I-5-4-8-B.Smith, et al. v. Sullivan
| Purpose | |
| Background | |
| Guiding Principles | |
| Definition of Class | |
| Determination of Class Membership and Preadjudication Actions | |
| Processing and Adjudication | |
| Case Coding | |
| Reconciliation of Implementation | |
| Inquiries | |
| Smith v. Sullivan Stipulation | |
| Smith COURT CASE FLAG/ALERT | |
| Route Slip or Case Flag for Screening | |
| Smith Screening Sheet | |
| Route Slip for Routing Class Member Alert (and Prior Claim Folder(s) to ODIO or PSC — OHA No Longer Has Current Claim | |
| Smith Non-Class Membership Notice | |
| Route Slip for Non-Class Membership Cases | |
| Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.” | |
| Smith Class Member Flag for Headquarters Use (DDS Readjudication) | |
| Smith Case Member Flag for Headquarters Use (DDS Readjudication) | |
| ALJ DISMISSAL TO DDS | |
| Notice Transmitting ALJ Order of Dismissal |
ISSUED: July 31, 1992; REVISED: November 19, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the December 4, 1989, October 3, 1990, and June 21, 1991 orders of the United States District Court for the Eastern District of California in the Smith, et al. v. Sullivan class action involving the “not severe” impairment issue.
Adjudicators throughout the country must be familiar with this TI because Smith class members who now reside outside of the Ninth Circuit must have their cases processed in accordance with the requirements of the court's orders.
II. Background
On June 6, 1984, the United States District Court for the Eastern District of California certified a Ninth Circuit-wide class challenging the Secretary's regulations, policies and practices for evaluating disability claims at step two of the sequential evaluation. The court found the Secretary's severity regulations facially invalid and enjoined the Secretary from applying step two of the sequential evaluation. On November 27, 1984, the court ordered the Secretary to readjudicate, without regard to the challenged regulations, all class member claims that were pending on or after April 6, 1984 (60 days prior to the court's preliminary injunction). After the court denied the Secretary's request for a stay and denied the plaintiffs' request for retroactive relief back to February 26, 1979, the Secretary appealed to the Ninth Circuit.
The Ninth Circuit stayed further consideration of the case pending the Supreme Court's decision on the jurisdictional issues in Bowen v. Owens and Heckler v. City of New York. Subsequently, after the Supreme Court upheld the facial validity of the severity regulations in Bowen v. Yuckert, 482 U.S. 137 (1987), the Ninth Circuit vacated the preliminary injunction and remanded the case to the district court for further proceedings in light of Yuckert.
On December 4, 1989, the district court entered an order finding that the Secretary systematically misapplied the severity regulations by requiring more than a de minimis standard at step two as evidenced by the policies stated in Social Security Rulings (SSRs) 82-55 and 82-56. The court also found that the Secretary's pre-December 1, 1984 policy of not considering the combined effect of an individual's multiple “not severe” impairments violated the Social Security Act. The court remanded the case to a magistrate judge for further consideration of whether relief should be granted to individuals who failed to exhaust administrative remedies after the complaint was filed.
On October 3, 1990, the district court adopted the magistrate judge's recommendation and found that waiver of exhaustion was appropriate and that relief should be granted to all class members whose claims were pending on the date the complaint was filed. On June 21, 1991, the district court approved the parties' jointly submitted Stipulation and Order setting forth the terms for the implementation of relief to class members not yet afforded relief under the preliminary injunction (Attachment 1).
III. Guiding Principles
Under Smith, the Secretary will redetermine the claims of those persons who (1) respond to notice informing them of the opportunity for review and (2) are determined to be class members after screening (see Part V below). The Disability Determination Service (DDS) that made the original determination that forms the basis of the Smith class membership will, in most cases, screen for class membership and perform the court-ordered readjudications regardless of the level of administrative review that last decided the claim.
EXCEPTION:
The DDS servicing the claimant's current address will screen for class membership and perform the readjudication if
(1) the claimant has moved since the original determination but is still residing in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington); or
(2) a face-to-face review is appropriate; i.e., cessation cases.
OHA will screen cases and perform readjudications under limited circumstances (see Part V.B. below).
Cases readjudicated by the DDS will be processed at the reconsideration level regardless of the final level at which the case was previously decided. Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).
Smith does not require any change in OHA's adjudicatory policies or practices because SSR 85-28 remains the proper standard for adjudicating claims at step two of the sequential evaluation.
