I-5-4-38.Hill 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 Dated October 22, 1992; Approved and Filed by the Court on April 30, 1993
Attachment 2	- Hill Court Case Flag/Alert
Attachment 3	- Route Slip or Case Flag for Screening
Attachment 4	- Hill Screening Sheet and Screening Sheet Instructions
Attachment 5	- Route Slip for Routing Class Member Alert and Prior Claim Files(s) to ODIO or PSC -- OHA No Longer Has Current Claim
Attachment 6	- Non-Class Membership Notice
Attachment 7	- Route Slip for Non-Class Membership Case
Attachment 8	- Hill Class Member Flag for Headquarters Use (DDS Readjudication -- retention period expired)
Attachment 9	- Hill Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)
Attachment 10	- ALJ Dismissal to DDS
Attachment 11	- Notice Transmitting ALJ Order of Dismissal
Attachment 12	- Hill Class Member Flag for HO Use (DDS Readjudication)

ISSUED: April 20, 1994

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the parties' October 22, 1992 Stipulation and Order, approved and filed by the United States District Court for the Southern District of New York on April 30, 1993, in the Hill 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 Hill class members who now reside outside of New York must have their cases processed in accordance with the requirements of the stipulation and order.

II. Background

On June 19, 1987, plaintiff filed a complaint challenging the Secretary's policy of evaluating the title II disability claims of widows, widowers and surviving divorced spouses without considering the combined effects of multiple impairments when making an equivalency finding.¹ On October 22, 1987, plaintiff filed an amended complaint seeking class status and relief. On April 12, 1989, the district court certified the class (see Part IV. below, for class definition).

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.

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 April 30, 1993, the district court approved and filed the parties' October 22, 1992 Stipulation and Order setting forth the terms for the implementation of relief to class members (Attachment 1).

¹ Hereinafter (except for use in Part IV. below), the term “widows” is used only for convenience; it is intended to refer to all persons treated similarly under title II, i.e., widows, widowers and surviving divorced spouses.

III. Guiding Principles

Under Hill, the Secretary will reopen and 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 Northeastern Program Service Center (NEPSC) will screen folders for class membership, unless there is a current claim pending at the Office of Hearings and Appeals (OHA). Regardless of the state of the claimant's current residence, the New York Disability Determination Service (NYDDS) 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 review is necessary; i.e., cessation or terminal illness (TERI) cases.

OHA will screen cases and perform readjudications under limited circumstances (see Part V. B. below).

Cases readjudicated by the NYDDS 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 (42 U.S.C. § 423(d)(2) (1992)) and SSR 91-3p for evaluating disability in Hill 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 5-3-15, 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.

² The final rules implementing § 5103 of OBRA 90 were published in the Federal Register on July 8, 1992, at 57 Fed. Reg. 30116. (See 20 CFR §§ 404.1505(a) and 404.1511(a).)

IV. Definition of Class

For purposes of implementing the terms of the stipulation and order, the Hill class is divided into two subclasses. The first consists of all New York 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 (issued by either the NYDDS or an OHA office that adjudicated claims of New York residents), based on medical reasons, between May 12, 1983, and August 22, 1987, 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 June 3, 1991, inclusive.

The second subclass consists of all New York 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 (issued by either the NYDDS or an OHA office that adjudicated claims of New York residents), based on medical reasons, between August 23, 1987, and June 3, 1991, inclusive.

EXCEPTIONS:

A person is not a class member eligible for class relief if

(1) 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 entire timeframe at issue in all the potential Hill claims; or

(2) the individual's only potential Hill claim was pending administratively on or after June 4, 1991; or

(3) the individual received a favorable determination or decision on or after June 4, 1991, on a subsequent claim that raised the issue of disability and covered the entire timeframe at issue in all the potential Hill claims, 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 Hill claims (this exception applies only if the individual has received all benefits to which he or she could be entitled based on the potential class member claims); or

(4) the individual received an unfavorable determination or decision after June 3, 1991, on a subsequent claim that raised the issue of disability and covered the entire timeframe at issue in all the potential Hill claims, 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 Hill claims.

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 Hill stipulation and order. SSA will presume the individual's receipt of the notice five days after mailing, unless the individual establishes that receipt actually occurred later. Notices returned as undeliverable will be mailed a second time if SSA obtains an updated address.
The Office of Disability and International Operations (ODIO) will retrieve the disability 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. If good cause is established, the field office will forward the claim for screening.
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 Hill 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 NEPSC for retrieval of any additional claim files and screening (see Part III. above).
Alerts Sent to OHA
If ODIO or NEPSC determines that either a potential class member claim or a subsequent claim is pending appeal 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 NEPSC will send all alerts potentially within OHA jurisdiction and related prior claim files to the Office of Civil Actions (OCA), Division I, at the following address:
Office of Hearings and Appeals
Office of Civil Actions, Division I
One Skyline Tower, Suite 601
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: Hill Screening Unit
Folder Reconstruction
In general, ODIO or NEPSC will coordinate any necessary reconstruction of prior claim files. Paragraph 15 of the Stipulation and Order provides that SSA shall make all reasonable efforts to obtain claim files, and shall reconstruct any missing files to the best of its ability.
Class Membership Denials
The NEPSC will hold all non-class member claim files and make them available for inspection by class counsel upon timely request. After review of the files, class counsel will contact the Office of the General Counsel (OGC) directly to resolve any remaining class membership disputes.

