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 |
Kendrick Stipulation and Order; Approved by the U.S. District Court for the Southern District of New York on December 26, 1995; Entered by the Clerk of the Court on December 27, 1995. |
| Attachment 2 |
- REQUEST FOR COURT CASE REVIEW/CHANGE OF ADDRESS WORKSHEET |
| Attachment 3 |
- Kendrick COURT CASE FLAG/ALERT |
| Attachment 4 |
- Route Slip or Case Flag for Screening |
| Attachment 5 |
- KENDRICK SCREENING SHEET |
| Attachment 6 |
Notice of Non-Class Membership/Ineligibility for Relief |
| Attachment 7 |
- Route Slips for Non-Class Member/Ineligibility for Relief Cases |
| Attachment 8 |
- Text for Notice of Revised Class Membership/Eligibility for Relief Determination |
| Attachment 9 |
- Kendrick Class Member Flag for OAO Use |
| Attachment 10 |
- Kendrick Flag/Alert to Forward Claim for Updating |
ISSUED: April 30, 1997
I. Purpose
This Temporary Instruction (TI) sets forth the procedures for implementing
the parties' joint Stipulation and Order, finally approved by the United
States District Court for the Southern District of New York on December
26, 1995, and entered on December 27, 1995, in the
Kendrick v. Chater class action involving
allegations of misconduct by an Administrative Law Judge (ALJ).
Adjudicators throughout the country must be familiar with this TI because
of case transfers and because Kendrick class
members who now reside outside of New York and Illinois must have their
cases processed in accordance with the requirements of the joint
Stipulation and Order.
II. Background
On June 28, 1990, plaintiffs filed a class complaint alleging misconduct
by ALJ Helen Anyel (subsequently referred to as the “subject
ALJ”) who worked in the Chicago, Illinois and Manhattan, New York,
Hearing Offices (HOs) of the Office of Hearings and Appeals.
On February 27, 1992, the U.S. District Court for the Southern District of
New York certified a class to include all individuals whose title II
and/or title XVI claims were the subject of an adverse determination by
the subject ALJ and whose claims were not reversed on any subsequent
administrative appeal or readjudication.
In order to avoid further litigation, the parties agreed to settle their
dispute. On August 17, 1995, the district court preliminarily approved the
parties' joint Stipulation and Order (Attachment 1) for settlement.
On November 6, 1995, the Commissioner sent individual notices (pursuant to
Rule 23(e) of the Federal Rules of Civil Procedure) to potential class
members informing them of the terms of the settlement and of their
opportunity to object to the settlement at a fairness hearing to be held
on December 22, 1995.
At the fairness hearing on December 22, 1995, the court considered
objections to the settlement. On December 26, 1995, the court issued an
order granting final approval of the agreement. The clerk of the court
entered the Stipulation and Order on December 27, 1995.
Pursuant to the terms of the Stipulation, SSA will send a second
individual notice to potential class members informing them of their
opportunity to request review of their claims. With the exception of cases
consolidated with a current claim pending at the Appeals Council level
for the purpose of issuing a fully favorable decision (see Part
VI.B.3.c. below), class members who are found entitled to relief will
receive a new hearing decision on their claim from an ALJ other than the
subject ALJ.
III. Guiding Principles
Under Kendrick, the Commissioner will
readjudicate the title II and title XVI claims (both disability
and non-disability) of those persons who: 1) respond to notice
informing them of the opportunity for review or do not receive notice but
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).
OHA will screen the claims of all potential class members and will perform
the necessary readjudications. In most cases, the Hearing Office nearest
to the claimant's residence will perform the required readjudications.
Except for cases processed at the Appeals Council level pursuant to
Part VI.B.3.c., cases readjudicated under the terms of the
settlement will be processed at the ALJ hearing level regardless of the
final level at which the claim was previously decided. The type of
readjudication will be a "reopening" (see Part VI. below).
Class members who receive adverse readjudication decisions will have full
appeal rights (i.e., Appeals Council and judicial review).
IV. Definition of Class
Except as noted below, for purposes of implementing the terms of the
Stipulation and Order, the Kendrick class
potentially entitled to relief consists of all individuals:
who filed a claim for benefits pursuant to title II and/or title XVI of
the Social Security Act; and
who requested a hearing decision by an ALJ on that claim or any issues
arising from that claim; and
whose request was dismissed by or who received a less than fully favorable
decision on the claim from the subject ALJ; and
whose dismissal or decision by the subject ALJ was dated on or after
September 25, 1977, but before May 22, 1995.
A person is not a class member eligible for relief if
(1.) the individual received a fully favorable decision on the claim
giving rise to class membership, following an appeal, or remand from an
appeal, or a reopening; or
(2.) the individual received the equivalent of a fully favorable decision
on the claim giving rise to class membership, as a consequence of having
obtained a fully favorable decision on another claim awarding benefits for
the entire time period(s) at issue in the claim giving rise to class
membership; or
(3.) the individual received a de novo hearing
and decision (whether favorable or unfavorable) on the claim giving rise
to class membership for the entire time period(s) at issue in the claim,
from an ALJ other than the subject ALJ, following an appeal, or remand
from an appeal, or a reopening; or
(4.) the individual received a de novo hearing
and decision (whether favorable or unfavorable) on the claim giving rise
to class membership for the entire time period(s) at issue in the claim,
where the de novo hearing and decision provided
all the rights and protections under this Stipulation concerning the time
period(s) at issue in the claim giving rise to class membership, from an
ALJ other than the subject ALJ, as the result of another class action;
or
(5.) the individual received a final decision from a federal court
(whether favorable or unfavorable) in which the issue of the subject ALJ's
conduct at issue in this action was addressed and determined.
V. Determination of Class Membership and Eligibility for Relief and Preadjudication Actions
A. Pre-Screening
Actions - General
Notification
Once SSA has issued implementation instructions, SSA shall send an
individual notice to the last known address of every individual who has
been identified by computer run as a potential class member. Individuals
will have 90 days from the date of receipt of the notice, unless extended
for good cause (see Part V.A.1.c. below), to request that SSA
readjudicate their claims under the terms of the
Kendrick Stipulation and Order. SSA will presume
an individual's receipt of the notice five days after mailing, unless the
individual establishes that receipt actually occurred later.
If mailed notices are returned as undeliverable, Litigation Staff will
attempt to obtain updated addresses through a computerized match with the
State governments in Illinois and New York; contingent on agreement with
the entities involved. If SSA receives readily usable computer data from
the computer matches, SSA shall resend the returned notices by first class
mail to all potential class members for whom a match is received.
An individual who does not receive written notice of the settlement may,
nonetheless, request relief by filing a written request with SSA within 90
days, unless extended for good cause, of the date that SSA mails the
notices to the systems-identified potential class members. The request for
relief must include the individual's Social Security Number, claim
number, date of birth, address and request to receive relief under the
Kendrick settlement. The written request should
include the date or year of the hearing and the name of the ALJ, if known.
To facilitate the taking of such requests, Social Security field office
(FO) and HO employees may use the Request For Court Case Review/Change of
Address Worksheet (Attachment 2). If the claimant contacts an SSA office
(such as a Teleservice Center) by telephone, SSA personnel may take the
request for relief by completing Attachment 2. In such cases, the
completed Request for Court Case Review/Change of Address Worksheet will
be considered to be a written request for relief even if it is not signed
by the claimant.
In most instances, an individual who does not receive a written notice but
who wishes to request relief will contact a Social Security FO (i.e.,
district or branch office) by telephone, in person or in writing to file
the request for relief (i.e., walk-ins). Pursuant to the terms of the
settlement, the FO will assist the individual in completing the request
for review and will request that the individual provide any available
information concerning a possible Kendrick claim.
The FO will take the individual's written statement concerning the
possible Kendrick claim. The FO will forward the
individual's request/statement and/or Request for Court Case Review/Change
of Address Worksheet to ODIO for keying into the Civil Action Tracking
System (CATS) and subsequent retrieval of the claim file.
If an individual who does not receive a written notice contacts an HO to
request relief, the HO should assist the claimant in completing a request
for relief. As noted above, the request may be made by completing
Attachment 2. HO personnel will also request that the individual provide
available information concerning a possible
Kendrick claim. Requests for relief should be
forwarded to ODIO at the address listed in Attachment 2. If the individual
wishes to include an additional statement concerning the request, that
statement should be forwarded to ODIO along with the request for court
case review.
A potential class member's response to an individual notice, or other
written or oral contact with an SSA office, shall be considered to be a
request for assistance in filing a request for relief if the potential
class member's intention is ambiguous or unclear but the potential class
member refers to the Kendrick case or the subject
ALJ.
Part V.B.2.a. below describes the presumptions of class membership
(but not entitlement to relief) that may be applied when an individual
who does not receive a written notice of the settlement files a written
request for relief. If a presumption of class membership is applied, the
case will be screened to determine whether the individual is entitled to
relief under the settlement.
The Office of Disability and International Operations (ODIO) will notify
the servicing FO of untimely responses and request that the FO develop for
possible evidence of good cause for the untimely response. Good cause
determinations will be based on the standards in
20 CFR §§
404.909,
404.911,
416.1409 and 416.1411. If good cause is established, the FO will forward
the good cause determination and any folders currently in the FO, to ODIO
(title II and concurrent claims) or the Northeastern Program Service
Center (NEPSC) (title XVI claims) for any additional folder retrieval
action that may be necessary and for routing to OHA.
In determining whether good cause exists for individuals who do not
receive a written notice from SSA, the decisionmaker will consider, under
20 CFR §§
404.911(b)(7),
404.911(b)(9),
416.1411(b)(7) and/or 416.1411(b)(9), the fact that SSA did not mail
Kendrick notices to such individuals. Although
§§ 404.911(b)(7) and 416.1411(b)(7) usually refer to individuals
who did not receive a notice that SSA actually mailed, in the context of
the Kendrick settlement, these regulations also
refer to individuals to whom SSA did not mail a
Kendrick notice.