IV. Definition of Class
Except as noted below, for purposes of implementing the June 21, 1991 order, the Smith class includes all persons who resided in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington), between October 28, 1983, and April 5, 1984, inclusive, and had an application for disability benefits under titles II or XVI denied, or had disability benefits terminated, based upon a finding that the individual did not have a severe impairment.
EXCEPTION:
A person is not a class member if
(1) the last administrative denial or termination the individual received on the claim was not based on a finding that the individual did not have a severe impairment;
(2) the last administrative denial or termination the individual received on the claim was issued after April 5, 1984; or
(3) the individual had a subsequent claim denied after April 5, 1984, and the onset date alleged in connection with the subsequent claim is on or before the onset date alleged in connection with the claim.
V. Determination of Class Membership and Preadjudication Actions
A. Non-OHA Actions
Notification
On October 23, 1991, SSA sent notices to all potential class members identified by computer run. Individuals have 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Smith Stipulation and Order. Notices returned as undeliverable will be mailed a second time if SSA obtains an updated address.
The Office of Disability and International Operations (ODIO) and the Program Service Centers (PSCs) will send all untimely responses to the servicing Social Security field office (FO) (i.e., district office or branch office) to develop good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411.
Alert and Folder Retrieval Process
Litigation Staff in the Office of Policy and Planning will track all response forms and send alerts to ODIO and the PSCs to use in locating claim folders. See Attachment 2 for a sample Smith alert.
In most instances, ODIO or the PSCs will associate the Smith alert and the claimant's response form with the claim folder(s) and forward the folder to the appropriate DDS (see Part III above) for screening and readjudication.
Alerts Sent to OHA
If ODIO or the PSCs 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).
ODIO or the PSCs will send all alerts potentially within OHA jurisdiction and related prior claim files, 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 CoordinatorNOTE:
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 OAO Class Action Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final class membership reconciliation.
Folder Reconstruction
Generally, ODIO or the PSCs will initiate any necessary reconstruction of prior claim files through the servicing FO. Consequently, OHA requests for reconstruction of potential Smith class member cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the claim would not confer class membership. However, if it becomes necessary for OHA to request reconstruction, the OHA component (the Hearing Office (HO) or the OAO Branch) will forward the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) to the servicing FO, along with documentation of attempts to locate the file and a covering memorandum requesting that the reconstructed file be forwarded to OHA. HOs will route any reconstruction requests directly to the servicing FOs. The OAO branch will also route reconstruction requests directly to the servicing FOs and send copies of all requests to the OAO Class Action Coordinator. For Civil Action Tracking System 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:
Litigation Staff
Office of Policy and Planning
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 21235
ATTN: Smith CoordinatorThe 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 the receipt of the reconstructed file, the HO or OAO, as appropriate, will forward the class action material, including the alert, unneeded claim files, if any, and the reconstruction request to the OAO Class Action Coordinator, along with a copy of the action on the pending claim (see V.B.2.a. below). For additional information on reconstruction procedures, see the Generic Class Action Implementation Instructions, I-1-7-5C.
Class Membership Denials
The Sacramento, California (Downtown) district office, located at 8351 Folsom Boulevard, P.O. Box 269048, Sacramento, California 95826, will hold all non-class member claim folders pending review by class counsel. Upon review of the folders, class counsel will contact the Office of the General Counsel (OGC) directly to resolve class membership disputes.
B. OHA Actions
Pre-Screening Actions
Current Claim in OHA
As provided in Part V.A.3 above, if there is a current claim pending or stored at OHA, the OAO Class Action Coordinator will receive the alert and related Smith 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 use Attachment 3 to forward the alert and the prior claim file(s) to the HO for screening. (Part V.B.2.a. below provides instructions to the HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)
If the current claim is before the Appeals Council, or is located in an OAO branch mini-docket or in the OAO Docket and Files Branch, the Coordinator will use Attachment 3 to forward the alert and prior claim file(s) to the appropriate OAO branch for screening. (Part V.B.2.a. below provides instructions to the OAO branches regarding the action to be taken if they receive an alert package from the OAO Class Action Coordinator 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 its claim file search and arrange for alert transfer or file reconstruction, as necessary.
Current Claim Pending in Court
If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on another claim, the Coordinator will forward the alert and any accompanying claim file(s) to the appropriate Court Case Preparation and Review Branch (CCPRB) for screening using Attachment 3. See Part V.B.2.b. below for special screening instructions when a civil action is involved.