B. OHA Actions

Pre-Screening Actions
1. Current Claim in OHA
  As provided in Part V. A. 3. above, if there is a current claim pending at OHA, OCA will receive the alert and related Hill claim file(s). OCA will determine which OHA component has the current claim and forward for screening as follows:
  - If the current claim is in a hearing office (HO), OCA will forward the alert and the prior claim file(s) to the HO for screening using Attachment 3.
  - If the current claim is before the Appeals Council, OCA will forward the alert and prior claim file(s) to the appropriate Office of Appellate Operations (OAO) branch for screening using Attachment 3.
  - If the current claim file is in an OAO branch minidocket or Docket and Files Branch (DFB), OCA will request the file, associate it with the alert and prior claim file(s) and perform the screening.
  If OCA is unable to locate the current claim file within OHA, OCA will broaden its claim file search and arrange for folder retrieval, alert transfer or folder reconstruction, as necessary.
  NOTE:
  
  OCA, Division I is responsible for controlling and reconciling the class alert workload of potential class member claims shipped to OHA for association with a current claim. Because this is a relatively small class, the OHA alert workload will be minimal and a manual accounting should suffice. OCA will maintain a record of all alert packages transferred to other locations (to include the pertinent information about destinations), and a copy of all screening sheets. This information will be necessary to do the final class membership reconciliation.
2. Current Claim Pending in Court
  If OCA receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, OCA, Division I will associate the alert with the claim file(s) (or court transcript) and screen for Hill class membership. See Part V. B. 2. b. below for special screening instructions when a civil action is involved.
Screening
1. General Instructions
  The screening component will associate the alert, if any, 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 only 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 Hill timeframe;
  NOTE:
  
  Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, 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
  - Forward a copy of the screening sheet to:
    Office of Hearings and Appeals
    Division of Litigation Analysis and
    Implementation
    One Skyline Tower, Suite 702
    5107 Leesburg Pike
    Falls Church, VA 22041-3200
    ATTN: Hill Coordinator
  The Division of Litigation Analysis and Implementation will forward copies of the screening sheet to OCA, Division I and the Litigation Staff at SSA Headquarters.
  If the HO or OAO branch receives an alert only or an alert associated with a prior claim file(s) for screening, and no longer has the current claim file, it will return the alert and the prior claim file(s) to OCA, Division I (see address in Part V. A. 3. above) and advise OCA of what action was taken on the current claim. OCA will determine the claim file location and forward the alert and any accompanying prior claim file(s) to that location (see Attachment 5).
  NOTE:
  Final determinations or decisions made after June 3, 1991, on a subsequent claim filed by a potential Hill class member may adjudicate the same timeframe covered by the Hill claim. Instead of applying the doctrine of administrative res judicata to the Hill claim, these claims are to be denied class membership.
2. Special OCA Screening Instructions if a Civil Action Is Involved
  As noted in Part V. B. 1. b. above, OCA will screen for Hill class membership when a civil action is involved. OCA's class membership determination will dictate the appropriate post-screening action.
  - If the claim pending in court is a Hill class member claim, OCA will immediately notify OGC so that OGC can notify the claimant of the option to have the case remanded for readjudication.
  - 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 Hill issues, the claimant is not a Hill class member. OCA staff 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 Hill issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Hill claim, OCA staff will forward the Hill claim to the NYDDS for separate review. OCA will modify the case flag in Attachment 12 to indicate that the pending court case does not resolve all Hill issues and that the Hill class member claim is being forwarded for separate processing.
  - 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, OCA will initiate voluntary remand proceedings and consolidate the claims.
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 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:
    The Legal Aid Society
    Hill Lawsuit Unit
    11 Park Place, Room 1805
    New York, New York 10007
  - retain the claim file(s) for 140 days pending possible class membership dispute;
  - if class counsel makes a timely review request, send the non-class member claim file to the NEPSC using the pre-addressed route slip in Attachment 7; and
  - if after 140 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 may do so only through class counsel, as explained in the notice (Attachment 6).
2. 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 NYDDS will usually conduct the first Hill review. An exception may apply where the class member claim is a cessation or TERI case. An exception will also apply 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 must process and adjudicate requests for hearing on Hill DDS review cases in the same manner as for any other case.

B. Payment Reinstatement for Cessation Cases

If the Hill claim involves a cessation, the class member may elect to have disability benefits reinstated pending readjudication. In general, the servicing Social Security field office has responsibility for:

contacting the class member, who may have reinstatement rights;
completing the election forms;
verifying non-disability factors; and
making a good faith effort to quickly reinstate benefits after retrieval or reconstruction of the Hill claim file.
NOTE:
For OHA jurisdiction cases, the screening component will
(1) identify Hill claims involving cessations;
(2) immediately notify the servicing field offices by telephone of the pending Hill claims that may be eligible for benefit reinstatement and document the file accordingly; and
(3) 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 Hill 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 Hill class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc. Consistent with OHA practice, ¶ 15 of the Stipulation and Order provides that SSA shall develop the record in accordance with 20 CFR §§ 404.1512 - 404.1528. Paragraph 15 also provides that where there are gaps in the record due to missing or unavailable evidence, SSA will generally consider the existing evidence of record in the light most favorable to a claimant.

Type of Review and Period to be Considered
Pursuant to the Hill stipulation and order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a reopening. The claim of each class member must be fully reopened to determine whether the claimant was disabled at any time from the onset date alleged in the Hill claim through the present (or through the date the claimant last met the prescribed period requirements if earlier).
Pursuant to ¶ 14 of the Hill stipulation and order, adjudicators will not consider disability for any period in which a class member has already received disabled widows benefits. Pursuant to ¶ 15, class members may submit new evidence. Paragraph 15 further provides that, if there are gaps in the record due to missing or unavailable evidence, SSA will generally consider the evidence of record in the light most favorable to a claimant.
In conducting Hill readjudications, adjudicators must consider the issue of disability from the class member's earliest potential entitlement or the date of alleged onset, whichever is earlier. This is required in the situation where a Hill claim has been readjudicated under the Stieberger and/or State of New York procedures, as long as that readjudication did not cover the entire time period covered by the Hill claim. In this situation, the remaining time period on the Hill claim must be readjudicated.
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 5-3-15, 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.
Class Member Has a Pending TERI Claim
If a class member has a pending TERI claim, implementation of the Hill order must not delay the processing of the pending TERI claim, and must not interfere with the operation of TERI procedures on such claim.

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, OCA will associate the alert with the file and screen for class membership. (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, OCA will attach a Hill class member flag (see Attachment 8) to the outside of the file and forward the claim file(s) to the NYDDS for review of the Hill class member claim.
If less than 120 days have elapsed, OCA will attach a Hill class member flag (see Attachment 9) to the outside of the file to ensure the case is routed to the NYDDS, or other appropriate DDS, after expiration of the retention period. Pending expiration of the retention period, OCA will also:
- return unappealed ALJ decisions and dismissals to DFB, OAO; and
- return unappealed Appeals Council denials to the appropriate OAO minidocket.

