I-5-4-4.Hyatt v. Apfel

Attachment 1. Application for Hyatt Class Membership

Social Security may owe you disability benefits. This is because of a recent court case called “Hyatt v. Shalala.” If we denied your old disability claim, and you had complaints of pain, you can ask us to look at your old claim again.

Even if you now get money from Social Security, we may still owe you more disability money. Even if we denied your “Hyatt” claim before, you may get disability money now. You cannot lose benefits for which you are eligible by asking us for a “Hyatt” review.

If you want us to look again at your old denied claim, fill out this form and return it to your local Social Security field office as soon as possible.
_ _ _ - _ _ - _ _ _ _ _ _ / _ _ /_ _
SOCIAL SECURITY NUMBER DATE OF BIRTH (mm/dd/yy)


_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ for
REPRESENTATIVE PAYEE (If Applicable)


_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
NAME (LAST) (FIRST) (MI)


_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
ADDRESS


_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _
CITY STATE ZIP CODE


(_ _ _) _ _ _ - _ _ _ _
TELEPHONE NUMBER


_________________________________________ _ _ / _ _ / _ _
SIGNATURE DATE

If you have any questions, or need help, call the North Carolina Disability Hotline (toll-free) at 1-800-638-6810.

Attachment 2. Sample Alert

CTWALT01 HYATT III COURT 
CASE FLAG/ALERT



REVIEW PSC DOC TOE 
ALERT DATE RESPONSE DATE OLD BOAN/PAN OFFICE


1340

SSN
(BOAN OR PAN) NAME BIRTH DATE REFERENCE #



FOLDER LOCATION/INFORMATION

CAN/HUN BIC/MFT CATG
TITLE CFL CFL DATE ACN

PAYEE ADDRESS

SHIP TO ADDRESS

If claim is pending in OHA, then ship folder to:

Attachment 3. Request for Association and Possible Consolidation

Hyatt III Court Case

ASSOCIATION NECESSARY

Claimant's name: _____________________________________

SSN:                     _____________________________________

This claimant may be entitled to relief under the Hyatt settlement order. 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 and possible consolidation and readjudication.

Please refer to HALLEX Temporary Instruction 5-4-4 for additional information and instructions.

TO: ____________________________
____________________________

Attachment 4. Route Slip to Litigation Staff Transmitting Hyatt III Case Not Entitled to Relief

REMARKS

Claimant: ________________________ SSN: _____________________________

The attached Hyatt III claim is not entitled to relief because

_________________________________________________________________________

________________________________________________________________________.

Accordingly, we are sending the claim file to your office for review. SEE I-5-4-4 V.D.2.c.

Attachment

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

Attachment 5. Notice of Non-Entitlement to Relief

Dear            :

We looked at your case as the result of a class action court case in North Carolina called Hyatt. We looked at your case even if we looked at it earlier and sent you a letter saying you were not entitled to Hyatt review.

As a result of reviewing your case, we found that you are not entitled to a Hyatt review. This means that we will not review your old disability case again.

IF YOU DISAGREE

You, or your representative, have 120 days from the date you receive this notice to write to Social Security to request review of this decision.

If you want Social Security to review this decision, please write to:

THE REASON YOU ARE NOT ENTITLED TO HYATT REVIEW IS BECAUSE:

We have no evidence that you ever filed an application for Social Security disability insurance benefits under either title II or title XVI of the Social Security Act. Your application was for ________________________________________________________________________.

You did not receive a less than fully favorable determination/decision (choose one) by a North Carolina adjudicator on or after July 7, 1981 and before November 14, 1991. The final determination/decision (choose one) on your claim was (fill in the reason the claimant does not qualify for Hyatt review) ______________________________________________________ and _________________________________________________________________________ _________________________________________________________________________ ________________________________________________________________________.

You did not receive a medical denial/determination. The final determination/decision was based on _____________________________ _________________________________________________________________ _________________________________________________________________ _______________ Remember, you only have 120 days to ask us to review the decision. If you do not contact us within 120 days, this decision will become final.

IF YOU NEED HELP

If you have questions or want help, you should contact:

1. Your lawyer or representative; or

2. The lawyers for the Hyatt class:

   Hyatt Attorney
   North Carolina Justice
   and Community Development Center
   224 South Dawson Street
   P.O. Box 28068
   Raleigh, NC 27611
   1-800-299-8619
   
   Telephone: 1-800-299-8619

INFORMATION ABOUT FILING A NEW APPLICATION

If you think you are disabled now, you may file a new application. A new application is not the same as asking us to review your claim under Hyatt. In the new application, you may not be able to receive disability benefits for the period of time you asked for in your prior claim. If you decide to file a new application, contact any Social Security office.

cc: Claimant's Representative

    Hyatt Attorney

Attachment 6. Acknowledgment Letter with Sample Hyatt III Language

Dear    :

Insert the following language if the notice is to be sent to the claimant:

We are currently looking at your case as the result of a class action court case in North Carolina called Hyatt. Your case will be reviewed even if we looked at it earlier and sent you a letter saying you are not entitled to review. A notice of the time and place of the hearing will be sent to you at least twenty (20) days before the hearing date.

If the claimant is deceased and the claimant's estate is to be notified, insert the following language:

To the Estate of    :

We are currently looking at [enter name of claimant]'s case as the result of a class action court case in North Carolina called Hyatt. [Enter name of claimant's] case will be reviewed even if we looked at it earlier and sent [him/her] a letter saying that [he/she] was not entitled to a review.

Our records show that the Hyatt class member is now deceased and that [he/she] did not leave a surviving spouse. Additional benefits may be due if the Hyatt claim is approved. If the claimant's child, parent or executor of the estate wishes to pursue this claim, please complete and return the enclosed substitute of party form within ten days. If this form is not returned, we will assume that no one is interested in pursuing this claim, and the Hyatt claim will be dismissed. A notice of the time and place of the hearing will be sent to you at least twenty (20) days before the hearing date.

The Hearing

At the hearing, you may present your case to the Administrative Law Judge (ALJ) who will hear and decide it. The ALJ will consider the issue(s) you have raised and the evidence now in your file. In addition, you have the right to give us any additional evidence relating to an earlier claim that was not previously considered. The ALJ may consider other issues as well and, if necessary, change parts of the previous decision that were favorable to you. The Notice of Hearing will state the issues the ALJ plans to consider at the hearing.

Because the hearing is your time to show the ALJ that the issues should be decided in your favor, we need to make sure that your file has everything you want the ALJ to consider. We can help you get needed evidence. After the ALJ reviews the evidence in your file, he or she may request more evidence to consider at your hearing.

