I-5-4-56.Bentley v. Chater

A. Pre-Screening Actions - General

1. Identification, Notification and Routing

   Based on the foregoing class definition, Litigation Staff identified potential class members by a computer run and, in a single mailing on October 31, 1995, sent notices to all potential class members. Individuals had 60 days from the date of receipt of the notice to return a reply form to the Office of Disability and International Operations (ODIO), requesting that SSA readjudicate their claims under the terms of the Bentley settlement and order. Undeliverable notices were returned to ODIO to update the Civil Action Tracking System (CATS). Litigation Staff through CATS will screen reply forms received more than 65 days after the mailing date. If the reply form is not timely, the Social Security field office (FO) will develop good cause for late filing.

   Individuals can also request review by contacting any FO in person, in writing or by telephone. The FO will assist the claimant in completing the reply form, or if the claimant lost the reply form or never received one, the FO will complete a Request for Court Case Review/Change of Address Worksheet.

2. Alert and Folder Retrieval Process

   ODIO will enter the reply form information into the CATS, and CATS will generate court case folder alerts (see Attachment 2 for a sample Bentley Court Case Flag/Alert). The alerts and appropriate systems queries will be used to locate and retrieve the Bentley claim file(s).

   ODIO will associate the computer-generated alerts with ODIO jurisdiction title II and concurrent title II and title XVI potential class member claim file(s), except those pending in OHA or the Florida ODD, and conduct the screening. The Program Service Centers (PSCs) will retrieve PSC jurisdiction title II and concurrent title II and title XVI potential class member claims, except for those pending in OHA or the Florida ODD. The Wilkes-Barre Data Operations Center (WBDOC) and the FOs will retrieve title XVI potential class member claims. The PSCs, WBDOC and the FOs will forward retrieved claims to the Florida ODD for screening.

3. Alerts Sent to OHA

   If ODIO, the PSCs, WBDOC or the FOs determine 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 a claim is located in an OHA hearing office (HO), ODIO, the PSCs, WBDOC or the FOs will forward the alert/query package and claim file(s), if any, directly to the HO for processing. If the claim is pending or stored at OHA Headquarters, ODIO, the PSCs, WBDOC or the FOS will forward the alert/query package 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 should maintain a record of all alerts received and the location, if any, to which they are transferred. SSA needs this information to do the final class membership reconciliation.

4. Folder Reconstruction

   In general, ODIO, the PSCs or FOs will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential Bentley cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the particular claim would not confer class membership. OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the servicing FO. 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 servicing FOs. The OAO branch will also route reconstruction requests directly to the servicing FO and will send a copy of the request to 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 Policy and Planning Litigation Staff 3-K-26 Operations Building 6401 Security Boulevard Baltimore, MD 21235
   	Attn: Bentley 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 folder, the HO or OAO, as appropriate, will forward the class action material, including the alert, if still in its possession, unneeded claim files, if any, and a copy of the reconstruction request directly to the servicing FO using Attachment 3. The HO or OAO will send a copy of the covering attachment to the OAO Class Action Coordinator, along with a copy of the action taken on the pending claim. For additional information on reconstruction procedures, see Class Action Implementation instructions in HALLEX I-1-7-5 C.

   Occasionally, the situation may arise where OHA is in possession of a Bentley alert, and is ready to take action on a pending, non-Bentley claim, but the Bentley file has not been located and reconstruction appears necessary but has not yet been requested. In this situation, OHA will not delay its action on the pending claim. OHA will proceed with its action on the pending claim and concurrently send the Bentley alert and a reconstruction request to the servicing FO using Attachment 3, modified to fit the circumstances of the case.

B. OHA Screening Actions

1. Determining Jurisdiction for Screening

   1. Current Claim Pending or Stored 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 Bentley claim file(s). 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) to the HO for screening using Attachment 4. (Part V. B. 3. 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 4. (Part V. B. 3. 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 Bentley 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: Bentley Coordinator Telephone Number: (703) 305-0717

   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 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 4. See Part V. B. 3. b. below for special screening instructions when a civil action is involved.

