I-5-4-70.Clark v. Astrue
Purpose | |
Background | |
Definition of the Class | |
The Court Order and Implementation | |
Processing of Cases | |
Inquiries | |
Attachment 1. Order Approved by the U.S. District Court for the Southern District of New York on April 13, 2012 | |
Attachment 2. Form HA-505 “Transmittal by Office of Disability Adjudication and Review” |
Issued: March 27, 2013
I. Purpose
This Temporary Instruction advises Office of Disability Adjudication and Review (ODAR) employees of the final Order entered by the United States District Court for the Southern District of New York on April 13, 2012 in the Clark v. Astrue class action (Clark). The Clark class action concerned the Social Security Administration's (SSA) practice of treating probation or parole violation (PPV) warrants as sufficient evidence of PPVs to suspend or deny claimants' benefits or issue overpayment determinations based solely on the existence of PPV warrants. SSA stopped its practice of suspending Old Age, Survivors, and Disability Insurance (OASDI) benefits, suspending or denying Supplemental Security Income (SSI) benefits, and issuing overpayment determinations to individuals based solely on the existence of outstanding PPV warrants, and will grant retroactive relief to certain individuals.
II. Background
On December 28, 2006, plaintiffs filed the Clark class action lawsuit against the Commissioner of SSA. The plaintiffs alleged that SSA's practice of suspending OASDI benefits and/or suspending or denying SSI benefits based solely on the existence of an outstanding warrant for the beneficiary's arrest in connection with an alleged violation of a probation or parole condition, without any determination or finding that such individual had in fact committed such a violation, was unlawful. On September 22, 2008, the District Court found that SSA's practice of suspending and/or denying benefits solely on the basis of a PPV warrant was consistent with the plain language of the statute and regulations, and denied the plaintiff's motion.
On appeal, the United States Court of Appeals for the Second Circuit (Second Circuit) rendered its decision in Clark v. Astrue, 602 F.3d 140, 152 (2d Cir. 2010) on March 19, 2010. The Second Circuit held that it is inconsistent with the plain meaning of the Social Security Act for SSA to treat a warrant alleging an individual is violating a condition of probation or parole as sufficient and irrebuttable evidence that the individual is in fact violating a condition of probation or parole. As a result, SSA stopped suspending and/or denying OASDI and SSI benefits or issuing overpayment determinations based solely on an outstanding PPV warrant for individuals who resided in New York, Connecticut, or Vermont. On March 18, 2011, the Court certified a nationwide class for Clark, and on May 9, 2011, SSA stopped the practice of suspending and/or denying OASDI and SSI benefits or issuing overpayment determinations nationwide based solely on the existence of an outstanding PPV warrant. On April 13, 2012, the Court issued the final Order.
In addition to permanently stopping this practice, the Clark Order also provides retroactive relief to certain class members whose benefits were suspended or denied or were assessed an overpayment under the former practice.
III. Definition of the Class
Clark class members include all persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006.
IV. The Court Order and Implementation
SSA implemented the prospective relief for class members under the Clark Order by discontinuing the practice of suspending or denying OASDI and SSI benefits, or issuing overpayment determinations based solely on a PPV warrant. SSA is now implementing retroactive relief under Clark for class members in the following situations:
For all individuals whose benefits were suspended solely on the basis of an outstanding probation or parole violation warrant, SSA will fully reinstate all benefits retroactive to the date the benefits were suspended and on an ongoing basis. However, if there is another basis for suspending benefits for any portion of the retroactive period or ongoing benefit period, SSA may suspend such benefits upon notice to the individual with appeal rights in conformity with agency regulations. Unless otherwise provided, all payments to individuals are subject to regular payment, non-payment, and reduced payment provisions of the Social Security Act.
For all individuals for whom SSA made an initial determination of an overpayment, as defined in agency regulations in 20 CFR 404.902 and 416.1402, SSA will reverse such overpayment determination and return any funds already recovered unless any or all of those funds are needed to recover another outstanding overpayment not related to the Clark Order and for which a notice was provided to the individual as required in agency regulations in 20 CFR 404.904 and 416.1404.
For all individuals who were denied SSI payments based solely on an outstanding probation or parole violation warrant and whose claims were otherwise fully developed, SSA will reopen such claims and determine benefits based on the original application date.