Your Right to Representation

You may choose to be represented by a lawyer or other person. A representative can help you get evidence, prepare for the hearing, and present your case at the hearing. If you decide to have a representative, you should find one immediately so that he or she can start preparing your case.

Attachment 7. Route Slip to DDS Requesting Readjudication of Primary Subclass Member Claim

REMARKS

Claimant: ________________________ SSN: _____________________________

The attached Hyatt III primary subclass member claim will not be consolidated with a current claim pending at OHA because

_________________________________________________________________________

________________________________________________________________________.

Accordingly, we are sending the claim file to your office for readjudication. SEE POMS DI 32548.015 B.1.

Attachment

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

Attachment 8. Dismissal of Request for Hearing on Current Claim — Current Claim and Primary Subclass Member Claim to Be Consolidated at DDS Level

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

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 of Settlement negotiated by the parties and approved by the United States District Court for the Western District of North Carolina in the case of Hyatt v. Shalala, No. C-C-83-655-MU (W.D. North Carolina, March 21, 1994), the claimant has requested readjudication of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Hyatt 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 of Settlement. 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 North Carolina Disability Determination Section which will conduct the Hyatt readjudication and redecide the current application at the reconsideration level.

The North Carolina Disability Determination Section will notify the claimant of its new determination. If the new determination is not fully favorable to the claimant, this order of dismissal will be vacated, the claimant's request for hearing on the current claim will be reinstated, and the claimant will be deemed to have requested a hearing with respect to the readjudication of the Hyatt claim.

Date:

Attachment 9. Notice Transmitting ALJ Order of Dismissal — Current Claim and Primary Subclass Member Claim to Be Consolidated at DDS Level

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 North Carolina Disability Determination Section which makes disability determinations for the Social Security Administration. Please read this notice and the Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge has sent your current claim and your Hyatt claim back to the North Carolina Disability Determination Section for further processing. The enclosed order explains why. If the new determination is not fully favorable to you, your request for hearing will be reinstated.

The Next Action on Your Claim

The North Carolina Disability Determination Section will contact you to tell you what you need to do. If you do not hear from the North Carolina Disability Determination Section 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 10. Route Slip to DDS Requesting Readjudication of Consolidated Claims and Return of Files to Less Than Fully Favorable Determination Issued

REMARKS

Hyatt III Case

Claimant: _________________________

SSN: _____________________________

We are forwarding the attached files to your office for consolidated readjudication of the claimant's Hyatt III claim and the current claim (see the Administrative Law Judge's dismissal order).

If your review does not result in a fully favorable determination, please return all files, after any effectuation action, to the ________________ Hearing Office for further action on the consolidated claims. SEE POMS DI 32548.015 B.1. and 3.

Attachment

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

Attachment 11. Hyatt III Favorable Decision Worksheet and Transmittal

If a favorable medical decision was issued, complete this worksheet, staple it to the front of the folders and ship to the servicing field office.
TO: FO _____________ PAYMENT VERIFICATION NEEDED

1. CLAIM NUMBER BIC/ID

_____ - ___ - _______ ______

SOCIAL SECURITY NUMBER

_____ - ___ - _______


2. _________________________________________________________________
CLAIMANT'S NAME (FIRST, MIDDLE INITIAL, LAST)


3. FOR SOCIAL SECURITY DISABILITY INSURANCE BENEFITS (Title II):

a. Earliest Eligible* Hyatt III Application Date

______ /______/______

b. Alleged onset date on Application identified in a. above

______/______/_______

c. Established disability onset date

______/______/_______

4. FOR SUPPLEMENTAL SECURITY INCOME BENEFITS

d. Earliest Eligible* Hyatt III Application Date

e. Established Entitlement Date

______/______/______

NOTE: If there is an earlier application(s) within the Hyatt III period
(July 7, 1981 - November 13, 1991) that is ineligible for Hyatt III
review, enter the date(s) of those claim(s) here:

______/______/______

_____/______/_______

_____/______/_______


________________________________________ ________________
Signature Component Date

Attachment 12. December 19, 1996 Hyatt Desk Guide

HYATT DESK GUIDE
(To Be Used in HYATT Reassessment Cases Only)

ALL EXPLANATIONS MUST BE CLEARLY SET FORTH IN THE APPROPRIATE PLACE IN THE CASE RECORD.

1. Is there a medically determinable physical or mental impairment?

   (DI 24515.001.A.; 24515.061.A)

2. Can impairment(s) be reasonably expected to produce alleged symptoms?

   (DI 24515.061.B.)

3. Is impairment(s) severe? If NO, EXPLAIN.

4. Were symptoms considered in determining severity? If NO, EXPLAIN.

   (DI 24505.003.B.)

5. Were activities of daily living developed? If NO, EXPLAIN.

   (DI 24515.061.C.3.)

6. If alleged symptom-related limitations or restrictions are greater than would be expected on the basis of the physical impairment(s), was the possibility of a medically determinable mental impairment considered? If NO, EXPLAIN.

   (DI 24515.061.B.)

7. Does the severity of the claimant's medically determinable impairment(s) meet or equal any listing?

   (DI 24515.061.D.2.; DI 24515.061.D.3.), If NO, ASSESS RFC.

   (DI 24515.061.D.4.; DI 24515.062); Complete Section II (SYMPTOMS) and Section III (TREATING OR EXAMINING SOURCE STATEMENTS) of the SSA-4734-U8, as appropriate. (DI 24510.001, DI 24510.005, DI 24510.006, DI T24510.001, DI E24510.005)

8. Does a function-by-function assessment establish the claimant is able to perform past relevant work? If YES, DENY.

9. Considering RFC, age, education and work experience, can the claimant perform other work? If YES, DENY. If NO, ALLOW.

   (DI 25015.020.A.)

10. Do List Codes 251or 252 apply? (DI 22510.011.D.)

11. Is decision rationale and PDN in file? (DI 24515.066.B.1., DI 24515.067.A.2., DI 26515.001ff, DI 26530.001ff.)

Attachment 13. Dismissal of Request for Hearing in Settlement Subclass Member Case — No New and Material Evidence Submitted

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL
HYATT III REASSESSMENT CASE

This case is before the Administrative Law Judge pursuant to a request for hearing filed on __________________ with respect to the North Carolina Disability Determination Section reassessment of the prior denial of the application(s) filed on ________________.

