I-5-4-39.Askin v. Shalala

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Individuals Entitled to Askin Relief
V Determination of Persons Entitled to Relief and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Inquiries
Attachment 1 - Joint Stipulation and Order Dated March 23, 1993, and Approved by the District Court on July 27, 1993.
Attachment 2 - Askin COURT CASE FLAG/ALERT
Attachment 3 - Route Slip or Case Flag for Screening
Attachment 4 - Askin SCREENING SHEET
Attachment 5 - Route Slip for Routing Court Case Alert and Prior Claim File(s) to ODIO or PSC -- OHA No Longer Has Current Claim
Attachment 6 - Non-Entitlement to Relief Notice
Attachment 7 - Route Slip for Non-Entitlement to Relief Cases
Attachment 8 - Text for Notice of Revised Entitlement to Relief Determination
Attachment 9 - Askin Court Case Flag for Headquarters Use (DDS Readjudication -- retention period expired)
Attachment 10 - Askin Court Case Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)
Attachment 11 - ALJ Dismissal to DDS
Attachment 12 - Notice Transmitting ALJ Order of Dismissal
Attachment 13 - Askin Court Case Flag for HO Use (DDS Readjudication)

ISSUED: April 21, 1994

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the parties' March 23, 1993 joint Stipulation and Order, approved by the United States District Court for the Middle District of Florida on July 27, 1993, in the Askin v. Shalala class action involving the standard for determining disability in surviving spouse claims.

Adjudicators throughout the country must be familiar with this TI because individuals entitled to relief under the Askin settlement order who now reside outside of the Eleventh Circuit (Alabama, Florida and Georgia) must have their cases processed in accordance with the requirements of the joint Stipulation and Order.

II. Background

On December 27, 1990, plaintiffs filed a class complaint alleging that the Secretary had a policy of determining title II disability for widows, widowers, and surviving divorced spouses without weighing the combined effect and impact of multiple impairments or considering their residual functional capacities.¹

Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (Pub. L. 101-508) on November 5, 1990. Section 5103 of OBRA 90 amended § 223 of the Social Security Act to repeal the special definition of disability applicable in widows' claims and conform the definition of disability for widows to that for all other title II claimants and title XVI adult claimants. The amendment became effective for entitlement to monthly benefits payable for January 1991, or later, based on applications filed or pending on January 1, 1991, or filed later.

On May 22, 1991, the Commissioner of Social Security published Social Security Ruling (SSR) 91-3p to provide a uniform, nationwide standard for the evaluation of disability in widows' claims for the pre-1991 period.

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 July 27, 1993, the district court approved the parties' March 23, 1993 joint Stipulation and Order setting forth the terms for the implementation of relief to individuals entitled to same (Attachment 1).

¹ Hereinafter (except 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 Askin, 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 entitled to review after screening (see Part V. below). The Disability Review Section in the Southeastern Program Service Center (SEPSC) will screen the claims of individuals potentially entitled to relief, 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 Disability Determination Services (DDSs) in Alabama, Florida and Georgia, in most cases, will 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 DDSs will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. Individuals entitled to relief 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 Askin 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 Individuals Entitled to Askin Relief

Except as noted below, for purposes of implementing the terms of the joint Stipulation and Order, individuals entitled to relief under Askin will include individuals who:

  • filed for or received title II benefits as a disabled widow, widower or surviving divorced spouse (DWB); and

  • were issued a less than fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, between October 11, 1990, and May 22, 1991, inclusive; and

  • were residing in Alabama, Florida or Georgia when the last administrative decision became final; provided that the last administrative decision was issued by a State DDS or an office of OHA which adjudicates claims for residents of Alabama, Florida or Georgia, based on a finding that the claimant did not satisfy the disability standard of 42 U.S.C. § 423(d)(2)(B) before that section was amended by § 5103 of OBRA 90.

EXCEPTIONS:

A person is not entitled to relief under Askin if he or she:

(1) filed a claim for disability benefits under titles II or XVI, either concurrently with, or after, all DWB claim(s) denied or terminated betweenOctober 11, 1990, and May 22, 1991, inclusive, and received a final administrative denial or a final adverse judgment from a Federal district or appellate court at steps one, two, four or five of the sequential evaluation process that covered the timeframe at issue in the Askin claim(s); or

(2) filed a complaint in Federal district court based on an administrative denial of any DWB claim(s) or determination of DWB between October 11, 1990, and May 22, 1991, inclusive, and received a final judgment from a Federal district or appellate court; or

(3) filed a DWB claim on or after January 1, 1991,that did not involve a claim for entitlement to DWBfor any month(s) before January 1991 (i.e., did not involve an alleged onset date that could result inentitlement prior to January 1991), and was denied administratively on the ground that the claimant did not meet the statutory standard for disability setforth in § 5103 of OBRA 90, that became effective January 1, 1991; or

(4) had a subsequent claim for DWB pending before the Secretary on May 22, 1991, which covered the period at issue in the potential Askin claim or had a claim which has been adjudicated in accordance with SSR 91-3p.

V. Determination of Persons Entitled to Relief and Preadjudication Actions

A. Pre-Screening Actions - General

  1. Notification

    SSA will send notices to all individuals potentially entitled to relief under Askin as 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 Askin 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 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 to the SEPSC for screening.

  2. 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 Askin alert.

    In most instances, ODIO will associate the computer-generated alerts with any ODIO-jurisdiction potential Askin claim file(s) and forward them to the SEPSC for retrieval of any additional claim files and screening (see Part III. above).

  3. Alerts Sent to OHA

    If SEPSC determines that either a potential Askin 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).

    SEPSC will send all alerts potentially within OHA jurisdiction and related prior claim files to the Office of Civil Actions (OCA), Division IV, at the following address:

    Office of Hearings and Appeals
    Office of Civil Actions, Division IV
    One Skyline Tower, Suite 705
    5107 Leesburg Pike
    Falls Church, VA 22041-3200

    ATTN: Askin Screening Unit

  4. Folder Reconstruction

    In general, ODIO or the SEPSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential Askin cases should be rare. However, if it becomes necessary for OHA to request reconstruction, the OHA component (if not OCA, Division IV) will return the alert and any accompanying claim file(s) to Litigation Staff at the following address and request that folder reconstruction be initiated:

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

    ATTN: Askin Coordinator

  5. Denials of Entitlement to Relief

    The SEPSC or OHA, as appropriate, will hold for 80 days all files of individuals determined not to be entitled to relief under Askin pending contesting of that determination by plaintiffs' counsel. Upon timely request (i.e., within 60 days of receipt of the notice of denial of entitlement to Askin relief) by plaintiffs' counsel to review claim files, the Office of the Deputy Commissioner for Programs' Litigation Staff will coordinate with the SEPSC or OHA to forward the files to:

    SSA Area Director's Office
    3728 Phillips Highway, Suite 223
    Jacksonville, Florida 32207

    Plaintiffs' counsel will contact the Office of the General Counsel (OGC) directly to resolve any disputes regarding entitlement to relief under Askin.

