I-5-4-54.S.P. v. Chater

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Eligibility for Relief and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Reconciliation of Implementation
IX Inquiries
Attachment 1 S.P. Stipulation and Order of Settlement; Approved by the Court on February 9, 1996; Entered on February 16, 1996.
Attachment 2 S.P. COURT CASE FLAG/ALERT
Attachment 3 Route Slip or Case Flag for Screening
Attachment 4 S.P. SCREENING SHEET
Attachment 5 Route Slip for Routing Class Member Alert and Prior Claim Fill(s) to ODIO or PSC -- OHA No Longer Has Current Claim
Attachment 6 Notice of Non-Class Membership/Ineligibility for Relief
Attachment 7 Route Slip for Non-Class Member/Ineligibility for Relief Cases
Attachment 8 S.P. Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Expired)
Attachment 9 S.P. Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Has Not Expired)
Attachment 10 ALJ Dismissal to DDS
Attachment 11 Notice Transmitting ALJ Order of Dismissal
Attachment 12 S.P. Class Member Flag for HO Use (DDS Readjudication)

ISSUED: August 28, 1996

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the parties' joint Stipulation and Order of Settlement, approved by the United States District Court for the Southern District of New York on February 9, 1996, and entered on February 16, 1996, in the S.P. v. Chater class action involving the evaluation of disability claims under title II and/or title XVI that allege disability based in whole or in part on infection with the human immunodeficiency virus (HIV) and/or acquired immune deficiency syndrome (AIDS) (see Part IV below for the definition of the class).

Adjudicators throughout the country must be familiar with this TI because of case transfers and because S.P. class members who now reside outside of New York must have their cases processed in accordance with the requirements of the joint stipulation and order.

II. Background

On October 1, 1990, plaintiffs filed a class action complaint challenging the standards, policies, practices and procedures used by the Social Security Administration in evaluating disability claims under titles II and title XVI of the Social Security Act that allege disability based in whole or in part on infection with HIV and/or AIDS.

On June 7, 1991, the United States District Court for the Southern District of New York denied plaintiffs' motion for class certification with leave to renew the motion and denied the Secretary's [1] second motion to dismiss the action.

On December 17, 1991, the Secretary published Social Security Ruling (SSR) 91-8p in order to revise and update the guidelines for the evaluation of claims for disability based on allegations of HIV and/or AIDS.

On July 2, 1993, the Secretary published a final rule in the Federal Register establishing new listing sections called “Immune System” (Listings 14.00 and 114.00). The new listings included criteria for HIV (Listings 14.08 and 114.08). These criteria replaced SSR 91-8p, which was rescinded as of the date of the publication of the new regulations.

In order to avoid further litigation, on October 13, 1995, the parties submitted a jointly negotiated proposed settlement agreement to the court.

In December 1995, SSA mailed display posters to various field offices and organizations identified by plaintiffs. The posters provided public notice of the proposed settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

On February 9, 1996, the district court held a hearing, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, to consider the fairness of the proposed settlement and approved the parties' joint Stipulation and Order of Settlement (Attachment 1). The Stipulation and Order of Settlement was entered on February 16, 1996.

III. Guiding Principles

Under the terms of the S.P. settlement agreement, the Commissioner will readjudicate the title II and/or title XVI claims of those persons who: 1) respond to notice informing them of the opportunity for review or who do not receive notice but who otherwise self-identify and request review (e.g., “walk-ins”); and 2) are determined, after screening, to be class members entitled to relief (see Parts IV. and V. below). The class action section in the Office of Disability and International Operations (ODIO) will screen title II and concurrent title II and title XVI claims for eligibility for class relief, and the Northeastern Program Service Center (NEPSC) will screen title XVI only claims, unless there is a current claim, i.e., a potential class member claim or a subsequent claim, pending in the Disability Determination Services (DDS) or OHA, or stored at OHA. Regardless of the state of the claimant's current residence, in most cases, the New York Office of Disability Determinations (ODD) will perform the agreed-upon readjudications at the reconsideration level, irrespective of the administrative level at which the claim was last decided.

EXCEPTION:

The DDS servicing the claimant's current address will perform the readjudication in terminal illness (TERI) cases and if a face-to-face review is necessary, i.e., cessation case.

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

Cases readjudicated by the DDS will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. The type of readjudication will be a "redetermination" (see Part VI. below). Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).

Adjudicators will use the disability evaluation standards reflected in Listings 14.08 and 114.08 in evaluating disability claims involving allegations of disabling HIV infection, including AIDS, by S.P. class members.

NOTE:

S.P. class member claims should be processed as expeditiously as possible. (See HALLEX I-2-1-40 and I-3-1-5 for TERI procedures.)

IV. Definition of Class

Except as noted below, for purposes of implementing the terms of the Stipulation and Order, the S.P. class potentially entitled to relief consists of all individuals who:

  • filed for disability benefits under titles II and/or title XVI of the Social Security Act alleging disability based in whole or in part on infection with HIV and/or AIDS; and

  • were issued a less than fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision (exhaustion of administrative remedies is not required), based on medical reasons, on or after July 27, 1990, and before July 2, 1993, while residing in the State of New York.

    EXCEPTIONS:

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

    (1) the last administrative denial or termination received on the potential S.P. claim was issued before July 27, 1990, or on or after July 2, 1993; or

    (2) the individual received a final judicial decision on the potential S.P. claim; or

    (3) the individual had a subsequent claim denied on or after July 2, 1993, and the subsequent claim covered the entire period of disability at issue in the potential S.P. claim.

V. Determination of Class Membership and Eligibility for Relief and Preadjudication Actions

A. Pre-Screening Actions - General

  1. Notification

    Within 10 business days of the date SSA issues final implementation instructions, SSA shall make a good faith effort to send an individual notice to the last known address of every individual who has been identified by computer run as a potential class member and whose primary or secondary diagnosis code identified on SSA's data processing system was 0420 (AIDS), 0430 (HIV symptomatic) or 0440 (HIV asymptomatic). Individuals will have 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the S.P. stipulation and order. SSA will presume an individual's receipt of the notice five days after the date of the notice, unless the individual establishes that receipt actually occurred later. An individual who does not receive written notice of the settlement may, nonetheless, request relief by contacting any SSA office within one year after the date that SSA mails the notices referred to above to the systems-identified potential class members. Such a request will be considered timely if it is filed within one year of the date that the notices are mailed.

    ODIO will contact the servicing Social Security field office (FO) (i.e., district or branch office) for development of possible evidence of good cause for any untimely responses. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411. If good cause is established, the field office will forward the good cause determination and any claim files currently in the FO, to ODIO (title II claims and concurrent claims) or NEPSC (title XVI claims) to retrieve any other relevant claim files and for class membership screening.

  2. Alert and Folder Retrieval Process

    All response forms will be returned to ODIO so that the information can be entered into the Civil Actions Tracking System (CATS). Alerts will then be generated and released to ODIO. See Attachment 2 for a sample S.P. alert.

    ODIO will associate the computer-generated alert with the reply form and will forward them to the appropriate component for folder retrieval. ODIO will retrieve available title II and concurrent title II and title XVI potential class member claim file(s), except those found in the DDS or OHA, and conduct the screening. For title XVI only claims, the NEPSC will retrieve available title XVI claim files, except those found in Wilkes-Barre (WB), the DDS or OHA, and conduct the screening (see Part III. above). WB will send any title XVI folders it locates to NEPSC for screening.