Alert and Folder Retrieval Process
All response forms and requests for relief filed by
“walk-ins” (including individuals who contact SSA by
telephone or in writing) should be returned to ODIO so that the
information can be entered into CATS. Requests for change of address
(filed using Attachment 2) will also be returned to ODIO. CATS will
generate folder alerts for all reply forms. See Attachment 3 for a sample
Kendrick alert.
ODIO will associate the computer-generated alerts with available title II
and concurrent title II and title XVI potential class member claim
file(s). For title XVI only claims, the NEPSC will retrieve available
folders. Once the claim files and alerts have been associated, ODIO or
NEPSC will forward the alert and claim files to the OAO Class Action
Coordinator 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: Church, VA 22041-3200
The OAO Class Action Coordinator will code receipt of any claim files into
the case control system and enter information concerning the claim into
an internal OHA database and will forward the alert package and folder
search results to the Kendrick Screening Unit.
If ODIO or NEPSC determines that the potential class member has a claim
(the potential class claim or a subsequent claim) that is pending or
stored at OHA Headquarters or in an HO, ODIO will send the alert, along
with any claim file(s) not in OHA's possession, to the OAO Class Action
Coordinator for association with the pending or stored claim file and
screening. If the claim is located in an HO or OAO, the OAO Class Action
Coordinator will coordinate retrieval of the file for screening at OHA
Headquarters by the Kendrick Screening Unit.
The OAO Class Action Coordinator is responsible for controlling and
reconciling the disposition of class alerts and claim files shipped to OHA
Headquarters for screening. The Coordinator will maintain a record of all
alerts and claim files received and the location, if any, to which they
are transferred. The Coordinator will periodically enter this information
into CATS. The information will be necessary to do the final class
membership reconciliation.
Folder Reconstruction
In general, ODIO will initiate any necessary reconstruction of prior claim
files for title II and concurrent cases, and the NEPSC will initiate
claim file reconstruction for title XVI cases. To avoid unnecessary
requests for reconstruction, the OAO Class Action Coordinator will
provide ODIO and NEPSC information concerning the OHA location of any
existing potential class member claim file(s) being retained for
adjudication purposes, and the date(s) of the claim(s) involved. For
control and informational purposes, ODIO or NEPSC will forward a copy of
each reconstruction request to the OAO Class Action Coordinator at the
address listed above. ODIO or NEPSC will forward the reconstruction
request to the servicing FO along with a copy of the alert, documentation
of attempts to locate the file, and will request that the reconstructed
file be forwarded to the OAO Class Action Coordinator for coordination of
final screening and assignment to an HO for readjudication if entitled to
relief.
In cases where an alert has been generated but the claim file(s) cannot be
located, the individual will be presumed to be a class member potentially
entitled to relief, and the claim file(s) will be reconstructed. However,
if information obtained in the course of reconstruction clearly indicates
that the claimant is not a class member potentially entitled to relief,
reconstruction efforts should be curtailed. In such cases, the alert and
the information/evidence obtained up to that point should be sent to the
OAO Class Action Coordinator for coordination with the
Kendrick Screening Unit.
The OAO Class Action Coordinator will coordinate with HOs and OAO in cases
where there is a current claim pending at the OHA level. 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 a copy of the action on the pending claim to
the OAO Class Action Coordinator who will associate the pending claim
information with the class action material, including the alert and claim
files, if any, and forward the entire package to the
Kendrick Screening Unit upon receipt of the
reconstructed file from the DDS (disability cases) or the FO
(non-disability cases). If, in reconstructing the file, the FO finds
evidence of substantial gainful activity by the claimant, the FO will
include that information in the claim file.
Class Membership Denials (Non-Eligibility for Relief)
The OAO Class Action Coordinator 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 entered into in this case, 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 OAO Class Action Coordinator will forward the
claim files in his possession to the OHA New York Regional Office.
B. OHA
Screening Actions
Jurisdiction for Screening
Because the relief offered in Kendrick is a new
hearing decision (or an Appeals Council decision if the claim is
consolidated with a current claim pending at the Appeals Council level and
a decision fully favorable to the Kendrick claim
is issued), all claims will be screened at the OHA level. The screening
will be performed at OHA Headquarters by the
Kendrick Screening Unit.
Pre-Screening Actions
Presumptions of Class Membership
The settlement agreement provides for the application of presumptions of
class membership in situations where an individual requests relief without
having received a written notice from SSA (i.e., “walk-
ins”). Determinations concerning the application of presumptions
will be made by the Kendrick Screening Unit. The
Screening Unit will include in the file a written statement of the
determination and the reasons for the determination. In making a
credibility determination pursuant to Part V.B.2.a.(3) below, the
Screening Unit will consider all of the available evidence concerning
class membership. If the Screening Unit determines that information in
support of the request for relief is not credible, the Screening Unit
will provide a rationale for the credibility finding that includes the
reasons for the finding based on the evidence concerning class
membership. The rationale will be included in the statement to be placed
in the claim file. If the Screening Unit determines that a presumption of
class membership should be applied, the Screening Unit will screen the
case to determine if the individual is entitled to relief.
Preliminary Search of Computer Records for Individuals Who Do Not Receive
Written Notice of the Settlement
ODIO and/or NEPSC will perform a search of SSA's computer records and
claim files retrievable in the ordinary course of business to obtain
information concerning requests for relief filed by individuals who do not
receive written notice of the settlement. This information will be used
to determine whether the individual is a class member potentially
entitled to relief.
Presumption of Class Membership Where the Individual Provides
Documentation Concerning Class Membership
If the review of SSA's records does not provide sufficient information to
determine whether the individual is a class member, the
Kendrick Screening Unit shall apply a presumption
that the individual is a class member if:
the individual provides a copy of an unfavorable (in whole or in part)
hearing decision or dismissal issued by the subject ALJ on or after
September 25, 1977, but before May 22, 1995; or
the individual provides written documentation that shows that the
individual's request for hearing was assigned to the subject ALJ for
decision, e.g., notice of hearing or a letter from the individual's
representative or a medical source to the subject ALJ.
The presumption may be overcome by evidence to the contrary.
Presumption of Class Membership When SSA Does Not Have Sufficient
Information To Make a Determination Concerning Class Membership
If the review of SSA's records does not provide sufficient information to
determine whether the individual is a class member and if the individual
is unable to provide the documentation described in Part
V.B.2.a.(2) above, then the Kendrick
Screening Unit will request the individual's statement concerning class
membership and will request any other information that the individual may
wish to provide concerning class membership. If the information meets the
requirements listed below, the Screening Unit will apply a presumption
that the individual is a class member.
The presumption may be overcome by evidence to the contrary.
The Kendrick Screening Unit will evaluate the
information submitted by the individual in the following manner:
If the Screening Unit finds that material information is credible and
meets the requirements for class membership listed in Part IV.
above, then the Screening Unit will apply the presumption of class
membership.
If the Screening Unit finds that material information is credible but does
not establish all of the elements necessary to meet the requirements of
class membership listed in Part IV. above, the Screening Unit may,
but need not, resolve doubts in favor of the individual in determining
whether to apply the presumption. In such cases, the record does not need
to contain conclusive proof that the requirements of class membership are
satisfied.
After considering (a) whether to apply the presumption, (b) whether to
resolve doubts in favor of applying the presumption, and (c) that the
record need not contain conclusive proof of class membership, if the
Screening Unit finds that material information is not credible or that the
information does not establish all of the elements necessary to meet the
requirements of class membership listed in Part IV. above, then
the Screening Unit will determine that the individual is not a
class member.
Current Claim Is Pending or Stored at OHA
If a current claim is before the Appeals Council or pending in an HO, the
Coordinator will forward the alert and any prior claim file(s) to the
Kendrick Screening Unit for screening. The
Coordinator will also notify the appropriate OAO branch or the HO that
there is a potential Kendrick claim pending. The
Kendrick Screening Unit will notify the OAO Class
Action Coordinator and the OAO branch or the HO of the outcome of the
screening.
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 Kendrick
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
One Skyline
Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA
22041-3255
Attn: Kendrick
Coordinator
Telephone Number: (703) 305-0723
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 Kendrick
Screening Unit for screening. The Coordinator will also notify the
appropriate OAO Court Case Preparation and Review Branch (CCPRB) that
there is a potential Kendrick claim. The
Kendrick Screening Unit will notify the OAO Class
Action Coordinator and the CCPRB of the outcome of the screening. See
Part V.B.4. below for special screening instructions when a civil
action is involved.
Claim at OHA Headquarters But No Current Action Pending
If a claim file (either a class member or a subsequent claim) is located
in OHA Headquarters but there is no claim actively pending administrative
review, i.e., Headquarters is holding the file awaiting potential receipt
of a request for review or notification that a civil action has been
filed, the OAO Class Action Coordinator will retrieve that claim file and
forward it to the Kendrick Screening Unit (using
Attachment 4) which will associate the alert with the file and screen for
class membership and entitlement to relief. If the Screening Unit
determines that the individual is not a class member entitled to relief
and the individual does not dispute the denial of entitlement to relief,
the Screening Unit will return the file to the OAO Class Action
Coordinator. (The OAO Class Action Coordinator will coordinate the
necessary actions, as explained in Part V.) (See Part
V.B.5., below, for non-class member processing instructions.)
General Screening Instructions
The following instructions are applicable to claims in which the
individual requested relief after receiving a written notice and to claims
for which the individual did not receive a written notice but the
Kendrick Screening Unit applied a presumption of
class membership or otherwise determined that the individual is entitled
to relief.