B. OHA Screening Actions

  1. 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 Askin 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 use Attachment 3 to forward the alert and the prior claim file(s) to the HO for screening.

      • If the current claim is before the Appeals Council, OCA will use Attachment 3 to forward the alert and prior claim file(s) to the appropriate Office of Appellate Operations (OAO) branch for screening.

      • 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, transfer of the alert or folder reconstruction, as necessary.

      NOTE:

      OCA, Division IV is responsible for controlling and reconciling the OHA Askin alert workload. Because the number of individuals potentially entitled to relief is small, the OHA alert workload will be minimal and a manual accounting should suffice. OCA will maintain a record of all alerts 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 a final alert/screening 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 IV will associate the alert with the claim file(s) (or court transcript) and screen for entitlement to relief under Askin. See Part V.B.2.b. below for special screening instructions when a civil action is involved.

  2. 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 Askin claim, then the individual is not entitled to relief under Askin (see Part IV. above). Complete the screening sheet and follow the instructions in Part V.B.3.a. below for processing non-Askin claims.

      • Consider all applications denied (including res judicata denials/dismissals) during the Askin 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 Askin 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: Askin Coordinator

      The Division of Litigation Analysis and Implementation will forward copies of the screening sheet to OCA Division IV (if not the screening component) and the Litigation Staff at SSA Central Office.

      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 IV (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 on or after January 1, 1991, on a subsequent claim filed by an individual potentially entitled to Askin relief may have adjudicated the timeframe at issue in the potential Askin claim. Instead of applying the doctrine of administrative res judicata to the Askin claim, these claims should be denied Askin relief.

    2. Special OCA Screening Instructions if a Civil Action Is Involved

      As noted in Part V.B.1.b. above, OCA will screen for individuals entitled to relief under Askin when a civil action is involved. OCA's determination will dictate the appropriate post-screening action.

      • If the claim pending in court is the potential Askin 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 the final administrative decision on the claim was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, OCA will modify the case flag in Attachment 13 to indicate that there is a subsequent claim pending in court, but that the Askin 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.

  3. Post-Screening Actions

    1. Cases of Individuals Not Entitled to Relief Under Askin

      If the screening component determines that the individual is not entitled to relief under Askin, the component will:

      • notify the individual, and representative, if any, of non-entitlement to Askin relief 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:
        Esther O. Yip, Esq.
        Jacksonville Area Legal Aid, Inc.
        604 N. Hogan Street
        Jacksonville, FL 32202

      • retain the claim file(s) for 80 days pending a possible dispute regarding the individual's entitlement to relief; if the screening component is not OCA, Division IV, and the file(s) is not needed for adjudication, forward the file(s) for storage to OCA, Division IV at the address in Part V.A.3. above;

      • if plaintiffs' counsel makes a timely request toreview the claim file (i.e., within 60 days from receipt of the notice of non-entitlement to relief), DLAI will notify the OHA component housing the claim file to send it to the SSA Area Director's Office using the pre-addressed route slip in Attachment 7 (see Part V.A.5. above) (upon review of the file, plaintiffs' counsel will have an additional 30 days, if necessary, to contact OGC directly to resolve any disputes regarding entitlement to Askin relief.

      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.

      • if SSA through OGC resolves the dispute in the claimant's favor: 1) rescreen the case; 2) send the notice of revised entitlement to relief determination (Attachment 8) to the claimant and representative, if any, and to plaintiffs' counsel; 3) proceed in accordance with Part VI. below; and 4) notify DLAI, at the address in Part V.B.2. above, of the revised determination by forwarding a copy of the revised screening sheet (DLAI will forward copies of the revised screening sheet to OCA, Division IV (if OCA is not the screening component), and to Litigation Staff at SSA Headquarters); and

      • if after 80 days no review is requested, return the file(s) to the appropriate location.

      An individual who wishes to appeal a determination that they are not entitled to relief under Askin should do so through plaintiffs' counsel, as explained in the notice (Attachment 6).

    2. Cases of Individuals Determined to be Entitled to Relief Under Askin

      If the screening component determines that the individual is eentitled to relief under Askin, 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

As previously indicated, the DDSs servicing Eleventh Circuit residents will usually conduct the first Askin review. An exception may apply when the Askin claim is a cessation or TERI case. An exception will also apply for cases consolidated with claims pending or being held at the OHA level (see Part VI.D. below).

The DDS determination will be a reconsideration determination, regardless of the administrative level at which the Askin claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).

B. OHA Adjudication of Claims of Individuals Entitled to Relief Under Askin

The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Askin 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 Askin claims according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.

NOTE:

Implementation of the Askin order must never delay theprocessing of TERI claims and must never interfere with the operation of TERI procedures on such claims.

  1. Type of Review and Period to be Considered

    Pursuant to the Askin 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 “redetermination.” The readjudication shall be a de novo reevaluation of the individual's eligibility for benefits based on all evidence in his or her file, including newlyobtained evidence relevant to the period of time at issue in the administrative decision(s) that forms the basis of the claimant's entitlement to relief under Askin. If the readjudication results in a favorable decision, the adjudicator must determine whether the individual's disability has been continuous through the date of the readjudication.

  2. Disability Evaluation Standards

    Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p for evaluating disability in claims of individuals entitled to relief under Askin. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for determining 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 determining entitlement to benefits payable for the pre-1991 period.

  3. Individual Entitled to Relief Is Deceased

    If an individual entitled to relief is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.

C. Claim at OHA But No Current Action Pending

If a claim file (either an Askin claim 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 entitlement to relief under Askin. (See Part V.B.3., above, for instructions on processing claims of individuals not entitled to relief under Askin.)

  • If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OCA will attach an Askin flag (see Attachment 9) to the outside of the file and forward the claim file(s) to the appropriate DDS for review of the Askin claim.

  • If less than 120 days have elapsed, OCA will attach an Askin case flag (see Attachment 10) to the outside of the file to ensure the case is routed to the 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 appropriate DDS in a timely manner.

D. Processing and Adjudicating Askin Claims in Conjunction with Current Claims (Consolidation Procedures)

  1. General

    If an individual entitled to relief under Askin has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Askin claims with the current claim at the level at which the current claim is pending.