  3. Alerts Sent to OHA

    If ODIO or the NEPSC determines that a current claim, i.e., either a potential class member claim or a subsequent claim, is pending appeal 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 or the NEPSC will forward the alert and claim file(s), if any, directly to the HO for processing. If the claim is located in OHA headquarters, ODIO or the NEPSC will forward the alert and claim file(s), if any, to the Office of Appellate Operations (OAO) at the following address (case locator code 5007):

    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 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 (see Part VIII below).

  4. Folder Reconstruction

    In general, ODIO or the NEPSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential S.P. cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the claim would not confer class membership, therefore, making reconstruction unnecessary.

    OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the FO servicing the claimant's address. The request will be made by memorandum and will include the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) as attachments. The request will also include documentation of the attempts to locate the file. The memorandum will request the FO to send the reconstructed file to OHA after it completes its reconstruction action. HOs will route any reconstruction requests directly to the FO servicing the claimant's address. The OAO branch will route reconstruction requests through the OAO Class Action Coordinator. For CATS purposes, HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:

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

    Attn: S.P.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.

    The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to receipt of the reconstructed file, the HO or OAO, as appropriate, will forward the class action material, including the alert, unneeded claim files, if any, and the reconstruction request to the OAO Class Action Coordinator, along with a copy of the action taken on the formerly pending claim. For additional information on reconstruction procedures, see the Class Action Implementation instructions in HALLEX I-1-705C.

  5. Class Membership Denials (Non-Eligibility for Relief)

    ODIO, the NEPSC or OHA, as appropriate, will hold for 90 days all claim files of individuals to whom SSA sends notice of non-class membership and ineligibility for relief, pending review by claimants or class counsel. If an individual wishes to dispute SSA's class membership/eligibility for relief determination, he or she must give timely written notice of the disagreement to the Office of the General Counsel (OGC) (i.e., within 60 days of receipt of notice that the individual is not a class member eligible for relief). Upon request, class counsel, subject to the Privacy Act Protective Order that is part of the settlement order, will be given reasonable and timely access to potential class members' claim files for the purpose of resolving class membership disputes.

    Upon request by class counsel to review claim files, the Litigation Staff will coordinate with ODIO, the NEPSC or OHA to forward the claim files to:

    SSA, New York Regional Office
    Disability Programs Branch
    26 Federal Plaza, Room 40-114
    New York, NY 10278

    Attn: S.P.Coordinator

B. OHA Screening Actions

  1. Determining Jurisdiction for Screening

    1. Current Claim in OHA

      As provided in Part V.A.3. above, if there is a current claim pending or stored at OHA Headquarters, the OAO Class Action Coordinator will receive the alert and related S.P. claim file(s). The OAO Class Action Coordinator may also receive alerts (forwarded in error) for cases in which there is no current claim pending or stored at OHA Headquarters. The OAO Class Action Coordinator will determine OHA jurisdiction for screening and forward as follows.

      • If the current claim is in an HO, the Coordinator will forward the alert and any prior claim file(s) located in OHA Headquarters to the HO for screening using Attachment 3. (Part V.B.2.a. below provides instructions to HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

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

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

      NOTE:

      Do not screen pending cases unless an alert has been received. 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 a claimant with a non-alerted pending case should allege class membership, contact the S.P. coordinator in the Division of Litigation Analysis and Implementation (DLAI) for assistance in determining the claimant's status. DLAI's address is

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

      Attn: S.P.Coordinator

      Telephone number: (703) 305-0723

    2. 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

    1. General Instructions

      The screening component will associate the alert and any prior claim file(s) with the claim file(s) in its possession and then complete a screening sheet (see Attachment 4) as follows.

      NOTE:

      If the claim(s) pending at OHA is the potential class member claim(s), then the individual is not a class member entitled to relief under S.P. (see Part IV. above). Complete the screening sheet and follow the instructions in Part V.B.3.a. below for processing the claims of individuals who are not class members eligible for relief.

      • Consider all applications denied/ceased during the S.P. timeframe;

        NOTE:

        Although not the “final decision of the Agency,” an Appeals Council denial of a request for review is the last action of the Agency, and the date of such denial controls for class membership screening purposes.

      • Follow all instructions on the screening sheet and the 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 or an HO, 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 enter information from the screening sheet into a database and will forward the screening sheet to DLAI.) HO personnel may also forward material by telefax to the Coordinator at (703) 305-0655. (DLAI will retain a copy of each screening sheet received from the Coordinator and will forward a copy to Litigation Staff.)

      If the HO receives an alert only, or an alert associated with a prior claim file(s) for screening, and no longer has the current claim file, it will 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 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.

      If an OAO branch receives an alert only, or an alert associated with a prior claim file(s), and no longer has the current claim file (and it is not located in mini-dockets or OAO DFB), it will determine the location of the current claim file. If the current claim file is located within OHA, the OAO branch will use Attachment 3 to forward the material to the OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 5 to forward the material to the non-OHA location. The OAO branch will advise the OAO Class Action Coordinator of its actions.

      NOTE:

      Final determinations or decisions made on or after July 2, 1993, on another claim filed by a potential S.P. class member may have adjudicated the entire timeframe covered by the S.P. claim. Instead of applying the doctrine of administrative res judicata to the S.P. claim, a non-class membership/ineligibility for relief determination must be made.

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

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

      • If the claim pending in court is the potential class member claim, the CCPRB will notify OGC which will notify the claimant of the option to have the case remanded for readjudication under S.P.

      • If the claim pending in court is a subsequent claim that was adjudicated by the ALJ (or the Appeals Council if it issued the final decision, as defined for screening purposes in a. above) on or after July 2, 1993, in accordance with the disability evaluation standards reflected in Listings 14.08 and 114.08 and resolved all S.P. issues, the claimant is not an S.P. class member entitled to relief. The CCPRB will follow the instructions in Part V.B.3.a. below for processing such claims.

      • If the claim pending in court was adjudicated by the ALJ (or the Appeals Council) on or after July 2, 1993, in accordance with Listings 14.08 and 114.08, but it did not resolve all S.P. issues or adjudicate the entire period covered by the S.P. claim, the CCPRB will forward the S.P. claim to the New York ODD for separate review. The CCPRB will modify the case flag in Attachment 12 to indicate that the pending court case does not resolve all S.P. issues and that the S.P. class member claim is being forwarded for separate processing. The CCPRB will notify the Class Action Coordinator of its action.

      • If the final administrative decision on the claim pending in court was not adjudicated on or after July 2, 1993, in accordance with the disability evaluation standards reflected in Listings 14.08 and 114.08, or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings. The CCPRB will forward the S.P. claim to the New York ODD for separate review to avoid processing delay.

  3. Post-Screening Actions

    1. Screened Out Cases

      If the screening component determines that the individual is not a class member eligible for relief, the component will:

      • notify the individual and representative, if any, (with a copy to class counsel) of that determination using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);

        NOTE:

        Include the date and claim number at the top of Attachment 6 in the spaces indicated.

      • retain a copy of the notice in the claim file;

      • send a copy of the notice to S.P. class counsel:

        The HIV Law Project
        841 Broadway, Suite 608
        New York, NY 10003

      An individual who wishes to dispute a determination of non-class membership and ineligibility for relief may do so directly, through their representative of record, or through S.P. class counsel. Accordingly, the screening component should:

      • retain the claim file(s) for 90 days pending a possible class membership dispute; and,

      • if class counsel makes a timely request to review a screened out claim file, send the file to:

        SSA, New York Regional Office
        Disability Programs Branch
        26 Federal Plaza, Room 40-114
        New York, NY 10278
        Attn: S.P Coordinator

        using the pre-addressed route slip in Attachment 7;

        NOTE:

        Photocopy any material contained in the prior file that is relevant to the current claim and place it in the current claim file before shipping the prior file.