In accordance with the Stipulation and Order of Settlement negotiated by the parties and approved by the United States District Court for the Western District of North Carolina in the case of Hyatt v. Shalala, No. C-C-83-655-MU (W.D. North Carolina, March 21, 1994), the claimant requested and received a reassessment of the final determination on the prior application(s) filed on ______________. Under the terms of the Hyatt settlement order, the claimant may obtain a hearing on the reassessment if new and material evidence is submitted.

[The claimant has submitted no additional evidence.] OR [The undersigned has considered the following evidence submitted by the claimant: (list all documents submitted by the claimant to the DDS or ALJ, or obtained by the DDS, in connection with the Hyatt III reassessment). (Provide a statement explaining why the evidence is not new and material with respect to the reassessment period. For example: “The above-listed evidence cannot be considered 'new' within the meaning of the settlement order because it was considered by the North Carolina Disability Determination Section when it adjudicated the earliest Hyatt claim rather the reassessment claim.” OR “The above-listed evidence cannot be considered 'material' within the meaning of the settlement order because the evidence, by itself or when considered with all of the other available evidence, does not warrant a change in any finding pertinent to any matter at issue or a change in the ultimate decision.”)]

Accordingly, the claimant has not submitted new and material evidence. Therefore, the request for hearing is hereby dismissed and the determination dated (insert date of DDS determination that conferred Hyatt III settlement subclass member status) remains in effect.

Date:

Attachment 14. Notice Transmitting ALJ Order of Dismissal in Settlement Subclass Member Case

NOTICE OF DISMISSAL
HYATT III REASSESSMENT CASE

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing. Please read this notice and the Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge will not review the denial of your prior claim issued on ____________. The enclosed order explains why. There is no right to any further appeal, i.e., no right to Appeals Council or judicial review.

Information about Filing a New Application

If you think you are disabled now, you may file a new application. If you decide to file a new application, contact any 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 15. ALJ Reassessment Decision in Settlement Subclass Member Case — Claimant Not Disabled During Reassessment Period

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

HYATT III REASSESSMENT DECISION

This case is before the Administrative Law Judge pursuant to a request for hearing filed on __________________ with respect to the North Carolina Disability Determination Section reassessment of the prior denial of the application(s) filed on ________________.

In accordance with the Stipulation and Order of Settlement negotiated by the parties and approved by the United States District Court for the Western District of North Carolina in the case of Hyatt v. Shalala, No. C-C-83-655-MU (W.D. North Carolina, March 21, 1994), the claimant requested and received a reassessment of the final determination on the prior application(s) filed on ______________. Under the terms of the Hyatt settlement order, a claimant may obtain a hearing on a North Carolina Disability Determination Section reassessment if new and material evidence is submitted.

The claimant submitted new and material evidence and a hearing was held on __________. Pursuant to the Hyatt settlement order, the undersigned has considered the claimant's testimony, the new and material evidence and the evidence previously of record in this case using the Secretary's regulations for the evaluation of pain (20 CFR §§ 404.1529 and/or 416.929) in a manner consistent with the standard expressed by the Fourth Circuit in Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir. 1990). I find that the claimant was not under a disability within the meaning of the Social Security Act at any time between (enter the starting date of the period considered and a phrase indicating the significance of the date, e.g., the claimant's alleged onset date or the date of the claimant's application for Supplemental Security Income) and (enter the ending date and the significance of the ending date, e.g., the date of the DDS determination or the date that the insured status requirements were last met).

Accordingly, upon reassessment, the undersigned concludes that the determination dated (insert date of DDS determination that conferred Hyatt III settlement subclass member status) is correct. Therefore, that determination remains in effect as the final determination of the Secretary on the claimant's application filed on ________.

Date:

Attachment 16. Notice Transmitting ALJ Hyatt III Reassessment Decision in Settlement Subclass Member Case

NOTICE OF HYATT III REASSESSMENT DECISION

Claimant's Name
Address
City, State Zip

Enclosed is the Administrative Law Judge's reassessment decision pursuant to the Hyatt court order. Please read this notice and the decision carefully.

What This Order Means

The Administrative Law Judge has reviewed the denial of your prior claim issued on ____________ and concluded that it is correct. The enclosed decision explains why. There is no right to any further appeal, i.e., no right to Appeals Council or judicial review.

Information about Filing a New Application

If you think you are disabled now, you may file a new application. If you decide to file a new application, contact any 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 17. November 4, 1996 Signed Agreement Supplementing the March 21, 1994 Settlement Order in Hyatt III

Social Security Office of the General Counsel October 28, 1996

Charles McBrayer Sasser
Douglas S. Sea
Cox, Gage and Sasser
Suite 2160
227 West Trade Street
Charlotte, North Carolina 28202

John Wester
Robinson, Bradshaw and Hinson
1900 Independence Center
101 North Tyron Street
Charlotte, North Carolina 28246

Carlene McNulty
North Carolina Justice and Community Development Center
P.O. Box 28068
Raleigh, North Carolina 27611

Dear Class Counsel:

This agreement pertaining to adjudication of reassessment of cases is to be applied in conjunction with the Hyatt Stipulation and Order of Settlement (Civ. No. C-C-83-655-MU) filed on March 21, 1994 (hereinafter “Hyatt Settlement Order”) and the parties agree that the terms of this agreement are enforceable by the court pursuant to paragraphs 14, 19 and 22 of the Hyatt Settlement Order. This agreement does not constitute a modification of the Hyatt Settlement Order, but serves to supplement the Hyatt Settlement Order as it pertains to reassessment cases.

1. Within sixty days from the date of this agreement, class counsel will make their best efforts to identify by name, social security number (SSN) and BIC, the individuals whose claims were denied on reassessment by the North Carolina Disability Determination Service (DDS) under Hyatt III prior to May 21, 1996. The list provided by class counsel may be overinclusive. This information will be provided to SSA on a disc in ascii format with a record layout. Class counsel may also send to SSA, on a disc, the names and available SSN(s) of additional individuals (to total no more than 400 persons) who, according to class counsel's records, may have reassessment cases covered by this agreement. If SSA is unable to identify from the Civil Action Tracking System (CATS) that these are cases subject to this agreement, class counsel will submit additional evidence concerning these cases. The Office of Hearings and Appeals (OHA) will, in the course of normal processing, identify reassessment cases pending on appeal which were denied by the DDS before May 21, 1996 whether or not they have been identified by class counsel and process them pursuant to paragraph 3 below. SSA (and/or DDS) shall determine whether these and all other individuals identified by class counsel, SSA or the DDS have reassessment cases denied by the North Carolina DDS under Hyatt III prior to May 21, 1996. Later identified cases will be processed by SSA and DDS in a manner consistent with this agreement.