Unless critical or expedited case processing procedures apply, for all individuals with appeals pending at any administrative level of determination made solely on the basis of an outstanding probation or parole violation warrant, SSA will review and complete development of such cases based on the original date of the appeal.
For all individuals SSA previously determined to be disabled who filed a new application for SSI payments subsequent to their suspension or denial (based solely on the existence of an outstanding probation or parole violation warrant), SSA will vacate any determination of non-disability on the subsequent application if it was not made in compliance with the requirements for continuing disability reviews as provided in 42 USC 423(f).
To notify class members pursuant to the Clark Order, SSA will first contact them through an informational notice mailed to the last known address in agency records. The informational notices will advise individuals that the practice regarding outstanding probation and parole warrants has changed and that they may be entitled to, or eligible for, benefits or payments for applicable periods of suspension or non-payment. For a copy of the Clark Informational Notices, see POMS GN 02615.160.
SSA will also mail an individualized notice to that person. This notice will explain the specific relief provided, including any determination that no individual relief is due.
Several aspects of the Clark Order retroactive relief described above will be automated and performed by components other than ODAR. See generally POMS GN 02615.000 for information about how other SSA components implement the Clark Order.
V. Processing of Cases
A. Hearing Level
If the case has a Clark case characteristic (CACL) in Case Processing Management System (CPMS), the hearing office (HO) will proceed immediately with processing the case.
If the case has not yet been identified, generally the Processing Center (PC) or field office (FO) will notify the HO if the claimant is eligible for Clark relief. The PC or FO will send this information directly to the HO via an email to the HO general email address, with the subject “Clark relief Order Case.” See POMS GN 02615.130C and GN 02615.185.
Once the HO receives notification from the PC or FO, HO staff will proceed as follows:
Assign the Clark case characteristic (CACL) in CPMS; and
Refer the Clark email message or notification to the assigned administrative law judge (ALJ) for further action.
The ALJ will consider the following:
Whether the claimant's benefits were denied or suspended based solely on a PPV warrant on or after October 24, 2006; and
Whether the claimant incurred an overpayment because of such a suspension or an associated termination of payments based solely on a PPV warrant.
The existence of other issues in the case may affect how the ALJ processes a case involving potential Clark relief. Carefully examine the record in each case to identify all potential issues and follow the appropriate instructions below.
1. Handling Clark Cases Involving PPV Warrant Issue Only – Administrative Dismissal/Referral to PC or FO for Revised Determination
When the only issue under review at the hearing level is the suspension or denial of benefits or an overpayment of benefits based solely on a PPV warrant, the ALJ will remand the case to the PC or FO for a revised determination under 20 CFR 404.948 and 416.1448.
The HO procedures are as follows:
Notify the claimant that his or her case will be remanded to the PC or FO for scheduled Clark relief, using the following language:
This case is before the Administrative Law Judge on a request for hearing. The Administrative Law Judge may return a case to the appropriate component of the Social Security Administration for a revised determination if there is reason to believe that the revised determination would be fully favorable to you, pursuant to the Clark v. Astrue final Order, under the authority set forth in 20 CFR 404.948 and/or 416.1448.
If you disagree with this order, you must notify the undersigned within 10 days of the date of this remand. The Administrative Law Judge will consider your objections and rule on them in writing. If you do not respond to this notice, we will assume that you agree to the remand.
Hold the case for 10 days, in case the claimant objects, in accordance with 20 CFR 404.948 and 416.1448;
If the claimant does not object, the ALJ will administratively dismiss (ADDI) the request for hearing;
Prepare a transmittal for return to the appropriate office (step e), which indicates the case needs processing under the Clark Order. Use DGS Form HA L48 “Transmittal by Office of Disability Adjudication and Review” identified as “Clark Court Order”, using the following language:
I remand the case pursuant to 20 CFR 404.948(c) and/or 416.1448(c), to the appropriate processing center or field office in accordance with the Clark Order because a favorable revised determination is possible. Please review the case and issue a revised reconsidered determination. The notice of such determination should provide the claimant with a right to a hearing.
Refer OASDI (title II) cases to the PC and SSI (title XVI) cases to the local FO.
Place an alert in the Alert and Message section in eView to notify the PC or the FO of Clark relief involvement.
If the claimant objects to the remand, schedule the case for an ALJ hearing.
