| Purpose | |
| Background | |
| Guiding Principles | |
| Stieberger Procedures For Application of Holdings in Published Second Circuit Disability Decisions | |
| Definition of the Class, Class Members Entitled to Reopening | |
| Receipt of Requests for Reopening from Potential Class Members | |
| Determination of Entitlement to Reopening and Preadjudication Actions | |
| Processing and Readjudication | |
| Case Coding | |
| Inquiries | |
| Judgment Approving Settlement Dated June 19, 1992 as Modified July 29, 1992, by Stipulation and Order | |
| July 2, 1992 Teletype From the Director, Litigation Staff, Office of the Deputy Commissioner for Program | |
| Manual of Second Circuit Disability Decisions | |
| Acknowledgment of Request for Stieberger Review | |
| Stieberger Court Cause Flag/Alert | |
| Notice of Non-Entitlement to Stieberger Reopening | |
| Stieberger Supplement | |
| Corroboration of Stieberger § 10(e)(5)(i)-(ii) Conditions Worksheet | |
| Stieberger Payment Period Examples | |
| Examples of Stieberger Cessation Case Readjudication Considerations and Guidance as to Whether an SSA-831 or SSA-833 is Proper | |
| Flag for Forwarding Prior Claim to DDS When the ALJ or Appeals Council Finds There Are No Common Issues for Consolidation | |
| Flag for Forwarding Prior Claim to DDS when the Appeals Council Intends to Dismiss, Deny Review, or Issue a Denial Decision on the Current Claim | |
| Parties' Stipulation for Remanding Court Case to SSA for Stieberger Review | |
| Order of the Appeals Council Remanding Court Case to ALJ |
ISSUED: February 21, 1997
This Temporary Instruction (TI) provides specific OHA instructions for implementing the June 19, 1992 judgment approving settlement, as modified July 29, 1992, of the United States District Court for the Southern District of New York in the Stieberger v. Sullivan class action involving the issue of acquiescence in Second Circuit disability decisions when adjudicating the disability claims of New York State residents.
Adjudicators throughout the country must be familiar with this TI because Stieberger class members entitled to reopening who now reside outside of New York State must have their cases processed in accordance with the requirements of the court's order.
This section provides general information on the history of the Stieberger class action litigation plus some general information about the settlement.
On August 19, 1985, the United States District Court for the Southern District of New York certified a statewide class of New York State residents (see Part V. below for class definition). The class action challenged the Secretary's1 acquiescence policies with regard to published decisions of the United States Court of Appeals for the Second Circuit that address the issue of whether an individual is disabled or that address the standards or procedures for making such determinations. The class action also challenged the Secretary's policies and practices concerning own motion review of decisions of selected Administrative Law Judges (ALJs).
Also on August 19, 1985, the district court granted, in part, the preliminary relief sought by plaintiffs. OHA issued TI 5-4-13 (originally designated Interim Circular No. 187) to comply with that order. Subsequently, OHA issued Supplement A on October 23, 1985, to give further instructions concerning the Second Circuit's decision in Bluvband v. Heckler, 730 F.2d 886 (1984). On March 26, 1986, OHA issued Supplement B concerning the Second Circuit's decision in Moore v. Secretary of Health and Human Services, 778 F.2d. 127 (1985).
On September 6, 1986, the Second Circuit vacated the district court's preliminary injunction on the ground that the relief granted in Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986), had removed the necessity for the injunction.
On May 29, 1990, the district court found that SSA was bound by the holdings of the courts of appeals in adjudicating subsequent cases in the same circuit and had engaged in an unlawful policy of “nonacquiescence.” Stieberger v. Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990).
The court held that SSA had “nonacquiesced” with respect to four specific holdings of the Second Circuit. In addition to the general treating physician rule set out in the Court of Appeals' second decision in Schisler v. Heckler, 851 F.2d 43 (2d Cir. 1988), the other nonacquiescence findings involved the Second Circuit's holdings to the effect that: 1) a disability decision cannot be based upon a report obtained after a hearing before an ALJ if the claimant against whom the report is introduced is not given an opportunity to cross-examine the author(s) of the report; 2) an ALJ may accord his personal observations of the claimant's physical and mental condition only limited weight in deciding the substantive issues in the case; and 3) the testimony of a claimant with a good work record claiming an inability to work because of a disability is to be deemed substantially credible. The court granted plaintiffs' motion for summary judgment to the extent it related to those particular holdings.
The court found that plaintiffs had not established “nonacquiescence” with regard to certain other holdings of the Second Circuit. The court denied plaintiffs' motion for summary judgment without prejudice to the extent that it related to the Second Circuit's holdings that: 1) a finding that the witness is not credible must be set forth with sufficient specificity to permit intelligible plenary review of the record; 2) the determination of another government agency that a claimant is disabled, while not binding upon SSA, is entitled to some weight and should be considered; and 3) a conclusory opinion by a pro se claimant's treating physician cannot be rejected unless the ALJ informs the claimant of his proposed action and provides an opportunity for the claimant to obtain a more detailed statement.
The court denied plaintiffs' motion for summary judgment with prejudice to the extent that it related to Second Circuit holdings that: 1) opinions of non-examining medical personnel cannot, in themselves, constitute substantial evidence to override the opinion of the treating source; 2) a treating physician's medical testimony need not be supported by objective clinical or laboratory evidence; 3) the testimony of a relative could be probative of certain issues about which the relative has knowledge; 4) ALJs have a duty to fully develop the record for pro se claimants; 5) ALJs must inform pro se claimants of their right to subpoena and cross-examine witnesses; and 6) an ALJ must inquire into a pro se claimant's previous disability and subjective complaints.
On June 19, 1992, the district court entered a judgment approving a negotiated settlement agreement. The court entered an order modifying the settlement on July 29, 1992. This TI attaches the judgment approving settlement, with its attachments, and the modifying order (Attachment A). The settlement agreement is effective for eight years (i.e., until June 19, 2000) although obligations to take action incurred during the pendency of the agreement continue.
The approved settlement agreement required SSA to publish an instruction (Attachment 1 to the settlement agreement (hereinafter simply identified as Attachment 1)) concerning the application of holdings in published Second Circuit disability decisions to the Social Security Act disability benefit claims of New York State residents. On July 2, 1992, the Director, Litigation Staff, of the former Office of the Deputy Commissioner for Programs, transmitted a teletype (Attachment B) to all individuals and offices involved in adjudicating Stieberger claims, to notify them of the settlement and publish the mandated instruction. Within days, the Director of Litigation Staff also distributed a Manual of Second Circuit Disability Decisions (hereinafter simply referred to as Manual) (Attachment C) to all affected decision makers and reviewers. Attachment 1 was reprinted in the Manual. As originally printed, the Manual contained excerpted quotations of the principal holdings of published Second Circuit disability decisions issued as of June 18, 1992.
The settlement also requires SSA to promptly provide each office of decision makers and reviewers of decisions with a copy of each published Second Circuit disability decision issued after June 17, 1992. This requirement sunsets on June 19, 2000. Pursuant to the settlement agreement, each office must maintain these copies in a volume that is readily accessible to decision makers and reviewers of decisions.
Since 1992, the Manual and volume of decisions have been updated with excerpts from the holdings of six subsequenyt Second Circuit decisions in the Manual and to add a copy of the decisions to the volume of decisions (Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993); Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995); Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995); Perez v. Chater, 77 F.3d 41 (2d Cir. 1996); Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996); and Bush v. Chater, 94 F.3d 40 (2d Cir. 1996). Detailed instructions concerning the procedures for applying the holdings in published Second Circuit disability decisions are set forth in Part IV. below.
The Stieberger settlement agreement provides both prospective and retroactive relief. The Stieberger settlement establishes procedures for applying the holdings of published Second Circuit disability decisions. These procedures, described below in Part IV., are to be followed for decision making in all disability claims arising in New York (i.e., in current and future claims, and not just in claims that are subject to reopening under the settlement).
