|Definition of Class|
|Determination of Class membership and Preadjudication Actions|
|Processing and Adjudication|
|- Stipulation for Compromise Settelement Approved January 30, 1990|
|Case Flag (for Review Following Court Action or Expiation of Retention Period)|
|Sample - Dismissal Order Language|
|Sample Acknowledgement Notice - Reinstated Request for Hearing|
ISSUED: December 20, 1991
This Temporary Instruction (TI) sets forth the rules for implementing the January 30, 1990 order of the U.S. District Court for the District of Colorado in Luna, et al. v. Sullivan which approved the “Stipulation for Settlement Agreement” dated January 26, 1990. The settlement agreement provides that the Social Security Administration will “notify each and every individual who has filed an application for disability in the State of Colorado whose file is coded '251' and advise him/her that s/he is entitled to reopen his/her disability determination.”
Adjudicators throughout the country must be familiar with this TI because Luna class members who now reside outside Colorado must have their cases processed in accordance with the requirements of the court order.
The Disability Determination Service (DDS) in the state of the claimant's current residence will ordinarily conduct the Luna reopenings. However, under certain circumstances the Office of Hearings and Appeals (OHA) will consolidate Luna reopenings with reviews of subsequent claims (see sections VI.C. and VI.E.).
On April 20, 1984, the U.S. District Court for the District of Colorado certified a class in this action which challenged the Secretary's regulations, policies and practices for evaluating pain in applications for Social Security benefits. On August 5, 1986, the court enjoined the Secretary from failing to find a class member disabled “...solely or primarily because of the lack of objective corroboration of subjective allegations of pain at any point in the Secretary's analysis.” On August 21, 1986, the Secretary notified all affected components of the order and of preliminary instructions for processing pending cases via a teletype (IT-75-86) issued by the Office of Disability. On October 6, 1986, the district court approved a stipulated stay of the relief to class members whose claims were denied before August 21, 1986, and who no longer had a claim pending. The stay did not apply to class members whose disability claims were active on or after August 21, 1986. On December 18, 1986, OHA issued instructions for processing Luna cases which were pending Administrative Law Judge, Appeals Council or judicial review on or after August 21, 1986. Those instructions were published in the OHA Staff Guides and Programs Digest in Bulletin No. III-23(86).
On November 24, 1987, the U.S. Court of Appeals for the Tenth Circuit reversed the district court and remanded for further consideration. Following the Tenth Circuit's remand, the parties negotiated a “Stipulation for Compromise Settlement” which the district court approved on January 30, 1990 (Attachment 1). The Tenth Circuit's standard for evaluating pain and the settlement agreement criteria for developing evidence of pain are set forth below in section III. In accordance with the terms of the settlement agreement, the Secretary conducted training for Colorado DDS adjudicators on March 27, 1990.
In its November 24, 1987 order, the Tenth Circuit held that the 1984 statutory amendments on pain required “only a loose nexus between the proven impairment and the pain alleged. Accordingly, if an impairment is reasonably expected to cause some pain, allegations of disabling pain emanating from that impairment are sufficiently consistent to require consideration of all relevant evidence.” However, the claimant “must demonstrate more than a potentially pain causing impairment before the decisionmaker must weigh all other evidence.” The Tenth Circuit's decision upheld SSA's regulations and policies for evaluating pain.
For cases decided at the fourth or fifth step of the sequential evaluation, the court-approved “Stipulation for Compromise Settlement” requires SSA to fully develop pain when:
pain is alleged by the claimant or is raised anywhere in the record (including by the Colorado DDS adjudicative team),
the medically determinable impairment can reasonably be expected to produce some pain, and
the pain, as alleged anywhere in the record, is of such intensity or persistence that it could result in a reduction of residual functional capacity (RFC) such that it would alter the decision in favor of the claimant if borne out by full development.
Full development is described as development of each of the six factors listed in Social Security Ruling (SSR) 88-13.
In addition, the “Stipulation for Compromise Settlement” requires DDS adjudicators to implement and use the Physical RFC Assessment Form dated January 1989 (SSA-4734-U8 (1/89)) in evaluating disability in cases proceeding beyond step 3 of the sequential evaluation.
For purposes of implementing the January 30, 1990 order, the class consists of all persons who, before the date of the order:
applied for or have received title II or title XVI benefits, and
received an adverse administrative determination by the Colorado DDS on their claim for benefits, and
had their claim(s) coded “251” by the Colorado DDS, even if the case was coded incorrectly. (This code appears on the SSA-831-U3 or 833-U3 and identifies denial or cessation claims involving pain which “imposes additional restriction on RFC.” The Colorado DDS began listing cases under code 251 in April 1987.)
Class members were identified by computer run and initial notices were sent to them in April 1990. Individuals had 30 days (unless extended for good cause) from the date of receipt of the notice to request a Luna review by returning a franked postcard provided for this purpose. Folder alerts were generated for replies received timely (and for cases in which good cause for a late response was established).
No class membership screening should be necessary. The presence of an alert and code “251” on the SSA-831-U3 or 833-U3 establishes class membership.
