I-5-4-42.Bozzi v. Shalala
Purpose | |
Background | |
Guiding Principles | |
Definition of Class | |
Determination of Class Membership and Preadjudication Actions | |
Processing and Adjudication | |
Case Coding | |
Inquiries | |
- Stipulation and Order Dated April 26, 1993; Approved and Filed by the Court on May 26, 1993 | |
- Bozzi COURT CASE FLAG/ALERT | |
- Route Slip or Case Flag for Screening | |
- Bozzi SCREENING SHEET | |
- Route Slip for Routing Class Member Alerts and Prior Claim File(s) to ODIO and PSC -- OHA No Longer Has Current Claim | |
- Bozzi Non-Class Membership Notice | |
- Route Slip for Non-Class Membership Cases | |
- Text for Notice of Revised Class Membership | |
- Bozzi Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Expired) | |
- Bozzi Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Has Not Expired) | |
- ALJ Dismissal Order to DDS | |
- Notice Transmitting ALJ Order of Dismissal | |
- Bozzi Class Member Flag for HO Use (DDS Readjudication) | |
- Appeals Council Remand to DDS |
ISSUED: June 29, 1994
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the parties' April 26, 1993 Stipulation and Order, approved and filed by the United States District Court for the Eastern District of Pennsylvania on May 26, 1993, in the Bozzi 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 Bozzi class members who now reside outside the Third Circuit (Delaware, New Jersey, Pennsylvania and the Virgin Islands) must have their cases processed in accordance with the requirements of the Stipulation and Order.
II. Background
On April 13, 1990, plaintiff filed a complaint challenging the Secretary's listings-only policy of evaluating disability with respect to the title II claims of widows, widowers and surviving divorced spouses.[1] On July 11, 1990, plaintiff filed an amended complaint seeking class status and relief. On February 14, 1991, the district court certified a class (see Part IV. below, for class definition).
Congress enacted the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (Pub. L. 101-508) on November 5, 1990. Section 5103 of OBRA 90 amended § 223 of the Social Security Act to repeal the special definition of disability applicable in widows' claims and conform the definition of disability for widows to that for all other title II claimants and title XVI adult claimants. The amendment became effective for entitlement to monthly benefits payable for January 1991, or later, based on applications filed or pending on January 1, 1991, or filed later.
On May 22, 1991, the Commissioner of Social Security published Social Security Ruling (SSR) 91-3p to provide a uniform, nationwide standard for the evaluation of disability in widows' claims for the pre-1991 period.
Because the merits of plaintiffs' challenge were resolved by the enactment of § 5103 of OBRA 90 and the publication of SSR 91-3p, the parties agreed to settle the remaining class relief issues. Following a public hearing, on May 26, 1993, the district court approved and filed the parties' April 26, 1993 Stipulation and Order setting forth the terms for the implementation of relief to class members (Attachment 1).
III. Guiding Principles
Under Bozzi, the Secretary will reopen and readjudicate the claims of those persons who: 1) respond to notice informing them of the opportunity for review; and 2) are determined to be class members after screening (see Part V. below). The Disability Review Section in the Mid-Atlantic Program Service Center (PSC) will screen for class membership, unless the potential class member claim or a subsequent (current) claim is pending or stored at OHA. Regardless of the state of the claimant's current residence, the Disability Determination Services (DDSs) in Delaware, New Jersey, Pennsylvania and the Virgin Islands will, in most cases, perform the agreed-upon readjudications, irrespective of the administrative level at which the claim was last decided.
EXCEPTIONS:
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. The Great Lakes Program Service Center has review jurisdiction if there is railroad involvement in the Bozzi claim.
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. Class members who receive adverse readjudication determinations will have full appeal rights, i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review.