      • if OGC resolves the dispute in the claimant's favor: 1) OGC will notify the claimant, or representative, if any, and class counsel, and will alert Litigation Staff to prepare a revised screening sheet; 2) OHA jurisdiction cases will proceed in accordance with Part VI. below; 3) Litigation Staff will notify DLAI of the revised determination by forwarding a copy of the revised screening sheet to DLAI; and 4) DLAI will coordinate with the OAO Class Action Coordinator as necessary;

      • if the dispute cannot be resolved, OGC will send the claimant, and class counsel, a notice indicating that the claimant will have 60 days to request district court review of the class membership/eligibility for relief determination;

      • if after 90 days no review is requested, return the file(s) to the appropriate storage location if not otherwise needed.

    2. Cases Determined to Be Class Members Entitled to Relief

      If the individual is found to be a class member entitled to relief (either during the initial screening or after rescreening), the claim will be processed and adjudicated in accordance with the instructions in Part VI. below.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

The New York ODD, or any other DDSs servicing residents of New York, will usually conduct the S.P. review. An exception may apply when the S.P. claim is a TERI case. An exception will also apply for cases consolidated at the OHA level (see Part VI.E. below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review). (See Part VI.B. below.)

B. OHA Adjudication of Class Member Claims

The following instructions apply to both consolidation cases in which the ALJ or Appeals Council conducts the S.P. readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and OHA Headquarters will process S.P. class member cases according to all other current practices and procedures including coding, developing evidence, routing, etc. However, pursuant to the parties' stipulation and order, SSA must exert its best efforts to resolve all S.P. class members' claims as expeditiously as possible.

NOTE:

Implementation of the S.P. order should not delay the processing of TERI claims or interfere with the operation of TERI procedures on such claims. (See HALLEX I-2-1-40 and I-3-1-5.)

  1. Type of Review and Period to Be Considered

    1. Pursuant to the S.P. stipulation and order, regardless of whether the claim under review is an initial claim or a cessation case, the type of review to be conducted is a redetermination. The redetermination shall be a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file including newly obtained evidence relevant to the period that was at issue in the administrative determination or decision(s) that forms the basis for S.P. class membership, i.e., through the date of the last determination or decision on the latest class member claim.

    2. If the redetermination results in a favorable decision, the adjudicator will determine whether the individual's disability has been continuous through the date of the redetermination or to the date of the most recent allowance.

    3. If the evidence establishes that disability began only at some point after the administrative determination(s)/decision(s) that forms the basis for S.P. class membership, the class member must file a new application to establish eligibility.

  2. Disability Evaluation Standards

    The redeterminations will be made in accordance with all applicable rules and regulations for evaluating disability claims, including review under the sequential evaluation. Additionally, adjudicators must use the disability evaluation standards reflected in Listings 14.08 and 114.08 for evaluating disability based, in whole or in part, on allegations of infection with HIV and/or AIDS in class member claims.

  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.

C. Claim at OHA But No Current Action Pending

If a claim file (either a class member or another disability 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 received from ODIO 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 an S.P. class member flag (see Attachment 8) to the outside of the file and forward 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 S.P. class member claim.

  • If less than 120 days have elapsed, OAO will attach an S.P. class member flag (see Attachment 9) to the outside of the file to ensure 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, OAO will also:

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

    • return unappealed Appeals Council denials to the appropriate OAO minidocket.

The respective OAO component will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the New York ODD in a timely manner. See Parts VI.D.3. and V.B.1.b., respectively, if the claimant seeks administrative or judicial review of the non-class member claim.

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

NOTE:

Even claims subject to consolidation should be consolidated only to the extent practicable. Thus, if consolidation would unreasonably delay a decision on the current claim, consolidation is not required.

  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 S.P. 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

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

      Except as noted below, if an S.P. 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, including court remands, the ALJ will consolidate the S.P. case with the appeal on the current claim.

      EXCEPTIONS:

      The ALJ will not consolidate the claims if

      • the current claim and the S.P. 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 at the OHA level, follow Part VI.D.2.c. below. If the claims are not consolidated at the OHA level, follow Part VI.D.2.d. below.

    2. Hearing Not Scheduled

      Except as noted below, if an S.P. class member has a request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the S.P. claim and the current claim at the OHA level. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the S.P. 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.D.2.d. below).

      EXCEPTION:

      If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant an S.P. class member, the ALJ will consolidate the claims.

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

    3. Actions If Claims Consolidated at the OHA Level

      When consolidating an S.P. claim with any subsequent claim and the two claims involve overlapping periods at issue, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present or to the date of the most recent allowance (or through the claimant's date last insured or the date the claimant last met prescribed period requirements, if applicable and earlier). Accordingly, in effect, consolidation will result in a reopening of the S.P. claim through the time period at issue in the current claim. However, if the period to be adjudicated in the current claim does not overlap the period to be readjudicated in the S.P. claim, the two claims should be considered separately. Nonetheless, if the claimant is found to be disabled within the timeframe of the S.P. claim, the claim will be reopened through the date at issue in the current claim. If the ALJ decides to consolidate the current claim with the S.P.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 S.P.claim raises any additional issue(s) not raised by the current claim;

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

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

    4. Action If Claims Not Consolidated at the OHA Level

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

      • dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 10 and the covering notice in Attachment 11; and

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

      • in those instances where cases return to OHA after new denials at the DDS, the ALJ will schedule the consolidated claims for hearing using the original request for hearing date to determine scheduling priority.

      If the ALJ decides not to consolidate the current claim with the S.P. 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 S.P. claim for DDS review using Attachment 12; immediately route it to the New York ODD for readjudication (photocopies of any relevant material from either file should be made and placed in the other file before shipping) and retain a copy of Attachment 12 in the current claim file; and

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

  3. Current Claim Pending at the Appeals Council

    The action the Appeals Council takes on the current claim determines the disposition of the S.P. claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify possible Appeals Council actions on the current claim and the corresponding action on the S.P. claim.

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

      This will usually arise when the current claim duplicates the S.P. review claim, i.e., the current claim raises the issue of disability and covers the entire period adjudicated in the S.P. claim, and the current claim has been adjudicated in accordance with the provisions Listings 14.08 and 114.08 on or after July 2, 1993. 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 S.P. claim.

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

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

      OAO staff will attach an S.P. case flag (Attachment 12; appropriately modified) to the S.P. claim, immediately forward the S.P. claim to the New York ODD for adjudication, and retain a copy of Attachment 12 in the current claim file. OAO will modify Attachment 12 to indicate that the Appeals Council's action on the current claim does not resolve all S.P. issues and that the S.P. class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.

    3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No S.P. 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 in the application that makes the claimant an S.P. class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the S.P. claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the S.P. claim pursuant to the S.P. stipulation and order.

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

    5. Appeals Council Intends to Remand the Current Claim to an Administrative Law Judge.

      If the Appeals Council intends to remand the current claim to an ALJ based on its own review of the case or as the result of a court remand, 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 S.P. claim with the action on the current claim pursuant to the instructions in Part VI.D.2.a. above.

      EXCEPTIONS:

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

      • the current claim and the S.P. 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 S.P. class member claim to the New York ODD, for separate review. The case flag in Attachment 12 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the S.P. 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 S.P. claim is consolidated with a current claim already pending at the hearing level (see Part VI.D. above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” If the conditions described in Part VI.D.2.b. above apply, the ALJ should dismiss the request for hearing on the current claim and HO personnel should enter “OTDI” in the “DSP” field.