Under the Stieberger settlement agreement, class members will have an opportunity to have certain cases reopened and readjudicated (see Part V. below). SSA has identified potential class members and notified them of the opportunity to request reopening of their claims. Potential class members may also request reopening at SSA field offices (FOs), hearing offices (HOs) and the Appeals Council, and SSA must provide written acknowledgments of the requests (see Part VI. below). SSA will reopen and readjudicate the claims of class members who are determined after screening to be entitled to readjudication (see Part VII. below)
In general, screening will be performed by either the Office of Disability and International Operations (ODIO) or an FO, and the New York State Disability Determination Services (DDS) will reopen a class member's claim and readjudicate it de novo at the reconsideration level. OHA will perform readjudications under limited circumstances if the Stieberger claim subject to reopening is consolidated with a claim pending at the OHA level (see Parts VIII. I. and J. below). Class members who receive adverse DDS readjudication determinations will have full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review).
The Stieberger settlement contains several unique features that affect development and payment and involve certain presumptions relating to establishing a disability onset date, insured status and work activity. These issues are touched on briefly in this Part and addressed in greater detail in Part VIII. below.
The Stieberger settlement is intended to generally limit evidence development to a basic period that begins with the 48th month prior to the date of SSA's receipt of a class member's request for Stieberger reopening and runs through the date of readjudication. This is referred to as the “Development Period.” The 48-month period may be adjusted if certain exclusions apply and may begin earlier or later than the 48th month. If the claimant is found “not disabled” during the Development Period and certain conditions are met, SSA may have to develop back to the alleged onset of disability (AOD) in the earliest title II Stieberger claim, the date of filing in the earliest title XVI Stieberger claim, or to the date of the comparison point decision in cessation cases. The actual Stieberger claim files will only be retrieved and associated with the readjudication folders if it is necessary to develop all the way back to the aforementioned dates. Part VIII. B. below provides a more detailed discussion of the Stieberger Development Period.
The Stieberger settlement also limits benefit payments. The settlement limits Stieberger payments for months prior to December 1, 1991, to a period not to exceed 48 months. This is referred to as the “Payment Period.” The Payment Period will cover the 48 months immediately prior to December 1, 1991, if the claimant is found disabled for that period, unless certain payment period exclusions (e.g., months for which the claimant has already received benefits) require an earlier Payment Period. However, in no case may payment be made for any period prior to the first day of potential entitlement or eligibility on the earliest Stieberger claim. Benefits payable pursuant to a Stieberger reopening will never exceed 48 months for the period prior to December 1, 1991; however, less than 48 months of payments is possible. Because the factors affecting the computation of the Payment Period for title II and title XVI claims are different, a concurrent case may have different Payment Periods under each title. SSA will continue (or begin) benefits after November 30, 1991, if the claimant continues to meet SSA's disability entitlement and eligibility criteria. Part VIII. D. below provides a more detailed discussion of the Stieberger Payment Period.
With respect to establishing a disability onset date, the Stieberger onset date will usually be an “administrative onset” date, selected to permit payment in the first month of the Stieberger Payment Period. If the claimant is found to be disabled back to the start of the Development Period, his or her payment period will ordinarily start with December 1987. For Childhood Disability Benefit (CDB) claims and other no waiting period cases and for title XVI disability cases, when a finding of disability is warranted, the claimant will be presumed disabled as of the first day of the first month of the Payment Period. For all other title II disability cases, when a finding of disability is warranted, the claimant will be presumed disabled as of the first day of the fifth month before the first month of the Payment Period. Because of this unique feature of the settlement, the Stieberger onset will usually have no relation to the actual AOD. The Stieberger onset will also be more closely related to the Payment Period than the Development Period. Part VIII. E. below provides additional discussion of the Stieberger onset date and its relationship to the Stieberger Payment Period.
For purposes of the Stieberger adjudication of title II cases, a class member generally will be presumed to have insured status as of the Stieberger onset if he or she was insured as of the AOD of the claim that resulted in entitlement to relief. However, in those cases where the Stieberger file must be retrieved and developed all the way back to the AOD, actual insured status will be determined rather than presumed and disability must have begun prior to the date last insured. Part VIII. F. below covers this instruction regarding insured status.
With respect to work activity, work activity prior to December 1, 1991, will be considered in calculating the Development Period and certain presumptions will be applied. Also, work activity prior to December 1, 1991, will be considered in making determinations of initial disability but will not be used in assessing trial work months or in otherwise making determinations of substantial activity (SGA). This restriction, however, does not apply to work activity performed after November 30, 1991, or while the class member was in payment status based on another claim and the work was already counted as trial work or SGA. Part VIII. C. below provides a more detailed discussion of these work activity considerations.
Generally, the FO will be responsible for computing the Development and Payment Periods and identifying the potential Stieberger administrative onset date prior to sending the case to the DDS for readjudication. SSA has developed a Worksheet and examples for use in calculating the relative periods and dates and they are included as attachments to this TI and expressly referenced in Part VIII. below. OHA adjudicators will need to become familiar with these principles and related calculations in order to resolve Stieberger issues that are appealed to OHA.
Finally, the settlement agreement contains certain other requirements that adjudicators must follow in deciding the disability claims of both current and former New York State residents.
Adjudicators shall not preclude the determination of whether the claimant is disabled on the ground that the issue had previously been determined administratively in considering a prior claim for benefits between October 1, 1981, and July 2, 1992, inclusive, (i.e., apply res judicata), unless one of the following exceptions apply:
the claimant was not a resident of New York State at the time of the prior administrative determination;
an action for judicial review or administrative appeal of the prior determination was filed or would have been timely on orr after July 2, 1992; or
the issue to which preclusion applies concerns any issue other than medical or vocational issues, such as the assets, incomme, quarters of coverage, earnings of the claimant, fraud, or whether the claimant had engaged in SGA.
NOTE:
These court-approved provisions concerning res judicata must be followed in deciding the disability claims of both current and former New York State residents during the effective life of the settlement agreement. The application of these provisions is not just limited to the readjudication of the claims of class members entitled to reopening.
As the Director, Litigation Staff, of the former Office of the Deputy Commissioner for Programs, advised adjudicators in the teletype dated July 2, 1992 (Attachment B), pursuant to paragraph 22 of the settlement agreement, POMS and HALLEX instructions related to the 1985 Stieberger preliminary injunction (including HALLEX TIs 5-4-13, 5-4-13 Supplement A and 5-4-13 Supplement B) are rescinded. In addition, pursuant to paragraph 6 of the settlement agreement, any instructions that could in any way be interpreted as calling for “nonacquiescence” in holdings of the Second Circuit in disability cases are rescinded and are no longer of force or effect. (SSA does not believe such instructions exist; this further reminder is simply precautionary.)
The Stieberger settlement agreement requires all persons who decide Social Security Act disability benefit claims of New York State residents, or who review such decisions, to follow and apply the published holdings of the United States Court of Appeals for the Second Circuit as explained below; decisions are not followed and applied, however, when SSA issues written instructions to the contrary (concerning a particular published Second Circuit disability holding) (see D. below).
As referenced in Part II. above, paragraph 3 of the approved settlement agreement required SSA to publish an instruction (Attachment 1) concerning the application of published Second Circuit decisions to the Social Security Act disability benefit claims of New York State residents. (Attachment 1 can be found in its original form at Attachment A of this TI as Attachment 1 to the settlement agreement; Attachment 1 can also be found in its reprinted form, at Attachment C, as part of the Manual of Second Circuit Disability Decisions.) Paragraph 4 required SSA to provide each office of decision makers and reviewers of decisions with a copy of the settlement agreement (Attachment A).
