I-5-4-34.Verla Turner v. Sullivan
| Purpose | |
| Background | |
| Guiding Principles | |
| Definition of Class | |
| Determination of Class Membership and Preadjudication Actions | |
| Processing and Adjudication | |
| Case Coding | |
| Inquiries | |
| Joint Stipulation and Order Dated January 27, 1993; Approved by the Court on January 29, 1993, and Filed on February 1, 1993 | |
| Verla Turner Court Case Flag/Alert | |
| Route Slip or Case Flag for Screening | |
| Verla Turner Screening Sheets and Screening Sheet Instructions | |
| Route Slip for Routing Class Member Alert and Prior Claim File(s) to ODIO or PSC -- OHA No Longer Has Current Claim | |
| Non-Class Membership Notice | |
| Route Slip for Non-Class Membership Cases | |
| Turner Class Member Flag for Headquarters USe (DDS Readjudication -- retention period expired) | |
| Turner Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired) | |
| ALJ Dismissal Order to DDS | |
| Notice Transmitting ALJ Order of Dismissal | |
| Turner Class Member Flag for HO Use (DDS Readjudication) |
ISSUED: November 11, 1993; REVISED: August 2, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the parties' January 27, 1993 Joint Stipulation and Order, approved by the United States District Court for the Western District of Louisiana on January 29, 1993, in the Verla Turner v. Sullivan class action involving the standard for determining disability in surviving spouse claims.
Adjudicators throughout the country must be familiar with this TI because of case transfers and because Verla Turner class members who now reside outside of Louisiana must have their cases processed in accordance with the requirements of the joint stipulation and order.
II. Background
On April 17, 1990, plaintiff filed a class complaint challenging the Commissioner's listings-only policy of evaluating disability with respect to the title II claims of widows, widowers and surviving divorced spouses.[1]
Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (Pub. L. 101-508) on November 5, 1990. Section 5103 of OBRA 90 amended § 223 of the Social Security Act to repeal the special definition of disability applicable in widows' claims and conform the definition of disability for widows to that for all other title II claimants and title XVI adult claimants. The amendment became effective for entitlement to monthly benefits payable for January 1991, or later, based on applications filed or pending on January 1, 1991, or filed later.
On May 22, 1991, the Commissioner of Social Security published Social Security Ruling (SSR) 91-3p to provide a uniform, nationwide standard for the evaluation of disability in widows' claims for the pre-1991 period.
The U.S. District Court for the Western District of Louisiana certified a statewide class on July 1, 1991. On October 24, 1991, the district court amended the class certification order (see Part IV. below, for class definition).
Because the merits of plaintiffs' challenge were resolved by the enactment of § 5103 of OBRA 90 and the publication of SSR 91-3p, the parties agreed to settle the remaining class relief issues. On January 29, 1993, the district court approved the parties' January 27, 1993 Joint Stipulation and Order setting forth the terms for the implementation of relief to class members (Attachment 1).
III. Guiding Principles
Under Verla Turner, the Secretary will readjudicate the claims of those persons who: 1) respond to notice informing them of the opportunity for review; and 2) are determined to be class members after screening (see Part V. below). The Disability Review Section in the Mid-America Program Service Center (MAMPSC) will screen for class membership, unless there is a current claim pending or stored at OHA. Regardless of the state of the claimant's current residence, the Louisiana Disability Determination Service (LDDS) will, in most cases, perform the agreed-upon readjudications, irrespective of the administrative level at which the claim was last decided.
EXCEPTION:
The DDS servicing the claimant's current address will perform the readjudication if a face-to-face reviw is necessary; i.e., cessation cases.
OHA will screen cases and perform readjudications under limited circumstances (see Part V.B. below).
Cases readjudicated by the LDDS will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).
Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in Verla Turner, class member claims. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later.[2](See HALLEX TI 5-315, issued February 11, 1991, for further instructions on processing disabled widows' claims under the provisions of § 5103 of OBRA 90.) The disability evaluation standard announced in SSR 91-3p must be used for the evaluation of disability and entitlement to benefits payable for the pre-1991 period.