To identify class member cases in HOTS, HO personnel will code “SP” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Reconciliation of Implementation

At an appropriate time, Litigation Staff will request SSA components to reconcile their screening activity and disposition of class member claims with information available on CATS. Within OHA, the OAO Class Action Coordinator is responsible for maintaining a personal computer-based record of OHA implementation activity (i.e., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA), as reported by HOs and OAO.

IX. 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. OHA Headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0708.

Attachment 1. S.P. Stipulation and Order of Settlement; Approved by the Court on February 9, 1996; Entered on February 16, 1996.

  [Date Filed 02/15/1996]

Mary Jo White
United States Attorney for the
Southern District of New York
By: LORRAINE S. NOVINSKI (LN 8234)
Assistant United States Attorney
100 Church Street - 19th Floor
New York, NY 10007
Tel.: (212) 385-4358

  
   
United States District Court
 Southern
District of New York
 
 - - - - - - - - - - - -
- - - - - - - x
 
 S.F., M.C., J.M., L.K., and P.S.,
:
 On Behalf of Themselves and All
 Others Similarity
Situated, :
 
 Plaintiffs, :
 
 

v. :
 
 
 Shirley S. Chater,¹ Commissioner
:
 Of
Social Security,
 
 
 Defendant.

:
 
 - - - - - - - - - - - - - - - - - - -
x



 
 
 
 
 

     STIPULATION
AND ORDER
      OF
SETTLEMENT
 


 
 
      90
Civ. 6294 (MGC)

 

     WHEREAS, plaintiffs filed a class action complaint on October 1, 1990, challenging the standards, policies, practices, and procedures used by the Social Security Administration (“SSA”) in evaluating disability claims under Titles II and XVI of the Social Security Act which claims allege disability based in whole or in part on infection with the Human Immunodeficiency Virus (“HIV”) and/or Acquired Immune Deficiency Syndrome (“AIDS”) (hereinafter “HIV-related claims”); and

     WHEREAS, on June 7, 1991, this Court denied Plaintiffs' motion for class certification with leave to renew the motion and denied Defendant's second motion to dismiss the action; and

     WHEREAS, the parties wish to avoid further litigation and fully and finally resolve this dispute;

     IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the parties that:

  1. Certification of a Class. Solely for purposes of this Stipulation and Order of Settlement (“this Stipulation”), a class shall be certified as follows.

    1. The class will consist of:

      all individuals whose HIV-related claims for disability benefits under Title II and/or Title XVI of the Social Security Act were finally denied, in whole or in part, for medical reasons, at any administrative level, on or after July 27, 1990, and before July 2, 1993, while that individual was a resident of the State of New York and which claims have not been the subject of a final judicial decision.

    2. For purposes of paragraph 1 (a), a claim was finally denied on the date of the administrative determination or decision that became the binding decision of the Secretary pursuant to 20 C.F.R. §§ 404.905, 404.921, 404.955, 404.972, 404.981, 416.1405, 416.1421, 416.1455, 416.1472, and 416.1481. Throughout this Stipulation, reference to the final denial of a claim for benefits are to be understood as including decisions that terminate an individual's benefits for medical reasons. To be a member of the class it is not necessary that an individual have exhausted administrative remedies as set forth at 42 U.S.C §§ 405(g) and 405(h).

    3. For the purposes of paragraph 1(a), a claim is denied for medical reasons when the denial is based on consideration of medical or vocational factors. Denials based on other factors, e.g., substantial gainful activity, excess income or resources, etc., are not made “for medical reasons.”

    4. Claims that satisfy all of the criteria set forth in paragraph 1(a) will hereinafter be referred to as “qualifying claims.”

  2. Right to Redetermination of Qualifying Claims. Each member of the class as defined above is entitled to request a redetermination of his or her qualifying claim.

  3. Instructions to Adjudicators. SSA will notify its adjudicators of the rights granted to class members by this Stipulation and shall provide the adjudicators with instructions for its implementation.

    1. SSA will make a good faith effort to provide plaintiffs' counsel with draft instructions within 110 days after entry of judgment pursuant to this Stipulation.

    2. Plaintiffs' counsel will make a good faith effort to provide SSA with their comments on the draft instructions within 14 days after counsel's receipt of the instructions.

    3. SSA will make a good faith effort to issue final instructions within 45 days after its receipt of counsel's comments or, if no comments are received, within 45 days after the due date for such comments.

    4. SSA will consider counsel's comments, and SSA may, but is not required to, incorporate the comments into its final instructions.

    5. SSA will provide plaintiffs' counsel with a copy of the final instructions, as well as a copy of any subsequent revisions thereto, at the time that they are issued.

    6. SSA will not review any qualifying claims of class members until after final instructions have been issued except that SSA reserves its right to reopen claims pursuant to 20 C.F.R. §§ 404.987 et seq. and 416. 1487 et seq. for reasons unrelated to this action.

  4. Notice to Class Members. SSA will take the following steps to inform potential class members of their rights pursuant to this Stipulation.

    1. SSA shall send an individual notice (Attachment 1) to every individual whose qualifying claim had a primary or secondary diagnosis code, as reflected in SSA's data processing system, of “0420” “0430” or “0440”, and who, while a resident of the State of New York, had an HIV-related claim for disability benefits finally denied for medical reasons at any administrative level on or after July 27, 1990 and before July 2, 1993. The notices shall be sent by first-class mail to the last known address of the individual. SSA will make a good faith effort to complete the sending of these notices within 10 business days after issuance of the final instructions referred to in paragraph 3(c) above. As soon as practicable after issuance of these notices, SSA shall provide plaintiffs' counsel with a list of all notices that are issued pursuant to this paragraph and are returned by the Postal service as “undeliverable.” SSA will make a good faith effort to provide this list within 120 days after issuance of the notices.

    2. In order to obtain a redetermination of a qualifying claim, an individual who receives the notice referred to in paragraph 4(a) must respond to the notice within 60 days after presumptive receipt (pursuant to 20 C.F.R. §§ 404.901, 416.1401) or provide SSA with evidence of good cause (as defined in 20 C.F.R. §§ 404.911 and 416.1411) for failing to respond within 60 days. The response shall be made by one of the following means:

      1. By returning the reply form in the pre-addressed postage-paid envelope provided with the notice; or

      2. By contacting any SSA field office, in person, by telephone or in writing, and requesting a redetermination pursuant to this Stipulation.

    3. An individual who does not receive the notice referred to in paragraph 4(a) but who believes that he or she is entitled to a redetermination pursuant to this Stipulation may request a redetermination of a qualifying claim by contacting any SSA office within one year after the date of issuance of the notices referred to in paragraph 4(a).

    4. As soon as practicable after receipt of an individual's request for redetermination, SSA will send the individual an acknowledgment letter (Attachment 2).

    5. If SSA determines that an individual who requests a redetermination pursuant to this Stipulation is not a class member entitled to such relief, SSA will send the individual a notice (Attachment 3) with a copy to plaintiffs' counsel, advising the individual of its determination and the reason for it. If the individual disagrees with the determination, he or she must contact the Office of the General Counsel (“OGC”), at the address provided in the notice, within 60 days after presumptive receipt (pursuant to 20 C.F.R. §§ 404.901, 416.1401) of the notice. If the individual does not contact OGC within the prescribed time, and does not show good cause for failing to do so, SSA's determination will become final and will not be subject to further review. OGC will seek to resolve any disputes regarding class membership. If OGC is unable to resolve a dispute, it will so advise the individual, with a copy to plaintiffs' counsel. The individual, acting through plaintiffs' counsel, may request that the Court review SSA's determination within 60 days after presumptive receipt (pursuant to 20 C.F.R. §§ 404.901, 416.1401) of OGC's notice. If no timely request is made, SSA's determination will be final and binding. Notwithstanding the provisions of the first and fifth sentences of this subparagraph, no copies of notices will be sent to plaintiffs' counsel until and unless the Privacy Act Protective Order submitted to the Court with this Stipulation has been signed and entered by the Court.