Attachment 1 instructs, among other things, that the holdings in published Second Circuit disability decisions must be applied at all levels of administrative decision making and review in adjudicating or reviewing the title II and/or title XVI claims for disability benefits filed by New York State residents. The Attachment 1 instructions are binding on all personnel, including state employees, ALJs, Appeals Council Administrative Appeals Judges, quality assurance staff, and all other personnel who process, render decisions on, or review claims of New York residents for disability benefits under the Social Security Act. Adjudicators must apply the published Second Circuit disability holdings in good faith and to the best of their ability and understanding whether or not they view them as correct or sound. Adjudicators must apply the holdings in a decision once the decision becomes effective. A decision of the Second Circuit generally becomes effective 522 days after the decision is issued by the court, unless a specific written instruction is issued that requires the decision to be applied earlier or later.
Under separate cover, all individuals involved in adjudicating the claims of New York State residents have received the court-approved Manual of Second Circuit Disability Decisions (Manual) (Attachment C). The Manual contains excerpted quotations of the principal holdings of published Second Circuit disability decisions issued as of June 18, 1992. Attachment 1 explains how to use the Manual and, as noted above, is reprinted in the Manual.
Each office of decision makers who decide the disability claims of New York State residents, and reviewers of those decisions, shall maintain a volume containing copies of all published Second Circuit disability decisions that are issued after June 17, 1992. SSA will provide each such office with a copy of each published Second Circuit disability decision promptly after it is issued by the court, for inclusion in the volume. The volume shall be readily accessible to decision makers, and reviewers of decisions, in each office.
Within ten days after the Second Circuit issues a mandate in a case that will result in a published opinion or designates the opinion for publication, whichever is later, SSA will distribute to affected disability decision makers and reviewers, for inclusion in the Manual, either a copy of the decision or an instruction.
An instruction will include a summary of the decision together with a directive to follow the decision. If copies of the court's opinion are initially distributed without an instruction, SSA Central Office (CO) will issue written instructions within 90 days after the Second Circuit issues its mandate in the case or designates the opinion for publication, whichever is later. Once SSA has issued an instruction, it may at any subsequent time issue further instructions. Any instruction will be included in the Manual.
Attachment 1 explains that decision makers should familiarize themselves with the Manual, with SSA's instructions on Second Circuit holdings, and with Second Circuit decisions as they are issued. Attachment 1 further explains that, while SSA will take the steps described above, decision makers must apply the holdings in published Second Circuit disability decisions even in the absence of an instruction, and even if the decisions or instructions are not included in the Manual. (For example, if an adjudicator becomes aware of a Second Circuit disability decision (e.g., a claimant draws it to the adjudicator's attention or the adjudicator receives notification of the decision from SSA), but the adjudicator has not yet received an instruction from SSA on how to apply the decision and the decision is not yet in the Manual, the adjudicator must nonetheless apply the holding(s) of that decision to all claims where it is relevant.)
NOTE:
As of the issuance date of this TI, SSA has updated the Manual and Volume of Second Circuit Disability Decisions six times. The first update involved the November 29, 1993 inclusion of the Second Circuit's August 23, 1993 holding and full text opinion in Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993). The second update involved the June 15, 1995 E-Mail instructions regarding the Second Circuit's April 19, 1995 holding and full text opinion in Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995). The third update involved the August 16, 1995 E-Mail of the Second Circuit's June 20, 1995 holding in Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995). The fourth update involved the April 22, 1996 transmission of the full text of the Second Circuit's February 22, 1996 opinion in Perez v. Chater, 77 F.3d 41 (2d Cir. 1996). On July 3, 1996, SSA issued a teletype instruction in Perez. The fifth update involved the October 17, 1996 teletype instruction regarding the August 14, 1996 opinion in Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996). The sixth update involved the October 22, 1996 teletype instruction regarding Bush v. Chater, 94 F.3d 40 (2d Cir. 1996).
If further action with respect to rehearing or appeal is pending in a Second Circuit disability decision, SSA may instruct decision makers not to apply all or some of the holdings stated in that decision. The specific instruction will explain which holdings are not to be applied and identify the issues addressed by those holdings. Those instructions will be published in the Federal Register.
When such instructions are issued, decision makers must maintain a list of disability claims determinations or decisions that may be affected because the Second Circuit holding is not applied. Any notice sent to claimants on the list, denying benefits in whole or in part, must include the following language:
If you do not agree with this decision, you can appeal. You must ask for an appeal within 60 days.
You should know that we decided your claim without applying all of what the court said about the law in ______________. ____________ is a recent court ruling that we do not consider final because it may be reviewed further by the courts. If it becomes final, we may contact you again.
If you disagree with our decision in your case, do not wait for us to contact you. You should appeal within 60 days of the date you receive this notice. If you do not appeal within 60 days, you may lose benefits.
NOTE:
Appeals Council notices denying a request for review, as well as Appeals Council decisions, must include this language.
As set forth in paragraph D. 3. of Attachment 1, when no further judicial review of a Second Circuit decision will occur, SSA will promptly (within ten days from the date that the Second Circuit disability decision is no longer subject to further review or within ten days from the date a final decision on the merits is rendered) rescind or modify any instructions issued pursuant to D. above, and will advise decision makers and reviewers of decisions about the final decision in the case. The instruction rescinding or modifying the previous instruction not to apply a holding will be published in the Federal Register.
If the instruction not to apply a holding in a published Second Circuit disability decision is rescinded or modified, the responsible level of adjudication will, where appropriate, promptly retrieve and readjudicate the following claims:
all listed claims, and
the claim of any individual who shows that his or her decision made after the effective date of the instruction not to apply the holding may have been affected by the application of the final court decision.
The readjudication shall assess disability for only the time period covered by the claim decision under review, unless the application of the final court decision requires development of the evidence. When development of the evidence is required, the readjudication shall also assess current disability. The individual will retain full appeal rights with respect to the determination or decision on readjudication.
However, if review results in a determination or decision that the final court decision is inapplicable to the individual's case, the individual may only appeal the issue of whether or not the final court decision is applicable to the individual's case.
Notwithstanding the provisions of the settlement agreement regarding the application of Second Circuit disability decisions, SSA may issue or rescind Acquiescence Rulings or relitigate issues pursuant to 20 CFR §§ 404.985 and 416.1485.
On August 19, 1985, the United States District Court for the Southern District of New York certified a statewide class, as subsequently modified on December 20, 1985, defined as:
All New York State residents whose claims for benefits or continuation of benefits have been, or will be denied or terminated since October 1, 1981, based on a determination that they do not have a disability that prevents them from engaging in substantial gainful activity and whose benefits have not been granted or restored through subsequent appeals.
Potential class members may request reopening in response to a notice from SSA or by self-identifying at any SSA office. For purposes of implementing the settlement agreement, class members who meet the following criteria will have an opportunity to have their claims reopened and readjudicated:
the class member had a disability claim finally denied or terminated,
at any administrative level between October 1, 1981, and October 17, 1985, inclusive; or
at the Administrative Law Judge or Appeals Council level between October 18, 1985, and July 2, 1992, inclusive; and
the class member was a New York State resident at the time of the denial or termination; and
the disability claim was denied or terminated on the ground that the class member was not, or was no longer, disabled (denials or terminations for fraud, quarters of coverage, excess income or resources, earnings at the SGA level, or for other reasons unrelated to disability are not included).
The following class member claims are not subject to reopening:
claims that were the subject of a final decision or determination by SSA on the merits on a date when the individual no longer resided in New York State;
claims for which the denial or termination of benefits was affirmed on the merits by a final decision of a federal court, unless the claim was pending in court as of September 1, 1992, and the claimant never received notice from the United States Attorney that he or she had a right to have that claim remanded for further administrative proceedings;
title II claims (that otherwise afford class membership) that were already reevaluated under another class action after July 2, 1992, and the reevaluation determined that the claimant was not disabled as of the date last insured;
title II claims in which there was a subsequent claim with a final determination or decision on the merits issued after July 2, 1992, that the claimant was not disabled as of the date last insured;
claims (that otherwise afford class membership) that were already reevaluated under other class actions provided that the reevaluation in the other class action:
occurred after July 2, 1992;
covered the time periods for which payment is possible under Stieberger and did not restrict payments for such time periods;
considered evidence to the extent provided for in the development requirements of Stieberger; and
afforded the claimant full appeal rights.
claims, in which there was:
a subsequent claim that covered the issues and time period at issue in the prior Stieberger claim, andd
the subsequent claim was decided after July 2, 1992.
