I-5-4-61.Goodnight v. Apfel

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Reconciliation of Implementation
IX Inquiries
Attachment 1 Final Order Approving Settlement; Entered by the United States District Court for the District of Utah on July 30, 1998.
Attachment 2 - Sample Goodnight COURT CASE FLAG/ALERT
Attachment 3 - Reconstruction Flag
Attachment 4 - Screening Flag -- Inside OHA
Attachment 5 - GOODNIGHT SCREENING SHEET
Attachment 6 - Screening Flag -- to DDS
Attachment 7 - Screening Flag -- Outside OHA
Attachment 8 - Notice of Non-Class Membership
Attachment 9 - Readjudication Flag for OHA Retention Cases
Attachment 10 - Readjudication Flag for Non-Consolidation Cases

ISSUED: July 19, 1999

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the Final Order entered by the United States District Court for the District of Utah on July 30, 1998, approving the parties' settlement agreement in the Goodnight v. Apfel class action. The Goodnight class action was principally oriented toward alleged deficiencies in Utah Disability Determination Services (DDS) actions and procedures.

Adjudicators throughout the country must be familiar with this TI because of case transfers and because Goodnight class members who now reside outside of Utah must have their cases processed in accordance with the requirements of the Final Order and settlement agreement.

II. Background

On March 27, 1992, the named plaintiffs filed a class action law suit against the Secretary of Health and Human Services and three Utah DDS officials. Plaintiffs alleged that the defendants have established a system of policies, practices, procedures and standards to illegally deny initial claims for title II and title XVI disability benefits. Specifically, plaintiffs alleged that the Utah DDS failed to: 1) obtain medical assessments; 2) develop a complete previous 12-month history; 3) properly apply step three of the sequential evaluation process; 4) consider the effect of a combination of impairments; 5) properly determine the duration of impairment; 6) properly apply the medical-vocational guidelines for individuals of advanced age; 7) obtain residual functional capacity assessments from physicians; and 8) give proper notice of unfavorable determinations.

On October 27, 1993, the district court denied the Federal and State defendants' motions to dismiss and granted plaintiffs' motion for class certification. Plaintiffs then proceeded with discovery and identified two Utah DDS medical advisers who were signing decisional documents prepared by disability examiners without having reviewed the claim files between 1991 and 1993. Following restrictions on funding to the Legal Services Corporation, plaintiffs' counsel removed themselves from the case and plaintiffs secured representation from a private practitioner.

On October 30, 1996, plaintiffs filed a motion for partial summary judgment and the Federal and State defendants filed oppositions to plaintiffs' motion. On January 28, 1997, the court held a hearing on the parties' cross-motions for summary judgment. On April 14, 1997, the court issued a memorandum decision and order which denied plaintiffs' motion for partial summary judgment and denied in part and granted in part defendants' cross-motion for partial summary judgment. The court held that a Program Operations Manual System (POMS) instruction which permits disability examiners to assist in completion of residual functional capacity (RFC) assessment forms was consistent with the Social Security Act and regulations and not subject to the notice and comment provisions of the Administrative Procedure Act. However, the court found that an issue of material fact existed as to whether defendants violated plaintiffs' civil rights by processing certain claims without an independent physician's assessment.

Following the Supreme Court's decision in Blessing v. Firestone, 117 S. Ct. 1353 (1997), the defendant filed a brief for the purpose of prompting the court to reconsider its prior denial of its motion to dismiss plaintiffs' claim under 42 U.S.C. § 1983 against the State defendants. (In Blessing, the Supreme Court held that a plaintiff cannot bring an action under § 1983 and sue a State defendant for its systematic failure to apply the Federal regulations and laws of a Federally funded program.) On March 10, 1998, the court denied defendant's motion to reconsider.

On June 9, 1998, the parties filed notice of a proposed settlement agreement, and, on June 10, 1998, the court gave its preliminary approval of the settlement agreement. On June 26, 1998, July 3, 1998 and July 10, 1998, notice of the public hearing regarding the settlement proposal appeared in four Utah newspapers. On July 29, 1998, following the conclusion of the fairness hearing, the court approved the parties' jointly negotiated settlement proposal, and, on July 30, 1998, the court entered the order (see Attachment 1).

III. Guiding Principles

Under the Goodnight settlement, the Utah DDS (and the Commissioner) will readjudicate the claims of those persons who: 1) respond to notice informing them of the opportunity for review (see Part V. A. 1. below); and 2) are determined, after screening, to be class members entitled to relief (see Part V. B. 3. below). Regardless of the state of the claimant's current residence, the Utah DDS will, in most cases, perform the agreed-upon readjudications. OHA will screen cases and perform readjudications under limited circumstances (see Parts V. and VI. below).

The type of readjudication will be a “redetermination.” A redetermination consists of a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period that was at issue in the administrative determination(s) that forms the basis for the claimant's class membership. If the redetermination results in a favorable decision, the adjudicator must also determine whether the class member's disability and eligibility has been continuous through the date of the readjudication, i.e., through the current date or the date of the most recent allowance. The adjudicator will also assess disability through the current date if a class member claim is consolidated with a common-issue current claim.

Cases readjudicated by the Utah DDS will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. The class member claim(s) will be adjudicated under current policies and procedures.

IV. Definition of Class

Except as noted below, the Goodnight class members eligible to request relief are those persons:

  • who had a claim for title II and/or title XVI disability benefits denied at steps two, four or five of the sequential evaluation process by the Utah DDS at the initial or reconsideration levels between January 1, 1991, and February 20, 1994, inclusive; and

  • whose determinations for disability benefits were based in whole or in part on a mental impairment as indicated in primary or secondary diagnostic blocks 16A or 16B on Form SSA-831-U3/C3 (the Disability Determination and Transmittal); or

  • whose Form SSA-831-U3/C3 was signed by Utah DDS employees Doctor Manya Atiya or Doctor Rebecca Dalisay.

EXCEPTIONS:

A person is not a Goodnight class member eligible to request relief if he or she:

  • received a subsequent award of benefits with respect to the same period of time at issue in the class claim (Although the period at issue in the class claim can be prior to January 1, 1991, the adjudication of the claim only had to occur between January 1, 1991 and February 20, 1994, inclusive); or

  • appealed the denial of his or her class claim to an Administrative Law Judge (ALJ), the Appeals Council (AC) or to Federal court; or

  • received a subsequent disability determination after February 20, 1994, that adjudicated the same time period covered by the class claim; or

  • has in his or her claim file a Psychiatric Review Technique Form (PRTF) and Mental Residual Functional Capacity (MRFC) form each completed in its entirety by a Utah DDS psychiatrist or psychologist employed by the Utah DDS between January 1, 1991, and February 20, 1994, inclusive; or

  • failed, without good cause, to timely request a redetermination by responding to the notice requirements.

V. Determination of Class Membership and Preadjudication Actions

A. Pre-Screening Actions - General

  1. Identification, Notification and Routing

    In April 1999, SSA by means of its data processing systems identified the names, social security numbers (SSNs) and last known addresses of potentially eligible Goodnight class members and sent these individuals notices. On June 3, 1999, because of problems with the mailing, SSA sent a second notice to all potential class members except those who responded to the first mailing and whose earlier notice was returned as undeliverable. Potential class members have 90 days from the receipt of the notice to return a reply form to the Office of Central Operations (OCO)(formerly known as the Office of Disability and International Operations) requesting that SSA readjudicate their claims under the terms of the Goodnight settlement order.

    Undeliverable notices returned to OCO will be used to update the Civil Action Tracking System (CATS). Litigation Staff will then attempt to obtain updated addresses by providing the Utah DDS with a computer tape of those otentially eligible class members whose notices were returned as undeliverable. The Utah DDS will then attempt to provide Litigation Staff with a computer tape of updated addresses. Within 60 days of receiving the updated addresses from the Utah DDS, Litigation Staff will make a good faith effort to resend the notice by first class mail. If the second notice is returned as undeliverable, Litigation Staff will then provide the Utah DDS with a computer tape of those second mailed notices that were returned as undeliverable. Within 120 days of receiving the computer tape of undeliverable notices from the Utah DDS, plaintiffs' representative may attempt to provide notice to those potentially eligible class members whose second notice was returned as undeliverable.