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 NYDDS 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 Hill class member claims with the current claim at the level at which the current claim is pending.
Current Claim Pending in the Hearing Office
1. Hearing Has Been Scheduled or Held, and All Remand Cases
  Except as noted below, if a Hill 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 Hill case with the appeal on the current claim.
  EXCEPTIONS:
  The ALJ will not consolidate the claims if
  - the current claim and the Hill 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.
2. Hearing Not Scheduled
  
  Except as noted below, if a Hill 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 Hill claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim without prejudice and forward both the Hill 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 Hill 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.
3. Actions If Claims Consolidated
  When consolidating a Hill 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 Hill 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 Hill 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 Hill claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Hill claim; and
  - issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Hill claim (the ALJ's decision will clearly indicate that the ALJ considered the Hill claim pursuant to the Hill stipulation and order).
4. Action If Claims Not Consolidated
  If common issues exist but the ALJ decides not to consolidate the current claim with the Hill 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; and
  - send both the Hill claim and the current claim to the NYDDS for consolidation and further action.
  If the ALJ decides not to consolidate the current claim with the Hill 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 Hill claim for DDS review using Attachment 12; immediately route it to the NYDDS for adjudication; 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 Hill 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 Hill claim.
1. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- No Hill Issue(s) Will Remain Unresolved.
  This will usually arise when the current claim duplicates the Hill review claim, i.e., the current claim raises the issue of disability and covers the period adjudicated in the Hill 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 Hill claim.
2. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- Hill Issue(s) Will Remain Unresolved.
  This will usually arise when the current claim does not duplicate the Hill claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Hill claim. For example, the Hill 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 Hill case flag (Attachment 12; appropriately modified) to the Hill claim, immediately forward the Hill claim to the NYDDS 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 Hill issues and that the Hill 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.
3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Hill 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 Hill 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 Hill claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Hill claim pursuant to the Hill stipulation and order.
4. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Hill 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 Hill 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 NYDDS 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: "Hill court case review needed -- following effectuation forward the attached combined folders to the appropriate New York DDS."
5. 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 Hill 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 Hill 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 Hill class member claim to the NYDDS, 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 Hill 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.” If the conditions described in Part VI. E. 2. b. above apply, the HO should dismiss the request for hearing on the current claim, and enter OTDI in the DSP field.

To identify class member cases in HOTS, HO personnel will code “HI” 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.

Attachment 1. - Stipulation and Order Dated October 22, 1992; Approved and Filed by the Court on April 30, 1993

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK	[Filed April 30, 1993]

---------------------------------------------------------------x

MARJORIE HILL, individually and on
behalf of all others similarly	:
situated,		STIPULATION AND ORDER
	:
Plaintiff,
	:	87 Civ. 4344 (LBS)

v.	:

LOUIS W. SULLIVAN, M.D.,	:
Secretary of Health
and Human Services,	:

Defendant.

---------------------------------------------------------------x

WHEREAS the court rendered a decision on April 12, 1989 (125 F.R.D. 86 (S.D.N.Y 1989)) certifying a plaintiff class and denying defendant's motion to dismiss, and

WHEREAS the parties have agreed to resolve all of the outstanding disputes in this case without further litigation,

THEREFORE, the parties to this action, by their undersigned counsel, hereby agree to a settlement of plaintiffs' claims in this action in accordance with the following terms and conditions:

