I-5-4-52.Dixon v. Shalala

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Inquiries
Attachment 1 - Dixon v. Shalala Implementation Order; Issued by the United States District Court for the Southern District of New York on December 22, 1993.
Attachment 2 - Dixon Court Case Flag/Alert
Attachment 3 - Route Slip or Case Flag for Screening
Attachment 4 - Dixon Screening Sheet
Attachment 5 - Route Slip for Routing Class Members Alert (and Prior Claim File(s) -- OHA No Longer Has Current Claim)
Attachment 6 - Non-Class Member/Member Not Entitled to Relief Notice
Attachment 7 - Route Slip for Non-Class Member/Member Not Entitled to Relief Cases
Attachment 8 - Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.”
Attachment 9 - Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period expired)
Attachment 10 - Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)
Attachment 11 - ALJ Dismissal to DDS
Attachment 12 - Notice Transmitting ALJ Order of Dismissal
Attachment 13 - Dixon Class Member Flag for HO Use (DDS Readjudication)

ISSUED: November 30, 1995; REVISED: November 18, 1996


I. Purpose


This Temporary Instruction (TI) sets forth procedures for implementing the relief ordered in the Dixon v. Shalala class action involving the “no severe impairment” issue. The United States District Court for the Southern District of New York issued the relief order on December 22, 1993. The United States Court of Appeals for the Second Circuit upheld the district court order, in its entirety, on April 19, 1995.


Adjudicators throughout the country must be familiar with this TI because Dixon class members who now reside outside of New York must have their cases processed in accordance with the requirements of the implementation order.


II. Background


On July 25, 1984, the United States District Court for the Southern District of New York conditionally certified a statewide class consisting of all disability claimants whose benefits had been, or would in the future be, denied or terminated pursuant to the severity regulations (20 CFR §§ 404.1520(c), 404.1521, 416.920(c) and 416.921) or Social Security Ruling (SSR) 82-55, on or after July 20, 1983. The court also granted a preliminary injunction, prohibiting the Secretary from denying or terminating disability benefits on the basis of the severity regulations, and directed the Secretary to identify, notify and reconsider the claims of those class members whose claims had been rejected or whose benefits had been terminated. On March 7, 1986, the United States Court of Appeals for the Second Circuit affirmed the district court's order granting a preliminary injunction and the Secretary petitioned the United States Supreme Court for a writ of certiorari.


On June 8, 1987, in Bowen v. Yuckert, 482 U.S. 137 (1987), the Supreme Court held that the severity regulation was facially valid and an appropriate de minimis screening device for disability determinations. The Court did not consider directly whether the regulation had been misapplied by the Secretary. However, in a concurring opinion, Justice O'Connor noted that “[e]mpirical evidence cited by the respondent and the amici [supported] the inference that the regulation [had] been used in a manner inconsistent with the statutory definition of disability.” Id. at 157.


On June 16, 1987, following its decision in Yuckert, the Supreme Court granted certiorari in Dixon, vacated the judgment of the court of appeals and remanded the case for further consideration in light of Yuckert. Thereafter, on July 15, 1987, the Second Circuit vacated the district court's preliminary injunction and remanded the case for further proceedings in light of Yuckert.


On September 1, 1987, the Secretary filed a motion for summary judgment and informed plaintiffs that, as of October 5, 1987, use of the severity regulations would be reinstated in New York State disability adjudications. In response, plaintiffs urged the district court to reinstate its injunction.


On September 17, 1987, the district court stayed all discovery with respect to prospective claims but allowed discovery with respect to plaintiffs' claims for retrospective relief. The court found that plaintiffs had made a sufficient threshold showing under Bowen v. City of New York, 476 U.S. 467 (1986), to justify further discovery as to whether the Secretary followed a clandestine policy which could support a finding that the statute of limitations should be tolled. On November 5, 1987, the district court denied plaintiffs' motion to reinstate the preliminary injunction, but held that plaintiffs still had standing because several of the cases of the named plaintiffs had yet to be readjudicated and all the requirements for class certification were still present.


On June 29, 1989, after the Secretary renewed his motion for summary judgment, the district court granted plaintiffs' motion for further discovery. For purposes of deciding, under 42 U.S.C. § 405(g), whether the 60-day statute of limitations could be tolled, the court held that discovery would establish whether the Secretary's published policies were contrary to his actual practices and whether the Secretary had engaged in systematic misapplication. Although the court denied the Secretary's motion for summary judgment, it stated that the Secretary could resubmit the motion following completion of discovery. Pursuant to this order, plaintiffs deposed several SSA administrators who were instrumental in the development of the Agency's severity policy and the severity regulations. Subsequently, the parties agreed to a trial on a stipulated record and filed a joint partial stipulation of facts and a joint appendix.


On May 8, 1992, the district court issued an opinion and order regarding the merits of the case. In the Secretary's favor, the court: 1) upheld the facial validity of SSR 82-55 and Program Operations Manual System (POMS) DI § 2102; 2) rejected plaintiffs' claim that allegations of pain were not fully considered at step two of the sequential evaluation; and 3) followed the Third Circuit's lead in Bailey v. Sullivan, 885 F.2d 52 (3d Cir. 1989), and held that SSR 82-55 and POMS DI § 2102 were interpretative instructions and, therefore, SSA's issuance of them did not violate the notice and comment provisions of the Administrative Procedure Act.


Adverse to the Secretary, however, the court found that: 1) SSA adjudicators engaged in a pattern and practice of misapplication of the severity regulation fostered by SSR 82-55 and POMS DI § 2102; 2) SSA adjudicators engaged in a pattern and practice of misapplication of the severity regulation even before the issuance of POMS DI § 2102 in April 1981, i.e., since June 1976; and 3) SSA's policy of refusing to consider whether different non-severe impairments, when considered in combination, result in a significant restriction of any basic work activities, violated the Social Security Act.


Following its 1992 merits opinion and order, the court requested that the parties present separate versions of proposed implementation orders. At a September 1992 conference, the court adopted the Secretary's proposal to apply a set of presumptions concerning disability in class member cases where the claim file could not be located. During the ensuing months, the parties resolved all major implementation issues except the scope of readjudication and the necessity for folder reconstruction. On December 22, 1993, the court adopted plaintiffs' proposed implementation order with respect to ordering the Secretary to reconstruct the claims files of any class member whose file had been destroyed, and to whom the presumptions did not apply, and to provide full reopening-type readjudications to all qualified class members (Attachment 1). On April 1, 1995, the Second Circuit affirmed the district court's May 8, 1992 merits decision and December 22, 1993 implementation order, in their entirety.


On October 27, 1995, plaintiffs sent a letter to the district court alleging that SSA was refusing to comply with its regular evidence development responsibilities in readjudicating Dixon claims. In response, SSA asserted that, according to the Second Circuit's April 19, 1995 order, its obligation to assist in the development of medical evidence in connection with the “reconstruction” provision would be satisfied by requesting material evidence from sources specifically identified by class members and that it was not required to reconstruct the names of doctors or medical centers that the claimant visited, but was now unable to recall. Furthermore, SSA believed that if it wrote to a source requesting a report and no response or evidence was received, no further action by the Agency was necessary to obtain the evidence.


On December 13, 1995, the district court resolved the issue primarily in favor of plaintiffs and ruled that SSA must follow its regular evidence development procedures. However, the court also ruled that SSA is not required to provide consultative examinations if its requests for evidence are unsuccessful.


III. Guiding Principles


Under Dixon, the Commissioner will readjudicate the claims of those persons who: 1) respond to individual notice informing them of the opportunity for readjudication; and 2) are determined to be class members eligible for relief after screening (see Part V. below). Regardless of the claimant's current state of residence, the Office of Disability and International Operations (ODIO) and/or the Northeastern Program Service Center (NEPSC) will, in most cases, screen for class membership and the New York Office of Disability Determinations (ODD) will perform the agreed upon readjudications, regardless of the administrative level at which the class member claim was last decided.


EXCEPTION:

The Disability Determination Service (DDS) servicing the claimant's current address will perform the readjudication if a face-to-face review is appropriate, i.e., cessation or terminal illness (TERI) cases.


If the potential class member claim or a subsequent claim is pending or stored in OHA when class membership becomes an issue, OHA will perform the screening and readjudications under the limited circumstances described in Part V. B. below.


Cases readjudicated by the ODD will be adjudicated at the reconsideration level regardless of the final level at which the case 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).


Dixon does not require any change in OHA's current adjudicatory policies or practices because the severity regulations (20 CFR §§ 404.1520(c), 404.1521, 416.920(c) and 416.921) and SSR 85-28 remain the proper standard for adjudicating claims at step two of the sequential evaluation.


IV. Definition of Class


Except as noted below, for purposes of implementing the court's December 22, 1993 order, the Dixon class consists of all individuals:


  • whose title II and/or title XVI disability claim was finally denied or ceased by the New York ODD or by SSA between June 1, 1976, and July 19, 1983, inclusive; and

    
    

  • whose denial or cessation was based on a finding that they did not have a severe impairment, or that their impairment(s) was only slight; and

    
    

  • who resided in the State of New York at the time of the final decision by the Secretary to deny or cease their disability benefits.

    
    

EXCEPTION:

A person is not a class member entitled to relief if


  1. the individual appealed the administrative denial or termination which the individual received on the potential Dixon claim and a final Agency determination/decision was made after July 19, 1983; or

    
    

  2. the last administrative denial or termination which the individual received on the potential Dixon claim was issued on or before July 19, 1983, and that determination/decision was based on a finding other than “no severe impairment,” i.e., denied at a step other than step two of the sequential evaluation; or

    
    

  3. a Federal court affirmed the Agency's denial or termination of the potential Dixon claim; or

    
    

  4. the individual had a subsequent claim decided after July 19, 1983, and the subsequent claim covered the entire period of disability at issue in the potential Dixon claim; or

    
    

  5. the potential Dixon claim involved a denial or termination which was based on a non-medical factor (e.g., a denial based on substantial gainful activity).