IV. Definition of Class
Except as noted below, for purposes of implementing the terms of the joint stipulation and order, the Verla Turner class consists of all Louisiana residents who:
filed for or received title II benefits as a disabled widow, widower or surviving divorced spouse; and
were issued a less than fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, between February 13, 1990, and May 21, 1991, inclusive; and
timely filed a request for reconsideration of the initial determination or reapplied for disabled widow's benefits between the date of the initial determination and May 21, 1991, inclusive.
EXCEPTIONS:
A person is not a class member eligible for class relief if
(1) the last administrative denial or termination the individual received on the potential Verla Turner claim was not based on medical reasons (e.g., engaging in substantial gainful activity, disability did not begin within the prescribed period, or other technical reason); or
(2) the individual received an adverse decision on a worker's claim for disability benefits under title II or title XVI (adult) at steps 4 or 5 of the sequential evaluation and that decision covered the timeframe at issue in the potential Verla Turner claim; or
(3) the individual's potential Verla Turner claim was pending either administratively or in federal court on or after May 22, 1991; or
(4) the individual received an unfavorable determination or decision after May 21, 1991, on a subsequent claim that raised the issue of disability and covered the timeframe at issue in the potential Verla Turner claim, i.e., the onset date alleged in connection with the subsequent claim was on or before the onset date alleged in connection with the potential Verla Turner claim.
V. Determination of Class Membership and Preadjudication Actions
A. Non-OHA Actions
Notification
SSA will send notices to all potential class members identified by computer run. Individuals have 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Verla Turner joint stipulation and order. Notices returned as undeliverable will be mailed a second time if SSA obtains an updated address.
The Office of Disability and International Operations (ODIO) and the MAMPSC will retrieve the claim files of late responders and send them, together with the untimely responses, to the servicing Social Security field office (i.e., district or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR § 404.911.
Alert and Folder Retrieval Process
All response forms will be returned to ODIO and the information will be entered into the Civil Actions Tracking System (CATS). CATS will generate alerts to ODIO. See Attachment 2 for a sample Verla Turner alert.
In most instances, ODIO will associate the computer-generated alerts with any ODIO-jurisdiction potential class member claim file(s) and forward them to the MAMPSC for retrieval of any additional claim files and screening (see Part III. above).
Alerts Sent to OHA
If ODIO or MAMPSC determines that either a potential class member claim or a subsequent claim is pending appeal or stored at OHA, it will forward the alert to OHA, along with any prior claim file(s) not in OHA's possession, for screening, consolidation consideration and readjudication (if consolidated).
ODIO or MAMPSC will forward all alerts potentially within OHA jurisdiction and related prior claim file(s), if any, to the Office of Appellate Operations (OAO) at the following address (case locator code 5007):
Office of Hearings and Appeals
Office of Appellate Operations
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200ATTN: OAO Class Action Coordinator
NOTE:
The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters for association with pending or stored claims. The Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final class membership reconciliation.
Folder Reconstruction
In general, ODIO and/or MAMPSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential class member cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the particular claim would not confer class membership. OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the servicing FO. The request will be made by memorandum and will include the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) as attachments. The request will also include documentation of the attempts to locate the file. The memorandum will request the FO to send the reconstructed file to OHA after it completes its reconstruction action. HOs will route any reconstruction requests directly to the servicing FO. The OAO branch will route reconstruction requests through the OAO Class Action Coordinator. For CATS purposes, HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:
Office of the Deputy Commissioner
for Programs and Policy
Litigation Staff
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 21235ATTN: Verla Turner Coordinator
HO personnel and the OAO branch will identify in the reconstruction request the OHA location of any existing claim file(s) being retained for adjudication purposes, and the date(s) of the claim(s) involved.