Screening
General Instructions
The screening component will associate the alert, if any, and any prior claim file(s) with the claim file(s) in its possession and complete the screening sheet (see Attachment 4) as follows:
consider all applications denied (including res judicata denials/dismissals) during the Smith timeframe;
follow all instructions on the screening sheet and the screening sheet instructions;
sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and,
if the screening component is an OHA Headquarters component, 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 forward a copy of the screening sheet to the Division of Litigation Analysis and Implementation (DLAI)). If the screening component is an HO, forward a copy of the screening sheet directly to DLAI at the following address:
Office of Hearings and Appeals
Division of Litigation Analysis and Implementation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3255HO personnel may also forward material by telefax to DLAI at (703) 305-0655. (DLAI will retain a copy of each screening sheet and forward a copy to the OAO Class Action Coordinator and to Litigation Staff.)
If the HO receives an alert only, or an alert associated with a prior claim file(s), and the HO 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 prior claim file(s) to the responsible OAO branch for screening, using Attachment 3. If the file(s) is no longer in OHA, the Coordinator will use Attachment 5 to send the alert and any accompanying prior claim file(s) to the non-OHA location and request that the file(s) be forwarded to the appropriate DDS for screening.
If the OAO branch receives an alert only, or an alert associated with a prior claim file(s), and the branch no longer has the current claim file (and it is not located in an OAO branch mini-docket or in 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 3 to forward the alert and any accompanying prior claim file(s) to the current OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 5 to forward the alert and any accompanying prior claim file(s) to the non-OHA location and request that the file(s) be forwarded to the appropriate DDS for screening. The OAO branch will also advise the OAO Class Action Coordinator of its actions.
NOTE:
Final determinations or decisions made after April 5, 1984, on a claim filed by a potential class member may adjudicate the same timeframe covered by the Smith claim. Instead of applying the doctrine of administrative res judicata to the claim, these claims should be denied class membership.
Special OAO Screening Instructions if a Civil Action Is Involved
As noted in Part V.B.1. above, the CCPRB will screen for Smith class membership when a civil action is involved. The CCPRB's class membership determination will dictate the appropriate post-screening action.
If the current claim pending in court was adjudicated in accordance with SSR 85-28 and resolved all Smith issues, the claimant is not a Smith class member. The CCPRB will follow the instructions in Part V.B.3.a. below for processing non-class member claims.
If the current claim pending in court was adjudicated in accordance with SSR 85-28, but did not resolve all Smith issue(s), e.g., there is a prior (inactive) Smith claim and the current claim does not include the entire period covered by the Smith claim, the CCPRB will forward the Smith claim to the appropriate DDS (see Part III above) for separate review. The CCPRB will modify the case flag in Attachment 9 to indicate that the pending court case does not resolve all Smith issues and that the Smith class member claim is being forwarded for separate processing. The CCPRB will notify the OAO Class Action Coordinator of this action.
If the final administrative decision on the claim pending in court was not adjudicated in accordance with SSR 85-28 or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings and consolidate the claims.
NOTE:
The CCPRB will immediately notify OGC if the pending court case is a th class member claim so that OGC can notify the claimant of the option to have the case remanded for readjudication.
Post-Screening Actions
Non Class Member Cases
If the screening component determines that the individual is not a class member, the component will:
notify the individual, and representative, if any, of non-class membership using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);
NOTE:
Include the address and telephone number of the servicing Social Security field office at the top of Attachment 6.
retain a copy of the notice in the claim file;
send a copy of the notice to:
Northern California Lawyers for Civil Justice
Attn: Curtis L. Child, Esq.
Bess M. Brewer, Esq.
Eugenie D. Mitchell, Esq.
604 12th Street
Sacramento, CA 95814retain the claim file(s) for 90 days pending a possible class membership dispute;
if the screening component is not an OHA Headquarters component, and the file(s) is not needed for adjudication, forward the file(s) for storage to OAO at the address in Part V.A.3. above; and,
if class counsel makes a timely request for review, send the non-class member claim file(s) to the Sacramento, California (Downtown) district office using the pre-addressed route slip in Attachment 7.
NOTE:
Photocopy any material in the prior file that is relevant to the current claim and place it in the current claim file before shipping the prior file.
if SSA, through OGC, resolves the dispute in the claimant's favor: 1) the original screening component or Litigation Staff will prepare a revised screening sheet; 2) OHA jurisdiction cases will proceed in accordance with Part VI. below; 3) the rescreening component will notify DLAI, at the at the address in Part V.B.2. above, of the revised screening determination by forwarding a copy of the revised screening sheet to DLAI; and 4) DLAI will coordinate with the OAO Class Action Coordinator, as necessary. OGC will notify class counsel of the reversal of class membership, and class counsel will notify the claimant.