    
    

V. Determination of Class Membership and Preadjudication Actions


A. Pre-Screening Actions - General


1. Notification


Between August 17 and 21, 1995, SSA sent notices to all potential class members identified by computer run. Individuals will have 90 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Dixon implementation order.


SSA will also display English and Spanish posters (no smaller than 17“ by 22”) in all SSA field offices in the State of New York for a six-month period, beginning within seven (7) days of the date of the initial mailing of notices. At plaintiffs' request, SSA will place posters at a reasonable number of additional locations and SSA will make all reasonable efforts to distribute the posters to the requested locations. Potential class members who do not receive an individual notice will have until August 18, 1998, to request that SSA readjudicate their claims under the terms of the Dixon implementation order (i.e., within 3 years of the 70th day after the issuance of the court mandate).


If mailed notices are returned as undeliverable, Litigation Staff will attempt to obtain updated addresses through computer matches with any compatible New York State Department of Social Services or New York City Human Resources Administration data system or any other New York State or municipal human services agency data system containing public assistance, food stamp and/or other relevant records. After the computer matches are completed, Litigation Staff shall provide class counsel with a list of potential class members whose notices were returned as undeliverable and for whom no updated addresses were obtained. Class counsel will then have 90 days after receipt of such names to furnish current addresses for such individuals. Thereafter, Litigation Staff will mail a second notice to all potential class members for whom updated addresses are obtained.


ODIO and/or NEPSC will send untimely responses to the servicing Social Security field office (FO) (i.e., district office or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards set forth in 20 CFR §§ 404.911 and 416.1411 and SSR 91-5p. If good cause is established, the field office will forward the claim for screening.


2. Alert and Folder Retrieval Process


All reply forms and undeliverable notices will be returned to ODIO where they will be entered into the Civil Action Tracking System (CATS). CATS will generate folder alerts for all reply forms. See Attachment 2 for a sample Dixon alert.


In most instances, ODIO and/or NEPSC will associate the computer-generated alerts with any Dixon claim file(s) that it has within its jurisdiction or that it retrieves from another location. For Dixon claim file(s) which can be located, ODIO and/or NEPSC (or the component with jurisdiction) will screen for class membership or entitlement to relief. ODIO and/or NEPSC will then forward the screened-in Dixon claims to the FO for updating. After updating the file, the FO will send the file to the NY ODD, or to the appropriate DDS, for readjudication.


For Dixon claims which are declared lost or destroyed, ODIO and/or NEPSC will attempt to screen the claim(s) solely on the basis of information shown on the queries (FACT, SSIRD, etc.). If the lost or destroyed claim(s) is screened in on the basis of the queries alone, ODIO and/or NEPSC will attempt to apply the presumptions outlined in Part VI. E. If the lost or destroyed claim(s) cannot be readjudicated on the basis of the presumptions, ODIO and/or NEPSC will initiate claim file reconstruction through the FO. After reconstructing the file, the FO will send the file to the NY ODD, or to the appropriate DDS, for readjudication.


3. Alerts Sent to OHA


If ODIO and/or NEPSC 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).


If the claim is located in a hearing office (HO), ODIO and/or NEPSC will forward the alert directly to the HO for processing. If the claim, is located in OHA headquarters, ODIO and/or NEPSC will send the alert to the Office of Appellate Operations (OAO) at the following address:

 

Office of Hearings and Appeals
Office of Appellate Operations
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: OAO Class Action Coordinator

NOTE:

The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters for association with pending or stored claims. The OAO Class Action Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final class membership reconciliation.


4. Folder Reconstruction


In general, ODIO and/or NEPSC will coordinate any necessary reconstruction of prior claim files. When developing evidence in connection with the reconstruction of a lost or destroyed Dixon claim(s) file, SSA is not required to reconstruct the names of doctors or medical centers which the claimant visited when the claimant is now unable to recall that information. SSA will contact only those sources identified by the claimant. If SSA writes to the source requesting a report and no response or evidence is received, SSA will make one follow-up request. If the evidence received from the treating source(s) or other medical sources is insufficient for adjudication, SSA will recontact the source for additional information.


However, SSA is not required to obtain a consultative examination pursuant to 20 C.F.R. § 404.1512(f) and 416.912(f) if the request for medical evidence is unsuccessful.


OHA requests for reconstruction of potential class member cases should be rare. However, prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the particular claim would not confer class membership. If it becomes necessary for OHA to request reconstruction, the OHA component (the HO or the OAO branch) will forward the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) to the servicing FO with a covering memorandum requesting that folder reconstruction be initiated and that the reconstructed file be sent to OHA after file reconstruction action is completed. The OAO branch will route requests through the OAO Class Action Coordinator. HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:

 

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

ATTN: Dixon Coordinator

HO personnel and the OAO branch will identify in the reconstruction request the OHA location of any existing claim file(s) being retained for adjudication purposes, and the date(s) of the claim(s) involved.


B. OHA Actions


1. Pre-Screening Actions


a. Current Claim Pending or Stored at OHA

As provided in Part V. A. 3. above, if there is a current claim pending or stored at OHA, the OAO Class Action Coordinator will receive the alert and related Dixon claim file(s). The OAO Class Action Coordinator will determine which OHA component has the current claim and forward for screening as follows:


  • If the current claim is in an HO, the Coordinator will use Attachment 3 to forward the alert and prior claim file(s) to the HO for screening. (Part V. B. 2. a. below provides instructions to HOs regarding the action to take if they receive an alert package from the OAO Class Action Coordinator but no longer have a current claim pending.)

    
    

  • If the current claim is pending before the Appeals Council or is located in an OAO branch mini-docket or in an OAO Docket and Files Branch (DFB), the Coordinator will use Attachment 3 to forward the alert and prior claim file(s) to the appropriate OAO branch for screening. (Part V. B. 2. a. below provides instructions to the OAO branches regarding the action to take if they receive an alert package from the OAO Class Action Coordinator but no longer have a current claim pending.)

    
    

If the Coordinator (or his designee) is unable to locate the current claim file within OHA, the Coordinator (or his designee) will broaden the claim file search and arrange for alert transfer or claim file reconstruction, as necessary.


NOTE:

Do not screen pending cases in newly implemented class actions unless an alert has been received. Claimants sometimes allege class membership before their cases have been alerted. The presence of an alert is evidence that the claimant has responded to notice of potential class membership and that his or her case is ready for review. However, if class action implementation is nearly complete and a claimant with a non-alerted pending case should allege class membership, contact the Dixon coordinator in the Division of Litigation Analysis and Implementation (DLAI) for assistance in determining the claimant's status. DLAI's address is

 

Office of Hearings and Appeals
Division of Litigation Analysis
  and Implementation
Office of Policy, Planning and
  Evaluation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3255

ATTN: Dixon Coordinator

The DLAI Dixon Coordinator's telephone number is (703) 305-0328.


b. Current Claim Pending in Court

If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, the Coordinator will forward the alert and any accompanying claim file(s) to the appropriate OAO Court Case Preparation and Review Branch (CCPRB) for screening using Attachment 3. 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 and any prior claim file(s) with the claim file(s) in its possession and complete the screening sheet (see Attachment 4) as follows:


NOTE:

If the claim pending at OHA is the only potential Dixon claim, then the individual is not entitled to relief under Dixon (see Part IV. above). Complete the screening sheet and follow the instructions in Part V. B. 3. a. below for processing non-Dixon claims.


  • Consider all applications denied (including res judicata denials/dismissals) during the Dixon 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 and screening sheet instructions;

    
    

  • Sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and

    
    

  • If the screening component is an OHA Headquarters component, forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V. A. 3. above. (The Coordinator will forward the copy of the screening sheet to DLAI after recording the relevant information in its class action data base.) If the screening component is a HO, forward a copy of the screening sheet directly to DLAI. (DLAI will retain a copy of each screening sheet and forward a copy to Litigation Staff.)

    
    

NOTE:

Final determinations or decisions made after July 19, 1983, on a subsequent claim filed by a potential Dixon class member may have adjudicated the entire time period at issue in the Dixon claim. If that is the case, the adjudication on the subsequent claim will provide a basis for denying class relief in connection with the Dixon claim.


If the HO receives an alert only, or an alert associated with a prior claim file(s), and the HO no longer has the current claim file, it will send the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V. A. 3. above) and advise the Coordinator of the action taken on the current claim and its destination. The Coordinator will determine the current claim file location and, if it is being stored in OHA Headquarters, will forward the alert and any accompanying prior claim file(s) to the responsible OAO Branch for screening using Attachment 3. If the file(s) is no longer in OHA, the Coordinator will use Attachment 5 to send the alert and any accompanying prior claim file(s) to the non-OHA location of the current claim and request that the file(s) be forwarded to ODIO and/or NEPSC for screening.


If an OAO branch receives an alert only, or an alert associated with a prior claim file(s), and the branch no longer has the current claim file (and it is not located in mini-dockets or an OAO DFB), it will determine the location of the current claim file. If the current claim is located within OHA, the OAO branch will use Attachment 3 to forward the alert and any accompanying prior claim file(s) to the current OHA location. If the files are no longer in OHA, the OAO branch will use Attachment 5 to forward the alert and any accompanying prior claim file(s) to the non-OHA location of the current claim and request that the file(s) be forwarded to ODIO and/or NEPSC for screening. The OAO branch will advise the OAO Class Action Coordinator of its actions.


b. Special OAO Screening Instructions if a Civil Action Is Involved

As noted in Part V. B. 1. b. above, the CCPRB will screen for Dixon class membership when a civil action is involved. The CCPRB's class membership determination will dictate the appropriate post-screening action.


  • If the claim pending in court was adjudicated in accordance with SSR 85-28 and resolved all Dixon issues, the claimant is not a Dixon class member entitled to relief. The CCPRB 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 SSR 85-28, but did not resolve all Dixon issue(s), e.g., there is a prior (inactive) Dixon claim and the claim pending in court did not adjudicate the entire period covered by the Dixon claim, and the claimant elects to have the case remanded to the Commissioner for further administrative proceedings (instead of continuing in court), the CCPRB will forward the Dixon claim to the New York ODD for separate review. The CCPRB will modify the case flag in Attachment 9 to indicate that the pending court case does not resolve all Dixon issues and that the Dixon class member claim is being forwarded for separate processing. The CCPRB will notify the Class Action Coordinator of this action.