2. Handling Clark Cases with Additional Issues
The claimant is entitled to a new revised determination on the suspension or denial of benefits or an overpayment of benefits based on a PPV warrant. Therefore, when the request for hearing includes issues in addition to the suspension or denial of benefits or an overpayment based on a PPV warrant, the ALJ will first determine whether resolution of the PPV issue resolves all other issues involved in the case. If it does, the ALJ will proceed with the procedures in A.1 above.
If other issues remain after resolution of the PPV issue, the ALJ will proceed with action on all issue(s) in the case. See also POMS GN 02615.130 and GN 02615.185. At the time of decision, the ALJ will act on all issue(s) in the case and take appropriate action in regards to each issue in the decision, including deciding the PPV issue. The HO will follow the normal case processing and routing procedures when releasing the decision.
The HO will also add an alert to the Alert and Message section in eView to notify the PC or FO of Clark involvement.
3. Handling a New Medical Appeal
A claimant who is potentially eligible for Clark relief on a terminated record may have filed a new claim that was medically denied. Based on Clark relief, the new claim may be moot and, if it is, must be disposed of prior to providing relief on the terminated record.
a. HO Is Processing a New Medical Appeal When There Is a Prior Clark Case
In this situation, the processing instructions depend on whether the Clark case had a medical determination. If it did, the FO will request that the ALJ dismiss the pending request for hearing on the medical appeal or vacate a decision on the medical appeal and dismiss the request for hearing (if review by the AC was not requested). The dismissal order must cite the Clark case and use the following language:
I dismiss the request for hearing in accordance with the Clark Order because a favorable revised determination on a prior record is likely. In the unusual circumstance in which relief on the prior record is not provided, the request for hearing on this claim will be reinstated.
These instructions apply regardless of the level at which the Clark case is pending.
NOTE:
If both claims are pending at the HO, the ALJ will follow the procedures in A.1 with respect to the PPV warrant issue(s) and dismiss the request for hearing on the new application, as above.
However, if there was no medical determination in the Clark case, the FO will notify the HO that the Clark case was sent to Disability Determination Services (DDS) for a medical determination. The HO will continue processing its action on the pending medical appeal for the non-Clark related case.
If DDS makes an unfavorable determination on the Clark case and the case is still pending at the HO, the case will be escalated and consolidated with the case pending at the HO.
If DDS makes a favorable determination on the Clark case, the FO will ask the HO to dismiss the pending request for hearing or, if a decision has been made on the current claim, to vacate the ALJ decision and dismiss the request for hearing. See POMS GN 02615.185. The dismissal order must cite the Clark case and use the language previously noted in this section.
b. HO Is Processing a Prior Clark Case and a New Medical Appeal Was Filed
The HO will clear the Clark case using the instructions in A.1. However, the HO will also notify the component with jurisdiction over the new medical appeal that it is moot based on Clark relief and the appeal must be disposed of in order to provide the necessary relief (even when the new medical appeal case is closed).
B. Appeals Council
The PC or FO will notify the Office of Appellate Operations Executive Director's Office (“EDO”) if a claimant is eligible for Clark relief. EDO staff will assign a Clark case characteristic (CALC) in the Appeals Review Processing System (ARPS) and forward the case to a division and branch for assignment.
If processing a case where the claimant is eligible for Clark relief, the AC will consider the following:
Whether the claimant's benefits were denied or suspended based on a PPV warrant on or after October 24, 2006; and
Whether the claimant incurred an overpayment as a result of such a suspension or associated termination of benefits based solely on a PPV warrant.
The existence of other issues in the case may affect how the AC processes a case involving potential Clark relief. Carefully examine the record in each case to identify all potential issues and follow the appropriate instructions below.
1. Handling Clark Cases Involving PPV Warrant Issue Only – Administrative Dismissal/Referral to PC or FO for Revised Determination
In order to expedite Clark relief for claimants, the AC uses an administrative dismissal and referral procedure rather than remanding the claim to the ALJ to remand to the appropriate office. When the only issue(s) on appeal to the AC is the suspension or denial of benefits or an overpayment of benefits, based solely on a PPV warrant, the AC will:
Issue an order vacating the ALJ's unfavorable decision citing the Clark Order and the right to a revised determination;
Administratively dismiss (ADDI) the request for review;
Return the case to the appropriate office, as set forth in B.1.e., to process the necessary relief required by the Clark Order via Form HA-505 “Transmittal by Office of Disability Adjudication and Review” identified as “Clark Court Order” (See Attachment 2).
