. L. No. 104-193.)
If the claimant is determined disabled under the September 1993 childhood regulation but not disabled under Pub. L. 104-193, payments will cease as of July 1, 1997, or two months after the date of the OHA decision, whichever is later. NO PAYMENTS CAN BE TERMINATED PRIOR TO JULY 1, 1997. However, the individual must continue to meet all other eligibility criteria (i.e. non-medical), to receive payments. OHA adjudicators must state that benefits will terminate two months after the date of the OHA decision. Follow the instructions in VII. D. below
VII. Hearing Office Procedures
A. Hearing Held But Decision Not Dated and Issued Before August 22, 1996 — Notice Requirements
If a hearing was held but a decision was not issued before August 22, 1996, and using the new definition of disability would result in a less than fully favorable decision, the adjudicator will send a notice (see Attachment 2) which provides the claimant and representative, if any, the opportunity to:
submit additional evidence;
submit written comments; and/or
request a supplemental hearing.
(See HALLEX I-2-6-80, Continued or Reopened Hearing.)
B. Hearing Not Yet Scheduled and New Receipts — Notice Requirements
If review reveals, based on an evaluation of the evidence currently of record, that the new definition of disability may result in a less than fully favorable decision for the childhood part, and a hearing has not yet been scheduled, schedule a hearing in the usual manner. In addition to the notice language based on the September 1993 regulations, include the new definition of disability for children (see Attachment 3) in the Notice of Hearing and indicate that the new definition of disability applies beginning August 22, 1996. If the claimant has attained age 18, include the adult standard of disability in the Notice of Hearing (see IV. above).
C. Decisional Requirements — Fully Favorable Using Current (New) Standard
If applying the new definition of childhood disability will result in a fully favorable decision, process the case and issue a decision. The decision must:
eliminate all references describing the prior standard for childhood disability, e.g., “comparable severity” and the child's “ability to function independently, appropriately and effectively in an age-appropriate manner.” The decision may refer to “marked and severe functional limitations.”
include a specific finding and decisional language with respect to the new definition of disability for children. See sample findings and decisional language at Attachment 1.
NOTE:
There is no change to OHA's longstanding policy requiring ALJs and the AC to obtain opinions on medical equivalence from medical experts. (See Social Security Ruling (SSR) 96-6p for a discussion of when an updated medical opinion from a medical expert is required.) Because of the kind of equivalence determinations required in childhood disability claims, the ALJ or the AC may not need to obtain medical expert opinion to assist in deciding the issue of functional equivalence. The ALJ or AC, however, is not precluded from obtaining medical expert opinion to assist in deciding the issue.
D. Decisional Requirements (Two Standards)
If a fully favorable decision for the childhood part using the current (new) standard cannot be issued, the decision must reflect that the adjudicator evaluated the claim using both the September 1993 childhood regulations and the new law. For example, prepare one decision showing an allowance (or denial) based on the September 1993 regulations and denial (or allowance) for the period beginning August 22, 1996, based on Pub. L. No. 104-193 and the current regulations. In cases involving an allowance based on an individualized functional assessment under the September 1993 regulations, or based on consideration of maladaptive behavior in the personal/behavioral domain, Pub. L. No. 104-193 states that the medical improvement review standard (MIRS) in section 1614(a)(4) of the Social Security Act and 20 CFR 416.994a does not apply to these claims.
The adjudicator will use the appropriate issues, findings and decisional language to reflect this evaluation. Use the following or similar language in the rationale:
While your request for hearing was pending, a new law (Pub. L. No. 104-193) became effective. As a result of this law, I will evaluate your claim prior to August 22, 1996, under the September 1993 childhood regulations and under the new law beginning on August 22, 1996. The new definition of disability requires more serious limitations than the old definition. Although you are disabled under the old definition, I have also found that you are not disabled under the new definition as of August 22, 1996, the effective date of the new law. The new law requires that payments cease as of July 1, 1997, or two months after the date of my decision, whichever is later. Therefore, your benefits terminate ______. [Insert date two months after the date of the OHA decision.]
Modify this language and the findings as appropriate for potential closed period, later onset date, attainment of age 18 cases, and unfavorable decisions for the entire period.