An individual who wishes to appeal a determination of non-class membership may do so only through class counsel, as explained in the notice (Attachment 6).
Cases Determined To Be Class Members
If the screening component determines that the individual is a class member, it will proceed with processing and adjudication in accordance with the instructions in Part VI below.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
The DDS will conduct the first Smith review except for cases consolidated at the OHA level (see Part VI.C below). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review). Except as otherwise noted in this instruction, ALJs should process and adjudicate requests for hearing on Smith DDS review cases in the same manner as for any other case.
B. OHA Adjudication of Class Member Claims
The following instruction applies to both consolidation cases in which the ALJ or Appeals Council conducts the Smith readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and Headquarters will process Smith class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.
Type of Review and Period To Be Considered
Pursuant to the Smith order, regardless of whether the claim under review is an initial claim or cessation case, the type of review to be conducted is a redetermination. The readjudication shall be a de novo reevaluation 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 decision(s) that forms the basis of the Smith class membership.
If the readjudication results in a favorable decision, the adjudicator will determine, under the medical improvement standard, whether the class member's disability has continued through the date of the readjudication (or through the date of onset of disability established in any allowance on a subsequent application).
If the evidence establishes that disability began only at some point after the administrative decision(s) that forms the basis of the Smith class membership, the class member must file a new application to establish eligibility. Use the standards in 20 CFR §§ 404.621 and 416.335 in determining whether a new application is timely filed.
Step Two of the Sequential Evaluation
Smith does not require any change in OHA's current adjudicatory policies or practices with respect to step two of the sequential evaluation. Effective with the enactment of the 1984 Amendments to the Social Security Act, OHA's adjudicators have considered the combined effects of individual “not severe” impairments in evaluating disability claims at step two. ALJs and the Appeals Council may, if appropriate, continue to deny or cease the disability claims of Ninth Circuit residents in accordance with 20 CFR §§ 404.1520(c), 404.1521, 416.920(c) and 416.921, as well as SSR 85-28. The then Acting Associate Commissioner's memorandum, dated February 21, 1991, (Attachment 8), regarding the proper standard for adjudicating claims at step two, remains in effect.
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 in OHA But No Current Action Pending
If a claim file (either a class member or a subsequent claim file) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO will associate the alert with the file and screen for class membership.
If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OAO will attach a Smith class member flag (see Attachment 9) to the outside of the file and send the claim file(s) to the appropriate DDS (see Part III above) for review of the Smith class member claim.
If less than 120 days have elapsed, OAO will attach a Smith class member flag to the outside of the file (see Attachment 9) to ensure that the case is routed to the appropriate DDS (see Part III above) after expiration of the retention period. Pending expiration of the retention period, OAO will also:
return unappealed ALJ decisions and dismissals to DFB, and
return unappealed Appeals Council denials to the appropriate OAO minidocket.
The respective OAO components will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the appropriate DDS (see Part III above) in a timely manner.
D. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims (Consolidation Procedures)
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 the Smith class member claim(s) with the current claim at the level at which the current claim is pending.
Current Claim Pending in the Hearing Office
Hearing Has Been Scheduled or Held, and All Remand Cases
Except as noted below, if a Smith class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Smith case with the appeal on the current claim.
EXCEPTIONS:
The ALJ will not consolidate the claims if
the current claim and the claim do not have any issues in common, or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow Part VI.D.2.c. below. If the claims are not consolidated, follow Part VI.D.2.d. below.
Hearing Not Scheduled
Except as noted below, if a Smith class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Smith claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Smith claim and the current claim to the DDS for further action (see Part VI.D.2.d. below).
EXCEPTION:
If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all issues raised by the application that makes the claimant a Smith class member, the ALJ will consolidate the claims.
If the claims are consolidated, follow Part VI.D.2.c. below. If the claims are not consolidated, follow Part VI.D.2.d. below.
Action if Claims Consolidated
If the ALJ decides to consolidate the current claim with the Smith claim(s), the HO will:
give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Smith claim raises an 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 Smith claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Smith claim;
issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Smith claim (the ALJ's decision will clearly indicate that the ALJ considered the Smith claim pursuant to the Smith court order); and,
send copies of the consolidated hearing decision to both:
Office of Hearings and Appeals
Division of Litigation Analysis and Implementation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3255
Action if Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the current claim with the Smith claim because a hearing has not yet been scheduled, the HO will:
dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 11 and the covering notice in Attachment 12; and
send both the Smith claim and the current claim to the appropriate DDS (see Part III above) for DDS consolidation and further action.