  2. Current Claim Pending in the Hearing Office

    1. Hearing Has Been Scheduled or Held, and All Remand Cases

      Except as noted below, if an individual entitled to relief under Askin 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 Askin case with the appeal on the current claim.

      EXCEPTIONS:

      The ALJ will not consolidate the claims if:

      • the current claim and the Askin 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.D.2.c. below. If the claims are not consolidated, follow Part VI.D.2.d. below.

    2. Hearing Not Scheduled

      Except as noted below, if an individual entitled to relief under Askin 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 Askin claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Askin claim and the current claim to the DDS for further action (see Part VI.D.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 entitled to Askin relief, the ALJ will consolidate the claims.

      If the claims are consolidated, follow Part VI.D.2.c. below. If the claims are not consolidated, follow Part VI.D.2.d. below.

    3. Actions If Claims Consolidated

      When consolidating an Askin 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 Askin claim(s) with the current claim, the ALJ will:

      • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Askin 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 Askin claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Askin claim; and

      • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Askin claim (the ALJ's decision will clearly indicate that the ALJ considered the Askin claim pursuant to the Askin Stipulation and Order).

    4. Action If Claims Not Consolidated

      If common issues exist but the ALJ decides not to consolidate the Askin claim with the current claim because the hearing has not yet been scheduled, the ALJ will:

      • dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 11 and the covering notice in Attachment 12;

      • send both the Askin claim and the current claim to the appropriate DDS for consolidation and further action.

      If the ALJ decides not to consolidate the Askin claim with the current 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 Askin claim for DDS review using Attachment 13; immediately route it to the appropriate DDS for adjudication; retain a copy of Attachment 13 in the current claim file; and

      • take the necessary action to complete the record and issue a decision on the current claim.

  3. Current Claim Pending at the Appeals Council

    The action the Appeals Council takes on the current claim determines the disposition of the Askin 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 Askin claim.

    1. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- No Askin Issue(s) Will Remain Unresolved.

      This will usually arise when the current claim duplicates the Askin review claim, i.e., the current claim raises the issue of disability and covers the period adjudicated in the Askin 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 Askin claim.

    2. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- Askin Issue(s) Will Remain Unresolved.

      This will usually arise when the current claim does not duplicate the Askin claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Askin claim. For example, the Askin 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 an Askin case flag (Attachment 13; appropriately modified) to the Askin claim, immediately forward the Askin claim to the appropriate DDS for readjudication, and retain a copy of Attachment 13 in the current claim file. OAO will modify Attachment 13 to indicate that the Appeals Council's action on the current claim does not resolve all Askin issues and that the Askin 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 Askin 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 an individual entitled to relief under Askin, 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 Askin claim and issue a decision that adjudicates both applications.

      The Appeals Council's decision will clearly indicate that the Appeals Council considered the Askin claim pursuant to the Askin Stipulation and Order.

    4. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Askin 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 Askin 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 appropriate DDS 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: "Askin court case review needed -- following effectuation, forward the attached combined folders to the appropriate DDS."

    5. Appeals Council Intends to Remand the Current Claim to an ALJ.

      If the Appeals Council intends to remand the current claim to an ALJ, 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 Askin claim with the action on the current claim pursuant to the instructions in Part VI.D.2.a. above.

      EXCEPTIONS:

      The Appeals Council will not direct the ALJ to consolidate the claim if:

      • the current claim and the Askin 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 Askin claim to the DDS for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an Administrative Law Judge, is forwarding the Askin 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.D. 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.D.2.b above apply and, the ALJ dismisses the request for hearing on the current claim, HO personnel should enter OTDI in the DSP field.

To provide for HOTS identification of the cases of individuals entitled to relief in HOTS, HO personnel will code “AS” 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. - Joint Stipulation and Order Dated March 23, 1993, and Approved by the District Court on July 27, 1993.
 
 

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

 
 
BETTY ASKIN, JOAN SWAN, and      [Date Filed July 27, 1993]
LAURA SMITH, individually  
and on behalf of all others  
similarly situated.  
   
Plaintiffs, C.A. No. 90-1089-Civ-J-10
v.  
   
DONNA E. SHALALA  
   
Secretary of Health  
And Human Services,  
   
Defendant.  
   
 

ORDER

 
 

This is an action for injunctive and declaratory relief filed against the Secretary of the United States Department of Health and Human Services by a group of widows, widowers, and divorced surviving spouses who claim that they have been denied benefits under the Social Security Act. By order dated August 18, 1992 (Doc. 55), the Court referred Plaintiffs' motion (Doc. 17) to certify a class to the United States Magistrate Judge. On March 23, 1993, the parties filed a stipulation and proposed order (Doc. 72) in which they state that they “have agreed to resolved all of the outstanding disputes other than attorney fee issues in this case without furthur litigation.” On June 29, 1993, the Magistrate Judge filed his report (Doc. 84) recommending that the stipulation and proposed order be approved. The Magistrate Judge further recommends that Defendant's unopposed motion to dismiss Marlene Snyder's motion (Doc. 73) to intervene be granted.

     Accordingly, upon this Court's independent examination of the file and upon due consideration of the Magistrate Judge's report and recommendation, the report and recommendation is adopted and confirmed and made a part hereof. The joint stipulation (Doc. 72) entered by the parties on March 23, 1993 is APPROVED and the clerk is directed to enter judgment accordingly and close the file. Defendant's unopposed motion to dismiss Marlene Snyder's motion (Doc. 73) to intervene is GRANTED.

     IT IS SO ORDERED.

     DONE and ORDERED at Jacksonville, Florida, this 27th day of July, 1993.

   
   
 

_______________/s/_____________
United States District Judge

   
   

Copy to counsel of record

 

 

 

 

 
 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

 
 
BETTY ASKIN, JOAN SWAN, and  
LAURA SMITH, individually  
and on behalf of all others  
similarly situated.  
   
Plaintiffs, C.A. No. 90-1089-Civ-J-10
v.  
   
DONNA E. SHALALA  
Secretary of Health  
And Human Services,  
   
Defendant.  
   
