I-5-4-72.Hart et al. v. Colvin
Last Update: 1/6/17 (Transmittal I-5-472)
| Purpose | |
| Important Information About the Settlement Agreement | |
| Notifying Class Members | |
| Hearing Level Procedures for Individual Relief | |
| Appeals Council Procedures for Individual Relief | |
| Division of Civil Actions (DCA) Procedures | |
| Inquiries | |
| Settlement Agreement | |
| Screening Sheet | |
| Notice of Ineligibility for Readjudication | |
| Submission of Evidence Form | |
| Appeals Council Notice |
ISSUED: July 21, 2017
REVISED: January 2, 2018
I. Purpose
This Temporary Instruction sets forth the procedures for implementing a joint settlement agreement, approved by the United States District Court for the Northern District of California (District Court) on April 25, 2017, in the Hart et al. v. Colvin (Hart) class action. A copy of the settlement agreement is located in Attachment 1. The Hart case involves allegations that the Social Security Administration (SSA) improperly relied on consultative examinations (CE) performed by Frank Chen, M.D.
II. Important Information About the Settlement Agreement
A. Background
On February 9, 2015, plaintiffs filed a class action lawsuit in the United States District Court for the Northern District of California against the Acting Commissioner of Social Security. Plaintiffs alleged that SSA improperly relied on CE reports from Frank Chen, M.D.
Dr. Chen performed CEs for the California Disability Determination Services (DDS) Division from 2007 through 2013. As of December 31, 2013, the California DDS Division removed Dr. Chen from its panel of CE providers for reasons related to the quality of his reports, the thoroughness of his examinations, and his manner toward claimants.
On April 25, 2017, the District Court approved a class action settlement agreement in Hart. Under the terms of the settlement, SSA agreed to take certain actions on all unfavorable or partially favorable decisions or determinations in which Dr. Chen performed a CE between January 1, 2007 and December 31, 2013.
SSA has agreed to offer two types of relief under the Hart settlement agreement – individual and prospective. The class members are eligible for individual relief as described here.
B. Definition of Class
The settlement class in Hart consists of all claimants whose Social Security Disability Insurance Benefits (title II) or Supplemental Security Income (title XVI) payments were either denied or terminated and for whom a CE report was prepared by Dr. Chen. It also includes all claimants who received a partially favorable decision or determination on their claim for title II or title XVI benefits and for whom a CE report was prepared by Dr. Chen. An individual who meets these criteria is a class member.
C. Eligibility for Relief
A class member is not eligible for relief under the settlement terms if he or she received title II or title XVI benefits or payments as of October 14, 2015 (or, if awarded title II benefits, received those benefits until he or she converted to retirement insurance benefits once he or she reached full retirement age). Class members who did not receive such benefits or payments as of October 14, 2015, and who meet the other eligibility criteria for class membership, are eligible for individual relief.
Class members eligible for individual relief are divided into three categories: Group 1, Group 2, and Group 3. The terms of these categories of eligible class members are described below.
1. Group 1
A Group 1 class member is a claimant who received an unfavorable or partially favorable decision or determination on a title II or title XVI disability claim – including an age 18 disability redetermination, or a continuing disability review (CDR) – that, as of April 25, 2017, is a final decision or determination, and who, as part of that claim or CDR, underwent a CE performed by Dr. Chen on or after January 1, 2011. For Group 1 relief under Hart, SSA will readjudicate the title II and title XVI disability claims of those eligible class members who timely request readjudication, subject to the conditions described in IV.A. and V.A. below.
Readjudications in which the final determination was issued at the initial or reconsideration level will be conducted by the Western Program Service Center (WNPSC), Disability Processing Branch (DPB). Readjudications in claims that proceeded past the reconsideration level will be conducted at the hearing level. All completed Group 1 readjudications that address the claimant's disability on the merits are subject to administrative or judicial review; however, readjudications completed by the WNPSC DPB are not subject to a reconsideration step. Accordingly, all appeals of readjudications completed by the WNPSC DPB will be a request for a hearing before an administrative law judge (ALJ).
NOTE 1:
A Group 1 class member who, prior to April 25, 2017, appealed his or her final decision to Federal court is not eligible for relief unless he or she (1) obtains a judicial remand of that case upon a motion made within specified time frames, or (2) obtains relief from judgment in that case, based on a motion made within specified time frames. See VI.A. below.
NOTE 2:
Any Group 1 class member whose claim(s) history reflects more than one basis for Group 1 eligibility and who proceeds through the readjudication process will proceed based on the earliest of his or her eligibility.