The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to receipt of the reconstructed folder, the HO or OAO, as appropriate, will forward the class action material, including the alert, unneeded claim files, if any, and the reconstruction request to the OAO Class Action Coordinator, along with a copy of the action on the pending claim. The OAO Class
Action Coordinator will forward the class action material to the FO for association with the reconstruction request. A covering route slip will explain that OHA has completed its action on the pending claim, will attach a copy of the final OHA decision and/or other disposition documents, and will instruct the FO to forward the reconstructed file to ODIO or the MAMPSC for screening. For additional information on reconstruction procedures, see the Class Action Implementation instructions in HALLEX I-1-7-5C.
Class Membership Denials
The MAMPSC or OHA, as appropriate, will hold for 80 days all claim files of individuals to whom SSA sends notice of non-class membership, pending review by class counsel. If an individual wishes to dispute SSA's class membership determination, he or she must contact class counsel. Class counsel may dispute a denial within 30 days from the receipt of notice by providing written notice of the disagreement to the Office of the General Counsel, Dallas. Upon notification of a request by class counsel to review claim files, MAMPSC or OHA will forward claim files to:
SSA Field Office
Brandywine I, Suite 100
825 Kaliste Saloom Road
Lafayette, Louisiana 70508Tel. # (318) 261-0606
B. OHA Actions
Determining Jurisdiction for Screening
Current Claim in OHA
As provided in Part V. A. 3. above, if there is a current claim pending or stored at OHA, the OAO Class Action Coordinator will receive the Verla Turner alert and related claim file(s). The Class Action Coordinator will determine OHA jurisdiction for screening and forward as follows:
If the current claim is in an HO, the Coordinator will forward the alert and any prior claim file(s) to the HO for screening using Attachment 3. (Part V. B. 2. a. below provides instructions to HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)
If the current claim is before the Appeals Council or is located in an OAO branch mini-docket or in the OAO Docket and Files Branch (DFB), the Coordinator will forward the alert and any prior claim file(s) to the appropriate OAO branch for screening using Attachment 3. (Part V. B. 2. a. below provides instructions to the OAO branches regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)
If the Coordinator (or designee) is unable to locate the current claim file within OHA, the Coordinator (or designee) will broaden the claim file search and arrange for alert transfer or folder reconstruction, as necessary.
NOTE:
Do not screen pending cases in newly implemented class actions unless an alert has been received. Claimants sometimes allege class membership before their cases have been alerted. The presence of an alert is evidence that the claimant has responded to notice of potential class membership and that his or her case is ready for review. However, if class action implementation is nearly complete and a claimant with a non-alerted pending case should allege class membership, contact the Verla Turner coordinator in the Division of Litigation Analysis and Implementation (DLAI) for assistance in determining the claimant's status at the following address
Office of Hearings and Appeals
Division of Litigation Analysis
and Implementation
Office of Policy, Planning and
Evaluation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3255The DLAI Verla Turner Coordinator's telephone number is (703) 305-0721.
Current Claim Pending in Court
If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, the Class Action Coordinator will forward the alert and any accompanying claim file(s) to the appropriate OAO Court Case Preparation and Review Branch (CCPRB) for screening using Attachment 3. See Part V. B. 2. b. below for special screening instructions when a civil action is involved.
Screening
General Instructions
The screening component will associate the alert and any prior claim file(s) with the claim file(s) in its possession and then complete a screening sheet (see Attachment 4) as follows:
NOTE:
If the claim pending at OHA is the potential class member claim, then the individual is not a class member (see Part IV. above). Complete the screening sheet and follow the instructions in Part V. B. 3. a. below for processing non-class member claims.
Consider all applications denied (including res judicata denials/dismissals) during the Verla Turner timeframe;
NOTE:
Although not the “final decision of the Commissioner,” an Appeals Council denial of a request for review is the last action of the Commissioner, and the date of such a denial controls for class membership screening purposes.
Follow all instructions on the screening sheet;
Sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and
If the screening component is an OHA Headquarters component, forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V. A. 3. above. (The Coordinator will enter information from the screening sheet into a database and will forward the copy of the screening sheet to DLAI. If the screening component is an HO, forward a copy of the screening sheet directly to DLAI at the address in Part V. B. 1. a. above. HO personnel may also forward material to DLAI by telefax at (703) 305-0655. (DLAI will retain a copy of each screening sheet and forward a copy to Litigation Staff.)