    
    

  • If the final administrative decision on the claim pending in court was not adjudicated in accordance with SSR 85-28 or is legally insufficient for other reasons, the CCPRB 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, and representative, if any, of non-class membership using Attachment 6 (modified as necessary to fit the facts 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:

     

    Donna H. Lee
    The Legal Aid Society
    841 Broadway, 3rd Floor
    New York, NY 10003

  • ODIO and/or NEPSC or OHA, as appropriate, will hold for 95 days all claim files of individuals to whom SSA sends notice of non-class membership or ineligibility for relief. If an individual wishes to request SSA's further consideration of the non-class membership determination, he or she may contact SSA in writing within 90 days from the date of the receipt of the non-class membership determination. An individual may also request assistance through class counsel. Copies of each request for review submitted directly by the claimant will be sent by SSA to class counsel promptly after it is received by SSA. Upon timely request by class counsel (i.e., within 60 days from the date SSA forwards the individual's request for review), Litigation Staff will coordinate with ODIO and/or NEPSC or OHA to forward the claim files, using the pre-addressed route slip in Attachment 7, to:

     

    SSA, Disability Program Branch
    26 Federal Plaza, Room 40-112
    New York, NY 10278

NOTE:

The files may also be sent to another mutually acceptable SSA location.


  • After SSA notifies class counsel of the availability of the claim file or other available administrative records, class counsel has 90 days from the date of notification to inspect the file or other records. (The 90 day time period may be extended upon consent of both parties.) If at the end of the period for inspecting the files, class counsel has not reviewed the requested file, it will be assumed that review of the file is not desired. Class counsel must attempt to resolve disputes concerning an individual's class membership denial by negotiating with counsel for SSA at the Office of the General Counsel, Baltimore, Maryland. If, after negotiation, SSA still adheres to a determination that an individual is not a class member, SSA will send class counsel and the individual a written confirmation of SSA's denial. After receipt of a confirmation notice, class counsel or the individual will have 60 days to submit the matter to the United States District Court for the Southern District of New York for resolution.

    
    

NOTE:

Photocopy any material contained in the Dixon file that is relevant to the current claim and associate it with the current claim before shipping the Dixon file for class counsel's review.


  • if SSA, through OGC, resolves the dispute in the claimant's favor: 1) the original screening component or Litigation Staff will prepare a revised screening sheet; 2) OHA jurisdiction cases will proceed in accordance with Part VI. below; 3) the rescreening component will notify DLAI of the revised determination by forwarding a copy of the revised screening sheet to DLAI; and 4) DLAI will correlate with the OAO Class Action Coordinator as necessary. If the individual appealed the dispute of his or her class membership determination through class counsel, OGC will advise class counsel of the reversal of class membership determination, and class counsel will notify the claimant. However, if the individual appealed directly to SSA, OGC will notify the claimant in writing of the reversal of class membership determination and send a copy of the correspondence to class counsel.

    
    

NOTE:

See the “NOTE” in the screening sheet instructions for Item 12 regarding the action that needs to be taken if full retroactive benefits were not paid on a subsequent claim.


b. Cases Determined To Be Class Members Entitled to Relief

If the screening component determines that the individual is a class member entitled to relief, it will proceed with processing and adjudication in accordance with the instructions in Part VI. below.


VI. Processing and Adjudication


A. Presumptions


Due to the particular circumstances of the Dixon case, the implementation order provides for the following presumptions to be used in the readjudication of class members claim(s) when the file(s) cannot be located.


1. Presumptions of Disability


The class member will be found disabled if he/she received a favorable decision awarding benefits for any subsequent period of disability; and


  • the medical evidence relevant to that decision demon- strates that, given the class member's condition at the time of the favorable decision (e.g., the impairment(s) at the time of the favorable determination reasonably related to that alleged in the original Dixon claim), it is reasonable to presume that he/she was disabled as of the date of the prior administrative determination which resulted in class membership (i.e., the earliest Dixon claim); or

    
    

  • absent evidence to the contrary that suggests the class member was not disabled, a class member was 55 years of age or older at the time of the administrative determination which resulted in class membership.

    
    

If the presumptions are not overcome by evidence to the contrary and the class member will be found disabled as a result, he/she will be found to be disabled from the earliest date based on the application which results in class membership up to the date of onset established by the subsequent allowance regardless of whether the subsequent allowance is continuing, ceased or was a closed period.


NOTE:

In title II claims, the onset established is that alleged on the earliest Dixon claim. In title XVI claims, disability is established as of the filing date of the earliest Dixon claim.


2. Presumptions of Nondisability


Absent evidence to the contrary, there is a rebuttable presumption that a class member will be found not disabled if:


  • he/she received a denial or termination of benefits for any reason after July 19, 1983, or for a reason other than a step two denial, i.e., no severe impairment(s) before July 19, 1983, on a disability claim subsequent to the one that forms the basis of class membership; or

    
    

  • employment records available to SSA (e.g., earnings record or SEQY) indicate: 1) a period of employment longer than 6 months following the denial or termination that forms the basis of class membership; and 2) earnings in that period which are in excess of the minimum monthly amounts prescribed in 20 C.F.R. §§ 404.1574 and 416.974; or

    
    

  • he/she had a claim reviewed pursuant to Stieberger v. Sullivan which was denied.

    
    

NOTE:

When a decision is made that a class member is not disabled based on the presumptions, the class member must be informed of his or her right to submit evidence to rebut the presumptions of non-disability. Existing evidence of record must be considered in the light most favorable to the class member. If the presumptions cannot be applied, reconstruction is required.


B. Cases Reviewed by the DDS


When the Dixon claim(s) is located or reconstructed, the New York ODD will conduct the Dixon review, except for cases consolidated at the OHA level (see Part VI. D. below) and cases in which a face-to-face review is appropriate (see the exception in Part III above). The ODD determination will be a reconsideration determination, regardless of the administrative level at which the class member's claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).


Except as otherwise noted in this instruction, ALJs should process and adjudicate requests for hearing on Dixon DDS review cases in the same manner as for any other case.


C. OHA Adjudication of Class Member Claims


The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Dixon readjudication and to ODD readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and Headquarters will process Dixon class member cases according to all other current practices and procedures, including coding, scheduling, developing evidence, routing, etc.


1. Type of Review and Period To Be Considered


  1. Pursuant to the Dixon implementation 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 reopening shall be a de novo reevaluation of the class member's eligibility for benefits based on all evidence in his or her file including newly obtained evidence. The claim of each class member must be reopened to determine whether the claimant was disabled at any time from the earliest alleged onset date of the Dixon claim(s) through the date of readjudication (or, in title II cases in which the claimant is no longer insured, through the date last insured). If the individual had a subsequent claim, the Dixon claim(s) will not be developed and reopened past the alleged onset date or established onset date, as appropriate, of the subsequent claim. When readjudicating Dixon claims, SSA will only consider subsequent impairment(s) that can reasonably be said to be related to the impairment(s) which provided the basis for the determination in the Dixon claim(s).

    
    

  2. In cases where the claim file(s) cannot be located, adjudicators are not required to consider any subsequent period(s) during which the claimant had an impairment(s) unrelated to the disability alleged in the Dixon claim(s). Also, in cases where the claim file(s) cannot be located, if the evidence establishes that disability began only at some point after the administrative determination(s)/decision(s) that forms the basis for Dixon class membership, the class member must file a new application to establish eligibility. If the presumptions do not apply, the case must be reconstructed and reopened. A new application is not necessary.

    
    

2. Step Two of the Sequential Evaluation


Dixon does not require any change in OHA's current adjudicatory policies or practices with respect to step two of the sequential evaluation. Effective with the enactment of the 1984 Amendments to the Social Security Act, OHA's adjudicators have considered the combined effect of individual “not severe” impairments in evaluating disability claims at step two. ALJs and the Appeals Council will evaluate Dixon claims in accordance with the Social Security Act, the sequential evaluation process set forth in 20 CFR §§ 404.1520 - 1524, 416.920 - 924, including the current severity regulations, 20 CFR §§ 404.1520(c), 416.920(c), SSR 85-28, and other policies and procedures of SSA.


The Acting Associate Commissioner's memorandum, dated February 21, 1991 (Attachment 8), regarding the proper standard for adjudicating claims at step two, remains in effect.


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 the claim file (either a class member claim or a subsequent claim) 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, OAO will associate the alert with the file and screen for class membership (the OAO Class Action Coordinator will coordinate the necessary actions as explained in Part V.). (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, OAO will attach a Dixon class member flag (see Attachment 9) to the outside of the file and send the claim file(s) to the New York ODD (or to the appropriate DDS if the exception in Part III above applies) for review of the Dixon class member claim.

    
    

  • If less than 120 days have elapsed, OAO will attach a Dixon class member flag (see Attachment 10) to the outside of the file to ensure that the case is routed to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) after expiration of the retention period. Pending expiration of the retention period, the OAO branch will also:

    
    

    • return unappealed ALJ decisions and dismissals to DFB, OAO; and

      
      

    • return unappealed Appeals Council denials to the appropriate OAO mini-docket.

      
      

The respective OAO components will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the New York ODD (or the appropriate DDS if the exception in Part III. above applies) 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 Dixon 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 Scheduled or Held and all Remand Cases

Except as noted below, if a Dixon 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 Dixon case with the appeal on the current claim.


EXCEPTIONS:

The ALJ will not consolidate the claims if


  • the current claim and the Dixon 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 Dixon 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 Dixon claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Dixon claim and the current claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) 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 issues raised by the application that makes the claimant a Dixon 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. Action if Claims Are Consolidated

If the ALJ decides to consolidate the current claim with the Dixon claim(s), the HO will:


  • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Dixon claim raises an additional issue(s) not raised by the current claim;

    
    

  • offer the claimant a supplemental hearing if the ALJ already has held a hearing and the Dixon claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Dixon claim; and

    
    

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

    
    

d. Action if Claims Are Not Consolidated

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


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

    
    

  • send both the Dixon claim and the current claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for ODD consolidation and further action.