E. HO Routing and Hearing Office Tracking System (HOTS) Coding
Routing
The HO will follow current instructions for routing Zebley readjudication cases. The HO will annotate the HA-5051 as follows: “Zebley Readjudication Case.”
HOTS Coding
Because we are adjudicating the Zebley cases pursuant to a court order which may require adjudicators to apply three different standards, DO NOT use the coding instruction in the June 6, 1997 Procedures for Processing SSI Childhood Disability Cases. HOs will NOT split cases in which the claimant is over 18 at the time of adjudication.
HO staff will code “Z” in the HOTS class action field and “X” in the new special case code field. HO staff will code these cases in the OHA Case Control System as “Z” in the SPC field. (If the HO is using HOTS coding Sheets, the “Z” will appear automatically in the SPC field on the coding sheet.) These entries will allow the HO to bypass the regulation basis and impairment fields which are required entries for other SSI childhood cases.
VIII. Appeals Council Procedures
A. Request for Review (R/R) of an Administrative Law Judge (ALJ) Decision Dated and Issued Before, On or After August 22, 1996
Any Zebley class member case in which an ALJ has issued a decision before August 22, 1996, and the Appeals Council (AC) grants the R/R, or in which an ALJ has issued a decision on or after August 22, 1996, and the claimant has requested that the AC review the decision, shall be reviewed in accordance with the evaluation process set out in VIII. A. 2. below, if the AC decides to grant review.
Any Zebley class member claim in which the ALJ has issued a decision before August 22, 1996, and the AC proposes to deny review or dismiss, is not subject to the provisions of Pub. L. No. 104-193.
The AC may take any of its usual actions in such cases including:
denying the R/R;
granting the R/R and issuing a decision;
remanding the case to an ALJ;
dismissing the R/R.
AC Denies R/R
No special action or notice is required when the AC denies a R/R of a favorable, partially favorable, or wholly unfavorable decision or dismissal dated and issued before, on or after August 22, 1996. The current denial of R/R notice includes language that the AC considered the applicable statute, regulations and Rulings in effect at the time of the action taken.
AC Grants R/R and Issues Decision
If the AC grants a R/R of an ALJ decision issued before, on or after August 22, 1996, the AC must apply the provisions of Pub. L. No. 104-193. The grant review notice must specify that the issue of disability will be evaluated using the current (new) standard under Pub. L. No. 104-193, and if the decision is not fully favorable, then the standard contained in the September 9, 1993 childhood disability regulations will be applied for the period from the earliest Zebley application/termination date through August 21, 1996 (See VI. above). If the AC grants a R/R on a claim in which the ALJ decision is partially favorable, the AC should, when appropriate, and consistent with 20 CFR 416.1476(a), affirm the ALJ's decision in part and limit the issue(s) to the unfavorable findings.
If applying the new definition of disability will result in a fully favorable decision, the AC decision must:
eliminate all references describing the prior standard for childhood disability, e.g., “comparable severity” and the child's “ability to function independently, appropriately and effectively in an age-appropriate manner.” The decision may refer to “marked and severe functional limitations.”
include a specific finding and decisional language with respect to the new definition of disability for children. See sample findings and decisional language at Attachment 1.
NOTE:
There is no change to OHA's longstanding policy requiring ALJs and the AC to obtain opinions on medical equivalence from medical experts. (See SSR 96-6p for a discussion of when an updated medical opinion from a medical expert is required.) Because of the kind of equivalence determinations required in childhood disability claims, the ALJ or the AC may not need to obtain medical expert opinion to assist in deciding the issue of functional equivalence. The ALJ or AC, however, is not precluded from obtaining medical expert opinion to assist in deciding the issue.
In a decision that is not fully favorable using the current (new) standard, the AC will indicate that both the September 1993 childhood regulations and the new law were used to evaluate the claim. In this situation, prepare one decision showing an allowance (or denial) based on the September 1993 regulations and denial (or allowance) based on Pub. L. No. 104-193 and the current regulations. In cases involving an allowance based on an individualized functional assessment under the September 1993 regulations, and based on consideration of maladaptive behavior in the personal/behavioral domain, Pub. L. No. 104-193 states that the MIRS in section 1614(a)(4) of the Social Security Act and 20 CFR 416.994a does not apply to these claims. The AC will use the appropriate issues, findings and decisional language to reflect this evaluation.