 

STIPULATION AND ORDER

 

     WHEREAS the parties have agreed to resolve all of the outstanding disputes other than attorney fee issues 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:

Scope of the Individuals Entitled to Relief

  1. The individuals who shall be entitled to seek relief under the terms of this stipulation and order, shall include, subject to the provisions of ¶ 2, any individual who:

    1. between October 11, 1990 and May 22, 1991, inclusive, had a claim for disabled widows, widowers, or surviving divorced spouses benefits (“DWB”) under 42 U.S.C. § 402(a) or (f) denied, or had entitlement to such benefits terminated because of a finding that disability had ceased, and

    2. was residing in Florida, Georgia or Alabama when the last administrative decision she or he received which satisfies the provisions of (a) became final; provided that

    3. the last administrative decision referred to in (b) was issued by a State Disability Determination Service (“DDS”) or an office of the Office of Hearings and Appeals (“OHA”) of the Social Security Administration (“SSA”) which adjudicates claims of residents of Florida, Georgia or Alabama, based on a finding that she or he did not satisfy the disability standard of 42 U.S.C. 423(d)(2)(B) before that section was amended by the Omnibus Budget Reconciliation Act of 1990 (“OBRA”), Pub. L. No. 101-508, § 5103, 104 Stat. 1388 (1990) (amending 42 U.S.C. § 423(d)(2)(A) and (B)) (effective Jan. 1, 1991).

  2. The individuals who shall be entitled to seek relief under the terms of this stipulation and order shall exclude any individual who:

    1. filed claims involving the same time period for Title II disability insurance benefits (“DIB”) or Title XVI disability benefits (“SSI”) concurrently with, or after, any DWB claim(s) by virtue of which she or he would satisfy ¶ 1(a), and received a final administrative denial or a final judgment adverse to the plaintiff from a federal district or appellate court at steps one, two, four or five of the sequential evaluation process, 20 C.F.R. § § 404.1520, 416.920 (1992), or

    2. filed a complaint in federal district court based on an administrative denial of any DWB claim(s) or termination of DWB by virtue of which she or he would satisfy ¶ 1(a), and received a final judgment adverse to the plaintiff from a federal district or appellate court, or

    3. filed a claim for DWB on or after January 1, 1991, which was denied administratively on the ground that the claimant did not meet the disability standard set forth in OBRA, Pub. L. No. 101-508, § 5103, 104 Stat. 1388 (1990) (amending 42 U.S.C. § 423(d)(2(A) and (B)) (effective Jan. 1, 1991), and had no claim for entitlement to DWB for any month(s) before January 1991, or

    4. had a subsequent claim for DWB pending before the Secretary on May 22, 1991, which covered the same time period or had a claim which has been adjudicated in accordance with Social Security Ruling (“SSR”) 91-3p.

    Identification of Individuals Potentially Entitled to Relief Under this Stipulation and Order

  3. Within 120 days of the date that the court enters this stipulation and order, SSA will use its data processing systems to identify the names, Social Security numbers and last known addresses of individuals who meet the provisions of ¶ 1 of this stipulation and order and are not excluded under ¶ 2.

  4. SSA will issue instructions to the SSA adjudicators for processing the readjudications required by this stipulation and order within 135 days of the date on which the court enters this stipulation and order.

    Notices to Individuals Potentially Entitled to Relief

  5. SSA will mail notices within 25 days after it issues instructions to the SSA offices in accordance with ¶ 4 to individuals potentially entitled to seek relief identified pursuant to ¶ 1 of this stipulation and order, at the addresses last shown in SSA's records. (“SSA offices” for purposes of this proposed stipulation and order are defined as those SSA district and branch offices, OHA hearing offices, DDS offices, and Program Service Centers that process or adjudicate claims of residents of Florida, Georgia or Alabama, and the Appeals Council.)

  6. The notices will inform the individual that he/she may be entitled to have his/her DWB claim readjudicated. A draft of the notice SSA will use is attached hereto as Attachment 1.

  7. SSA will send the notice attached hereto via first class mail with a request for review form and postage-paid envelope pre-addressed to the SSA office designated by SSA to receive the request for review forms.

  8. The notice shall inform the individual potentially entitled to seek relief under this stipulation and order that he/she must request readjudication of his/her DWB claims within 60 days of the date on which he/she receives the notice referred to in ¶ 6 of this stipulation and order. To request readjudication of his/her DWB claims, individuals potentially entitled to seek relief must return the request for review form enclosed with the notice within the 60 day time period, or demonstrate that he/she had “good cause” as defined in 20 C.F.R. § 404.911 (1992) for missing the deadline. However, if a claimant, within the prescribed deadline, inform the Social Security Administration that he/she has lost the reply form, the Secretary will deem that person to be a responder.

  9. SSA will presume that notice was received five (5) days after mailing, unless the individual potentially entitled to seek relief establishes that receipt actually occurred later, in which case the 60 days to request adjudication shall be counted from the date of actual receipt. SSA will presume that a request for review was mailed five (5) days before it was received by SSA unless the respondent establishes that it was mailed earlier, in which case the date of actual mailing will be used in determining whether the response was timely.

  10. If a notice mailed to an individual potentially entitled to seek relief is returned as undeliverable, the Secretary shall attempt to obtain a better address by requesting that the state governments in the states of Florida, Georgia and Alabama, subject to the requirements of the Privacy Protection Act, 5 U.S.C. § 552a, provide current addresses through one computerized match with an agency of each state, provided that the defendant shall not be required to institute legal proceedings to gain access to these data system records or to reimburse or compensate the states for searching such records. SSA will send a second notice by first class mail to all individuals potentially entitled to seek relief for whom the computerized match produces a different address. The second notices will be sent promptly after SSA's receipt of computer information from the above mentioned states. The time frames and requirements in ¶ ¶ 5-8 will also apply to the second notice.

    Determination of Individuals Potentially Entitled to Seek Relief

  11. SSA will determine whether each respondent who requests readjudication meets the criteria of ¶ 1 and is not excluded under ¶ 2, and has timely and properly requested readjudication in accordance with ¶ 8 of this stipulation and order.

    1. All DWB claims entitled to readjudication under the terms of this stipulation and order shall be readjudicated at the reconsideration level of administrative review unless consolidated up to the OHA level pursuant to the provisions of ¶ 11 (b) below. 20 C.F.R. § 404.907 (1992).

    2. If any individual potentially entitled to relief has another active Title II or Title XVI disability claim simultaneously pending before SSA at any administrative review level, SSA may, at its option, consolidate that claim(s) with the claim being readjudicated under this stipulation and order.

    3. If an individual potentially entitled to relief has more than one DWB claim subject to readjudication pursuant to this stipulation and order, SSA will consolidate all such claims and readjudicate them at the reconsideration level of review.

  12. If there were multiple DWB claims that satisfy the conditions of ¶ 1 and are not excluded by ¶ 2, and all such claims were denied or terminated between October 11, 1990 and May 22, 1991, inclusive, SSA will readjudicate all of the claims.

  13. Individuals potentially entitled to relief shall retain all rights to seek further administrative and judicial review of determination made on readjudication in accordance with 42 U.S.C. § 405(g) and 20 C.F.R. Part 404, Subpart J (1992).