    
    

If the ALJ decides not to consolidate the Dixon claim with the current claim because: 1) the claims do not have any issues in common, or 2) there is a court-ordered time limit, the ALJ will:


  • flag the Dixon claim for ODD review using Attachment 13; immediately route it to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for readjudication; 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


The action the Appeals Council takes on the current claim dictates the disposition of the Dixon claim. Therefore, OAO must keep the claim folders together until the Appeals Council completes its action on the subsequent claim. The following sections identify the possible Appeals Council actions on the current claim and the appropriate corresponding action on the Dixon claim.


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

This situation will usually arise when the current claim duplicates the Dixon review claim, i.e., the current claim raises the issue of disability and covers the entire period adjudicated in the Dixon claim, and the current claim has been adjudicated in accordance with the provisions of SSR 85-28 and the current severity regulations, i.e., 20 CFR §§ 404.1520(c), 404.1521, 404.1523, 416.920(c), 416.921 and/or 416.923. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action.


The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Dixon claim.


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

This situation will usually arise when the current claim does not duplicate the Dixon claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Dixon claim, i.e., the Dixon claim raises the issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim.


When action on the current claim is completed, OAO staff will attach a Dixon case flag (Attachment 9) to the Dixon claim, forward the Dixon claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for adjudication, and retain a copy of Attachment 9 in the current claim file. OAO will modify Attachment 9 to indicate that the Appeals Council action on the current claim does not resolve all Dixon issues and that the Dixon class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.


c. Appeals Council Intends To Issue a Favorable Decision on the Current Claim -- No Dixon 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 Dixon class member, the Appeals Council will proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Dixon claim, and issue a decision that adjudicates both applications.


The Appeals Council's decision will indicate clearly that the Appeals Council considered the Dixon claim pursuant to the Dixon implementation order.


d. Appeals Council Intends To Issue a Favorable Decision on the Current Claim -- Dixon 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 Dixon 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 New York ODD (or to the appropriate DDS if the exception in Part III. above applies) 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: "Dixon court case review needed -- following effectuation forward the attached combined files to:


New York Office of Disability Determinations [address]


(or to the appropriate DDS if the exception in Part III. above applies)."


e. Appeals Council Intends To Remand the Current Claim to an ALJ

If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Dixon claim with the action on the current claim pursuant to the instructions in Part VI. E. 2. a. above.


EXCEPTIONS:

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


  • the current claim and the Dixon claim do not have any issues in common; or

    
    

  • a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

    
    

If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Dixon class member claim to the New York ODD (or to the appropriate DDS if the exception in Part III. above applies) for separate review. The case flag in Attachment 9 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the Dixon 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. 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. c. above apply, the ALJ should dismiss the request for rehearing 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 “DI” 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. Headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0708.


Attachment 1. - Dixon v. Shalala Implementation Order; Issued by the United States District Court for the Southern District of New York on December 22, 1993.


  [DATE FILED 12/22/1993]
UNITED STATES DISTRICT COURT    
SOUTHERN DISTRICT OF NEW YORK    
----------------------------- ----------------------------- -----X
DAVID DIXON, et al., x  
     

Plaintiffs,

x  
     

-and-

x  
     
THE STATE OF NEW YORK, x 83 Civ. 7001 (WCC)
     

Plaintiff - Intervenors

x ORDER
     

-v-

x  
     
DONNA SHALALA, x  
SECRETARY OF HEALTH AND    
HUMAN SERVICES, x  
     

Defendant.

x  
----------------------------- ----------------------------- -----X

WHEREAS, pursuant to a decision dated June 22, 1984, this Court issued an Order on July 25, 1984, conditionally certifying as a class.


All persons in the State of New York who have filed or will file applications for disability benefits under Title II and/or Title XVI of the Social Security Act, and whose benefits have been or will be denied pursuant to the policies set forth in 20 C.F.R. §§ 404.1520 (c) and .1521, 416.920 (c) and .921 (1982), and Social Security Ruling 82-55; and all recipients of such benefits who have made or will make claims for continued benefits, and whose benefits have been or will be terminated pursuant to the same policies. The plaintiff class does not include, at this time, any such persons who received decisions of the Secretary on or before July 19, 1983 and failed to file a complaint in federal district court or to appeal to the next level of administrative review within 60 days after the date of the receipt of such decision.


See Dixon v. Heckler, 589 F Supp 1494, 1512 (S.D.N.T.),


IT IS HEREBY ORDERED, ADJUDGED AND DECREED that;


  1. The class previously certified by this Court shall be revised to include individuals otherwise eligible for class membership who were denied benefits, or whose benefits were terminated between June 1, 1976 and July 19, 1983, inclusive.

    
    

  2. (a) The class of individuals entitled to relief under this order is limited to:

    
    

    all persons who, between June 1, 1976 and July 19, 1983 inclusive, were issued a final denial or termination decision by the New York Office of Disability Determinations (ODD) or the Social Security Administration concerning their application for new or continued disability insurance benefits or Supplemental Security Income payments based upon a finding that they did not have severe impairments, or that their impairments were only slight and who resided in the State of New York at the time of such decision.

    
    

    (b) Those class members who were entitled to relief under this Court's July 25, 1984 preliminary injunction Order may still obtain relief pursuant to that Order only.

    
    

  3. The Social Security Administration (“SSA”) shall, by means of its data processing systems, immediately commence identification of the names, Social Security numbers and last known addresses of all identifiable potential class members. SSA shall make good faith efforts to complete such identification within 120 days of the date of entry of this Order. Class counsel will be provided with a computer-generated list of the names of all potential class members following such identification.

    
    

  4. Within 180 days of the date of entry of this Order, SSA will issue instructions to all SSA and ODD adjudicators for screening and readjudicating the claims of class members who request readjudication and will simultaneously provide a copy of all instructions and directives to class counsel.

    
    

  5. Upon completion of the identification procedure described in paragraph 3, and within 30 days of the issuance of instructions described in paragraph 4, SSA shall send a class member notice in English and Spanish (Attachment “A”) by first class mail to each potential class member so identified, at his or her last known address. This notice will advise the potential class member of possible entitlement to a readjudication of his or her disability claim and will further state that the potential class member must return the enclosed pre-addressed postage-paid form within 90 days from the date of receipt of the notice in order to receive consideration for relief. The notice also will inform the potential class member that SSA's regulations for determining good cause for missing a deadline to request review are applicable to a failure to request readjudication within the 90-day period. 20 C.F.R. §§ 404.911, 416.1411. The time in which a potential class member must respond to the notice shall begin to run upon receipt of the notice by the potential class member, which is presumed to be five (5) days after the date of the notice unless the potential class member shows that it was not received within that time. 20 C.F.R. §§ 404.901, 416.1401. A potential class member shall be considered to have requested readjudication if he or she timely responds to the class member notice or, if no notice is received, within three years of the entry of this Order makes an oral or written request concerning class membership to an SSA field office.

    
    

  6. A potential class member will receive a written acknowledgment from SSA after he or she returns the response form as set forth in paragraph 5 above or otherwise requests readjudication.

    
    

  7. When individual notices are returned as undeliverable SSA shall use its best efforts to effect, subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a (Privacy Act), computer matches with any compatible New York State Department of Social Services or New York City Human Resources Administration data system or any other New York State or municipal human services agency data system containing public assistance, food stamp and/or other relevant records, solely for the purpose of obtaining the most recent addresses for potential class members. Such match shall be made for the sole purpose of sending a notice to potential class members. After the computer matches are completed, SSA shall provide class counsel with a list of potential class members whose notices were returned as undeliverable, and for whom no updated addresses were obtained. Class counsel shall have 90 days after receipt of such names to furnish current addresses for such individuals. Upon timely receipt of such addresses from class counsel, SSA shall mail a second copy of the class member notice (Attachment “A”) to those potential class members for whom updated addresses were obtained.

    
    

  8. SSA shall prepare a poster notice, the text of which is subject to the approval of the Court (Attachment “B”). The posters shall be no smaller than 17“ x 22” and shall be reproduced in both English and Spanish. SSA shall use its best efforts to display copies of these posters in all SSA field offices in the State of New York for a six-month period, beginning within seven (7) days of the date of the initial mailing of notices as provided in paragraph 5. Plaintiffs may request that SSA place posters at a reasonable number of additional locations and SSA will make all reasonable efforts to distribute the posters to the requested locations.

    
    

  9. Individuals who request readjudication pursuant to paragraph 5 of this Order will be screened for class membership by SSA, which will base its determination on claims files or other available records. When SSA determines that an individual is not a class member, a class membership denial notice shall be mailed to that individual with a copy to class counsel. The class membership denial notice shall state the reason for the denial of class membership. The notice also will provide that any individual denied class membership will have 90 days from receipt of the notice of class membership denial in which to seek review of the denial by contacting SSA in writing. The notice will explain that the individual may contact class counsel for assistance in resolving disputes concerning class membership. A copy of each request for review will be sent by SSA to class counsel promptly after it is received by SSA. If class counsel wishes to inspect the administrative record upon which a denial is based counsel must request inspection within 60 days of the date SSA forwards the individual's request for review. Counsel will have 90 days from the date that they are notified of the availability of the claims file or other available administrative records in which to conduct such inspection at a mutually agreeable office of SSA in New York State. This time period may be extended upon consent. These records may not be removed from the custody of SSA. If at the end of the period for inspecting a file, class counsel has not reviewed the requested file, it shall be assumed that review of the file is not desired. Class counsel will attempt to resolve disputes concerning an individual's class membership by negotiation with counsel for SSA at the Office of General Counsel, Social Security Division, Baltimore, Maryland. If, after negotiation, SSA adheres to its determination that an individual is not a class member, SSA shall send class counsel and the individual a written confirmation of SSA's denial. Class counsel or the individual may then, by duly noticed motion filed within 60 days of receipt of the confirmation notice, submit the matter to the Court for resolution. If no such motion is filed within 60 days, the class membership denial shall be final and not subject to further review.

