I-5-4-37.Boring v. Sullivan

Table of Contents
I	Purpose
II	Background
III	Guiding Principles
IV	Definition of Class
V	Determination of Class Membership and Preadjudication Actions
VI	Processing and Adjudication
VII	Case Coding
VIII	Inquiries
Attachment 1	Stipulation and Order Entered by the Court on August 17, 1992; Finally Approved by the Court on October 5, 1992, Following a Public Hearing.
Attachment 2	Sample Boring Alert
Attachment 3	Route Slip or Case Flag For Screening
Attachment 4	Boring Screening Sheet and Screening Sheet Instructions
Attachment 5	Handwriting Samples, Drs. Brown and Pickens
Attachment 6	Boring Route Slip
Attachment 7	Boring Case Flag (DDS Readjudication Needed)
Attachment 8	Text for Non-class Member Notice
Attachment 9	Route Slip for Forwarding Non-Class Member Case to FO
Attachment 10	Text for Notice of Revised Class Membership
Attachment 11	Boring Case Flag (DDS Readjudication Needed -- Retention Period Note Expired)
Attachment 12	Text for Appeals Council Remand to DDS Class Member Claim Associated with Current Claim Pending Appeals Council Review
Attachment 13	Text for Appeals Council Remand to DDS Class Member Claim Pending Appeals Council Review

ISSUED: February 28, 1994; REVISED: December 19, 1994, July 12, 1995; August 18, 1995; May 15, 1996

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the parties' stipulation and order for settlement approved and filed by the United States District Court for the Southern District of West Virginia on August 17, 1992, in the Boring v. Sullivan class action (see Attachment 1).

Adjudicators throughout the country must be familiar with this TI because of case transfers and because Boring class members who now reside outside of West Virginia must have their cases processed in accordance with the requirements of the stipulation and order.

II. Background

On April 16, 1991, plaintiffs filed a complaint challenging the alleged failure of West Virginia Disability Determination Section (DDS) medical consultants to complete residual functional capacity (RFC) assessments, and naming the Secretary and State officials as parties. Following consideration of defendants' various motions to dismiss and plaintiffs' motion for class certification, a magistrate judge recommended on November 27, 1991, that the motions to dismiss be denied and that the court certify a class. On January 24, 1992, the district court adopted the magistrate judge's recommendation and certified a class (see Part IV. below, for class definition).

Subsequently, the parties engaged in settlement negotiations, and, on August 17, 1992, the district court approved the parties' proposed stipulation and order for settlement. On October 5, 1992, following a public hearing, the district court gave final approval to the proposed settlement.

III. Guiding Principles

Under the Boring stipulation and order for settlement, 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. B. 2. below). The West Virginia DDS will screen for class membership, unless a potential class member claim is pending or stored at OHA. Regardless of the state of the claimant's current residence, the West Virginia DDS will, in most cases, perform the agreed-upon readjudication, irrespective of the administrative level at which the claim was last decided. In readjudicating claims pursuant to the stipulation and order, the DDS will apply the standards applicable to determining RFC, as set forth in titles II and XVI of the Social Security Act, 20 CFR §§ 404 and 416 and Program Operations Manual System provisions in effect at the time of readjudication.

The type of readjudication will be a “redetermination.” A redetermination consists of 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 determination(s) or decision(s) that forms the basis for the claimant's class membership. If the redetermination results in a favorable decision, the adjudicator must also determine whether the class member's eligibility has been continuous through the date of the readjudication, i.e., the current date. The DDS will also assess disability through the current date, if: 1) a class member claim is pending a hearing or is associated with a common-issue subsequent (current) claim that is pending a hearing, and the Administrative Law Judge (ALJ) exercises discretion to dismiss the request for hearing and return the claim(s) to the DDS (see Parts VI. A. and B. below); or 2) a class member claim is pending before the Appeals Council or is associated with a common-issue subsequent (current) claim that is pending before the Appeals Council, and the Appeals Council, under certain circumstances, remands the claim(s) to the DDS (see Parts VI. C. and D. below). Cases readjudicated by the West Virginia DDS 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., ALJ hearing, Appeals Council and judicial review.

Other than “waterfall” cases, i.e., cases received on appeal, the primary implementation impact of the Boring settlement on OHA will be the responsibility for screening when a potential class member claim or subsequent (current) claim is pending or stored at OHA. Under the terms of the stipulation and order for settlement, cases will be consolidated for readjudication only at the DDS level. However, the ALJ or the Appeals Council may consolidate a class member claim and a subsequent (current) claim for the purpose of issuing a decision that is fully favorable with respect to the class member claim.

IV. Definition of Class

Subject to the exceptions referred to below, the Boring class consists of individuals:

who had a claim for title II and/or title XVI disability benefits denied at step 4 or 5 of the sequential evaluation at the initial or reconsideration level by the Clarksburg area office of the West Virginia DDS between January 1, 1986, and June 5, 1990, inclusive; and
whose claim file contains an RFC assessment form which bears the signature of either Hugh M. Brown, M.D., or J. Keith Pickens, M.D.

EXCEPTIONS:

A person is not a class member eligible for class relief if he or she

(1) pursued the potential class member claim to the OHA level and received an administrative denial (other than a dismissal) from an ALJ that became final; or

(2) had a primary diagnosis on the SSA-831 of a neoplastic disease; or

(3) had primary and secondary diagnoses on the SSA-831 of a mental impairment(s); or

(4) received a subsequent RFC assessment by a DDS medical consultant other than Drs. Brown or Pickens, either on reconsideration of the potential class member claim or on a subsequent claim which covered the period at issue in the potential class member claim.

A person also is not a class member eligible for relief if the final determination in file contains:

(1) an SSA-4734 prepared by Dr. Pickens which bears the symbol “R” or “r” next to his signature; or

(2) an SSA-4734 completed during the period January 1, 1986, through October 1, 1989, in which the handwriting, and accompanying signature indicates that Drs. Brown or Pickens personally reviewed the evidence and assessed the RFC; or

(3) a white abstract form completed during the period October 1, 1989, through June 5, 1990, which indicates that Drs. Brown or Pickens personally reviewed the evidence and assessed RFC.