2. For all individuals determined to have been issued Hyatt III reassessment determinations prior to May 21, 1996, the prior reassessment determination will become void and a new determination will be made (except as provided in paragraph 3 below). The new, complete reassessment will be performed in accordance with the terms of the Hyatt Settlement Order, the Hyatt Program Operation Manual System (POMS) and this agreement. The new reassessment shall be performed by a different adjudicative team than that which made the prior reassessment decision. A notice of determination will be sent to the individual regarding the new reassessment determination and will include the opportunity to appeal pursuant to paragraph 10(l)(iii) of the Hyatt Settlement Order.

3. Reassessment claims subject to this agreement which are pending at or have been decided by OHA will be processed as follows:

   1. If the reassessment claim subject to this agreement has not yet been scheduled for a hearing, or a hearing has been held, the claim will continue to be processed by OHA under existing Hyatt III procedures.

   2. If the reassessment claim subject to this agreement has not yet been scheduled for a hearing, OHA will make a determination on whether the “new and material evidence” requirement of paragraph 10(m) of the Hyatt Settlement Order has been met.

      1. If the “new and material” evidence standard is met, the case will remain at OHA and be processed pursuant to the Hyatt Settlement Order.

      2. If the “new and material” evidence standard is not met, the case will be remanded to the DDS; the individual will receive a new DDS reassessment determination and will have an additional opportunity to appeal pursuant to subparagraph 10(1)(iii) of the Hyatt Settlement Order (i.e., if the claim is again denied by the DDS and the individual must ask for a new hearing and again must proceed in accordance with subparagraph 10(l)(iii) of the Hyatt Settlement Order and must provide “new and material” evidence.) If the claim is appealed, the evidence submitted in connection with the first and second DDS reassessments or the prior reassessment appeal, as well as other evidence proffered, will be considered in making the new and material evidence determination.

   3. If a decision on the merits of the reassessment claim has been made by OHA, the claim will not be reviewed under the terms of this agreement. (NOTE: A decision “on the merits” will not include a claim in which the request for hearing was dismissed).

4. The DDS shall give reassessments performed subject to this agreement (i.e., those replacing determinations made prior to May 21, 1996) priority over other Hyatt reassessments, when practicable.

5. The DDS will use the attached desk guide [see Attachment 12] in performing all Hyatt reassessments and will comply with the guide and all referenced POMS sections in a manner consistent with the Hyatt Settlement Order and this agreement.

6. The DDS shall not deny any reassessment claim in which the case record does not contain evidence that the DDS has attempted to obtain statements from the claimant, his or her treating or examining physician(s) or psychologist(s), and other related symptoms, and the factors described in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) to the degree that the information about each factor is available and relevant to the case and the claimant or other person providing the information has a basis to know about the factor. The notice in Exhibit 6 in POMS DI 32548.095 is not sufficient to meet this requirement.

7. DDS will comply with Hyatt POMS DI 32548.015D.4. concerning contacting appointed representatives in performing reassessments. (NOTE: If there was an appointed representative in a claim prior to the Hyatt III claim, the representative does not have to be contacted; if there is an appointed representative in a claim subsequent to a Hyatt III claim(s), that representative will be contacted.) The absence of an SSA-1696-U4 (Appointment of Representative) form will not relieve the DDS from compliance with POMS DI 32548.015D.4. if there is another indication in the file that there is representation.

8. The DDS shall review and evaluate medical records or opinions submitted by the claimant, including records or opinions submitted in connection with a post Hyatt claim for benefits, that are dated after the date of the denial being reassessed to determine whether they relate to a condition that may have begun prior to the date of the prior denial. If the claimant has informed the DDS or SSA of the existence of medical records dated after the date of the prior denial that pertain to a condition that may have begun prior to the date of the prior denial, the DDS shall make “every reasonable effort” to obtain and review the evidence. If a claimant wishes to submit medical evidence dated after the date of the denial being reassessed, the DDS shall not discourage the claimant from submitting the medical evidence, even if it pertains to a condition that began after the date of the prior denial.

9. The DDS shall document the case record as to the consideration given to the statements of the claimant, his or her treating or examining physician(s) or psychologist(s), and others, as set forth in 20 C.F.R. §§ 404.1529 and 416.929 and the Hyatt Settlement Order. Further, the DDS shall follow Social Security Ruling (SSR) 96-7p (POMS DI 24515.066) and prepare a finding as to the credibility of the individual's statements about any alleged symptom(s) and its functional effects in all cases in which the claimant's statements abut the intensity, persistence, or limiting effects of symptoms are not substantiated by the objective medical evidence. As described in SSR 96-7p (POMS DI 24515.066), the case record must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.

10. DDS shall assure that both title II and title XVI claims are reassessed and that notice(s) addressing the Title II and Title XVI reassessment determination(s) are issued.

11. The DDS will follow Social Security Rulings 85-28 and 96-3p in determining whether a claimant's medically determinable physical or mental impairment or combination of impairments has more than a minimal effect on his or her ability to do basic work activities. Where the claimant's alleged symptoms can reasonably be expected to be produced by the established impairment(s), the intensity, persistence, and limiting effects of the symptom(s) must be considered along with the objective medical and other evidence in determining severity. If the claim is denied at step 2 of the sequential evaluation process, the personalized disability notice to the claimant must include a credibility finding that is sufficiently specific as to make clear the weight given to the claimant's statements abut his or her symptoms in determining severity and the reasons for that weight.

12. DDS reassessment notices will comply with POMS DI 32548.045 and DI 26530.020 and will, additionally, prominently indicate that it is a new determination replacing the prior reassessment determination and that claimants will have another opportunity to appeal this determination pursuant to paragraph 10(l)(iii) of the Hyatt Settlement Order. Copies of all notices will be contemporaneously mailed to class counsel.

    The new language added to the notice will state in bold type:

    Based on an agreement with class counsel, this is a new determination replacing the prior Hyatt determination made in your case. YOU HAVE A NEW OPPORTUNITY TO APPEAL THIS DETERMINATION, as explained below.

    In addition, new language will be added to the SSA-831 as follows: “This replaces the reassessment decision of __________________.”

13. The requirements contained above as numbers 5-11 shall be followed, as applicable, in all other Hyatt reassessments performed by the DDS after the date of this agreement.

14. In conjunction with the monitoring report sent to class counsel pursuant to paragraph 11 of the Hyatt Settlement Order, SSA shall report to class counsel in a manner that distinguishes from other Hyatt decisions, the results of all new reassessment determinations made pursuant to this agreement (i.e., those replacing those determined prior to May 21, 1996).