2. Group 2
A Group 2 class member is a claimant who received an unfavorable or partially favorable decision or determination on a title II or title XVI disability claim – including an age 18 disability redetermination, or CDR – that, as of April 25, 2017, is a final decision or determination, and who, as part of that claim or CDR, underwent a CE performed by Dr. Chen between January 1, 2007 and December 31, 2010.
NOTE 1:
A Group 2 class member who, prior to April 25, 2017, appealed his or her final decision to Federal court is not eligible for relief unless he or she (1) obtains a judicial remand of that case upon a motion made within specified time frames, or (2) obtains relief from judgment in that case, based on a motion made within specified time frames. See VI.B. below.
NOTE 2:
The Division of Civil Actions in the Office of Appellate Operations (OAO) will be processing Federal court remands for eligible Group 2 class members; however, neither the Office of Hearing Operations (OHO) nor OAO will be readjudicating any Group 2 claims.
3. Group 3
A Group 3 class member is a claimant who received an unfavorable or partially favorable decision or determination on a claim – including an age 18 disability redetermination, or CDR – that, as of April 25, 2017, is not a final decision or determination and who, as part of that claim or CDR, underwent a CE performed by Dr. Chen. For Group 3 relief under Hart, a claimant is entitled to choose whether SSA will consider Dr. Chen's CE report when the claim(s) is decided, subject to the conditions described in IV.B. and V.B. below.
D. Implementing Hart in OHO and OAO
As discussed in detail below, OHO and OAO staff will notify Group 3 class members of the settlement agreement, screen certain Group 1 and Group 3 claims, readjudicate Group 1 claims that previously proceeded to the hearing or Appeals Council level, hear appeals of Group 1 claims that are readjudicated by the WNPSC DPB, and adjudicate Group 3 claims. OHO and OAO will not be responsible for readjudicating Group 2 claims.
III. Notifying Class Members
OHO and OAO are only responsible for sending notice of class membership to Group 3 class members; the WNPSC DPB will send notice of class membership to all Group 1 and Group 2 members. The following instructions apply in notifying a Group 3 class member of the class action settlement.
A. Sending Written Notice to Group 3 Class Members
The Office of the General Counsel (OGC) will provide the Office of the Chief Administrative Law Judge (OCALJ) with a list of all Group 3 class members. OCALJ will send a copy of the Notice of Class Action Settlement (Notice) and Request Form (Attachment 1, Exhibit C) to all Group 3 class members. OCALJ will send the Notice and Request Form within 20 days of June 27, 2017 to the last known address of any claimant identified on the list as a Group 3 class member eligible for relief and to the appointed representative, if any. The Notice and Request Form will be sent in accordance with Hearings, Appeals and Litigation Law (HALLEX) manual I-2-3-45 and I-2-3-50, as applicable
NOTE:
For Group 3 class members who have already had a hearing but have not yet received a decision, hearing office (HO) staff will diary the case for 35 days from the date the Notice and Request Form are sent to allow the claimant to submit a completed Request Form. The ALJ will not issue a decision until the diary expires.
In paper cases, HO staff will add the notice to Part B-Jurisdictional Documents/Notices (red tab) of the claim(s) file. In electronic cases, staff will upload the document using document type 7011-Misc. Jurisdictional Documents/Notices to Part B-Jurisdictional Documents/Notices (red tab) of the claim(s) file. The notice will be exhibited for all hearing level cases. See IV.B. below.
B. Receiving a Written Response to Notice
The Notice only asks Group 3 class members whose claim(s) is pending at the hearing level to return a completed Request Form. A claimant will have 30 days from the date the notice is received to return the attached Request Form indicating whether SSA should consider Dr. Chen's CE report when deciding the pending claim(s). For a Group 3 class member who already has a hearing scheduled, the request form should be returned no fewer than 5 days before the hearing date. See IV.B.1 below for procedures when a Group 3 class member does not return a completed Request Form within the specified time.
If an HO receives a completed request form, HO staff will add this document to the Part B-Jurisdictional Documents/Notices (red tab) of the paper claim(s) file. In electronic cases, staff will upload the document using document type 7011-Misc. Jurisdictional Documents/Notices to Part B-Jurisdictional Documents/Notices (red tab) of the claim(s) file. A completed request form will be entered into the record and exhibited for all pending hearing level cases. See IV.B.below.
C. No Written Response to Notice
HO staff will follow the procedures in HALLEX I-2-8-55 if the Notice is returned as undeliverable. HO staff will not conduct further development if the claimant does not return a completed Request Form within the stated period and the Notice is not returned as undeliverable.