V. Determination of Class Membership and Preadjudication Actions

A. Non-OHA Actions

Notification

Based on the foregoing class definition, SSA Central Office identified potential class members by computer run and, in a single mailing on June 2, 1993, sent notices to all potential class members. Individuals had 60 days from the date of receipt of the notice to return a response form to the Office of Disability and International Operations (ODIO), requesting that SSA readjudicate their claims under the terms of the Boring stipulation and order. Notices returned as undeliverable receive no further action. ODIO will forward response forms received more than 65 days after the mailing date to the SSA Boring Coordinator in the Office of the Deputy Commissioner for Programs' Litigation Staff. Litigation Staff will request field offices (FOs) to develop good cause for the untimely reply forms, as necessary.
Alert and Folder Retrieval Process

ODIO will enter information from all response forms into the Civil Action Tracking System (CATS). As appropriate, Litigation Staff will arrange for CATS to generate alerts to ODIO (see Attachment 2 for a sample Boring alert). ODIO will associate the alerts with any ODIO-jurisdiction potential class member claim file(s). ODIO will then coordinate with other processing (PCs), FOs and the Wilkes-Barre Data Operations Center (DOC) to appropriately route the claim files and non-ODIO jurisdiction alerts, so that all appropriate claim files within the Boring timeframes are obtained prior to screening.
Alerts Sent to OHA

ODIO will forward alerts to OHA when a potential class member claim or a current claim is pending or stored at OHA. If the claim is located in a hearing office (HO), ODIO will forward the alert directly to the HO for processing. If the claim is located in OHA Headquarters, ODIO will forward the alert to the Office of Appellate Operations (OAO) at the following address:

One Skyline Tower, Suite 701
5107 Leesburg Pike
One Skyline Tower, Suite 601
Falls Church, VA 22041-3200

ATTN: OAO Class Action Coordinator
Folder Reconstruction

After a thorough search not to exceed 120 days, the PC or the Wilkes-Barre DOC will initiate folder reconstruction through the servicing FO. Because the PC, FO and Wilkes-Barre DOC either obtain all appropriate claim files within the Boring timeframes, or arrange for their reconstruction prior to forwarding files for screening, OHA requests for reconstruction should be rare. However, if it becomes necessary for OHA to request reconstruction, the OHA component (the HO or the OAO branch) will return the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) to Litigation Staff and request that folder reconstruction be initiated. The OAO branch will route requests through the OAO Class Action Coordinator. HO personnel and the OAO Class Action Coordinator will forward requests to Litigation Staff at the following address:

Litigation Staff
Office of the Deputy Commissioner for Programs, Policy,
Evaluation and Communications
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 21235

ATTN: Boring Screening Unit

HO personnel or 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 of the claim(s) involved.

B. OHA Actions

Pre-Screening Actions
1. Current Claim Pending or Stored at OHA Headquarters
  
  As provided in Part V. A. 3. above, if there is a current claim pending or stored at OHA Headquarters, the OAO Class Action Coordinator will receive the alert and related Boring claim file(s). The Coordinator will determine which OHA component has the current claim and forward for screening as follows.
  - If the claim has been sent to an HO, the Coordinator will forward the alert and the prior claim file(s) to the HO for screening, using Attachment 3 (see Part V. B. 2. b. below if the claim is no longer in the HO when the alert is received).
  - If the claim is before the Appeals Council, in an OAO branch mini-docket or in an OAO Docket and Files Branch, the Coordinator will forward the alert and the prior claim file(s) to the appropriate OAO branch for screening, using Attachment 3 (see Part V. B. 2. b. below if the claim is no longer in OAO when the alert is received).
  If the Coordinator (or the designee) is unable to locate the current claim file within OHA, the Coordinator (or the designee) will broaden the claim file search and arrange for claim file retrieval, alert transfer or claim file reconstruction, as necessary.
  
  NOTE:
  
  The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA for association with pending or stored claims. Because this is a relatively small class, the OHA alert workload will be minimal and a manual accounting should suffice. The Coordinator should maintain a record of all alerts received and the location, if any, to which alerts are transferred. This information will be necessary to do the final class membership reconciliation.
2. 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 current or prior claim, the 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.
Screening
1. 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:
  - ensure that all appropriate claims denied within the Boring timeframes have been retrieved and considered;
  - read and follow all instructions on the screening sheet;
  - check item 2. of the SSA-831-U5 for code 511, indicating that the Clarksburg DDS reviewed the case;
  - review the handwriting samples at Attachment 5;
  - sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and
  - 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 onto a database and forward the screening sheet to the Division of Litigation Analysis and Implementation (DLAI) in the Office of Policy, Planning and Evaluation. 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 send the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V. A. 3. above) and advise the Coordinator of the action taken on the current claim and its destination. The 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 Disability Program Branch for screening, using Attachment 3. If the files are not in OHA, the Coordinator will use Attachment 6 to send the alert and any accompanying prior claim file(s) to the non-OHA location.
  
  If an OAO branch receives an alert only, or an alert associated with a prior claim file(s) and no longer has the current claim file, it will determine the location of the current claim file. If the current claim file is located within OHA, the OAO branch will use Attachment 3 to forward the material to the OHA location. If the files are no longer in OHA, the OAO branch will use Attachment 6 to forward the material to the non-OHA location. The OAO branch will also advise the OAO Class Action Coordinator of its actions.
2. Screening Instructions if a Civil Action Is Involved
  
  As indicated previously, the CCPRB will screen cases in which a civil action is involved. If the claimant is a class member, the CCPRB will notify the Office of the General Counsel (OGC) attorney having responsibility for the civil action of the fact of class membership. OGC will advise the CCPRB of the action to be taken. However, if the class member claim is not the claim pending in court, i.e., the claim pending in court was filed prior or subsequent to the class member claim, and the claims do not have common issues, the CCPRB will forward the class member claim to the DDS for readjudication, using Attachment 7. The CCPRB must notify the OAO Class Action Coordinator of the transfer to the DDS. If the claimant is not a class member, the CCPRB will proceed in accordance with Part V. B. 3. a. below.
Post-Screening Actions
1. 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 8;
  - retain a copy of the notice in the claim file;
  - send a copy of the notice to:
    
    Michael G. Miskowiec
    Suite 404A, 922 Quarrier Street
    Charleston, WV 25301
  - hold the claim file(s) for 60 days to allow claimants the opportunity to contest class membership determinations;
  - if the claimant or class counsel makes a timely review request (within 30 days from the date of receipt of notice), forward the non-class member claim file to the Charleston, West Virginia District Office using the pre-addressed route slip in Attachment 9;
    