2. Pre-Screening Actions - Specific

   Prior to screening an individual case, the screening component will obtain appropriate systems information to determine whether:

   • there is a subsequent claim pending at any other administrative level or in court;

   • there are additional claims within the class dates which have not been associated;

   • the claimant has received a determination/decision on a subsequent claim with respect to the time period at issue in the potential class member claim, thus providing a basis for determining that the claimant is not a class member eligible for relief.

   The screening component will also:

   • obtain the files for all unassociated claims that fall within the class dates, as well as the files for any inactive claims that postdate the class period (which potentially provide a basis for screen-out or for limiting class relief); and

   • if necessary, request reconstruction of any potential class member claim files that cannot be located, unless available systems data or other information provides satisfactory proof that the particular claim would not confer class membership.

3. 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 5) as follows.

      • Consider all applications denied during the Bentley timeframe;

      • Follow all instructions on the screening sheet and the screening sheet instructions (Attachment 5);

      • Review the signature samples at Attachment 6;

      • 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 DLAI at (703) 305-0655. (DLAI will retain a copy of each screening sheet, share a copy with the OAO Class Action Coordinator and 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 return or forward the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V. A. 3. above) and advise the Coordinator of the action taken on the current claim and its destination. The Coordinator will determine the current claim file location and, if it is located in OHA Headquarters, will forward the alert and any accompanying claim file(s) to the responsible OAO branch for screening, using Attachment 4. If the file(s) is no longer in OHA, the Coordinator will use Attachment 7 to send the alert and any accompanying 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 the 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 4 to forward the material to the OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 7 to forward the material to the non-OHA location. The OAO branch will also advise the OAO Class Action Coordinator of its actions.

   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 Bentley 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 claimant is a class member eligible for relief, the CCPRB will immediately notify Regional OGC so that Regional OGC can take appropriate action. Regional OGC will advise the CCPRB of the action to be taken.

      • If the claimant is not a class member eligible for relief, the CCPRB will follow the instructions in 4. a. below.

4. 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, of that determination using Attachment 8 (modified as necessary to fit the circumstances and posture of the case when there is a current claim); and

        NOTE:

        In addition to the date and claim number entries on page 1 of the notice, include the address and telephone number of the servicing Social Security FO on page 2 of Attachment 8 in the spaces indicated.

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

      • hold the claim file(s) for the normal retention period, then forward to the appropriate storage location if not otherwise needed.

        NOTE:

        There are no class membership dispute procedures in Bentley.

   2. Cases Determined to be Class Members

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

A. Cases Reviewed by the DDS

The Florida ODD will usually conduct the Bentley review. An exception will apply for cases consolidated at the OHA level (see Part VI. D.). The ODD determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with appeal rights (i.e., ALJ hearing, Appeals Council and judicial review) only if the RFC assessment on readjudication is different from the one made by the ODD physicians identified in this action. (See Part VI. B. below.) However, the following processing and adjudication procedures will apply when OHA has responsibility for screening, i.e., when a potential class member claim or another claim is pending or stored in OHA, and when the claimant is a class member.

B. OHA Adjudication of Class Member Claims

The following instructions apply to consolidation cases (see Part D. below) in which the ALJ or Appeals Council conducts the Bentley readjudication and to DDS readjudication cases in which the claimant requests, and is eligible for, a hearing or Appeals Council review. As noted in Part III. and in A. above, class members who receive readjudications in which the RFC assessment remains the same will have no appeal rights. Except as noted herein, HOs and OHA Headquarters will process Bentley class member cases according to all other current practices and procedures including coding, developing evidence, routing, etc.

1. Type of Review and Period to Be Considered

   1. Pursuant to the Bentley Order, the type of review to be conducted is a redetermination. The redetermination consists of 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 Bentley class membership. Because any new evidence must relate to the time period that was at issue in the administrative determination(s) forming the basis for the claimant's class membership, ordering consultative examinations should be done only rarely.

   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) that forms the basis for Bentley class membership, the class member must file a new application to establish eligibility.

2. Disability Evaluation Standards

   Adjudicators must use the disability evaluation standards contained in the statute, regulations and Rulings.

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, e.g., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO branches will associate the alert with the file and screen for class membership. (The OAO Class Action Coordinator will coordinate the necessary actions, as explained in Part V.). (See Part V. B. 4., above, for non-class member processing instructions.)