    
    

  10. A class member's request for readjudication shall constitute a request for readjudication of any claims subject to readjudication under this Order.

    
    

  11. The claims of all individuals found to be class members shall be readjudicated at the reconsideration stage of the administrative process. 20 C.F.R. §§ 404.907-913, 416.1407-1413c. SSA will reopen the claims of class members whose claims files relating to the period resulting in class membership have been located, and will readjudicate these claims from the earliest potential entitlement date based on the application which resulted in class membership through the date of readjudication. SSA shall also consider all subsequent periods, except that disability for any period which was the subject of a disability determination rendered after July 25, 1984 need not be considered.

    
    

    1. If a class member's claims file cannot be located or no longer exists, SSA shall attempt to apply the presumptions provided in Paragraph 13 of this Order.

      
      

    2. If a class member's claims file cannot be found and the presumptions provided in Paragraph 13 are inapplicable, the class member will be required to submit evidence pertaining to his or her condition during the period to be readjudicated. SSA shall also use its regular policies on evidence development to assist the class member in obtaining evidence relevant to the readjudication of his or her claim. SSA will readjudicate the claim from the class member's earliest potential entitlement (based upon the application which resulted in class membership) through the date of the last administrative denial or termination. SSA shall also consider all subsequent periods, except that disability for any period which was the subject of a disability determination rendered after July 25, 1984 need not be considered.

      
      

    3. SSA shall evaluate class members' claims in accordance with the Social Security Act, the sequential evaluation process set forth at 20 C.F.R. §§ 404.1520-1524, 416.920-924 (1992), including SSA's present severity regulations, 20 C.F.R. §§ 404.1520 (c), 416.920 (c), Social Security Ruling 85-28 and the policies and procedures of SSA. All class members will receive a notice informing them of the readjudication decision. Class members shall retain all rights to administrative and judicial review of readjudication decisions made pursuant to this Order.

      
      

  12. SSA will not review the claims of any class member who:

    
    

    1. appealed the administrative determination resulting in class membership which:

      
      

      1. culminated in a subsequent administrative determination made after July 19, 1983; or,

        
        

      2. culminated in a subsequent administrative determination made on or before July 19, 1983, if the determination was not based upon a finding of a not severe impairment; or,

        
        

      3. was affirmed by a Federal court at any time; or,

        
        

    2. was issued an administrative or judicial determination on a subsequent application which covered the entire period at issue in the administrative decision which resulted in class membership.

      
      

  13. SSA shall make reasonable efforts to retrieve available, relevant administrative records for purposes of readjudicating the claims of class members. However, if records cannot be located for any class member because they have not been retained pursuant to published file retention schedules, 44 U.S.C. Ch. 21, 29, 31 and 36 C.F.R. Ch. XII, or SSA is unable to locate them, the class member will be found disabled if he or she received a favorable decision awarding benefits for any subsequent period of disability, as defined in 42 U.S.C. §§ 416 (i) (2) and 1382 (c), and 1) medical evidence relevant to that decision demonstrates that, given the class member's condition at the time of the favorable decision, it is reasonable to presume that he or she was disabled as of the date of the prior administrative determination which resulted in class membership, or 2) absent evidence to the contrary, a class member was 55 years of age or older at the time of the administrative determination which resulted in class membership. If these presumptions are not overcome by evidence to the contrary and the class member is found to be disabled as a result, he or she will be found disabled from the earliest possible entitlement date based on the alleged onset date in the application, which resulted in class membership.

    
    

    Absent evidence to the contrary, there will be a rebuttable presumption that a class member is not disabled if:

    
    

    1. he or she received a denial or termination of benefits on a disability claim subsequent to the one that forms the basis of class membership; or,

      
      

    2. employment records available to SSA indicate:

      
      

      1. a period of employment longer than six months following the

        
        
        denial or termination that forms the basis of class membership; and,
        
        

      2. earnings in excess of the minimum monthly amounts prescribed in 20 C.F.R. §§ 404.1574, 416.974; or,

        
        

    3. he or she had a claim reviewed pursuant to Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y. June 22, 1992) which was denied.

      
      

      Class members will be informed of their right to submit evidence to rebut presumptions of nondisability. SSA shall consider the existing evidence of record in the light most favorable to class members.

      
      

  14. SSA may consolidate the claim of a class member to be readjudicated pursuant to paragraph 11 of this Order with any subsequent disability claims filed by the class member which are pending at any administrative level and review them simultaneously.

    
    

  15. Class members having individual actions pending in Federal court challenging the administrative decision resulting in class membership may elect either to have their claims remanded to SSA for readjudication pursuant to paragraph 11 of this Order or to have the action proceed in Federal court pursuant to, and subject to, the limitations contained in 42 U.S.C. § 405 (g). Class members opting to continue their actions in Federal court waive all rights under this Order. Nothing in this Order shall be construed to avoid or preclude the res judicata effect of a final court decision where a class member decides to proceed with his or her individual action in Federal court. Nothing in this Order shall be construed as precluding members of the class from obtaining greater relief on alternative grounds.

    
    

  16. For class members eligible for readjudication under paragraph 11 who are deceased, SSA shall readjudicate the claim or claims upon the timely request for readjudication by an individual who is potentially eligible to receive an underpayment pursuant to 42 U.S.C. §§ 404 (d), 1383 (b); 20 C.F.R. §§ 404.503 (b), or 416.542 (b), including any legal representative of an estate.

    
    

    1. Within 60 days after SSA determines that an individual is a Dixon class member, SSA shall generate and transfer to the appropriate SSA Field Office (“FO”) computer-generated alerts pertaining to the claims of all individuals, up to 10,000, who have requested readjudications. SSA shall continue such transfers until alerts pertaining to all individuals who have requested readjudications have been transferred. Nothing in this subparagraph shall preclude SSA from transferring more than 10,000 alerts within each interval.

      
      

    2. As alerts are transferred to FO's, Dixon readjudications will be integrated into the claims determination workload of the New York ODD and will be completed within a reasonable time and with no less priority than other claims.

      
      

  17. The claims of individuals determined to be eligible for disability benefits will be paid from:

    
    

    1. the sixth month following the date of established onset of disability, or 12 months prior to the date of filing, whichever is later, in cases where benefits under title II were denied;

      
      

    2. the date of application, in cases where benefits under title XVI were denied; or

      
      

    3. the date of the termination of benefits.

      
      

  18. SSA will monitor the implementation of this Order and will provide to class counsel, on a quarterly basis, reports containing the following information:

    
    

    1. the number of persons notified initially of potential class membership;

      
      

    2. the number of persons who responded to the notice;

      
      

    3. the number of persons responding who were determined not to be class members;

      
      

    4. the number of persons responding determined to be class members;

      
      

    5. the number of class members found eligible for disability benefits upon readjudication by ODD;

      
      

    6. the number of class members whose applications were denied upon readjudication by ODD.

      
      

      Once SSA has substantially completed the readjudications required by this Order and placed the information identified at (a) through (f) of this paragraph into the tracking system, SSA shall so advise class counsel by providing them with a final report. Upon agreement between the parties, this reporting requirement may be altered or amended.

      
      

  19. Subject to reasonable limitations, class counsel may, upon written request, inspect a reasonable sampling of individual claims files and/or administrative records and review a sampling of decisions made by SSA or ODD in connection with the readjudication of claims pursuant to this Order. Individual claims files will be made available for inspection at a mutually agreeable time and office of SSA. The claims files may not be removed from the custody of SSA. For purposes of this paragraph, if class counsel wishes to review a claims file, they must do so within 45 days after they are notified that a claims file is available for inspection.

    
    

  20. Pursuant to section 221(e) of the Social Security Act 42 U.S.C. § 421(e), the State of New York shall be entitled to receive, in advance or by way or reimbursement, as determined by the Secretary, the cost to the State of making disability determinations. This Order does not obligate the Secretary to provide additional funding or to allocate additional workload in excess of the workload assigned to ODD in order to readjudicate cases under this Order.

    
    

  21. SSA shall develop reasonable procedures to facilitate proof of nondisability eligibility criteria for class members found disabled upon readjudication of claims for SSI benefits.

    
    

  22. Defendant shall authorize the provision of Medicare benefits to class members made eligible for Medicare under 42 U.S.C. § 1395c by a finding of eligibility for disability insurance benefits resulting from a readjudication pursuant to this Order.

    
    

  23. The parties agree to the following provisions governing Medicaid for class members:

    
    

    1. The State of New York (“State”) shall provide medical assistance to class members found eligible for Supplemental Security Income (“SSI”) benefits upon readjudications conducted pursuant to this Order. These individuals are eligible for medical assistance under 42 U.S.C. § 1396a (a) (10) (A) (i) for the medical services covered under the State plan in effect at the time the service was rendered.

      
      

    2. The Secretary shall provide for the payment to the State of New York of amounts required to be paid by 42 U.S.C. § 1396b for medical assistance, to class members (1) who are found eligible for SSI benefits upon readjudication and (2) who are found eligible for medical assistance under the State plan.

      
      

    3. As to any class member who received benefits under the State's Medicaid plan as Medically-Needy or as categorically-related to the Aid to Families with Dependent Children program and who becomes eligible for medical assistance under this Order, the Secretary will not provide payment or reimbursement for medical care provided to such class member:

      
      

      1. where such medical care has already been reimbursed by the Secretary; or

        
        

      2. where the State did not file a claim for reimbursement within two years of the date the medical service or supplies were provided.

        
        

    4. As to any class member who received State medical assistance benefits as a recipient of Home Relief and who becomes eligible for medical assistance under the State Medicaid Plan under this Order, the Secretary will provide payment and reimbursement for all medical care, services and supplies available under the State's Title XIX Medicaid Plan (“State Plan”). Any claims for reimbursement must be supported by adequate documentation.