The class members who shall be entitled to relief under the terms of this stipulation and order, shall be limited to those defined as follows:
1. all New York state residents who:
  1. applied for or were receiving disabled widows', widowers', or surviving divorced spouses' benefits (“DWB”) ,
  2. were determined between May 11, 1983 and August 23, 1987 to be not disabled under 42 U.S.C. § 423(d)(2)(B) by either the New York State Office of Disability Determinations (“ODD”) or an office of the Office of Hearings and Appeals (“OHA”) of the Social Security Administration (SSA) which adjudicated claims of New York State residents, and who
  3. timely filed a request for reconsideration of the initial determination or reapplied for DWB between the date of the initial determination and June 4, 1991, and
2. all New York State residents who applied for or were receiving DWB, and who were finally determined on application or continuing disability review by SSA at any level of administrative review to be not disabled under 42 U.S.C. § 423(d)(2)(B) on or after August 23, 1987 and prior to June 4, 1991, by the ODD or OHA serving New York State. For the purposes of this subparagraph, “finally” means that the determination was not appealed or reopened. However, SSA need not readjudicate any DWB claims which were administratively pending on or after June 4, 1991.
3. DWB claim(s) shall not be readjudicated pursuant to this stipulation and order if there was a denial of Title II or Title XVI disability benefits at step four or step five of the sequential evaluation on any claim which covered the entire period of time covered by the DWB claim(s) subject to this stipulation and order.
In readjudicating claims pursuant to this stipulation and order, and in adjudicating all other DWB claims, SSA shall apply: (1) the standard set forth in SSR 91-3p to claims for DWB payable for any months prior to January 1, 1991; and (2) the standard set forth in § 5103 of the Omnibus Budget Reconciliation Act of 1990, 42 U.S.C. § 423(d), to claims for DWB payable for any months on or after January 1, 1991.
Within 120 days of the date that this stipulation and order is entered by the court, the Secretary shall identify, on the basis of data available in SSA's data processing systems, all individuals who have a DWB claim(s) potentially entitled to readjudication pursuant to paragraph one (1) of this stipulation and order. SSA shall identify each such individual by name, last known address, and the Social Security number (“SSN”) under which they filed for DWB. Within thirty (30) days of the date that this identification process is completed, the Secretary shall provide plaintiffs with a list identifying each such individual in the above-specified manner. The list shall be in alphabetical order by last name.
Within 120 days of the date that this stipulation and order is entered by the court, the Secretary shall provide plaintiffs' counsel with drafts of all instructions on the implementation of this stipulation and order. Plaintiffs may submit comments, it any, within twenty-one (21) days of the receipt of draft instructions. If plaintiffs submit comments and SSA decides not to revise the instructions, advance copies of final instructions will be issued to all SSA adjudicators within thirty (30) days of receipt of plaintiffs' comments. If SSA makes revisions in response to plaintiffs' comments, SSA shall have sixty (60) days from the receipt of plaintiffs' comments to issue revised final instructions to SSA adjudicators. The time limits contained in this paragraph may be extended by agreement of the parties. SSA shall provide copies of all advance final instructions to plaintiffs' counsel at the time they are issued.
Within thirty (30) days after the issuance of advance final instructions to adjudicators, SSA shall send notices by first-class mail to the last known address of all individuals identified pursuant to paragraph three (3). The notices will advise them that they may be entitled to have their DWB claims readjudicated. The notice agreed to by the parties is attached as Attachment 1. All notices required by this paragraph shall be mailed with a request for review form and a postage-paid envelope pre-addressed to an SSA office designated to receive written requests for readjudication. A statement written in Spanish, instructing Spanish-speaking individuals to contact the local SSA Field Office (“FO”), will appear in bold letters on each notice.
SSA shall attempt to obtain current addresses for individuals whose notices are mailed pursuant to paragraph five (5) of this stipulation and order and returned as undeliverable by requesting that the State of New York and the City of New York provide current addresses through a computerized match with public assistance, food stamp, or other like records. SSA requests for computer matches with state agencies' data systems will be subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a. SSA shall not be obligated to bring any legal proceedings to gain access to such records. SSA shall not be required to reimburse New York State or the City of New York for this matching operation. SSA shall send a second notice by first-class mail to all Individuals for whom the computerized match produces a more recent address. The second notices will be sent promptly after SSA's receipt of New York State and City of New York computer information. No later than thirty (30) days after the expiration of the time-frame for response to the second notices, SSA shall provide plaintiffs' counsel with a list of the names of all individuals whom SSA is still unable to locate. The list shall be organized in alphabetical order by last name and contain the date(s) and address(es) of each such notice which was mailed. Plaintiffs' counsel shall have 120 days after their receipt of this list to furnish more recent addresses for the listed individuals. SSA shall then mail a final notice to all individuals for whom a new address is furnished by plaintiffs' counsel.
All terminees who are entitled to readjudication of their claims under paragraph one (1) of this stipulation and who request readjudication pursuant to paragraph eight (8) of this stipulation, who meet the nondisability requirements for entitlement to disability benefits to widows/widowers/surviving spouse benefits on the basis of disability under Title II, shall be afforded an opportunity to request and receive interim benefits unless they are currently receiving any benefits pursuant to Title II or Title XVI of the Social Security Act. SSA shall notify class members of the opportunity to request interim benefits in the notices provided pursuant to paragraph five (5) of this stipulation. Interim benefits will be paid beginning with the month in which the election is made and will continue until a class member receives a readjudication. If the unfavorable adjudication is timely appealed, interim benefits shall continue, if the claimant elects, until an Administrative Law Judge decision is issued. SSA shall inform affected claimants of this right to elect continuation of interim benefits pending appeal. Interim benefits shall be subject to the recoupment and waiver of overpayment provisions of the Social Security Act.
Individuals potentially entitled to readjudication pursuant to paragraph one (1) of this settlement shall have sixty (60) days to request readjudication of their DWB claim(s) from the date on which they receive a notice pursuant to paragraph five (5) of this stipulation and order. SSA shall construe all inquiries from persons potentially entitled to readjudication under paragraph one (1) of this settlement, concerning eligibility for DWB, as a request for readjudication if they can reasonably be construed as such.
Individuals potentially entitled to readjudication pursuant to paragraph one (1) of this settlement must request readjudication of their DWB claim(s) by returning the request for review form, or by telephoning, visiting, or writing to a Social Security Office. All individuals who request readjudication will be provided with a dated written confirmation of receipt. Individuals who request readjudication in person will be provided with timely written confirmation.
SSA shall determine whether each individual who requests readjudication meets the criteria in paragraph one (1) and has properly requested readjudication in accordance with paragraphs eight (8) and nine (9). SSA shall make this determination within a reasonable time.
A) If SSA determines that an individual who responded to the notice procedures, set forth above, is not a class member as described in paragraph one (1) or is not otherwise entitled to relief as provided by the terms of paragraph one (1) of this stipulation and order, SSA will send notice of this determination to the claimant, claimant's representative, if known, and class counsel. The notice will contain the telephone number and address of class counsel instructing the potential class member to write or call as soon as possible if he or she wishes to request review of the denial of class membership.
B) The notice described in paragraph 11(A) will also state: 1) the reason why SSA has determined the individual to be ineligible for readjudication; 2) class counsel will have 120 days from the receipt of notice to notify, in writing, the Office of the General Counsel (OGC), Department of Health and Human Services, New York, if class counsel disagrees with the determination. An extension of time to respond may be granted upon a showing of good cause.
C) Class counsel may request inspection of the claimant's administrative record upon which a determination was based and, as needed, the relevant claims file. Class counsel will have forty-five (45) days from the date class counsel is notified that the record is available for inspection, to inspect the record at an SSA office mutually agreeable to the parties. If class counsel requests inspection of an administrative record within 120 days of receipt of a notice of determination that a class member is ineligible for readjudication, then class counsel shall have 30 days from the date that the administrative record is available to notify OGC of its disagreement with the determination, or 120 days from receipt of the notice of SSA's determination, whichever is longer.