The Kendrick Screening Unit will perform the
screening for all potential class member claims. The Screening Unit 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/ceased or other determinations/decisions
adverse to the claimant issued during the
Kendrick timeframe;
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
Forward a copy of the screening sheet to the OAO Class Action Coordinator
at the address in Part V.A.2. above. (The Coordinator will enter
information from the screening sheet into CATS and the
Kendrick OHA database and will forward the
screening sheet to DLAI.)
Special Screening Instructions if a Civil Action Is Involved
As noted in Part V.B.1. above, the
Kendrick Screening Unit will screen all requests
for relief. However, if a civil action is involved, after screening, the
Kendrick Screening Unit will forward the claim
file(s) to the CCPRB for appropriate action. The screening determination
will dictate the appropriate post-screening action.
If the claim pending in court is the potential class member claim or a
subsequent claim that involves unresolved
Kendrick issues, the CCPRB will immediately
notify OGC (as appropriate, OGC will then notify the Assistant United
States Attorney (AUSA)) so that OGC (or the AUSA) can notify the claimant
of the option to agree to a remand of the case for readjudication under
Kendrick.
Post-Screening Actions
Individuals Determined Not to Be Class Members Entitled to Relief
If the Kendrick Screening Unit determines that
the individual is not a class member eligible for relief, the Screening
Unit will:
notify the individual and representative, if any, (with copies to class
counsel and the OAO Class Action Coordinator) of that determination using
Attachment 6 (modified as necessary to fit the circumstances and posture
of the case when there is a current claim);
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 Kendrick class
counsel:
Legal Services for the Elderly
130 West 42nd St., 17th Floor
New
York, NY 10036
Attn: Kendrick Class
Counsel
retain the claim file(s) for 90 days pending a possible class membership
dispute; and
An individual who wishes to dispute a determination of non-class
membership and ineligibility for relief should do so directly, or through
their representative of record.
if class counsel makes a timely request to OGC to review a screened-out
claim file in order to assist the individual, send the file to the OHA New
York Regional Office using the pre-addressed route slip in Attachment
7.
If SSA, through OGC, resolves the dispute in the claimant's favor: 1) the
Kendrick Screening Unit will prepare a revised
screening sheet and send notice of the revised class
membership/eligibility for relief determination (Attachment 8) to the
claimant, and representative, if any, and class counsel; 2) the case will
proceed in accordance with Part VI. below; 3) the
Kendrick Screening Unit will notify the OAO
Class Action Coordinator of the revised determination by forwarding a
copy of the revised screening sheet to the Coordinator; and 4) the OAO
Class Action Coordinator will send DLAI a copy of the revised screening
sheet.
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 that a magistrate judge review the class membership/eligibility
for relief determination. OGC will also send a copy of the notice to the
AUSA.
If after 90 days no review is requested, the OAO Class Action Coordinator
will make a notation in the file that no request was received and will
return the file(s) to the appropriate storage location if not otherwise
needed.
Cases Determined to Be Class Members Entitled to Relief
If the Kendrick Screening Unit determines that
the individual is a class member entitled to relief and the claim(s)
involves disability, it will forward the claim, using Attachment 10, to
the appropriate FO for updating. If the FO finds evidence of SGA, the FO
will include that information in the claim file.
Once the FO has completed its updating action, it will forward the claim
to the Disability Determination Service (DDS) to update and develop the
medical evidence to the present. Prior to forwarding the file to the FO,
the Screening Unit will identify the HO, based on the claimant's
residence, that will perform the readjudication and will note the address
of the HO on the Kendrick Flag/Alert used to
forward the claim for updating (Attachment 10). However, if the individual
resides in New York State, the Screening Unit will make a notation on the
Kendrick Flag/Alert that the claim should be
forwarded to the OHA New York Regional Office (addressed to the attention
of the "Kendrick Unit"). The OHA New York
Regional Office will coordinate assignment of claims for readjudication.
Once the DDS has completed its development and updating of the medical
evidence for disability cases, the DDS will forward the claim to the
appropriate HO (or the OHA New York Regional Office) as noted on the
Flag/Alert (Attachment 10), and the HO will then proceed with processing
in accordance with the instructions in Part VI. below.
In non-disability cases, the Screening Unit will forward the claim
directly to the appropriate HO or the OHA New York Regional Office (see
Part VI.A.3. below).
Updating by the FO and DDS will not be necessary in reconstructed cases.
Updating will have already been accomplished by those components in the
course of reconstruction. Unless there is another case pending in OHA, the
DDS (disability cases) or the FO (non-disability cases) will route
reconstructed cases directly to the OAO Class Action Coordinator who will
forward the cases to the Kendrick Screening Unit
for final screening and assignment to an HO for reajudication, if entitled
to relief.
VI. Processing and Adjudication
A.
OHA Adjudication of Class Member Claims
All of the Kendrick readjudications will be
conducted at the OHA level. Both disability and non-disability claims will
be readjudicated under the terms of the Kendrick
settlement. In some instances, such as consolidation cases, the Appeals
Council will conduct the Kendrick readjudication.
In cases readjudicated at the ALJ level, the individual will receive a
de novo hearing from an ALJ other than the
subject ALJ unless a favorable on-the-record decision will be issued.
Kendrick class members who receive adverse
readjudication determinations will have full appeal rights (i.e., Appeals
Council and judicial review). Except as noted herein, HOs and OHA
Headquarters will process Kendrick class member
cases according to all other current practices and procedures including
coding, developing evidence, routing, etc. However, the notice of hearing
should include a statement that the hearing will be held pursuant to the
Kendrick settlement. HOs and OAO will send copies
of hearing decisions and Appeals Council decisions, respectively, to DLAI
at the address listed in Part V.B.2.b. above. DLAI will forward
copies of the decisions to class counsel and the OAO Class Action
Coordinator.
Type of Review and Period to Be Considered
Pursuant to the Kendrick 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 reopening.
In cases involving entitlement to benefits based on disability, the
period at issue shall commence with the period at issue in the claim that
led to class membership and shall continue through the date of the new
hearing decision, or the date of a later allowance or the date that the
claimant attains age 65, whichever is earlier, or for title II claims,
the date last insured, if earlier. The reopening 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 at issue.
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.
No Current Claim Pending at OHA
If the class member claim involves entitlement to disability benefits and
is the only claim at the OHA level and the case has been screened-in as a
class member entitled to relief, the Screening Unit will forward the case
to the appropriate FO for additional development as described in Part
V.B.5.b. above. Once the FO has completed its action on the claim, it
will forward the claim to the DDS for updating and development of the
medical evidence. Upon completion of its action on the claim, the DDS
will forward the claim to the appropriate HO, or the OHA New York
Regional Office, as noted in Attachment 10, for
Kendrick processing and readjudication (see
Part V.B.5.b. above).
If the claim involves an issue other than disability, the
Kendrick Screening Unit will forward the claim
directly to the HO or the OHA New York Regional Office. If, upon receipt
of the claim for readjudication, the HO finds that additional non-medical
development is required for a non-disability claim, the HO will forward
the file(s) to the FO for development using Attachment 10.
B. Processing
and Adjudicating Class Member Claims in Conjunction with Current Claims
and Other Class Actions (Consolidation Procedures)
Even claims subject to consolidation should be consolidated only to the
extent practicable. Thus, for example, if consolidation would unreasonably
delay a decision on the current claim, consolidation would not be
appropriate.
General
Current Claim Pending at OHA
If a class member has a current claim pending at the OHA level and
consolidation is warranted according to the guidelines below, the
appropriate component will consolidate all
Kendrick class member claims with the current
claim at the level (hearing or Appeals Council) at which the current
claim is pending. No claims will be consolidated before the subject ALJ,
however.
Current Claim Pending at the DDS
If the class member has a current claim pending at the DDS level and
consolidation is warranted and would not unduly delay action on the
current claim, the DDS will forward the current claim to OHA for
consolidation with the Kendrick claim(s) pending
at the OHA level (hearing or Appeals Council levels).
Coordination of Relief in Kendrick With Relief in
Other Class Actions
Class members entitled to relief under Kendrick
may also be class members entitled to relief in other class actions. If
the alert, or other evidence in the file, indicates that the individual
is entitled to relief under another class action (e.g.,
Dixon, S.P.,
State of New York,
Stieberger, etc.) and, if the
Kendrick claim and the claim(s) in the other
class action(s) involve a common issue, the
Kendrick readjudication may include
readjudication of the claim(s) at issue in the other class action(s).
However, Kendrick claims and claims based on
other class actions will only be consolidated if practicable. If the
claim(s) in the other class action(s) is at the DDS level and the DDS has
already made, or is about to make, a favorable determination, the claims
will not be consolidated. Furthermore, the claims will not be
consolidated if Kendrick readjudication would
not cover the time period at issue in the other class action(s).
If another class action claim is consolidated with the
Kendrick claim, the hearing decision will include
a statement that the decision also covers the individual's request for
relief under the other class action(s).
Current Claim Pending in the Hearing Office
Hearing Has Been Scheduled or Held, and All Remand Cases
Except as noted below, if a Kendrick class member
has a request for hearing pending on a current claim, and the ALJ has
either scheduled or held a hearing,and in all remand cases, the ALJ will
not consolidate the Kendrick case with
the appeal on the current claim.
If the ALJ is prepared to issue a fully favorable decision on the current
claim, and this decision would also be fully favorable with respect to all
the issues raised by the application that makes the claimant a
Kendrick class member, the ALJ will consolidate
the claims and issue a favorable decision.
If the claims are consolidated, follow Part VI.B.2.c. below. If
the claims are not consolidated, follow Part VI.B.2.d. below.