    Following issuance of the POMS instructions, SSA will also display posters in all of its Utah field offices (FOs) for a period of 180 days from posting. Absent a finding of good cause, potential class members will have 90 days after the poster display period has ended in which to respond. However, individuals who receive a mailed notice will not be eligible to have the time period extended within which they must respond to the mailed notice by responding to the poster notice.

    Individuals can also request review in person by visiting any FO. If the individual has the Goodnight reply form, the FO will instruct the potential class member to return the reply form to OCO in the postage-paid, pre-addressed envelope. If the claimant lost or never received one or is requesting review based on the poster display, the FO will assist the claimant in completing an SSA-795 (Statement of Claimant). The SSA-795 should state that the claimant is requesting review of his or her disability claim based on the Goodnight court case and include the claimant's name, SSN, current address and telephone number. The claimant or representative payee should sign the SSA-795.

    Individuals can also request review by contacting any FO by telephone or in writing. If the individual contacts the FO by telephone and the individual has the reply form, the FO should instruct the individual to return it to OCO. If the potential class member lost or never received a reply form, the FO should complete an SSA-5002 (Report of Contact). The report of contact should state that the claimant requested a review of his disability claim based on the Goodnight court case and include his or her name, SSN, current address and telephone number.

    Any written requests for review and completed SSA-795 and SSA-5002 forms should be forwarded to the Regional Office, Center for Disability, Federal Building, 1961 Stout Street, Room 834, Denver, CO 80294, Attention: Goodnight Coordinator.

  2. Alert and Folder Retrieval Process

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

    OCO will associate the computer-generated alerts and query package (which consists of a CATS alert cover sheet, SSIRD, AR-25, MBR FACT, OHAQ, DDBQ, DDSQ and SEQY queries) and forward them to the appropriate component for folder retrieval. OCO will be responsible for retrieving OCO jurisdiction title II only and concurrent title II and title XVI potential class member claims. The PSCs will be responsible for retrieving PSC jurisdiction title II only and concurrent title II and title XVI potential class member claims. The Wilkes-Barre Folder Servicing Operations (FSO) and the FOs will be responsible for retrieving title XVI claims. OCO, the PSCs, the FSO and the FOs will forward retrieved claim files to the Utah DDS for class membership screening.

  3. Alerts Sent to OHA

    If OCO, the PSCs, the FSO or the FOs determine that a current claim, i.e., either a potential class member claim or a subsequent claim, is pending appeal or stored at OHA, it will forward the alert to OHA, along with any prior claim file(s) not in OHA's possession, for screening, consolidation consideration and readjudication (if consolidated).

    If a claim is located in an OHA hearing office (HO), OCO, the PSCs, the FSO or the FOs will forward the alert and query package and claim file(s), if any, directly to the HO for processing. If the claim is pending or stored at OHA Headquarters, OCO, the PSCs, the FSO or the FOs will forward the alert and query package and claim file(s), if any, to the Office of Appellate Operations (OAO), at the following address (case locator code 5007):

     

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

    ATTN: OAO Class Action Coordinator

    NOTE:

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

  4. Folder Reconstruction

    In general, OCO, the PSCs, or FOs will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential Goodnight cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the particular claim would not confer class membership. OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the servicing FO. The request will be made by memorandum and will include the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) as attachments. The request will also include documentation of the attempts to locate the file. The memorandum will request the FO to send the reconstructed file to OHA after it completes its reconstruction action. HOs will route any reconstruction requests directly to the servicing FOs. The OAO branch will also route reconstruction requests directly to the servicing FO and will send a copy of the request to the OAO Class Action Coordinator. For CATS purposes, HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:

     

    Office of Program Benefits
    Litigation Staff
    3-K-26 Operations Building
    6401 Security Boulevard
    Baltimore, MD 21235-6401

    Attn: Goodnight Coordinator

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

    The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to receipt of the reconstructed folder, the HO or OAO, as appropriate, will forward the class action material, including the alert, if still in its possession, unneeded claim files, if any, and a copy of the reconstruction request directly to the servicing FO using Attachment 3. The HO or OAO will send a copy of the covering attachment to the OAO Class Action Coordinator, along with a copy of the action taken on the pending claim. For additional information on reconstruction procedures, see Generic Class Action Implementation instructions in HALLEX I-1-7-5 C.

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

B. OHA Screening Actions

  1. Determining Jurisdiction for Screening

    1. Current Claim Pending or Stored in OHA

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

      • If the current claim is in an HO, the Coordinator will forward the alert and any prior claim file(s) to the HO for screening using Attachment 4. (Part V. B. 3. a. below provides instructions to HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

      • If the current claim is pending before the Appeals Council, or is located in an OAO branch mini-docket or in the OAO Docket and Files Branch (DFB), the Coordinator will forward the alert and any prior claim file(s) to the appropriate OAO branch for screening using Attachment 4. (Part V. B. 3. a. below provides instructions to the OAO branches regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

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

      NOTE:

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

       

      Division of Litigation Analysis
      and Implementation
      Office of Hearings and Appeals
      One Skyline Tower, Suite 1605
      5107 Leesburg Pike
      Falls Church, VA 22041-3255

      ATTN: Goodnight Coordinator

      Telephone Number: (703) 605-8278

    2. Current Claim Pending in Court

      If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or a subsequent or prior claim, the Coordinator will forward the alert and any accompanying claim file(s) to the appropriate OAO Court Case Preparation and Review Branch (CCPRB) for screening, using Attachment 4. See Part V. B. 3. b. below for special screening instructions when a civil action is involved.

  2. Pre-Screening Procedures

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

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

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

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

    The screening component will also:

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

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

  3. Screening

    1. General Instructions

      The screening component will associate the alert and any prior claim file(s) with the claim file(s) in its possession and then complete a screening sheet (see Attachment 5) as follows.

      • Consider all applications denied during the Goodnight timeframe;

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

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

      • If the screening component is an OHA Headquarters component or an HO, forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V. A. 3. above. (The Coordinator will enter information from the screening sheet into a database and will forward the screening sheet to DLAI.) HO personnel may also forward material by telefax to DLAI at (703) 605-8251. (DLAI will retain a copy of each screening sheet, share a copy with the OAO Class Action Coordinator and forward a copy to Litigation Staff.)

      NOTE:

      If the case contains a PRTF and MRFC form each completed in its entirety by a Utah DDS psychiatrist or psychologist employed by the Utah DDS between January 1, 1991 and February 20, 1994, inclusive, and it is possible that the case will be screened out using screenout code “11,” do not proceed with any further screening. Instead, send the claim file to the Utah DDS using Attachment 6. Do not send the claimant a notice of denial of class membership. Any notice to be sent to the claimant concerning class membership status will be taken by the DDS following the results of a “double screening.”

      If the HO receives an alert only, or an alert associated with a prior claim file(s), for screening, and no longer has the current claim file, it will return or forward the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V. A. 3. above) and advise the Coordinator of the action taken on the current claim and its destination. The Coordinator will determine the current claim file location and, if it is located in OHA Headquarters, will forward the alert and any accompanying claim file(s) to the responsible OAO branch for screening, using Attachment 4. If the file(s) is no longer in OHA, the Coordinator will use Attachment 7 to send the alert and any accompanying claim file(s) to the non-OHA location.

      If an OAO branch receives an alert only, or an alert associated with a prior claim file(s), and no longer has the current claim file (and it is not located in mini-dockets or the OAO DFB), it will determine the location of the current claim file. If the current claim file is located within OHA, the OAO branch will use Attachment 4 to forward the material to the OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 7 to forward the material to the non-OHA location. The OAO branch will also advise the OAO Class Action Coordinator of its actions.