    NOTE:
    
    Photocopy any material contained in the prior file that is relevant to the current claim (if any) and place it in the current claim file before shipping the prior file.
  - if SSA, through OGC, resolves the dispute in the claimant's favor: 1) rescreen the case; 2) send the notice of revised class membership (Attachment 10) to the claimant and representative, if any, and to the class counsel; 3) proceed in accordance with Part VI. below; and 4) notify the OAO Class Action Coordinator at the address in Part V. A. 3. above, for coordination with DLAI, of the revised determination by forwarding a copy of the revised screening sheet; and
  - if, after the 60-day holding period, the claimant or class counsel does not contest the class membership determination, return the claim file to its storage location if not otherwise needed for adjudication.
2. Class Member Cases
  
  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

As indicated previously, the West Virginia DDS will perform the class member readjudications, irrespective of the administrative level at which the claim was last decided. However, when the claimant is a class member and OHA has responsibility for screening because the class member's claim or a subsequent (current) claim is pending or stored at OHA, the following process and adjudication procedures will apply.

A. Class Member Claim Is Associated with Current Claim Pending at Hearing Level

Because the receipt of a subsequent RFC assessment by a DDS medical consultant other than J. Keith Pickens, M.D., or Hugh M. Brown, M.D., is a basis for screen-out (item 11. of the screening sheet), a claimant who filed a subsequent, common-issue claim is unlikely to be a class member. However, for those individuals who may be class members, e.g., Drs. Pickens or Brown prepared the RFC assessment on reconsideration of the subsequent claim, or the claimant alleged a later onset date in the subsequent claim, the following instructions will apply.

Claims Have Common Issues; Hearing Scheduled or Held

In this situation, the appropriate HO action will depend on the ALJ's consideration of the merits and disposition of the current claim.
1. If the ALJ issues a decision on the current claim, and that decision is fully favorable with respect to the class member claim, the ALJ will:
  - consolidate the claims;
  - notify the claimant and representative, if any, that the decision on the current claim also resolves the class member claim; and
  - forward a copy of the decision, for coordination with DLAI, to the OAO Class Action Coordinator at the address in Part V. A. 3. above.
2. If the ALJ issues a decision on the current claim that is not fully favorable with respect to the class member claim, or dismisses the request for hearing on the current claim, HO personnel will flag the class member claim (see Attachment 11) for forwarding to the DDS on completion of all OHA actions and expiration of any appeal period.
Claims Have Common Issues; Hearing Not Scheduled

In this situation, the ALJ will dismiss the request for hearing on the current claim and forward both the current and class member claims to the DDS, for a consolidated reopening-type determination (see Part III. above), at the following address:

Division of Rehabilitation Services
Disability Determination Section
Suite 200, 1206 Quarrier St.
Charleston, WV 25301.

The destination code for the DDS is S55.

EXCEPTIONS:

The ALJ will not dismiss the request for hearing on the current claim when a hearing has not been scheduled, if 1) the claimant has waived his or her right to an in-person hearing and the current claim is ready for an on-the-record decision; 2) the ALJ is otherwise prepared to issue a fully favorable decision on the current claim; 3) the current claim is on remand from the Appeals Council; or 4) the current claim involves terminal illness.

If the ALJ is unable to dismiss the request for hearing on the current claim because an exception applies, and the ALJ proposes to issue a decision that is fully favorable with respect to the class member claim, the ALJ will follow the guidance in Part VI. A. 1. above. If the ALJ issues a decision on the current claim that is not fully favorable with respect to the class member claim, HO personnel will flag the class member claim (see Attachment 11) for forwarding to the DDS on completion of all OHA actions and expiration of any appeal period.
Claims Do Not Have Common Issues

HO personnel will retain and process the current claim separately and forward the class member claim to the DDS for redetermination without delay, using Attachment 7.

B. Class Member Claim Is Pending at the Hearing Level

Hearing Scheduled or Held

As in Part VI. A. 1. above, the appropriate HO action with respect to class relief will depend on the ALJ's disposition of the request for hearing.
1. If the ALJ issues a decision that is fully favorable, this action provides all class relief and the ALJ will:
  - notify the claimant and representative, if any, that the decision resolves class relief; and
  - forward a copy of the decision, for coordination with DLAI, to the OAO Class Action Coordinator at the address in Part V. A. 3. above.
2. If the ALJ issues a decision that is not fully favorable or dismisses the request for hearing, HO personnel will flag the claim (see Attachment 11) for forwarding to the DDS on completion of all OHA actions and expiration of any appeal period.
Hearing Not Scheduled

The ALJ will dismiss the request for hearing and forward the claim to the DDS for reopening (see Part III. above) at the address in Part VI. A. 2. above.

EXCEPTIONS:

The ALJ will not dismiss the request for hearing when a hearing has not been scheduled, if 1) the claimant has waived his or her right to an in-person hearing and the case is ready for an on-the-record decision; 2) the ALJ is prepared to issue a fully favorable decision; 3) the claim is on remand from the Appeals Council; or 4) the claim involves terminal illness.

If the ALJ is unable to dismiss the request for hearing because an exception applies, and the ALJ proposes to issue a decision that is fully favorable, the ALJ will follow the guidance in Part VI. A. 1. If the ALJ issues a decision that is not fully favorable, HO personnel will flag the claim (see Attachment 11) for forwarding to the DDS on completion of all OHA actions and expiration of any appeal period.

