I-5-4-55.Adamson v. Chater

Attachment 1. Privacy Act Protective Order filed October 23, 1995; Stipulation; Findings of Fact, Conclusions of Law, and Order of Settlement and Dismissal filed December 19, 1995; and Final Judgment Entered by the United States District Court for the District of Colorado on December 21, 1995.

[DATE FILED 12/21/1995]

IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 84-S-2024

GERALD K. ADAMSON, et al., individually and as representative of all persons similarly situated,

          Plaintiffs,

and

FREDDIE BYNUM, BARBARA 
 McGOWEN, DANNY PHILLIPS
 and
DOROTHY COSGROVE,

          Plaintiffs/Intervenors,

v.

SHIRLEY S. CHATER, Commissioner of Social Security, Defendant

__________________________________________________________________________

FINAL JUDGMENT

__________________________________________________________________________

By order dated March 14, 1989, this District Court certified a class comprised of:

All persons who are Tenth Circuit residents (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) who have filed or will file applications for Social Security Title II disability benefits (excluding applicants for widow's, surviving divorced wife's or widower's disability benefits) or SSI disability benefits, who had or will have their claims for disability benefits evaluated by the Defendant under the Defendant's regulations, policies, and practices, who have been found not disabled by Defendant on or after one year and 60 days prior to filing this class action, either in an initial determination, reconsideration determination, administrative law judge determination, or Appeals Council determination, who have presented claims to the Defendant and, in which the (holdings of the Tenth Circuit) concerning the weight given to treating physicians' opinions was not applied. The class also includes those people who have been or will be found eligible for disability benefits and have had or will have those benefits terminated on or after one year and 60 days prior to filing this class action in a continuing disability review and in which the [Tenth Circuit] standard concerning the weight given to treating physicians' opinions was not applied, and who have presented claims to the Defendant.

In accordance with the Order of Settlement and Dismissal entered December 19, 1995, by the Honorable Daniel B. Sparr, United States District Judge, and Rules 23(c) (3), 54, 58, and 79(a) of the Federal Rules of Civil Procedure, it is now

     ORDERED that final judgment is entered as to all members of the above-described class and to the defendant, in accordance with the terms and conditions of the Stipulation approved by the Court in its Order of Settlement and Dismissal.

DATED at Denver, Colorado this 21st of December, 1995.

[DATE FILED 12/19/1995]

IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 84-S-2024

GERALD K. ADAMSON, et al., individually and as representative of all persons similarly situated,

          Plaintiffs,

and

FREDDIE BYNUM, BARBARA McGOWEN, DANNY PHILLIPS, and DOROTHY COSGROVE,

          Plaintiffs/Intervenors,

     v.

SHIRLEY S. CHATER, Commissioner of Social Security

     Defendant.

__________________________________________________________________________

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER OF SETTLEMENT AND DISMISSAL

__________________________________________________________________________

SPARR, J.

     On October 13, 1995, the Court held a hearing in this case pursuant to Fed. R. Civ. P. 23(e). In accordance with Fed. R. Civ. P. 52(a), the Court enters the following findings.

A. FINDINGS OF FACT

1. On May 31, 1995, upon the joint motion of all the parties to conduct proceedings pursuant to Rule 23 (e) and in consideration of the proposed Stipulation for settling this case, this Court entered an order approving the Notice of Proposed Settlement in Social Security Lawsuit tendered on April 24, 1995.

2. After examining the Notice of Proposed Settlement, the Court finds that it explains and gives information regarding:

   1. the general requirements for class membership;

   2. how notice will be given to the potential class members after the approval of the Stipulation;

   3. the responsibility of potential class members specifically to ask the Social Security Administration to redetermine previously denied disability claims;

   4. the circumstances in which the Social Security Administration will reexamine the claims and the general criteria to be used in redetermining the claims;

   5. the type of notice to be given to people who request redetermination but who are not eligible for relief under the terms of the Stipulation;

   6. what will occur if the redetermination results in a favorable decision; and

   7. the appeal rights that are available if the redetermination is unfavorable.

   Thus, the Notice of Proposed Settlement “ 'fairly apprise [d]' the class members of the terms of the proposed settlement and of their options.” Gottlieb v. Tiles, 11 F.3d 1004, 1013 (10th Cir. 1993).

3. The Court finds the parties used their best efforts to disseminate the Notice of Proposed Settlement to interested persons. The Notice was published on July 30, 1995, in the Rocky Mountain News, Wichita Eagle, Albuquerque Journal, Daily Oklahoman, Salt Lake City Tribune, and Casper Star-Tribune. Notice was also posted in all Social Security Administration field offices in the six states of the Tenth Circuit and in numerous other locations identified in Advisement of Posted Notice Pursuant to Federal Rule of Civil Procedure 23(e), which is part of the record in this case.

4. No class member filed an objection to the settlement or objected to the settlement at the hearing on October 13, 1995.

5. The record shows that there were significant issues in this case concerning liability and damages. Had the matter gone to trial, the litigation would have been protracted and there would have been a high likelihood of appeal.