Hearing Not Scheduled
Except as noted below, if a Kendrick class member
has an initial request for hearing pending on a current claim and the HO
has not yet scheduled a hearing, the ALJ will consolidate the
Kendrick claim and the current claim (see
Part VI.B.2.d. below). However, the ALJ should not consolidate the
claims if consolidation would delay processing of the current claim. As
noted in 1.a. above, no class member claims will be consolidated
before the subject ALJ.
The ALJ will not consolidate the claims if
the current claim and the Kendrick claim do not
have any issues in common, or
a court remand contains a court-ordered time limit, and it will not be
possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow Part VI.B.2.c. below. If
the claims are not consolidated, follow Part VI.B.2.d. below.
Actions If Claims Consolidated
When consolidating a Kendrick claim with any
subsequent claim, in disability claims, 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 the date the
claimant attains age 65 (or through the date the claimant last met the
insured status requirements or the prescribed period requirements, if
earlier). If the ALJ decides to consolidate the current claim or a claim
under another class action with the Kendrick
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 Kendrick claim raises any additional issue(s)
not raised by the current claim, or the claim at issue in another class
action;
issue one decision that addresses both the issues raised by the current
request, or the claim at issue in another class action, for hearing and
those raised by the Kendrick claim (the ALJ's
decision will clearly indicate that the ALJ considered the
Kendrick claim pursuant to the
Kendrick Stipulation and Order, and, if
appropriate, that the decision covers the claim at issue in another class
action).
Action If Claims Not Consolidated
If the ALJ decides not to consolidate the current claim with the
Kendrick claim because: 1) the claims do not have
any issues in common or 2) there is a court-ordered time limit, the ALJ
will:
If the ALJ decides not to consolidate the
Kendrick claim with a current claim elevated by
the FO or DDS or the claim(s) at issue in another class action, the ALJ
will return the other claim(s) to the FO or the DDS where the other
claim(s) was pending.
Current Claim Pending at the Appeals Council
If there is a current claim pending at the Appeals Council, the
Kendrick Screening Unit will forward the claim
file(s) and the completed screening sheet to the appropriate OAO
disability review branch. The action the Appeals Council takes on the
current claim determines the disposition of the
Kendrick 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
Kendrick claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim — No Kendrick
Issue(s) Will Remain Unresolved.
This will usually arise when the current claim duplicates the
Kendrick review claim, i.e., the current claim
raises the issue of disability and covers the entire period adjudicated in
the Kendrick claim. 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 Kendrick
claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision
on the Current Claim — Kendrick Issue(s)
Will Remain Unresolved.
This will usually arise when the current claim does not duplicate the
Kendrick claim, e.g., the current claim raises
the issue of disability but does not cover the entire period adjudicated
in the Kendrick claim. For example, the
Kendrick 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 a Kendrick case flag
(Attachment 9) to the Kendrick claim, immediately
forward the Kendrick claim to the appropriate
HO, or the OHA New York Regional Office (see Part V.B.5.b.
above), for action, and retain a copy of Attachment 9 in the current
claim file. The current claim should not be forwarded with the
Kendrick claim unless the appeal period for the
current claim has expired. OAO will indicate on Attachment 9 that the
Appeals Council's action on the current claim does not resolve all
Kendrick issues and that the
Kendrick 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. If, upon receipt of the
Kendrick claim, the HO determines that additional
development (medical or non-medical) is required, the HO will forward the
claim to the FO for updating using Attachment 10 (see Part
V.B.5.b. above).
Appeals Council Intends to Grant Claimant's Request for Review and to
Issue a Favorable Decision on the Current Claim — No
Kendrick Issue(s) Will Remain Unresolved.
If the Appeals Council intends to issue a 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
Kendrick class member, the Appeals Council should
proceed with its intended action. In this instance, the Appeals Council
will consolidate the claims, reopen the final decision on the
Kendrick claim and issue a favorable decision
that adjudicates both applications. The Appeals Council's decision will
clearly indicate that the Appeals Council considered the
Kendrick claim pursuant to the
Kendrick Stipulation and Order.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim
— Kendrick 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 Kendrick 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 appropriate HO, or the OHA New York Regional Office
(see Part V.B.5.b. above), 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:
"Kendrick court case review needed —
following effectuation forward the attached combined folders to the
designated Hearing Office for further action." If the HO determines that
additional development (medical or non-medical) is required, the HO will
forward the Kendrick claim to the FO for
updating using Attachment 10 (see Part V.B.5.b. above).
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 Kendrick claim with the action on
the current claim pursuant to the instructions in Part VI.B.2.a.
above.
The Appeals Council will not direct the ALJ to consolidate the claim
if
the current claim and the Kendrick 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 any common issues or a court-ordered time limit
makes consolidation impractical, OAO will forward the
Kendrick class member claim to the HO, or the OHA
New York Regional Office, for separate review. If the HO determines that
additional development (medical or non-medical) is required, the HO will
forward the Kendrick claim to the FO for updating
using Attachment 10 (see Part V.B.5.b. above).
VII. Case Coding
HO personnel will code prior claims into the Hearing Office Tracking
System (HOTS) and the OHA Case Control System (OHA CCS) as
“reopenings.” If the prior claim is consolidated with a
current claim already pending at the hearing level (see Part
VI.B.2.c. 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.”
To identify class member cases in HOTS, HO personnel will code
“KE” in the “Class Action” field. No special
identification codes will be used in the OHA CCS.
VIII. Reconciliation of Implementation
At an appropriate time, the OAO Class Action Coordinator will reconcile
information concerning alerts, reconstruction of files and medical
development with information available on CATS. The Class Action
Coordinator is also responsible for maintaining a personal computer-based
record of OHA implementation activity (i.e., a record of cases screened by
the Kendrick Screening Unit and the alerts
processed by OAO, and a record of cases screened and readjudicated by
OHA), as reported by HOs, the Screening Unit and OAO to the OAO Class
Action Coordinator directly or through DLAI, after screening and/or
readjudication.
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.
Privacy Act and Protective Order approved by the U.S. District Court for
the Southern District of New York on November 6, 1996.
MARY JO WHITE
United States Attorney for the
Southern District of
New York
By: LINDA A. RIFFKIN (LR-9651)
Assistant United States
Attorney
100 Church Street — 19th Floor
New York, New York
10007
Tel. (212) 385-4360
UNITED STATES DISTRICT
COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------X
-----------------------------------------------X
The plaintiff class and defendant, by their respective counsel, request
the Court, pursuant to the terms of their settlement agreement and Fed. R.
Civ. P. 23(e), to approve preliminarily the Stipulation and Order
attached at Tab A.
Respectfully submitted,
Dated: New York,
New York
August 16, 1995
MARY JO WHITE
United States Attorney for
the
Southern District of New York
By: LINDA A.
RIFFKIN (LR-9651)
Assistant United States Attorney
100
Church Street — 19th Floor
New York, New York
10007
Tel. (212) 385-4360
UNITED
STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------X
-----------------------------------------------X
WHEREAS plaintiffs filed an amended class
complaint on June 28, 1990; and
WHEREAS, by order dated February 27, 1992,
the Court certified a class; and
WHEREAS the parties have agreed to fully and
finally resolve the outstanding issues in this case without further
litigation;
WHEREFORE, the parties, by their undersigned
counsel, agree to the settlement of plaintiffs' claims in accordance with
the following terms.
The class definition as stated in the Court's February 27, 1992 order is
amended. The class is now comprised of any individual:
(a) Who filed a claim for benefits pursuant to title II or title XVI of
the Social Security Act; and
(b) Who requested a hearing decision by an Administrative Law Judge (ALJ)
on that claim or any issues arising from that claim; and
(c) Whose request was dismissed by or who received a less than fully
favorable decision on the claim from the ALJ whose conduct was the subject
of this litigation (subject ALJ); and
(d) Whose dismissal or decision by the subject ALJ was dated on or after
September 25, 1977, but before May 22, 1995.
Class members entitled to relief under this Stipulation and Order
(Stipulation) shall include all class members who are eligible pursuant to
the terms of this Stipulation, except for any class member:
(a) Who received a fully favorable decision, on the claim giving rise to
class membership, following an appeal, or remand from an appeal, or a
reopening; or
(b) Who received the equivalent of a fully favorable decision on the claim
giving rise to class membership, as a consequence of having obtained a
fully favorable decision on another claim awarding benefits for the entire
time period(s) at issue in the claim giving rise to class membership;
or
(c) Who received a de novo hearing and decision (whether favorable or
unfavorable) on the claim giving rise to class membership for the entire
time period(s) at issue in the claim, from an ALJ other than the subject
ALJ, following an appeal, or remand from an appeal, or a reopening; or
(d) Who received a de novo hearing and decision (whether favorable or
unfavorable) on the claim giving rise to class membership for the entire
time period(s) at issue in the claim, where the de novo hearing and
decision provided all the rights and protections under this Stipulation
concerning the time period(s) at issue in the claim giving rise to class
membership, from an ALJ other than the subject ALJ, as a result of another
class action; or
(e) Who received a final decision from a federal court (whether favorable
or unfavorable) in which the issue of the subject ALJ's conduct at issue
in this action was addressed and determined.
(a) Following signing of this Stipulation, the parties shall promptly move
the Court to enter this Stipulation as an Order by endorsing it. Such
entry by the Court constitutes preliminary approval of this
Stipulation.
(b) Following preliminary approval of this Stipulation, SSA shall, as soon
as practicable, use its available data processing systems, to the extent
data is available in its systems, to identify the names, Social Security
numbers, claim numbers, and last known addresses of potential class
members. SSA, within its sole discretion, shall determine the appropriate
means to identify potential class members but shall notify class counsel
of such means as are eventually used. SSA shall provide class counsel an
alphabetical listing of the potential class members it identifies
accompanied by the Social Security numbers, and, if different, the
relevant claim numbers of such individuals.