      
      

    5. Class members must provide to the State Medicaid agency proof of payment of bills from a health care provider or supplier. These bills must be for services provided to the class member and will be reimbursable as provided for under applicable law. Reimbursement is limited to bills for services and supplies provided to the class member which were reimbursable in whole or in part under the State's plan in effect at the time the service was rendered. Class members may also present to the State Medicaid agency unpaid bills from a health care provider or supplier for which the class member/Medicaid recipient is currently legally liable for payment, which are reimbursable in whole or in part under the State's plan. The bills must be for services or supplies provided to the class member (1) after entry of this Court's Order, or (2) bills which are documented by an unsatisfied judgment, or (3) a claim on which the New York statute of limitations for contract claims has not run.

      
      

    6. As to the submission of claims for payment and the processing of payments:

      
      

      1. A class member who has been found eligible for Medicaid under this Order or his/her provider must submit all claims for payment to the State Medicaid agency (“the Department”) within twelve months after the State's receipt of the SSI notice of readjudication. Promptly after the State's receipt of notification that a plaintiff class member has been found eligible for SSI benefits upon a Dixon readjudication, the State shall notify the class member of his/her Medicaid eligibility under this Order, of the availability of payment or reimbursement of such claims, the applicable time limit, and how to submit such claims for payment;

        
        

      2. The Department must promptly process a claim, whether a paid bill or an unpaid bill, and either pay the claim, return it for further information, or deny it;

        
        

        1. Any paid or unpaid claim which is submitted by the recipient or his/her representative and returned to the recipient/representative for additional information must be resubmitted within sixty days to the Department from the date of the Department's request. If the recipient/representative disagrees with the Department's decision on reimbursement of paid or unpaid medical bills, the recipient/representative may request a fair hearing within sixty days of the Department's notice of decision.

          
          

        2. Any unpaid claim which is submitted by a provider and is denied or returned for additional information may only be resubmitted to the Department within sixty days of the date of denial or request.

          
          

      3. The Department must submit all claims for federal financial participation (“FFP”) with respect to paid claims within two years of the date the Department paid the claim under the federal Medicaid program, or reclassifies past payments to a federal category under the terms of Dixon, whichever is later; and

        
        

      4. Payments for paid claims for class members as described in paragraph E above shall be handled in accordance with the procedures set forth in the New York State Fiscal Reference Manual for Local Social Services Districts, vol. I, ch. 7, pages 29 through 33, and vol. II, ch. 5, pages 16 through 21, 42 C.F.R. § 431.250(e). This provision is, however, without prejudice to any rights that class members may accrue under Greenstein v. Bane, 89 Civ. 1038 (RJW) (S.D.N.Y.).

        
        

    7. Except as specifically set forth herein, the terms of the Medicaid provisions in this Order shall be governed by federal statutes, rules and regulations applicable to the Medicaid program.

      
      

  24. The terms set forth in this Order constitute the Court's final adjudication of any and all claims and demands, of whatever nature, that plaintiffs have against the Secretary and any of her agencies, agents, servants, employees or instrumentalities on account of and with respect to the incidents, claims or circumstances alleged in the pleadings filed herein.

    
    

  25. This Order does not resolve the question of attorneys' fees and costs based on the action resolved by this Order.

    
    

  26. This Court shall retain jurisdiction over this action solely for the enforcement of the specific provisions of this Order.

    
    

Dated: New York, New York
December 22, 1993

  SO ORDERED:
  __________/s/______________
  United States District Judge

Attachment 2. - Dixon Court Case Flag/Alert

DI
DI



Dixon COURT CASE FLAG/ALERT







REVIEWING PSC DOC TOE ALERT DATE RESPONSE DATE
OFFICE




OLD BOAN/PAN SSN (BOAN OR PAN) NAME BIRTHDATE REFERENCE #



INFORMATION FOLDER LOCATION
CAN/HUN BIC/MFT CATG TITLE CFL CFL DATE ACN




PAYEE ADDRESS



        SHIP TO ADDRESS:
 
        SOCIAL SECURITY ADMINISTRATION
        OFFICE OF DISABILITY AND INTERNATIONAL OPERATIONS
        CLASS ACTION SECTION
        ATTN: DIXON COORDINATOR
        P.O. BOX 17369
        BALTIMORE, MD 21298-0050
 

        SPECIAL INSTRUCTIONS:


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


        OFFICE OF HEARINGS AND APPEALS
       OFFICE OF APPELLATE OPERATIONS
       ONE SKYLINE TOWER, SUITE 701
       5107 LEESBURG PIKE
       FALLS CHURCH, VA 22041-3200

       ATTN: OAO CLASS ACTION COORDINATOR


        IF THE CLAIM IS PENDING IN AN OHA HEARING OFFICE, THEN SHIP FOLDER DIRECTLY TO THAT OFFICE.


Attachment 3. - Route Slip or Case Flag for Screening

Dixon Class Action Case

   
   

SCREENING   NECESSARY

   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant may be a Dixon class member. The attached folder location information indicates that a current claim file is pending in your office. Accordingly, we are forwarding the attached alert [and prior claim file(s)] for association, screening for class membership, consolidation consideration and possible readjudication.
   
Please refer to HALLEX TI 5-4-52 for additional information and instructions.
   

TO: ______________________________

__________________________________

__________________________________

__________________________________

   

Attachment 4. - Dixon Screening Sheet

CLASS ACTION CODE: D  I  

1. CLAIMANT'S SOCIAL SECURITY NUMBER

   ___ ___ ___ - ___ ___ - ___ ___ ___ ___

 

2. CLAIMANT'S NAME (LAST, FIRST, MI) (PLEASE PRINT)

3. DATE OF BIRTH (MONTH, DAY, YEAR)

   ___ ___ - ___ ___ - ___ ___ ___ ___

4. CLAIM NUMBER                         (BIC/ID)

   ___ ___ ___ - ___ ___ - ___ ___ ___ ___ - ___ ___

5. DATE OF SCREENING (MONTH, DAY, YEAR)

   ___ ___ - ___ ___ - ___ ___ ___ ___

6. a. SCREENING RESULTS

Member (J)                      Non-Member or Member (F)

Entitled to Relief                Not Entitled to Relief

      ___                                      ___

b. SCREENOUT CODE

      ___  ___   

(see Item 13 for screenout codes)

7.  Is there any record of this individual filing a DIB, CDB claim or SSID adult claim?

___  Yes       ___ No

   (if No, go to 13)

8.  Did the claimant receive a less than fully favorable final title II or title XVI determination/decision or termination at any administrative level, that was issued by the New York Office of Disability Determinations (NYODD) or OHA between June 1, 1976, and July 18, 1983, inclusive? (Note: For class membership screening purposes, an Appeals Council denial of a request for review constitutes a final determination.)

___  Yes       ___ No

   (if No, go to 13)

9.  Did the claimant reside in the State of New York termination identified in No. 8 was issued?

___  Yes       ___ No

   (if No, go to 13)

10.  Was the final determination/decision or termination made on the basis of a finding of no severe impairment(s)?

___  Yes       ___ No

   (if No, go to 13)

11.  Was the final administrative decision appealed to a Federal court and affirmed or denied? (Note: For class membership purposes, a court remand is not a decision. Court remands do entitle individuals to class membership review.)

___  Yes       ___ No

   (if Yes, go to 13)

12.  Was an administrative/judicial decision made, on a subsequent claim, after 7/19/83, or was there a decision review, either favorable or unfavorable, which covered the entire timeframe at issue in the potential Dixon claim?

___  Yes       ___ No

   (if Yes, go to 13)

13.If you checked “No” in blocks 7, 8, 9 or 10 or “Yes” in block 11 or 12, the individual is not a Dixon class member entitled to relief. Check the “Nonmember/Member Not Entitled to Relief” block (F) in item 6.a.

Enter the screenout code in item 6.b. as follows:

   Enter 08 if question 8 is answered “NO.”

   Enter 09 if question 09 was answered “NO.”

   Enter 10 if question 10 was answered “NO.”

   Enter 11 if question 11 was answered “YES.”

   Enter 12 if question 12 was answered “YES.”

     

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

 

a.  If screenout code is 07, check reason No. 1.

b.  If screenout code is 08, check reason No. 2.

c.  If screenout code is 09, check reason No. 3.

d.  If screenout code is 10, check reason No. 4.

e.  If screenout code is 11, check reason No. 5.

f.  If screenout code is 12, check reason No. 6.

   

 

 

 

 

No other screenout code entry is appropriate

14.If you have checked “Yes” in blocks 7, 8, 9 and 10 and checked “No” in blocks 11 and 12, the claimant is entitled to relief as a class member. Check the “Member Entitled to Relief” block (J) in Item 6.a.

Dates

On the lines below, please enter the date(s) of all final decisions considered in the screening process, and indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC). Also, record the dates of any determinations after the date agency implementation instructions were issued that you considered in the screening process. Also, indicate the administrative level at which the determination was made (i.e., DDS, ALJ or AC).

                                    DECISION DATE                                           DECISION LEVEL

                        _________________________                         _________________________

                        _________________________                         _________________________

                        _________________________                         _________________________

PRINT SCREENER'S NAME:

(NOTE: BEFORE SIGNING, PLEASE COMPLETE ITEM 6.)

COMPONENT: DATE:
PHONE #:

SIGNATURE:

 



DIXON SCREENING SHEET INSTRUCTIONS


COMPLETE ONLY ONE SCREENING SHEET PER INDIVIDUAL, EVEN IF THE CLAIMANT RECEIVED MULTIPLE DETERMINATIONS WITHIN THE CLASS DATES. HOWEVER, THE SCREENING SHEET PROVISIONS MUST BE CONSIDERED SEPARATELY FOR EACH CLAIM. A CLASS MEMBER WHO RECEIVED MULTIPLE DETERMINATIONS IS ELIGIBLE FOR READJUDICATION ONLY ON THOSE CLAIMS MEETING ALL CLASS MEMBERSHIP REQUIREMENTS. PLEASE BE AWARE THAT YOU MUST CONSIDER ALL CLAIMS DECIDED DURING THE PERIOD COVERED BY THE COURT ORDER (i.e., June 1, 1976, through July 19, 1983) WHEN MAKING THE CLASS MEMBERSHIP DETERMINATION.