If the HO receives an alert only, or an alert associated with a prior claim file(s), and the HO no longer has the current claim file, it will return or forward the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V. A. 3. above), and advise him of the action taken on the current claim and its destination. The OAO Class Action Coordinator will determine the current claim file location and, if it is located in OHA Headquarters, will forward the alert and any accompanying prior claim file(s) to the responsible OAO Branch for screening, using Attachment 3. If the claim file(s) is no longer in OHA, the OAO Class Action Coordinator will use Attachment 5 to send the alert and any accompanying prior claim file(s) to the non-OHA location of the current claim and request that the file(s) be forwarded to ODIO and/or MAMPSC for screening.
If an OAO branch receives an alert only, or an alert associated with a prior claim file(s), and the branch no longer has the current claim file (and it is not located in mini-dockets or the OAO DFB), it will determine the location of the current claim file. If the current claim is located within OHA, the OAO branch will use Attachment 3 to forward the alert and any accompanying prior claim file(s) to the current OHA location. If the files are no longer in OHA, the OAO branch will use Attachment 5 to forward the alert and any accompanying prior claim file(s) to the non-OHA location of the current claim and request that the file(s) be forwarded to ODIO and/or MAMPSC for screening. The OAO branch will advise the OAO Class Action Coordinator of its actions.
NOTE:
Final determinations or decisions made after May 21, 1991, on a subsequent claim filed by a potential Verla Turner class member may have adjudicated the entire time period at issue in the Verla Turner claim. Instead of applying the doctrine of administrative res judicata to the Verla Turner claim, these claims should be denied class membership.
Special OAO Screening Instructions if a Civil Action Is Involved
As noted in Part V. B. 1. b. above, the CCPRB will screen for Verla Turner class membership when a civil action is involved. The CCPRB's class membership determination will dictate the appropriate post-screening action.
If the claim pending in court is the potential class member claim, then the individual is not a class member (see Part IV. above). Complete the screening sheet and follow the instructions in Part V. B. 3. a. below for processing non-class member claims.
If the claim pending in court is a subsequent claim and was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p and resolved all Verla Turner issues, the claimant is not a Verla Turner class member. The CCPRB will follow the instructions in Part V. B. 3. a. below for processing non-class member claims.
If the claim pending in court was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, but did not resolve all Verla Turner issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Verla Turner claim, the CCPRB will forward the Verla Turner claim to the LDDS for separate review. The CCPRB will modify the case flag in Attachment 12 to indicate that the pending court case does not resolve all Verla Turner issues and that the Verla Turner class member claim is being forwarded for separate processing. The CCPRB will notify the OAO Class Action Coordinator of its action.
If the final administrative decision on the claim pending in court was not adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings and consolidate the claims.
Post-Screening Actions
Non-Class Member Cases
If the screening component determines that the individual is not a class member, the component will:
notify the individual, and representative, if any, of non-class membership using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);
NOTE:
Include the address and telephone number of the servicing Social Security field office at the top of Attachment 6.
retain a copy of the notice in the claim file;
send a copy of the notice to:
John D. Thompson, Jr.
Senior Attorney/Director
Administrative Law Unit
Acadiana Legal Service Corporation
1020 Surrey Street
P.O. Box 4823
Lafayette, Louisiana 70502-4823retain the claim file(s) for 80 days pending possible class membership dispute;
if class counsel makes a timely review request, send the non-class member claim file to the Lafayette, Louisiana District Office using the pre-addressed route slip in Attachment 7;
if after 80 days no review is requested, return the file(s) to the appropriate location.
NOTE:
Photocopy any material contained in the prior file that is relevant to the current claim and place it in the current claim file before shipping the prior file.
An individual who wishes to appeal a determination of non-class membership should do so through class counsel, as explained in the notice (Attachment 6).