(c) Following identification of potential class members, the parties shall
request the Court to schedule a hearing (Rule 23(e) hearing) to consider
final approval of the Stipulation pursuant to Rule 23(e) of the Federal
Rules of Civil Procedure.
(d) Following scheduling of the Rule 23(e) hearing, SSA shall send a copy
of the notice attached as Exhibit 1, by first class mail to the potential
class members, identified pursuant to ¶ 3(b) above, at their last
known addresses. The notice shall advise each individual of the
opportunity to object to approval of this Stipulation but shall not
mention the subject ALJ by name.
(e) Any class member may comment on the terms of this Stipulation by
submitting written comments to class counsel postmarked no later than 30
days prior to the Rule 23(e) hearing and signed by the class member or
representative or by appearing at the Rule 23(e) hearing and testifying.
If a class member testifies at the Rule 23(e) hearing without having
previously submitted written comments to class counsel, the parties
reserve the right to review the testimony and to submit a written response
after the Rule 23(e) hearing. Class counsel shall forward to defendant's
counsel within 7 days of receipt, and file with the Court, copies of all
comments received. However, class counsel shall not be required to forward
or file comments that class counsel deems to be privileged. If class
counsel withholds any such comments, class counsel shall provide
defendant's counsel with the following information: the type of document
withheld, the date of the document, the addressee of the document, the
author of the document and the subject matter of the document described in
sufficient detail to explain the claim of privilege. At the Rule 23(e)
hearing, the parties shall request the Court to enter an order granting
final approval of this Stipulation.
(a) Following the Court's final approval of this Stipulation, the
Commissioner shall draft instructions to implement the terms of this
Stipulation. The Commissioner shall make a good faith effort to complete
the instructions within 180 days of the Court's final approval of this
Stipulation. The Commissioner shall make a good faith effort to provide
class counsel with a copy of the instructions not less than four weeks
prior to issuance:
(b) Following issuance of the instructions, SSA shall send a copy of the
notice attached as Exhibit 2, together with a review request form attached
as Exhibit 3 and a postage-paid return envelope, by first class mail to
potential class members, identified pursuant to ¶ 3(b) above as being
potentially entitled to relief, at their last known addresses. The notice
shall advise each individual of the possibility of relief under this
Stipulation but shall not mention the subject ALJ by name.
(c) SSA shall attempt to obtain current addresses for potential class
members whose notices are mailed pursuant to ¶ 4(b) above and
returned to SSA as undeliverable by requesting that the state governments
in Illinois and New York provide current addresses through a computerized
match with public assistance, food stamp or other like records. SSA
requests for computer matches with state agencies' data systems will be
subject to the requirements of the Privacy Act as amended by the Computer
Matching and Privacy Protection Act, 5 U.S.C. § 552a. SSA shall not
be obligated to bring any legal proceedings to gain access to such
records. If SSA receives readily usable computer data from the computer
matches, SSA shall resend the returned notice by first class mail to all
potential class members for whom the computerized match produces a more
recent address. SSA shall not be required to resend any notices unless it
receives readily usable computer data from the computer matches.
(d) Except as specifically provided in this Stipulation, SSA shall not be
required to take any action concerning identification of potential class
members' addresses or the mailing of notices, beyond sending notices to
potential class members at their last known addresses identified on SSA's
computer systems or, if readily useable computer data is available, to
their more recent addresses, as described above.
(a) Any individual who receives the notice of entitlement to request
relief must, in order to obtain relief under this Stipulation, file a
completed review request form with SSA within 90 days after the date the
individual receives the notice. See
20 C.F.R.
§§ 404.901 and
416.1401
(defining “date you receive notice”). SSA shall assist any
individual who contacts an SSA office by telephone, in person or in
writing to complete and file a review request form and also shall provide
a copy of the form to the individual if the original is, for any reason,
unavailable. No individual who receives the notice and who does not timely
file a request for relief shall receive relief under this Stipulation
unless the individual shows SSA that there is good cause for the untimely
filing, in which case SSA shall extend the deadline. The standards for
"good cause' shall be those set forth in
20 C.F.R.
§§ 404.909,
404.911,
416.1409 and 416.1411.
(b) Any individual who for any reason does not receive the notice of
entitlement to request relief must, in order to obtain relief under this
Stipulation, file a written request with SSA which includes the
individual's Social Security number, claim number, date of birth, address
and request to receive relief under this Stipulation. If the individual
remembers the date or year of the hearing with the subject ALJ, then this
information should be included with the request. Such an individual must
file the request within 90 days after SSA mails the notices pursuant to
¶ 4(b) above to the potential class members identified by SSA. SSA
shall assist any individual who contacts an SSA office by telephone, in
person or in writing to complete and file the written request described in
this paragraph. Such assistance shall include requesting the needed
information from the individual. If the individual does not file the
request within 90 days after SSA mails the notices pursuant ¶ 4(b)
above to the potential class members identified by SSA, then the
individual shall not receive relief unless the individual shows SSA that
there is good cause for the untimely filing, in which case SSA shall
extend the deadline. The standards for “good cause” shall be
those set forth in
20 C.F.R.
§§ 404.909,
404.911,
416.1409 and 416.1411.
(a) An individual's request for relief concerning any claim giving rise to
class membership shall constitute a request for relief concerning all of
the individual's claims that give rise to class membership.
(b) A class member's response to an individual notice, or other written or
oral contacts with SSA, shall be considered by SSA to be a request for
assistance in filing a request for review pursuant to ¶ 5 above, if
the class member's intention is ambiguous or unclear but the class member
refers to the Kendrick case or the subject ALJ.
(a) In conjunction with receipt of a written request of an individual who
requests relief pursuant to ¶ 5(b) above, SSA shall obtain and review
its computer records and claim files retrievable in the ordinary course
of business to determine whether the individual meets the requirements of
class membership, stated in ¶ 1 above.
(b) If this review of SSA's records does not provide sufficient
information to determine whether the individual is a class member, SSA
shall apply a presumption that the individual meets the requirements for
class membership stated in ¶ 1 above if the individual:
(1) Provides a copy of a hearing decision or
dismissal issued by the subject ALJ between September 25, 1977, and May
22, 1995; or
(2) Provides written documentation that
shows that the individual's request for hearing was assigned to the
subject ALJ for decision, e.g., notice of hearing or a letter from
the individual's representative or a medical source to the subject ALJ.
This presumption may be overcome by evidence to the contrary.
(c) If the review of SSA's records does not provide sufficient information
to determine whether the individual is a class member and if the
individual is unable to provide the documentation described in ¶ 7(b)
above, then SSA shall request the individual's statement concerning class
membership, and shall also request whatever other information the
individual may wish to provide concerning class membership. SSA shall
evaluate the information submitted in the following manner:
(1) If SSA finds that material information
is credible and the information establishes all of the elements necessary
to meet the requirements of class membership stated in ¶ 1 above,
then SSA shall apply a presumption that the individual meets the
requirements of class membership stated in ¶ 1 above. This
presumption may be overcome by evidence to the contrary.
(2) If SSA finds that material information
is credible but that it does not establish all of the elements necessary
to meet the requirements of class membership stated in ¶ 1 above,
then SSA may, but need not, resolve doubts in favor of the individual in
determining whether the requirements of class membership stated in ¶
1 above are met. In such cases, the record does not need to contain
conclusive proof that the requirements of class membership stated in
¶ 1 above are satisfied.
(3) If SSA finds that material information
is not credible or that the information does not establish all of the
elements necessary to meet the requirements of class membership as
explained in ¶ 7(c)(1) and (2) above, then SSA shall determine that
the individual is not a class member.
(d) If the presumption of class membership described in ¶ 7(b) or (c)
above applies and is not overcome by evidence to the contrary, then SSA
shall deem the individual a class member and shall determine whether the
individual is entitled to relief under this Stipulation.
SSA shall determine within a reasonable time whether each individual who
requests relief under this Stipulation is a class member entitled to
relief and shall complete a written determination including the reason for
the determination. SSA shall place a copy of the determination in the
individual's claim file. If SSA determines that an individual is a class
member entitled to relief, SSA shall include, in the notice of hearing to
the individual, the information that the hearing is pursuant to the
Kendrick settlement.
(a) If SSA determines that an individual is not a class member entitled to
relief, SSA shall notify the individual in writing (Exhibit 4) of that
determination and the reason for the determination. If SSA determines that
the individual is not a class member entitled to relief based on a
finding that the information in support of the request for relief is not
credible, SSA shall include a rationale for the credibility finding in a
written determination that SSA shall place in the individual's claim
file.
(b) Within 60 days after the date an individual receives SSA's
determination that the individual is not a class member entitled to
relief, see
20 C.F.R.
§§ 404.901 and
416.1401
(defining “date you receive notice”), the individual may
request review of the determination by filing a written request for review
of the determination with the Office of the General Counsel (OGC) at the
address provided in the notice. SSA shall assist any individual who
contacts an SSA office, in person or in writing, to complete and file a
written request for review with OGC. If the individual does not timely
file a request with OGC requesting that OGC review SSA's determination,
then the determination shall be binding and not subject to further review
unless the individual shows SSA that there is good cause for the untimely
filing, in which case SSA shall extend the deadline. The standards for
“good cause” shall be those set forth in
20 C.F.R.
§§ 404.909,
404.911,
416.1409 and 416.1411. OGC shall seek to resolve disputes regarding class
membership and entitlement to relief and shall act within a reasonable
period of time. OGC shall consult with class counsel, to the extent
feasible, concerning these disputes, unless the individual is represented
in the matter by other counsel, or objects to the involvement of class
counsel. In the event that the parties are unable to resolve the dispute,
OGC shall advise the individual and counsel, in writing, and shall also
advise class counsel unless the parties objected to the involvement of
class counsel. Within 60 days after the date the individual receives the
notice from OGC, see
20 C.F.R.
§§ 404.901 and
416.1401
(defining “date you receive notice”), the individual may
request review of SSA's determination by a magistrate judge (to be
designated by the court) who shall make a final determination. If the
individual does not timely request that the magistrate judge review SSA's
determination, then the determination shall be binding and not subject to
further review unless the individual shows SSA that there is good cause
for the untimely filing, in which case SSA shall extend the deadline. The
standards for “good cause” shall be those set forth in
20 C.F.R.
§§ 404.909,
404.911,
416.1409 and 416.1411. If the magistrate judge determines that an
individual is a class member entitled to relief, then the individual
shall receive relief under this Stipulation. The magistrate judge's
determination shall be binding and not subject to further review.