6. The Court finds that the counsel for both the government and the plaintiffs have energetically and effectively litigated the matter. The Court is acquainted, by reputation, with counsel for both the government and the class.

7. The parties have entered into settlement in good faith and after substantial and lengthy arm's-length negotiations. They agree that the settlement is fair and reasonable.

8. The attorneys' fees of $57,539.67 specified in the Stipulation are clearly fair and reasonable based upon an examination of the file and the efforts of class counsel, and constitute payment in full for both past and future representation. The fees paid to plaintiffs' counsel in no wise diminish the recovery of any member of the class or the class as a whole.

9. The Court finds that the settlement is fair, reasonable, and adequate. See Gottlieb, 11 F.3d at 1014.

B. CONCLUSIONS OF LAW

1. The Notice of Proposed Settlement to all class members in all respects is proper and adequate and complies with the appropriate requirements of due process.

2. The terms of the settlement of this action as set forth in the Stipulation are hereby adjudged to be fair, reasonable, and adequate

     Accordingly, it is hereby:

     ORDERED that the Stipulation settling this case is approved. It is further

     ORDERED that the Complaint and this civil action are dismissed, each party to pay its own costs.

     The Clerk of the Court is directed to enter the Stipulation and this Order of Settlement and Dismissal and also to enter a final judgment pursuant to Fed. R. Civ. P. 23(c)(3), 54, 58, and 79(a), substantially in the form as appended.

DATED at Denver, Colorado, this 19th day of December, 1995.

Civil Action No. 84-S-2024

 

GERALD K. ADAMSON, et al.,

          Plaintiffs,

and

FREDDIE BYNUM, BARBARA
 McGOWEN, DANNY PHILLIPS 
 and
DOROTHY COSGROVE,

          Plaintiffs/Intervenors,

v.

SHIRLEY S. CHATER, ¹

Commissioner of Social Security,

          Defendant.

__________________________________________________________________________

STIPULATION

__________________________________________________________________________

     WHEREAS, on March 14, 1989, the Court certified a class in this action, and

     WHEREAS, the parties wish to avoid further litigation and wish amicably, fully, and finally to resolve all disputes that have been asserted in this action,

     THEREFORE, all parties in this civil action, by their undersigned counsel, hereby agree, subject to approval by the Court, to the settlement of the plaintiffs' claims in accordance with the following terms and conditions:

1. Individuals who shall be entitled to seek relief under this Stipulation shall include, subject to the exclusions provided in Paragraph 2, those residents of Wyoming, Utah, Colorado, Kansas, Oklahoma, and New Mexico (Tenth Circuit) who, while residing in the Tenth Circuit, had a claim for disability insurance benefits (DIB) under Title II of the Social Security Act, or a claim for supplemental security income (SSI) disability benefits under Title XVI of the Social Security Act, or a concurrent DIB and SSI disability benefits claim, denied or terminated (denied/terminated), because it was decided that the claimant could engage in past relevant work or other work (step 4 or 5 of the sequential evaluation process)²; and in addition, who meet the criteria following in (a), (b), and (c) of this Paragraph:

   1. The denial/termination decision on the claim was made:

      1. by a State Disability Determination Service (DDS), at the reconsideration level of administrative review, during the period beginning October 17, 1984, and ending July 31, 1991; or

      2. by an administrative law judge (ALJ), during the period beginning April 10, 1987, and ending June 27, 1988; or

      3. by the Appeals Council, during the period beginning April 10, 1987, and ending June 27, 1988, either as a denial/termination at step 4 or 5 of the sequential evaluation process or as a denial of review of an ALJ decision that denied/terminated disability benefits at step 4 or 5 of the sequential evaluation process; and

   2. The individual did not obtain further administrative or judicial review of the denial/ termination decision; and

   3. The individual's claims file contains an opinion from a treating physician regarding the individual's medical condition that is inconsistent with the decision to deny or terminate benefits. For purposes of this Stipulation, a treating physician opinion means a medical opinion, as defined in 20 C.F.R. §§ 404.1527(a) (2) and 416.927(a) (2), from a treating source that is an acceptable medical source, as defined in 20 C.F.R. §§ 404.1513(a) and 416.913(a).

2. No individual shall be entitled to seek relief under this Stipulation if:

   1. that individual's claim has been readjudicated under the Luna, Trujillo, Peck, or Zebley class actions; or

   2. that individual has already received a subsequent award of benefits with respect to the same period of time at issue in the class claim; or

   3. that individual reasserted a claim in a subsequent application or request for reopening, covering the same period of time as the class claim, and an administrative decision on the merits of that claim was issued by a DDS after July 31, 1991, or was issued by the Office of Hearings and Appeals before April 10, 1987, or after June 27, 1988.