  14. If SSA determines that an individual who requests readjudication under this stipulation and order is not entitled to readjudication under the terms of ¶ ¶ 1 and 2 of this stipulation and order, or did not file a timely or proper request for readjudication under ¶ 6 - 9, SSA will send a notice of this determination to the individual and to class counsel. The notice will contain the reason for the denial of the right to readjuciation under this stipulation and order, the name, address and telephone number of class counsel, and will inform the individual that she/he will have sixty (60) days from receipt of notice to ask the Secretary to reexamine the denial.

  15. If class counsel disagrees with a determination that an individual is not entitled to seek relief made under this stipulation and order, counsel must, within 60 days of receipt of the notice described in ¶ 14, notify the Office of the General Counsel (“OGC”), Department of Health and Human Services, Suite 221, 101 Marietta Tower, Atlanta, Georgia 30323, in writing of class counsel's disagreement, and specify the reasons for the disagreement. SSA will presume that notice was received by class counsel five (5) days after mailing, unless class counsel establishes that receipt actually occurred later, in which case the 60 days to notify OGC shall be counted from the date of actual receipt. The date on which class counsel is deemed to have notified OGC of the disagreement shall be the date counsel mails the notification to OGC.

    1. If class counsel does not notify OGC in writing within the 60 days specified under ¶ 15, the determination that the individual is not entitled to a readjudication shall take immediate effect and shall not be subject to review.

    2. The parties will attempt in good faith to resolve the question of who is entitled to seek relief under the terms of this stipulation and order by negotiations between the claimant, class counsel and the Secretary. If the parties cannot resolve the question through negotiations, the claimant may submit the unresolved matter to the court for resolution within sixty days after class counsel's receipt of OGC's written confirmation that the dispute cannot be resolved, unless the parties agree to extend this time period in particular cases.

  16. In readjudicating claims pursuant to this stipulation and order, SSA shall apply: (a) the standard set forth in SSR 91-3p in determining entitlement to DWB for any month(s) before January 1991; and (b) the standard set forth in OBRA, Pub. L. No. 101-508, § 5103, 104 Stat. 1388 (1990) (amending 42 U.S.C. § 423(d)(2)(A) and (B)) (effective Jan. 1, 1991), in determining entitlement to DWB for any month(s) after December 1990. In readjudicating claims under this stipulation and order, SSA will consider the issue of disability from the individual's earliest potential entitlement through the date of the last administrative denial decision or termination decision made on the claim being readjudicated. SSA will not readjudicate the issue of disability for any period in which an individual otherwise entitled to seek relief received DWB.

    1. The readjudication shall be limited to a readjudication of the individual's determination that forms the basis of the claimant's entitlement to seek relief under ¶ ¶ 1 and 2 of this stipulation and order, based on all evidence in his/her file, including newly obtained evidence, relevant to the period of time at issue in the administrative decisions. Claimants may submit additional evidence in their claim, so long as the evidence is relevant to the time period. The Secretary shall have the same duty to develop the evidence in the claims of individuals entitled to relief as in any other disability claim under Title II or XVI of the Social Security Act.

    2. If any readjudication results in a favorable decision (that is, an award of benefits or a decision that benefits should have been continued), the Secretary shall determine whether the individual's disability continues as of the date of the readjudication in accordance with the standards and procedures set forth in 42 U.SC. § 423(f).

    Named Plaintiffs' Claims

  17. The claims of named plaintiffs Betty Askin and Joan Swan are hereby remanded to the Secretary for readjudication under the disability standard set forth in Social Security Ruling 91-3p. The Secretary shall readjudicate the DWB claims of Betty Askin and Joan Swan which meet the criteria set forth in ¶ 1 and 2 for evaluation under the disability standard set forth in Social Security Ruling 91-3p. Upon remand, the Secretary shall give priority to readjudicating these two claims and the claim of named plaintiff Laura Smith. The Secretary shall provide notice of each action and a copy of the readjudication determinations in named plaintiffs' claims to class counsel.

    Reports to Class Counsel

  18. The Secretary shall, beginning 120 days after the mailing of all notices described in ¶ 6, and every six months thereafter, send a report to class counsel setting forth, on a state-by-state basis:

    1. the number of notices sent to individuals identified pursuant to ¶ 3;

    2. the number of individuals responding to ¶ 6 notices;

    3. the number of ¶ 6 notices returned as undeliverable;

    4. the number of notices sent to individuals pursuant to ¶ 10;

    5. the number of individuals responding to ¶ 10 notices;

    6. the number of ¶ 10 notices returned as undeliverables;

    7. the number of individuals determined to be entitled to relief under this stipulation and order;

    8. the number of individuals determined not to be entitled to relief;

    9. the number of individuals who receive fully or partially favorable DOB determinations;

    10. the number of individuals who receive unfavorable DDB determination.

  19. Once SSA has substantially completed the readjudications required by this proposed stipulation and order and placed the information identified at (a) through (j) of this paragraph into the tracking system, SSA shall so advise class counsel by providing them a final report.

    Dispute Resolution

  20. With respect to this action, the court shall retain jurisdiction only over matters relating to compliance with the terms of this stipulation and order and attorney fee disputes.

  21. If either party seeks judicial resolution of any dispute arising under this stipulation and order, the time limits set forth in this stipulation and order which are effected thereby will be suspended, and will begin running new only following resolution of the issue by the court.

    Precedent

  22. This stipulation and order is not and shall not be construed as an admission by the defendant of the truth of any allegation or the validity of any claim asserted in this action or of defendant's liability therein, nor is it a concession or an admission of any fault or omission in any act or failure to act, or any statement, written document or report heretofore issued, filed, or made by any defendant, or shall this stipulation and order nor any papers related hereto, nor any of the terms hereof be offered or resolved in evidence or in any way referred to in any civil, criminal, or administrative action or proceeding other than such proceedings as may be necessary to consummate or enforce this stipulation and order or in a proceeding for attorney fees, nor shall they be construed by anyone for any purpose whatsoever as an admission of any wrongdoing on the part of defendant.

  23. The parties may, by written agreement, alter any time period specified in this proposed stipulation and order. Such agreements need not be filed with the court, unless either party deems it appropriate to do so.

  24. The Secretary shall bear the administrative costs of implementing the actions which he has agreed to perform under this stipulation and order.

  25. The parties agree that plaintiffs are the prevailing party in this action for purposes of an award of attorneys fees pursuant to the Equal Access to Justice Act. The amount of such fees will be determined by the court following the approval of this stipulation and order and the filing of a timely fee application.

  26. Plaintiffs' counsel, by her signature below, warrants that she is sole class counsel and sole counsel to the plaintiffs whose interests were represented in this action. Defendant's counsel, by his signature below, warrants that he is sole counsel to the defendant. Counsel for defendant and plaintiffs warrant that they are authorized to stipulate to the settlement of issues in this action.