C. Class Member Claim Is Associated with Current Claim Pending at Appeals Council Level

Claims Have Common Issues

Because the receipt of a subsequent RFC assessment by a DDS medical consultant other than J. Keith Pickens, M.D., or Hugh M. Brown, M.D., is a basis for screen-out (item 11. of the screening sheet), a claimant who filed a subsequent, common-issue claim is unlikely to be a class member. However, for those individuals who may be class members, e.g., Drs. Pickens or Brown prepared the RFC assessment on reconsideration of the subsequent claim, or the claimant alleged a later onset date in the subsequent claim, the appropriate Appeals Council action will depend on the Appeals Council's consideration of the merits and disposition of the current claim.
1. If the Appeals Council issues a decision on the current claim and that decision is fully favorable with respect to the class member claim, the Council will:
  - consolidate the claims;
  - notify the claimant and representative, if any, that the decision on the current claim also resolves the class member claim; and
  - forward a copy of the decision, for coordination with DLAI, to the OAO Class Action Coordinator at the address in Part V. A. 3. above.
2. If the Appeals Council issues a decision on the current claim and that decision is not fully favorable with respect to the class member claim, OAO personnel will flag the claim for forwarding to the DDS (see Attachment 11) following effectuation and expiration of any appeal period.
3. If the Appeals Council finds a basis for remand unrelated to the fact of Boring class membership, it will combine the claims and forward them to the DDS at the address in Part VI. A. 2. above for a consolidated reopening-type determination (see Part III. above) (see sample remand language at Attachment 12).
4. In all other situations, i.e., after consideration of the merits, if the Appeals Council would otherwise dismiss or deny the request for review or issue an unfavorable decision, OAO personnel will combine the claims and forward them to the DDS at the address in Part VI. A. 2. above for redetermination (see Part III. above) through the date of the ALJ's decision on the pending claim (or, if the ALJ dismissed, through the date of reconsideration) (see sample remand language at Attachment 12).
Claims Do Not Have Common Issues
1. If the class member claim file is not needed for adjudication of the current claim, OAO personnel will forward the class member file to the DDS, using Attachment 7.
2. If the class member claim file is needed for adjudication of the current claim, OAO personnel will flag the class member claim (see Attachment 11) for forwarding to the DDS on completion of all OHA actions and expiration of any appeal period.

D. Class Member Claim Is Pending at the Appeals Council Level

The Appeals Council's action with respect to class relief will depend on the Council's consideration of the merits of the request for review.

Appeals Council Decides To Issue a Fully Favorable Decision OAO personnel will:
1. notify the claimant and representative, if any, that the decision resolves class relief; and
2. forward a copy of the decision, for coordination with DLAI, to the OAO Class Action Coordinator at the address in Part V. A. 3. above.
Appeals Council Decides To Issue a Partially Favorable Decision

OAO personnel will flag the claim for forwarding to the DDS (see Attachment 11) following effectuation and expiration of any appeal period.
Appeals Council Finds a Basis for Remand Unrelated to the Fact of Boring Class Membership

The Council will remand the claim to the DDS at the address in Part VI. A. 2. above, for a reopening-type determination, using Attachment 13.
Appeals Council Would Otherwise Dismiss or Deny the Request for Review or Issue an Unfavorable Decision

The Council will remand the claim to the DDS at the address in Part VI. A. 2. above, for redetermination through the date of the ALJ's decision or, if the ALJ dismissed through the date of reconsideration, using Attachment 13.

E. Class Member Claim Is Stored Pending Appeal

OAO will flag the case (see Attachment 11) for forwarding to the DDS at the expiration of the appeal period.

VII. Case Coding

If the class member claim is pending at the hearing level, and the ALJ: 1) dismisses the request for hearing for the purpose of DDS readjudication of the class member claim; or 2) issues a fully favorable decision, HO personnel will change the hearing type on the claim to a “reopening.” For any other ALJ action on the pending class member claim, the hearing type, as a new request for hearing, will remain unchanged. However, in all situations, to identify class member cases in the Hearing Office Tracking System (HOTS), HO personnel will code “BO” in the “Class Action” field. No special identification codes will be used in the OHA Case Control System (CCS). Additionally, HO personnel will code dismissal cases as “OTDI.” HOTS users will need to bypass the automated case routing capability and manually route dismissal cases through the special case disposition/routing function. Only the systems administrator can access this function. The individual will need to enter the DDS address (see Part VI. A. 2.) and destination code “S55.”

If the class member claim is associated with a current claim pending at the hearing level, and the ALJ: 1) dismisses the request for hearing for the purpose of DDS readjudication because the current claim and class member claim have common issues; or 2) issues a decision on the current claim that is fully favorable with respect to the class member claim, HO personnel will change the hearing type on the current claim to a “reopening.” For any other ALJ action on the current claim, the hearing type, as a new request for hearing, will remain unchanged. However, in all situations, to identify class member cases in HOTS, HO personnel will code “BO” in the “Class Action” field. No special identification codes will be used in the OHA CCS. Additionally, HO personnel will code dismissal cases as “OTDI.” HOTS users will need to bypass the automated case routing capability and manually route dismissal cases through the special case disposition/routing function. Only the systems administrator can access this function. The individual will need to enter the DDS address (see Part VI. A. 2.) and destination code “S55.”

VIII. Inquiries

A. Claimant Inquiries

If OHA receives a written or oral inquiry concerning the Boring case because a claimant either lost the court case reply form or was never notified, OHA will obtain a signed statement with respect to the claimant's intent to pursue class membership. The statement should contain the following:

name, Social Security number and claim number (if any);
specific request for Boring review;
date of request;
address and telephone number; and
name, address and telephone number of representative, if any.

OHA will not delay action on a pending claim to determine the claimant's status under Boring. Rather, OHA will place a copy of the statement in the claim file and forward the original to Litigation Staff at the address in Part V. A. 4. above.

B. OHA Inquiries

Hearing office personnel should direct any questions concerning this instruction 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.

Attachment 1. Stipulation and Order Entered by the Court on August 17, 1992; Finally Approved by the Court on October 5, 1992, Following a Public Hearing.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

LOWILLA BORING, FAIRY FOSTER
and PHYLLIS D. BONON,

Individually and on behalf of
all others similarly situated,

Plaintiffs,

v. Civil Action No. 2:91-0429

LOUIS W. SULLIVAN, M.D., Secretary

of Health and Human Services;
JANE JOHNSTONE, in her official
capacity as the Director of the
West Virginia Disability
and Determination Section; and John
PANZA, in his official capacity
as the Director of the West
Virginia Division of Rehabilitation of Service,

Defendants.