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

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

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

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

  4. Post-Screening Actions

    1. Screened Out Cases

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

      • notify the individual, and representative, if any, of that determination using Attachment 8 (modified as necessary to fit the circumstances and posture of the case when there is a current claim); and

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

      • send a copy of the notice to:

         

        Brent V. Manning
        Manning Curtis Bradshaw & Bednar, LLC
        370 E. South Temple, Suite 200
        Salt Lake City, UT 84111

      • The Utah DDS or OHA, as appropriate, will hold for 65 days all claim files of individuals to whom SSA sends notice of non-class membership or ineligibility for relief pending a dispute by class counsel. Upon timely request by class counsel, send the claim the claim file(s) to:

         

        Utah Disability Determination Services
        P.O. Box 144032
        Salt Lake, City UT 84114-4032

        Attn: Goodnight Coordinator

      • If after 65 days no review is requested, return the file(s) to the appropriate storage location if not otherwise needed.

    2. Cases Determined to be Class Members

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

      NOTE:

      Class membership will be presumed in reconstructed Goodnight cases if the queries indicate a medical denial between January 1, 1991 and February 20, 1994, inclusive.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

The Utah DDS will usually conduct the Goodnight review. An exception will apply for cases consolidated at the OHA level (see Part VI. D.). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided and the claimant will be entitled to appeal rights (i.e., ALJ hearing, Appeals Council and judicial review.) However, the following processing and adjudication procedures will apply when OHA has responsibility for screening, i.e., when a potential class member claim or another claim is pending or stored in OHA, and when the claimant is a class member.

B. OHA Adjudication of Class Member Claims

The following instructions apply to consolidation cases (see Part D. below) in which the ALJ or Appeals Council conducts the Goodnight readjudication and to DDS readjudication cases in which the claimant requests, and is eligible for, a hearing or Appeals Council review. Except as noted herein, HOs and OHA Headquarters will process Goodnight class member cases according to all other current practices and procedures including coding, developing evidence, routing, etc.

  1. Type of Review and Period to Be Considered

    1. Pursuant to the Goodnight Order, the type of review to be conducted is a redetermination. The redetermination consists of a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file, including newly obtained evidence, relevant to the period that was at issue in the administrative determination or decision(s) that forms the basis for Goodnight class membership. Because any new evidence must relate to the time period that was at issue in the administrative determination(s) forming the basis for the claimant's class membership, ordering consultative examinations should be done only rarely.

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

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

  2. Disability Evaluation Standards

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

  3. Class Member Is Deceased

    If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.

C. Claim at OHA But No Current Action Pending

If a claim file (either a class member or another disability claim) is located in OHA Headquarters but there is no claim actively pending administrative review, e.g., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO branches will associate the alert with the file and screen for class membership. (The OAO Class Action Coordinator will coordinate the necessary actions, as explained in Part V.). (See Part V. B. 4., above, for non-class member processing instructions.)

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

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

  1. General

    If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Goodnight class member claims with the current claim at the level at which the current claim is pending.

  2. Current Claim Pending in the Hearing Office

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

    EXCEPTIONS:

    The ALJ will not consolidate the claims if

    • the current claim and the Goodnight claim do not have any issues in common, or

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

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

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

    1. Actions if Claims Consolidated

      When consolidating a Goodnight claim with any current claim, and when the two claims involve overlapping periods at issue, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present or to the date of the most recent allowance (or through the claimant's date last insured or the date the claimant last met prescribed period requirements, if applicable and earlier). Accordingly, consolidation will result in a reopening of the Goodnight claim through the time period at issue in the current claim. However, if the period to be adjudicated in the current claim does not overlap the period to be adjudicated in the Goodnight claim, the two claims should be considered separately.

      Nevertheless, if the claimant is found to be disabled within the timeframe of the Goodnight claim, the claim will be reopened through the date at issue in the current claim. If the current claim and the Goodnight claim are consolidated, the HO will:

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

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

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

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

    2. Action if Claims Not Consolidated

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

      • flag the Goodnight claim for DDS review using Attachment 10; immediately route it to the Utah DDS for readjudication (photocopies of any relevant material from either file should be made and placed in the other file before shipping) and retain a copy of Attachment 10 in the current claim file;

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

  3. Current Claim Pending at the Appeals Council

    The action the Appeals Council takes on the current claim determines the disposition of the Goodnight 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 Goodnight claim.

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

      In this instance, the Appeals Council will proceed with its intended action on the current claim. OAO staff will attach a Goodnight case flag (Attachment 10; appropriately modified) to the Goodnight claim, immediately forward the Goodnight claim to the Utah DDS for adjudication, and retain a copy of Attachment 10 in the current claim file. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.

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

      If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Goodnight class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Goodnight claim and issue a decision that adjudicates both applications. OAO staff will forward a copy of the decision, for coordination with DLAI, to the OAO Class Action Coordinator at the address in Part V. A. 3. above.

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

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

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

      If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action unless one of the exceptions below applies.

      In its remand order, the Appeals Council will direct the ALJ to consolidate the Goodnight claim with the action on the current claim pursuant to the instructions in Part VI. E. 2. above.

      EXCEPTIONS:

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

      • the current claim and the Goodnight claim do not have any issues in common, or

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

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

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

VII. Case Coding

HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI. D. above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening,” i.e., “20.” If the conditions described in Part VI. E. 2. b. above apply, the ALJ should dismiss the request for hearing on the current claim and HO personnel should enter “OTDI” in the “DSP” field.

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

VIII. Reconciliation of Implementation

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

IX. Inquiries

HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 605-8530. OHA headquarters personnel should contact the Division of Litigation Analysis and Implementation at 605-8278.

Attachment 1. Final Order Approving Settlement; Entered by the United States District Court for the District of Utah on July 30, 1998.

DAVID L. GOODNIGHT, et. al. v. KENNETH S. APFEL, Commissioner Of Social Security, et. al.

[DATE FILED: July 30, 1998]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

______________________________________________________________________

  )  
DAVID L. GOODNIGHT, et. al. )  
  ) JUDGMENT IN A CIVIL CASE
Plaintiffs,
)  
  )  
v. )  
  )  
KENNETH S. APFEL, Commissioner )  
Of Social Security, et. al. )  
  )  
Defendants.
)  
  )  

______________________________________________________________________

This action came for hearing before the Court. The issues have been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED

that there being no just reason for delay, that a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure be entered approving the Settlement Agreement as to all class members and dismissing the Complaint and all claims contained therein in accordance with the provisions of the Court approved Settlement Agreement.

Dated this 29 day of July, 1998. Clerk: Markus B. Zimmer

By: /s/
_________________________
U. S. District Judge
Richard G. Lepley, Esq.
US DEPARTMENT OF JUSTICE
CIVIL DIVISION
RM# 954
901 E Street, NW
WASHINGTON, DC 20044
Aaron K. Kann, Esq.
US DEPARTMENT OF JUSTICE
CIVIL DIVISION
901 E ST NW
WASHINGTON, DC 20044
Ms. Carlie Christensen, Esq.
US ATTORNEYS OFFICE - UTAH

PFAX 9,5245985
Ms. Maureen L. Cleary, Esq.
ST SCHOLASTICA PRIORY
PO BOX 606
PETERSHAM, MA 01366
Kay Kosow-Fox, Esq.
764 S 200 W
SALT LAKE CITY, UT 84101
Mr. Michael E. Bulson, Esq.
UTAH LEGAL SERVICES INC
550 24TH ST, SUITE 300
OGDEN, UT 84401
Brent V. Manning, Esq.
MANNING CURTIS BRADSHAW & BEDNAR LLC
370 E S TEMPLE STE 200
SALT LAKE CITY, UT 84111
FAX 9,3645678
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

_________________________________

  )  
DAVID L. GOODNIGHT, et. al. )  
  )  
Plaintiffs,
)  
  )  
v. ) Civil Action No. 92-C-279C
  )  
KENNETH S. APFEL, Commissioner )  
Of Social Security, et. al. )  
  )  
Defendants.
)  
  )  

_________________________________

SETTLEMENT AGREEMENT

WHEREAS, on October 27, 1993, the Court certified a class in this action defined as “[a]ll persons who applied for and were denied the receipt of Title II or Title XVI disability benefits by the [Utah Disability Determination Services (”Utah DDS“)] since October 9, 1984. The class excludes persons who appealed the [Utah DDS's] determinations beyond the [Utah DDS], persons who were denied benefits because they have returned to substantial gainful activity, and persons who are not eligible for disability benefits for reasons not related to disability[.]”