• Whether the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired or not, OAO will attach a Bentley class member flag (see Attachment 9), to the outside of the file and immediately forward the original or photocopies (if less than 120 days) of the claim file(s) pertaining to the Bentley claim(s) to the Florida ODD for review of the Bentley class member claim.

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

Because the receipt of a subsequent RFC assessment by a Florida ODD medical consultant other than Dr. Robert Miles, or Dr. Juan Martinez-Serra, is a basis for screen-out (item 9. of the screening sheet), a claimant who filed a subsequent, common-issue claim is unlikely to be a class member. Moreover, by class member definition, claimants who received RFC assessments at the reconsideration level by Dr. Miles or Dr. Martinez-Serra will not be class members with respect to any claims appealed to OHA (regardless of disposition). However, for those few class members who may have class member claims that can be associated with another claim pending or stored at OHA, the following instructions will apply.

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 Bentley 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

   Except as noted below, if a Bentley class member has a request for hearing pending on a current claim, and in all remand cases, including court remands, the ALJ will consolidate the Bentley case with the appeal on the current claim.

   EXCEPTIONS:

   The ALJ will not consolidate the claims if

   • the current claim and the Bentley 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, or

   • a consolidation will unreasonably delay action on either the current claim or the Bentley claim.

   If the claims are consolidated, follow Part VI. E. 2. a. below. If the claims are not consolidated, follow Part VI. E. 2. b. below.

   1. Actions if Claims Consolidated

      When consolidating a Bentley claim with any current claim, and when 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, consolidation will result in a reopening of the Bentley 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 adjudicated in the Bentley claim, the two claims should be considered separately. Nevertheless, if the claimant is found to be disabled within the timeframe of the Bentley claim, the claim will be reopened through the date at issue in the current claim. If the current claim and the Bentley claim are consolidated, 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 Bentley 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 Bentley claim raises an additional issue(s);

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

      • indicate in the decision which determinations are appealable and which are not because there are no appeal rights with respect to redeterminations of Bentley claims unless such redeterminations result in an RFC different from the one last done by Dr. Miles or Dr. Martinez-Serra.

      • forward a copy of the decision directly to DLAI at the address in Part V. B. 1. a. above.

   2. Action if Claims Not Consolidated

      If the ALJ decides not to consolidate the current claim with the Bentley claim because: 1) the claims do not have any issues in common, or 2) there is a court-ordered time limit, or 3) consolidation would unreasonably delay action on either the current claim or the Bentley claim, the ALJ will:

      • flag the Bentley claim for ODD review using Attachment 10; immediately route it to the Florida 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 10 in the current claim file;

      • 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 Bentley 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 Bentley claim.

   1. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim

      In this instance, the Appeals Council will proceed with its intended action on the current claim. OAO staff will attach a Bentley case flag (Attachment 10; appropriately modified) to the Bentley claim, immediately forward the Bentley claim to the Florida ODD for adjudication, and retain a copy of Attachment 10 in the current claim file. 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.

   2. Appeals Council Intends to Issue a Favorable Decision on the Unresolved Claim -- No Bentley Issue(s) Will Remain Unresolved

      If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Bentley 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 Bentley claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Bentley claim and will indicate which determinations are appealable and which are not because there are no appeal rights with respect to redeterminations of Bentley claims unless such redeterminations result in an RFC different from the one done by Dr. Miles or Dr. Martinez. OAO staff will forward a copy of the decision, for coordination with DLAI, to the OAO Class Action Coordinator at the address in Part V. A. 3. above.

   3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Bentley Issue(s) Will Remain Unresolved

      If the Appeals Council intends to issue a fully favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Bentley claim, the Appeals Council will proceed with its intended action. OAO staff will flag the Bentley claim for ODD review using Attachment 9 and immediately route it to the Florida ODD for readjudication (OAO staff will make photocopies of any relevant material from either file and place in the other file before shipping) and will retain a copy of Attachment 9 in the current claim file.

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

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

      EXCEPTIONS:

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

      • the current claim and the Bentley 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, or

      • consolidation would unreasonably delay action on either the current claim or the Bentley claim.

      If any of the above-listed exceptions apply, OAO will immediately forward the Bentley class member claim to the Florida ODD, for separate review. The case flag in Attachment 10 should be modified to indicate that the Appeals Council, rather than the ALJ, is forwarding the Bentley class member claim for separate processing.