STIPULATION AND ORDER

Scope of the Class

Individuals who shall be entitled to seek relief under this Stipulation and Order shall include, subject to the exclusions provided in Paragraph 2 and the requirements of Paragraph 7, the named Plaintiffs and any other individual:

(a) who had a claim for: (i) disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 (1991 and Supp. 1992); (ii) a claim for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1382-1383d (1992); or (iii) a concurrent DIB and SSI benefits claim, denied at step 4 or 5 of the sequential evaluation process, 20 C.F.R. §§ 404.1520(e)-(f),416.920(e)-(f) (1991), at the initial or reconsideration level of administrative review, 20 C.F.R. §§ 404.900(a) (l)-(Z), 404.902-.906,416.1400(a)(l)-(2), 416.1402-.1406(1991), by the Clarksburg area offices of the West Virginia Disability Determination Services (“DDS”) during the period January 1, 1986, through June 5, 1990; and

(b) whose claims file contains a residual functional capacity (“RFC”) assessment form which bears the signature of either Hugh M. Brown, M.D., or J. Keith Pickens, H.D., of the Clarksburg area office of the DDS.
The class shall not include any individual who:

(a) had his or her RFC for the same period covered by the claim described in Paragraph 1 assessed by a DDS medical consultant other than Hugh M. Brown, M.D., or J. Keith Pickens, M.D., subsequent to the RFC assessment made by Dr. Brown or Dr. Pickens; or

(b) has in his; or her claims file an RFC assessment form prepared at the initial level of administrative review by Dr. Pickens which has the symbol “R” or “r” next to his signature on the RFC assessment form and which was not reviewed at the reconsideration level of review; or

(c) has in his or her claims file an RFC assessment form prepared at the initial level of administrative review by Dr. Pickens which has the symbol “R” or “r” next to his signature on the RFC assessment form and which was reviewed at the reconsideration level of review by a medical consultant other than Dr. Brown; or

(d) has in his or her claims file a RFC assessment form prepared at the reconsideration level of administrative review by Dr. Pickens which has the symbol “R” or “r” next to his signature on the RFC assessment form; or (e) has in his or her claims file a RFC assessment form executed during the period January 1, 1986, to October 1, 1989, on which the handwriting indicates that Dr. Brown or Dr. Pickens, as the case may be, personally reviewed the evidence and assessed RFC; or

(f) has in his or her claims file a white abstract form executed during the period October 1, 1989, to June 5, 1990, which indicates that Dr. Brown or Dr. Pickens, as the case may be, personally reviewed the evidence and assessed RFC; or

(g) received an administrative denial (other than a dismissal) from an Administrative Law Judge on the claim described in Paragraph 1, which became final because the individual did not seek Appeals Council review, or became final on Appeals Council denial of review of the decision of the Administrative Law Judge, or became final on Appeals Council's issuance of its own decision on review of the decision of the Administrative Law Judge, 42 U.S.C. §§ 405 (b) (1) or 1383 (c) (1) (A); 20 C.F.R. §§ 404.953, 404.979, 404.981, 416.1453, 416.1479, 416.1481 (1991); or

(h) filed a complaint in a federal district court pursuant to 42 U.S.C. §§ 405 (g) or 1383 (c ) (3) based on a final administrative denial of a claim described in Paragraph 1; or

(i) received a final judgment of a federal district court on the claim described in Paragraph 1; or

(j) filed an appeal in a federal appellate court on the claim described in Paragraph 1; or

(k) received a final judgment from a federal appellate court on the claim described in Paragraph 1; or

(l) received a primary diagnosis designation of meoplastic in Field 16A of SSA Form 831 on the claim described in Paragraph 1; or

(m) had mental impairments described in the primary and secondary diagnosis designation in Field 16 of SSA Form 831.

Preservation of Rights

This Stipulation and Order shall not be construed as modifying the rights of any individual excluded from the class under Paragraph 2 to request reopening of a decision pursuant to 20 C.F.R. §§ 404.988 and 416.1488.

Identification of Potential Class Members

The Social Security Administration (“SSA”) shall, by means of its data processing systems and to the extent the data exists in those systems, identify the names, Social Security Numbers and last known addresses of potential class members who satisfy the criteria of Paragraph 1(a).

Notices to Potential Class Members

SSA shall promulgate instructions to all personnel charged with implementing this stipulation and order with responding to inquires concerning this Stipulation and Order. SSA shall provide class counsel with a copy of these instructions prior to distributing the instructions to SSA and DDS personnel.
After issuing the instructions described in Paragraph 5, SSA shall mail notices to potential class member identified in accordance with paragraph 4 to the addresses last shown in SSA records. The notice shall be prepared by SSA in consultation with class counsel. The notice shall be mailed within 240 days of the entry of this Stipulation and Order. The notice shall inform the potential class member that she or he may be entitled to have her or his DIB or SSI claim redetermined. SSA shall enclose with the notice a request for review form and a postage-paid, pre-addressed envelope.
Potential class members who wish to seek relief under this Stipulation and Order shall request a redetermination of their claims by mailing the request for review form, properly addressed and postage prepaid within sixty (60) days of the date on which they receive the notice referred to in Paragraph 6. The failure of a potential class member to timely request review in accordance with the preceding sentence shall result in his or her exclusion from the class. SSA may presume that a potential class member received the notice five (5) days after mailing, unless the potential class member establishes that he or she actually received the notice at a later date, in which case the sixty (60) days to request redetermination shall be counted from the date of actual receipt. SSA shall presume that a request for review was mailed five (5) days before it is received by SSA unless the potential class member establishes that the request was mailed earlier, in which case the date of actual mailing will be used in determining whether the request is timely.