  5. Redetermination of Qualifying Claims.

    1. Qualifying claims with respect to which SSA receives a timely request for redetermination will be redetermined at the reconsideration level of administrative review, see 20 C.F.R. §§ 404.907 and 416.1407, except that SSA may, at its option, consolidate an individual's qualifying claim with another disability claim by the same individual that is pending at any level of administrative review at the time of the redetermination. SSA will make a good faith effort to ensure that adjudication of the other claim(s) is not delayed by such consolidation.

    2. The redeterminations make pursuant to this Stipulation will be made in accordance with all applicable rules and regulations as they now exist and as they may hereafter be amended, including Listings 14.08 and 114.08 of 20 C.F.R. Part 404, Subpart P, Appendix 1.

    3. The redeterminations made pursuant to this Stipulation will be based on the evidence of record upon which the qualifying claim was denied except that

      1. the adjudicator will obtain additional evidence if he or she determines that the evidence of record is insufficient to make the redetermination,

      2. the class member may submit additional evidence relevant to the period covered by the qualifying claim and the adjudicator will consider such evidence if he or she determines that it is relevant, and

      3. the adjudicator shall advise the class member that the class member has the right to submit additional evidence relevant to the period covered by the qualifying claim, and shall advise the class member how and where to submit such evidence.

    4. If the redetermination make pursuant to this Stipulation results in a finding that the individual was disabled at a time covered by the qualifying claim, the claim will be reopened, the adjudicator will evaluate evidence of the class member's disability through the date of current adjudication or, if there has been a subsequent allowance through the date of onset established in the subsequent allowance and issue a new determination.

    5. Class members shall have the same rights to administrative and judicial review of the decisions resulting from the redeterminations made pursuant to this Stipulation as they have with respect to any decisions made at the reconsideration level of administrative review. See 20 C.F.R. Part 404, Subpart J, and Part 416, Subpart N, 42 U.S.C. §§ 405(g) and 1383(c)(3).

    6. SSA will exert its best efforts to complete all redeterminations made pursuant to this Stipulation as expeditiously as possible.

  6. Upon request, and subject to the requirements of the Privacy Act, all other applicable privacy statutes or regulations, and the provisions of the Privacy Act Protective Order referred to in paragraph 4(e) herein, SSA will provide plaintiffs' counsel with reasonable and timely access to information concerning the implementation of this Stipulation. The information provided by SSA will include access to a potential class member's files when there is a dispute regarding the individual's membership in the class.

  7. SSA shall use its best efforts to maintain, by computerized tracking system, a record of the following information:

    1. The number of class notices sent;

    2. The number of individuals responding to the notices;

    3. The number of notices returned as undeliverable;

    4. The number of individuals determined not to be entitled to redeterminations;

    5. The number of redeterminations that result in a change in the Secretary's final denial of a qualifying claim; and

    6. The number of redeterminations that result in no change in the Secretary's final denial of a qualifying claim.

    SSA shall provide reports containing the information specified in subparagraphs a - f of this paragraph to plaintiffs' counsel once every three months commencing 90 days after the issuance of notices pursuant to paragraph 4(a) of this Stipulation. SSA shall continue to provide plaintiffs' counsel with reports until every timely request for redetermination is resolved or for two years after the issuance of the first report, whichever is later. SSA shall also permit plaintiffs' counsel to review, for each of the five offices that make disability determinations in New York State, the first five redeterminations that result in no change in the Secretary's final denial of a qualifying claim. These reviews will be permitted solely for informational purposes, and the only appeal rights in existence with respect to these redeterminations are the rights to administrative and judicial review referred to in paragraph 5(e) of this Stipulation.

  8. The Commissioner shall pay plaintiffs' counsel $65,000.00 (sixty-five thousand dollars) in full satisfaction of any and all claims for attorneys' fees and expenses in connection with this litigation.

  9. Counsel for plaintiffs and defendant, by their signatures on this Stipulation, warrant that they are sole counsel to the plaintiffs and to the defendant, respectively, whose interests are represented in this action, and that they are authorized to stipulate to the resolution of the issues in this action.

  10. Members of the class certified pursuant to this Stipulation shall be barred and enjoined forever from prosecuting any claims or causes of action concerning SSA's standards, policies, practices or procedures for evaluating HIV-related claims for disability that were in effect between July 27, 1990 and July 1, 1993. Nothing in the preceding sentence is intended to limit the rights to judicial review referred to in paragraph 5(e) of this Stipulation.

  11. This Stipulation does not constitute an admission by the Commissioner that any standard, policy, practice or procedure addressed in this action violated or failed to comply with either the language or the intent of any applicable law, rule or regulation. This Stipulation does not constitute an admission by the Commissioner that her position in this litigation was not substantially justified.

  12. The Commissioner, her successors, and any department, agency or establishment of the United States and any officers, employees, agents or successors of any such department, agency or establishment, are hereby discharged and released from any claims and causes of action that have been asserted in this action by reason of, with respect to, in connection with or arising out of any matters alleged in this action, provided, however, that nothing in this paragraph shall relieve the Commissioner, her successors, any department, agency or establishment from the duty to comply with this Stipulation.

  13. The complaint is hereby dismissed with prejudice. Final judgment in accordance with the terms hereof shall be entered upon entry of this Stipulation. This Stipulation and the covenants and conditions contained herein shall become effective upon entry of the Stipulation by the Court. The Court will retain jurisdiction over this action only for the limited purposes of resolving any disputes regarding class membership and enforcing compliance with the terms of the Stipulation. No party shall seek relief from the Court on any matter related to enforcement without having first made a good faith attempt to resolve the matter with the adverse party and without giving the adverse party fourteen days notice of the request for relief.


 Dated: New York, New York
 October
5, 1995
 
 
 
 Attorneys for
Plaintiffs:
   

_______________/s/_____________
THERESA MCGOVERN, Esq.
The HIV Law Project
841 Broadway, Suite 608
New York, New York 10011
Telephone: (212) 674-7590
TM-5445

_______________/s/_____________
JILL ANN BOSKEY, Of Counsel
To Wayne G. Mawley, Esq.
MFY Legal Services, Inc.
35 Avenue A
New York, New York 10009
Telephone: (212) 475-8000
JB-3257

   

_______________/s/_____________
LESLIE SALEMAN, Esq.
Cardozo Bet Tzedek Legal
Services
85 Fifth Avenue, 17th Floor
New York, New York 10003
Telephone (212) 790-0240
LS-0588

_______________/s/_____________
NANCY CHANG, Esq., Of Counsel
to JOHN C. GRAY, Jr., Esq.
Brooklyn Legal Services, Corp. B
105 Court Street, 3rd Floor
Brooklyn, New York 11201
Telephone: (718) 237-5500
MC-5331

   

_______________/s/_____________
SUZANNE B. GOLDBERG, Esq.
Lambda Legal Defense
and Education Fund
666 Broadway, 12th Floor
New York, New York, 10012
Telephone: (212) 995-8585
BG-4451

  
   

Attorney for Defendant:

 
MARY JO WHITE
United States Attorney for the
Southern District of New York
Attorney for the Defendant

By: _______________/s/_____________
LORRAINE S. NOVINSKI
Assistant United States Attorney
100 Church Street, 19th Floor
New York, New York 10007
Telephone: (212) 385-4358
LN-8234

   
   

SO ORDERED:


_______________/s/_____________
Miriam Goldman Cedarbaum
United States District Judge
February 9, 1996

  
   

 

 

 

 

   
United States District Court
 Southern
District of New York
 
 - - - - - - - - - - - -
- - - - - - - x
 
 S.P., M.C., J.M., L.K., and P.S.,
:
 On Behalf of Themselves and All
 Others Similarity
Situated, :
 
 Plaintiffs, :
 
 

v. :
 
 
 SHIRLEY S. CHATER, :

Commissioner
of Social Security,
 
 
 Defendant.