On March 8, 1993, and in subsequent mailings, SSA CO sent notices to potential class members identified by computer run. Individuals had 180 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Stieberger settlement agreement. In addition to requesting Stieberger relief in response to a notice, under the Stieberger settlement agreement, potential class members also could and may continue to request reopening of a prior claim at any SSA FO, HO or the Appeals Council. The potential class member may make the request in writing, by telephone or in person. Any response to the class notice that is ambiguous or unclear will be construed as a request for Stieberger relief. SSA must acknowledge the request in writing.
If an HO or the Appeals Council receives a request for reopening of a claim under the Stieberger settlement agreement, it will take the following action:
record the claimant's name, Social Security Number, address, date of receipt of the request, and representative's name and address, if any;
for individuals who request reopening in person, provide the claimant and representative, if any, written, dated substantiation that the request was received;
for individuals who request reopening in writing or by telephone, do not provide any written, dated substantiation that the request for reopening was received; SSA CO will provide a written acknowledgment (Attachment D) that a request for reopening was received to all individuals other than those who request reopening in person; and
forward the above information and any written request for reopening on a biweekly basis to:
Division of Litigation Analysis and ImplementationNOTE:
HOs should send this material via E-Mail to S3GK1 OPPE/DLAI at ~S3GA04, if practicable.
If an HO or the Appeals Council receives a request for Stieberger reopening in conjunction with an action on a current claim, it will follow the procedures set forth above. The HO or the Appeals Council will inform the claimant, and representative, if any, that the Stieberger reopening will be processed separately from the current claim and that such separate Stieberger processing is not the same as an appeal on the current claim and that a failure to pursue all appeal rights in connection with the current claim could result in a loss of benefits. See Part VIII. J. 1. below for further instructions. Also, if the request for Stieberger reopening is not timely filed, the HO or the Appeals Council should obtain a “good cause” statement concurrent with accepting the request for reopening.
The Division of Litigation Analysis and Implementation will forward the information and requests to SSA CO (Litigation Staff) as received, for coordination of the written acknowledgment, as necessary, and input into the SSA Class Action Tracking System (CATS).
Undeliverable notices were returned to CO and, as required by the settlement agreement, SSA secured updated addresses from the New York Department of Social Services' records. New notices were mailed to each potential class member for whom any updated address was received. Undeliverables from the second mailing will be given to class counsel so that they can attempt to locate new addresses for another mailing.
SSA CO will track all response forms and the CATS will generate alerts for all responses. (See Attachment E for a sample Stieberger alert.) The alerts will be forwarded to the ODIO Class Action Section for processing.
If a request for relief is not timely, ODIO may request the FO to develop for “good cause” and return the material to SSA CO for a good cause determination. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411. Where the individual responds, by telephone or in person, more that 185 days after the Stieberger notice was generated, the SSA component receiving the response should include an SSA-5002 (report of contact) regarding the reason(s) for the late response and will send it with the response to ODIO (via the Division of Litigation Analysis and Implementation for OHA cases; see Part VI. above). For each case alerted, ODIO will prepare a green Stieberger responder jacket containing: 1) a reply form; 2) Stieberger Court Case Flag/CATS alert; 3) any medical or other evidence or forms submitted with the reply form (e.g., SSA 1696-U4, Appointment of Representative); 4) record of claims activity (e.g., MBR, FACT, SSR/STALE and OHAQ queries); 5) record of folder locations (e.g., AR-25, BDIQ, and ODIO Overnight queries); and 6) record of earnings (SEQY or similar extract). ODIO will separate potential class member cases into four categories: “Title Unknown,” “Subsequent Allowance,” “Civil Action Pending,” and “All Others.” ODIO will screen the “Title Unknown” and “Subsequent Allowance” cases and send notice of non-entitlement to relief. ODIO will forward the “Civil Action Pending” cases and the “All Others” to the FO for screening. ODIO will not retrieve the Stieberger claim files. Only the green Stieberger responder jacket will be forwarded to the FO. The only claims files that ODIO will retrieve and forward to the FO with the green responder jacket will be the subsequent allowance claim files in the “Subsequent Allowance” cases.
NOTE:
ODIO and the FOs will only screen a case out if query responses clearly indicate that the claimant is not entitled to reopening on any Stieberger class claim.
Using Attachment F, if the screening component determines that the individual is not a class member entitled to reopening, the component will notify the individual, and representative, if any, of the determination that he or she is not entitled to relief as a class member and furnish a copy of the dated notice to the Office of the General Counsel (OGC) at the address below.
If the individual disagrees with this determination he or she must notify OGC in writing within 60 days of receipt at the following address:
Office of the General CounselFOs also will accept on behalf of OGC an individual's written disagreement and forward it to OGC.
Failure to request review of the class membership determination in writing within 60 days of receipt makes the determination final, unless the individual demonstrates good cause for late notification of his/her disagreement with the determination.
The individual or his or her representative may request to inspect the administrative record on which the determination was based, and, as needed, the claim file.
SSA will notify the individual when the record and/or file is available for inspection. The individual will have 45 days from notification of record availability to inspect it at a mutually agreeable location.
OGC will notify class counsel of all disputes, and class counsel may also inspect the administrative record and/or claim file.
OGC will attempt to resolve all disputes through negotiation.
If the parties cannot resolve the dispute, OGC will send the individual, his or her representative, if any, and class counsel a notice confirming that the dispute cannot be resolved.
The confirmation notice will indicate that the individual has 60 days from receipt to request district court review. Class counsel may also request district court review. Failure to request district court review within 60 days of receiving the OGC confirmation notice renders SSA's determination final and not subject to further review.
NOTE:
If no protest of the non-class member determination is received within 180 days from the date of the notice of the determination (60-day limit, plus 120 days for a possible “good cause” late notification of the protest), the screening component will destroy the green responder jacket and queries, and route any other material according to normal procedures.
If ODIO determines that the individual is a class member entitled to reopening, it will forward the green responder jacket to the FO for processing. If the FO determines that the claimant is a class member entitled to reopening, it will proceed as described in Part VIII. below.
There are two types of Stieberger reopenings, “pipeline cases” and “non-pipeline cases.” One of the first things that the FO will do, when initiating the processing of a Stieberger reopening, will be to determine whether the case is a pipeline or non-pipeline case. This is an important first step because the processing will be very different depending on the type determination.
A Stieberger claim is a pipeline case if, as of the date of request for Stieberger review, either an administrative or judicial review had been requested on the Stieberger claim but no determination or decision had yet been issued on that request, OR a request for such administrative or judicial review would still have been timely if filed. Pipeline cases, including those that result in a favorable decision, will be processed in accordance with the normal case processing rules. Pipeline cases will be entitled to full development and reopening consideration at the level of review that they were last considered (unless consolidated with a current claim pending at another level of review in accordance with the instructions set forth in J. below). The special Stieberger processing rules set forth in this HALLEX TI do not apply to pipeline cases.
Non-pipeline cases are all other Stieberger retroactive cases that resulted in denials or cessations AND that satisfy the Stieberger class membership requirements for reopening. Unless consolidated with a current claim pending at OHA (see J. below), the New York DDS will usually process Stieberger non-pipeline cases. The special Stieberger processing rules set forth in this HALLEX TI apply. DDS determinations on the non-pipeline cases are fully appealable to the OHA and judicial levels of review.