Determination of Class Membership

SSA shall decide whether an individual who requests redetermination qualifies for class membership under the criteria of Paragraph 1, the exclusions of Paragraph 2 and the requirements of Paragraph 7.
If SSA decides that an individual who requests redetermination under this Stipulation and Order is not a class member, SSA shall send a notice of its decision to the individual, the individual's representative of record in any proceeding described in Paragraph 16, if known, and to the class counsel. The notice shall be prepared by SSA in consultation with class counsel. The notice shall be prepared by SSA in consultation with class counsel. The notice shall specify the reason(s) for SSA's decision to exclude the individual from the class and shall notify the individual of his or her right to contest the decision. The notice shall also contain the name and address of class counsel and shall inform the individual that she or he may obtain assistance from class counsel if she or he wishes to contest the denial of class membership.
If an individual disagrees with a class membership decision made under Paragraph 8, he or she shall, within thirty (30) days of receipt of the notice described in Paragraph 9, notify the Chief Counsel, Office of the General Counsel (OGC), Department of Health and Human Services, 3535 Market Street, Philadelphia, Pennsylvania 19104, in writing of the disagreement and specify the reasons for the disagreement. SSA, through OGC, shall respond to the notification of disagreement within thirty (30) days of receipt of OGC in Philadelphia.
If an individual fails to contest a class membership decision in accordance with Paragraph 10, the decision shall take immediate effect and shall not be subject to further review.
Class counsel may request inspection of the date or documents relied upon by SSA in making the retermination of an individual's class membership, but must do so in writing. To protect the privileged information contained in the claims file, class counsel may not use or disclose any information obtained from the claims file except for the purpose of pursuing the individual's claim pursuant to this Stipulation and Order or as otherwise authorized by the claimant. Class counsel and SSA shall arrange for a mutually agreeable time and place for inspection of the data, documents and claims file.
OGC and class counsel shall negotiate in good faith to resolve any disputes concerning an individual's class membership. If after negotiation, counsel cannot resolve the question of an individual's class membership, OGC will send to class counsel and the putative class member a written confirmation of denial of class membership. Subject to the provisions of Paragraph 10, class counsel may, by duly noticed motion, submit the unresolved matter to this court for resolution. Such motion must be filed not later than sixty (60) days after class counsel's receipt of the written confirmation sent by OGC that the dispute over class membership cannot be resolved. The procedure outlined in this paragraph 13 shall constitute the sole method of challenging the denial of class membership.

Procedures for Redetermination

All claims entitled to redetermination under the terms of this Stipulation and Order shall be redetermined at the reconsideration level of administrative review, 20 C.F.R. §§ 404.907, 416.1407 (1991).
If a class member has more than one claim subject to redetermination pursuant to this Stipulation and Order, SSA may, at its option, consolidate all such claims and redetermine them at the reconsideration level of review, 20 C.F.R. §§ 404.907, 416.1407 (1991).
If a class member has another active DIB or SSA disability claim simultaneously pending before SSA at any administrative level, SSA may, at its option, consolidate that claim (S) with the claim being redertminted under this Stipulation and Order. The consolidated claims will be redertmined at the reconsideration level of administrative review, 20 C.F.R. §§ 404.907, 416.1407 (1991).

Standard for Redetermination

In redetermining claims pursuant to this stipulation and Order, SSA shall apply the standards applicable to determining RFC set forth in Titles II and XVI of the Social Security Act, 20 C.F.R. Parts 404 and 416, and the Programs Operations Manual System in affect at the time the redetmination is made.
Redetermination of claims of class members pursuant to this Stipulation and Order shall be based on the record that was before Hugh M. Brown, M.D. or J. Keith Pickens, M.D., at the time those physicians signed the RFC assessment forms. The redetermination shall consist of an assessment of a class member's RFC by a medical consultant other than Hugh M. Brown, M.D., or J. Keith Pickens, M.D. After an RFC is assessed, the Defendants shall determine whether that class member is disabled.
Class members shall retain all rights to seek further administrative and judicial review of determinations made on redetermination in accordance with 42 U.S.C. § 405 (g) and 20 C.F.R. Part 404, Subpart J and Part 416, Subpart N. In any administrative appeal of the redetermination, the submission of new evidence with respect to a predetermined claim and the time period covered by that claim shall be governed by current SSA regulations.

Reports to Class Counsel

SSA will maintain, by a data tracking system, a record of the following information:

a. The number of class notices sent:

b. the number of individuals responding to the notices;

c. the number of individuals determined not to be members of the class;

d. the number of individuals who receive favorable DDS determinations; and

e. the number of individuals who receive unfavorable DDS determinations.
SSA will provide reports containing the information maintained in the tracking system to the member of class counsel designated by them to receive reports at intervals as agreed to by the parties. Once SSA has substantially completed the redeterminations required by this Stipulation and Order and placed the information identified in Paragraph 20 into the tracking system, SSA shall so advise class counsel by providing them a final report.

Future Conduct

Defendants agree to follow SSA's regulations on assessment of RFC.

Precedent

Nothing in this Stipulation and Order confers on any individual class member a right to an administrative determination that the person is or was entitled to receive DIB or SSI benefits and, therefore, any class member aggrieved by an administrative decision must seek redress under applicable statutes, rules and regulations, and may not seek review of the individual decision in his or her case except as provided under the provisions of this Stipulation and Order. The provision does not affect the rights is any, of a class member to seek enforcement of the provisions of this Stipulation and Order.

Release of Claims and Liability

This Stipulation and Order resolves all claims by the named Plaintiffs and the Plaintiff class against the Defendants, their agents or employees based on alleged acts or omissions in evaluating DIB or SSI claims. Accordingly, in consideration for the implementation of the provision of the Stipulation and Order, the parties, on behalf of themselves and any entity or individual on whose behalf they act or have acted, agree to dismiss this action with prejudice and to fully, finally and forever release, discharge and waive any and all claims, demands, liabilities, actions, rights of action and causes of action of any kind or nature whatsoever based on these alleged acts or omissions The parties further expressly understand and agree that this settlement is a compromise of a disputed claim, that none of the Defendants, their agents or employees admit liability, and the Defendants' willingness to compromise is not and admission that the disability and assessment practices in the State of West Virginia were erroneous.
The terms of the numbered paragraphs of this Stipulation and Order constitute the entire agreement of the parties, and no statement, representation, agreement or understanding, oral or written which is not contained herein, shall have any force or effect, nor does the Stipulation and Order reflect any agreed upon purpose other then the desire of the parties to reach a full settlement.

Final Judgment and Retention of Jurisdiction

This Stipulation and Order shall constitute the final judgment with respect to all matters covered by its terms; provided, however, that the Court shall retain jurisdiction to enforce the provisions of this Stipulation and Order, to resolve disputes arising during the implementation of this Stipulation and Order, and to consider petitions for attorney fees and costs. If a party requests the Court to resolve a dispute arising under this Stipulation and Order, any time limitation set forth herein which is affected by the dispute shall be suspended until the dispute is resolved.
The claims of all individuals who were included in the class certified by the Court in its order of January 24, 1992, but who are not entitled to redetermination pursuant to Paragraphs 1 or 2, shall be dismissed with prejudice.
Class counsel, by signing below, warrant and guarantee that they are sole counsel to the Plaintiff class and that they are duly authorized to stipulate to the settlement of issues in this action on behalf of Lowilla Boring, Phyllis Bohon and Fairy Foster, and all class member those named Plaintiffs represent. Counsel for the Defendants, by signing below, represent that they are authorized to stipulate to the settlement of issues in this action.
This Stipulation and Order shall be effective only upon entry of the order by the Court.