The hearing office shall assign the case of each class member entitled to
relief to an ALJ (other than the subject ALJ) in the ordinary course of
business. SSA shall advise ALJs to whom these cases may be assigned of the
terms of the settlement by means of the instructions referred to in
¶ 4(a) above.
A class member entitled to relief shall receive an opportunity for a new
hearing decision based on the claim that led to membership in the class
and entitlement to relief. In cases involving entitlement to benefits
based on disability, the period at issue shall commence with the period at
issue in the claim that led to membership in the class and entitlement to
relief and shall continue through the date of the new hearing or the date
of a later allowance or the date of attainment of age 65, whichever is
earlier. Unless an SSA adjudicator issues a fully favorable decision on
the subject claim without a hearing, the new hearing shall be de novo and
conducted pursuant to SSA's regulations and all applicable law, including
the regulations and the applicable law concerning development of evidence
and the opportunity to appear in person, testify and offer evidence into
the record.
SSA shall make a good faith effort to maintain by computerized tracking
system a record of the number of individuals to whom it sends notices of
entitlement to request relief and the number of individuals who respond to
the notices. SSA shall provide class counsel with annual reports
containing this information, if any, for a period of three years following
issuance of the instructions pursuant to ¶ 4(a) above.
Upon request, SSA shall provide class counsel with reasonable access to
class members' files for the purpose of resolving class membership issues,
if they arise. Class counsel may request that SSA provide class counsel
with access to specific information concerning the implementation of the
settlement. SSA shall review such requests for information regarding
implementation and shall determine whether release of the information is
appropriate. SSA shall make a good faith effort to provide class counsel
with copies of hearing decisions issued pursuant to the terms of this
Stipulation at the time such decisions are issued or quarterly.
Individual class members retain all statutory and regulatory rights to
administrative and judicial review of any new hearing disposition received
pursuant to this Stipulation. Except as explicitly provided in this
Stipulation, nothing in this Stipulation shall be deemed to waive any
right or benefit contained in any statute, regulation, Social Security
Ruling, Program Operations Manual System instruction or other applicable
law.
Any disclosures of information made under this Stipulation, shall be
permitted pursuant to the Privacy Act, 5 U.S.C. § 552a(b) (11).
The Commissioner is excused from the requirements of paragraphs
3,4,5,6,7,8,9,10,11 and 12 of this Stipulation with respect to the claim
of any individual, if the Commissioner decides to issue a decision on the
individual's claim that is fully favorable to the individual.
The parties shall attempt to resolve between themselves questions
concerning attorney's fees, expenses, and costs relating to this
litigation. This Stipulation does not constitute an admission by the
Commissioner that her position in this litigation was not substantially
justified, nor is this Stipulation an admission of liability on the part
of the Commissioner for the payment of any attorney's fees, expenses or
costs. If plaintiffs' counsel decides to file an application for fees and
costs, plaintiffs' counsel shall file the application within 30 days after
the date of the Court's entry of judgment approving this Stipulation
becomes final.
Upon final approval by the Court of this Stipulation:
(a) All class members' claims arising out of the conduct of the subject
ALJ in title II and title XVI cases that occurred before May 22, 1995,
that have been or could have been asserted in this action or
administratively before May 22, 1995, concerning any matters alleged in
this action, are dismissed with prejudice; and
(b) The Commissioner, 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, are released from any claims arising out of the conduct
of the subject ALJ in title II and title XVI cases that occurred before
May 22, 1995, that have been or could have been asserted in this action or
administratively before May 22, 1995, concerning any matters alleged in
this action; and
(c) Class members are barred forever from prosecuting any claims arising
out of the conduct of the subject ALJ in title II and title XVI cases that
occurred before May 22, 1995, that have been or could have been asserted
in this action or administratively before May 22, 1995, concerning any
matters alleged in this action; and
(d) Nothing in this paragraph shall relieve the Commissioner of the duty
to comply with this Stipulation. Nothing in this Stipulation shall bind
the Commissioner to take any action that is contrary to law.
The relief provided under this Stipulation to eligible class members is in
no way to be construed as an admission of wrongdoing by the Commissioner
or to be offered in any proceeding as evidence of any past violation of,
or failure to comply with federal laws, regulations, or rules at issue in
this action. The Commissioner agrees to this Stipulation solely to settle
the case and to avoid the cost of further litigation.
If class counsel represents any individuals who file a new class action
involving the subject ALJ, counsel for the Commissioner shall not object
to assignment of the new class action to the Honorable Robert J. Ward,
United States District Judge, Southern District of New York, in accordance
with the principles of the related case doctrine and with any local rules
in effect at the time of the filing of the new class action. However, the
Commissioner does not waive any defenses in agreeing to permit assignment
of such a new class action in this fashion.
Class counsel, by their signatures below, warrant that they are sole
counsel in this action to the plaintiff class and that they are authorized
to stipulate to settlement of this action.
None of the terms of this Stipulation may be changed except by written
agreement of the parties and approval by the Court. This Stipulation shall
have no force or effect if not finally approved by the Court in its
entirety. The Court shall retain jurisdiction over this action solely for
the purposes of enforcement of the specific provisions of this Stipulation
and of deciding any claim for attorney's fees and costs if the parties
are unable to agree on such fees and costs.
Dated: New York, New York
August
16, 1995
OF COUNSEL:
Arthur J. Fried
General
Counsel
Randolph W. Gaines
Acting Principal
Deputy General Counsel
Dean Landis
Attorney
Social
Security Administration
PRELIMINARILY APPROVED AND ORDERED, pursuant
to ¶ 3(a) of the stipulation and Order, Rule 23(e) of the Federal
Rules of Civil Procedure, and the Privacy Act, 5 U.S.C. §
552a(b)(11), this 17th day of August, 1995. The parties
shall forthwith implement the terms of this Stipulation and Order. A
separate order will be issued scheduling the Rule 23(e) hearing, and
setting forth the dates for the mailing of the notices to potential class
members and the submissions of any objections to the proposed settlement.
________________/s/_________________
Robert
J. Ward
UNITED STATES DISTRICT JUDGE
Exhibit 1
SOCIAL SECURITY ADMINISTRATION
_________________________________________________________________________
This notice is about a proposed settlement of a class action lawsuit that
may affect you. The lawsuit is called Kendrick v.
Chater, No. 90 Civ. 3776 (S.D.N.Y.). This notice explains how to get
more information about the proposed settlement, and how to tell the Court
if you think the proposed settlement is unfair. This notice does not
require you to do anything.
We believe that the proposed settlement may affect you because our records
show that we made an unfavorable hearing decision on your claim for
Social Security or Supplemental Security Income (SSI) benefits between
September 25, 1977, and May 22, 1995. Therefore, you may be a member of
the class of individuals affected by the proposed settlement of the
lawsuit.
The lawsuit was filed against the Secretary of Health and Human Services
on June 4, 1990, in the United States District Court for the Southern
District of New York. The lawsuit claimed that an Administrative Law Judge
(ALJ) who worked in the Chicago, Illinois and New York, New York, Office
of Hearings and Appeals was generally biased against people seeking
benefits. On February 27, 1992, the Court issued an Order granting
Plaintiffs' Motion for Class Certification, Kendrick
v. Sullivan, 784 F. Supp. 94 (S.D.N.Y 1992). (Shirley S. Chater
became the defendant in this case as of March 31, 1995.) The court
certified a class of individuals whose claims were before the ALJ who was
the subject of this litigation.
The proposed settlement was filed recently in federal district court so
that the Court may decide if it is fair. Under the settlement, an
individual who requested a hearing before the ALJ who was the subject of
this litigation in the Manhattan, New York, or Chicago, Illinois, Office
of Hearings and Appeals, on a Social Security or SSI claim, and who
received an unfavorable decision issued between September 25, 1977, and
May 22, 1995, will be able to ask us to review the decision. An individual
in this group who is entitled to have us review the claim again and whose
claim is approved may receive money.
Under the terms of the settlement, we will not review unfavorable
decisions for people (a) who did not receive a decision from the ALJ who
was the subject of this lawsuit, or (b) who received a decision issued
before September 25, 1977, or after May 21, 1995, or (c) who received all
the benefits they claimed, either on appeal, or on remand from an appeal
or by filing another claim, or (d) who received a new hearing and decision
from an ALJ other than the ALJ who was the subject of this lawsuit and
that considered the entire time period raised in the
Kendrick claim, either on remand or as the result
of the settlement in another class action, or (e) who filed a case in
federal court and received a final decision concerning the conduct of the
ALJ who was the subject of this litigation.
All class members will be bound by the terms of the proposed settlement if
the court approves it. This means that class members will not be able to
bring new lawsuits arising out of past actions by the ALJ who was the
subject of this litigation.