After determining whether the Stieberger reopening is a pipeline or non-pipeline case, the next key processing step in the non-pipeline cases is to calculate the Development Period. This is a necessary step in order to know what period to cover in completing the disability interview report (SSA-3368-BK for initial claims and the SSA-454-BK for cessation cases). The FO will use the Development/Payment Period Worksheet (Attachment G) to compute the Development Period. (See B. below for more detailed information about calculating the Development Period.) (See G. below for special considerations involving cessation cases.)
After determining the Development Period, the FO will contact the class member and/or representative, if any, to obtain the disability interview report and medical release authorizations for the Development Period. At the time of the contact, the FO will offer the class member the opportunity to submit medical evidence covering the period from the beginning of the Stieberger Development Period through the present. If the claimant is currently entitled to an unreduced benefit or a disability benefit, the Development Period will only cover up to the beginning date of the current entitlement. The FO will accept any evidence, regardless of its date.
If the class member has a current claim pending at any administrative level at the time of the FO contact, the FO will also offer the individual the opportunity to object to consolidation of the Stieberger claim with the current claim. If the individual objects to consolidation at that time, the claims will not be consolidated. This is discussed further in J. 1. below.
In a limited number of cases, the FO may be required to consider work activity in determining the Development Period (see C. below). As the final action in contacting the class member, the FO will obtain the claimant's responses to the questions on a “Stieberger Supplement,” i.e., a form created to gather additional information needed to review Stieberger claims (Attachment H).
The medical questions in Part II at the Stieberger Supplement are designed for use in determining whether SSA will be required to retrieve the Stieberger claim file and develop all the way back to the earliest date covered by the Stieberger claim (i.e., AOD for title II, date of filing for title XVI) if the claimant is found not disabled for all or part of the Development Period.
The questions in Part III of the Stieberger Supplement elicit information about months that would affect the Payment Period, (i.e., months of felony-related confinement (title II) and months of absence from the United States and/or institutionalization (title XVI)).
The questions in Part IV of the Stieberger Supplement are designed to establish protective filing for any auxiliary beneficiaries.
After concluding its contact with the claimant, the FO will compute the Stieberger Payment Period using the same Development/Payment Period Worksheet. (See D. below for more detailed information about the Payment Period calculation.) Using the Development/Payment Period Worksheet, the FO will determine the potential Stieberger administrative onset date and enter it on both the Worksheet and the Disability Determination Transmittal (SSA-831-U3) that it will prepare in assembling the disability material in a “DIB jacket” that it will send to the DDS along with the green Stieberger response jacket.
Information available at the OHA level may materially affect the Development and/or Payment Periods or cause an ALJ or the Appeals Council to question the determinations made with respect to the Development and/or Periods or any of the other Stieberger issues. Accordingly, OHA adjudicators must be familiar with the complexities of the Stieberger issues and processing in order to hear and resolve any appealable issues.
As introduced in Part III. and discussed in A. above, SSA will reopen and redevelop retroactive Stieberger claims, but, in most cases, not for the entire retroactive period. For non-pipeline cases (see A. above), the settlement agreement limits how far back into the retroactive period SSA must develop the evidence. This limited period of development is called the Development Period.
In most cases, the Stieberger Development Period will begin with the 48th month immediately preceding the date of SSA's receipt of the class member's request for Stieberger reopening and end at the point of readjudication. In some cases, however, the Development Period may start earlier or later than the 48th month, or may even consist of two (or more) non-consecutive periods.
The FO is responsible for determining the Development Period and it must be calculated on a case-by-case basis using the Stieberger Development/Payment Period Worksheet (Attachment G). The Development Period may overlap, but will generally not be identical with, the Payment Period (see D. below).
The Stieberger Development Period generally starts with the later of:
for title II or title XVI claims, 48 months prior to the date that SSA receives the request for Stieberger reopening; OR
for title II claims, the date of onset alleged (or the date of cessation) in the earliest claim subject to Stieberger reopening; or
for title XVI claims, the date of filing (or the date of cessation) of the earliest claim subject to Stieberger reopening.
EXCEPTION:
If the class member is deceased, the Development Period begins with the later of:
for title II or title XVI claims, 48 months prior to the date of the class member's death;OR
for title II claims, the date of onset alleged (or date of cessation) in the earliest claim subject to Stieberger reopening; or
for title XVI claims, the date of filing (or date of cessation) of the earliest claim subject to Stieberger reopening.
In calculating the Stieberger Development Period and in counting back 48 months from the date SSA received the request for Stieberger review (or date of death, if the class member is deceased), the following periods will not be included:
periods that the class member was already entitled (even if in suspense) to unreduced title II benefits (i.e., unreduced “A”, “HA”, “DWB”, or “CDB”); or
periods of title XVI eligibility (even in suspense); or
periods of potential entitlement to title II benefits or title XVI payments, based on a claim pending at any administrative level or in Federal court, regardless of whether consolidation is possible or has occurred;
periods covered by a medical denial or cessation decision that was issued while the class member was not a New York State resident; or
years that the computer earnings query shows annual earnings levels that exceeded the SGA guidelines (see Part C. below for a more detailed discussion of how work activity may affect the Development Period).
If any of these periods are not counted, the Development Period will be extended back an equivalent period of time.
The Stieberger Development Period ends with the earlier of:
the date of readjudication; or
the date of current entitlement to title II or title XVI disability benefits or payments, unreduced title II retirement benefits, or title XVI aged payments.
In some cases, in accordance with ¶ 10(e)(5) of the Stieberger Settlement Agreement, it may be necessary to develop the record for the entire retroactive period.
a. The DDS must develop the record, for a ¶ 10(e)(5) exception, all the way back to the earliest retroactive date, if it is determined at any step of the sequential evaluation process that the class member was not disabled during all or part of the Development Period, i.e., the 48-month period plus the period from the date of receipt of the Stieberger request for reopening to the present, and if one of the following conditions is corroborated by the class member's answers to the medical questions asked on the Stieberger Supplement.
The individual had a chronic impairment during the Development Period and alleged that the impairment was more severe in the past, and more information is needed about any earlier acute phase (e.g., rheumatoid arthritis in major joints that was not active during the Development Period, or previously uncontrolled epilepsy, or diabetes that was under control during the Development Period); or
The individual's treating source(s) during the Development Period differed from the individual's treating source(s) prior to the Development Period, or the individual had no treating source during the Development Period, and it is learned that other evidence may be available (e.g., from an earlier treating source) that may attest to more serious impairment in the past.
NOTE:
Before developing the additional potential period of disability, the DDS must determine whether one of the conditions described in the bullets above has been corroborated by the combination of a statement from the class member, a medical report submitted by the class member and/or information in SSA's records. However, if the reopened case is a cessation case, then ¶ 10(e)(5) is deemed to be met.
If the ¶ 10(e)(5) conditions are not met, there is no need to develop for an earlier period. The DDS will develop and make a determination based on the Stieberger Development Period.
If the ¶ 10(e)(5) conditions are met, the DDS will return the green Stieberger responder jacket to the FO and request that the FO obtain the Stieberger claim file(s) and verify the class member's date last insured (DLI). The FO will:
Request the Stieberger claim file(s), or initiate reconstruction, if necessary;
Obtain Work Activity Reports (SSA-821s), as necessary;
Verify the DLI; and
Return the green responder jacket, etc., to the DDS.
Upon return of the case to the DDS, the DDS will:
Review the Stieberger claim file(s);
Attempt to develop the record where there are gaps or conflicts in the evidence;
Request any necessary additional information related to relevant gaps or conflicts from sources mentioned in the Stieberger claim file(s) (e.g., sources identified by the claimant); and
Adjudicate the earlier period (the entire Development Period) based on all the evidence of record.