Adjudicators must use the disability evaluation standards reflected in § 5103 of OBRA 90 (42 U.S.C. § 423(d)(2) (1992)) and SSR 91-3p for evaluating disability in Bozzi class member claims. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later.[2] (See HALLEX TI 5-3-15, issued February 11, 1991, for further instructions on processing disabled widows' claims under the provisions of § 5103 of OBRA 90.) The disability evaluation standard announced in SSR 91-3p must be used for the evaluation of disability and entitlement to benefits payable for the pre-1991 period.
IV. Definition of Class
The Bozzi class consists of all individuals residing in Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time of the most recent administrative determination or decision who:
filed for or received title II benefits as a disabled widow, widower or surviving divorced spouse; and
were issued a less than a fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, at the reconsideration level or above, between April 1, 1983, and May 5, 1990, inclusive; or
were issued determinations or decisions on two or more separate claims at any administrative level, between April 1, 1983 and December 31, 1990, inclusive; or
were issued a less than a fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, at any administrative level between May 6, 1990, and December 31, 1990, inclusive.
EXCEPTIONS:
A person is not a class member eligible for class relief if the individual
(1) filed a claim for disability benefits under titles II or XVI, either concurrently with, or after, all potential class member DWB claims, 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 entire timeframe at issue in the potential Bozzi claim(s); or
(2) filed a complaint in Federal district court based on an administrative denial or termination of any potential class member DWB claim, 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 was denied administratively on the ground that the claimant did not meet the disability standard set forth in § 5103 of OBRA 90 and had no claim for entitlement to DWB for any month(s) before January 1991; or
(4) had a claim for DWB denied on the ground that he or she did not satisfy the disability standard of SSR 91-3p; or
(5) the individual's only potential Bozzi claim was pending administratively on or after January 1, 1991; or
(6) at the time the class membership determination is made, has been determined to be a member of another class certified in another circuit, which has challenged in Federal court the Secretary's interpretation or application of the former 42 U.S.C. § 423(d)(2)(B) as it was in effect before January 1, 1991; or
(7) received a fully favorable decision on a subsequent DWB claim, with entitlement commencing at the earliest possible month of entitlement, as described in ¶ 15 of the Stipulation and Order.
V. Determination of Class Membership and Preadjudication Actions
A. Pre-Screening Actions - General
1.
Notification
SSA will send notices to all potential class members identified by computer run. Individuals have 120 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Bozzi Stipulation and Order. Notices returned as undeliverable will be mailed a second time; either to a different address, if SSA can obtain one, or to the last known address. SSA will provide potential class members who request readjudication with a dated, written confirmation of receipt.
Individuals who do not respond on a timely basis will be denied class membership, but will be advised of their opportunity to establish good cause. The good cause provisions of 20 CFR § 404.911 and SSR 91-5p will apply. However, in no circumstance will a potential class member who satisfies any of the aforementioned good cause provisions be entitled to readjudication unless he or she requests such readjudication within three years of the date on which SSA sends notice of potential class membership (see ¶ 6 of the Stipulation and Order).
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 Bozzi alert.
In most instances, ODIO will associate the computer-generated alerts with any ODIO-jurisdiction potential class member claim file(s) and forward them to the Mid-Atlantic PSC for retrieval of any additional claim files and screening (see Part III. above).
3.
Alerts Sent to OHA
If the Mid-Atlantic PSC determines that either a potential class member claim or a subsequent (current) claim is pending or stored at OHA, it will forward the alert to OHA, along with any prior claim file(s) not in OHA's possession, for screening, consolidation consideration and readjudication (if consolidated).
The Mid-Atlantic PSC will send all alerts potentially within OHA jurisdiction and related prior claim file(s) to the Office of Civil Actions (OCA), Division II, at the following address:
Office of Hearings and Appeals
Office of Civil Actions, Division II
One Skyline Tower, Suite 800
5107 Leesburg Pike
Falls Church, VA 22041-3200ATTN: Bozzi Screening Unit
4.