   
  Respectfully Submitted,
   
Counsel for Plaintiffs: Counsel for Defendant:
   

Esther Yip
Jacksonville Area Legal Aid
604 N. Hogan Street
Jacksonville, FL. 32202

____________/s/_____________
Date: ________3/22/93_______

Robert W. Genzman
United States Attorney


By:____________/s/___________
Date: _____3/22/93____________
Assistant United States Attorney
I.D. No. USA031
Post Office Box 600
Jacksonville, Florida 22201
Tel. No. (904) 791-2682

____________/s/_____________
Date: _____3/18/92__________
Bruce R. Granger, Chief Counsel,
Dept. of Health and Human Services, Region IV

Of Counsel for the Defendant:
Mack A. Davis, Deputy Chief Counsel
for Social Security Litigation and
Programs
Mary Ann Sloan, Principal Regional
Counsel for Social Security
Disability Litigation
Beth Henderson, Assistant Regional
Counsel
Dept. of Health and Human Services
101 Marietta Tower, Suite 221
Atlanta, Georgia 30323

Approved for Entry and so ordered.

DONE AND ORDERED this _______day of ________, 1993 at Jacksonville, Florida.

 

 

__________________________________
United States District Court Judge

 

 

 

 

 

Attachment 1

 

 

 

 

 

 

Important Information

 
____________________________________________________________________________
From: Department of Health and Human Services
  Social Security Administration
____________________________________________________________________________
________________ AS

DATE: ________________

________________  

CLAIM NUMBER: ________________

________________  

DOC: ________________

________________  

________________

     

READ CAREFULLY - YOU ONLY HAVE 60 DAYS TO RESPOND TO THIS NOTICE

We are writing to let you know about a recent court order called Askin v. Sullivan Case No. 90-1089-CIV-J-10 (M.D. FL). Because of this order, you are entitled to ask us to review your earlier decision on your past disabled widow, widower or surviving divorced spouse claim. If the above named person is deceased, benefits may still be payable to his/her survivors or estate.

WHAT YOU NEED TO DO

You can ask us to look at your claim again. If you want us to do this, fill out the enclosed reply form and send it to us within 60 days. If you do not return the reply form, we will not be able to review your claim. After we finish our review, we will send you a notice about our decision.

IF YOU NOW GET MONEY FROM SOCIAL SECURITY

Even if you now get money from Social Security, you may be entitled to more. Return the reply form within 60 days to ask us to review your claim.

IF YOU HAVE ANY QUESTIONS

If you have any questions, you may contact your local Social Security Office. The address and telephone 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.

Additionally, if you have someone helping you with your claim, you should contact him/her. You may also contact one of the Legal Aid offices in your area or you may contact the lawyer in this case:

Ester B. Yip, Esquire
Jacksonville Area Legal Aid, Inc.
604 Hogan Street
Jacksonville, Florida 33203
Askin Court Order
(904) 366-3171

Si usted hable espanol y no entiende asta carta, favor de llavaria a la oficina de Sequre Social arriba hancienada para que as is expliquen.

Enclosures:

Reply Form and Envelope

Attachment 2. - Askin 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
Southeastern Program Service Center
2001 Twelfth Avenue, North
Birmingham, AL 35285

IF CLAIM IS PENDING IN OHA, THEN SHIP FOLDER TO:
Office of Hearings and Appeals
Office of Civil Actions, Division IV
One Skyline Tower, Suite 705
5107 Leesburg Pike
Falls Church, VA 22041-3200

ATTN: Askin Screening Unit

Attachment 3. - Route Slip or Case Flag for Screening

Askin Class Action Case

   
   

SCREENING   NECESSARY

   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant may be entitled to relief under the Askin case. 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 5-4-39 for additional information and instructions.
   
TO: _____________________________
__________________________________
__________________________________
__________________________________
   

Attachment 4. - Askin SCREENING SHEET

CLASS ACTION CODE: A  S  

1. WAGE EARNER'S SSN

   ___ ___ ___ - ___ ___ - ___ ___ ___ ___

BIC

___ ___

2. CLAIMANT'S NAME (First Name, M.I., Last Name)

3. SCREENING DATE

   ___ ___ - ___ ___ - ___ ___

4. a. SCREENING RESULTS

ENTITLED TO RELIEF (J)     NOT ENTITLED TO RELIEF (F)

      ___                            ___

b. SCREENOUT CODE

      ___  ___   

(see Item 13 for screenout codes)
5.  Is this a title II disabled widow/widower or surviving divorced spouse (DWB) claim?

___  Yes       ___ No

   (if No, go to 13)

6.  Did the responder reside in Alabama, Florida or Georgia at any time between October 11, 1990, and May 22, 1991,inclusive?

___  Yes       ___ No

   (if No, go to 13)

7.  Was a less than fully favorable determination/decision issued on this claim at any administrative level by the Alabama, Florida or Georgia DDS, OHA or any office servicing residents of the states of Alabama, Florida or Georgia, between October 11, 1990, and May 22, 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 screening purposes.)

___  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 final adverse disability (medical) determination/decision after May 22, 1991, on the potential Askin claim or a subsequent claim which raised the issue of disability and covered the timeframe at issue in the Askin claim?

___  Yes       ___ No

   (if Yes, go to 13)

10.  Did the claimant receive a subsequent fully favorable determination/decision and full benefits on this or a subsequent claim which covered the timeframe at issue in the potential Askin claim?

___  Yes       ___ No

   (if Yes, go to 13)

11.  Was a claim for title XVI or title II worker's disability covering the timeframe at issue in the potential Askin claim, concurrently or subsequently denied/ceased at steps 1, 2, 4 or 5 of the sequential evaluation process?

___  Yes       ___ No

   (if Yes, go to 13)

12.  Did the claimant file a claim for DWB on or after January 1, 1991, which did not allege entitlement to DWB for any month(s) prior to January 1, 1991, and was denied administratively on the ground that he or she did not meet the statutory standard for disability that became effective January 1, 1991?

___  Yes       ___ No

   (if Yes, go to 13)

( If No, the person is entitled to relief, go to 4.a. and check the “entitled to relief” block (J).)

13. Check the not entitled to relief block (F) in item 4a. and enter the screenout code in item 4.b. as follows:

   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 “NO”.

   Enter 09 if question 9 was answered “NO”.

   Enter 10 if question 10 was answered “NO”.

   Enter 11 if question 11 was answered “NO”.

   Enter 12 if question 12 was answered “NO”.