3. To the extent practicable, within 120 days of the effective date of this Stipulation, the Social Security Administration (SSA) shall, by means of its data processing systems, identify the names, Social Security numbers, and last known addresses of those class members who are potentially entitled to seek relief, in accordance with the criteria set forth in Paragraphs 1 and 2. In order to identify class members described in Paragraphs 1(a) (ii) - (iii), SSA shall identify those individuals whose claims were denied/terminated at step 4 or 5 of the sequential evaluation process at the reconsideration level, who appealed those denials/terminations, and whose claims were then denied/terminated during the period beginning April 10, 1987, and ending June 27, 1988, at the requisite level of administrative review described in Paragraphs 1(a)(ii)-(iii). Upon completion of identification, SSA shall provide plaintiffs' counsel with two lists of the persons identified as class members who are potentially entitled to seek relief: (1) one alphabetical, by last name, and (2) one by state. The lists will set forth each person's name, SSN or claim number (or both where available), and most current address available to SSA. The list may be supplied on computer tape or other method agreed to by the parties.

4. Within 180 days of the effective date of this Stipulation, SSA shall send a notice (Attachment A) by first class mail to the last known address of each identified class member described in Paragraphs 1(a) (ii)-(iii) and of those identified class members described in Paragraph 1(a) (i) whose claims were denied/terminated on or after April 10, 1987, through July 31, 1991. The notice will inform class members of their possible entitlement to a redetermination of their claims, and will further inform such individuals that they must return an enclosed pre-addressed and postage prepaid postcard or form, within 60 days of receipt of the notice, in the event that such redetermination is desired. Should individual notices be returned as undeliverable, SSA will attempt to obtain updated addresses by providing a computer tape to the State Department of Social Services or corresponding agency in each State within the Tenth Circuit for the sole purpose of obtaining addresses through a computerized match with public assistance, Food Stamp, and/or other relevant records. SSA's attempts to obtain updated addresses are subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C.A. § 552a. SSA shall not be required to institute legal proceedings to gain access to State data system records or to reimburse or compensate States for searching such records. SSA shall mail notices to potential class members within 60 days of receipt of an updated address.

5. If a potential class member receives a notice referred to in Paragraph 4 and does not respond within the required 60 days, he or she will be denied relief under this Stipulation, absent a finding of “good cause” as set forth in 20 C.F.R. §§ 404.911 and 416.1411. Any responder not found to have “good cause” for an untimely response will be so notified by SSA, with a copy of the notification sent contemporaneously to class counsel.

6. SSA will also prepare and disseminate posters (Attachment B) to all SSA field offices in the Tenth Circuit, for posting in such offices, informing those class members described in Paragraph 1(a) (i) who are not entitled to notice by mail,³ of their potential right to review of their disability claims under the terms of this Stipulation. Posters will remain displayed in the SSA field offices for a period of 120 days, and class members will be required to advise SSA of their desire to have a redetermination of their claims no later than 60 days after the poster display period in the SSA field offices has ended. SSA will also provide to class counsel a supply of posters, equal in number to those placed in SSA's field offices, for posting in locations that class counsel determine would best reach potential class members. Those class members described in Paragraph 1(a) (i) who are not entitled to notice by mail and who do not advise SSA of their desire to have a redetermination of their claims within 60 days after the poster display period has ended, will be denied relief under this Stipulation, absent a finding of “good cause”. Any responder not found to have “good cause” for an untimely response will be so notified by SSA, with a copy of the notification sent contemporaneously to class counsel.

7. The claims files or other relevant SSA records of those individuals who timely respond to the posters and mail notices will be screened to determine if they are class members entitled to relief. To assess whether the criteria in Paragraph 1(c) are met, the individual's claims file will be reviewed to determine if the personalized denial notice, the residual functional capacity form, the Psychiatric Review Technique Form, or a separate rationale evidences the existence of a treating physician opinion that is inconsistent with the decision to deny or terminate disability benefits. If those documents do not indicate the existence of such an opinion, the individual will be determined not entitled to relief under this Stipulation. If the existence of an inconsistent opinion is indicated, the claims file will be further screened to determine the nature of the opinion. If the opinion is brief, conclusory, and unsupported by the evidence, the individual will be determined not entitled to relief. If the opinion is not brief, conclusory, and unsupported by the evidence, the individual will be determined entitled to relief, provided the other criteria in Paragraphs 1 and 2 are met.

8. Those individuals who are determined not to be class members entitled to relief under this Stipulation will be notified in writing of such determination and will be further informed of their right to a review, in accordance with the procedures set forth in Paragraph 9 of this Stipulation. Copies of said notices shall be sent contemporaneously to class counsel.

9. Individuals who disagree with a finding that they do not meet the criteria for class members entitled to relief may contact or write class counsel for additional review. In turn, class counsel may, within 60 days of the date of the notice referred to in Paragraph 8, notify in writing an individual to be designated in the Office of the Chief Counsel, Region VIII, Office of the General Counsel, Social Security Administration, Room 327, Federal Building, 1961 Stout Street, Denver, CO 80294-3538, that review is desired of the individual's claims file or other records relied upon by SSA in making the determination of non-entitlement to relief. Subject to the requirements of the Privacy Act and other applicable privacy statutes or regulations, within 30 days of receipt of class counsel's written request to review such records, SSA will make that individual's records available at an SSA field office convenient to class counsel, and will notify class counsel in writing of file availability. Such records will be available for review by class counsel for a period of 30 days. At the expiration of the 30 days, if class counsel still has not reviewed the records, it shall be assumed that review is no longer desired, and SSA's determination of non-entitlement to relief shall become final and not subject to further review.