Add a red “Special” flag to form HA-505 prior to returning the case to the office with appropriate jurisdiction; and
Refer OASDI (title II) cases to the PCs and SSI (title XVI) to the FOs.
2. Handling of Clark Cases with Additional Issues
The claimant is entitled to a new revised determination on the suspension or denial of benefits or an overpayment of benefits based on a PPV warrant. When the issues on appeal to the AC include other issues that the AC has proper jurisdiction to adjudicate, the AC will first determine whether resolution of the PPV issues resolves all other issues involved in the case. If it does, the AC will proceed with the procedures in B.1 above.
If other issues remain after resolution of the PPV issue, the AC will proceed with action on all issue(s) and take appropriate action in regards to all issue(s) in the case. See also POMS GN 02615.130 and GN 02615.185. The AC will follow the normal case processing procedures for release of the action document.
The AC will also add an alert to the Alert and Message section in eView to notify the PC or FO of Clark involvement.
3. .Handling a Concurrent Claim-Title II Is Pending with AC and Title XVI Previously Denied
When there was an initial concurrent claim in which the title II was medically denied but the title XVI was technically denied based on a PPV, the FO will notify the AC that a DDS determination is pending on the title XVI claim. The AC will hold the case pending a DDS determination.
If an unfavorable determination is made by DDS, the AC will first consider whether the appropriate course of action is to remand the case to an ALJ to consider the claims together.
If DDS makes a favorable determination, the AC will process the appeal case using the instructions in B.1 above.
4. Handling a New Medical Appeal
A claimant who is potentially eligible for Clark relief on a terminated record may have filed a new claim that was medically denied and is pending at the AC. Based on Clark relief, the new claim may be moot and, if it is, must be disposed of prior to providing relief on the terminated record.
a. AC Is Processing a New Medical Appeal When There Is a Prior Clark Case
In this situation, the processing instructions depend on whether the Clark case had a medical determination. If it did, the FO will ask the AC to dismiss the pending request for review on the SSI medical appeal or to vacate the AC action and dismiss the request for review. See POMS GN 02615.185. However, if the case has already been remanded, the HO has jurisdiction and the HO instructions above apply.
The dismissal order must cite the Clark case and use the following language:
The Appeals Council dismisses the request for review in accordance with the Clark Order because a favorable revised determination on a prior record is likely. In the unusual circumstance in which relief on the prior record is not provided, the request for review on this claim will be reinstated.
These instructions apply regardless of the level at which the Clark case is pending.
NOTE:
If the Clark case and the pending medical appeal are both pending at the AC, the AC will follow the procedures in B.1 with respect to the PPV warrant issue(s) and dismiss the request for review on the new application, as above.
However, if there was no medical determination on the Clark case, the FO will notify the AC that the Clark case was sent to DDS for a medical determination. The AC will continue processing its action on the pending medical appeal for the non-Clark related case.
If DDS makes an unfavorable determination on the Clark case before the AC has acted, the AC will consider whether the determination is relevant to the pending medical appeal and will take appropriate action. If the claim is remanded, the AC will instruct the ALJ to consider the claims together.
If DDS makes a favorable determination on the Clark case, the FO will ask the AC to dismiss the pending request for review on the SSI medical appeal or, if the AC has already taken action on the current claim, to vacate the AC action and dismiss the request for review. The dismissal order must cite the Clark case and use the language previously noted in this section.
b. AC Is Processing a Prior Clark Case and a New Medical Appeal Was Filed
The AC will clear the Clark case using the instructions in B.1. However, the AC will also notify the component with jurisdiction over the new medical appeal that it is moot based on Clark relief and the appeal must be disposed of in order to provide the necessary relief (even if the new medical appeal is closed).
C. Results of ODAR Actions
Upon receipt of the case from an HO or the AC, the FO or PC will evaluate the case under the Clark Order and issue a revised reconsideration determination. Vacating the ALJ's decision renders it no longer the final decision of the Commissioner and subject to revision, as pertinent.
VI. Inquiries
At the hearing level, direct all program-related and technical questions to the appropriate Regional Office (RO) support staff. RO support staff may refer questions or unresolved issues to Headquarters' contacts in the Office of the Chief Administrative Law Judge.
At the AC level, direct all program-related and technical questions to EDO Appeals Officers.