     

   (No other screenout code is appropriate)

     

14. Reason to use in Notice of Non-Entitlement to Relief:

   a.   If screenout code is 05, check reason No. 1.

   b.   If screenout code is 06, check reason No. 2.

   c.   If screenout code is 07, check reason No. 3.

   d.   If screenout code is 08, check reason No. 4.

   e.   If screenout code is 09, check reason No. 5.

   f.   If screenout code is 10, check reason No. 6.

   g.   If screenout code is 11, check reason No. 7.

   h.   If screenout code is 12, check reason No. 8.

   
SIGNATURE OF SCREENER COMPONENT DATE

Enter dates of all applications screened.

    ________________ _________________ ________________ _________________
INSTRUCTIONS FOR COMPLETING ASKIN SCREENING SHEET
 

Askin involves only claims for title II disabled widows(er)'s or surviving divorced spouse's benefits, who were denied or terminated because of a finding that disability had ceased. The individual must have resided in Alabama, Florida or Georgia, inclusive, during the period October 11, 1990, through May 22, 1991, inclusive. Only one screening sheet and one screenout notice should be prepared for each claimant. Answer questions 1-12 in sequence until the case is either screened in or screened out. Be sure the fill-ins are legible.

Questions 1-3: Fill in the identifying information as requested.

Question 4: Complete this information last (i.e., following completion of a “NO” answer to item 5, 6, or 7, or a “YES” answer to items 8, 9, 10, and 11, or a “YES” or “NO” answer to item 12). Do not fill in the information in blocks 4a. and 4b. until the screening process is completed.

Question 5: Screen for claim type. If this question is answered “NO,” enter the appropriate screenout code in item 4b. as directed in item 13 on the screening sheet and check the “not entitled to relief” block in item 4a.

Question 6: Review the SSA-831 (item 5) to determine if the individual resided in Alabama, Florida or Georgia at any time between October 11, 1990, and May 22, 1991, inclusive; if “YES,” go to question 7, if “NO,” the individual is not entitled to relief under the Askin case, go to item 13.

Question 7: Screen for date of decision, not application. Individuals are potentially entitled to relief if they received a denial/cessation or less than fully favorable decision (e.g., later onset, closed period) between October 11, 1990 and May 22, 1991, inclusive, which became the Secretary's final decision. 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 screening purposes.

Question 8: Review the SSA-831-U3 or SSA-833-U3, or the SSA-3687-U2, or the SSA-3428-U2 item 22 for the non-medical denial codes (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 screenout code in item 4b. as directed in item 13 on the screening sheet and check the “not entitled to relief” block in item 4a.

Question 9: Review the file to determine whether an unfavorable decision was issued after May 22, 1991, on the potential Askin claim or a subsequent claim that raised the issue of disability and covered the timeframe at issue in the potential Askin claim. If the answer to question 9 is “YES,” enter the appropriate screenout code in item 4b. as directed in item 13 on the screening sheet and check the “not entitled to relief” block in item 4a.

Question 10: Review the file to determine whether benefits were subsequently allowed or continued from the earliest possible entitlement date, cessation date, or control date. Be sure to consider earlier eligibility for Medicare when determining if the subsequent decision is fully favorable. The allowance or continuance could have either been on the same claim or on a subsequent application. If the answer to question 10 is “YES,” enter the appropriate screenout code in item 4b. as directed in item 13 on the screening sheet and check the “not entitled to relief” block in item 4a.

Question 11: 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 timeframe at issue in the Askin claim. The following codes in block 22 of the SSA-831-U3 and SSA-833-U3 indicate DDS denial/cessation at steps 1, 2, 4 or 5: N1, N2, F1, F2, H1, H2, J1, J2, E1, E2, E3 and E4, or the reg-basis codes for title XVI claims N30, N31, N32, N33, N42 and N43. For cases previously decided at the OHA level, review the Administrative Law Judge or Appeals Council decision to determine the basis for denial. If the answer to question 11 is “YES,” enter the appropriate screenout code in item 4b. as directed in item 13 on the screening sheet and check the “not entitled to relief” block in item 4a.

Question 12: Review the SSA-831-U3 to determine if the claim was denied with reg-basis codes H1, H2, J1, or J2, and the claimant did not claim entitlement to DWB for any month(s) prior to January 1, 1991. For cases previously decided at the OHA level, review the Administrative Law Judge or Appeals Council decision to determine if the claimant's residual functional capacity (RFC) was assessed. If the answer to Question 12 is “YES,” enter the appropriate screenout code in item 4b. as directed in item 13 on the screening sheet and check the “not entitled to relief” block in item 4a.

Instructions for Individuals Entitled to Relief

  1. If “YES” to questions 5, 6 and 7, and “NO” to questions 8, 9, 10, 11, and 12, the individual is “Entitled to Relief.” Check the Entitled to Relief block (J) in item 4a. of the screening sheet.

  2. Retain the original screening sheet in the folder. 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: Askin Coordinator

  3. Follow Part V.B.3.b. for screened in cases.

Instructions for Not Entitled to Relief

  1. If “NO” to question(s) 5, 6 or 7, the individual is "Not Entitled to Relief." Check the not entitled to relief block (F) in item 4a. of the screening sheet. Fill in the appropriate screening code in item 4b. as directed in item 13 of the screening sheet.

  2. If “YES” to questions 5, 6 or 7, and “YES” to question 8, 9, 10, 11 or 12, the individual is "Not Entitled to Relief." Check the not entitled to relief block (F) in item 4a. of the screening sheet. Fill in the appropriate screenout code in item 4a. as directed in item 13 on the screening sheet.

  3. Retain the original screening sheet in the folder. 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: Askin Coordinator

  4. Prepare the “Non-entitlement to Relief Notice,” (Attachment 6). Retain a copy in the file. Send the original notice to the individual, copies to the individual's representative of record, if known, and to plaintiffs' counsel.

  5. Follow Part V.B.3.a. for screened out cases.

Attachment 5. - Route Slip for Routing Court Case Alert and Prior Claim File(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  

Askin 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 Southeastern Program Service Center for screening and possible readjudication. SEE POMS DI 42563.005 OR DI 12563.005.
   
   
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 6. - Non-Entitlement to Relief Notice

   
SOCIAL  
SECURITY           Important Information
NOTICE  
   
   
From: Department of Health and Human Services
  Social Security Administration
   
   

AS

DATE:

  
 

CLAIM NUMBER:

  
 

DOC:

  
 

DOA:

  
 

DO Telephone Number:

  
     
     

We are writing to tell you that we received your request to review your earlier claim for disabled widow(er)'s or surviving divorced spouse's benefits under the Askin v. Shalala court order. We have looked at your case. You are not entitled to relief under the Askin case for the reason given below. This means that we will not review our earlier decision.