10. If class counsel's review of the relevant SSA records establishes that there is a dispute as to whether the individual is a class member entitled to relief, class counsel will notify the Office of the Chief Counsel, Region VIII, by telephone or in writing, within 30 days of such review. Both parties will then attempt to resolve the dispute. In the event the parties are unable to resolve the dispute, class counsel may submit any unresolved dispute to the Court in Adamson for final resolution, by proper motion made within 30 days of the written reaffirmation by the Office of the Chief Counsel of the prior determination of non-entitlement to relief, and the defendant shall have the opportunity to respond consistent with federal and local court rules. Failure of class counsel to request a judicial determination within the aforesaid 30-day period shall render final, and not subject to further review, SSA's determination of non-entitlement to relief.

11. Those individuals who are found to be class members entitled to relief under this Stipulation will be given a redetermination of their claims to ascertain if the previous denial or termination was proper. If the file evidence is inadequate to assess the individual's impairment(s) during the time period covered by the previous denial or termination, SSA shall attempt to secure and/or develop any further evidence that may be necessary, in accordance with normal claims development procedures. SSA also shall consider any additional medical evidence the class member may submit that relates to the relevant period of time.

12. SSA shall evaluate the individual's claim in accordance with the statutes, regulations, and instructions in effect at the time of the redetermination. Should this review result in a finding that the previous denial/termination was improper and that the individual should have been found disabled, the claim of such individual will be reopened, with the individual's claim of entitlement to benefits being determined through the date of the new determination rendered. Upon such reopening, SSA shall attempt to obtain updated medical records, and the individual shall cooperate in this regard in accordance with the requirements of 20 C.F.R. §§ 404.1512-.1519p and 416.912-.919p.

13. Except as noted in Paragraph 15 of this Stipulation, all redeterminations shall be conducted at the reconsideration level of administrative review, with determinations being appealable to an ALJ upon request made pursuant to the procedures set forth at 20 C.F.R. §§ 404.933 and 416.1433. Appeal of an ALJ decision will be to the Appeals Council, upon request made pursuant to the procedures set forth at 20 C.F.R. §§ 404.968 and 416.1468. Class members afforded relief under this Stipulation will retain rights to judicial review as provided in 42 U.S.C.A. §§ 405(g) and 1383(c) (1) and (3).

14. When processing redeterminations under this Stipulation, the DDS will give such redeterminations no greater or lesser priority than other claims processed by the DDS. Upon conclusion of the redetermination, SSA will notify each class member of the outcome of the redetermination.

15. At the option of SSA, class members with subsequent disability claims active and simultaneously pending at any administrative level of review at the time the class claim is being evaluated may have all claims covered by this Stipulation consolidated and reviewed with the current claim. SSA will use its best efforts to ensure that adjudication of the current claim is not delayed by such consolidation.

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

    1. the number of class notices mailed;

    2. the number of individuals responding to the notices;

    3. the number of notices returned as undeliverable;

    4. the number of individuals responding to the posters;

    5. the number of individuals determined to be entitled to a redetermination of their claims;

    6. the number of individuals determined not to be entitled to a redetermination of their claims;

    7. the number of individuals who received favorable determinations by the DDS;

    8. the number of individuals who received unfavorable determinations by the DDS.

    SSA shall provide reports containing the information maintained in this computerized tracking system to plaintiffs' counsel once every three months commencing 180 days after the effective date of this Stipulation. Upon request, plaintiffs' counsel will be provided with a random sample of DDS decisions on class members' claims for inspection at a mutually agreed upon SSA field office. Once the claim redeterminations required by this Stipulation have been substantially completed and input into this computerized tracking system, SSA shall so advise plaintiffs' counsel by providing him with a final report.

17. The defendant agrees to pay attorneys' fees to class counsel in the total amount of $57,539.67. Class counsel agrees to accept said payment as full and final settlement of all attorneys' fees in this case for all time incurred in the past and to be incurred in the future. Class counsel shall require no further compensation for any additional work regardless of the circumstances. Class counsel represents and warrants that he will distribute the fees received among respective counsel involved in this case now and in the past and will hold the defendant, her administrators, and any department, agency, or establishment of the United States harmless from any dispute over the proper allocation of attorneys' fees.

18. The terms set forth in this Stipulation shall be in full settlement and satisfaction of any and all claims and demands, of whatever nature, the plaintiffs had or may hereafter acquire against the defendant named in this action, and her administrators or 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 on account of and with respect to the incidents, claims, or circumstances giving rise to and/or alleged in the above-entitled action and as more particularly set forth in the pleadings filed herein. Upon the Court's approval of this Stipulation, the Complaint herein and any amendments thereto and claims included therein shall be dismissed, with prejudice, and the Court shall retain continuing jurisdiction in this action only over matters relating to compliance with and enforcement of the terms of this Stipulation.