:
 
 - - - - - - - - - - - - - - - - - - -
x



 
 
 
 
 

     PRIVACY
ACT

     PROTECTIVE ORDER


 
 
 
      90
Civ. 6294 (MGC)

     Pursuant to 5 U.S.C. § 552a(b)(11), 42 U.S.C. § 1306(a), and 20 C.F.R. § 401.340, IT IS HEREBY ORDERED that:

  1. Defendant may disclose to plaintiffs' counsel information required to be disclosed to plaintiffs' counsel under the Stipulation and Order of settlement (the “Stipulation”) executed by the parties in this case notwithstanding the fact that such information is subject to restrictions on disclosure under the Privacy Act, 5 U.S.C. §§ 552 et seq., and the Social Security Act, 42 U.S. §§ 400 et seq., without obtaining the prior written consent of the individual to whom such records pertain, for the purposes of monitoring compliance with the Stipulation, facilitating implementation of the Stipulation and assisting class members and potential class members in effectuating their rights under the Stipulation. Such information consists of names, addresses, and claims files of potential class members, and other claimant-specific information reasonably relevant to the implementation of the Stipulation.

  2. Plaintiffs' counsel shall use the information disclosed pursuant to paragraph 1 of this Order only for the purposes described in paragraph 1. Except as provided in paragraph 4 of this Order, plaintiffs' counsel shall not make disclosures of such information except: (1) to each other, (2) to members of plaintiffs' counsel's staff; (3) to defendant or her agents or counsel, (4) to the Court in this action; or (5) to other persons participating in the accomplishment of the purposes described in paragraph 1. Any disclosure to persons described in item (5) of the preceding sentence shall be conditioned upon such persons having read this Order and acknowledged in writing that they understand the Order and agree to be bound by it. Plaintiffs' counsel shall inform all non-attorney staff in their offices who have access to information subject to this order of the requirements of this Order and shall instruct them to comply with its terms. Additionally, plaintiffs' counsel may disclose information pertaining to a particular class member or potential class member to that particular individual or to a representative acting on behalf of such individual.

  3. Plaintiffs' counsel and members of their staff shall limit the making of copies of the records disclosed pursuant to paragraph 1 of this Order to those necessary to the purposes described in paragraph 1. All such copies, and any documents created by plaintiffs' counsel or any member of their staff that contain information disclosed pursuant to paragraph 1, shall be kept confidential, consistent with the Rules of Professional Conduct. All such copies and documents concerning individuals who do not individually engage class counsel's assistance shall be returned to the defendant or destroyed upon the completion of implementation of the Stipulation.

  4. Nothing is this Order shall prejudice the rights of plaintiffs' counsel to use the information that they receive pursuant to the Stipulation in this action that is not subject to restrictions on disclosure contained in the Privacy and Social Security Acts, or their rights to use information obtained outside of the context of the Stipulation.

  5. Failure to comply with this Order shall subject the responsible individual and/or his or her attorney to appropriate sanctions by the Court, including a finding of contempt.

  6. This Order does not constitute any agreement or ruling as to the discoverability or admissibility of any record or information.

  7. Upon twenty days' notice to the other parties, any party may seek modification of this Order.

 

 

SO ORDERED:


 _______________/s/_____________
 Miriam
Goldman Cedarbaum
 United States District Judge
 February
9, 1996
 
 
 ________________

¹ Pursuant to Pub. L. No. 103-296, the Social Security Independence and Program Improvements Act of 1994, the functions of the Secretary of Health and Human Services (the “Secretary”) in Social Security cases were transferred to the Commissioner of Social Security (the “Commissioner”) effective March 31, 1995. In accordance with section 106 (d) of Pub. L. 203-296, Shirley S. Chater, Commissioner of Social Security, should be substituted as the defendant in this action. Throughout this document, references to the Secretary should be understood as referring equally to the Commissioner.

Attachment 2. S.P. COURT CASE FLAG/ALERT

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

(BOAN or PAN)

        NAME BIRTH DATE REFERENCE #
      FOLDER LOCATION INFORMATION  
*CAN/HUN BIC/MFT CATG TITLE CFL CFL DATE ACN

*NOTE:

A separate screening sheet must be prepared for each CAN/HUN printed above.

PAYEE ADDRESS

 

 

SCREENING OFFICE ADDRESS:    
     
Title II and CON Claims Title XVI  
     

SSA, ODIO
SSA, ODIO
Class Action Section
P.O. Box 17369
Baltimore, MD 21235-0050

Northeastern PSC
Disability Review Section
P.O. Box 316900
Jamaica, NY 11431-6900

  
ATTN: S.P. Screening Unit ATTN: S.P. Coordinator  

SPECIAL INSTRUCTIONS:

IF CURRENT CLAIM IS PENDING OR STORED IN OHA HEADQUARTERS OR FEDERAL DISTRICT COURT, THEN SHIP FOLDER(S) TO:

 

Office of Hearings and Appeals
Office of Appellate Operations (OAO)
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200

  
  ATTN: OAO Class Action Coordinator  
     
  (Case locator code 5007)  

IF CURRENT CLAIM IS PENDING IN AN OHA HEARING OFFICE, THEN SHIP FOLDER(S) DIRECTLY TO THAT OFFICE.

Attachment 3. Route Slip or Case Flag for Screening

S.P. Class Action Case

SCREENING NECESSARY

   
   
Claimant's name: ___________________________
SSN: ___________________________
 

This claimant may be an S.P. class member. The attached folder location information indicates that a current claim file is pending in your office. Accordingly, we are forwarding the attached [alert and prior claim file(s)] for association, screening for class membership, consolidation consideration and possible readjudication.

 

Please refer to HALLEX Temporary Instruction 5-454 for additional information and instructions.
  TO:

__________________________________
__________________________________
__________________________________
__________________________________

Attachment 4. S.P. SCREENING SHEET

CLASS ACTION CODE: S P

 

1. CLAIMANT'S SSN

    ______ - ____ - ______

 

2. CLAIMANT'S NAME (Last, First) (Please Print)

 

 

3. DATE OF BIRTH (Month, Day, Year) (MM, DD, YYYY)

     ____-____-____

 

4. CLAIM NUMBER

     ____-____-____-________

 

               (BIC/ID)

5. SCREENING DATE (MM, DD, YYYY)

     ____-____-____

 

a. SCREENING RESULT

 

____MEMBER (J) ____NONMEMBER (F)

 

b. SCREENOUT CODE

    ____-____(see item 13 for screenout codes)

 

6. Was a less than fully favorable title II or title XVI determination/decision issued on any claim(s) at any administrative level while the claimant was a resident of New York?

