HALLEX I-5-4-57

Table of Contents
I	Purpose
II	Background
III	Guiding Principles
IV	Definition of Class
V	Determination of Class Membership and Eligibility for Relief and Preadjudication Actions
VI	Processing and Adjudication
VII	Case Coding
VIII	Reconciliation of Implementation
IX	Inquiries
Attachment 1	Kendrick Stipulation and Order; Approved by the U.S. District Court for the Southern District of New York on December 26, 1995; Entered by the Clerk of the Court on December 27, 1995.
Attachment 2	- REQUEST FOR COURT CASE REVIEW/CHANGE OF ADDRESS WORKSHEET
Attachment 3	- Kendrick COURT CASE FLAG/ALERT
Attachment 4	- Route Slip or Case Flag for Screening
Attachment 5	- KENDRICK SCREENING SHEET
Attachment 6	Notice of Non-Class Membership/Ineligibility for Relief
Attachment 7	- Route Slips for Non-Class Member/Ineligibility for Relief Cases
Attachment 8	- Text for Notice of Revised Class Membership/Eligibility for Relief Determination
Attachment 9	- Kendrick Class Member Flag for OAO Use
Attachment 10	- Kendrick Flag/Alert to Forward Claim for Updating

V. Determination of Class Membership and Eligibility for Relief and Preadjudication Actions

A. Pre-Screening Actions - General

Notification
1. Once SSA has issued implementation instructions, SSA shall send an individual notice to the last known address of every individual who has been identified by computer run as a potential class member. Individuals will have 90 days from the date of receipt of the notice, unless extended for good cause (see Part V.A.1.c. below), to request that SSA readjudicate their claims under the terms of the Kendrick Stipulation and Order. SSA will presume an individual's receipt of the notice five days after mailing, unless the individual establishes that receipt actually occurred later.
  
  If mailed notices are returned as undeliverable, Litigation Staff will attempt to obtain updated addresses through a computerized match with the State governments in Illinois and New York; contingent on agreement with the entities involved. If SSA receives readily usable computer data from the computer matches, SSA shall resend the returned notices by first class mail to all potential class members for whom a match is received.
2. An individual who does not receive written notice of the settlement may, nonetheless, request relief by filing a written request with SSA within 90 days, unless extended for good cause, of the date that SSA mails the notices to the systems-identified potential class members. The request for relief must include the individual's Social Security Number, claim number, date of birth, address and request to receive relief under the Kendrick settlement. The written request should include the date or year of the hearing and the name of the ALJ, if known. To facilitate the taking of such requests, Social Security field office (FO) and HO employees may use the Request For Court Case Review/Change of Address Worksheet (Attachment 2). If the claimant contacts an SSA office (such as a Teleservice Center) by telephone, SSA personnel may take the request for relief by completing Attachment 2. In such cases, the completed Request for Court Case Review/Change of Address Worksheet will be considered to be a written request for relief even if it is not signed by the claimant.
  
  In most instances, an individual who does not receive a written notice but who wishes to request relief will contact a Social Security FO (i.e., district or branch office) by telephone, in person or in writing to file the request for relief (i.e., walk-ins). Pursuant to the terms of the settlement, the FO will assist the individual in completing the request for review and will request that the individual provide any available information concerning a possible Kendrick claim. The FO will take the individual's written statement concerning the possible Kendrick claim. The FO will forward the individual's request/statement and/or Request for Court Case Review/Change of Address Worksheet to ODIO for keying into the Civil Action Tracking System (CATS) and subsequent retrieval of the claim file.
  
  If an individual who does not receive a written notice contacts an HO to request relief, the HO should assist the claimant in completing a request for relief. As noted above, the request may be made by completing Attachment 2. HO personnel will also request that the individual provide available information concerning a possible Kendrick claim. Requests for relief should be forwarded to ODIO at the address listed in Attachment 2. If the individual wishes to include an additional statement concerning the request, that statement should be forwarded to ODIO along with the request for court case review.
  
  A potential class member's response to an individual notice, or other written or oral contact with an SSA office, shall be considered to be a request for assistance in filing a request for relief if the potential class member's intention is ambiguous or unclear but the potential class member refers to the Kendrick case or the subject ALJ.
  
  Part V.B.2.a. below describes the presumptions of class membership (but not entitlement to relief) that may be applied when an individual who does not receive a written notice of the settlement files a written request for relief. If a presumption of class membership is applied, the case will be screened to determine whether the individual is entitled to relief under the settlement.
3. The Office of Disability and International Operations (ODIO) will notify the servicing FO of untimely responses and request that the FO develop for possible evidence of good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.909, 404.911, 416.1409 and 416.1411. If good cause is established, the FO will forward the good cause determination and any folders currently in the FO, to ODIO (title II and concurrent claims) or the Northeastern Program Service Center (NEPSC) (title XVI claims) for any additional folder retrieval action that may be necessary and for routing to OHA.
  