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

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

  1. ELIGIBILITY FOR RELIEF: The class members who shall be entitled to seek relief under this Agreement (“potentially eligible plaintiffs”) include, subject to the exclusions provided in paragraph 3, potentially eligible plaintiffs whose claims for disability benefits under titles II and/or XVI of the Social Security Act were finally1 denied at steps two, four or five of the sequential evaluation process by the Utah DDS between January 1, 1991, and February 20, 1994, inclusive (“class claims”) and (a) whose determinations for disability benefits were based in whole or in part on a mental impairment as indicated in primary or secondary diagnostic blocks 16A or 16B on SSA Form 831-U3/C3; or (b) whose SSA Form 831-U3/C3 was signed by Utah DDS employees Doctor Monya Atiya or Doctor Rebecca Dalisay.

  2. REDETERMINATIONS: Defendants will not review any class claims until final instructions are issued in the form of a Program Operations Manual System (“Instructional POMS”) update to Social Security Administration (“SSA”) offices in Utah and the Utah DDS. Such instructions shall be submitted to plaintiffs' representative designated in paragraph 14, 120 days after the Court approves of this Agreement and enters an order and final judgment to that effect as provided in paragraph 19. Plaintiffs' representative shall review the Instructional POMS for conformity with this Agreement within twenty days of receipt. If plaintiffs' representative objects to the Instructional POMS he shall provide comments to defendants within thirty days of receipt. Plaintiffs and defendants shall attempt to resolve any objection plaintiffs' representative may have. Those potentially eligible plaintiffs who are found to be entitled to relief under this Agreement shall receive from defendants a redetermination conducted at the reconsideration level of administrative review which consists of a review of the evidence of record to determine if they were disabled during the period covered by the class claim. 20 C.F.R. §§ 404.907 and 416.1407. Defendants shall conduct such redeterminations in accordance with the statutes, regulations and instructions in effect at the time of the redetermination. If the claim file evidence is inadequate to assess the potentially eligible plaintiff's impairments during the time period covered by the class claim, defendants shall attempt to secure and/or develop any further evidence that may be necessary, in accordance with normal claims development procedures. In addition, a potentially eligible plaintiff will be permitted to submit any additional evidence relevant to the time period being redetermined in the class claim, and such evidence will be considered by defendants in making the redetermination. If the redetermination results in a finding that the potentially eligible plaintiff was disabled, the claim of such potentially eligible plaintiff will be reopened and the potentially eligible plaintiff's continuing disability will be determined through the date of the new determination rendered or the onset date of a more recent allowance. Upon such reopening, defendants shall attempt to obtain updated medical records and the potentially eligible plaintiff shall cooperate in this regard in accordance with the requirements of 20 C.F.R. §§ 404.1512-1519p and 416.912-919p. At the option of defendants, potentially eligible plaintiffs with subsequent disability claims active and simultaneously pending at any administrative level of review at the time their class claim is being evaluated may have all their claims consolidated and reviewed simultaneously. Defendants will use their best efforts to ensure that adjudication of the current claim is not delayed by such consolidation. Potentially eligible plaintiffs shall retain all rights to seek further administrative and judicial review of redeterminations conducted under this Agreement in accordance with 42 U.S.C. § 405(g) and 20 C.F.R. Parts 404 and 416.

  3. EXCLUSIONS: No potentially eligible plaintiff shall be entitled to relief under this Agreement if that potentially eligible plaintiff (a) has already received a subsequent award of benefits with respect to the same period of time at issue in the class claim; or (b) appealed the denial of his or her class claim to an administrative law judge or higher levels of administrative or judicial review; or (c) received a subsequent disability determination after February 20, 1994, that adjudicated the same time period covered by the class claim; or (d) the potentially eligible plaintiff's disability claim file contains a Psychiatric Review Technique Form (“PRTF”) and Mental Residual Functional Capacity (“MRFC”) form each completed in its entirety by a Utah DDS psychiatrist or psychologist as determined by the procedures set forth at paragraph 6; or (e) the potentially eligible plaintiff fails, without good cause, to timely request redetermination by responding to the notice requirements set forth in paragraphs 4 and 5.

  4. IDENTIFICATION AND NOTIFICATION BY MAIL OF POTENTIALLY ELIGIBLE PLAINTIFFS: For the purpose of this Agreement, defendants shall identify and provide notice to the potentially eligible plaintiffs as follows:

    1. Within forty-five days after the Instructional POMS have been issued, federal defendant will make a good faith effort, by means of its data processing systems, to identify the names, Social Security numbers, and last known addresses of potentially eligible plaintiffs. Federal defendant shall send potentially eligible plaintiffs notice by first-class mail to the last known address of such identified potentially eligible plaintiffs informing them of their possible entitlement to a redetermination of their claim. The form and content of such notice shall be submitted to and approved by plaintiffs' representative before it is sent.

    2. Potentially eligible plaintiffs who receive the subparagraph (a) notice must, in order to obtain a redetermination of their claim, return the reply form in the pre-addressed postage prepaid envelope enclosed with the notice or otherwise request redetermination through any Social Security field office within ninety days after presumptive receipt of the notice pursuant to 20 C.F.R. §§ 404.901 and 416.1401. If they do not respond within ninety days of receipt, their disability claim will not be reviewed under this Agreement unless the potentially eligible plaintiff provides federal defendant with evidence of “good cause” for untimely response as defined in 20 C.F.R. §§ 404.911 and 416.1411.

    3. Should any mailed notice be returned as undeliverable, federal defendant will attempt to obtain updated addresses by providing state defendants with a computer tape of those potentially eligible plaintiffs whose notice was returned as undeliverable for the sole purpose of obtaining updated addresses. State defendant shall use its good faith efforts and available resources to provide federal defendant with a computer tape of updated addresses. Within sixty days of receipt of an updated address tape from state defendants, federal defendant shall make a good faith effort to resend the notice by first-class mail (the “second mailed notice”). Following the second mailed notice, federal defendant shall provide state defendants and plaintiffs with a computer tape of those potentially eligible plaintiffs whose second mailed notice was returned as undeliverable.

    4. Within 120 days following receipt of the computer tape of those potentially eligible plaintiffs whose second mailed notice was returned as undeliverable, plaintiffs' representative may attempt to give notice to those potentially eligible plaintiffs whose second mailed notice was returned as undeliverable as set forth in a separate letter agreement between state defendants and plaintiffs, attached as Exhibit 1.

    5. The ninety day response requirement following the receipt, actual or presumptive, set forth in paragraph 4(b) also applies to second mailed notices and any notice made pursuant to paragraph 4(d). In no event, absent a finding of good cause, shall the response period applicable to any notice extend beyond ninety days following the actual or presumptive receipt of any notice described in this Agreement. Federal defendant's attempts to obtain updated addresses are subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a. Federal defendant shall not be required to institute legal proceedings to gain access to any potentially updated address of any potentially eligible plaintiffs, nor shall federal defendant compensate state defendants for providing any updated address of any potentially eligible plaintiffs.

    6. If federal defendant determines that a potentially eligible plaintiff who responded to the notice or otherwise requested review is not in fact a class member entitled to relief under this Agreement, federal defendant shall notify the potentially eligible plaintiff and class counsel in writing of the reason for that determination.