19. Since this Stipulation is entered by agreement of the parties, as a means of avoiding further litigation, the terms of this Stipulation shall not be cited as precedent in any other case. This Stipulation is not and shall not be construed as an admission by the defendant of the truth of any allegation or the validity of any claim asserted in this action or of the defendant's liability therein, nor is it a concession or an admission of any fault or omission in any act or failure to act, or in any statement, communication, report, instruction, rule, regulation, or other document made or maintained by the defendant, nor shall it be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the defendant. This Stipulation is not an admission or finding that the position of the defendant was not substantially justified or that the defendant is liable as a matter of law for the payment of any attorneys' fees, expenses or costs.

20. Class counsel, by signing below, warrants and guarantees that he is sole counsel to the plaintiff class and that he is duly authorized to stipulate to the settlement of issues in this action on behalf of the plaintiff class. Counsel for the defendant, by signing below, represents that he is authorized to stipulate to the settlement of the issues in this action.

21. The entry of this Stipulation and accompanying Order, and the Clerk's entry of final judgment in accordance with Rules 54, 58, and 79(a) of the Federal Rules of Civil Procedure, shall be a condition precedent to any obligation of any party pursuant to this stipulation. This Stipulation shall become effective on the 61st day after such entry of final judgment; provided however, that this Stipulation shall not be effective if an appeal of the Court's entry of the Order or final judgment is filed, in which event the Stipulation shall be effective only upon the expiration of all the appeal periods subsequent thereto.

[DATE FILED:10/23/1995]

IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 84-S-2024

GERALD K. ADAMSON, et al.,

 

          Plaintiffs,

and

FREDDIE BYNUM, BARBARA McGOWEN,

DANNY PHILLIPS and DOROTHY COSGROVE,

          Plaintiffs/Intervenors,

v.

SHIRLEY S. CHATER,

Commissioner of Social Security,

 

          Defendant.

__________________________________________________________________________

PRIVACY ACT PROTECTIVE ORDER

__________________________________________________________________________

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

     ORDERED, that:

1. The defendant may disclose to plaintiffs' counsel information required to be disclosed to them under the Stipulation executed by the parties in this case that is subject to restrictions on disclosure under the Privacy and Social Security Acts and other Federal law 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. In accordance with the confidentiality requirements of 42 U.S.C.A. § 290dd-2 disclosure permitted under this paragraph does not extend to the disclosure of patient drug and alcohol treatment records, unless the affected claimant provides specific written consent to the disclosure of such records.

2. Plaintiffs' counsel shall use the information disclosed pursuant to paragraph 1 of this Order only for the purposes described above. 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 non-attorney members of the staff of plaintiffs' counsel; (3) to the 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 items (2) and (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. Additionally, plaintiffs' counsel may disclose information pertaining to particular class members or potential class members to those particular individuals or to representatives acting on behalf of such individuals.

3. Plaintiffs' counsel and members of their staff shall limit the making of copies of the records disclosed pursuant to paragraph 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 destroyed upon the completion of implementation of the Stipulation.

4. Nothing in 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.

 

 

Case No. 84-S-2024

CERTlFICATE OF MAILING

I hereby certify that a copy of the PRIVACY ACT PROTECTIVE ORDER signed by Judge Daniel B. Sparr and filed on October 23, 1995, was mailed on October 24, 1995, to the following:

R. Eric Solem1 Esq.
 3300 East First Avenue
 Suite
370
 Denver, CO 80206
 
 Chalk S.
Mitchell
 Assistant
U.S. Attorney
 
 Carol S. Prescott
 Assistant
Regional Counsel HHS
 1106 Byron G. Rogers Building

Denver,
CO 80294
 
 Kade McClure, Esq.
 Legal Aid
of Western Oklahoma, Inc.
 621 D Avenue
 Lawton,
OK 73501
 
 Perry Franklin, Esq.
 Legal
Services in Southeast Kansas
 P.O. Box 1509
 Pittsburgh,
KS 66762
 
 Magistrate Judge 0. Edward
Schlatter

Attachment A

SOCIAL

SECURITY               Important
Information

NOTICE________________________________________________________

From:
The Social Security Administration

READ CAREFULLY - PLEASE RESPOND TO THIS NOTICE WITHIN 60 DAYS

We are writing to let you know about a Federal court case called Adamson v. Chater affecting individuals whose claims for disability benefits were denied or terminated while they lived in Wyoming, Utah, Colorado, Kansas, Oklahoma, or New Mexico. Because of this case, you may ask us to review our earlier decision denying your claim for disability benefits.

You can ask us to look at your claim again. If you want us to do so, you must fill out the enclosed reply form and send it to us within 6 days. If you do not return the form within 60 days, we may not review your claim unless you have good cause for not returning it on time. If we find that you qualify, we will review your case again and send you a notice about the results of your review. We will also let you know if you do not qualify for a review.

IF YOU NOW GET MONEY FROM SOCIAL SECURITY

Even if you now get money from Social Security, we still may owe you more for an earlier claim for disability which was denied or terminated. Return the reply form within 60 days if you want us to look at your prior claim and determine whether you qualify for a review of the earlier decision.