Our signatures below indicate our concurrence with this agreement.

Class Counsel also indicates concurrence with this agreement by signing below and returning this letter to the Office of the General Counsel.

HYATT DESK GUIDE
(To Be Used in HYATT Reassessment Cases Only)

ALL EXPLANATIONS MUST BE CLEARLY SET FORTH IN THE APPROPRIATE PLACE IN THE CASE RECORD.

1. Is there a medically determinable physical or mental impairment?

   (DI 24515.001.A.; 24515.061.A)

2. Can impairment(s) be reasonably expected to produce alleged symptoms?

   (DI 24515.061.B.)

3. Is impairment(s) severe? If NO, EXPLAIN.

4. Were symptoms considered in determining severity? If NO, EXPLAIN.

   (DI 24505.003.B.)

5. Were activities of daily living developed? If NO, EXPLAIN.

   (DI 24515.061.C.3.)

6. If alleged symptom-related limitations or restrictions are greater than would be expected on the basis of the physical impairment(s), was the possibility of a medically determinable mental impairment considered? If NO, EXPLAIN.

   (DI 24515.061.B.)

7. Does the severity of the claimant's medically determinable impairment(s) meet or equal any listing?

   (DI 24515.061.D.2.; DI 24515.061.D.3.), If NO, ASSESS RFC.

   (DI 24515.061.D.4.; DI 24515.062); Complete Section II (SYMPTOMS) and Section III (TREATING OR EXAMINING SOURCE STATEMENTS) of the SSA-4734-U8, as appropriate. (DI 24510.001, DI 24510.005, DI 24510.006, DI T24510.001, DI E24510.005)

8. Does a function-by-function assessment establish the claimant is able to perform past relevant work? If YES, DENY.

9. Considering RFC, age, education and work experience, can the claimant perform other work? If YES, DENY. If NO, ALLOW.

   (DI 25015.020.A.)

10. Do List Codes 251 or 252 apply? (DI 22510.011.D.)

11. Is decision rationale and PDN in file? (DI 24515.066.B.1., DI 24515.067.A.2., DI 26515.001ff, DI 26530.001ff.)

Attachment 18. Dismissal of Request for Hearing — Remand to DDS for New Reassessment of Settlement Subclass Denial

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

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 of Settlement negotiated by the parties and approved by the United States District Court for the Western District of North Carolina in the case of Hyatt v. Shalala, No. C-C-83-655-MU (W.D. North Carolina, March 21, 1994) (hereinafter “Hyatt Settlement Order”) and the November 4, 1996 signed agreement between the parties supplementing the Hyatt Settlement Order, the Hyatt III reassessment determination made prior to May 21, 1996 is void and a new reassessment determination must be made.

Accordingly, the request for hearing is hereby dismissed and the case remanded to the Disability Determination Section for a new reassessment determination.

Date:

cc: Name and address of representative, if any

Hyatt Attorney North Carolina Justice and Community Development Center 224 South Dawson Street P.O. Box 28068 Raleigh, NC 27611

Attachment 19. Route Slip to DDS Requesting a New Reassessment of Settlement Subclass Denial

REMARKS

Claimant: ________________________ SSN: _____________________________

We are forwarding the attached files to your office for a new reassessment determination of the claimant's Hyatt II settlement subclass denial. A Hyatt III reassessment determination was issued prior to May 21, 1996. Based on an agreement with class counsel, the prior reassessment determination is void and a new reassessment determination must be made.

Attachment

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

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

Attachment 20. Dismissal of Request for Hearing in Settlement Subclass Member Case after a New Reassessment at the DDS Level — No New and Material Evidence Submitted

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL
HYATT III REASSESSMENT CASE

This case is before the Administrative Law Judge pursuant to a request for hearing filed on __________________ with respect to the North Carolina Disability Determination Section reassessment of the prior denial of the application(s) filed on ________________.

In accordance with the Stipulation and Order of Settlement negotiated by the parties and approved by the United States District Court for the Western District of North Carolina in the case of Hyatt v. Shalala, No. C-C-83-655-MU (W.D. North Carolina, March 21, 1994) (hereinafter “Hyatt Settlement Order”) and the November 4, 1996 signed agreement between the parties supplementing the Hyatt Settlement Order, the reassessment determination made prior to May 21, 1996 is void and a new reassessment determination was made on _____________. Under the terms of the Hyatt Settlement Order and the signed agreement of November 4, 1996, the claimant may obtain a hearing on the new reassessment determination, if new and material evidence is submitted.

[The claimant has submitted no additional evidence.] OR [The undersigned has considered the following evidence submitted by the claimant: (list all documents submitted by the claimant to the DDS or ALJ, or obtained by the DDS, in connection with the Hyatt III reassessment, including evidence submitted in connection with the first and second DDS reassessments or the prior reassessment appeal, as well as other evidence proffered). (Provide a statement explaining why the evidence is not new and material with respect to the reassessment period.

For example: “The above-listed evidence cannot be considered 'new' within the meaning of the settlement order because it was considered by the North Carolina Disability Determination Section when it issued its (insert date of the DDS determination that conferred Hyatt III settlement subclass member status) determination.” OR “The above-listed evidence cannot be considered 'material' within the meaning of the settlement order because the evidence, by itself or when considered with all of the other available evidence, does not warrant a change in any finding pertinent to any matter at issue or a change in the ultimate decision.”)]

Accordingly, the claimant has not submitted new and material evidence. Therefore, the request for hearing is hereby dismissed and the determination dated (insert date of DDS determination that conferred Hyatt III settlement subclass member status) remains in effect.

Date:

Attachment 21. Notice Transmitting ALJ Order of Dismissal in Settlement Subclass Member Case after a New Reassessment at the DDS Level

NOTICE OF DISMISSAL
HYATT III REASSESSMENT CASE

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing. Please read this notice and the Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge will not review the denial of the new reassessment of your prior claim issued on ____________. The enclosed order explains why. There is no right to any further appeal, i.e., no right to Appeals Council or judicial review.

Information about Filing a New Application

If you think you are disabled now, you may file a new application. If you decide to file a new application, contact any 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 22. ALJ Reassessment Decision in Settlement Subclass Member Case after a New Reassessment at the DDS Level — New and Material Evidence Submitted - Claimant Not Disabled During Reassessment Period

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

HYATT III REASSESSMENT DECISION

This case is before the Administrative Law Judge pursuant to a request for hearing filed on __________________ with respect to the North Carolina Disability Determination Section reassessment of the prior denial of the application(s) filed on ________________.