IV. Hearing Level Procedures for Individual Relief
A. Group 1 Readjudication Process
The following procedures apply to Group 1 claims where the final decision was issued at the hearing level and the claimant did not request Appeals Council review and the Appeals Council did not take review on its own motion. The WNPSC DPB will provide OCALJ with a list of eligible Group 1 class members who timely requested relief for readjudication processing.
The procedures in IV.A.2.a – IV.A.2.e. below additionally apply to Group 1 claims remanded by the Appeals Council for readjudication as well as appeals of the readjudications performed by the WNPSC DPB. The screening procedures in IV.A.1. below do not apply to Group 1 claims remanded by the Appeals Council for readjudication or appeals of the readjudications performed by the WNPSC DPB.
1. Screening Group 1 Cases
Designated HO adjudicators and staff will review the hearing decision of all eligible Group 1 cases using the screening sheet in Attachment 2. A new hearing will not be scheduled for a Group 1 class member if:
the decision was rendered for failure to meet non-medical criteria; or
the ALJ explicitly afforded no weight to Dr. Chen's report in the decisional analysis.
NOTE 1:
A new hearing will be scheduled if the decision omits reference to Dr. Chen's report or gives the report very little weight (i.e. more than no weight).
The reviewing HO adjudicator or staff will sign and date the completed screening sheet. HO staff will associate the screening sheet with the claim(s) file by placing it in Part B- Jurisdictional Documents/Notices (red tab) of the paper claim(s) file. For a certified electronic claim(s) file, staff will upload the document using document type 7011-Misc. Jurisdictional Documents/Notices to Part B- Jurisdictional Documents/Notices (red tab) of the claim(s) file and add “screening sheet” to the note field in eView.
If the reviewing HO adjudicator or staff determines that the Group 1 class member will not proceed to a new hearing, the HO staff will:
Complete the Notice of Ineligibility for Readjudication (Attachment 3) and mail to the claimant and his or her current representative, if any; and
Associate a copy of the completed Notice of Ineligibility for Readjudication with the claim(s) file by placing it in Part B- Jurisdictional Documents/Notices (red tab) of the paper claim(s) file. For a certified electronic claim(s) file, staff will upload the document using document type 7011-Misc. Jurisdictional Documents/Notices to Part B- Jurisdictional Documents/Notices (red tab) of the claim(s) file and add “Notice of Ineligibility for Readjudication” to the note field in eView.
NOTE 2:
Prior to sending a completed Notice of Ineligibility for Readjudication to an appointed representative, HO staff will confirm that the claimant or representative submitted a Form SSA-1696, Appointment of Representative, or the claimant otherwise appointed the representative subsequent to receiving the Notice and Request Form.
The readjudication process will conclude for those Group 1 class members.
2. Group 1 Class Members Proceeding to a Hearing
The following procedures apply to processing Group 1 claims that are proceeding through the readjudication process after screening. These procedures additionally apply to appeals of Group 1 readjudications performed by the WNPSC DPB and Group 1 claims remanded by the Appeals Council for readjudication.
HO staff will establish a new case in the Case Processing and Management System (CPMS) with the case characteristic HRT3, manually establishing the case if it cannot be reactivated.
a. Notice of Hearing
For Group 1 claims that are proceeding to a hearing, the Notice of Hearing will include the following statement: “The hearing will be held pursuant to the Hart Settlement Agreement and Order approved by the United States District Court for the Northern District of California on April 25, 2017.”
NOTE:
In order to preserve the ability to send the notice of hearing through central print, HO staff will add this language in the “More Issues” text box in the Document Generation System (DGS) template (on the “Type of Notice of Hearing & More Issues” tab, or the “Additional Issues” tab in the Widow/Widower template).
b. Developing the Record
For any Group 1 class member for whom a hearing is scheduled, HO staff will additionally provide the claimant with forms that provide him or her with the opportunity to submit supplemental evidence relating to the claim of disability that was previously denied. See Attachment 4. This supplemental evidence may include a re-articulation of the nature of the impairment(s) that existed during the previously adjudicated period, the disclosure of medical providers who have information that bears on the claimant's condition during the previously adjudicated period, and medical or other evidence that relates to his or her condition during the previously adjudicated period.
A Group 1 class member does not need to provide any additional information in order to receive a hearing and may proceed on the record that was created during his or her previous application process. However, a Group 1 class member will be asked to provide updated disability information pertaining to his or her current condition should he or she allege that he or she is disabled at the date of the readjudication. Evidence of current disability will only be considered for a claimant who successfully demonstrates that he or she was disabled through the end of the previously adjudicated period (and not for a closed period of disability whose end date is before the end of the previously adjudicated period).