If development leads to a determination that the individual was not disabled as of his or her date last insured, the claim will be adjudicated on that basis. If the individual was disabled as of the date last insured, further consideration will be given as to whether disability continued through the ending date of the Stieberger Development Period as calculated pursuant to B. 3. above. As appropriate, the adjudicator must establish either an actual or administrative onset date, as controlled by Payment Period considerations.
b. If an OHA adjudicator is required to address the Stieberger Settlement Agreement ¶ 10(e)(5) evidence development exception in connection with a Stieberger case that is pending at the OHA level, the OHA adjudicator shall retrieve the Stieberger file(s) or arrange for reconstruction, if necessary, to ensure full and fair consideration of the Stieberger claim, unless disability can otherwise be found and would result in full payment for the Stieberger Payment Period.
Disabled widow(er)s benefit (DWB) (including Surviving Divorced Spouses) and CDB claims require special handling under the Stieberger readjudication procedures because the development and payment limitations differ from the standard DWB and CDB development provisions.
Therefore, in establishing the Development Period for DWB and CDB claims, it is necessary to ignore the Stieberger development limitations and develop back to determine whether:
The DWB claimant had a disability that began within the 7-year prescribed period; or
The CDB claimant had a disability that began before age 22 (or the close of the 84-month period following the month in which the child's most recent entitlement to CDB benefits terminated because the child's disability ceased).
Periods of SGA are one of the exclusions listed in calculating the basic 48-month Development Period. SGA may cause the Development Period to begin more or less than 48 months prior to the date on which SSA received the class member's request for Stieberger review.
Because the question as to whether the Development Period has been properly established may be raised as an issue before an ALJ or the Appeals Council, OHA decision makers must understand the relationship between work activity and the Development Period.
As a developmental tolerance, SSA (including ALJs and the Appeals Council) will accept class members' allegations as to periods of employment, subsidy and earnings for periods prior to December 1, 1991, absent evidence to the contrary.
NOTE:
The green responder jacket will include an SEQY, which could provide evidence contrary to the class member's allegations. Decision makers should review the SEQY.
In initially determining SGA, the FO will assume, absent evidence to the contrary, that SEQY postings in excess of the SGA level for a particular year represent continuous work activity at the SGA level for all months of that year. These years are referred to as “Presumed SGA Years.” Years before 1990 with over $3,600 posted and years after 1989 with over $6,000 posted are Presumed SGA Years.
The FO will examine the SEQY, that is located in the green responder jacket, for years in which the annual earnings levels have exceeded the SGA guidelines. Such years will not be counted in calculating the beginning of the Development Period.
NOTE:
Work activity prior to December 1, 1991, will be used in making determinations of initial disability but will not be used in assessing trial work months or in otherwise making determinations of SGA. This restriction does not apply to work activity performed after November 30, 1991.
If the DDS becomes aware of work activity not reflected on the SEQY, that may affect the Development Period, it will return the case to the FO for further consideration and recalculation of the Development Period, if necessary.
Work activity will only result in an SGA denial if there is no period of non-SGA lasting at least 12 consecutive months subsequent to the alleged onset date (title II) or date of filing (title XVI).
Attachment J provides examples of how work activity and presumed SGA years affect the calculation of the Development Period.
As introduced in Part III. and discussed in A. above, the Stieberger settlement limits Stieberger payments for months prior to December 1, 1991, to a period not to exceed 48 months. This period is referred to as the Stieberger Payment Period. The Payment Period will cover the 48 months immediately before December 1, 1991, if the class member is found disabled for that period, unless certain payment exclusions (e.g., months for which the class member has already received benefits) require an earlier payment period. However, in no case may payment be made for any month prior to the first month of potential entitlement on the earliest Stieberger claim. Benefits are continued (or begun) after November 30, 1991, if the class member continues to meet SSA's disability entitlement and eligibility criteria.
The first month of the Payment Period is generally the later of:
December 1987; or
the earliest date of potential entitlement.
The FO is responsible for calculating the Stieberger Payment Period using the Development/Payment Period Worksheet (Attachment G). Because the factors affecting the computation of the Payment Period for title II and title XVI claims are different, a concurrent case may have different Payment Periods under each title and separate calculations must be made. However, the same Development/Payment Period Worksheet can be used.
In computing the Stieberger Payment Period for title II cases, the following periods will not be counted:
months the class member was already entitled to title II “A” (reduced or unreduced), “HA”, “CDB”, or “DWB” benefits;
months of title XVI eligibility including nonpayment months that occur during a period of title XVI eligibility;
months of potential entitlement to any type of benefit listed above, based on a pending claim;
months covered by a non-New York medical decision of denial (or cessation); and/or
months, any part of which, the individual was incarcerated after conviction for commission of a felony or an offense in the nature of a felony.
In computing the Stieberger Payment Period for title XVI cases, the following periods will not be counted:
months the class member was already entitled to title II “A” (reduced or unreduced), “HA”, “CDB”, or “DWB” benefits;
months of title XVI eligibility including nonpayment months that occur during a period of title XVI eligibility;
months of potential eligibility to title XVI payments based on a pending claim;
months covered by a non-New York medical denial or cessation decision;
months the class member would not be eligible for a title XVI payment due to institutionalization; and/or
months the class member would not be eligible for title XVI payment because he/she was out of the United States.
If any of these periods are not counted, extend the beginning date of the Payment Period back an equivalent period of time. However, payment will not be made for any period prior to the earliest period of entitlement or eligibility on the application on which the opportunity for reopening is established.
Attachment K provides examples of how the Payment Period is calculated in title II and title XVI cases.
As discussed in Part III., an actual disability onset date will not be established in most cases. Because of the unique provision of the Stieberger settlement agreement that limits benefit payments for months prior to December 1, 1991, to a period not to exceed 48 months, the Stieberger onset date will usually be an “administrative onset” date, selected to permit payment in the first month of the Stieberger Payment Period. In this regard, the Stieberger onset date will be more closely related to the Payment Period than the Development Period.
As mentioned in A. above, while completing the Stieberger Development/Payment Period Worksheet in the course of its first phase processing of a Stieberger non-pipeline reopening case, the FO will determine the potential Stieberger administrative onset date and enter it on both the Development/Payment Period Worksheet and the Disability Determination Transmittal (SSA-831-U3).
Unless the DDS must adjust the onset based on its development, the Stieberger onset date will be:
the first day of the fifth month prior to the first month of the Payment Period for title II waiting period cases; or
the first day of the first month of the Payment Period for title II CDB claims and other “no waiting period” cases; or
the first day of the first month of the Payment Period for title XVI claims.
If the DDS cannot establish disability for the entire Development Period, the ¶ 10(e)(5) exception may be met and the actual onset date would then need to be established. The Payment Period limitations, however, will still apply. When an actual onset date is established, the presumption of insured status (discussed in F. below) will not apply, i.e., the actual onset date must be prior to the DLI.
If the actual onset is later than the potential administrative onset shown on the Development/Payment Period Worksheet Summary, payments will be limited to the actual period of disability, after taking into consideration and applying the normal rules regarding any waiting period. If the actual onset date is earlier than the potential administrative onset, the administrative onset will be used and payment will be limited to the Payment Period calculated on the Worksheet.
If entitlement is limited to a closed period of disability because of a later medical denial on a non-New York case, both disability and entitlement end with the AOD (or date of filing if a title XVI claim) in the non-New York case. The entire period adjudicated in the non-New York case is a non-entitlement period. If the class member is currently disabled, a new period of disability may be established no earlier than the day after the date of the non-New York decision.
Further, the Stieberger onset date may be presumed when there is an allowance on a subsequent disability claim, as follows:
Where the established onset in a subsequent disability claim coincides with or is earlier than the Stieberger onset date and additional payment is possible based on the Stieberger claim, the subsequent allowance decision will be adopted.
Where the established onset is later than the Stieberger onset date, the file for the subsequent claim will be retrieved. Absent evidence to the contrary (e.g., a traumatic or acute onset, or a new impairment), the decision maker may presume that disability relates back to the Stieberger onset date and establish onset as of that date.