D) The parties will attempt to resolve the question of an individual's entitlement to readjudication by negotiations between class counsel and the Office of the General Counsel (HHS). If after negotiation the parties cannot resolve the question of an individual's class membership, OGC will send to class counsel and the individual a written confirmation of SSA's determination to deny readjudication pursuant to this stipulation and order.
E) Class counsel, or the individual, may, by duly noticed motion, submit the unresolved matter to the court for resolution. Such notice must be filed no later than sixty (60) days after receipt of OGC's written confirmation to class counsel and the individual that the dispute cannot be resolved, unless the parties agree to extend this time period in particular cases. If the parties have not agreed to extend the time period, SSA's determination shall become final and shall not be subject to further review if a motion is not filed within sixty (60) days.
SSA shall readjudicate the claims of class members entitled to relief under paragraph 1 who request readjudication pursuant to paragraphs 8 and 9. All DWB claim(s) entitled to readjudication under the terms of this stipulation and order shall be reopened and readjudicated at the reconsideration level of administrative review. 20 C.F.R. § 404.907. At the option of SSA, class members with subsequent disability claim(s) which are active and simultaneously pending at any administrative level of review at the time the class claim(s) is being evaluated may have the current claim consolidated with all claims covered by this stipulation and order. If a class member has more than one DWB claim subject to readjudication pursuant to this stipulation and order, all such claims may be consolidated and shall be readjudicated at the reconsideration level of review. Class members shall retain all rights to seek administrative and judicial review of determinations made on readjudication under the procedures specified in 20 C.F.R. Part 404, Subpart J, and 42 U.S.C. § 405(g).
Class members entitled to readjudication pursuant to paragraph one (1) who have individual civil actions pending in federal court with respect to an unfavorable administrative decision resulting in class membership may elect either to have their claim(s) remanded for review pursuant to this stipulation and order (with the court retaining jurisdiction to review the final decision) or to have the action proceed in federal court pursuant to, and subject to the limitations contained in 42 U.S.C. § 405(g). A class member with a civil action pending in federal court will be notified in writing that he or she may seek relief pursuant to this stipulation. If a class member with a pending civil action elects to receive relief under this agreement, the Department of Justice and the class member shall seek a remand of the court action. Upon remand, the claim shall be readjudicated pursuant to this stipulation and order. Claim(s) that are remanded from the court will be readjudicated at the reconsideration level of administrative review. Class members who opt to proceed with civil actions shall waive their rights under this stipulation and order to readjudication of the claims being reviewed in the civil actions. Nothing in this stipulation and order shall be construed to avoid or preclude the res judicata effect of a final court decision where a class member decides to proceed with his or her individual civil action in federal court.
In conducting readjudications pursuant to this stipulation and order, SSA shall consider the issue of disability from the class member's earliest potential entitlement or the date of alleged onset, whichever is earlier, through the date that the determination on readjudication is made. SSA shall not consider disability for any period in which a class member received DWB. In addition, SSA shall not readjudicate any time period for which a class member received a denial in a concurrent claim at steps four or five of the sequential evaluation. SSA shall apply the standards set forth in paragraph two (2) of this stipulation upon readjudicating claims.
On readjudication SSA shall develop the record in accordance with SSA policy for development of regular claims, e.g., 20 C.F.R. §§ 404.1512 to 404.1518. Class members may submit new evidence pertaining to the readjudication of their claim. SSA shall make all reasonable efforts to obtain its file(s) on claims that are readjudicated, unless a determination that a class member is eligible for DWB can be made based on the information before SSA. If SSA is unable to obtain such files, it shall reconstruct the missing files to the best of its ability. Where there are gaps in the record due to missing or unavailable evidence, SSA will generally consider the existing evidence of record in the light most favorable to a claimant.
For any readjudication that results in a finding that a class member was eligible for DWB for part or all of the period under consideration, SSA shall authorize DWB and Medicare benefits retroactively, consistent with 42 U.S.C. § 402(e) and (f) and 42 U.S.C. § 1395c. For purposes of Title XVI of the Social Security Act, no payment of retroactive DWB made pursuant to this stipulation and order shall count as a resource for the first six months after receipt in accordance with 42 U.S.C. § 1382b(a)(7).
The Secretary shall make good faith efforts to complete all of the initial readjudications required pursuant to this stipulation and order within two years of the date after which all identifiable potential class members are sent notices.
In addition to providing plaintiffs' counsel with information pursuant to paragraphs three (3) and six (6) of this stipulation and order, SSA shall use its best efforts to maintain by computerized tracking system a record of the following information:
1. the number of class notices sent;
2. the number of individuals responding to the notices;
3. the number of notices returned as undeliverable;
4. the number of individuals determined not to be entitled to readjudication;
5. the number of individuals who received favorable determinations by ODD:
6. the number of individuals who received unfavorable determinations by ODD.
SSA shall provide reports containing the information maintained in this computerized tracking system to plaintiffs' counsel once every three months commencing 180 days after this stipulation and order is entered by the court. Upon request, plaintiffs' counsel will be provided with a random sample of ODD decisions on class members claims for inspection at a mutually agreed upon SSA district office. Once the readjudications of DWB required by this stipulation and order have been substantially completed and input into this computerized tracking system, SSA shall so advise plaintiffs' counsel by providing them a final report.
Except as provided in paragraph 1(c), the Secretary shall not accord administrative finality or res judicata effect to any SSA determination denying DWB benefits under 42 U.S.C. § 423(a)(2)(B)(1990) issued to a class member prior to June 4, 1991.
All time periods for actions by class members and potential class members under this stipulation and order shall be measured based on a rebuttable presumption that all notices are received five (5) days after mailing, unless it is established that receipt actually occurred later, in which case the time period will begin to run from the date of actual receipt. All such time periods shall be extended “for good cause” as a set forth in 20 C.F.R. § 404.911 and SSR 91-5p.
The relief ordered herein to the class members as defined in paragraph one (1) of this stipulation and order is in no way to be construed as an admission of wrongdoing by the Secretary or be offered in any proceeding as evidence of any past violation of, or failure to comply with federal laws, rules, and regulations at issue in this action. This stipulation and order is agreed to by the Secretary solely to settle the case and to avoid the cost of further litigation. However, plaintiffs are the prevailing parties for the purposes of an award of attorneys' fees. Plaintiffs' entitlement to and the amount of such fees shall be determined at a later date by the parties or the court, upon timely application made pursuant to 28 U.S.C. § 2412.
The Secretary shall bear the costs of implementing this stipulation and order and of providing any notice of this action ordered by the court.
The court shall retain jurisdiction over this action solely for the enforcement of the specific provisions of this stipulation and order and to resolve disputes pursuant to paragraph eleven (11). The claims of all persons who were included in the class originally certified by the court, but who are not entitled to readjudication pursuant to paragraph one (1), will be dismissed without prejudice.
This stipulation and order resolves all claims by plaintiffs in this action, except those dismissed without prejudice in paragraph twenty-three (23), that the Secretary applied an incorrect standard in evaluating DWB claims under 42 U.S.C. § 423(d)(2)(B) (repealed 1990). The stipulation and order does not prevent any class member from pursuing an individual administrative appeal, a request for reopening, or a judicial appeal. The stipulation and order does not waive any rights of class members pursuant to any settlement or judgment entered in Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.) (LBS) or State of New York v. Sullivan, 83 Civ. 5903 (RLC).
Plaintiffs' counsel and defendant's counsel, by their signatures below, warrant that they are sole counsel to the plaintiffs and the plaintiff class or to the defendant whose interests were represented in this action and that they are authorized to stipulate to the settlement or issues in this action.
This stipulation and order shall be submitted to the court and shall be effective only upon entry of the order by the court.