Folder Reconstruction
In general, ODIO or the Mid-Atlantic PSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential class member cases should be rare. However, if it becomes necessary for OHA to request reconstruction, the OHA component (if not OCA, Division II) will return the alert and any accompanying claim file(s) to OCA, Division II. OCA, Division II will direct any necessary reconstruction requests to the servicing FO with a covering memorandum requesting that the reconstructed folder be forwarded to OHA. OHA will send a copy of the covering memorandum to:
Litigation Staff
Office of the Deputy Commissioner
for Programs
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 21235ATTN: Bozzi Coordinator
5.
Class Membership Denials
The Mid-Atlantic PSC or OHA, as appropriate, will hold all non-class member claim files for 90 days pending review by class counsel. If an individual wishes to request SSA's further consideration of a class membership denial determination, he or she must do so through class counsel. Class counsel has 60 days from receipt of notice of the class membership denial to notify the Secretary's counsel of their disagreement. Upon timely request by class counsel (i.e., within 60 days of receipt of the notice of class membership denial) to review claim files, the Office of the Deputy Commissioner for Programs' Litigation Staff will coordinate with the Mid-Atlantic PSC or OHA to forward claim files to:
SSA District Office
801 Arch Street
2nd Floor
Philadelphia, PA 19107
Upon review of the files, class counsel will have an additional 30 days, if necessary, to contact the Office of the General Counsel (OGC) directly to resolve any remaining class membership disputes.
B. OHA Screening Actions
1.
Pre-Screening Actions
a.
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
Bozzi 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, alert
transfer or folder reconstruction, as necessary.
NOTE:
OCA Division II is responsible for controlling and reconciling the OHA
Bozzi class alert workload.
Bozzi is the largest of the surviving spouse
disability class actions with approximately 8,000 potential class members.
OCA should 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 the final
class membership reconciliation.
b.
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
II will associate the alert with the claim file(s) (or court transcript)
and screen for Bozzi class membership. See
Part V. B. 2. b. below for special screening instructions when a
civil action is involved.
a.
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 Bozzi 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, alert transfer or folder reconstruction, as necessary.
NOTE:
OCA Division II is responsible for controlling and reconciling the OHA Bozzi class alert workload. Bozzi is the largest of the surviving spouse disability class actions with approximately 8,000 potential class members. OCA should 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 the final class membership reconciliation.
b.
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 II will associate the alert with the claim file(s) (or court transcript) and screen for Bozzi class membership. See Part V. B. 2. b. below for special screening instructions when a civil action is involved.
2.
Screening
a.
General Instructions
The screening component will associate the alert, if any, and any prior
claim file(s) with the claim file(s) in its possession and then complete a
screening sheet (see Attachment 4) as follows:
NOTE:
If the claim pending at OHA is the only potential class member claim, then
the individual is not a class member (see Part IV. above).
Complete the screening sheet and follow the instructions in Part V.
B. 3. a. below for processing non-class member claims.
Consider all applications denied (including res judicata
denials/dismissals) during the Bozzi
timeframe;
NOTE:
Although not the “final decision of the Secretary,” an
Appeals Council denial of a request for review is the last action of the
Secretary, and the date of such a denial controls for class membership
screening purposes.
Follow all instructions on the screening sheet;
Sign and date the original screening sheet, place it in the claim file (on
the top right side of the file); and
Forward a copy of the screening sheet to:
Office of Hearings and Appeals
Division of Litigation Analysis and
Implementation
One Skyline Tower, Suite 702
5107 Leesburg
Pike
Falls Church, VA 22041-3200
ATTN: Bozzi Coordinator
The Division of Litigation Analysis and Implementation (DLAI) will forward
copies of the screening sheet to OCA Division II (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
II (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 a potential Bozzi class
member may have adjudicated the entire timeframe at issue in the
potential Bozzi claim. Pursuant to ¶ 2 of
the Stipulation and Order, these claims should be denied class membership
rather than dismissed under the doctrine of administrative
res judicata.
b.
Special OCA Screening Instructions if a Civil Action Is Involved
As noted in Part V. B. 1. b. above, OCA will screen for Bozzi
class membership when a civil action is involved. OCA's class membership
determination will dictate the appropriate post-screening action.