  5. NOTICE BY POSTER: Upon issuance of the Instructional POMS, federal defendant shall prepare a poster notice. The posters shall inform potentially eligible plaintiffs of their potential right to redetermination of their claims under the terms of this Agreement. The form and content of such poster notice shall be submitted to and approved by plaintiffs' representative before it is sent. Federal defendant shall distribute posters to all SSA field offices in Utah for posting in such offices. Posters shall remain in SSA field offices for a period of 180 days from posting. Potentially eligible plaintiffs shall be required to advise federal defendant in writing of their desire to have a claim redetermined. Absent a finding of good cause, potentially eligible plaintiffs shall so notify federal defendant not later than ninety days after the poster period display period has ended. Potentially eligible plaintiffs who received mailed notice shall not be eligible to have the time period extended within which they must respond to mailed notice by responding to the poster notice. Federal defendant shall provide to class counsel a reasonable supply of posters that class counsel may post in locations that class counsel determines would best reach potential class members during the same poster display period as in SSA field offices.

  6. SCREENING PROCESS: The claim files of all potentially eligible plaintiffs who timely respond to notice as set forth in paragraphs 4 and/or 5 shall be screened to determine if they meet the criteria for redetermination as described in the Agreement. Screening for exclusion under paragraph 3(d) of this Agreement shall be done by Utah DDS employees familiar with the handwriting of Utah DDS psychiatrists and psychologists. Screeners from the Utah DDS shall set aside those claim files (“set asides”) in which they believe, based on their familiarity with Utah DDS psychiatrists' or psychologists' handwriting, that the PRTF and MRFC forms were completed in their entireties by a Utah DDS psychiatrist or psychologist employed by Utah DDS between January 1, 1991 and February 20, 1994, inclusive. The PRTF and MRFC in each “set aside” case shall then be reviewed by the Utah DDS psychologists or psychiatrists employed by Utah DDS between January 1, 1991 and February 20, 1994, inclusive, to confirm that they completed the forms in their entirety. The results of this “double screening” shall then be presented to an individual designated by class counsel (“plaintiffs' representative”). Plaintiffs' representative's participation in the screening process shall be limited to spending a reasonable amount of time reviewing the results of the Utah DDS's exclusion 3(d) screen process. Plaintiffs' representative shall not challenge the disability determination itself. If the Utah DDS psychiatrist or psychologist is unsure about his or her personal completion of the PRTF or MRFC forms, or if the Utah DDS psychiatrist or psychologist is no longer available to confirm his or her personal completion of the PRTF or MRFC forms, or if plaintiffs' representative has a good faith belief that the forms were not personally completed by Utah psychiatrists or psychologists, then the case shall be redetermined as set forth in paragraph 2 of this Agreement. Further details of the screening process are set forth in Exhibit 2 of this Agreement.

  7. PROSPECTIVE RELIEF: Defendants agree to the following prospective relief:

    1. Defendants shall issue a directive, to be posted in the medical consultants' offices at Utah DDS, stating that “The medical consultant or psychological consultant, by signing the SSA 2506-BK, SSA 4734-U8, SSA-4734-F4 Supp., attests that he/she is responsible for its content, including the findings of fact and discussion of supporting evidence.” POMS DI 24510.005B.2. In addition, each medical consultant employed by Utah DDS shall be required to acknowledge, in writing, on an annual basis, compliance with the policy as set forth in POMS DI 24510.005B.2, a copy of the current version of which is attached as Exhibit 3. This provision shall remain in effect for such time as the current language in POMS DI 24510.005B.2 and 20 C.F.R. §§ 404.1546 and 416.946, or their substantial equivalent, remain in effect.

    2. Defendants shall issue a directive, to be posted in disability examiners' offices at Utah DDS, prohibiting all disability examiners currently employed by Utah DDS or to be employed by Utah DDS in the future from making entries on the PRTF that is in the final version completed and signed by the medical consultant. In addition, each medical consultant employed by Utah DDS shall be required to acknowledge, in writing, on an annual basis, compliance with the policy prohibiting examiners from making any entries on the final version of the PRTF as set forth in POMS DI 24505.030. This provisions shall remain in effect for such time as the current language in POMS DI 24505.030 and 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1), or their substantial equivalent, remain in effect. A copy of the current version of POMS DI 24505.030 is attached as Exhibit 4.

    3. Defendants shall issue a directive to be posted in the disability examiners' offices at Utah DDS providing that when a disability examiner is seeking a second opinion from a medical consultant concerning an examiner-drafted physical or mental residual functional capacity form that was previously reviewed by a medical consultant, the disability examiner must so notify the second medical consultant.

    4. Defendants shall issue a directive prohibiting any disability examiner employed by Utah DDS from drafting an MRFC form for medical consultant review and signature unless and until that disability examiner has undergone sufficient training specific to the drafting of the MRFC form as determined by defendants, and reaffirming that although a disability examiner may assist in drafting an MRFC form, the determination must be made by a psychiatrist or psychologist consultant. This provision shall remain in effect for such time as the requirements substantially the same as those presented contained in POMS DI 24510.005B.2 and 20 C.F.R. §§ 404.1546 and 416.946 remain in effect.

    5. Defendants shall notify plaintiffs' representative of any change to the language of 20 C.F.R. §§ 404.1546 and 416.946 and POMS DI 24510.005B2 and/or 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1), and POMS DI 24505.030 as of the effective date of any such change and before Utah DDS implements any such policy change. Nothing in this Agreement shall constitute an admission by defendants that any such change must be made in compliance with the requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., nor shall anything in this Agreement preclude any plaintiff from bringing any action (1) to enjoin any such change, (2) to require that any such change comply with the APA, (3) or to claim that such change is otherwise unlawful.

  8. ATTORNEYS' FEES AND COSTS: Federal defendant shall pay plaintiffs' reasonable attorneys' fees and costs in connection with the pursuit and settlement of this action. Federal defendant and plaintiffs shall negotiate in good faith in an effort to agree upon reasonable attorneys' fees and costs, which in any event shall not be an amount less than $100,000. In the event no negotiated settlement concerning attorneys' fees and costs is reached, plaintiffs may move the Court at any time after the Effective Date of this Agreement to enter an award of attorneys' fees and costs in excess of $100,000. If plaintiffs move the Court to enter an aware of attorneys' fees and costs in excess of $100,000, federal defendant has the right to oppose plaintiffs' motion for an award of attorneys' fees and costs in excess of $100,000. Except as set forth in Exhibit 2, class counsel agrees to accept the payment made by federal defendant under this paragraph, either as the parties agree or as ordered by the Court as full and final settlement of all attorneys' fees and costs from all defendants in this case for all time incurred in the past and to be incurred in the future. Class counsel shall require no further compensation for any additional work after the Effective Date of this Agreement regardless of the circumstances, except (1) in the event the parties are unable to reach a negotiated settlement concerning attorneys' fees and costs and plaintiffs move the Court for an award of attorneys' fees and costs in excess of $100,000 as provided in this paragraph, plaintiffs shall be entitled to move the Court to include an award of attorneys' fees and costs in connection with their motion for attorneys' fees and costs in excess of $100,000; and (2) if class counsel or other representative of plaintiffs successfully brings any action to enforce the provisions of this Agreement or otherwise successfully asserts before any appropriate administrative or judicial agency that federal or state defendants have violated the terms of this Agreement, class counsel or other representative of plaintiffs may move the Court for an award of attorneys' fees and costs in connection with their successful motion to enforce this Agreement. Class counsel represents and warrants that he shall distribute the fees received among respective counsel involved in this case now and in the past and shall hold the federal defendant, his administrators, and any department, agency, or establishment of the United States harmless from any dispute over the proper allocation of attorneys' fees.

  9. RESOURCES FOR REDETERMINATIONS: Defendants shall make a good faith effort to provide sufficient resources to meet their commitments as set forth in this Agreement without a substantial adverse impact on the ability of state defendants to timely process the applications for disability submitted by applicants who are not class members.