Dated: New York, New York

October 22, 1992

	/s/
	_________________________
	JANE E. BOOTH, ESQ.
	Director of Litigation
	MATTHEW DILLER, of Counsel
	Civil Appeals & Law Reform Unit
	The Legal Aid Society
	11 Park Place, Rm. 1805
	New York, NY 10007
	Telephone: (212) 406-0745
	Attorneys for Plaintiff Marjorie
	Hill and the Plaintiff Class

	/s/
	_________________________
	JOHN C. GRAY, JR., ESQ.
	NANCY CHANG, of Counsel
	Brooklyn Legal Services Corp. B.
	105 Court Street
	Brooklyn, NY 11201
	Telephone: (718) 237-5500
	Attorneys for Plaintiff-Intervenor
	Rose Roesch

	OTTO G. OBERMAIER
	United States Attorney
	Southern District of New York
	Attorney for the Defendant

	BY: /s/
	_________________________
	SAPNA V. RAJ-
	Special Assistant United States
	Attorney
	100 Church Street
	New York, New York 10007
	Telephone: (212) 385-4379
	SVR-3534
SO ORDERED:
/s/
_________________________
United States District Judge

4/29/93

Attachment 2. - Hill Court Case Flag/Alert

TITLE: II CATEGORY: 
 
 
 

REVIEW OFFICE PSC MFT DOC ALERT DATE
 
 
 

FUN NAME
 
 
 
 SSN OR HUN RESP
DTE TOE
 000-00-0000 
 
 
 FOLDER
LOCATION INFORMATION
 TITLE CFL CFL DATE ACN PAYEE
ADDRESS

SCREENING OFFICE ADDRESS:

DHHS, SSA
NORTHEASTERN PROGRAM SERVICE CENTER
ONE JAMAICA CENTER PLAZA
JAMAICA, NEW YORK 11432-38030

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

OFFICE OF HEARINGS AND APPEALS
OFFICE OF CIVIL ACTIONS, DIVISION I
ONE SKYLINE TOWER, SUITE 601
5107 LEESBURG PIKE
FALLS CHURCH, VA 22041-3200

ATTN: HILL SCREENING UNIT

Attachment 3. - Route Slip or Case Flag for Screening

Hill Class Action Case

SCREENING NECESSARY

Claimant's Name:	__________________________________


SSN :	__________________________________

This claimant may be a Hill class member. The attached folder location information indicates that a current claim file is pending 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 5-4-38 for additional information and instructions.

TO: _____________________________
__________________________________
__________________________________
__________________________________

Attachment 4. - Hill Screening Sheet and Screening Sheet Instructions

HILL SCREENING SHEET

CLASS ACTION CODE: H I

1. WAGE EARNER'S SSN

___ ___ ___ - ___ ___ - ___ ___ ___ ___

BIC

___ ___

2. CLAIMANT'S NAME

3. a. MEMBERSHIP DETERMINATION

MEMBER (J) NONMEMBER (F)

___ ___

b. SCREENOUT CODE

___ ___

(see Item 13 for screenout codes)

4. Is this a title II disabled widow/widower or surviving divorced spouse (DWB) claim?

___ Yes ___ No

(if No, go to 13)

5. Was a less than fully favorable determination/decision issued on this claim at any administrative level by the New York DDS, or any OHA office servicing the State of New York from May 12, 1983, through June 3, 1991, inclusive, and did this become the final decision of the Secretary?
NOTE: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.

___ Yes ___ No

(if No, go to 13)

6. If the individual received a less than fully favorable determination at the initial level between May 12, 1983, and August 22, 1987, inclusive, did the individual appeal the determination to the reconsideration level or file a new application before June 4, 1991?

NOTE:

If this question is not applicable (i.e., the individual received a less than fully favorable determination at the initial level between August 23, 1987, and June 3, 1991, inclusive, or a less than fully favorable determination or decision on administrative appeal of a claim initially decided prior to May 12, 1983), skip this question and go on to question 7.

___ Yes ___ No

(if No, go to 13)

7. Did the responder reside in the State of New York at the time the determination/decision was issued?

___ Yes ___ No

(if No, go to 13)

8. Was the denial/cessation of benefits for some reason other than the claimant's medical condition (e.g., SGA)?

___ Yes ___ No

(if Yes, go to 13)

9. Did the claimant receive a subsequent fully favorable DWB determination/decision and full benefits on this or a subsequent claim, which covered the entire timeframe at issue in the potential Hill claim?

___ Yes ___ No

(if Yes, go to 13)

10. Was a claim for title XVI or title II worker's disability, covering the entire timeframe at issue in the potential Hill claim, concurrently or subsequently denied/ceased at steps 4 or 5 of the sequential evaluation process?

___ Yes ___ No

(if Yes, go to 13)

11. Was the potential Hill class member claim pending at any administrative level on or after June 4, 1991?

___ Yes ___ No

(if Yes, go to 13)

12. Did the claimant receive a final adverse disability (medical) determination/decision after June 3, 1991, on the potential Hill claim or a subsequent claim which raised the issue of disability and covered the entire timeframe at issue in the potential Hill claim?

___ Yes ___ No

(if Yes, go to 13)

13. The responder is not a Hill class member eligible for class relief.

Enter the screenout code in item 3.b. as follows:

Enter 04 if question 4 was answered “NO”.