NOTE:
If a Group 1 class member has a subsequent application for title II or title XVI pending at the time of readjudication, the ALJ will not consider the period of disability alleged in that pending application in the readjudication, nor will the ALJ consolidate the claim(s). However, if the period of disability alleged in a pending subsequent application invades the previously adjudicated period, the ALJ will still readjudicate the entire previously adjudicated period.
An ALJ will additionally determine whether the evidence is sufficient for a full and fair inquiry into the claim(s) and may take any action he or she deems necessary, including requesting a new CE report. See HALLEX I-2-5-2 and I-2-5-20.
c. Exhibiting and Marking Issues
Dr. Chen's CE report must remain in the claim(s) file during readjudication. Therefore, the adjudicator must ensure that the report is clearly identified. In electronic cases, hearing office staff will identify Dr. Chen's CE report as “DISREGARDED-HART” in the Note field in eView. In a paper claim(s) file, hearing office staff will add “DISREGARDED-HART” on the first page of Dr. Chen's report with the number of pages, and on each subsequent page. To illustrate, a 2-page submission that the ALJ disregards would be marked as follows: page 1 “DISREGARDED-HART 1/2” and page 2 “DISREGARDED-HART 2/2.”
d. Hearing Procedures
At the hearing, the ALJ will generally admit into the record any information that he or she determines is material to the issues in the case for both the previously adjudicated period and the current period or any part thereof. See HALLEX I-2-6-58.
NOTE:
At the hearing, the ALJ may choose to take evidence for both the previously adjudicated period and the period following the previously adjudicated period, through the date of the readjudication, should he or she find that most efficient in light of the circumstances of the case. However, disability status for any period after the end of the previously adjudicated period will only be assessed for claimants who demonstrate that they were disabled for all of the previously adjudicated period, or for part of the previously adjudicated period that includes the end of the previously adjudicated period (and not for a closed period of disability whose end date is before the end of the previously adjudicated period).
An ALJ may exercise his or her usual discretion to obtain vocational or medical expert opinion, or request a CE. See HALLEX I-2-5-20, I-2-6-70, and I-2-6-74.
e. Decision Language
An ALJ must not consider Dr. Chen's CE report in rendering a decision in the claim(s). The ALJ will specifically note in the decision that:
The claim(s) were readjudicated pursuant to the terms of the Hart et al. v. Colvin class action settlement agreement.
Pursuant to the terms of the settlement agreement, the ALJ did not consider the consultative examination report prepared by Dr. Chen.
f. Favorable Decision
If an ALJ issues a fully favorable decision for a Group 1 class member, the claimant will receive the appropriate award of back benefits or payments for the previously adjudicated period and any period from the end of the previously adjudicated period continuing through the date of the readjudication decision, as applicable.
If an ALJ issues a partially favorable decision for a Group 1 class member, the claimant will receive the appropriate award of back benefits or payments for the previously adjudicated period. In addition, should the partially favorable decision include a finding that the claimant was disabled at the end of the previously adjudicated period, the claimant will receive the appropriate award of back benefits or payments for the previously adjudicated period and any period from the end of the previously adjudicated period continuing through the date of the readjudication decision, as applicable.
B. Group 3 Relief Process
The hearing level will follow the below procedures for pending Group 3 claims containing CE reports from Dr. Chen. An ALJ will additionally follow the procedures in IV.B.1. below for a Group 3 claim(s) remanded by the Appeals Council.
As discussed in section III above, OCALJ will mail the Notice and Request Form to Group 3 class members and HO staff will associate the Notice and any written response with Part B of the claim(s) file. The ALJ will admit both the Notice and any written response into the record and exhibit the document(s). See HALLEX I-2-6-58.
1. Claimants Who Have Not Yet Had a Hearing
For Group 3 class members who have not yet had a hearing, the ALJ will advise the claimant at the hearing that:
He or she received a CE from Dr. Chen, a provider who was later removed from the California DDS panel for reasons that include uncorrected deficiencies regarding the quality of his examination reports and thoroughness of his examinations;
He or she has the option to have the report from Dr. Chen excluded from consideration in the forthcoming adjudication; and
The adjudicator has the discretion to consider whether ordering an additional CE is appropriate.