IF YOU HAVE QUESTIONS

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

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

R. ERIC SOLEM
Law Offices of R. Eric Solem, P.C.
3300 East First Avenue, Suite 370
Denver, CO 80206
Tel: (303) 321-5544

Enclosures:

Reply Form and Envelope

Si usted no entiende esta informacion relacionada con sus beneficios de incapacidad, piadle a un representante que se la traduzca.

 

 

 

 

Attachment B

A SPECIAL NOTICE FROM SOCIAL SECURITY TO PEOPLE WHO WERE DENIED DISABILITY BENEFITS WHILE THEY LIVED WYOMING, UTAH, COLORADO, KANSAS, OKLAHOMA, OR NEW MEXICO ANY TIME BETWEEN OCTOBER 17, 1964 AND APRIL 9,1987

You may be entitled to disability benefits from Social Security because of a court case called Adamson v. Chater (D. Colo.) The court-approved settlement in the Adamson case provides that Social Security may review your claim IF:

• between October 17, 1984, and April 9, l987, Social Security decided you were able to return to work and turned down your request for reconsideration of:

  • the denial of your application for Social Security or Supplemental Security Income (SSI) disability benefits, OR

  • the decision to terminate your Social Security or Supplemental Security Income disability benefits, AND

• there was an opinion in your claims file from your doctors or other acceptable medical source saying that you were disabled, AND

• you did not appeal the reconsideration decision to an Administrative Law Judge

If you think you meet these requirements and qualify for review of your claim, contact your nearest Social Security office by ________199_. Tell them you think you might be an Adamson class member. Have your Social Security number ready to give them. If you have a letter from Social Security denying your claim or stopping your benefits, take it with you. If you are eligible for a review or your claim and Social Security decides that you were or are disabled, you may receive back benefits.

This notice does not fully describe all of the rights or limitations which exist under the Adamson case. You may obtain further information by contacting your nearest Social Security office, local legal aid office, or class counsel. Any Social Security office can give you this information.

IMPORTANT. It's up to you to notify Social Security if you think you might be eligible for review of your claim

DON'T WAIT. ACT NOW.

Si usted no entiende esta informacion relacionada con sus beneficios de incapacidad, pidale a un representante que se la traduzca.

                                        Destruction Date: (120 days from issuance)

 

 

 

¹Pursuant to Pub. L. No. 103-296, the Social Security Independence and Program Improvements Act of 1994, the function of the Secretary of Health and Human Services in Social Security cases was transferred to the Commissioner of Social Security effective March 31, 1995. In accordance with section 106(d) of Pub. L. No. 103-296, Shirley S. Chater, Commissioner of Social Security, should be substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. No further action need be taken to continue this suit. Id.

²For ease of reference in this Stipulation, the term “step 4 or 5 of the sequential evaluation process” also refers to cases where disability benefits were terminated because the claimant could engage in past relevant work or other work. The ability to engage in past relevant or other work is actually assessed at step 7 or 8 of the sequential evaluation process used in continuing disability review cases.

³Class members described in Paragraph 1(a) (i) who are not entitled to notice by mail include those whose claims were denied/terminated between the dates of October 17, 1984, and April 9, 1987.

Attachment 2. Adamson Court Case Flag/Alert

PAYEE ADDRESS

SHIP TO ADDRESS:

Office of Disability Determinations
State of Claimant's Residence

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. Screening Flag - Within OHA

This claimant may be an Adamson class member. The attached folder location information indicates that a current claim file is pending or stored in your office. Accordingly, pursuant to HALLEX Temporary Instruction 5-4-55, we are forwarding [the attached alert] or [the attached alert and prior claim file(s)] for association, screening for class membership, consolidation consideration if appropriate and possible readjudication.

Attachment 4. Adamson SCREENING SHEET

Adamson Screening Sheet Instructions

General Instructions

A separate screening sheet must be prepared for each claim number identified on the alert. Make sure that the claim number, BIC/ID and SSN are the same as on the alert, to ensure proper case clearance.

Consider all title II and XVI claims (denials/cessations) finally decided during the period October 17, 1984, through July 31, 1991, inclusive, that are covered by the class.

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

EXAMPLE 1: SSIRD shows title XVI claim(s) denied for excess income and resources. FACT shows title II claim denied because insured status not met at any time, or alleged onset date occurred more than one year after insured status was last met (disallowance code 90). The claim would be screened out at question No. 7. because the individual did not receive a medical denial.

EXAMPLE 2: SSIRD shows title XVI claim was denied initially but subsequently allowed at the reconsideration or OHA level with no change in date of eligibility. The claim would be screened out at question No. 7. if it were allowed at the reconsideration level, and question No. 10. if it were allowed at the OHA level or above.

Any case that cannot be conclusively screened out on the basis of the queries must be sent to the FO for reconstruction.