In general, the Office of Disability and International Operations (ODIO) or the Program Service Centers (PSCs) will associate the alerts with the inactive claim folders and forward them to the servicing field office for additional development as necessary. However, if ODIO or the PSC determines that a current claim is located in OHA (pending in the hearing office (HO) or Headquarters, or stored at Headquarters), they will forward the alert along with any prior claim folder(s) not in OHA's possession to the HO or Headquarters component for association and necessary action.
If an OHA component receives an alert but does not have the Luna file, it must annotate the alert that it does not have the file and send the alert to the Division of Litigation Analysis and Implementation (DLAI) at the following address:Office of Civil Actions
DLAI will return the folder alert to Litigation Staff for forwarding to ODIO or the PSC to locate or reconstruct the Luna file. The HO or Office of Appellate Operations (OAO) must not suspend action on a current claim awaiting the Luna claim file.
If an OHA component receives an alert and does not have the current claim folder, it must determine the folder location and forward the alert and any accompanying prior claim folder(s) to that location.
Similarly, the HO or OAO must continue to process a current claim for any claimant who is a potential Luna class member but for whom the HO or OAO has not yet received an alert.
A claimant may have a civil action pending on the alerted claim or on a claim filed before or after the alerted claim was filed or decided. In any of these instances, OHA will notify the appropriate component of the Office of the General Counsel (OGC), e.g., the Answer Section or the Regional Chief Counsel's office, that the claimant has been identified as a Luna class member. Unless advised otherwise by OGC, OHA will associate the alert with the claim folder(s) and flag the case for review by the DDS after the completion of court action using the flag in Attachment 2. The DDS will determine if the court's action resolved all the Luna issues.
If the court has remanded, OHA will process the alert in accordance with section VI.C. or VI.E., as appropriate.
On association of a Luna alert and claim folder(s) with a pending request for hearing on a subsequent claim, HO staff must follow the instructions in section VI.C.
On association of a Luna alert and claim folder(s) with a pending subsequent claim, Headquarters staff must follow the instructions in section VI.E.
If no subsequent claim is pending and the 120-day retention period for holding the claim file after the Administrative Law Judge's or Appeals Council's action has expired, Headquarters staff must send the alert and combined claim folder(s) to the DDS servicing the claimant's current address. If less that 120 days has elapsed, Headquarters staff must attach a class member flag to the outside of the combined claim folder(s) (see Attachment 2), to direct the case to the appropriate DDS after expiration of the retention period.
The DDS in the state of the claimant's current residence will ordinarily conduct the Luna review. The DDS determination will be a reconsideration determination with the first appeal being to the ALJ hearing level. ALJs must process and adjudicate requests for hearing on DDS Luna review determinations in the same manner as any other case.
Because the Luna court order requires the Secretary to fully reopen the claims of class members, the issue in a title II Luna review claim is whether the claimant was disabled at any time from the date of alleged disability onset in that claim through the present. If the claimant is no longer insured, the issue would be whether the claimant was disabled at any time within the insured period and, if so, whether the disability continues through the present. In a title XVI claim, the issue would be whether the claimant was disabled at any time from the date of the application which formed the basis for the claimant's Luna class membership through the present.
If a Luna class member has filed a subsequent disability claim which is pending, the Luna review claim and the subsequent claim may raise identical issues, or they may have only some issues in common. For example, the issues would be identical in a title II Luna review claim and a subsequent title II claim if the alleged onset dates were the same. If a title II Luna claim involves an alleged onset date which is earlier than the date alleged in a subsequent title II claim, the Luna claim would raise an additional issue of disability between the two alleged onset dates. Similarly, if the Luna claim and the subsequent claim are both title XVI claims, the Luna claim would raise a new issue of disability between the dates the claims were filed. (Of course there would be no issues in common if the subsequent claim raises only non-disability issues, e.g., overpayment, relationship or income and resource issues.)
Disposition of a Luna review claim which is first associated with a subsequent claim pending at the hearing level depends on whether a hearing has been scheduled or held and on whether the claims share a common issue.
New Request for Hearing Cases in Which a Hearing Has Been Scheduled or Held, and All Remand Cases
If a Luna class member has a request for hearing pending on a subsequent claim and the Administrative Law Judge has scheduled or held a hearing, the Administrative Law Judge must consolidate the Luna review with action on the subsequent claim. The Administrative Law Judge must also consolidate claims if the Luna class member's subsequent claim is before the Administrative Law Judge on remand from the Appeals Council or a court.
If the Luna review claim raises any additional issue(s) not raised by the subsequent claim, the Administrative Law Judge must give proper notice of the new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b). If the Administrative Law Judge has already held a hearing and the Luna review claim raises additional issues, the Administrative Law Judge must offer the claimant a supplemental hearing unless the Administrative Law Judge is prepared to issue a decision which is fully favorable with respect to the Luna claim.
In all instances in which claims are consolidated, the Administrative Law Judge must issue one decision which addresses both the issues raised by the current request for hearing and those raised by the Luna review. The decision must clearly indicate that the Administrative Law Judge is reopening the final determination or decision in the Luna claim and is considering the Luna claim pursuant to the Luna settlement agreement.