The ALJ will additionally explain on the record at the hearing that due to the Hart settlement agreement, the claimant was sent a special election form allowing him or her to elect whether or not the ALJ should consider the CE report from Dr. Chen. The ALJ will further note, on the record, whether or not the claimant returned the form and, if so, the election the claimant made.
If the election form was returned by the claimant before or during the hearing, the ALJ will ask the claimant and his or her representative, if any, to confirm, on the record, that the information on the form regarding the claimant's election is correct. If, at the hearing, the claimant seeks to change his or her previous election, the ALJ will confirm the claimant's desire to change the election and will then honor that change.
For claimants who did not return the form either before or during the hearing, the ALJ will ask the claimant and his or her representative, if any, on the record whether they want the ALJ to consider or exclude Dr. Chen's CE report. The ALJ will also explain on the record that if he or she were to exclude the report from consideration, it would result in excluding consideration of any medical findings and other information contained in the report. The ALJ must honor the claimant's election.
a. Claimant Wants ALJ to Consider Dr. Chen's Report
The ALJ will make a written statement in the decision explaining that, pursuant to the terms of the Hart settlement agreement, the claimant was given the option regarding whether Dr. Chen's CE report should be evaluated in the decision. The decision will note that the claimant and his or her representative, if any, stated on the record that he or she elected for the ALJ to consider the report.
The ALJ will be guided in accordance with the regulations at 20 CFR 404.1527 and 416.927 when evaluating a CE report from Dr. Chen and determining what weight, if any, to afford the report. The ALJ will consider that Dr. Chen was removed from the California DDS panel for reasons that included uncorrected deficiencies regarding the quality of his reports and the thoroughness of his examinations.
In accordance with 20 CFR 404.1527 and 416.927, the ALJ will explain in the decision what weight, if any, he or she afforded to Dr. Chen's report. The ALJ will also consider whether ordering an additional CE is appropriate. HALLEX I-2-7-10.
b. Claimant Does Not Want ALJ to Consider Dr. Chen's Report
If the claimant elects for the ALJ to disregard Dr. Chen's report, the ALJ must honor that election and will disregard Dr. Chen's report in evaluating the claim(s). The ALJ must state on the record that he or she will honor the claimant's election and that he or she will disregard Dr. Chen's report in evaluating the claim. The ALJ will additionally refrain from exhibiting Dr. Chen's report. In electronic cases, hearing office staff will add, “not exhibited per Hart election” to the Note field in eView. In a paper claim(s) file, hearing office staff will add, “not exhibited per Hart election” on the first page of Dr. Chen's report with the number of pages, and on each subsequent page.
The ALJ will make a written statement in the decision explaining that pursuant to the terms of the Hart agreement the claimant was given the option regarding whether Dr. Chen's CE report should be evaluated in the decision. The decision will note that the claimant or his or her representative, if any, stated on the record that he or she did not want the report considered and accordingly it was not entered into the record or evaluated in the decisional analysis.
2. Claimants Post-Hearing Who Have Not Received Decisions
If a Group 3 class member returns the election form and has already had a hearing before an ALJ, the claimant's election must be honored. An ALJ may use his or her usual discretion to schedule a supplemental consultative examination or supplemental hearing before issuing a decision regardless of whether the claimant elected to have Dr. Chen's report considered. See HALLEX 1-2-6-80 and I-2-7-10.
If a Group 3 class member does not return the election form within 30 days of when the Notice was received, the ALJ will continue to process the claim(s) and will evaluate Dr. Chen's report using the instructions in IV.B.2.a.
a. Claimant Wants ALJ to Consider Dr. Chen's Report
If a claimant elects for the ALJ to consider Dr. Chen's report, then the ALJ will be guided in accordance with the regulations at 20 CFR 404.1527 and 416.927 when evaluating a CE report from Dr. Chen and determining what weight, if any, to afford the report. The ALJ will consider that Dr. Chen was removed from the California DDS panel for reasons that included uncorrected deficiencies regarding the quality of his reports and the thoroughness of his examinations.
In accordance with 20 CFR 404.1527 and 416.927, the ALJ will explain in the decision what weight, if any, he or she afforded to Dr. Chen's report. The ALJ will also consider whether ordering an additional CE is appropriate. HALLEX I-2-7-10.
b. Claimant Does Not Want ALJ to Consider Dr. Chen's Report
If a claimant elects for the ALJ not to consider Dr. Chen's CE report, the ALJ must disregard the report in evaluating the claim(s). The ALJ will include a statement in the written decision explaining that the claimant was given the option regarding whether Dr. Chen's CE report should be evaluated in the decision. The decision will note that the claimant returned the Request Form and elected for the ALJ to not consider Dr. Chen's report and, therefore, it was not evaluated in the decisional analysis.