  In determining whether good cause exists for individuals who do not receive a written notice from SSA, the decisionmaker will consider, under 20 CFR §§ 404.911(b)(7), 404.911(b)(9), 416.1411(b)(7) and/or 416.1411(b)(9), the fact that SSA did not mail Kendrick notices to such individuals. Although §§ 404.911(b)(7) and 416.1411(b)(7) usually refer to individuals who did not receive a notice that SSA actually mailed, in the context of the Kendrick settlement, these regulations also refer to individuals to whom SSA did not mail a Kendrick notice.
Alert and Folder Retrieval Process

All response forms and requests for relief filed by “walk-ins” (including individuals who contact SSA by telephone or in writing) should be returned to ODIO so that the information can be entered into CATS. Requests for change of address (filed using Attachment 2) will also be returned to ODIO. CATS will generate folder alerts for all reply forms. See Attachment 3 for a sample Kendrick alert.

ODIO will associate the computer-generated alerts with available title II and concurrent title II and title XVI potential class member claim file(s). For title XVI only claims, the NEPSC will retrieve available folders. Once the claim files and alerts have been associated, ODIO or NEPSC will forward the alert and claim files to the OAO Class Action Coordinator at the following address (Case locator code 5007):

Office of Hearings and Appeals
Office of Appellate Operations
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200
Attn: Church, VA 22041-3200

The OAO Class Action Coordinator will code receipt of any claim files into the case control system and enter information concerning the claim into an internal OHA database and will forward the alert package and folder search results to the Kendrick Screening Unit. If ODIO or NEPSC determines that the potential class member has a claim (the potential class claim or a subsequent claim) that is pending or stored at OHA Headquarters or in an HO, ODIO will send the alert, along with any claim file(s) not in OHA's possession, to the OAO Class Action Coordinator for association with the pending or stored claim file and screening. If the claim is located in an HO or OAO, the OAO Class Action Coordinator will coordinate retrieval of the file for screening at OHA Headquarters by the Kendrick Screening Unit.

NOTE:

The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts and claim files shipped to OHA Headquarters for screening. The Coordinator will maintain a record of all alerts and claim files received and the location, if any, to which they are transferred. The Coordinator will periodically enter this information into CATS. The information will be necessary to do the final class membership reconciliation.
Folder Reconstruction

In general, ODIO will initiate any necessary reconstruction of prior claim files for title II and concurrent cases, and the NEPSC will initiate claim file reconstruction for title XVI cases. To avoid unnecessary requests for reconstruction, the OAO Class Action Coordinator will provide ODIO and NEPSC information concerning the OHA location of any existing potential class member claim file(s) being retained for adjudication purposes, and the date(s) of the claim(s) involved. For control and informational purposes, ODIO or NEPSC will forward a copy of each reconstruction request to the OAO Class Action Coordinator at the address listed above. ODIO or NEPSC will forward the reconstruction request to the servicing FO along with a copy of the alert, documentation of attempts to locate the file, and will request that the reconstructed file be forwarded to the OAO Class Action Coordinator for coordination of final screening and assignment to an HO for readjudication if entitled to relief.

In cases where an alert has been generated but the claim file(s) cannot be located, the individual will be presumed to be a class member potentially entitled to relief, and the claim file(s) will be reconstructed. However, if information obtained in the course of reconstruction clearly indicates that the claimant is not a class member potentially entitled to relief, reconstruction efforts should be curtailed. In such cases, the alert and the information/evidence obtained up to that point should be sent to the OAO Class Action Coordinator for coordination with the Kendrick Screening Unit.

The OAO Class Action Coordinator will coordinate with HOs and OAO in cases where there is a current claim pending at the OHA level. The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to receipt of the reconstructed file, the HO or OAO, as appropriate, will forward a copy of the action on the pending claim to the OAO Class Action Coordinator who will associate the pending claim information with the class action material, including the alert and claim files, if any, and forward the entire package to the Kendrick Screening Unit upon receipt of the reconstructed file from the DDS (disability cases) or the FO (non-disability cases). If, in reconstructing the file, the FO finds evidence of substantial gainful activity by the claimant, the FO will include that information in the claim file.
Class Membership Denials (Non-Eligibility for Relief)

The OAO Class Action Coordinator will hold for 90 days all claim files of individuals to whom SSA sends notice of non-class membership and ineligibility for relief, pending review by claimants or class counsel. If an individual wishes to dispute SSA's class membership/eligibility for relief determination, he or she must give timely written notice of the disagreement to the Office of the General Counsel (OGC) (i.e., within 60 days of receipt of notice that the individual is not a class member eligible for relief). Upon request, class counsel, subject to the Privacy Act Protective Order entered into in this case, will be given reasonable and timely access to potential class members' claim files for the purpose of resolving class membership disputes. Upon request by class counsel to review claim files, the OAO Class Action Coordinator will forward the claim files in his possession to the OHA New York Regional Office.