Cases Determined to be Class Members
If the screening component determines that the individual is a class member, it will proceed with processing and adjudication in accordance with the instructions in Part VI. below.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
The LDDS, or any other DDS servicing Louisiana residents, will conduct the first Verla Turner review except for cases consolidated at the OHA level (see Part VI. E. 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). Except as otherwise noted in this instruction, ALJs should process and adjudicate requests for hearing on Verla Turner DDS review cases in the same manner as for any other case.
B. Payment Reinstatement for Cessation Cases
If the Verla Turner claim involves a cessation, the usual reinstatement provisions apply. Following an adverse DDS readjudication determination, a class member may elect to have disability benefits reinstated pending appeal. In general, the servicing Social Security field office has responsibility for processing benefit reinstatements.
If a class member contacts OHA requesting benefit reinstatement, OHA will;
contact the servicing field office by telephone and advise them of the pending Verla Turner claim that may be eligible for benefit reinstatement;
document the file accordingly; and
provide the servicing field office with identifying information and any other information requested.
C. OHA Adjudication of Class Member Claims
The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Verla Turner readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and Headquarters will process class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.
Type of Review and Period to be Considered
The type of review and the period to be considered depend on whether the claim subject to review was an initial claim or a cessation case.
If the claim subject to review is an initial claim, the type of review to be conducted is a “redetermination.” The readjudication shall be a de novo reevaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period of time at issue in the administrative decision(s) that forms the basis of the claimant's class membership. If the readjudication results in a favorable decision, the adjudicator must determine whether the class member's disability has been continuous through the date of the readjudication.
If the claim to be reviewed is a cessation case, the type of review to be conducted is a reopening. The readjudication shall be an assessment of the class member's disability from the date disability was previously ceased through the date of the readjudication.
Disability Evaluation Standards
Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in class member claims. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later. (See HALLEX TI 5-315, issued February 11, 1991, for further instructions on processing disabled widows' claims under the provisions of § 5103 of OBRA 90.) The disability evaluation standard announced in SSR 91-3p must be used for the evaluation of disability and entitlement to benefits payable for the pre-1991 period.
Class Member Is Deceased
If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.
D. Claim at OHA But No Current Action Pending
If a claim file (either a class member or a subsequent claim file) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO will associate the alert with the file and screen for class membership. (The OAO Class Action Coordinator will coordinate the necessary actions as explained in Part V.) (See Part V. B. 3. above, for non-class member processing instructions.)
If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OAO will attach a Verla Turner class member flag (see Attachment 8) to the outside of the file and forward the claim file(s) to the LDDS for review of the Verla Turner class member claim.
If less than 120 days have elapsed, OAO will attach a Verla Turner class member flag (see Attachment 9) to the outside of the file to ensure the case is routed to the LDDS, or other appropriate DDS, after expiration of the retention period. Pending expiration of the retention period, the OAO branch will also:
-- return unappealed ALJ decisions and dismissals to DFB; and
-- return unappealed Appeals Council denials to the appropriate OAO mini-docket.
The respective OAO component will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the LDDS in a timely manner.
E. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims (Consolidation Procedures)
General
If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Verla Turner class member claims with the current claim at the level at which the current claim is pending.
Current Claim Pending in the Hearing Office
Hearing Has Been Scheduled or Held, and All Remand Cases
Except as noted below, if a Verla Turner class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Verla Turner case with the appeal on the current claim.
EXCEPTIONS:
The ALJ will not consolidate the claims if
the current claim and the Verla Turner claim do not have any issues in common, 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 Part VI. E. 2. c. below. If the claims are not consolidated, follow Part VI. E. 2. d. below.
Hearing Not Scheduled
Except as noted below, if a Verla Turner class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Verla Turner claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Verla Turner claim and the current claim to the DDS for further action (see Part VI. E. 2. d. below).
EXCEPTION:
If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant a Verla Turner class member, the ALJ will consolidate the claims.
If the claims are consolidated, follow Part VI. E. 2. c. below. If the claims are not consolidated, follow Part VI. E. 2. d. below.