In electronic cases, hearing office staff will add “Disregarded per Hart Election” to the Note field in eView. In a paper claim(s) file, hearing office staff will add “Disregarded per Hart Election” on the first page of Dr. Chen's report with the number of pages, and on each subsequent page.
V. Appeals Council Procedures for Individual Relief
A. Group 1 Readjudication Process
The WNPSC DPB will provide the Office of Appellate Operations (OAO) a list of eligible Group 1 class members who timely requested relief for readjudication processing. OAO will process eligible Group 1 class members who either requested review of the ALJ's decision by the Appeals Council or for whom the Appeals Council took review on its own motion.
1. Screening Group 1 Cases
Designated OAO adjudicators and staff will review the prior ALJ or Appeals Council decision of all eligible Group 1 cases using the screening sheet in Attachment 2. The Appeals Council will not grant review and remand to schedule a new hearing if:
the adjudicator explicitly afforded no weight to Dr. Chen's report in the decisional analysis; or
the decision was rendered for failure to meet non-medical criteria.
NOTE 1:
The Appeals Council will grant review and remand to schedule a new hearing if the decision omits reference to Dr. Chen's report or gives the report very little weight (i.e. more than no weight).
The reviewing OAO adjudicator or staff will sign and date the completed screening sheet. OAO staff will associate the screening sheet with the claim(s) file by placing it in Part B- Jurisdictional Documents/Notices (red tab) of the paper claim(s) file. For a certified electronic claim(s) file, staff will upload the document using document type 7011-Misc. Jurisdictional Documents/Notices to Part B- Jurisdictional Documents/Notices (red tab) of the claim(s) file and add “screening sheet” to the note field in eView.
If the reviewing OAO staff or adjudicator determines the Group 1 claim(s) does not fit the criteria to continue through the readjudication process, the OAO staff or adjudicator will:
Complete the Notice of Ineligibility for Readjudication (Attachment 3) and mail to the claimant and his or her appointed representative, if any; and
Associate a copy of the completed Notice of Ineligibility for Readjudication with the claim(s) file by placing it in Part B- Jurisdictional Documents/Notices (red tab) of the paper claim(s) file. For a certified electronic claim(s) file, staff will upload the document using document type 7011-Misc. Jurisdictional Documents/Notices to Part B- Jurisdictional Documents/Notices (red tab) of the claim(s) file and add “Notice of Ineligibility for Readjudication” to the note field in eView.
NOTE 2:
Prior to sending a completed Notice of Ineligibility for Readjudication to an appointed representative, OAO staff will confirm that the claimant or representative submitted a Form SSA-1696, Appointment of Representative, or the claimant otherwise appointed the representative subsequent to receiving the Notice and Request Form.
The readjudication process will conclude for those Group 1 class members.
2. Remanding Group 1 Claims for a New Hearing
For a Group 1 claim(s) continuing through the readjudication process, OAO staff will establish a new case in the Appeals Review Processing System under the REO workload with the case characteristic HRT3.
The Appeals Council will issue the remand order in Attachment 5 to the claimant and appointed representative, if any. The remand order explains that the claimant is entitled to relief pursuant to the Hart settlement agreement and the case is being sent back to an ALJ for readjudication. The remand order directs the ALJ to not evaluate the CE report prepared by Dr. Chen.
NOTE:
Prior to issuing the remand order in Attachment 5 to an appointed representative, OAO staff will confirm that the claimant or representative submitted a Form SSA-1696, Appointment of Representative, or the claimant otherwise appointed the representative subsequent to receiving the Notice and Request Form.
B. Group 3 Relief Process
The following procedures apply to Group 3 claims that are pending at the Appeals Council as of April 25, 2017. These procedures also apply to Group 3 claims in which a timely request for Appeals Council review is filed after April 25, 2017.
1. Screening Group 3 Cases
OAO adjudicators or staff will review the ALJ decision associated with the pending claim(s) using the screening sheet in Attachment 2. The Appeals Council will screen all Group 3 cases that are pending at the Appeals Council as of April 25, 2017 for potential remand to an ALJ pursuant to the Hart settlement agreement. The Appeals Council will also screen all Group 3 cases in which the claimant files a timely request for review after April 25, 2017 for potential remand to an ALJ pursuant to the Hart settlement agreement.
All screened cases will be remanded to an ALJ for further processing pursuant to the Hart settlement agreement except cases in which the designated OAO adjudicator or staff determines that:
the adjudicator explicitly afforded no weight to Dr. Chen's report or;
the adjudicator excluded Dr. Chen's report from consideration when making the decision.