If the claim pending in court is the potential
Bozzi class member claim, OCA will immediately
notify OGC so that OGC can notify the claimant of the option to have the
case remanded for readjudication.
If the claim pending in court is a subsequent claim and was adjudicated in
accordance with the disability evaluation standards reflected in §
5103 of OBRA 90 and
SSR
91-3p and resolved all Bozzi issues, the
claimant is not a Bozzi class member. OCA staff
will follow the instructions in Part V. B. 3. a. below for
processing non-class member claims.
If the claim pending in court was adjudicated in accordance with the
disability evaluation standards reflected in § 5103 of OBRA 90 and
SSR
91-3p, but did not resolve all Bozzi issues,
e.g., there is a prior (inactive) claim and the current claim did not
adjudicate the entire period covered by the
Bozzi claim, OCA staff will forward the
Bozzi claim to the servicing DDS for separate
review. OCA will modify the case flag in Attachment 10 to indicate that
the pending court case does not resolve all
Bozzi issues and that the
Bozzi class member claim is being forwarded for
separate processing.
If the final administrative decision on the claim pending in court was not
adjudicated in accordance with the disability evaluation standards
reflected in § 5103 of OBRA 90 and
SSR
91-3p, or is legally insufficient for other reasons, OCA will
initiate voluntary remand proceedings and consolidate the claims.
a.
General Instructions
The screening component will associate the alert, if any, and any prior claim file(s) with the claim file(s) in its possession and then complete a screening sheet (see Attachment 4) as follows:
NOTE:
If the claim pending at OHA is the only potential class member claim, then the individual is not a class member (see Part IV. above). Complete the screening sheet and follow the instructions in Part V. B. 3. a. below for processing non-class member claims.
Consider all applications denied (including res judicata denials/dismissals) during the Bozzi timeframe;
NOTE:
Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.
Follow all instructions on the screening sheet;
Sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and
Forward a copy of the screening sheet to:
Office of Hearings and Appeals
Division of Litigation Analysis and
Implementation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3200The Division of Litigation Analysis and Implementation (DLAI) will forward copies of the screening sheet to OCA Division II (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 II (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 a potential Bozzi class member may have adjudicated the entire timeframe at issue in the potential Bozzi claim. Pursuant to ¶ 2 of the Stipulation and Order, these claims should be denied class membership rather than dismissed under the doctrine of administrative res judicata.
b.
Special OCA Screening Instructions if a Civil Action Is Involved
As noted in Part V. B. 1. b. above, OCA will screen for Bozzi class membership when a civil action is involved. OCA's class membership determination will dictate the appropriate post-screening action.
If the claim pending in court is the potential Bozzi class member claim, OCA will immediately notify OGC so that OGC can notify the claimant of the option to have the case remanded for readjudication.
If the claim pending in court is a subsequent claim and was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p and resolved all Bozzi issues, the claimant is not a Bozzi class member. OCA staff will follow the instructions in Part V. B. 3. a. below for processing non-class member claims.
If the claim pending in court was adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, but did not resolve all Bozzi issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Bozzi claim, OCA staff will forward the Bozzi claim to the servicing DDS for separate review. OCA will modify the case flag in Attachment 10 to indicate that the pending court case does not resolve all Bozzi issues and that the Bozzi class member claim is being forwarded for separate processing.
If the final administrative decision on the claim pending in court was not adjudicated in accordance with the disability evaluation standards reflected in § 5103 of OBRA 90 and SSR 91-3p, or is legally insufficient for other reasons, OCA will initiate voluntary remand proceedings and consolidate the claims.
3.
Post-Screening Actions
a.
Non-Class Member Cases
If the screening component determines that the individual is not a class
member, the component will:
notify the individual, representative, if any, and class counsel of
non-class membership using Attachment 6 (modified as necessary to fit the
circumstances and posture of the case when there is a current claim);
NOTE:
Include the address and telephone number of the servicing Social Security
field office at the top of Attachment 6.
retain a copy of the notice in the claim file;
send a copy of the notice to:
Bozzi Counsel
Community Legal
Services, Inc.