  10. REPORTS: Beginning six months after the Effective Date, federal defendant shall provide plaintiffs with semi-annual status reports based on data maintained by federal defendant's Class Action Tracking System. Such reports shall include (1) the number of notices mailed to the potentially eligible plaintiffs; (2) the number of all potentially eligible plaintiffs who have requested redetermination pursuant to paragraph 2; (3) the number of potentially eligible plaintiffs determined not to be eligible for redetermination because of the screening process set forth in paragraph 2; (4) the number of redeterminations made by defendants and the number of allowances and denials among those redeterminations; and (5) the average time the Utah DDS takes to process initial applications for disability benefits on the Effective Date of this Agreement and at each semi-annual reporting period. The reporting provisions of this paragraph shall terminate upon the substantial completion of all redeterminations except for those of potentially eligible plaintiffs whose request for redetermination is allowed under the “good cause” exception set forth in paragraph 4 (e).

  11. FULL SETTLEMENT AND SATISFACTION OF CLAIMS: The defendants, their administrators or successors, and any department, agency, or establishment of the United States and/or the State of Utah and any officers, employees, agents, or successors of any such department, agency, establishment, are discharged and released from any claims and causes of action that have been or may have been asserted in this action, or administratively, by reason of, or with respect to, or in connection with, or that arise out of, any matters alleged in this action. Individuals in the class shall be barred and enjoined forever from (a) prosecuting any claims or causes of action that have been or could be asserted by reason of, or with respect to, or in connection with, or that arise out of any of the matters alleged in this action; and (b) seeking judicial relief that would have the effect, directly or indirectly, of requiring that the redeterminations specified in paragraph 2 be reopened, redetermined, readjudicated, or otherwise reviewed in any manner by defendants. Nothing in this paragraph shall relieve the defendants of the duty to comply with this Agreement nor shall potentially eligible plaintiffs be prevented from seeking further administrative and judicial review of redeterminations as provided in paragraph 2.

  12. ENFORCEMENT: Upon the Effective Date and subject to the Court's approval of this Agreement, the Complaint and any amendments and claims included shall be dismissed with prejudice, and the Court shall retain continuing jurisdiction in this action only over material breaches of the terms of this Agreement and if the parties cannot reach a negotiated settlement concerning the payment of attorneys' fees and costs, to award attorneys' fees and costs as provided in paragraph 8. In the event plaintiffs allege a material breach of this Agreement, plaintiffs shall provide defendants with notice of the alleged material breach. The parties shall first attempt to resolve any disputes arising under this Agreement by negotiation between counsel or their designees, and defendants shall have sixty days to cure any alleged material breach before the plaintiffs may invoke the Court's continuing jurisdiction to enforce this Agreement. The parties reserve the right to seek a modification of the Agreement from the Court in the event of a change in the law.

  13. TERMINATION: The provisions for prospective relief and notice shall separately terminate upon the sooner of (a) a valid policy change to 20 C.F.R. §§ 404.1546 and 416.946 and POMS DI 24510.005B.2 and/or 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1) and POMS DI 24505.030; or (b) seven years after the date of this Agreement.

  14. NOTICES TO CLASS COUNSEL OR PLAINTIFFS' REPRESENTATIVES: Any notices to class counsel or plaintiffs' representative as specified in this Agreement may be given by mailing a copy of such notice, postage prepaid, to

      Brent Manning, Esq.
      Manning Curtis Bradshaw & Bednar, LLC
      370 East South Temple, Suite 200
      Salt Lake City, Utah 84111
       
      and
       
      Michael E. Bulson, Esq.
      Utah Legal Services
      550 24th Street, Suite 300
      Ogden, Utah 84401

    Upon reasonable notice to defendants, plaintiffs shall be permitted to designate substitute class counsel or plaintiffs' representatives to receive notice under this paragraph, so long as the number of substitute class counsel and plaintiffs' representatives receiving notice does not exceed two.

  15. COLLATERAL USE OF THE AGREEMENT PROHIBITED: Because this Agreement is entered by agreement of the parties, as a means of avoiding further litigation and to terminate and resolve all issues in the class complaint filed in this action, the terms of this Agreement, the negotiations leading up to this Agreement, or the data, documents or information exchanged between the parties in the course of those negotiations, shall not be offered, taken, construed, or introduced as evidence of liability or as an admission or statement of wrongdoing by defendants, or cited as precedent in this or any subsequent proceeding of any nature. This Agreement is not and shall not be construed as an admission by defendants of the truth of any allegation or the validity of any claim asserted in this action or of the defendants' liability, nor is it a concession or an admission of any fault or omission in any act or failure to act, or in any statement, communication, report, instruction, rule, regulation, or other document made or maintained by defendants, nor shall it be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of defendants. This Agreement may not be used as an admission or finding that the position of defendants was not substantially justified or that defendants are liable as a matter of law for the payment of any attorneys' fees, expenses, or costs, or that they agree to pay reasonable attorneys' fees and costs in this proceeding except as provided in paragraph 8.

  16. REPRESENTATIONS OF COUNSEL BY SIGNATURES: Class counsel, by signing below, warrants and guarantees that he is sole counsel to the plaintiff class. Based on the approvals and consents set forth in the attached Exhibit 5, counsel for plaintiffs represent that they are authorized to stipulate to the settlement of the issues in this action. Counsel for defendants represent that they are authorized to stipulate to the settlement of the issues in this action.

  17. COUNTERPARTS: This Agreement may be executed in one or more counterparts and each executed copy shall be deemed an original which shall be binding on all parties.

  18. SCHEDULE AND PROCEDURE FOR APPROVAL: Federal defendant shall provide poster and publication notice, attached as Exhibit 6, of the time, date and location of the fairness hearing required under Rule 23(e) of the Federal Rules of Civil Procedure. The parties agree to recommend to the Court that this Agreement is fair, reasonable, and adequate under Rules 23(e). Counsel for the parties shall request prompt judicial approval of this Agreement after formal notice to class members and fairness hearing.

  19. EFFECTIVE DATE: The entry of this Agreement and accompanying Order, and the Clerk's entry of final judgment in accordance with Rules 54, 58, and 79(a) of the Federal Rules of Civil Procedure, shall be a condition precedent to any obligation of any party pursuant to this Agreement. This Agreement shall become effective on the sixty-first day after such entry of final judgment; provided, however, that this Agreement shall not be effective if an appeal of the Court's entry of the Order or final judgment is filed, in which event the Agreement shall be effective only upon the expiration of all the applicable appeal periods.

  20. ENTIRE AGREEMENT: This Agreement, including all exhibits attached to it, constitutes the entire agreement between and among the parties with respect to the subject matter of this suit.

  21. HEADINGS: The headings of this Agreement are for the convenience of the parties only and shall not limit, expand, modify, amplify or aid in the interpretation or construction of this Agreement.

  22. OBLIGATIONS OF THE DEFENDANTS: All obligations of the “defendants” under this Agreement are joint and several obligations unless specifically designated as “federal defendant” obligations or as “state defendant” obligations.

  23. PRIVACY ACT: The parties jointly agree to move the Court to amend the protective order entered on November 8, 1994 as needed to carry out the obligations of the parties under this Agreement.

Respectfully submitted,

/s/
/s/
_________________________ _________________________
BRENT V. MANNING JOHN S. McALLISTER
Manning Curtis Bradshaw & Bednar, LLC Assistant Attorney General
370 East South Temple, Suite 200 Education Division, Fifth Floor
Salt Lake City, Utah 84111 Heber Wells Building
  160 East, 300 South
Attorney for plaintiffs Salt Lake City, Utah 84114
   
  Attorney for Defendants
  Bean, Peterson and Nakao
 
/s/
  _________________________
  RICHARD G. LEPLEY
  AARON K. KANN
  JOHN R. NIEMEYER
   
  Attorneys
  U. S. Department of Justice
  Civil Division
  Federal Programs Branch
  901 E Street, N. W.
  Washington, D. C. 20530
   
  Attorneys for Defendant
  Kenneth S. Apfel

______________________________

1 The terms “finally” and “final,” as used herein, refer to the date of the administrative decision that became the binding decision of the Commissioner pursuant to 20 C.F.R.§§ 404.905, 404.921, 404.955, 404.972, 404.981, 416.1405, 416.1421, 416.1455, 416.1472 and 416.1481, and do not mean that a class member must have exhausted administrative remedies under sections 205(g) and (h) of the Social Security Act, 42 U.S.C. § 405(g) and (h).