You may tell the Court what you think about the proposed settlement. If
you think it is fair, you do not need to comment. If you think it is
unfair, you should send your written objections to the law office that
represented the plaintiff class. Write David Udell, Esquire, Legal
Services for the Elderly, 130 West 42nd Street, 17th Floor, New York, New
York 10036-7803. Your letter must be postmarked by [date 30 days prior
to the date of the Rule 23(e) hearing]. You may also appear at the
hearing and testify before District Court Judge Robert J. Ward who will
decide whether to approve the settlement at a hearing on [date of the
Rule 23(e) hearing] in the United States Courthouse, One Foley
Square, Courtroom 1506, New York, New York. If you send written comments
and wish to testify at the hearing, your testimony should be related to
the matters addressed in your written objections.
We will not review your past hearing decision at this time. If the court
approves the settlement, then we will send you a notice offering you the
opportunity to ask us to review your past decision. At that time, you can
ask us to determine whether you are entitled to relief under the
settlement.
To get a copy of the proposed settlement, or for more information
concerning the lawsuit, write the law office that represented the
plaintiff class. Write David Udell, Esquire, Legal Services for the
Elderly, 130 West 42nd Street, 17th Floor, New York, New York 10036-7803
or call (212) 391-0120. If someone is helping you with your claim, you
should contact that person. Please do not contact Judge Ward or the Clerk
of the Court about this proposed settlement.
Exhibit 2
SOCIAL SECURITY ADMINISTRATION
_________________________________________________________________________
We may owe you money. This is because of a court case called
Kendrick v. Chater.
Our records indicate that we made an unfavorable hearing decision on your
Social Security or Supplemental Security Income (SSI) claim on or after
September 25, 1977, but before May 22, 1995. You can ask us to look at the
decision again by sending in the enclosed reply form within 90 days.
Even if you are already receiving money from Social Security, or are
presently pursuing a claim for benefits, we may owe you more money in
connection with the past hearing decision.
Fill out the enclosed reply form and send it to us now.
You have only 90 days to do this. You should act as soon as possible. Do
not wait or you may lose your right to have the decision reviewed.
After we receive the reply form from you, we will look to see if you meet
the requirements for a new review. These requirements are described in the
settlement agreement in the Kendrick court case.
Although we will try to review your case as soon as possible, it will
likely be some time before we look at your case. If you do not meet the
requirements, we will send you a letter that explains why.
If we find that you meet all the requirements, we will make a new decision
to replace the unfavorable decision that we made in the past. We will
contact you if a new hearing is required. We will also notify you if you
must do anything to help us make the new decision.
If you have any questions, you may call your local Social Security office.
We can answer most questions over the telephone. You can also write or
visit any Social Security office. If you call or visit an office, please
try to have this letter with you. It will help us answer your questions.
You may also call us toll free at 1-800-772-1213 if you have any
questions.
If you already have a lawyer or other legal representative, you may show
this notice to him or her: You do not need a lawyer or legal
representative to send the reply form back to Social Security.
Si usted no entiende esta carta, llevela a la oficina de seguro social
para que se la expliquen.
Enclosures:
Reply form and envelope
Exhibit 3
SOCIAL SECURITY ADMINISTRATION
___________________________________________________________________________________
___________________________________________________________________________________
___________________________________________________________________________________
SIGNATURE ______________________________________________ DATE
_____________________
Please write the area code and the telephone number where we can call
you.
AREA CODE _____________ TELEPHONE NUMBER
___________________________
If your address is different from that shown above, please write
your correct address.
___________________________________________________________________________________
ADDRESS
(Number and Street, Apartment Number, Post Office Box, or Rural
Route)
___________________________________________________________________________________
CITY
AND STATE ZIP CODE
If your Social Security Number is different from that shown above, please
write your correct Social Security Number.
_____________________________
SOCIAL SECURITY
NUMBER.
The Social Security Act (Sections 205(a) of title II, 702 of title VII
1631(e)(1)(A) and (B) of title XVI. and 1869(b)(1) and (c) of title XVIII)
allows us to collect the information on this form. We will use the
information to process your claim. You do not have to give us this
information, but without it we may not be able to process your claim.
Information may be disclosed to another person or to another governmental
agency for the administration of the Social Security program or for the
administration of programs requiring coordination with the Social Security
Administration. Explanations about these and other reasons why
information you provide us may be used or given out are available in
Social Security Offices. If you want to learn more about this, contact
any Social Security office.
Exhibit 4
You asked us to review your case under the terms of the
Kendrick v. Chater settlement agreement. We have
looked at your case and decided that you are not entitled to a new hearing
decision under the Kendrick settlement
agreement. The reason you are not entitled to a new hearing decision is
checked below.
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
entitled to a new decision under the Kendrick
settlement.
You must write within 60 days of the date you
receive this notice to:
It will be helpful if your letter tells us the reasons why you disagree
with this determination.
You may contact the lawyers who brought the
Kendrick lawsuit. They can be reached as
follows:
The Kendrick lawyers can provide information
about the lawsuit, including the information about how to notify Social
Security that you disagree with this determination.
Si usted no entiende esta carta, llevela a la oficina de seguro social
para que se la expliquen.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT
OF NEW YORK
-----------------------------------------------X
-----------------------------------------------X
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
STIPULATED AND AGREED:
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.C.
§ 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.
Plantiffs' 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 6 of this Order, plaintiffs' counsel shall
not make disclosures of such information, except: (1) to each other; (2)
to members of plaintiffs' counsels staff; (3) to defendant or her agents
or counsel; (4) to the Court in this action. 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.
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.
Before any confidential information is released or disclosed to a
representative acting on behalf of a particular class member or potential
class member in accordance with paragraph 2 of this Stipulation and Order,
plaintiff's counsel shall provide such representative with a copy of this
Stipulation and Order. Plaintiff's counsel will obtain a signed
acknowledgement from the aforementioned representative stating that the
individual has received a copy of this Stipulation and Order and agrees
that he or she is bound by the terms of this Stipulation and Order and
that any violation of this Stipulation and Order may constitute a contempt
of court punishable by fine or imprisonment or both. Plaintiff's counsel
will send copies of such acknowledgement to defendant's counsel.
Each person to whom any of the confidential information described in
paragraph 2 subparagraphs (1) and (2) is disclosed or released shall:
make no copies of the documents containing confidential information and
make no summary or exhibits of the confidential information except at the
direction of plaintiff's counsel;
maintain the documents containing confidential information in a safe and
secure location; and
shall return the documents to defendant's counsel after the documents are
no longer needed to accomplish the purposes of paragraph 1. Under no
circumstances shall the documents be retained by such person more than two
years from the date of receipt from plaintiffs' counsel unless the person
advises defendant's counsel that the documents are still required, in
which case the time for return of the documents shall be extended for one
year. Additional one year extensions may be granted by defendant if
necessary.
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.
Failure to comply with all of the terms of this Order shall subject the
responsible individual and/or his or her attorney to appropriate sanctions
by the Court, including a finding of contempt.
Any party may seek modification of this Order upon twenty days notice to
the other party.
Dated: New York, New York
October
30, 1996
Dated: November 6, 1996
New
York, New York
_____________/s/_______________
Robert
J. Ward
U.S.D.J.
1 Pursuant 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 was transferred to the
Commissioner of Social Security effective March 31, 1995. In accordance
with section 106(d) of P.L. 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.
Court Case Name: ____________________________________
Court Case Identifier: _ _
Check One or Both:
Date of Contact: __ __-__ __-__ __ __ __
Claimant's Own SSN: __ __ __ - __ __- __ __ __ __
Claimant's Date of Birth: __ __-__ __-__ __ __ __
Claimant's First Name: ___________________________________
Claimant's Middle Initial: __
Claimant's Last Name: ___________________________________
-
Phone #: (___) ____-_________
Name of Payee: ______________________________________
Name of Atty/Rep: _______________________________________
Claim/SSN Numbers (List All Known Claim/SSN Numbers)
Signature (If claimant/payee appears in person, please obtain signature)
________________________________________________________________________
For SSA Use Only (Please Print)
Instructions for Completion of the Request for Court Case Review/Change of
Address Worksheet
MAIL THE COMPLETED WORKSHEET TO THE FOLLOWING ADDRESS:
Office of Disability and International Operations
Class Action
Section
P.O. Box 17369
Baltimore, MD 21298-0050
Item 1.
Print the name of the court case claimant/payee/representative is
inquiring about (i.e., Kendrick).
Item 2.
This worksheet can be used to implement all class action court cases. The
court case identifier for Kendrick is KE.
Item 3.
If a claimant/payee/representative is requesting review (e.g.,
“walk-in”) under the Kendrick
settlement agreement, check the first block. If the
claimant/payee/representative has previously requested review under
Kendrick and is informing SSA of a new address,
check the second block. If the claimant/payee/representative is requesting
review and notifying SSA of a new address simultaneously, check both
blocks.
Item 4.
Provide the date of contact (mm,dd,yyyy).
Item 5.
Provide claimant's own Social Security number.
Item 6.
Provide claimant's date of birth (mm,dd,yyyy).
Item 7.
Print claimant's complete first name, middle initial, if appropriate, and
complete last name, allowing one letter for each underscore provided on
the worksheet.
Item 8.
Print the street address, city, state abbreviation, and zip code of the
claimant or claimant's payee/representative, as appropriate, allowing one
letter for each underscore provided on the worksheet.
Item 9.
Provide the telephone number, including the area code, of the
claimant/payee/representative, as appropriate.
Item 10.
Print the complete first name, middle initial and last name of the payee,
not to exceed 19 characters, if appropriate. If the complete name exceeds
19 characters, shorten the first name to ensure that the complete last
name is provided. Leave a space after the first name and after the middle
initial.
Item 11.
Print the complete first name, middle initial, if appropriate, and last
name of the attorney/representative, if claimant has representation.
Item 12.
Complete only if claimant/payee/representative is requesting court case
review. It is not necessary to complete the claims information when only
reporting a change of address. This information is required to establish a
“walk-in” record on the Civil Action Tracking System (CATS).