1226 South Broad Street
Philadelphia, PA
19146-3119
retain the claim file(s) for 90 days pending a possible class membership
dispute; if the screening component is not OCA, Division II, and the
file(s) is not needed for adjudication, forward the file(s) for storage to
OCA, Division II at the address in Part V. A. 3. above;
if class counsel makes a timely request to review the claim file (i.e.,
within 60 days from receipt of the notice of class membership denial),
DLAI will notify the OHA component housing the non-class member claim file
to send it to the SSA District Office using the pre-addressed route slip
in Attachment 7 (see Part V. A. 5. above) (upon review of the
files, class counsel will have an additional 30 days, if necessary, to
contact OGC directly to resolve any class membership issues);
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 class membership
determination (Attachment 8) to the claimant and representative, if any,
and to the class 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 II (if OCA is not the screening component) and to
Litigation Staff at SSA Central Office); and
if after 90 days no review is requested, return the file(s) to the
appropriate location.
An individual who wishes to appeal a determination of non-class membership
may do so only through class counsel, as explained in the notice
(Attachment 6).
b.
Cases Determined to be Class Members
If the screening component determines that the individual is a class
member, it will proceed with processing and adjudication in accordance
with the instructions in Part VI. below.
a.
Non-Class Member Cases
If the screening component determines that the individual is not a class member, the component will:
notify the individual, representative, if any, and class counsel of non-class membership using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);
NOTE:
Include the address and telephone number of the servicing Social Security field office at the top of Attachment 6.
retain a copy of the notice in the claim file;
send a copy of the notice to:
Bozzi Counsel
Community Legal Services, Inc.
1226 South Broad Street
Philadelphia, PA 19146-3119retain the claim file(s) for 90 days pending a possible class membership dispute; if the screening component is not OCA, Division II, and the file(s) is not needed for adjudication, forward the file(s) for storage to OCA, Division II at the address in Part V. A. 3. above;
if class counsel makes a timely request to review the claim file (i.e., within 60 days from receipt of the notice of class membership denial), DLAI will notify the OHA component housing the non-class member claim file to send it to the SSA District Office using the pre-addressed route slip in Attachment 7 (see Part V. A. 5. above) (upon review of the files, class counsel will have an additional 30 days, if necessary, to contact OGC directly to resolve any class membership issues);
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 class membership determination (Attachment 8) to the claimant and representative, if any, and to the class 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 II (if OCA is not the screening component) and to Litigation Staff at SSA Central Office); and
if after 90 days no review is requested, return the file(s) to the appropriate location.
An individual who wishes to appeal a determination of non-class membership may do so only through class counsel, as explained in the notice (Attachment 6).
b.
Cases Determined to be Class Members
If the screening component determines that the individual is a class member, it will proceed with processing and adjudication in accordance with the instructions in Part VI. below.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
As previously indicated, the DDSs servicing Third Circuit residents will conduct the first Bozzi review, except for cases consolidated with claims pending or held at the OHA level (see Part VI. E. below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights, i.e., ALJ hearing, Appeals Council and judicial review.
B. Payment Reinstatement for Cessation Cases
If the Bozzi claim involves a cessation, the class member may elect to have disability benefits reinstated pending readjudication. In general, the servicing Social Security Field Office (FO) has responsibility for:
contacting the class member who may have reinstatement rights;
completing the election forms;
verifying non-disability factors; and
making a good faith effort to quickly reinstate benefits after retrieval or reconstruction of the Bozzi claim file.
NOTE:
For OHA jurisdiction cases, the screening component will
(1) identify Bozzi claims involving cessations;
(2) immediately notify the servicing FOs by telephone of the pending Bozzi claims that may be eligible for benefit reinstatement and document the file accordingly; and
(3) provide the servicing FO with identifying information and any other information requested.