If the ALJ decides not to consolidate the current claim with the Smith claim because: 1) the claims do not have any issues in common, or 2) there is a court-ordered time limit, the ALJ will:
flag the Smith claim for DDS review using Attachment 10; immediately route it to the appropriate DDS (see Part III above) for adjudication; and retain a copy of Attachment 10 in the current claim file; and
take the necessary action to complete the record and issue a decision on the current claim.
Current Claim Pending at the Appeals Council
The action the Appeals Council takes on the current claim dictates the disposition of the Smith claim. Therefore, OAO must keep the claim folders together until the Appeals Council completes its action on the subsequent claim. The following sections identify the possible Appeals Council action on the current claim and the appropriate corresponding action on the Smith claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — No Smith Issue(s) Will Remain Unresolved.
This will usually arise when the current claim duplicates the Smith review claim, i.e., the Smith claim raises an issue of disability for a period covered by the current claim, and the current claim has been adjudicated in accordance with the provisions of SSR 85-28 and the current severity regulations, i.e., 20 CFR §§ 404.1520(c), 404.1521, 404.1523, 416.920(c), 416.921 and/or 416.923. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action.
The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolves both the current claim and the Smith claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — Smith Issue(s) Will Remain Unresolved.
This will usually arise when the current claim does not duplicate the Smith claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Smith claim. For example, the Smith claim raises the issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim in accordance with the provisions of SSR 85-28.
OAO staff will attach a Smith case flag (Attachment 9) to the Smith claim, immediately route it to the appropriate DDS (see Part III above) for adjudication, and retain a copy of Attachment 9 in the current claim file. OAO will modify Attachment 9 to indicate that the Appeals Council action on the current claim does not resolve all Smith issues and that the Smith class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ or Appeals Council decision or order on the current claim and the exhibit list used for the ALJ or Appeals Council decision.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim — No Smith 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 Smith class member, the Appeals Council will proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Smith claim, and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Smith claim pursuant to the Smith court order. For class action reporting purposes, the Appeals Council will send copies of its decision to the Smith coordinators listed in Part VI.D.2.c. above.
d. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — Smith Issue(s) Will Remain Unresolved.
If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Smith claim, the Appeals Council will proceed with its intended action. In this instance, the Appeals Council will request the effectuating component to forward the claim folders to the appropriate DDS (see Part III above) after the Appeals Council's decision is effectuated.
OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: "Smith court case review needed — following effectuation forward the attached combined folders to (insert address of the DDS having jurisdiction for review of the Smith class member claim)."
e. Appeals Council Intends to Remand the Current Claim to an ALJ.
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 Smith claim with the action on the current claim pursuant to the instructions in Part VI.D.2.a. above.
EXCEPTIONS:
The Appeals Council will not direct the ALJ to consolidate the claim if
the current (subsequent) claim and the claim Smith do not have any issues in common, or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.
If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Smith class member claim to the appropriate DDS (see Part III above) for separate review. The case flag in Attachment 10 should be modified to indicate that the Appeals Council, rather than an ALJ, is forwarding the class member claim for separate processing.
E. Copy Requirements
For all cases in which OHA is the first level of review for the Smith claim (i.e., the Appeals Council or an ALJ consolidates the Smith claim with action on a current claim or a class member only claim is pending at OHA), HO or OAO personnel, as appropriate, must send a copy of any OHA decision to the Smith coordinators at the addresses listed in Part VI.D.2.c. above.
VII. Case Coding
HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI. above), HO personnel will not code the prior claim as a separate hearing request but will change the hearing type on the current claim to a “reopening.”
To identify class member cases in HOTS, HO personnel will code “SM” 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 (e.g., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA), as reported by HOs and OAO to the Coordinator. See Part V.B.2.a. and HALLEX I-1-7-12 with respect to the reporting requirements.
IX. Inquiries
HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022.
Attachments
Stipulation and Order Dated June 21, 1991
Smith Court Case Flag/Alert
Route Slip or Case Flag for Screening
Smith Screening Sheet
Route Slip for Routing Class Member Alert (and Prior Claim Folder(s)) to ODIO or PSC — OHA No Longer Has Current Claim
Smith Non-Class Membership Notice
Route Slip for Non-class Membership Cases
Acting Associate Commissioner's Memorandum Dated February 21, 1991, Entitled “The Standard for Evaluating 'Not Severe' Impairments.”
Smith Class Member Flag for Headquarters Use (DDS Readjudication)
Smith Class Member Flag for HO Use (DDS Readjudication)
ALJ Dismissal Order to DDS
Cover Notice for ALJ Dismissal Order
Revised November 19, 1996