As discussed in Part III., for purposes of the Stieberger adjudication of title II claims, a class member generally will be presumed to have insured status as of the established Stieberger onset date if he or she was insured as of the AOD of the Stieberger claim.
As referred to in E. above, however, in those cases where an actual onset date is established, the presumption of insured status will not apply, i.e., the actual onset date must be prior to the DLI.
Readjudicating Stieberger cessation cases (title II and/or title XVI) requires the following special handling because of limitations on development and payment.
Adjudication of the Development Period generally is completed without retrieving the Stieberger claim file(s) using the adjudicatory standards applied to initial disability claims. However, if the Developmental Period extends back to the date of cessation in a Stieberger cessation case, special processing is needed; e.g., retrieving the Stieberger claim file(s), using the medical improvement review standard (MIRS), and deciding whether to make an initial disability determination (SSA-831) or a continuing disability/cessation determination (SSA-833)
If all or part of the Development Period cannot be allowed, the claimant is deemed, in cessation cases, to meet the ¶ 10(e)(5) criteria of the settlement and the case is developed back to the date of the comparison point decision using the Stieberger claim file(s) and any new evidence and is adjudicated back to the cessation date by applying the MIRS standard. The comparison point decision is the last favorable decision that preceded the cessation
If the case is adjudicated back to the date of cessation and the claimant is found to have a continuing disability, either a continuance or new allowance determination is prepared, depending on whether the beginning of the Payment Period is during the termination month in the Stieberger claim or later
If a claim is not continued or allowed based on MIRS, the possibility of a later allowance sometime during the reopened period is considered
Whether the DDS uses the MIRS will depend on whether the DDS is required to develop all the way back to the comparison point decision.
Whether an SSA-831 or an SSA-833 (which means having offered a face-to-face hearing) is prepared by the DDS depends on whether the determination is based on MIRS, and also on whether the 48-month limit on payments prior to December 1, 1991, prevents resumption of benefits in the month benefits were terminated in the Stieberger cessation case. Attachment L provides examples of Stieberger cessation case readjudication considerations and guidance on whether an SSA-831 or SSA-833 is the proper disability determination form for DDS to use in readjudicating the case.
In cases where there has been an allowance on a subsequent disability claim, in the absence of evidence to the contrary, it will be assumed that the favorable decision on the subsequent claim was correct. Development and readjudication of the Stieberger claim will be limited to the period up to the date of onset established in connection with the subsequent claim. However, if new evidence submitted or developed in connection with the Stieberger readjudication raises a question of continuing disability, adjudicators will not be barred from considering and deciding the issue under normal continuing disability review procedures.
In most cases, the New York DDS will conduct the Stieberger readjudication (even if the class member no longer resides in New York) except for cases consolidated at the OHA level (see J. 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).
If the class member currently resides outside of New York State, in readjudicating the Stieberger claim the New York DDS will apply the holdings in Second Circuit disability decisions in accordance with Attachment 1. See I. below for procedures OHA decision makers will follow in readjudicating the Stieberger claims of class members who currently reside outside of New York State.
Except as otherwise noted in this instruction, ALJs and the Appeals Council should process and adjudicate requests for hearing on Stieberger DDS review cases in the same manner as for any other case.
The following instructions apply to both consolidation cases in which the ALJ or Appeals Council conducts the first level of Stieberger readjudication and to DDS readjudication cases in which the claimant subsequently requests a hearing or Appeals Council review. However, they do not apply to the reopening readjudication of court cases remanded at the claimants' option pursuant to ¶ 10(b) of the settlement agreement or to other current or pipeline claims. See K. below.
Except as noted herein, HOs and the Appeals Council will process Stieberger class member cases according to all other current practices and procedures including coding, scheduling, developing evidence, routing, etc.
If the class member currently resides outside of New York State, in readjudicating the Stieberger claim, OHA decision makers will use the standards and procedures in effect in the state in which the individual resides at the time of the decision. OHA decision makers will apply the relevant portions of the HALLEX Circuit Court Case Reporter in accordance with normal operating procedures. OHA adjudicators will not apply the holdings in Second Circuit disability decisions in accordance with Attachment 1. See H. above for the procedures DDS decision makers will follow in readjudicating the Stieberger claims of class members who currently reside outside of New York State.
If the readjudication results in a favorable decision, the adjudicator will determine, under the medical improvement review 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 a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining standing to pursue a claim and distribution of any potential underpayment apply. See B. above on how to calculate the Development Period for deceased class members.
OHA adjudicators should be guided by the Development Period and Payment Period instructions that apply to the FO and DDS processing as set forth in A. through G. above. OHA adjudicators have a duty to update and develop the evidence as necessary.
OHA decisions on Stieberger class member claims must set forth the following information, in addition to the information that OHA decisions routinely include:
the dates of the periods for which disability was considered;
the dates of the periods for which disability is established;
the dates of the periods for which title II benefits or title XVI payments are being awarded; and
the basis for any finding of nondisability or denial of benefits.
Copies of all OHA decisions in Stieberger cases must be sent to both the:
Division of Litigation Analysisand
Litigation StaffIf a class member entitled to reopening has a current disability claim pending at any administrative level at the time of the FO contact, SSA may, unless the claimant objects, consolidate the Stieberger reopening claim with the current disability claim as follows:
in OHA, if the active claim is pending in OHA; or
at the reconsideration level, if the active claim is pending at the initial or reconsideration level.
If the claimant does not object, SSA retains the discretion as to whether or not the claims will be consolidated. As stated in A. above, if a current claim is pending at any administrative level at the time of the FO contact, the FO will offer the claimant the opportunity to object to consolidation of the Stieberger claim with the current claim. If the claimant objects to consolidation at that time, the claims will not be consolidated and OHA will defer processing of the Stieberger reopening until after the active pending claim is finally adjudicated. OHA components will not separately offer the individual a second consolidation option subsequent to the FO contact. Claims remanded from Federal court are considered to be active pending claims.
NOTE:
A claimant may request Stieberger reopening in conjunction with action on a current claim. If so, follow the procedures in Part VI. B. above. Inform the claimant, and representative, if any, that the Stieberger reopening will be processed separately from the current claim and that such separate Stieberger processing is not the same as an appeal on the current claim and a failure to pursue all appeal rights in connection with the current claim may result in a loss of benefits.
Do not conduct any Stieberger reopening unless it has been properly “alerted,” i.e., until an FO has received a green Stieberger responder jacket, determined entitlement to relief and contacted the claimant, as described in A. above, and forwarded the Stieberger alert and responder jacket to OHA.
However, in conjunction with action on a current claim an ALJ or the Appeals Council may reopen and revise a determination or decision on a claim that affords class membership in the absence of an alert if the regulatory conditions for reopening are met. The Stieberger settlement agreement qualifies as a change of legal interpretation and does not alone provide good cause for reopening under SSA's regulations.
Except as noted below, if a Stieberger class member has an initial request for hearing pending on a current claim and the individual did not object to consolidation at the time of the FO contact, the ALJ will consolidate the Stieberger case with the appeal on the current claim.
EXCEPTIONS:
The ALJ shall not consolidate the claims if:
the current claim and the Stieberger claim do not have any issue(s) in common. For example:
if the current claim is a title II retirement or survivors insurance benefits claim or a title XVI claim involving only nondisability issues, e.g., income, resources or residency, it will not have any issue(s) in common with the Stieberger claim; however, if the current claim is a disability claim, for consolidation purposes, it is deemed to have an issue in common with the Stieberger claim, regardless of the period at issue or the title under which the current claim was filed;
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 b. below.
If the claims are not consolidated, follow c. below.
If the ALJ decides to consolidate the current claim with the Stieberger 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 Stieberger claim raises any additional issue(s) (including the issue of disability for a different period of time) not raised by the current claim;
offer the claimant a supplemental hearing if the ALJ has already held a hearing and the Stieberger claim raises any additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Stieberger claim;
issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Stieberger claim (the ALJ's decision must clearly indicate that the ALJ considered the Stieberger claim pursuant to the Stieberger settlement agreement).