Enter 05 if question 5 was answered “NO”.

Enter 06 if question 6 was answered “NO”.

Enter 07 if question 7 was answered “NO”.

Enter 08 if question 8 was answered “YES”.

Enter 09 if question 09 was answered “YES”.

Enter 10 if question 10 was answered “YES”.

Enter 11 if question 11 was answered “YES”.

Enter 12 if question 12 was answered “YES”.

No other screenout code

entry is appropriate.

SIGNATURE OF SCREENER

COMPONENT

DATE

Enter dates of all applications screened.

________________ _________________ ________________ _________________

Hill SCREENING SHEET INSTRUCTIONS

To qualify for class membership, those who respond to Hill notice must have, sometime from 5/12/83 through 6/03/91, received a denial, cessation, or less than a fully favorable DWB determination/decision while residing in New York. It must have been a medical determination, and if it was made prior to 8/23/87, they either must have filed a timely appeal or have reapplied for DWB by 6/3/91. However, if they received a determination under steps 4 or 5 of the sequential evaluation process on a concurrently filed or subsequently filed claim which considered the issue of disability for the entire period at issue in the potential Hill claim or if they received a determination after 6/3/91 on the Hill claim or a subsequent claim which raised the issue of disability and covered the entire period at issue in the potential Hill claim, they may have gotten the full relief afforded under Hill and not be entitled to further review.

Questions 1 - 3

Fill in wage earner's SSN, widow(er)'s or surviving divorced spouse's name. Also, enter the member/non-member information, and the screen-out code, if appropriate, once screening has been completed.

Question 4

Screen for claim type. If question is answered “No,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 5

Screen for date of decision, not application. Individuals are potential class members if they received a denial, cessation or less than fully favorable decision (e.g., later onset, closed period, payment of benefits beginning January 1, 1991, under OBRA despite an earlier onset) between May 12, 1983,and June 3, 1991, inclusive, which became the final decision of the Secretary. (Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.) If the answer to question 5 is “No,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 6

This question is applicable only if the individual seeks class membership based on a less than fully favorable initial determination issued between May 12, 1983, and August 22, 1987, inclusive. This question is not applicable if the individual received a less than fully favorable determination at the initial level between August 23, 1987, and June 3, 1991, inclusive, or a less than fully favorable determination or decision on administrative appeal of a claim initially decided prior to May 12, 1983. If not applicable, skip this question and go on to question 7.
If a less than fully favorable (e.g., later onset, closed period, payment of benefits beginning January 1, 1991, under OBRA despite an earlier onset) initial determination was issued on the claim being reviewed between May 12, 1983, and August 22, 1987, inclusive, the individual is a class member only if he or she appealed the determination to the reconsideration level or filed a new application before June 4, 1991. If the answer to question 6 is “No,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 7

Screen for residency at the time the determination/decision was issued. If the answer to question 7 is “No,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 8

To answer this question look for non-medical denial codes in item 22 of the SSA-831-U3 or SSA-833-U3, or on the SSA-3687-U2 or the SSA-3428-U2 or review the determination/decision. The non-medical denial codes are: N1, N2, L1, L2, M7, M8. (For a complete list of DWB denial codes see SM 00380.270.C.) For cases previously decided at the OHA level, the answer can be found in the Administrative Law Judge or Appeals Council decision. If the answer to question 8 is “Yes,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 9

This class relief exception applies only if the individual has received all benefits to which he or she could be entitled based on the potential class member claim. Review the file to determine whether DWB benefits were subsequently allowed or continued from the earliest alleged onset date, cessation date, or control date of a claim decided within the timeframe for class membership (May 12, 1983, through June 3, 1991, inclusive). The allowance or continuance could have been either on the same claim or on a subsequent application. Be sure to consider earlier eligibility for Medicare and retroactive benefits during the Hill timeframe when determining if the subsequent decision is fully favorable. If the answer to question 9 is “Yes,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 10

Check file(s) and queries (e.g., ACT, SSID) to determine whether the claimant received a denial/cessation decision on a concurrent or subsequent claim for SSI, or worker's disability which covered the entire timeframe at issue in the potential Hill claim. If so, review the file(s) to determine whether the claimant's residual functional capacity (RFC) was assessed. The following codes in block 22 of the SSA-831-U3 and SSA-833-U3 indicate denial/cessation on the basis that claimant retained the RFC to perform SGA. Title II denials: H1, H2, J1, J2 and sometimes E3. Title XVI denials: N31, N32, N42, N43. For cases previously decided at the OHA level, review the Administrative Law Judge or Appeals Council decision to determine if the claimant's RFC was assessed. If the answer to question 10 is “Yes,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 11

Check the file(s) to determine if claimant's potential class member claim was administratively pending on or after June 4, 1991. The Hill Stipulation provides that SSA need not readjudicate any DWB claims which were pending on or after June 4, 1991. If the answer to question 11 is “Yes,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

Question 12

Review the file to determine whether an unfavorable decision was issued after June 3, 1991, on the potential Hill claim or a subsequent claim that raised the issue of disability and covered the entire timeframe at issue in the potential Hill claim. If the answer to question 12 is “Yes,” enter the appropriate screen-out code in item 3.b. as directed in item 13 on the screening sheet and check the non-member block in item 3.a.

After signing the screening sheet, please remember to list the dates of all applications for which determinations/decisions were screened to determine class membership.

Processing Class Member Determinations

Retain the original screening sheet in the claim file. Send a copy to:
Office of Hearings and Appeals
Division of Litigation Analysis and
Implementation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: Hill Coordinator
Follow procedures in Part V. B. 3. b. for class member cases.

Processing Non-class Member Determinations

Retain the original screening sheet in the claim file. Send a copy to:
Office of Hearings and Appeals
Division of Litigation Analysis and
Implementation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3200

ATTN: Hill Coordinator
Follow procedures in Part V. B. 3. a. for non-class member cases.