Attorneys Fees and Costs

Plaintiffs reserve the right to petition the Court for an award of attorney's fees and costs consistent with applicable law and to supplement such petition after the final report referred to in Paragraph 21 for services rendered to the class in implementing this Stipulation and Order.


For the Plaintiffs:	LOWILLA BORIN, FAIRY FOSTER And Phyllis D. Bohon, individually and on behalf of all others similarly situated, By Counsel Michael Miskowiec West Virginia Legal Services Plan
For the Defendants:	LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, By Counsel _______________________________ MICHAEL W. CAREY United States Attorney By: ____________________________ GARY L. CALL Assistant United States Attorney
	JANE JOHNSTONE, in her official capacity as the Director of the West Virginia Deisability Determination Section; and JOHN PANZA, in his official capacity as the Director of the West Virginia Division of the Rehabilitation Service By Counsel MARIO J. PALUMBO Attorney General State of West Virginia By: ______________________________ KATHERINE A. SCHULTZ Deputy Attorney General
It is so ordered this 17th day of August, 1992. The Cleak is directed to send certified copies of this Stipulation and Order to all counsel of record.
	_______________________________ CHARLES H HADEN II Chief Untied States District Judge

Attachment 2. Sample Boring Alert

SAMPLE

BORING COURT CASE FLAG/ALERT

TITLE: CATEGORY:

REVIEW PSC MFT DOC ALERT
DATE OFFICE

BOAN OR PAN NAME

SSN OR HUN RESP DTE TOE

FOLDER LOCATION INFORMATION

TITLE CFL CFL DATE ACN PAYEE
ADDRESS

II

XVI

SHIP TO ADDRESS

DIVISION OF REHABILITATION SERVICES

DISABILITY DETERMINATION SECTION

SUITE 200

1206 QUARRIER STREET

CHARLESTON, WV 25301

IF CLAIM IS PENDING IN OHA, 
THEN SHIP FOLDER
TO OHA

Attachment 3. Route Slip or Case Flag For Screening

BORING Class Action Case


SCREENING NECESSARY


Claimant's Name:	__________________________________


SSN :	__________________________________


This claimant may be a Boring class member. The attached folder location information indicates that a claim file is located in your office. Accordingly, we are forwarding the attached alert [and prior claim file(s)] for association, screening for class membership, consolidation consideration and possible readjudication.
Please refer to HALLEX Temporary Instruction 5-4-37 for additional information and instructions.
	TO: __________________________________________ ______________________________________________ ______________________________________________ ______________________________________________

Attachment 4. Boring Screening Sheet and Screening Sheet Instructions

Boring Screening Sheet and Screening Sheet Instructions

Attachment 5. Handwriting Samples, Drs. Brown and Pickens

I-5-437-Att-5.pdf

Attachment 6. Boring Route Slip

ROUTING AND TRANSMITTAL SLIP

DATE:

TO:	INITIALS	DATE
1.
2.
3.
4.
5.
6.
7.

XX	ACTION	FILE	NOTE AND RETURN
	APPROVAL	FOR CLEARANCE	PER CONVERSATION
	AS REQUESTED	FOR CORRECTION	PREPARE REPLY
	CIRCULATE	FOR YOUR INFORMATION	SEE ME
	COMMENT	INVESTIGATE	SIGNATURE
	COORDINATION	JUSTIFY

REMARKS
BORING CASE

Claimant: ___________________________

SSN: ________________________________

OHA received the attached alert [and prior claim file(s)] for screening and no longer has a claim file. Our records (see attached print-out) show that you now have possession of the file. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the file in your possession. After associating the alert and files, if any, with the file in your possession, please forward all to the West Virginia Disability Determination Section for screening and possible redetermination.


Attachment

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

FROM: Office of Hearings and Appeals __________________________________________	SUITE/BUILDING
	PHONE NUMBER

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

Attachment 7. Boring Case Flag (DDS Readjudication Needed)

BORING Class Action Case


READJUDICATION NECESSARY


Claimant's Name:	__________________________________


SSN :	__________________________________


This claimant is a Boring class member. The attached Boring claim file was forwarded to OHA for screening because [a subsequent (current) claim] OR [a civil action] is pending. OHA has determined that the class member claim and current claim do not share a common issue.

Accordingly, we are forwarding the attached alert and class member claim file(s) to your location for any necessary Boring readjudication action. We are sending the alert and class member file(s) to:

	Division of Rehabilitation Services Disability Determination Section Suite 200, 1206 Quarrier St. Charleston, WV 25301
(Destination code S55)

Attachment 8. Text for Non-class Member Notice

SI USTED HABLA ESPANOL (IF YOU SPEAK SPANISH)

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

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

A copy of this letter is being sent to your representative of record, if any, and the attorney for the Boring class. You may contact the class attorney in this case to obtain his assistance, if you disagree with our decision. He will answer your questions about class membership without charge. The name, address and telephone numbers of the class attorney are:

Michael G. Miskowiec
Suite 404A, 922 Quarrier Street
Charleston, WV 25301

Attn: Boring Court Case
1-800-573-3946 or
1-304-342-3826

REASON FOR UNFAVORABLE DECISION

You are not a Boring class member because:

_____ 1.	The Clarksburg West Virginia Disability Determination Section did not deny your claim between January 1, 1986, and June 5, 1990, inclusive.
_____ 2.	The Clarksburg West Virginia Disability Determination Section properly reviewed your claim between January 1, 1986, and June 5, 1990, inclusive.
_____ 3.	Your claim was properly reviewed on appeal.
_____ 4.	Your claim was properly reviewed in connection with a subsequent claim that covered the period at issue in the prior (or potential class member) claim.