Actions If Claims Consolidated
When consolidating a Verla Turner claim with any subsequent claim, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present (or through the date the claimant last met the prescribed period requirements, if earlier). If the ALJ decides to consolidate the current claim with the Verla Turner 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 Verla Turner claim raises any additional issue(s) not raised by the current claim;
offer the claimant a supplemental hearing if the ALJ has already held a hearing and the Verla Turner claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Verla Turner claim;
issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Verla Turner claim (the ALJ's decision will clearly indicate that the ALJ considered the Verla Turner claim pursuant to the Verla Turner joint stipulation and order).
Action If Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the current claim with the Verla Turner claim because the hearing has not yet been scheduled, the HO will:
dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 10 and the covering notice in Attachment 11;
send both the Verla Turner claim and the current claim to the LDDS for consolidation and further action.
If the ALJ decides not to consolidate the current claim with the Verla Turner claim because: 1) the claims do not have any issues in common or 2) there is a court-ordered time limit, the ALJ will:
flag the Verla Turner claim for DDS review using Attachment 12; immediately route the it to the LDDS for adjudication (if any part of the Verla Turner claim is retained as evidence in the current claim, make photocopies and return them to the LDDS with the Verla Turner claim); and retain a copy of Attachment 12 in the current claim file; and
take the necessary action to complete the record and issue a decision on the current claim.
Current Claim Pending at the Appeals Council
The action the Appeals Council takes on the current claim determines the disposition of the Verla Turner claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify possible Appeals Council actions on the current claim and the corresponding action on the Verla Turner claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- No Verla Turner Issue(s) Will Remain Unresolved.
This will usually arise when the current claim duplicates the Verla Turner review claim, i.e., the current claim raises the issue of disability and covers the period adjudicated in the Verla Turner claim, and the current claim has been adjudicated in accordance with the provisions of § 5103 of OBRA 90 and SSR 91-3p. In this instance, 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 Verla Turner claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- Verla Turner Issue(s) Will Remain Unresolved.
This will usually arise when the current claim does not duplicate the Verla Turnerr claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Verla Turner claim. For example, the Verla Turner claim raises the issue of disability 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.
OAO staff will attach a Verla Turner case flag (Attachment 12; appropriately modified) to the Verla Turner claim, immediately forward the Verla Turner claim to the LDDS for adjudication, and retain a copy of Attachment 12 in the current claim file. OAO will modify Attachment 12 to indicate that the Appeals Council's action on the current claim does not resolve all Verla Turner issues and that the Verla Turner class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Verla Turner 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 application that makes the claimant a Verla Turner class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Verla Turner claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Verla Turner claim pursuant to the Verla Turner joint stipulation and order.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Verla Turner 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 Verla Turner claim, the Appeals Council will proceed with its intended action. In this situation, the Appeals Council will request the effectuating component to forward the claim files to the LDDS 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: "Verla Turner court case review needed -- following effectuation forward the attached combined folders to Louisiana Health and Human Resources, Office of Family Security, Disability Determinations, 530 Lakeland Drive, Baton Rouge, Louisiana 70802."
Appeals Council Intends to Remand the Current Claim to an Administrative Law Judge.
If the Appeals Council intends to remand the current claim to an Administrative Law Judge, it will proceed with its intended action unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Verla Turner claim with the action on the current claim pursuant to the instructions in Part VI.E.2.a. above.
EXCEPTIONS:
The Appeals Council will not direct the ALJ to consolidate the claim if
the current claim and the Verla Turner claim do not have any issues in common, 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 Verla Turner class member claim to the LDDS, or other appropriate DDS, for separate review. The case flag in Attachment 12 should be modified to indicate that the Appeals Council, rather than an Administrative Law Judge, is forwarding the Verla Turner class member claim for separate processing.
VII. 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 Part VI. E. 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 will code “VT” in the “Class Action” field. No special identification codes will be used in the OHA CCS.
VIII. 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 Analysis and Implementation at 305-0708.