Items 1 - 5

Fill in the claimant's SSN, regardless of whether it is the SSN under which the claimant applied for or received benefits. Also fill in the SSN under which the claimant pursued benefits, along with the BIC or ID (i.e., the claim number) from the alert package. If the claimant's name has changed since the original application(s) was adjudicated, indicate the claimant's former name in parentheses. Obtain the claimant's date of birth from the alert package.

Item 6

Complete this item after case screening. Check one block in item 6. a. and, if appropriate, enter the two-digit screen-out code in item 6. b.

Item 7

The certified class excludes applicants for widow's, surviving divorced spouse's or widower's disability benefits under title II. Any other disability claim medically denied or ceased under titles II and/or XVI, is eligible for class membership consideration. A claimant may meet any of three thresholds for the receipt of a final determination/decision. At the DDS level, the determination within the appropriate timeframes must have been at the reconsideration level. Determine the date of the DDS denial from the date on the SSA-831/833-U3. At the OHA level, a claimant may have received either a decision or an Appeals Council denial of review within the appropriate timeframes. A dismissal at the OHA level, or an Appeals Council remand (if they are the only OHA actions within the OHA timeframes) will not establish class membership. However, in the case of a dismissal, the claimant may be eligible for class membership on the basis of the reconsideration determination, i.e., the claimant has received a “final” adjudication (as long as it was received during the class timeframes).

Item 8

The claimant must have been a resident of the 10th Circuit at the time the determination/decision was issued. Some OHA hearing offices outside of the 10th Circuit have jurisdiction to hear claims of 10th Circuit residents. Determine residency by review of the claimant's mailing address. However, if there is any indication in the file that the claimant actually resided outside of the 10th Circuit when the potential class member claim(s) was decided, residency must be developed. Telephone contact with the potential class member may resolve any residency issue or, if necessary, the field office should be asked to investigate.

Item 9

The claimant must have received a determination/decision which required the evaluation of residual functional capacity (RFC) (i.e., a determination/decision at step 4 or 5 of the sequential evaluation) (for cessation cases, a similar determination/decision occurs at step 7 or 8.) Review the SSA-831-U3 (item 22), other denial form or the ALJ's or Appeals Council's decisional findings to determine the basis for denial. On the SSA-831-U3, look for basis denial codes for title II of H1, H2, J1 and J2; for title XVI of N31, N32, N42 and N43. If potential class membership is based on Appeals Council denial of review, the ALJ decision for which review was denied must have been based on step 4 or 5 (or step 7 or 8 for cessation cases).

Item 10

This class relief exception applies only if the individual has received all benefits to which he or she could be entitled based on all potential class member claims. Review the file to determine whether benefits were subsequently allowed or continued from the earliest alleged onset date or cessation date for each claim decided within the timeframes for class membership. The allowance or continuance could have been either on the same or a subsequent claim.

Item 11

Claimants who: 1) filed a subsequent claim; and 2) received a determination/decision during certain time periods may not be eligible for class relief if the determination/decision covered the entire time period at issue in all potential class member claims. The determination/decision need not have been made at step 4 or 5 of the sequential evaluation (i.e., the denial could have been based on steps 1 or 2.) However, a subsequent determination at the DDS level may be a basis for screen-out only if it was issued under the CE/MER regulations (i.e., on or after August 1, 1991). A subsequent decision at the OHA level may be a basis for screen-out if it was issued prior to April 10, 1987, or after June 27, 1988. Do not check “Yes” for item 13 unless the answer is “Yes” for all claims being screened.

Item 12

Examine the entire file(s) for any evidence that the claimant is or could be a member of the Luna, Peck, Trujillo or Zebley class actions (e.g., a reply form, screening sheet or alert). Any readjudication under another class action must have covered the entire time period at issue in Adamson for the screen-out to apply.

For cases decided at the DDS level, review block 34 on the SSA-831 for a remark concerning readjudication as a result of other class action reviews. In addition, the SSIRD carries an indicator of “ZEB” in the AP line that identifies claims readjudicated under Zebley.

If screening or readjudication under the subject class actions is pending, such screening and/or readjudication, as necessary, will be completed at the same time as action on the Adamson claim. (Review HALLEX I-1-7-08 ff for applicable consolidation instructions.) Contact the Adamson coordinator in Litigation Staff if information is needed concerning a claimant's membership or prospective membership in the subject class actions.

A denial of class membership under the above-mentioned class actions does not constitute a basis for screen-out under Adamson.

Item 13

Review the file(s) to determine if the personalized denial notice, RFC form, Psychiatric Review Technique Form or a separate rationale indicates the existence of a treating physician opinion that is inconsistent with the determination/decision to deny or terminate benefits. If those documents do not indicate the existence of such an opinion, the individual is not eligible for relief. If there is such an opinion, review it to determine its nature. If the opinion is brief, conclusory and unsupported by the evidence, the claimant is not entitled to relief. Any question with respect to whether the opinion is brief, conclusory and unsupported by the record should be resolved in favor of the claimant; that is, the claimant should be found entitled to relief.

A treating physician's opinion dated after the date of the final determination/decision on the potential Adamson claim, i.e., the opinion was not considered when the potential Adamson claim was adjudicated, is not qualifying for class membership consideration.