In accordance with the Stipulation and Order of Settlement negotiated by the parties and approved by the United States District Court for the Western District of North Carolina in the case of Hyatt v. Shalala, No. C-C-83-655-MU (W.D. North Carolina, March 21, 1994), (hereinafter “Hyatt Settlement Order”) and the November 4, 1996 signed agreement between the parties supplementing the Hyatt Settlement Order, the reassessment determination made prior to May 21, 1996 is void and a new reassessment determination was made on _____________. Under the terms of the Hyatt Settlement Order and the signed agreement of November 4, 1996, the claimant may obtain a hearing on the new reassessment determination, if new and material evidence is submitted.

The claimant submitted new and material evidence and a hearing was held on __________. Pursuant to the Hyatt Settlement Order, the undersigned has considered the claimant's testimony, the new and material evidence, the evidence previously of record, and any evidence proffered during the hearing in this case. The undersigned decided this case in accordance with the provisions of §§ 201 through 233 and 1601 through 1635 of the Social Security Act, as amended, the rules, regulations, policies and procedures pertaining thereto, the national regulations for the evaluation of pain (20 CFR §§ 404.1529 and 416.929) and the settlement order.

The undersigned finds that the claimant was not under a disability within the meaning of the Social Security Act at any time between (enter the starting date of the period considered and a phrase indicating the significance of the date, e.g., the claimant's alleged onset date or the date of the claimant's application for Supplemental Security Income) and (enter the ending date and the significance of the ending date, e.g., the date of the DDS determination or the date that the insured status requirements were last met).

Accordingly, upon reassessment, the undersigned concludes that the determination dated (insert date of DDS new reassessment determination) is correct. (Insert explanation for conclusion.)

Date:

Attachment 23. Notice Transmitting ALJ Hyatt III Reassessment Decision in Settlement Subclass Member Case after a New Reassessment at the DDS Level — New and Material Evidence Submitted - Claimant Not Disabled During Reassessment Period

NOTICE OF HYATT III REASSESSMENT DECISION

Claimant's Name
Address
City, State Zip

Enclosed is the Administrative Law Judge's reassessment decision pursuant to the Hyatt court order. Please read this notice and the decision carefully.

What This Order Means

The Administrative Law Judge has reviewed the denial of your prior claim issued on ____________ and concluded that it is correct. The enclosed decision explains why. There is no right to any further appeal, i.e., no right to Appeals Council or judicial review.

Information about Filing a New Application

If you think you are disabled now, you may file a new application. If you decide to file a new application, contact any 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 24. October 21, 1999 Order of the United States District Court for the Western District of North Carolina

[Filed Charlotte N.C.]
[October 21, 1999]
[U.S. District Court]
[W. Dist of N.C.]

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

Civil Action No. C-C-83-655-MU

This lawsuit began in August 1983 and has been the subject of a protracted history of litigation. On three occasions, the Fourth Circuit Court of Appeals has upheld classwide relief ordered by the district court for three different groups of North Carolina disability claimants, in Hyatt I, 757 F.2d 1455 (1985), Hyatt II, 807 F.2d 376 (1986), and Hyatt III, 899 F.2d 329 (1990). On March 21, 1994, this court approved a comprehensive settlement order intended by the parties to implement Hyatt III relief and, it was hoped, to bring an end to the litigation.

Plaintiffs' two motions, filed June 28, 1996 and October 31, 1996, are presently before the court, seeking to enforce the March 21, 1994 Settlement Order implementing Hyatt III relief. The court has carefully reviewed the parties' extensive briefs and exhibits and heard oral argument on September 13, 1999. The material facts are not in dispute.

In a nutshell, the 1994 Settlement Order provides a new chance for North Carolina residents with complaints of disabling pain to prove entitlement to disability benefits based on Social Security and Supplemental Security Income (SSI) applications denied by the defendant Social Security Administration (SSA) between July 6, 1981 and Nov. 14, 1991 (Hyatt III claims). At issue in plaintiffs' motions are two of SSA's interpretations of the definition of Hyatt III class membership set out in paragraph 1 of the 1994 Settlement Order. SSA concedes it has applied the challenged interpretations to its class membership decisions but defends those interpretations as permissible.

According to the government's representations at the September 13, 1999 hearing, 77,717 persons have requested Hyatt III relief pursuant to the 1994 Settlement Order. 50,549 cases have received class membership decisions. Of those, SSA estimates that between 6500 and 17,500 individuals have been denied Hyatt III class membership pursuant to the disputed provisions of the Settlement Order. Almost five years after Hyatt III notices were mailed, over 27,000 persons who requested Hyatt III relief have yet to receive a class membership decision from SSA.

Paragraphs 9(a) and 9(f) of the 1994 Settlement Order provided that anyone who meets the class definition in paragraph 1 of the Settlement Order is eligible for class membership. The Settlement Order, paragraph 8(c), specifies that in cases of reasonable doubt, individuals requesting Hyatt III relief must be granted class membership. These provisions demonstrate the parties' intent that the Settlement Order be construed to narrowly limit the permissible grounds for SSA to deny Hyatt III class membership.

Plaintiffs' First Motion

Plaintiffs' June 28, 1996 motion challenges SSA's interpretation of subparagraph 1(b)(I) of the 1994 Settlement Order. Subparagraph 1(b)(I) concerns individuals who filed both a Hyatt III claim (an application for disability benefits denied by SSA between July 7, 1981 and November 14, 1991, which is otherwise eligible for Hyatt III relief) and a post-Hyatt claim (an application that received a decision on the merits issued on or after November 14, 1991, which is not eligible for Hyatt III relief). Subparagraph 1(b)(I) of the 1994 Settlement Order provides that Hyatt III class membership may be denied for “a (Hyatt III) claim which has been reasserted by a subsequent application or request for reopening covering the same period of time as the Hyatt III claim and as to which a final determination on the merits was issued on or after November 14, 1991.”

Plaintiffs' evidence presents several examples of individuals denied class membership pursuant to SSA's interpretation of subparagraph 1(b)(I). For example, in December 1996, Linda Pressley was involved in an automobile accident, which crushed her pelvis and right hip, a condition that involved complaints of disabling pain. In December 1997, she filed an application for SSI benefits, was denied by SSA, and did not appeal. This is her Hyatt III claim. In 1991 and 1992 she filed three more applications, which were denied by an administrative law judge (ALJ) in 1993. Because the ALJ denial was after November 14, 1991, the date SSA published final regulations on the evaluation of pain, the 1991 and 1992 claims are post-Hyatt claims not eligible for Hyatt III relief. Plaintiffs' complaint is that SSA also has denied Ms. Pressley Hyatt III class membership for her 1987 claim, thus denying her a new opportunity to establish entitlement to disability benefits based on that claim. Plaintiffs' Appendix A26, M.