The reviewing OAO adjudicator or staff will sign and date the completed screening sheet. OAO staff will associate the screening sheet with the claim(s) file by placing it in Part B- Jurisdictional Documents/Notices (red tab) of the paper claim(s) file. For a certified electronic claim(s) file, staff will upload the document using document type 7011-Misc. Jurisdictional Documents/Notices to Part B- Jurisdictional Documents/Notices (red tab) of the claim(s) file and add “screening sheet” to the note field in eView.
If a case is screened out under one of the above criteria, OAO staff will continue to process the request for review in the normal course pursuant to HALLEX I-3-2. If the Appeals Council denies the request for review, that will conclude the relief process for that Group 3 class member. However, if the Appeals Council grants review and remands the claim(s), the remand order must include the information in V.B.2. below. OAO staff will additionally move the screening sheet to Part C – Current Development/Temporary (green tab) of the claim(s) file.
2. Remanding Group 3 Claims for a New Hearing
If the designated OAO adjudicator or staff does not screen out the Group 3 claim, the Appeals Council must grant review and remand the claim(s) to the hearing level for a new hearing.
The remand order will explain that the claimant is entitled to relief pursuant to the settlement agreement in Hart et al v. Colvin and direct the ALJ to give the claimant the opportunity to elect whether the CE report prepared by Dr. Chen should be considered when deciding the claim(s). The remand order will additionally note that the ALJ will follow the procedures in IV.B.1. above.
NOTE:
OAO staff will also process the request for review in the normal course pursuant to HALLEX I-3-2 and include any additional issue(s) in the remand order.
VI. Division of Civil Actions (DCA) Procedures
The DCA will be responsible for processing certain claim(s) of Group 1 and Group 2 class members who appealed a final decision of the Commissioner to Federal court pursuant to 42 USC 405(g) or 1383(c)(3) prior to April 25, 2017.
A Group 1 or Group 2 class member who, prior to April 25, 2017, appealed his or her final decision to Federal court is not eligible for relief unless he or she (1) obtains a judicial remand of that case upon a motion made within specified time frames, or (2) obtains relief from judgment in that case, based on a motion made within specified time frames. See VI.A. and VI.B. below.
A Group 1 or Group 2 class member who, prior to April 25, 2017, appealed his or her final decision to Federal court and whose claim(s) is remanded by Federal court for reasons other than meeting the requirements in VI.A. and VI.B. below will be processed pursuant to the procedures in VI.A.3., NOTE 2 and VI.B.3., NOTE.
For claim(s) remanded by Federal court prior to April 25, 2017, DCA staff will process the remand order pursuant to the Federal court remand order and include that the claimant is entitled to relief pursuant to the settlement agreement in Hart. The remand order will direct the ALJ to give the claimant the opportunity to elect whether the CE report prepared by Dr. Chen should be considered and additionally direct the ALJ to follow the procedures in IV.B.1. above.
A. Group 1 Relief Process
For all Group 1 class members who submit a timely request for readjudication and who appealed a final decision to Federal court prior to April 25, 2017, SSA will take the procedural steps described below upon request from the claimant or his or her representative in the Federal court case to counsel for SSA in the Federal court case.
1. Case Pending in Federal Court
For a Group 1 class member who is otherwise eligible for relief and has a pending Federal court appeal, if asked to do so, SSA will file a notice of non-opposition in response to a motion for remand to SSA for further proceedings so long as:
the motion is filed within 90 days of the date the claimant receives the Notice of Class Action Settlement and Request Form; and
the basis for that motion is that SSA has entered into the Hart settlement agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and
SSA determines that Dr. Chen's report was afforded weight (i.e., more than no weight) in the decisional analysis.
2. Final Judgment Issued
For a Group 1 class member who is otherwise eligible for relief and whose Federal court appeal has resulted in a final judgment affirming the final decision of the Commissioner, if asked to do so by counsel for the claimant, SSA will file a notice of non-opposition in response to a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) as long as:
The Rule 60(b)(6) motion is filed within 90 days of the date the claimant receives the Notice of Class Action Settlement and Request Form; and
the basis for that motion is that SSA has entered into the Hart settlement agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and
SSA determines that Dr. Chen's report was afforded weight (i.e., more than no weight) in the decisional analysis.
3. Processing of Remand Order
A Group 1 class member who meets the other eligibility criteria will be eligible for individual relief when he or she obtains a judicial remand pursuant to the criteria in VI.A.1 or VI.A.2 above.