Processing Class Member Determinations

1. Be sure to check the “Member” block in item 6. a. of the screening sheet.

2. In item 15. of the screening sheet, show the date of each application screened and the corresponding date and level of adjudication. Check the block for each claim that confers class membership.

3. 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.

4. Retain the original screening sheet in the claim file. 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

   HO components may also forward screening sheet copies to DLAI by telefax to (703) 305-0655.

   [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). 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 Central Office for entry into the Civil Action Tracking System.]

5. Follow HALLEX I-5-455, Part VI.

Processing Non-class Member Determinations

1. Be sure to check the “Nonmember/Member Not Entitled to Relief” block in item 6. a. of the screening sheet and enter the screen-out code in item 6. b.

2. Follow items b. - d. above.

3. Prepare and issue the “Non-Class Membership Notice” (Attachment 6). Retain a copy of it in the claim file, and mail a copy to the Adamson class counsel and claimant's representative, if any. Forward the claim file(s) as indicated in HALLEX I-5-455, Part V. B. 3. a.

Attachment 5. Screening Flag - Outside OHA

REMARKS

OHA received the attached alert [and prior claim file(s)] for screening and no longer has the current claim file. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the current claim. After associating the alert with the current claim, please forward to the DDS for screening and possible readjudication. SEE POMS DI 42534.010 OR DI 12534.005A.3. and/or HALLEX I-5-455, Part V. B. 2.

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

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

Attachment 6. Non-Class Membership Notice

You asked Social Security to look again at your prior claim for disability benefits. We have looked at your case. You are not eligible for review under the Adamson court case for the reason given below. This means that we will not review your claim.

You are not entitled to review under Adamson because:

We Are Not Deciding If You Are Disabled

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not eligible for review under Adamson v. Chater.

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 Adamson case, you may contact the class attorney, who will answer your questions about class membership. If the attorney thinks this determination is incorrect, he has 60 days from the date of this letter to ask us to look at your case again. The name, address and telephone number of the attorney are:

R. Eric Solem, Esq.
Law Offices of R. Eric Solem, P.C.
3333 South Bannock Street
Suite 910
Englewood, CO 80110

Telephone: (303) 761-4900

If You Think You Are Disabled Now

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

If You Have Any Questions

If you have any questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security Office. The address and phone number are printed at the top of this letter. We can answer most questions over the phone. You can also write or visit any Social Security Office.

If you call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly. You may also contact your personal legal representative, if you have one, or the Adamson attorney listed above.

Si usted no entiende esta informacion relacionada con sus beneficios de incapacidad, pidale a un representante que se traduzca.

cc: R. Eric Solem, Esq.

Attachment 7. Route Slip for Non-Class Members Claims

REMARKS

Adamson Case

We have determined that this claimant is not eligible for Adamson class relief. (See screening sheet and copy of notice of non-eligibility for relief in the attached claim file(s).) SEE POMS DI 12534.010 As requested, we are forwarding the file(s) for class counsel's review.

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

Colorado

888 West Ithaca
Englewood, CO 80110

Kansas

1201 Van Buren
Topeka, KS 66612-1336

New Mexico

1911 Fifth Street
Santa Fe, NM 87505

Oklahoma

Shepherd Mall
2615 Villa Prom
Oklahoma City, OK 73107

Utah

Room 2410
Second Floor Federal Building
324 25th Street
Ogden, UT 84402

Wyoming

Room 2001
100 East B Street
Casper, WY 82601

Attachment 8. Readjudication Flag for OHA Retention Cases

Adamson Class Action Case

READJUDICATION NECESSARY

This claimant is an Adamson class member. After expiration of the retention period, forward claim file(s) to the DDS for readjudication.

[Send folders to the DDS.]

Attachment 9. ALJ Dismissal to DDS

This case is before the Administrative law Judge pursuant to a request for hearing filed on _____________ with respect to the application(s) filed on ______________.

In accordance with the Stipulation of the parties and an order of the United States District Court for the District of Colorado in the case of Adamson v. Chater, No. 84-S-2024 (D. Colo. December 21, 1995), the claimant has requested readjudication of the final (determination/decision) on the prior applications filed on ____________. The claimant has been identified as an Adamson class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Stipulation. Because the claimant's current claim shares certain issues in common with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to the Disability Determination Service, which will conduct the Adamson readjudication. The Disability Determination Service will notify the claimant of its new determination and of the claimant's right to file a new request for hearing.

Attachment 10. Notice Transmitting ALJ Order of Dismissal

Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the Disability Determination Service, which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge has sent your current claim and your Adamson class member claim back to the Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

The Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the Disability Determination Service within 30 days, contact your local Social Security Office.

Do You Have Any Questions?

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

Enclosure

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

Attachment 11. Class Member Flag - Readjudication Necessary

This claimant is an Adamson class member. The attached Adamson claim file was forwarded to this hearing office for possible consolidation with a current claim.

Accordingly, we are forwarding the attached alert and prior claim file(s) to your location for any necessary Adamson readjudication action.

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