Use the standard unfavorable or partially/fully favorable decision cover notice as appropriate.
AC Prepared to Remand Case to ALJ
If the AC is prepared to remand the case to an ALJ for further proceedings, the AC Order of Remand will reflect that Pub. L. No. 104-193 and the current (new) childhood disability standard apply only if the decision on remand is fully favorable, and if not, the current (new) standard applies only to the period after August 21, 1996. If the AC grants a R/R on a claim in which the ALJ decision is partially favorable, the AC should, when appropriate, and consistent with 20 CFR 416.1476(a), affirm the ALJ's decision in part and limit the issue(s) on remand to the unfavorable findings.
B. Favorable (Including Partially Favorable) ALJ Decision Dated and Issued Before August 22, 1996 — AC Took Own Motion
If the AC took own motion review of an ALJ's favorable or partially favorable decision dated and issued before August 22, 1996, and the AC issued a propose-to-find notice, the AC will:
send a revised notice advising the claimant that the September 1993 regulations apply in evaluating the child's disability for the period before August 22, 1996, and the provisions of Pub. L. No. 104-193 apply for the period beginning August 22, 1996.
continue to process the case and issue a decision. The decision will provide language regarding both the September 1993 regulations and the new definition of disability under Pub. L. No. 104-193 which will apply beginning August 22, 1996 (see sample language in Attachment 1).
If the AC proposes to take less than fully favorable action on the case, and the claimant received an on-the-record decision from an ALJ, the claimant has a right to a hearing. If the claimant waives his or her right to a hearing, the AC will proceed with its decision. However, if the claimant requests a hearing, or merely submits evidence or comments for AC consideration, or does not respond to the AC notice, the AC will remand the case to an ALJ. The standard propose-to-remand notice must be modified to include the right to a hearing in these cases.
C. Processing Claims Where the Child Has Attained Age 18 After the ALJ Decision or Dismissal
AC Denies R/R
No special action or notice is required when the AC denies a R/R. The standard notice of denial of R/R includes language that the AC considered the applicable statute, regulations and Rulings in effect at the time of the action taken. The age 18 redetermination will be done in a separate determination for favorable or partially favorable decisions.
AC Grants R/R and Remands Case to ALJ
If the AC remands the case to an ALJ, the AC Order of Remand will advise the ALJ to apply the adult standard for the period beginning with attainment of age 18. The AC Order of Remand will reflect that Pub. L. No. 104-193 and the current (new) childhood disability standard apply only if the decision on remand is fully favorable, and if not, the new (current) standard applies only to the period after August 21, 1996.
AC Granted Review or Took Own Motion Before August 22, 1996
If, prior to August 22, 1996, the AC granted review or exercised own motion review authority over an ALJ's favorable or partially favorable decision and issued a propose-to-find notice, the AC must:
send a revised notice advising the claimant that the adult rules apply beginning with the attainment of age 18 and that the childhood standard(s) apply for the period before the child attained age 18.
continue to process the case and issue a remand order following the procedures in VIII. C.2. above.
When the AC exercises own motion or reopening authority, follow “8001” procedures provided in HALLEX I-3-6-55.
D. Protest Cases
Effectuating components (field offices) will return cases with an OHA level decision dated and issued August 22, 1996, or later, in which the ALJ did not apply the provisions of Pub. L. No. 104-193 if applicable. The AC will follow the procedures for handling protest cases advising the ALJ to apply the provisions of Pub. L. No. 104-193.
If the time frames for own motion and reopening under 20 CFR 416.1488 have elapsed, return the case to the effectuating component with instructions to effectuate the decision. Use Appeals Council Standardized Text, Temporary COR 31, as modified (see Attachment 4).
E. AC Coding
AC staff should continue to code “Z” into the Special Case Code in ACAPS.
IX. Inquiries
Field personnel should direct any questions concerning these instructions 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. Headquarters personnel should route questions concerning specific issues to their Branch Chiefs who may contact the Office of Appellate Operations at 305-0106. Headquarters personnel may also contact the Division of Litigation Analysis and Implementation at 305-0708.