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

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
HILL CASE

Claimant: ___________________________

SSN: ________________________________

OHA received the attached alert [and prior claim file(s)] for screening and no longer has the current claim file. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the current claim. After associating the alert with the current claim, please forward to the Northeastern Program Service Center for screening and possible readjudication. SEE POMS DI 42535.005 OR DI 12535.005


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 6. - Non-Class Membership Notice

SOCIAL

SECURITY Important Information

NOTICE

_____________________________________________________________

From: Department of Health and Human Services

Social Security Administration

_____________________________________________________________

___________________________ DATE: __________________

___________________________ CLAIM NUMBER: __________________

___________________________ DOC: ___________________________


THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY BENEFITS.
PLEASE READ IT CAREFULLY

You asked us to review your case under the terms of the Hill v. Sullivan court decision. We have looked at your case and decided that you are not a Hill class member. This means that we will not review our earlier decision to deny or cease your benefits.

WHY YOU ARE NOT A CLASS MEMBER

You are not a Hill class member because:

___	You did not file a claim for title II disabled widow's, widower's or surviving divorced spouse's (DWB) benefits.

___	Your claim was not denied or ceased between May 12, 1983, and June 3, 1991, inclusive.

___	Your claim was denied or ceased between May 12, 1983, and August 22, 1987, inclusive, but you did not request reconsideration of that decision or file a new application before June 4, 1991.

___	You did not reside in the State of New York at the time the final decision on your disability claim was issued.

___	Your claim was not denied or ceased for medical reasons. Your claim was denied because:
	_____________________________________________________
	_____________________________________________________

___	We already changed our earlier decision and found that you were disabled and that decision covered the entire period for which you were potentially eligible for additional benefits.

___	You filed a disability claim on your own social security number and that claim was also denied or ceased. That claim covered the entire timeframe at issue in the potential Hill claim and was reviewed under the Hill standard.

___	Your potential class member claim was still pending on or after June 4, 1991, and was decided under the Hill standard.

___	You received a final adverse medical decision after June 3, 1991, on a subsequent claim which covered the entire timeframe at issue in the potential Hill claim.

___	Other _______________________________________________
	_____________________________________________________


WE ARE NOT DECIDING IF YOU ARE DISABLED

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not a Hill class member.

IF YOU DO NOT AGREE WITH THIS DETERMINATION

A copy of this letter is being sent to the attorney for the Hill class. If you disagree with this determination, you or your personal legal representative should write or call the class counsel as soon as possible. Class counsel will answer your questions about class membership. If class counsel thinks that this determination is incorrect and contacts us within 120 days from the day you receive this notice, we may look at your case again. The name and address of class counsel is:

The Legal Aid Society
Hill Lawsuit Unit
11 Park Place, Room 1805
New York, New York 10007
Telephone (212) 406-0745

If you do not have a personal legal representative and wish to obtain one, the following offices will refer you to organizations that provide free legal help for low income clients:

New York City Area:	Legal Services of New York City
	(212) 431-7200

	or

	The Legal Aid Society
	(212) 227-2755

Rest of New York State:	Greater Upstate Law Project
	(800) 724-0490
	(800) 635-0355

IF YOU HAVE ANY QUESTIONS

If you have any questions, you may contact class counsel or your local Social Security Office. The address and phone number are printed at the top of this letter. If you call or visit an office, please have this letter with you. It will help us answer your questions.

Si usted no entiende esta carta, llevela a la oficina de seguro social arriba mencionada para que se la expliquen.

cc: The Legal Aid Society
New York, New York 10007

Attachment 7. - Route Slip for Non-Class Membership Case

ROUTING AND TRANSMITTAL SLIP

DATE:

TO:	INITIALS	DATE
1. Social Security Administration
2. Northeastern Program Service Center
3. DI - Technical Assistance Section
4. P.O.Box 1235
5. Corona Elmhurst NY 11373
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
Hill CASE

Claimant: ___________________________

SSN: ________________________________

We have determined that this claimant is not a Hill class member. (See screening sheet and copy of non-class membership notice in the attached claim file(s).) SEE POMS DI 12535.010


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 8. - Hill Class Member Flag for Headquarters Use (DDS Readjudication -- retention period expired)

Hill Class Action Case


READJUDICATION NECESSARY


Claimant's Name:	__________________________________


SSN :	__________________________________


This claimant is a Hill class member. Accordingly, we are forwarding the attached claim file(s) to the New York DDS for readjudication.

We are sending the files to:
__________________________________
__________________________________
__________________________________
__________________________________

(Destination code: ____ )

Attachment 9. - Hill Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)

Hill Class Action Case


READJUDICATION NECESSARY


Claimant's Name:	__________________________________


SSN :	__________________________________


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

Send folders to the appropriate New York DDS.

NOTE:

If the claimant has filed a civil action and elected to remain in court for review of the current claim, forward the Hill claim file(s) without delay to the New York DDS for readjudication.

Attachment 10. - ALJ Dismissal to DDS

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social Security Administration

OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

IN THE CASE OF		CLAIM FOR

__________________________		__________________________

__________________________		__________________________

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

In accordance with the Stipulation and Order negotiated by the parties and approved by the United States District Court for the Southern District of New York in the case of Hill v. Sullivan, 87 Civ. 4344 (S.D. New York, April 30, 1993), the claimant has requested readjudication of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Hill class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Stipulation and Order. Because the claimant's current claim shares certain issues in common with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the New York Disability Determination Service which will conduct the Hill readjudication and redecide the current application at the reconsideration level.

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

		_________________________
		Administrative Law Judge

		_________________________
		Date

Attachment 11. - Notice Transmitting ALJ Order of Dismissal


NOTICE OF DISMISSAL

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing without prejudice and returning your case to the New York Disability Determination Service which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.

What This Order Means

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

The Next Action on Your Claim

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

Do You Have Any Questions?

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

Enclosure

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

Attachment 12. - Hill Class Member Flag for HO Use (DDS Readjudication)

Hill Class Action Case

READJUDICATION NECESSARY

Claimant's Name:		__________________________________

SSN:		__________________________________

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

_______		The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.

OR

_______		The claims have not been consolidated because

		[state reason(s)]__________________________________
		______________________________________________

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

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

(enter address of appropriate DDS)
______________________________
______________________________
______________________________
______________________________

(Destination code: ____)