Item 1


Enter the claimant's own SSN. This will be used to identify the claimant in CATS.


Item 2


Enter the claimant's name.


Item 3


Enter the claimant's date of birth (mm/dd/yyyy). This will also be used to identify the claimant in CATS.


Item 4


Fill in the appropriate account numbers, including BIC and/or ID, under which the claimant filed for benefits.


Item 5


Fill in the actual date that the screening is completed.


Item 6


Fill in the appropriate blocks once screening is completed, as directed in Items 13 and 14. When multiple claims are screened out for different reasons, use the screenout code for the claim with the earliest date of the Dixon application. If the screenout is later protested, the claimant will be protected with the earliest protective filing date.


Item 7


This is self-explanatory. If there is no record of a possible Title II or XVI claim number, answer this question “NO” and enter the appropriate screenout code (07) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet. Complete the “Non-Class Member/Member Not Entitled to Relief” Notice as indicated below under “Instructions if Claimant Is Determined To Be a Non-Class Member or a Class Member Not Entitled to Relief,” checking off Item 2. as the reason that the individual is not entitled to any relief. In the event that the individual furnishes another SSN, or evidence of having filed a claim under the original number, which has a claim(s) denied/ceased in the timeframe, rescreen the case. Send a Revised Decision Notice if the claim is screened in.


Item 8


Review the Dixon alert, related queries (FACT, SSIRD, etc.) and claim file(s). Screen for date of decision, not application. The term “final” refers to the date of the administrative determination/decision that become the binding decision of the Commissioner pursuant to 20 CFR §§ 404.905, 404.921, 404.955, 404.972, 404.981, 416.1405, 416.1421, 416.1455, 416.1472 and 416.1481 and does not mean that a class member must have exhausted administrative remedies under §§ 205(g) and (h) of the Social Security Act, 42 U.S.C. § 405(g) and (h). Although not the “final decision” of the Secretary, an Appeals Council denial of a request for review constitutes a final determination and controls for the purpose of class membership screening. If the claimant appealed a determination/decision made within the class membership timeframe and then received an administrative determination/decision made after July 19, 1983, the claimant is not a class member entitled to relief.


NOTE:

This includes replacement decisions (i.e., decision reviews) made after July 19, 1983, which covered the entire timeframe at issue in the potential Dixon claim(s).


When the claim file has been destroyed or declared lost, determine if the claim may be screened out solely on the basis of information shown on the queries.


If the answer is “NO,” enter the appropriate screenout code (08) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.


NOTE:

If the claim cannot be screened out on the basis of the queries in those cases where the claim(s) file is declared lost or destroyed, the claimant is a class member and the presumptions must be applied.


Item 9


Screen for residency of the claimant at the time of the final determination/decision. Review the folder or alert package for indications of New York State residency at the time the claim was decided at the highest level of administrative review. If the answer is “NO,” enter the appropriate screenout code (09) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.


Item 10


Screen to determine whether there was a final determination/ decision made on the basis of no severe impairment or on the basis that the impairment was only “slight.” To answer this question in cases finally decided at the initial or reconsideration level, start with a review of the Form SSA-831-U5, Form SSA-3687-U2 or the Form SSA-3428-U2 for denial cases or a review of the Form SSA-832/833-U5 for cessation cases. Review the file(s) and/or queries (e.g., FACT, SSIRD) to determine whether the claimant received a denial/cessation decision on any claim(s) at step 2 of the sequential evaluation process. Look at Item 22 of the Form SSA-831-U5. In a CDR case, read the rationale to determine the reason for the cessation on the SSA-832/833. In a DHU or OHA case, read the decision to determine the basis for the denial or cessation. Use the latest date on the Form SSA-831-U5 or other denial form, or the date of a DHU or OHA decision as the date of the final determination/decision.


If the regulation basis code on these forms reflects a non-severe determination (e.g., F1 and F2 for title II cases or N30 and N41 for title XVI cases) check “YES” in Item 10. If not, then check “NO” and enter the appropriate screening code (10) as directed in item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.


NOTE:

If an initial or reconsideration level determination/decision was made on the basis of no severe impairment, but the final determination/decision on appeal was not based on a non-severe finding, the claimant is not a class member entitled to relief.


Item 11


Check for a final administrative decision made during the class member timeframe (i.e., June 1, 1976, through July 19, 1983, inclusive). Look for a less than fully favorable final title II or title XVI determination/decision or termination issued by the NYODD or OHA, on an appeal of an NYODD determination that was appealed to a Federal court and either affirmed or denied by the court.


NOTE:

For informational purposes, the period within which an appeal of a district court decision may be filed is 60 days from the date of entry of judgment. Therefore, a district court decision entered on October 2, 1989, became final and unappealable on December 2, 1989, the 61st day after entry of judgment if no appeal was filed.


If the answer to Item 11 is “YES” and no other claims qualify for Dixon DDS/OHA review, enter the appropriate screenout code (11) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.


NOTE:

For class membership screening purposes, a Federal court remand is not a decision and not a valid reason for denial of class membership.


Item 12


This exception applies only if the individual has received all benefits to which s/he could be entitled based on the potential class member claim or has received a denial decision which covers the entire period covered by the potential class member claim.


Determine whether benefits were subsequently allowed or continued from the earliest possible entitlement date, cessation date or control date. Be sure to consider earlier eligibility for Medicare when determining if the subsequent decision is fully favorable. The allowance, continuance or denial could have either been on the same claim or on a subsequent application. Review the file(s) and queries (e.g., FACT, SSIRD) to determine if benefits were subsequently allowed or continued. If yes,


  • in title II cases, check the subsequent award/continuation for first month of entitlement.

    
    

  • in title XVI cases, check the subsequent award/continuation for the first month of eligibility.

    
    

Identify the earliest Dixon claim/termination. Determine the earliest month benefits could have been paid based on the Dixon alleged claim and the Dixon application or termination date.


Compare the earliest possible Dixon benefit date with the subsequent award or continuation dates. If the dates are the same and the allowance or continuation was fully favorable (not a closed period allowance) and no other claims qualify for Dixon DDS/OHA review, the answer to Item 12 is “YES”. In addition, if the earliest Dixon claim was a termination, and the individual already received a subsequent decision review on that potential class member claim and that decision review covered the entire period covered by the potential class member, then, the answer to Item 12 is also “Yes”. Enter the appropriate screenout code (12) as directed in Item 13. Check block F in Item 6. a. and fill in the screenout code in Item 6. b. Sign the screening sheet.


NOTE:

If full retroactive benefits were not paid, check to see if the later award established an onset that would allow payment back to the first possible month under the Dixon claim. If the earliest possible onset was established, but full retroactive benefits were not paid, enter "Dixon Court Case - Retroactive Benefits Due Based on Earlier Application" on a route slip. Sign and date the screening sheet. Route the case to a claims authorizer for processing the title II claim, or to the appropriate FO, for a title XVI claim, for the preparation of an amended award.


Instructions if Claimant Is Determined to be a Class Member Entitled to Relief


  1. Check the “Member Entitled to Relief (J)” block in item 6.a. of the screening sheet.

    
    

  2. Sign and date the screening sheet. Enter the name of the screening component, e.g., OHA, OAO, Branch XX, and the screener's phone number.

    
    

  3. Show the dates of all applications screened and the dates of the final administrative action on each.

    
    

  4. Retain the original screening sheet in the claim file. OHA Headquarters components will send a copy of the screening sheet to:

     

    Office of Appellate Operations
    One Skyline Tower, Suite 701

    Attn: OAO Class Action Coordinator

    [The Class Action Coordinator will enter the screening sheet information from the screening sheet into a data base and forward the screening sheet to the Division of Litigation Analysis and Implementation (DLAI).]

    
    

    OHA Hearing Office components will send 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 22041-3255

    
    
    Attn: Dixon Coordinator

    [DLAI will retain a copy of each screening sheet received from the OAO Class Action Coordinator or an HO and forward a copy to the Litigation Staff at SSA Headquarters for entry into the Civil Action Tracking System.]

    
    

  5. Follow HALLEX I-5-4-52, Part VI.

    
    

Instructions if Claimant Is Determined to be a Non-Class Member or Class Member Not Entitled to Relief


  1. Check the “Non-Class Member/Member Not Entitled to Relief (F)” block in Item 6. a. of the screening sheet and enter the appropriate screenout code in Item 6. b.

    
    

  2. Follow Items b. - d. above.

    
    

  3. Prepare the “Non-Class Member/Member Not Entitled to Relief Notice” and retain or forward the claim file(s) as indicated in HALLEX I-5-4-52, Part V. B. 3. a.

    
    

Attachment 5. - Route Slip for Routing Class Members Alert (and Prior Claim File(s) -- OHA No Longer Has Current Claim)

ROUTING AND TRANSMITTAL SLIP DATE:

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

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

DIXON CASE

   
Claimant: ___________________________  
   
SSN: ________________________________  
   
OHA received the attached alert [and prior claim file(s)] for screening and no longer has the current claim file. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the current claim. After associating the alert with the current claim, please forward to ODIO and/or NEPSC or to the DDS, if appropriate, for screening. SEE POMS DI 12521.000ff, DI 32523.000ff OR DI 42521.000ff.
   
   
Attachment
   
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
FROM: Office of Hearings and Appeals __________________________________________ SUITE/BUILDING
PHONE NUMBER

OPTIONAL FORM 41 (Rev. 7-76)

*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA

FPMR (41 CFR) 101-11.206

Attachment 6. - Non-Class Member/Member Not Entitled to Relief Notice


SOCIAL

SECURITY        Important   Information

NOTICE

_____________________________________________________________


From:


Social Security Administration


(Insert address and phone number here.)