Attachment 2. - Sample Goodnight COURT CASE FLAG/ALERT

CTWALTO1 999785 00000




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



SSN (BOAN OR PAN) NAME BIRTH DATE REFERENCE #



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



*NOTE: A SEPARATE SCREENING SHEET MUST BE PREPARED FOR EACH CLAIM NUMBER NOTED ABOVE



PAYEE ADDRESS






SHIP TO ADDRESS:


Utah Disability Determination Services
Attn: Goodnight Coordinator
P.O. Box 144032
Salt Lake City, UT 84114-4032

SPECIAL INSTRUCTIONS:

IF A CLAIM IS PENDING OR STORED IN OHA HEADQUARTERS OR FEDERAL DISTRICT COURT, THEN SHIP THE ALERT PACKAGE (AND ANY ASSOCIATED CLAIMS FILE(S)) TO:

 

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

Attn: OAO Class Action Coordinator

(Case locator code 5007)

IF A CLAIM IS PENDING IN AN OHA HEARING OFFICE, SHIP THE ALERT PACKAGE (AND ANY ASSOCIATED CLAIM FILE(S)) DIRECTLY TO THAT OFFICE

Attachment 3. - Reconstruction Flag

Goodnight Class Action Case
   
   
RECONSTRUCTION  NECESSARY
   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
  This claimant is a potential Goodnight class member. However, a definitive class membership determination can not be made without locating or reconstructing the potential Goodnight claim file. An alert on the potential Goodnight claim was originally sent to OHA because the SSA Case Control System indicated that a current claim was pending or stored at OHA or because the claimant had a pending civil action. On ____________, we sent your office a memorandum requesting reconstruction (a copy of the memorandum is attached).
   
  OHA has now completed its action on the pending or stored claim and we are forwarding the attached class action material to your office for association with the pending reconstruction request. Upon completion of your reconstruction actions, you will need to forward the class action material, along with the reconstructed file, to the Utah DDS for screening and possible readjudication.

Attachment 4. - Screening Flag -- Inside OHA

Goodnight Class Action Case
   
   
SCREENING   NECESSARY
   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant may be a Goodnight class member. The attached folder location information indicates that a current claim file is located in your office. Accordingly, we are forwarding the attached alert [and prior claim file(s)] for association, screening for class membership, consolidation consideration and possible readjudication.
   
Please refer to HALLEX Temporary Instruction 5-4-61 for additional information and instructions.
   
TO: ______________________________
__________________________________
__________________________________
__________________________________
   

Attachment 5. - GOODNIGHT SCREENING SHEET

 
 
      CLASS ACTION CODE: G  N
 
1. CLAIMANT'S SSN:   ___ ___ ___ - ___ ___ - ___ ___ ___ ___
 
2. CLAIMANT'S NAME:     _ _ _ _ _ _ _ _ _ _ _ _     _ _ _ _ _ _ _ _ _ _
                                               (Please Print) (Last)          (First)
 
3. DATE OF BIRTH:   ___ ___ / ___ ___ / ___ ___ ___ ___
                                     (MM/DD/YYYY)
 
4. CLAIM  #:   ___ ___ ___ - ___ ___ - ___ ___ ___ ___ - ___ ___
                                                                                                  (BIC/ID)
 
5. DATE OF SCREENING:    ___ ___ / ___ ___ / ___ ___ ___ ___
                                                (MM/DD/YYYY)
 

6. A.   SCREENING RESULT:

Member Entitled Nonmember/Member Not
___ to Relief (J) ___ Entitled to Relief (F)



B.   SCREENOUT CODE: __ __ (See Item 15.)
______________________________________________________________
7.  Did the Utah Disability Determination Services (DDS) deny the claim during the period January 1, 1991 through February 20, 1994?

___  Yes

(if Yes, go to 8)

 ___ No

(if No, go to 15)

___________________________________________________________________________
8.  Was the claimant denied disability benefits for a non-medical reason?

___  Yes

(if Yes, go to 15)

 ___ No

(if No, go to 9)

____________________________________________________________________________
9.  Did the claimant appeal his or her class claim to an Administrative Law Judge (ALJ), the Appeals Council or to Federal court?

___  Yes

(if Yes, go to 15)

 ___ No

(if No, go to 10)

____________________________________________________________________________
10.  Did the claimant receive a disability determination after February 20, 1994 that adjudicated the same time period covered by the class claim?

___  Yes

(if Yes, go to 15)

 ___ No

(if No, go to 11)

____________________________________________________________________________
11.  Did the claimant receive an award of benefits with respect to the same period of time at issue in the class?

___  Yes

(if Yes, go to 15)

 ___ No

(if No, go to 12)

____________________________________________________________________________
12.  Was a mental impairment listed as a primary or secondary diagnosis in Blocks 16A or 16B on SSA Form 831-U3/C3?

___  Yes

(if Yes, go to 13)

 ___ No

(if No, go to 14)

____________________________________________________________________________
13.  Does the file contain a Mental Residual Capacity Form (SSA-4734-F4-SUP) or a Psychiatric Review Technique Form (SSA-2506-BK) each completed in its entirety by a Utah DDS psychiatrist or psychologist?

___  Yes

(if Yes, set the case aside and send to the Utah DDS for review)

 ___ No

(if No, the person is entitled to relief, go to 6.a. and check entitled to relief)

____________________________________________________________________________
14.  Was the Form SSA 831-U3/C3 signed by either by Manya Atiya, M.D. or Rebecca Dalisay, M.D.?

___  Yes

(if Yes, the person is entitled to relief, go to 6.a. and check entitled to relief)

 ___ No

(if No, go to 15)

____________________________________________________________________________

15.SCREENING INFORMATION

If you checked questions “NO” in blocks 7, or 14 or “YES” in blocks 8, 9, 10 or 11, the individual is not a Goodnight class member entitled to relief. Check the “Nonmember/Member Not Entitled to Relief” block (F) in Item 6.a. Enter the screenout code in item 6.b. as follows:

   Enter 07 if question O7 was answered “NO.”

   Enter 08 if question 08 was answered “YES.”

   Enter 09 if question 09 was answered “YES.”

   Enter 10 if question 10 was answered “YES.”

   Enter 11 if question 11 was answered “YES.”

   Leave item 6 blank if question 13 was answered “YES.”

   Enter 14 if question 14 was answered “NO.”

   Reason to use in the Notice of Non-Class Membership:

 

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

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

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

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

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

  If screenout code is 14, check reason No. 6.

____________________________________________________________________________

16.If you checked “YES” in blocks [ ], the claimant is entitled to relief as a class member. Check the “Member Entitled to Relief” block (J) in Item 6.a.

____________________________________________________________________________

17.Enter the dates of all applications screened and the date of the final administrative decision for each application.

 

 ___________________                 ___________________                     ________________

 ___________________                 ___________________                  ______________

SIGNATURE OF REVIEWER/DATE

 

 

OFFICE

 

 



INSTRUCTIONS FOR COMPLETING GOODNIGHT SCREENING SHEET
 

General Instructions: A separate screening sheet must be prepared for each claim number. Make sure the claim number, BIC/ID and SSN, are the same as on the Goodnight Case Flag Alert to ensure proper case clearance.

Question 1:

Please fill in the claimant's SSN from BOAN/PAN field on alert.

Question 2:

Print the claimant's name (last name, and first name).

Question 3:

Fill in the claimant's date of birth (month, day, 4-digit year).

Question 4:

Fill in the claim number (social security number) under which this claim is being processed. Include the BIC (Title II)/ID (Title XVI).