In class membership determination instructions negotiated by the parties in November 1994 (Pla. App. C1), the parties agreed that class membership denial under subparagraph 1(b)(I) is permissible only if it is clear that a post-Hyatt decision “readjudicated the merits of the entire period covered by the Hyatt III claim. A denial of a request for reopening is not considered to be a readjudication.” Pla. App. F4 (emphasis in original). The issue in dispute is what is necessary to constitute a readjudication of the merits of the entire period.

SSA's position is that such a readjudication occurred if (1) a subsequent application alleged the same (or earlier) onset date of disability as the prior Hyatt III claim, and (2) medical evidence describing the claimant's condition as of the alleged onset date was “available” to the post-Hyatt adjudicator, and (3) the post Hyatt decision, “including supporting documentation,” indicates that disability was “considered” back to the alleged onset date. Pla. App. E4. For example, because Ms. Pressley alleged the same disability onset date, December 1996, in each of her applications, and because the ALJ in 1993 “evaluated” her condition during the entire alleged period, she was denied Hyatt III class membership. Pla. App. A26.

The court agrees with plaintiffs that SSA's interpretation of subparagraph 1(b)(I) conflicts with the language of the 1994 Settlement Order, the parties' agreed-upon class membership determination instructions, the Social Security Act and regulations, and due process. Indeed, plaintiffs have identified independent grounds that call for this court to grant the first motion.

Under Social Security regulations, the claim asserted by a disability application is a claim for benefits. 20 CFR Sections 404.610, 416.310. The period of time covered by that claim is the period of benefits which may be awarded on that application. 20 CFR Section 404.316(a). Under the statute, Social Security disability benefits can be awarded for no more than twelve months prior to the date of the application. SSI benefits cannot be awarded for any month earlier that the date of the application being adjudicted. 42 U.S.C. Sections 416(I)(2), 1382(c)(6). Linda Pressley's December 1987 claim for SSI thus sought benefits from the date of application forward. When she reapplied in January 1991 it was again for SSI benefits, so the period of benefits covered by her second claim began with the date of her second application, January 1991, even though she again alleged she had been disabled since December 1986. Pla. App. M.

An application for Social Security or SSI disability benefits need not prove permanent disability to be eligible for benefits. The claimant only needs to prove a disability that has lasted or is expected to last twelve months. 20 CFR Sections 404.1505(a), 416.905(a). Linda Pressley's December 1987 claim alleged she had been disabled for twelve months, since her December1996 accident. Pla. App. A26. But by 1993, when her 1991 and 1992 claims were denied, her fractures had healed, and her doctor opined that she could perform sedentary work. Pla. App. M2-3. When the ALJ denied Ms. Pressley's 1991 and 1992 claims in 1993, the issue before him was not whether she had been disabled for any twelve month period since December 1996, but rather whether she was disabled during the period from January 1991 through the date of his decision. That was the period covered and the period adjudicated by the post-Hyatt decision. Pla. App. M. Because the ALJ did not adjudicate the period covered by Pressley's 1987 claim in his 1993 decision, that claim remains eligible for Hyatt III relief.

SSA's position is that if the post-Hyatt adjudicator “considered” the entire alleged period of disability and had “available” to him medical evidence from the entire period, this is sufficient to constitute an adjudication of the entire period. Pla. App. E4. This court disagrees that consideration or discussion of the prior period is equivalent to an actual decision on the period of benefits sought in the first claim. Judges may discuss a past period as background or context for a decision about the claimant's current condition. In the Pressley case, the judge discussed the past period to support his conclusion that she had improved and was not currently disabled. Pla. App. M. Consideration or discussion of a prior period of alleged disability is not sufficient to be a reopening and readjudication of a prior claim. McGowen v. Harris, 666 F.2d 60, 67-68 (4th Cir. 1981); Hall v. Chater, 52 F.3d 518,521 (4th Cir. 1995).

SSA's published regulations governing administrative finality prohibit a readjudication of a period of benefits which already has been finally denied in a previous claim unless that prior claim is first reopened. 20 CFR Sections 404.905, 404.987, 416.1405, 416.1487. Thus, a post-Hyatt decision could not have been a “determination on the merits” of the period of benefits that was previously finally denied by SSA when it denied the Hyatt III claim unless the Hyatt III claim was reopened in the post-Hyatt decision. Both the 1994 Settlement Order (note 5) and the parties' agreed upon class membership instructions (Pla. App. F4), specify that if the post-Hyatt adjudicator decided not to reopen the Hyatt III claim, this was not a “determination on the merits” or “readjudication” of the period of benefits sought in the Hyatt III claim. Yet SSA contends a post-Hyatt decision could readjudicate the entire period of disability benefits without reopening the Hyatt III claim. Pla. App. A14, B7.

In the Pressley case, the first claim was denied in December 1987. Because Ms. Pressley did not appeal, that decision became final sixty days later, in February 1988. In the 1993 decision the ALJ did not reopen the December 1987 denial, so under SSA's administrative finality regulations and note 5 of the 1994 Settlement Order, the 1993 decision could not have readjudicated the period of disability denied in December 1987. Pla. App. A26, M.

SSA's regulations state that there is no right to appeal SSA's failure to reopen a previously finally denied claim. 20 CFR Sections 404.903(I), 416.1403(a)(5). Absent a reopening, there is no right to judicial review of a previous period of disability benefits that was finally denied in a prior claim. Califano v. Sanders, 430 U.S. 99 (1977). Without the right to administrative appeal or to judicial review as to the prior period of disability benefits, there cannot have been a readjudication of the period of benefits sought by the Hyatt III claim.

Finally, under principles of due process, a post-Hyatt decision could not have readjudicated the period of benefits previously finally denied by SSA in the Hyatt III claim unless SSA clearly communicated to the claimant in its post-Hyatt decision that it was doing so. SSA's own regulations require clear notice to the claimant of what is being adjudicated in the agency's decision. 20 CFR Section 404.904. The court cannot locate in SSA's post-Hyatt decisions, in the Pressley case or in the other case examples in evidence, any language informing the claimant that the period of benefits sought by her previous claim was being readjudicated. Indeed, SSA's position is that “SSA does not have to state that the decision is an adjudication” for it to be one. Def. Response at 25. As evidence that SSA readjudicated a prior claim, SSA relies on “supporting documentation” which is not part of the decision communicated to the claimant. Pla. App. E4, Def. Exh. G. Without clear notice to claimant of SSA's new adjudication of the prior period, there cannot have been a “determination on the merits” “covering the same period of time as the Hyatt III claim,” as required by subparagraph 1(b)(I).