A copy of this letter is being sent to your representative of record, if known, and the attorney for the Askin case. You may contact the attorney for this case to obtain her assistance. She will answer your questions about entitlement to relief without charge. The name, address, and telephone number for the Askin attorney is:

Jacksonville Area Legal Aid, Inc.
Attn: Esther O. Yip, Esquire/Askin Court Order604 N. Hogan Street
Jacksonville, Florida 32202
Telephone No. (904) 356-8371

   

WHY YOU ARE NOT ENTITLED TO RELIEF UNDER Askin

   
You are not entitled to relief because:
   
___ 1. You did not file a claim for Title II disabled widow(er)'s or surviving divorced spouse's (DWB) benefits.
   
___ 2. You did not reside in the state of Alabama, Florida or Georgia at any time between October 11, 1990, and May 22, 1991, inclusive.
   
___ 3. You did not receive an adverse determination/decision between October 11, 1990, and May 22, 1991, inclusive, that became the final decision of the Secretary.
   
___ 4. Your claim was denied or ceased for some reason other other than your medical condition. That reason was:
  _____________________________________________________
  _____________________________________________________
   
___ 5. You received a final adverse disability (medical) determination/decision after May 22, 1991, on your potential Askin claim or a subsequent claim which covered the timeframe at issue in the potential Askin claim. Thus, you have already received the relief that you would otherwise be entitled to under Askin.
   
___ 6. You received a subsequent fully favorable decision which covered the timeframe at issue in the potential Askin claim, and all benefits have been paid.
   
___ 7. You had a concurrent or subsequent claim for title XVI or title II worker's disability benefits denied or ceased at steps 1, 2, 4 or 5 of the sequential evaluation process, and that claim covered the period at issue in the potential Askin claim.
   
___ 8. You filed your claim on or after January 1, 1991, and your claim was denied on the basis that you did not meet the statutory standard for disability that became effective January 1, 1991, and you did not allege entitlement to DWB for any month(s) prior to January 1991.
   
   

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 currently disabled. We are deciding only that you are not entitled to relief under the Askin case.

IF YOU DO NOT AGREE WITH THIS DETERMINATION

If you want us to review our determination that you are not entitled to relief under the Askin case, you may contact the attorney for the Askin case, who will answer your questions about entitlement to relief under the Askin case. The address and telephone number of the attorney are listed on page one. If the attorney thinks that this determination is incorrect, she must write to us, within 60 days of receiving this notice, at the address listed below, and explain the reason(s) why you disagree with this decision:
Office of the General Counsel
Department of Health and Human Services
Suite 221
101 Marietta Tower
Atlanta, GA 30323

Attn: Askin Court Order

If You Are Disabled Now

If you are not currently receiving disability benefits and you think you are disabled now, you should fill out a new application at any Social Security office. Filing a new application, however, is not the same as seeking a review of our determination that you are not entitled to relief under the Askin court order.

If You Have Any Questions

If you have any questions, you may contact the attorney for the Askin case or your local Social Security office. The Social Security address and telephone number are printed on page one of this notice. If you call or visit a Social Security Office, please have this letter with you. It will help us answer your questions.

IF YOU SPEAK SPANISH AND DO NOT UNDERSTAND ENGLISH

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

cc: Esther O. Yip, Esquire
Jacksonville Area Legal Aid, Inc.

Attachment 7. - Route Slip for Non-Entitlement to Relief Cases

ROUTING AND TRANSMITTAL SLIP DATE:
TO: INITIALS DATE
1. SSA Area Director's Office    
2. 3728 Phillips Highway, Suite 223    
3. Jacksonville, Florida 32207    
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  

Askin CASE

   
Claimant: ___________________________  
   
SSN: ________________________________  
   
We have determined that this claimant is not an individual entitled to relief under the Askin case. We are forwarding the claim file to your office pursuant to plaintiff's counsel's timely request to review the file.
(See screening sheet and copy of non-entitlement to relief notice in the attached claim file(s).)
   
   
   
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. - Text for Notice of Revised Entitlement to Relief Determination

In an earlier letter that we sent you, we said that you were not an individual entitled to relief under the Askin, et al. v. Sullivan court case. After reviewing all of the facts, we have decided that you are entitled to relief. Therefore, we will review your claim using the standards agreed upon by the parties and approved by the court under the Askin Stipulation and Order.

We have received a lot of requests for review and it may take several months before we look at your claim file. When we start the review, we will ask you for any additional evidence that you want to give us.

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

If you have any questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at XXX-XXXX. We can answer most questions over the phone. You can also write or visit any Social Security office. The office that serves your area is located at:

District or Branch Office
Address
City, ST ZIP

If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly.

If you have someone helping you with your claim, you should contact him or her. You may also ask for legal help by contacting a legal aid organization in your area, or by contacting the lawyers in the Askin case:

Jacksonville Area Legal Aid, Inc.
Attn: Esther O. Yip, Esquire/Askin Court Order
604 N. Hogan Street
Jacksonville, Florida 32202
Telephone No. (904) 356-8371

Attachment 9. - Askin Court Case Flag for Headquarters Use (DDS Readjudication -- retention period expired)

Askin Class Action Case

   
   

READJUDICATION NECESSARY

   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant is entitled to relief under Askin. Accordingly, we are forwarding the attached claim file(s) to the DDS for readjudication.
   
[ Send folders to the appropriate DDS. ]
   
   

Attachment 10. - Askin Court Case Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)

Askin Class Action Case

   
   

READJUDICATION NECESSARY

   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant is entitled to relief under Askin. After expiration of the retention period, forward claim file(s) to the DDS for readjudication.
   
[Send folders to the appropriate DDS.]
   

NOTE:

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

Attachment 11. - 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 of the parties and an order of the United States District Court for the Middle District of Florida in the case of Askin v. Shalala, No. 90-1089 (M.D. Fla. July 27, 1993), the claimant has requested readjudication of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as an individual entitled to relief under Askin and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the joint 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 Disability Determination Service which will conduct the Askin readjudication.
     
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 12. - 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 and returning your case to the 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 Askin claim back to the Disability Determination Service for further processing. The enclosed order explains why.
   
The Next Action on Your Claim  
   
The Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the 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 13. - Askin Court Case Flag for HO Use (DDS Readjudication)

Askin Class Action Case
READJUDICATION  NECESSARY

Claimant's Name:   __________________________________
     
SSN:   __________________________________
     
This claimant is entitled to relief under Askin. The attached Askin 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 Askin readjudication action.
 
We are sending the alert and prior file(s) to:
 

______________________________

______________________________

______________________________

______________________________

 

(Destination code: ____)