WE ARE NOT DECIDING WHETHER YOU ARE DISABLED

It is important for you to know that we are not making a decision about whether you are currently disabled. We are deciding only that you are not a Boring class member. If you do not agree with this decision, you have 30 days after receiving this notice to advise the Commissioner's Chief Counsel for the Philadelphia Region (listed below) that you want to protest this decision and explain your reason(s) why:

Chief Counsel
Office of the General Counsel
Room 9100, Gateway Building
3535 Market Street
Philadelphia, PA 19104
Attn: Boring Court Case

IF YOU ARE DISABLED NOW

If you are not currently receiving disability payments and 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 the class attorney or your local Social Security office. The Social Security address and telephone number are printed at the top of this letter. If you call or visit a Social Security office, please have this letter with you. It will help us answer your questions.

cc: Michael G. Miskowiec

Attachment 9. Route Slip for Forwarding Non-Class Member Case to FO

ROUTING AND TRANSMITTAL SLIP

DATE:

TO:	INITIALS	DATE
1. SSA District Office
2. 1206 Quarrier Street
3. Charleston, WV 25301
4.
5.
6.
7.

XX	ACTION	FILE	NOTE AND RETURN
	APPROVAL	FOR CLEARANCE	PER CONVERSATION
	AS REQUESTED	FOR CORRECTION	PREPARE REPLY
	CIRCULATE	FOR YOUR INFORMATION	SEE ME
	COMMENT	INVESTIGATE	SIGNATURE
	COORDINATION	JUSTIFY

REMARKS
*BORING CASE*

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Boring class member. (See screening sheet and copy of non-class membership notice in the attached claim file(s).) As requested, we are forwarding the claim file(s) for inspection by [the claimant.] OR [the claimant's representative.] OR [class counsel.]


Attachment

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

FROM: Office of Hearings and Appeals __________________________________________	SUITE/BUILDING
	PHONE NUMBER

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

Attachment 10. Text for Notice of Revised Class Membership

SI USTED HABLA ESPANOL (IF YOU SPEAK SPANISH)

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

In an earlier notice that we sent you, we said that you were not a member of the Boring class action. After reviewing all of the facts, we have decided that you are a class member. Therefore, we will review your claim, using the procedures agreed to by the parties and approved by the court under the Boring, et al. v. Sullivan settlement agreement.

We have many requests for review and it may take several months before we look at your claim file. When we start the review, we may contact you for additional information if it is required.

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

If you have any questions, you should call, write or visit any Social Security office. If you have someone helping you with your claim, you should contact him or her. You or your representative may also contact the attorney in this case:

Michael G. Miskowiec
Suite 404A, 922 Quarrier Street
Charleston, WV 25301
Attn: Boring Court Case
1-800-573-3946 or
1-304-342-3826

If you call or visit a Social Security office, please have this letter with you. It will help us answer your questions.

cc: Michael G. Miskowiec

Attachment 11. Boring Case Flag (DDS Readjudication Needed -- Retention Period Note Expired)

BORING Class Action Case


READJUDICATION NECESSARY


Claimant's Name:	__________________________________


SSN :	__________________________________


*This claimant is a Boring* class member. Accordingly, upon expiration of the OHA retention period, forward this case for readjudication to:**

	Division of Rehabilitation Services Disability Determination Section Suite 200, 1206 Quarrier St. Charleston, WV 25301
(Destination code S55)

Attachment 12. Text for Appeals Council Remand to DDS Class Member Claim Associated with Current Claim Pending Appeals Council Review

On ____________, the claimant filed a request for review by the Appeals Council on the issues raised by ((his/her) application dated ____________.) OR (the Administrative Law Judge's dismissal action.) The claimant has also been identified as a member of the Boring class action, and is entitled to have the final administrative denial of (his/her) application(s) dated ____________ readjudicated by the West Virginia Disability Determination Section under the terms of the October 5, 1992 stipulation and order for settlement. The undersigned has determined that the current and class member claims have issues in common.

(Discuss the Appeals Council's reasons for remand of the current claim.)

Accordingly, the Appeals Council grants the claimant's request for review and vacates the Administrative Law Judge's (decision/dismissal action). Because the claimant is also entitled to relief at the reconsideration level under the Boring class action, the Council remands this case to the West Virginia Disability Determination Section for reopening of the issues raised by the (dates of applications) applications. The Disability Determination Section will issue one determination covering (both or all) claims. If the Disability Determination Section does not issue a fully favorable determination, it will notify the claimant of the right to request a hearing before an Administrative Law Judge.

Accordingly, the Appeals Council grants the claimant's request for review, vacates the Administrative Law Judge's (decision/dismissal action) and remands this case to the West Virginia Disability Determination Section. The Disability Determination Section will redetermine, through the date of the Administrative Law Judge's decision or, if the Administrative Law Judge issued a dismissal, through the date of reconsideration, the issues raised by the (dates of applications) applications. The Disability Determination Section will issue one determination covering (both or all) claims. If the Disability Determination Section does not issue a fully favorable determination, it will notify the claimant of the right to request a hearing before an Administrative Law Judge.

Attachment 13. Text for Appeals Council Remand to DDS Class Member Claim Pending Appeals Council Review

On ____________, the claimant filed a request for review by the Appeals Council on the issues raised by ((his/her) application dated ____________.) OR (the Administrative Law Judge's dismissal action.) The claimant has also been identified as a member of the Boring class action and is entitled to have (his/her) claim readjudicated by the West Virginia Disability Determination Section under the terms of the October 5, 1992 stipulation and order for settlement.

(Discuss the Appeals Council's reasons for remand.)

Accordingly, the Appeals Council grants the claimant's request for review and vacates the Administrative Law Judge's (decision/dismissal action). Because the claimant is also entitled to relief at the reconsideration level under the Boring class action, the Council remands this case to the West Virginia Disability Determination Section for reopening of the issues raised by the ____________ application. If the Disability Determination Section does not issue a fully favorable determination, it will notify the claimant of the right to request a hearing before an Administrative Law Judge.

Accordingly, the Appeals Council grants the claimant's request for review, vacates the Administrative Law Judge's (decision/dismissal action) and remands this case to the West Virginia Disability Determination Section. The Disability Determination Section will redetermine, through the date of the Administrative Law Judge's decision or, if the Administrative Law Judge dismissed, through the date of reconsideration, the issues raised by the ____________ application. If the Disability Determination Section does not issue a fully favorable determination, it will notify the claimant of the right to request a hearing before an Administrative Law Judge.