Question 5:

Complete the screening date using 2-digit month, 2-digit day, and 4-digit year.

Question 6:

Complete this information last. Do not fill in until the screening process has been completed.

Questions 7-12 and 14:

Answer each question in the order in which it appears on the screening sheet. You may leave a question blank only when it has been determined that the claimant is not eligible for review. For example, if question 7 is checked “NO,” go to number 15 and screen out as directed. Once the claimant is screened out, it is not necessary to continue to answer the remaining questions through number 14.

Question 7:

Review the SSA-831-U5 to determine if the individual's claim was denied by the Utah Disability Determination Services (DDS).

Question 8:

Check the SSA-831 (item 22) to determine if the individual received a non-medical denial.

Question 9:

Review the file to determine if the individual appealed his/her Goodnight decision to an ALJ, the AC or to Federal court.

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

Question 10:

Review the claim file to determine if the individual received a subsequent decision that covered the same time period covered by the class claim. If in the subsequent claim, the alleged onset date is the same or earlier than the alleged onset date in the class claim and the entire period from the alleged onset was adjudicated in the subsequent claim, the answer to this question is “YES.” If the entire period from the alleged onset was not adjudicated in the subsequent claim or if the claimant alleged a later onset in a subsequent claim than was alleged in the class claim, the answer to this question is “NO.”

Question 11:

Review the claim file to determine if the individual received a subsequent award of benefits that covered the same time period at issue as in the Goodnight class claim.

Question 12:

Review the SSA-831 (Item 16) to determine if the individual's primary or secondary diagnosis (if there is a secondary diagnosis) is a mental impairment(s).

Question 13:

If the claim file contains a MRFC (SSA-4734-F4-SUP) or a PRTF (SSA-4734-F4-SUP) which appears to be completed in its entirety by a Utah DDS psychiatrist or psychologist, do not proceed with screening the case any further. Send the case to the DDS using Attachment 6. Do not send the claimant a notice of denial of class membership. Any notice to be sent to the claimant concerning class membership status will be taken by the DDS following its review of the case.

Question 14:

Review the file to determine if the SSA-831 was signed by Manya Atiya, M.D. or Rebecca Dalisay, M.D.

Questions 15 and 16:

Screening instructions. Self-explanatory.

Question 17:

Enter the dates of ALL the applications that were screened under Goodnight. Also indicate whether these applications were screened in or screened out.

Instructions if the Claimant is Determined to be a Class Member Entitled to Relief:

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

  2. Sign and date the screening sheet. Enter the name of the screening component, e.g., OHA, OAO, Branch XX.

  3. Retain the original screening sheet in the claim file. OHA Headquarters components and hearing offices (HOs) will send a copy of the screening sheet to:

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

    Attn: OAO Class Action Coordinator

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

  4. Follow HALLEX I-5-4-61, V. B. 4. b.

Instructions if Claimant is Determined to be a Non-Class Member

  1. Check the “Non-Class Member (F)” block in Item 6.a. of the screening sheet and enter the appropriate screenout code in Item 6.b.

  2. Follow items b. and c. above.

  3. Prepare and send the class membership denial letter (Attachment 8) to the claimant with a copy to his/her representative, if any and to class counsel. Retain a copy of the denial letter in the claim file.

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

Attachment 6. - Screening Flag -- to DDS

Goodnight Class Action Case
   
SCREENING   NECESSARY
   
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
   
This claimant may be a Goodnight class member. This case contains a PRTF and MRFC form which appears to be completed in its entirety by a Utah DDS psychiatrist or psychologist employed by the Utah DDS between January 1, 1991 and February 20, 1994, inclusive. Please review the file to confirm and verify whether a Utah DDS psychiatrist or psychologist actually completed the forms in their entirety. Follow the instructions in the Program Operation Manual System instructions at DI 52510.001 for screening this case.
   

Attachment 7. - Screening Flag -- Outside OHA

ROUTING AND TRANSMITTAL SLIP DATE:

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

XX ACTION   FILE   NOTE AND RETURN
  APPROVAL   FOR CLEARANCE   PER CONVERSATION
  AS REQUESTED   FOR CORRECTION   PREPARE REPLY
  CIRCULATE   FOR YOUR
INFORMATION
  SEE ME
  COMMENT   INVESTIGATE   SIGNATURE
  COORDINATION   JUSTIFY    
           
REMARKS  
Goodnight CASE
   
Claimant: ___________________________  
   
SSN: ________________________________  
   
OHA received the attached alert [and prior claim file(s)] for screening and no longer has the current claim file. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the current claim. After associating the alert with the current claim, please forward to the Utah Disability Determination Services for screening and possible readjudication. SEE POMS DI 52510.001.
   
   
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
FROM: Office of Hearings and Appeals __________________________________________ SUITE/BUILDING
PHONE NUMBER
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
FPMR (41 CFR) 101-11.206

Attachment 8. - Notice of Non-Class Membership

SOCIAL SECURITY ADMINISTRATION
Important Information


Non-Class Membership Notice

Date:



Name BT Date:
Address Claim Number:
City, State, Zip DOC:

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

You are not entitled to review under Goodnight because:

   
____   1.  The Utah Disability Determination Services did not deny your claim during the period January 1, 1991 through February 20, 1994.
   
____   2.  Your claim was denied for a non-medical reason.
   
____   3.  You appealed your potential Goodnight claim to an Administrative Law Judge or to the Appeals Council or filed a civil action in Federal court.
   
____   4.  You received a disability determination after February 20, 1994 that covered the same time period as your Goodnight claim.
   
____   5.  You received a subsequent award of benefits with respect to the same period of time at issue in your Goodnight claim.
   
____   6.  The Form SSA-831-U3/C3 was not signed by either Manya Atiya, M.D. or Rebecca Dalisay, M.D.
   
____   7.  Other (Explain)
  ________________________________________________________.
  ________________________________________________________.
   

We Are Not Deciding If You Are Disabled

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

If You Do Not Agree With This Determination

If you do not agree with this decision, you have 60 days after receiving this notice to notify class counsel, at the address listed below, that you think that our decision is wrong. He will answer without charge your questions about eligibility for having your claim reviewed. The attorney's name, address and telephone number are as follows:

     Brent V. Manning
     Manning Curtis Bradshaw & Bednar, LLC
     370 E. South Temple, Suite 200
     Salt Lake City, UT 84111
     Telephone: (801) 363-5678

If You Think You Are Disabled Now

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

If You Have Any Questions

If you have any questions, you may contact the class attorney listed above or your local Social Security office at: _____________________ [insert address and phone number of district office]. You may also call us toll free at 1-800-772-1213 if you have any questions. If you call or visit a Social Security office, please have this letter with you. It will help us to answer your questions.

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

CC:
Brent Manning
Manning Curtis Bradshaw & Bednar, LLC

Attachment 9. - Readjudication Flag for OHA Retention Cases

Goodnight Class Action Case
   
READJUDICATION  NECESSARY
   
Claimant's Name: __________________________________
   
   
SSN : __________________________________
   
This claimant is a Goodnight class member. We are forwarding the attached claim file(s) to the Utah DDS for readjudication at the following address:
   

    Utah Disability Determination Services
    P.O. Box 144032
    Salt Lake City, UT 84114-4032

Attachment 10. - Readjudication Flag for Non-Consolidation Cases

Goodnight Class Action Case
 
READJUDICATION  NECESSARY
 
 
Claimant's Name:   __________________________________
     
:   __________________________________
     
This claimant is a Goodnight class member. The attached Goodnight claim file was forwarded to this hearing office for possible consolidation with a current claim.
     
_______   The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.
     
OR
     
_______   The claims have not been consolidated because
     
    [state reason(s)]__________________________________
    ______________________________________________
     
Accordingly, we are forwarding the attached alert and prior claim file(s) to your location for any necessary Goodnight readjudication action.
 
We are sending the alert and prior file(s) to:
 

    Utah Disability Determination Services
    P.O. Box 144032
    Salt Lake City, UT 84114-4032