C. OHA Adjudication of Class Member Claims
The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Bozzi 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 Bozzi class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.
NOTE:
Implementation of the Bozzi order must never delay the processing 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 Bozzi Stipulation and Order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a reopening. The claim of each class member must be fully reopened to determine whether the claimant was disabled at any time from the onset date alleged in the Bozzi claim through the present (or through the date the claimant last met the prescribed period requirements, if earlier).
Pursuant to ¶ 15 of the Bozzi Stipulation and Order, adjudicators will not consider disability for any period in which a class member has already received disabled widows benefits. Pursuant to ¶ 16, the administrative record in Bozzi claims will be developed in accordance with the regulations and policies governing the development of disability claims. SSA will reconstruct missing files to the best of its ability. Class members may submit new evidence.
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 class member claims. The disability evaluation standard enacted by § 5103 of OBRA 90 is effective for entitlement to monthly benefits payable for January 1991 or later. (See HALLEX TI 5-3-15, issued February 11, 1991, for further instructions on processing disabled widows' claims under the provisions of § 5103 of OBRA 90.) The disability evaluation standard announced in SSR 91-3p must be used for the evaluation of disability and entitlement to benefits payable for the pre-1991 period.
3.
Class Member Is Deceased
If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.
D. Claim at OHA but No Current Action Pending
If a claim file (either a class member or a subsequent claim file) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OCA will associate the alert with the file and screen for class membership. (See Part V. B. 3., above, for non-class member processing instructions.)
If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OCA will attach a Bozzi class member flag (see Attachment 9) to the outside of the file and forward the claim file(s) to the servicing DDS for review of the Bozzi class member claim.
If less than 120 days have elapsed, OCA will attach a Bozzi class member flag (see Attachment 10) to the outside of the file to ensure the case is routed to the servicing 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.
E. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims (Consolidation Procedures)
1.
General
If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Bozzi class member claims with the current claim at the level at which the current claim is pending.
2.
Current Claim Pending in the Hearing Office
a.
Hearing Has Been Scheduled or Held and All Remand Cases
Except as noted below, if a Bozzi class member
has a request for hearing pending on a current claim, and the ALJ has
either scheduled or held a hearing, and in all remand cases, the ALJ will
consolidate the Bozzi case with the appeal on
the current claim.
EXCEPTIONS:
The ALJ will not consolidate the claims if
the current claim and the Bozzi claim do not have
any issues in common; or
a court remand contains a court-ordered time limit, and it will not be
possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow Part VI. E. 2. c. below. If
the claims are not consolidated, follow Part VI. E. 2. d.
below.
b.
Hearing Not Scheduled
Except as noted below, if a Bozzi class member
has an initial request for hearing pending on a current claim and the HO
has not yet scheduled a hearing, the ALJ will not consolidate the
Bozzi claim and the current claim. Instead, the
ALJ will dismiss the request for hearing on the current claim without
prejudice and forward both the Bozzi claim and
the current claim to the DDS for further action (see Part VI. E. 2.
d. below).
EXCEPTION:
If the hearing has not been scheduled because the claimant waived the
right to an in-person hearing, and the ALJ is prepared to issue a fully
favorable decision on the current claim, and this decision would also be
fully favorable with respect to all the issues raised by the application
that makes the claimant a Bozzi class member, the
ALJ will consolidate the claims.
If the claims are consolidated, follow Part VI. E. 2. c. below. If
the claims are not consolidated, follow Part VI. E. 2. d.
below.
c.
Actions if Claims Consolidated
When consolidating a Bozzi 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 Bozzi
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 Bozzi 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 Bozzi claim raises an additional
issue(s), unless the ALJ is prepared to issue a fully favorable decision
with respect to the Bozzi claim; and
issue one decision that addresses both the issues raised by the current
request for hearing and those raised by the Bozzi
claim (the ALJ's decision will clearly indicate that the ALJ considered
the Bozzi claim pursuant to the
Bozzi Stipulation and Order).
d.