The Administrative Law Judge must not consolidate the claims if
the subsequent claim and the Luna review claim have no 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 first exception applies, the HO will route the Luna review claim to the servicing DDS to conduct the Luna review, and the Administrative Law Judge will proceed with action on the subsequent claim. The second exception would normally apply when the Luna claim raises an additional issue. In this situation, as with the first exception, the HO will send the Luna review claim to the DDS to conduct the Luna review.
Request for Hearing Cases — Hearing Not Scheduled
If a Luna class member has a request for hearing pending on a subsequent claim and the HO has not yet scheduled a hearing, the Administrative Law Judge must dismiss the request for hearing without prejudice and send the subsequent claim to the DDS servicing the claimant's current address for consolidation with the Luna review claim unless one of the exceptions below applies. (See Attachment 3 for sample dismissal order language.)
The Administrative Law Judge must not dismiss the subsequent claim if:
the Administrative Law Judge is prepared to issue a fully favorable, on-the-record decision on the subsequent claim which would be fully favorable with respect to all issues raised by the Luna claim, or
the subsequent claim and the Luna review claim have no common issues.
If the first exception applies, the Administrative Law Judge must consolidate the claims as described in section VI.C.1. If the second exception applies, the HO will route the Luna review claim to the servicing DDS to conduct the Luna review, and the Administrative Law Judge will then take the necessary action to complete the record and issue a decision on the subsequent claim.
When an Administrative Law Judge dismisses a request for hearing and sends the folders to the DDS for the Luna review and the DDS does not take a fully favorable action, the DDS will notify the claimant of the result of its Luna review and return all folders to the HO for automatic reinstatement of the request for hearing.
If the DDS issues a partially favorable determination, it will forward the case for effectuation with instructions to return the case to the HO after effectuation is completed. The HO must code reinstated requests for hearing as new requests for hearing, using the date of the DDS action as the request for hearing date.
On return of the folders to the HO, the Administrative Law Judge must acknowledge receipt, notify the claimant of the reinstatement, and also advise the claimant that the request for hearing on the subsequent claim includes a request for hearing on the Luna review claim. (See Attachment 4 for sample acknowledgment notice language.) The notice of hearing must indicate that the hearing will be on both claims and the final decision must address the issues raised by both claims.
Disposition of a Luna review claim which is first associated with a subsequent claim pending at the Appeals Council level depends on the action the Appeals Council takes on the subsequent claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the subsequent claim. Possible Appeals Council actions on subsequent claims and the corresponding actions on Luna review claims are as follows.
Appeals Council dismisses or denies review
If the Luna review claim and the subsequent claim have common or identical issues, OAO staff must attach a Luna flag (Attachment 2) to the combined claim folders of a class member. If the claimant does not file a civil action, at the end of the retention period OAO staff must forward the combined claim folders to the DDS servicing the claimant's current address. If the claimant does file a civil action, Office of Civil Actions staff must modify the Luna court case flag to direct the file to the servicing DDS after completion of court action.
If the Luna review claim and subsequent claim have no common issues, OAO will forward the Luna review claim to the DDS to conduct the Luna review, and will proceed with its action on the subsequent claim.
Appeals Council is prepared to issue a decision
Subsequent claim and Luna claim raise identical issues
In this instance, the Appeals Council must consolidate the claims. The Appeals Council's decision must clearly indicate that the Council is reopening the final determination or decision on the Luna claim and is issuing a decision which considers both applications, and has considered the Luna claim pursuant to the Luna settlement agreement.
Subsequent claim and Luna claim have common, but not identical, issues
If the Appeals Council is prepared to issue a decision which is fully favorable with respect to all of the issues raised by the Luna claim, the Appeals Council must consolidate the claims and issue a single decision. However, the Appeals Council may not issue a decision which is unfavorable with respect to a new issue on which the claimant has not yet had the opportunity for a hearing. Thus, if the Appeals Council is not prepared to issue a decision which is fully favorable with respect to all issues on which the claimant has not yet had the opportunity for a hearing, the Appeals Council must consolidate the claims and issue a combined decision/remand order which rules on the favorable aspects of the case and remands the remaining new issues for a (supplemental) hearing.
Subsequent claim and Luna claim have no common issues
If the Luna review claim and subsequent claim have no common issues, OAO will forward the Luna review claim to the DDS to conduct the Luna review, and will proceed with its decision on the subsequent claim.
Appeals Council issues a remand
The remand order must direct the Administrative Law Judge to consolidate the Luna review with the current claim.
The Appeals Council must not direct the Administrative Law Judge to consolidate the claims if:
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated, or
the subsequent claim and the Luna review claim have no common issues.
For all cases in which OHA is the first level of review for the Luna claim, i.e., the Appeals Council or an Administrative Law Judge consolidates the Luna review with review of a subsequent claim, HO or OAO personnel, as appropriate, must send a copy of the final decision to the OHA Luna coordinator at the address shown on page 4.
Hearing office personnel should contact their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge on FTS 305-0022.