Subparagraph 1(b)(I) is plainly limited to decisions issued after November 14, 1991. SSA nonetheless applies its interpretation of subparagraph 1(b)(I) to ALJ and Appeals Council decisions issued between August 6, 1990 and November 14, 1991. Pla. App. A11. SSA states that this practice is permitted by paragraph 10(k) of the 1994 Settlement Order. This court disagrees. Paragraph 10(k) excludes from Hyatt III relief only claims that were “finally denied” by an ALJ or the Appeals Council after August 6, 1990. For the same reasons discussed above, SSA may not use this provision to deny Hyatt III relief for previously denied claims which were not reopened and readjudicated after August 6, 1990.

SSA also extend its interpretation of subparagraph 1(b)(I) to case in which the claimant amended his alleged onset date in a post-Hyatt claim, if the original alleged onset date in the post-Hyatt claim was the same as in the earlier Hyatt claim. Pla. App. B12. Once again, SSA is claiming that the decision on the second claim “would cover the entire period of the first claim,” without reopening the Hyatt III claim in the post-Hyatt decision, and even though the Hyatt III claim was not being adjudicated at the time of the amendment of the onset date. Id. For the same reasons explained above, this practice is not permissible.

Plaintiffs' Second Motion

Plaintiffs' October 31, 1996 motion challenges SSA's position, first announced to class counsel in a letter dated July 15, 1996, that SSA would deny Hyatt III class membership to individuals who responded to a Hyatt II notice but who subsequently withdrew that request for Hyatt II relief or otherwise declined to pursue fully their rights under Hyatt II. Pla. App. B9. Hyatt III rights were created by the Fourth Circuit Court in 1986, 807 F.2d 376, and implemented by the district court's December 1987 order, 118 F.R.D. 572. Because SSA continued to use an illegal pain standard in performing Hyatt II reviews, individuals who were eligible for Hyatt reviews are not excluded from receiving Hyatt III relief. 1994 Settlement Order, paragraph 1, Exhibit A.

Subparagraph 1(b)(iii) of the 1994 Settlement Order requires individuals who received Hyatt II notices to “timely...respond” to the Hyatt II notice, but does not require any action beyond that initial response. This provision must be construed as written. The court therefore agrees with plaintiffs that SSA's class membership denials based on failure to pursue fully Hyatt II relief is not authorized by the 1994 Settlement Order. Indeed, SSA's practice conflicts with language in the Settlement Order providing that Hyatt III claimants need not have exhausted administrative remedies available to them prior to November 14, 1991. 1994 Settlement Order, note 3.

For the above reasons, the court hereby grants plaintiffs' motions and enters the following ORDER:

1. In making Hyatt III class membership decisions, SSA shall interpret paragraph 1 of the 1994 Settlement Order as follows:

   1. Subparagraph 1(b)(I) of the 1994 Settlement Order does not permit Hyatt III class membership denial for a Hyatt III claim (an application for disability benefits denied by SSA between July 7, 1981 and November 14, 1991 and otherwise eligible for Hyatt III relief) unless, in a post-Hyatt decision (a decision issued on or after November 14, 1991 by the N.C. Disability Determination Service or a decision issued by an administrative law judge or the Appeals Council on or after August 6, 1990), SSA reopened (pursuant to 20 C.F.R. 404.987 or 414.1487) the Hyatt III claim (as defined in paragraph 1(a) of the 1994 Settlement Order), and made a new decision on the merits of the Hyatt III claim, and clearly communicated to the claimant in its post-Hyatt decision that the Hyatt III claim had been readjudicated. In addition, SSA may not deny Hyatt III class membership on the ground that a post-Hyatt decision adjudicated a post-Hyatt claim (favorably or unfavorably) based upon an amended alleged onset date of disability, unless the Hyatt III claim was reopened and was in the process of being adjudicated at the time of the claimant's amendment of the alleged onset date.

   2. SSA may not deny Hyatt III class membership on the ground that an individual who timely (or untimely with good cause) responded to a Hyatt II notice subsequently withdrew that request for Hyatt II relief or otherwise failed to pursue administrative remedies available under Hyatt II.

2. SSA shall identify all individuals who were denied Hyatt III class membership prior to the implementation of this Order for whom the class denial may have been affected by one of the agency's interpretations of the 1994 Settlement Order enjoined in paragraph 1 above. SSA's prior class membership denial shall be void in all of the identified cases. SSA shall identify, in its reports to class counsel under paragraph 11(a) of the 1994 Settlement Order, the individuals whose prior class membership denials are void pursuant to this paragraph. A new class membership determination will be made by SSA in all such cases. All identified individuals, their appointed representatives, and class counsel shall receive written notice of any class membership denials made by SSA under this procedure. Those class membership denials shall be subject to review by class counsel and appeal pursuant to paragraph 8(d) of the 1994 Settlement Order. SSA shall identity, in its reports to class counsel under paragraph 11(a) of the 1994 Settlement Order, the new class membership decisions issued pursuant to this paragraph. Such reports shall be provided every sixty days until this paragraph has been fully implemented.

3. Immediately upon entry of this Order, SSA shall cease class membership denials based on the interpretations enjoined in this Order. SSA shall provide to class counsel within ninety days of the date of this Order detailed proposed instructions for the implementation of this Order. Class counsel shall have thirty days from receipt of the proposed instructions to object to SSA concerning any of the instructions. The court's approval is not needed if the parties reach agreement on the instructions. If the parties cannot in good faith resolve any dispute concerning the instructions, each party shall submit within 150 days of the date of this Order its proposed instructions to the court, along with a brief explanation of why the proposed instructions should be approved by the court.

4. To the extent practicable, at each stage of class membership review and merits adjudication, SSA shall accord priority to the cases entitled to relief under this Order over other Hyatt III implementation.

5. To the extent practicable, SSA shall promptly provide to class counsel other information reasonably requested for the purpose of monitoring SSA's compliance with this Order.

6. This court will retain jurisdiction to enforce this Order and the 1994 Hyatt III Settlement Order.

This the 21st day of October, 1999