Yes___No___

(if No go to 13)

7. Was the less than fully favorable determination/decision(s) referred to in Question 6 issued at any administrative level on or after July 27, 1990, and before July 2, 1993, and did this become the final decision of the Agency?

(Note: Although not the “final decision of the Agency,” an Appeals Council denial of a request for review is the last action of the Agency, and the date of such a denial controls for class membership screening purposes.)

Yes___No___

(if No go to 13)

8.Did the determination/decision(s) referred to in Question 6 involve an allegation or diagnosis of HIV infection or AIDS?

Yes___No___

(if No go to 13)

9.Was the determination/decision(s) issued on the potential S.P. claim(s) based on some reason other than the individual's medical condition (e.g., SGA)?

Yes___No___

(if Yes go to 13)

10.Did the individual receive a subsequent fully favorable determination/decision which established entitlement to and paid benefits commencing with the earliest possible month based on the earliest potential S.P. claim(s)?

Yes___No___

(if Yes go to 13)

11.Did the individual receive a final decision/determination,based on substantive medical review (i.e., not based on SGA, res judicata or technical reasons) on or after July 2, 1993, that covered the entire period at issue in the earliest potential S.P. claim?

Yes___No___

(if Yes go to 13)

12.Did the individual receive a final decision from a federal district or appellate court based on an administrative denial/termination decision on the potential S.P. claim(s)?

Yes___No___

(If Yes, go to 13. If No, claimant is a class member entitled to relief. Check member block in item 5.a.)

13. The claimant is not an S.P. class member eligible for relief. Check the nonmember block in item 5.a. and enter the screenout code in item 5.b. as follows:

Enter 06 if question 6 was answered "NO".
Enter 07 if question 7 was answered "NO".
Enter 08 if question 8 was answered "NO".
Enter 09 if question 9 was answered "YES".
Enter 10 if question 10 was answered "YES".
Enter 11 if question 11 was answered "YES".
Enter 12 if question 12 was answered "YES".

 

 

No other screenout code entry is appropriate.

14.On the lines below, please enter the date(s) of all applications and final decisions considered in the screening process and indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC).

Date of Application(s)    Date of Decisions     Level of Final Decision

_______________    __________________    ________________

_______________    __________________    ________________

_______________    __________________    ________________

 

15. IDENTIFICATION OF SCREENER

(Print name and phone number and also enter signature)

COMPONENT

 

DATE

 

INSTRUCTIONS FOR COMPLETING S.P. SCREENING SHEET

Questions 1 - 4

You must consider all applications decided during the period covered by the court order when making the class membership determination. A SEPARATE SCREENING SHEET MUST BE PREPARED FOR EACH CLAIM NUMBER. Multiple applications during the period covered by the court order on the same claim number should be screened using the same screening sheet.

Fill in the identifying information as requested. Make sure the Claim Number, BIC/ID and SSN are correct and legible. (If the SSN is different from the claim number, copy the SSN from the BOAN/PAN field on the alert).

Question 5

Complete this information last. Do not fill in the member/nonmember information in Question 5 until the screening process is completed.

Questions 6-15 -- General

  1. In a multiple claims case, begin screening with the earliest claim in the S.P. period and stop with the last claim in the S.P. period. Remember, a separate screening sheet must be completed for each claim number. Multiple claims covered by the court order under the same claim number should be screened using the same screening sheet.

  2. To answer the questions in DDS cases, use the SSA-831 for denial cases and SSA-832/833 for cessation cases. In OHA adjudicated cases, read the ALJ/AC decision to answer the questions.

  3. If the SSA-831/832/833 or OHA decision does not yield enough information to answer the questions, look further into the file.

  4. If the claim folder(s) cannot be located, but queries establish that the determination(s)/decision(s) was made outside the S.P. timeframe, that the claim was denied for a nonmedical reason, that the claimant did not reside in New York or that the claimant was fully paid as of the earliest potential S.P. claim, screen out the claim(s) without reconstructing the lost folder(s).

  5. If questions 6-8 are answered “NO,” or questions 9-12 are answered “YES,” check the nonmember block found in Question 5.a. of the screening sheet, then enter the appropriate screenout code in Question 5.b. as directed in question 13 of the screening sheet.

  6. Remember to follow instructions for members/nonmembers.

Question 6

Screen for residency as of the date of the final determination/decision, not date of application. (See Question 7 below for more information.) If the claimant was not a resident of New York as of the date of the final decision, the claimant is not a class member eligible for relief under the S.P. settlement.

Question 7

Screen for date of decision, not date of application. Individuals are potentially entitled to relief if they received a denial or less than fully favorable decision (e.g., later onset, closed period) on or after July 27, 1990, and before July 2, 1993 which became the final decision of the Agency. The phrase “final decision of the Agency,” used in this context, refers to the date of the administrative decision that became the final decision of the Commissioner and does not mean that a class member must have exhausted administrative remedies.

Question 8

Review Items 16a/b of the SSA-831 and Items 22/21 of the SSA-832/833. If diagnosis code 0420, 0430, or 0440 is present, indicate “YES” for Question 8 and go to the next question. If none of these codes are present, also review the disability interview form for an allegation of HIV infection, including AIDS. Look at Item D, page 1 of the SSA-3368-BK; Item 3A of the SSA-3820-F6; or Item 1a and 1c of the SSA-454-BK, or the OHA decision as applicable. If these items indicate that HIV infection or AIDS has been alleged, indicate “YES” for Question 8 and go to the next question.

Question 9

Check item 33 of the SSA-831 or item 11 of the SSA-832/833. The reg-basis codes that indicate a non-medical initial or post-adjudicative denial for title II are M7, M8, N1, N2 or S1. N01, N02, N03, N04, N05, N06, N09, N10, N11, N12, N13, N14, N17, N33, N44 (for adult claimants only) and N54, are the non-medical initial or post-adjudicative denial codes for title XVI. For a complete list of the title II denial codes see SM 00380.270. For a complete list of title XVI denial or payment status codes see SM 01005.440 and SM 01305.001F.

Question 10

Review the file and case control queries. Determine if a subsequent reversal was fully favorable, allowing the earliest possible entitlement/onset date as alleged on the S.P. claim(s). In order for an individual to be screened out under this question, benefits must have been paid based on the earliest date of entitlement/eligibility. (If full retroactive benefits have not been paid, forward the file to a claims authorizer in the Program Service Center with SSN jurisdiction for processing. Annotate the route slip: “Fully Favorable Medical Decision - Retroactive Payments are Due.”).

Question 11

Review all claims files and queries to determine whether decision(s) made on or after July 2, 1993, readjudicated the merits of the entire period covered by the S.P. claim(s). An S.P. claim may be screened out when there is a subsequent denial determination or decision issued on or after July 2, 1993, and

  1. the alleged onset date (AOD) for the subsequent claim is the same as, or earlier than the S.P. claim, and

  2. medical evidence describing the condition at the AOD was available to the adjudicator of the subsequent claim, and

  3. the rationale in the DDS' determination of the subsequent claim (including supporting documentation such as forms SSA-2506 and SSA-4734) or the ALJ/AC decision indicates that disability was considered back to the AOD.

    NOTE:

    Per POMS DI 27510.001A and DI 27510.005A.1.a., DDS adjudicators generally limit consideration of subsequent claims to the period after the previously adjudicated period. Therefore, a claim cannot be screened out on the basis of Question 11 unless it is clear that the DDS adjudicated the entire period covered by the S.P. claim back to the earliest alleged onset/entitlement date. At the OHA level, ALJ and Appeals Council decisions that do not consider the previously adjudicated period usually will indicate that the claimant's request for hearing has been dismissed on the basis of res judicata with respect to the previously adjudicated period. These cases cannot be screened out.