If the ALJ decides not to consolidate the current claim with the Stieberger claim, the HO will:
flag the Stieberger claim for DDS review using Attachment M;
immediately route it to the appropriate DDS (see Part III. above) for adjudication;
retain a copy of Attachment M in the current claim file;
inform the claimant that the Stieberger claim will not be consolidated with the current claim; and
take the necessary action to complete the record and issue a decision on the current claim.
The action the Appeals Council takes on the current claim determines the disposition of the Stieberger claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify the possible Appeals Council actions on the current claim and the appropriate corresponding action on the Stieberger claim.
This will usually arise when the current claim addresses all of the issues of the Stieberger review claim, i.e., the Stieberger claim raises an issue of disability for a period covered by the current claim. In this instance, if the class member did not object to consolidation of the claims (see J. 1. above), the Appeals Council will consolidate the claims and proceed with its intended action. The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Stieberger claim.
All applicable requirements of this TI will be implemented with respect to the Stieberger claim; e.g., any decision on a class member's Stieberger claim must set forth the information required in I. 6. above, in addition to the information that OHA decisions routinely include.
For class action reporting purposes, the Appeals Council will send copies of its decision to the Stieberger coordinators listed in I. 6. above.
NOTE:
Individuals who received an ALJ decision issued on or before July 2, 1992, will be entitled to reopening as class members if that decision becomes the final decision of the Secretary.
This will usually arise when the current claim does not address all of the issues of the Stieberger claim, e.g., the Stieberger claim raises an issue of potential entitlement to disability benefits 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. The Appeals Council's order, decision or notice of action will inform the claimant that the Stieberger claim will be sent to the DDS for readjudication.
OAO staff will attach a Stieberger case flag (Attachment N) to the Stieberger claim, immediately forward the Stieberger claim to the appropriate DDS (see Part III. above) for adjudication, and retain a copy of Attachment N in the current claim file. Attachment N indicates that the Appeals Council action on the current claim does not resolve all Stieberger issues and that the Stieberger 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.
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 Stieberger claim, the Appeals Council will proceed with its intended action. In this instance, if the class member did not object to consolidation of the claims (see J. 1. above), the Appeals Council will consolidate the claims, reopen the final determination or decision on the Stieberger claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Stieberger claim pursuant to the Stieberger court order.
Further, any decision on a class member's Stieberger claim must set forth the information required in I. 6. above, in addition to the information that OHA decisions routinely include.
For class action reporting purposes, the Appeals Council will send copies of its decision to the Stieberger coordinators listed in I. 6. above.
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 Stieberger claim, the Appeals Council will proceed with its intended action. The Appeals Council's order, decision or notice of action will inform the claimant that the Stieberger claim will be sent to the DDS for readjudication.
The Appeals Council will request the effectuating component to forward the claim files 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: “Stieberger court case review needed — following effectuation, forward the attached combined folders to (insert address of the DDS having jurisdiction for review of the Stieberger class member claim).”
If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action, and include consolidation instructions, unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Stieberger claim with the action on the current claim pursuant to the instructions in 2. above.
EXCEPTIONS:
The Appeals Council will not direct the ALJ to consolidate the claim if:
the current claim and the Stieberger claim do not have any issue(s) in common. For example:
if the current claim is a title II retirement or survivors insurance benefits claim or a title XVI claim involving only nondisability issues, e.g., income, resources or residency, it will not have any issue(s) in common with the Stieberger claim; however, if the current claim is a disability claim, for consolidation purposes, it is deemed to have an issue in common with the Stieberger claim, regardless of the period at issue or the title under which the current claim was filed;
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 Stieberger class member claim to the appropriate DDS (see Part III. above) for separate review using the case flag in Attachment M.
The United States Attorney has given class members with civil actions pending in one of the four United States District Courts in New York State or at the United States Court of Appeals for the Second Circuit, based on an administratively final decision issued on or before July 2, 1992, the option of proceeding with their individual court cases or receiving reopening pursuant to the Stieberger settlement. If the class member accepted reopening, the parties stipulated to remanding the claim for reopening as a pending claim (see sample in Attachment O; however, the court, may have modified this language).
If, after being notified of the right to remand, the class member decided to proceed with the individual court case, the class member waived the right to reopening of that claim under the settlement, but retained the right under the settlement to reopen other claims.
If the class member or his or her representative in court did not receive the option notice, the class member retains the right to have his or her claim reopened under the settlement, as a pending claim under ¶ 10(e)(3), even after issuance of an adverse federal court decision, so long as the class member's court case was pending on or before (as appropriate) September 1, 1992. The Appeals Council will remand these cases using the remand order at Attachment P. ALJs shall process these cases in the same fashion as with any other pending claim and shall develop the record pursuant to 20 CFR §§ 404.1512 - .1518 or 416.912 - .918.
NOTE:
The Stieberger Development Period, developmental presumptions, and Payment Period rules and limitations do not apply to stipulated court remands pursuant to ¶ 10(b).
Cases that meet the Stieberger criteria for reopening, but that involve action taken by the Appeals Council after July 2, 1992, on ALJ decisions rendered on or before July 2, 1992, are referred to as “bridge cases.” SSA agreed to stipulate to Stieberger remand of such cases, with certain exceptions.
SSA offered to stipulate to a remand of bridge cases for Stieberger reopening in civil actions in which the Appeals Council denied the class member's request for review. However, bridge cases in which the Appeals Council issued a decision were not eligible for reopening under Stieberger and stipulations for remand were not offered with respect to those cases
Stipulated court remands of bridge cases were made in accordance with the ¶ 10(b) provisions of the Stieberger settlement, except that the ¶ 10(b)(4) principle, the entitlement to the right to reopening if a class member or representative did not receive notice of the Stieberger right to remand, even after issuance of an adverse court decision, will not apply if: 1) the court's decision was issued after May 19, 1993 (unless appealed); or 2) the court had been informed before issuing its judgment that the class member was offered the opportunity for remand as provided in ¶ 10(b).
SSA did not offer to stipulate to Stieberger remands in bridge cases that were civil actions in which SSA asserted that the court did not have jurisdiction to review the case. In such situations, the claimant may still respond to the Stieberger class relief notice. SSA will not decline to administratively reopen solely on the ground that the court case had been dismissed or decided against the claimant on jurisdictional grounds. If the court decided that it had jurisdiction, SSA agreed to stipulate to remand
With respect to bridge cases where no civil action was filed, claimants may seek reopening in accordance with the Stieberger settlement and/or implementation instructions. SSA will not decline to provide a reopening in such cases solely on the basis that the Appeals Council's action is on or after July 2, 1992
SSA may combine the reopening and readjudication of class member's claims under Stieberger (including any appeal) with a review, reexamination or other reevaluation/readjudication under another class action (including any appeal) if the class member is accorded his or her full rights under both class actions.
Further, SSA need not reopen disability claims under Stieberger that were already reevaluated under other class actions provided that the reevaluation in the other class action:
occurred after July 2, 1992;
covered the time periods for which payment is possible under Stieberger and did not restrict payments for such time periods;
considered evidence to the extent provided for in the development requirements of Stieberger; and
afforded the claimant full appeal rights.
For all cases in which OHA is the first level of readjudication for the Stieberger claim (i.e., the Appeals Council or an ALJ consolidates the Stieberger claim with action on a current claim and OHA-jurisdiction pipeline cases, as defined in A. above), HO or OAO personnel, as appropriate, will send copies of any OHA decision to the Stieberger coordinators at the addresses listed in I. 6. above.
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 J. 2. above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” To identify class member cases in HOTS, HO personnel must code “ST” in the “Class Action” field. No special identification codes will be used in the OHA CCS.
HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022. OHA Headquarters personnel should contact the Division of Litigation Implementation and Analysis at 305-0708.