_____________________________________________________________


___________________________     DATE:         ______________________________


___________________________     CLAIM NUMBER: ________________________


___________________________     DOC: ___________________________________


You asked us to review your earlier claim for disability benefits under the Dixon v. Shalala court order. We have looked at your case and have decided that you are not a Dixon class member entitled to relief. This means that we will not review our earlier decision that you were not disabled. The reason that you are not a class member entitled to relief under the Dixon court decision is checked below.

   

WHY YOU ARE NOT A CLASS MEMBER ENTITLED TO RELIEF

   
You are not a Dixon class member entitled to relief because:
   
1. _____ We have no record that you filed a claim for Social Security disability insurance benefits or childhood disability benefits or adult Supplemental Security Income disability benefits.
   
2. _____ We did not deny or stop your Social Security or Supplemental Security Income disability benefits between June 1, 1976, and July 19, 1983, inclusive.
   
3. _____ You did not live in New York State when we denied or stopped your benefits.
   
4. _____ We denied or stopped your benefits between June 1, 1976, and July 19, 1983, but not because we concluded that your impairment was 'not severe' or 'slight.'
   
5. _____ Your case was reviewed and decided by a Federal court.
   
6. _____ You already received a decision on a later claim which covered the same time period as your Dixon claim..
   
7. _____ Your claim was denied for another reason(s). The reason(s) is as follows:
  _____________________________________________________
  _____________________________________________________
   
   

We are Not Deciding If You Were Disabled

It is important for you to know we are not making a decision about whether you were disabled at the time of your earlier claim. We are deciding only that you are not a Dixon class member entitled to relief.


If You Do Not Agree With This Determination


If you want us to review our determination that you are not entitled to relief under the Dixon case, you may contact us in writing. You also may contact one of the following offices to ask for assistance with your claim:


New York City:

     The Legal Aid Society
    841 Broadway, 3rd Floor
    New York, NY 10003
    (212) 477-5010

or

Legal Services of N.Y.C.
(212) 431-7200

     

Outside of New York City:

     Greater Upstate Law Project: (800) 724-0490

They will answer your questions about entitlement to relief.


YOU MUST DO THIS WITHIN 90 DAYS OF RECEIVING THIS NOTICE.


If You Have Any Questions


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


Also, if you have someone helping you with your claim you should contact him/her.


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


cc: The Legal Aid Society


Attachment 7. - Route Slip for Non-Class Member/Member Not Entitled to Relief Cases

ROUTING AND TRANSMITTAL SLIP DATE:

TO: INITIALS DATE
1. SSA, Disability Program Branch    
2. 26 Federal Plaza, Room 40-112    
3. New York, NY 10278    
4.    
5. [or other mutually acceptable location]    
6.    
7.    

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

DIXON CASE

   
Claimant: ___________________________  
   
SSN: ________________________________  
   
We have determined that this claimant is not a Dixon class member entitled to relief. (See screening sheet and copy of non-class member/member not entitled to relief notice in the attached claim folder(s).) We have been informed that class counsel wishes to review the file(s). SEE POMS DI 12521.000ff.
   
   
Attachment
   
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
FROM: Office of Hearings and Appeals __________________________________________ SUITE/BUILDING
PHONE NUMBER

OPTIONAL FORM 41 (Rev. 7-76)

*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA

FPMR (41 CFR) 101-11.206

Attachment 8. - Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.”

DEPARTMENT OF HEALTH & HUMAN SERVICES Social Security Administration
_______________________________________________________________________________
Refer to:

FEB 21 1991
Office of Hearings and Appeals PO Box 3200
Arlington VA 22203

 

 

     
MEMORANDUM TO : Headquarters Executive Staff
Appeals Council Members
Regional Chief Administrative
Law Judges
Hearing Office Chief
Administrative Law Judges
Administrative Law Judges
Supervisory Staff Attorneys
Decision Writers
     
FROM : Acting Associate Commissioner
     
SUBJECT : The Standard for Evaluating “Not Severe” Impairments -- ACTION
     

During the past few months, the Office of the General Counsel (OGC) has requested voluntary remand in a number of cases, denied by the Secretary at step two of the sequential evaluation, on the grounds that the decisions have not been fully consistent with SSA policy and the Supreme Court's opinion in Bowen v. Yuckert, 482 U.S. 137 (1987).


Despite the Yuckert decision, extensive litigation, both in individual cases and in significant class actions, continues on the issue of how the Agency applies the step two standard expressed in Social Security Ruling (SSR) 85-28. Because the courts continue to give step two denials close scrutiny, I am asking all adjudicators and decision writers to carefully review SSR 85-28 to ensure that they are applying the proper standard for adjudicating claims at step two.


In accordance with SSR 85-28, a step two denial is appropriate only in very limited situations. The evidence must establish that the claimant's impairment, or combination of impairments, is so slight that it does not have more than a minimal effect on the individual's ability to perform basic work activities. When the medical evidence is inconclusive and does not clearly establish the effect of a claimant's impairment(s), or when the evidence shows more than a minimal effect, the claim may not be denied at step two.


Decisions denying claims at step two must include a comprehensive analysis of all the evidence of record and a decisional rationale consistent with SSR 85-28. Even when the medical evidence of record clearly fails to establish that the claimant has more than a slight mental or physical abnormality, the decision must clearly show that the adjudicator evaluated all the evidence and must articulate the reasons for finding that the impairment(s) is not severe. Furthermore, when the claimant has a medically determinable impairment(s) which might reasonably be expected to cause pain or other symptoms, the decision must include an evaluation of the claimant's subjective complaints using the factors outlined in SSR 88-13 or its equivalent, i.e., SSR 90-1p for Fourth Circuit cases.


If hearing office personnel have questions or need copies of applicable instructions, they should contact the appropriate Regional Office. Regional Office personnel should direct their questions to the Division of Field Practices and Procedures, Office of the Chief Administrative Law Judge.

 

 

   
  Lawrence W. Mason
for Andrew J. Young
   
   

Attachment 9. - Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period expired)

Dixon Class Action Case

   
   

READJUDICATION  NECESSARY

   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant is a Dixon class member. Accordingly, we are forwarding the attached claim file(s) to the DDS for readjudication.
   
Send the file(s) to:
   
 

New York Office of Disability
Determination Services
5th Floor Mailroom
22 Cortlandt Street
New York, NY 10071-3107

   
 

(Destination code: ____)

   

NOTE:

If a face-to-face review is required, the claim file must be sent to the “resident” DDS (see Part III above).


Attachment 10. - Dixon Class Member Flag for Headquarters Use (DDS Readjudication -- retention period has not expired)

Dixon Class Action Case

   
   

READJUDICATION  NECESSARY

   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant is a Dixon class member. After expiration of the retention period, forward claim file(s) to the DDS for readjudication.
   
Send the file(s) to:
   
 

New York Office of Disability
Determination Services
5th Floor Mailroom
22 Cortlandt Street
New York, NY 10071-3107

   
 

(Destination code: ____)

   

NOTE:

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


If a face-to-face review is required, the claim file must be sent to the “resident” DDS (see Part III above).


Attachment 11. - ALJ Dismissal to DDS


Social Security Administration
OFFICE OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

IN THE CASE OF   CLAIM FOR
     
__________________________   __________________________
     
__________________________   __________________________
     
This case is before the Administrative Law Judge pursuant to a request for hearing filed on _________________ with respect to the application(s) filed on _________________.
 
In accordance with the implementation order negotiated by the parties and issued by the United States District Court for the Southern District of New York in the case of Dixon v. Shalala, No. 83 Civ. 7001 (WCC) (S.D.N.Y. December 22, 1993), the claimant has requested a review of the final (determination/ decision) on the prior application(s) filed on ______________. The claimant has been identified as a Dixon class member and is entitled to have the final administrative denial of the prior application(s) readjudicated under the terms of the Dixon implementation order. Because the claimant's current claim shares certain issues in common with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.
 
The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the New York Office of Disability Determinations [or the “resident” DDS, if appropriate] which will conduct the Dixon readjudication.
     
The New York Office of Disability Determinations will notify the claimant of its new determination and of the claimant's right to file a new request for hearing.
     
    _________________________
    Administrative Law Judge
     
    _________________________
    Date

Attachment 12. - Notice Transmitting ALJ Order of Dismissal

   

NOTICE OF DISMISSAL

   
Claimant's Name  
Address  
City, State Zip  
   
Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the New York Office of Disability Determinations [or the “resident” DDS, if appropriate] which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.
   
What This Order Means  
   
The Administrative Law Judge has sent your current claim and your Dixon class member claim back to the New York Office of Disability Determination Services [or the “resident” DDS, if appropriate] for further processing. The enclosed order explains why.
   
The Next Action on Your Claim
   
The New York Office of Disability Determinations will contact you to tell you what you need to do. If you do not hear from the New York Office of Disability Determinations [or the “resident” DDS, if appropriate] within 30 days, contact your local Social Security office.
   
Do You Have Any Questions?
   
If you have any questions, contact your local Social Security office. If you visit your local Social Security office, please bring this notice and the Administrative Law Judge's order with you.
   
Enclosure  
   
cc:  
   (Name and address of representative, if any)
   (Social Security Office (City, State))

Attachment 13. - Dixon Class Member Flag for HO Use (DDS Readjudication)

Dixon Class Action Case

 

READJUDICATION  NECESSARY

 
 
Claimant's Name:   __________________________________
     
SSN:   __________________________________
     
This claimant is a Dixon class member. The attached Dixon claim file was forwarded to this hearing office for possible consolidation with a current claim.
     
_______   The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.
     

OR

     
_______   The claims have not been consolidated because:
     
    [state reason(s)]__________________________________
    ______________________________________________
     
Accordingly, we are forwarding the attached alert and prior claim file(s) to your location for any necessary Dixon readjudication action.
 
We are sending the alert and prior folder(s) to:
 
 

New York Office of Disability
Determinations
5th Floor Mailroom
22 Cortlandt Street
New York, NY 10071-3107

 
 

(Destination code: ____ )

 

NOTE:

If a face-to-face review is required, the claim file must be sent to the resident “DDS” (see Part III above).