Question 12

Screen to determine if a district or appellate court issued a final, i.e., unappealed, decision on the S.P. application(s).

NOTE:

The period within which an appeal of a district court decision may be filed is 60 days from the date of entry of judgment. For example, a district court decision entered on October 2, usually becomes unappealable on December 2, the 61st day after entry of judgment if no appeal was filed. Consult the Litigation Staff, as needed.

Item 13

Self-explanatory

Item 14

Fill in the dates of the application(s), decision(s) and the level of adjudication of the final decision(s), that were reviewed in deciding class membership for the claim number in item 4. Remember a separate screening sheet must be prepared for each claim number.

INSTRUCTIONS FOR MEMBERS

  1. Check the “MEMBER” block in Question 5.a. of the screening sheet.

  2. Sign the form and retain the original screening sheet in the claim file.

  3. OHA Headquarters components and Hearing Offices will send a copy of the screening sheet 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

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

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

  4. Follow HALLEX I-5-454, V.B.3.b.

INSTRUCTIONS FOR NONMEMBERS

  1. Check the “NONMEMBER” block in Question 5.a. and enter the appropriate screenout code (the number of the question that determined the individual is not a class member, numbers 6-12; see Question 13 on the screening sheet) in item 5.b.

  2. Follow items b. and c. above.

  3. Prepare and send the class membership denial notice (Attachment 6) to the claimant with a copy to his/her representative, if any, and class counsel. Retain a copy of the denial letter in the folder. Forward the claim file(s) as indicated in HALLEX I-5-454, V.B.3.a.

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

ROUTING AND TRANSMITTAL SLIP

 

 DATE

TO:

1.

 INITIALS DATE
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 _____OTHER

REMARKS

S.P. 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 or the NEPSC (using the address indicated on the alert) for screening and possible readjudication.

SEE I-5-454 Part V.B.2.a.

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. Notice of Non-Class Membership/Ineligibility for Relief

SOCIAL
SECURITY NOTICE

  

 

Important Information
From:

Services Social Security Administration
  ____________________________Date:____-____-____
   
  ____________________________Claim Number:____________________
   
  ____________________________DOC___________________________
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY DISABILITY CLAIM.
PLEASE READ IT CAREFULLY!

We have considered your request for a review of your old claim for disability benefits or SSI in accordance with the court case S.P. v. Chater. For the reason checked below, we have decided that you are not entitled to a new decision on your old claim.

___

You did not live in New York when your old claim was denied or your benefits were terminated.

 

___

We did not make a final decision denying your old claim or terminating your benefits on or after July 27, 1990, and before July 2, 1993.

 

___

Your old claim was not based in whole or in part on HIV or AIDS.

 

___

Your claim was denied for some reason other than your medical condition. That reason was

__________________________________________________________

__________________________________________________________.

 

___

You have already received a final decision by a United States District Court on your old claim.

 

___

You have already received all the benefits you could receive if we reviewed your old claim again.

 

___

You filed a new claim that covered the time period covered by your old claim, and your new claim was decided on or after July 2, 1993.

 

___

Other:__________________________________________________________

_______________________________________________________________

   
WE ARE NOT DECIDING IF YOU ARE DISABLED

It is important for you to understand that we are not making a decision about whether you are disabled. We are deciding only that you are not entitled to a new decision on your old claim based on the court case S.P. v. Chater.

IF YOU DISAGREE WITH THIS DETERMINATION YOU MUST WRITE TO US WITHIN 60 DAYS AT:

Office of the General Counsel (OGC)
Social Security Administration
600 Altmeyer Building
6401 Security Boulevard
Baltimore, MD 21235

IF YOU NEED HELP WRITING TO US, OR IF YOU DON'T UNDERSTAND THIS NOTICE, you may contact the lawyers representing the S.P. v. Chater class members at:

 

    The HIV Law Project
    841 Broadway, Suite 608
    New York, NY 10003
    Telephone: (212) 674-7590

  

These lawyers can advise you and, if appropriate, assist you in notifying Social Security that you disagree with this decision.

If you have a lawyer or representative, you should show this letter to him or her.

ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL O SSI. FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR A SU OFFICINA DE SEGURO SOCIAL O A UN ABOGADO PARA UN EXPLICACION. LOS DIRECIONES Y NUMEROS DE OFICINAS LEGALES ESTAN MENCIONADAS ARRIBA.

Attachment 7. Route Slip for Non-Class Member/Ineligibility for Relief Cases

ROUTING AND TRANSMITTAL SLIP

 

 DATE

TO:

SSA, New York Regional Office

INITIALS DATE
Disability Programs Branch    
26 Federal Plaza, Room 40-114    
New York, NY 10278    
Attn: S.P. Coordinator    
     
     
__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 _____OTHER

REMARKS

S.P. CASE

Claimant: ___________________________
SSN: ___________________________

We have determined that this claimant is not an S.P. class member entitled to relief. (See screening sheet and copy of notice of non-class membership/ineligibility for relief in the attached claim file(s).) We are forwarding this file to your office because the claimant disputes the non-class membership determination and class counsel has asked to review the file. SEE HALLEX I-5-4-54 Part V.B.5.

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. S.P. Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Expired)

S.P. Class Action Case

READJUDICATION NECESSARY

Claimant's name: ___________________________
SSN: ___________________________

This claimant is an S.P. 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
Determinations
5th Floor Mailroom
Cortlandt Street
New York, New York 10071-3107

(Destination Code: 1335)

  

NOTE:

If this is a TERI case or if a face-to-face review necessary, please forward to the servicing DDS.

Attachment 9. S.P. Class Member Flag for Headquarters Use (DDS Readjudication -- Retention Period Has Not Expired)

   

S.P. Class Action Case

READJUDICATION NECESSARY

Claimant's name: ___________________________
SSN: ___________________________

This claimant is an S.P. 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  
 

  Determinations
5th Floor Mailroom
22 Cortlandt Street
New York, New York 10071-3107

  
  (Destination Code: 1335)  

* If this is a TERI case or if a face-to-face review is necessary, send the file to the servicing DDS.

NOTE:

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

Attachment 10. 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 Joint Stipulation of the parties and an order of the United States District Court for the Southern District of New York in the case of S.P. v. Chater, No. 90 Civ. 6294 (S.D.N.Y. February 16, 1996), the claimant has requested readjudication of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as an S.P. class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Stipulation and Order. Because the claimant's current claim shares certain issues in common with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the New York Office of Disability Determinations [or the “resident” DDS, if appropriate] which will conduct the S.P. 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 11. Notice Transmitting ALJ Order of Dismissal

  NOTICE OF DISMISSAL
Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the New York Office of Disability Determinations 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 S.P. class member claim back to the New York Office of Disability Determinations 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 within 30 days, contact your local Social Security office.

Do You Have Any Questions?

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

Enclosure

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

Attachment 12. S.P. Class Member Flag for HO Use (DDS Readjudication)

S.P. Class Action Case

READJUDICATION NECESSARY

Claimant's Name: ___________________________
SSN: ___________________________

This claimant is an S.P. class member. The attached S.P. 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 S.P. readjudication action.

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

  New York Office of Disability  
 

  Determinations
5th Floor Mailroom
22 Cortlandt Street
New York, New York 10071-3107

  
  (Destination Code: 1335)  

NOTE:

If this is a TERI case or if a face-to-face review is necessary, send the alert and the prior claim file to the servicing DDS.