Action if Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the
Bozzi claim(s) 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 Bozzi claim and the current claim
to the servicing DDS for consolidation and further action.
If the ALJ decides not to consolidate the Bozzi
claim(s) 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 Bozzi claim for DDS review using
Attachment 13; immediately route it to the servicing DDS for adjudication;
and 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.
a.
Hearing Has Been Scheduled or Held and All Remand Cases
Except as noted below, if a Bozzi class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Bozzi case with the appeal on the current claim.
EXCEPTIONS:
The ALJ will not consolidate the claims if
the current claim and the Bozzi claim do not have any issues in common; or
a court remand contains a court-ordered time limit, and it will not be possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow Part VI. E. 2. c. below. If the claims are not consolidated, follow Part VI. E. 2. d. below.
b.
Hearing Not Scheduled
Except as noted below, if a Bozzi class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Bozzi claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim without prejudice and forward both the Bozzi claim and the current claim to the DDS for further action (see Part VI. E. 2. d. below).
EXCEPTION:
If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant a Bozzi class member, the ALJ will consolidate the claims.
If the claims are consolidated, follow Part VI. E. 2. c. below. If the claims are not consolidated, follow Part VI. E. 2. d. below.
c.
Actions if Claims Consolidated
When consolidating a Bozzi 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 Bozzi 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 Bozzi 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 Bozzi claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Bozzi claim; and
issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Bozzi claim (the ALJ's decision will clearly indicate that the ALJ considered the Bozzi claim pursuant to the Bozzi Stipulation and Order).
d.
Action if Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the Bozzi claim(s) 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 Bozzi claim and the current claim to the servicing DDS for consolidation and further action.
If the ALJ decides not to consolidate the Bozzi claim(s) 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 Bozzi claim for DDS review using Attachment 13; immediately route it to the servicing DDS for adjudication; and 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 Has Issue in Common with the
Bozzi Claim
The action the Appeals Council takes on the current claim determines the disposition of the Bozzi 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 Bozzi claim.
a.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial
Decision on the Current Claim
If, after consideration of the merits, the Appeals Council would otherwise dismiss, deny the request for review or issue an unfavorable decision, OAO personnel will combine the claims and forward them to the appropriate DDS for readjudication through the date of the ALJ's decision on the current claim or, if the ALJ had dismissed, through the date of reconsideration of the current claim (see sample remand language at Attachment 14).
b.
Appeals Council Intends to Issue a Favorable Decision on the Current
Claim -- No Bozzi Issue(s) Will Remain
Unresolved.
If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Bozzi class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Bozzi claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Bozzi claim pursuant to the Bozzi Stipulation and Order.
c.
Appeals Council Intends To Issue a Favorable Decision on the Current
Claim -- Bozzi 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 Bozzi 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 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: "Bozzi court case review needed -- following effectuation forward the attached combined folders to the appropriate DDS."
d.
Appeals Council Intends to Remand the Current Claim to an Administrative
Law Judge.
If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action unless the exception below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Bozzi claim with the action on the current claim pursuant to the instructions in Part VI. E. 2. a. above.
EXCEPTION:
The Appeals Council will not direct the ALJ to consolidate the claim if 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 a court-ordered time limit makes consolidation impractical, OAO will forward the Bozzi class member claim to the appropriate DDS for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Bozzi class member claim for separate processing.
4.
Current Claim Pending at the Appeals Council Does Not Have Issue in
Common with the Bozzi Claim
OAO will forward the Bozzi class member claim to the appropriate DDS for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Bozzi class member claim for separate processing.
VII. Case Coding
HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI. E. above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” If the conditions described in Part VI. E. 2. b. above apply, the ALJ should dismiss the request for hearing on the current claim, and HO personnel should enter “OTDI” in the “DSP” field.
To identify class member cases in HOTS, HO personnel will code “BZ” 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.