Upon receipt of the Federal court remand order, Court Case Preparation and Review Branch (CCPRB) staff will establish a court remand case in ARPS, add the case characteristic HRT3 in ARPS, and prepare a remand order for release pursuant to HALLEX I-4-6-1. The remand order will explain:
The claimant is eligible for relief pursuant to the settlement agreement in the Hart et al v. Colvin class action lawsuit.
Pursuant to the terms of the settlement agreement, the Appeals Council is remanding the case for readjudication.
The ALJ must not consider the consultative examination report prepared by Dr. Chen.
The ALJ will follow the procedures in HALLEX I-5-4-72.IV.A.2.a – IV.A.2.f. on remand.
NOTE 1:
If a class member has a pending subsequent application, the Appeals Council will not direct the ALJ to consolidate the claims.
NOTE 2:
When the DCA receives a Federal court remand for a Group 1 class member for reasons other than meeting the requirements in VI.A.1. or VI.A.2., the Appeals Council will issue a remand order and include that the ALJ must disregard Dr. Chen's CE report pursuant to the Hart settlement agreement.
B. Group 2 Relief Process
For all Group 2 class members who submit a timely request for readjudication, SSA will take the procedural steps below upon (1) request from the claimant or his or her representative in the Federal court case to counsel for SSA in the Federal court case; and (2) confirmation that the Group 2 class member has been awarded benefits on the current application and the decision or determination has been effectuated.
1. Case Pending in Federal Court
For a Group 2 class member who is otherwise eligible for relief and who has a pending Federal court appeal, if asked to do so by counsel for the claimant, SSA will file a notice of non-opposition in response to a motion for remand to SSA for further proceedings so long as:
the motion is filed within 90 days of the date the claimant receives the Notice Award on his or her current application; and
the basis for that motion is that SSA has entered into the Hart settlement agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and
SSA determines that Dr. Chen's report was afforded weight (i.e., more than no weight) in the decisional analysis.
2. Final Judgment Issued
For a Group 2 class member who is otherwise eligible for relief and whose Federal court appeal has resulted in a final judgment affirming the final decision of the Commissioner, if asked to do so by counsel for the claimant, SSA will file a notice of non-opposition in response to a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) as long as:
The Rule 60(b)(6) motion is filed within 90 days of the date the claimant receives the Notice of Award on his or her current application; and
the basis for that motion is that SSA has entered into the Hart settlement agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and
SSA determines that Dr. Chen's report was afforded weight (i.e., more than no weight) in the decisional analysis.
3. Processing of Remand Order
A Group 2 class member will be eligible for individual relief in the form of a Lookback Assessment by the WNPSC DPB when he or she obtains a judicial remand pursuant to the criteria in VI.B.1. or VI.B.2. above.
Upon receipt of the Federal court remand order, CCPRB staff will establish a court remand case in ARPS, add the case characteristic HRT3 in ARPS, and issue a remand order to the WNPSC DPB for the Lookback Assessment. The remand order will explain that:
The claimant has been identified as a member of the Hart et al. v. Colvin class action settlement and is entitled to a Lookback Assessment to be conducted by the WNPSC DPB for the previously adjudicated period.
Because the claimant is eligible for relief at the DDS Level under the Hart et al. v. Colvin class action, the Council remands this case to the WNPSC DPB for a Lookback Assessment in accordance with the terms of the Hart settlement agreement.
CCPRB staff will manually change the case routing in ARPS to V64 to reroute the case to the WNPSC DPB. CCPRB staff will also notify the WNPSC DPB via email at #SF CA WNPSC All DPS Manager. CCPRB staff will use the subject line “Hart – Group 2 Lookback Assessment” and include the following message in the text of the email:
The Division of Civil Actions in OAO has issued a remand order for [claimant name (SSN: ###-##-####)] to the DPB for a Lookback Assessment pursuant to the terms of the Hart et al. v. Colvin class action settlement. Please take necessary action. Thank you.
NOTE:
When the DCA receives a Federal court remand for a Group 2 class member for reasons other than meeting the requirements in VI.B.1. or VI.B.2., the Appeals Council will issue a remand order to an ALJ and include that the ALJ must disregard Dr. Chen's CE report pursuant to the Hart settlement agreement.
VII. Inquiries
HO staff will direct all program-related and technical questions through appropriate management channels. OHO regional offices may refer questions or unresolved issues to the appropriate Headquarters contact.
In OAO, staff and adjudicators will direct any program-related or technical questions to the Executive Director's Office.