If not complete, the form will be returned for completion.
Provide all claim numbers, including BIC and/or ID, under which the
claimant filed for benefits. Use the back of the sheet, if necessary. This
is needed to ensure that all appropriate claims are reviewed under the
class action. Attempt to verify the claim numbers via MBR and/or
SSR/STALE. If there is no record on the MBR/SSR, verify the SSN on the
Numident. Be sure to write “YES” in the space provided in the
“VERIFY” column on the worksheet indicating the account
numbers were verified.
Item 13.
Obtain the signature of the claimant/payee/representative only if he/she
appears in person.
Item 14.
Print the name, office code, and telephone number, including area code, of
the SSA employee taking this form.
If the claimant/payee/representative remembers or knows the name of the
ALJ who held a hearing or who issued a decision or dismissal on a claim
filed by the claimant and the date or year of the hearing, write the
information in the top right hand corner of the form (include as much of
the ALJ's name as can be recalled or identified).
PAYEE ADDRESS
ALL CLAIM FILE(S) SHOULD BE SHIPPED TO THE FOLLOWING ADDRESS FOR
SCREENING:
IF UNABLE TO LOCATE THE CLAIM FILE(S), FORWARD A RECONSTRUCTION REQUEST TO
THE SERVICING FIELD OFFICE
A separate screening sheet must be prepared for each CAN/HUN printed
above.
This claimant may be a Kendrick class member.
Accordingly, we are forwarding the attached alert [and prior claim
file(s)] for association and screening for class membership and
entitlement to relief.
Please refer to HALLEX Temporary Instruction 5-457 for additional
information and instructions.
Complete a screening sheet in cases where the individual has requested
relief after receiving a written notice from SSA. Do not complete a
screening sheet for individuals who do not receive a written notice but
who otherwise request relief (i.e., “walk-ins”) until after a
preliminary determination concerning the application of the presumptions
of class membership has been made (see Part V.B.2.a.). (The claim
file should contain a notation indicating whether or not a presumption
was applied.) If the determination was that a presumption of class
membership should be applied, complete a screening sheet to determine if
the individual is a class member entitled to relief under the settlement
(see the instructions for completing questions 5 and 6 - 8 below).
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, if different from the claim number, are correct
and legible. (If SSN is different from claim number, copy SSN from
BOAN/PAN field on alert).
Question 5
Indicate whether or not a presumption of class membership was applied (see
Part V.B.2.a.). Do not fill in the member/nonmember information
in Item 5 until the screening process is completed.
Questions 6 - 8
If a presumption of class membership was applied pursuant to Part
V.B.2.a., answer “Yes” for these three questions unless the
file contains documentary evidence to the contrary. If a preliminary
determination concerning the application of a presumption of class
membership was not required (i.e., the individual requested relief after
receiving a notice from SSA), the screening will be based solely on
information contained in the claim file(s) and/or case control queries.
Therefore, if no presumption was applied, answer the questions based on
the individual instructions for questions 6 - 8.
Questions 6 - 15 — General
In a multiple claims case, begin screening with the earliest claim in the
Kendrick period and stop with the last claim in
the Kendrick 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.
Read the ALJ/AC decision to answer the questions.
If the OHA decision does not yield enough information to answer the
questions, look further into the file.
If questions 6-8 are answered “NO,” or questions 9-12 are
answered “YES,” check the nonmember block found in item 5.b.
on the screening sheet, then enter the appropriate screenout code in Item
5.c. as directed in question 13 on the screening sheet.
Remember to follow instructions for members/nonmembers.
Question 6
Review the file and case control queries to determine if the individual
filed a claim for Social Security or SSI benefits and subsequently
requested a hearing before an Administrative Law Judge (ALJ).
Question 7
Review the file and case control queries to determine if the individual
received a dismissal or less than fully favorable decision on his or her
claim(s) for title II or title XVI benefits (not limited to disability
claims) from ALJ Helen Anyel (subsequently referred to as the
“subject ALJ”). If information in the file or the case
control queries indicate that the individual did not receive a decision or
dismissal from the subject ALJ, the individual is not a class member
entitled to relief.
Question 8
Screen for date of decision, not date of application. Individuals are
potentially entitled to relief if they received a dismissal or less than
fully favorable decision from the subject ALJ on or after September 25,
1977, but before May 22, 1995.
Question 9
Review the file and case control queries. Review all subsequent
administrative and judicial determinations to determine if the dismissal
or less than fully favorable decision referred to in Questions 7 and 8 was
changed to a fully favorable decision.
Question 10
Review the file and case control queries. Determine if the individual
received a fully favorable decision on another claim that effectively was
the equivalent of a fully favorable decision on the potential class member
claim. This requirement would be met if the decision on the other claim
resulted in an award of benefits for the entire time period(s) at issue in
the potential class member claim.
A claim cannot be screened out on the basis of Question 10 unless it
is clear that the DDS, an ALJ or the Appeals Council issued a fully
favorable decision that adjudicated the entire period covered by the
Kendrick claim back to the earliest alleged
onset/entitlement date. Therefore, in reviewing DDS determinations, be
aware that DDS adjudicators generally limit consideration of subsequent
claims to the period after the previously adjudicated period. 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 11
Review the file and case control queries to determine if the individual
received a new hearing and decision (whether favorable or unfavorable),
from an ALJ other than the subject ALJ, on the potential class member
claim, that considered the entire time period(s) at issue, following an
appeal, remand from an appeal, reopening or readjudication in connection
with another class action (e.g., Stieberger,
State of New York,
Dixon, S.P.). In cases
where the DDS performed the first readjudication under another class
action, check to see if the individual appealed the determination to the
ALJ hearing level.
Question 12
Review all final federal court orders to determine if the court considered
allegations that the subject ALJ engaged in inappropriate conduct during
the hearing or was biased against the individual and made a determination
concerning the validity of those allegations.
Question 13
Self-explanatory
Question 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
Check the "MEMBER ENTITLED TO RELIEF" block in item 5.b. of the
screening sheet.
Sign the form and retain the original screening sheet in the claim
file.
The screening component will send a copy of thescreening sheet to:
Office of Appellate Operations
One Skyline Tower, Suite 701
Attn:
OAO Class Action Coordinator
The OAO 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 the screening sheets received from the OAO Class
Action Coordinator and coordinate data entry into the Civil Actions
Tracking System.]
Follow HALLEX I-5-4-57,
V.B.5.b.
INSTRUCTIONS FOR NONMEMBERS
Check the "NONMEMBER/MEMBER NOT ELIGIBLE FOR RELIEF" block in
item 5.b. and enter the appropriate screenout code (the number of the
question that determined the individual is not a class member, numbers
6-12, see Item 13 on the screening sheet) in item 5.c.
Follow items b and c above.
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 claim file. Forward the claim
file(s) as indicated in HALLEX
I-5-4-57, V.B.5.a.
You asked us to review your case under the terms of the
Kendrick v. Chater settlement agreement. We have
looked at your case and decided that you are not entitled to a new hearing
decision under the Kendrick settlement
agreement. The reason you are not entitled to a new hearing decision is
checked below.
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 under the Kendrick
settlement.
You must write within 60 days of the date you receive this notice to:
Office of the General Counsel (OGC)
Social Security
Administration
Attn:
KendrickAttorney
611 Altmeyer Building
6401
Security Boulevard
Baltimore, MD 21235
It will be helpful if your letter tells us the reasons why you disagree
with this determination.
You may contact the lawyers who brought the
Kendrick lawsuit. They can be reached as
follows:
Kendrick Lawyers
Legal Services for the
Elderly
130 West 42nd Street, 17th Floor
New York, New York
10036
Telephone: (212) 391-0120
The Kendrick lawyers can provide information
about the lawsuit, including the information about how to notify Social
Security that you disagree with this determination.
Si usted no entiende esta carta, llevela a la oficina de seguro social
para que se la expiquen.
REMARKS
We have determined that this claimant is not a
Kendrick 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-5-4-57,
Part V.B.5.a.
Attachment
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
In an earlier letter that we sent you, we said that you were not a class
member eligible for relief under the Kendrick v.
Chater class action. After reviewing all of the facts, we have
decided that you are a Kendrick class member
eligible for relief. Therefore, we will review your claim in accordance
with the terms of the Kendrick v. Chater
settlement agreement.
We have received many requests for review and it may take several months
before we take any further action on your claim.
If you think that you are disabled now, you should fill out a new
application at any Social Security office.
If you have any questions, you may call us toll-free at 1-800-772-1213, or
call your local Social Security office at XXX-XXXX. We can answer most
questions over the phone. You can also write or visit any Social Security
office. The office that serves your area is located at:
District Office
Address
City, ST ZIP
If you do 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.
If you have someone helping you with your claim, you should contact him or
her. You may also ask for legal help by contacting a legal aid
organization in your area.
Kendrick Class Action Case
READJUDICATION NECESSARY
This claimant is a Kendrick class member. The
attached Kendrick claim file was forwarded to OAO
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 Kendrick
readjudication action.
We are sending the alert and prior file(s) to:
REMARKS
KENDRICK CASE
We have determined that this claimant is a
Kendrick class member entitled to relief (see
screening sheet). We are forwarding this file to the field office (FO) to
update the file prior to reajudication.
Disability Cases — After updating the file, the FO should
forward the file to the Disability Determination Services (DDS) to
develop the medical evidence to the present. Upon completion of the
medical development, the DDS will forward the file to the OHA Office
(either the OHA New York Regional Office or a specific OHA Hearing
Office) noted below for readjudication.
Non-Disability Cases — After updating the file, the FO
should forward the file to the OHA office (either the OHA New York
Regional Office or a specific OHA Hearing Office) noted below for
reajudication.
Upon completion of all development by the FO and the DDS, the claim file
should be sent to:
Attachment