B. OHA Screening Actions

Jurisdiction for Screening

Because the relief offered in Kendrick is a new hearing decision (or an Appeals Council decision if the claim is consolidated with a current claim pending at the Appeals Council level and a decision fully favorable to the Kendrick claim is issued), all claims will be screened at the OHA level. The screening will be performed at OHA Headquarters by the Kendrick Screening Unit.
Pre-Screening Actions
1. Presumptions of Class Membership
  
  The settlement agreement provides for the application of presumptions of class membership in situations where an individual requests relief without having received a written notice from SSA (i.e., “walk- ins”). Determinations concerning the application of presumptions will be made by the Kendrick Screening Unit. The Screening Unit will include in the file a written statement of the determination and the reasons for the determination. In making a credibility determination pursuant to Part V.B.2.a.(3) below, the Screening Unit will consider all of the available evidence concerning class membership. If the Screening Unit determines that information in support of the request for relief is not credible, the Screening Unit will provide a rationale for the credibility finding that includes the reasons for the finding based on the evidence concerning class membership. The rationale will be included in the statement to be placed in the claim file. If the Screening Unit determines that a presumption of class membership should be applied, the Screening Unit will screen the case to determine if the individual is entitled to relief.
  1. Preliminary Search of Computer Records for Individuals Who Do Not Receive Written Notice of the Settlement
    
    ODIO and/or NEPSC will perform a search of SSA's computer records and claim files retrievable in the ordinary course of business to obtain information concerning requests for relief filed by individuals who do not receive written notice of the settlement. This information will be used to determine whether the individual is a class member potentially entitled to relief.
  2. Presumption of Class Membership Where the Individual Provides Documentation Concerning Class Membership
    - If the review of SSA's records does not provide sufficient information to determine whether the individual is a class member, the Kendrick Screening Unit shall apply a presumption that the individual is a class member if:
      - the individual provides a copy of an unfavorable (in whole or in part) hearing decision or dismissal issued by the subject ALJ on or after September 25, 1977, but before May 22, 1995; or
      - the individual provides written documentation that shows that the individual's request for hearing was assigned to the subject ALJ for decision, e.g., notice of hearing or a letter from the individual's representative or a medical source to the subject ALJ.
    - The presumption may be overcome by evidence to the contrary.
  3. Presumption of Class Membership When SSA Does Not Have Sufficient Information To Make a Determination Concerning Class Membership
    - If the review of SSA's records does not provide sufficient information to determine whether the individual is a class member and if the individual is unable to provide the documentation described in Part V.B.2.a.(2) above, then the Kendrick Screening Unit will request the individual's statement concerning class membership and will request any other information that the individual may wish to provide concerning class membership. If the information meets the requirements listed below, the Screening Unit will apply a presumption that the individual is a class member.
    - The presumption may be overcome by evidence to the contrary.
    - The Kendrick Screening Unit will evaluate the information submitted by the individual in the following manner:
      - If the Screening Unit finds that material information is credible and meets the requirements for class membership listed in Part IV. above, then the Screening Unit will apply the presumption of class membership.
      - If the Screening Unit finds that material information is credible but does not establish all of the elements necessary to meet the requirements of class membership listed in Part IV. above, the Screening Unit may, but need not, resolve doubts in favor of the individual in determining whether to apply the presumption. In such cases, the record does not need to contain conclusive proof that the requirements of class membership are satisfied.
      - After considering (a) whether to apply the presumption, (b) whether to resolve doubts in favor of applying the presumption, and (c) that the record need not contain conclusive proof of class membership, if the Screening Unit finds that material information is not credible or that the information does not establish all of the elements necessary to meet the requirements of class membership listed in Part IV. above, then the Screening Unit will determine that the individual is not a class member.
2. Current Claim Is Pending or Stored at OHA
  
  If a current claim is before the Appeals Council or pending in an HO, the Coordinator will forward the alert and any prior claim file(s) to the Kendrick Screening Unit for screening. The Coordinator will also notify the appropriate OAO branch or the HO that there is a potential Kendrick claim pending. The Kendrick Screening Unit will notify the OAO Class Action Coordinator and the OAO branch or the HO of the outcome of the screening.
  
  NOTE:
  
  Do not screen pending cases unless an alert has been received. The presence of an alert is evidence that the claimant has responded to notice of potential class membership and that his or her case is ready for review. However, if a claimant with a non-alerted pending case should allege class membership, contact the Kendrick coordinator in the Division of Litigation Analysis and Implementation (DLAI) for assistance in determining the claimant's status. DLAI's address is
  
  Division of Litigation Analysis
  and Implementation
  One Skyline Tower, Suite 702
  5107 Leesburg Pike
  Falls Church, VA 22041-3255
  
  Attn: Kendrick Coordinator
  
  Telephone Number: (703) 305-0723
3. Current Claim Pending in Court
  
  If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, the Coordinator will forward the alert and any accompanying claim file(s) to the Kendrick Screening Unit for screening. The Coordinator will also notify the appropriate OAO Court Case Preparation and Review Branch (CCPRB) that there is a potential Kendrick claim. The Kendrick Screening Unit will notify the OAO Class Action Coordinator and the CCPRB of the outcome of the screening. See Part V.B.4. below for special screening instructions when a civil action is involved.
4. Claim at OHA Headquarters But No Current Action Pending
  
  If a claim file (either a class member or a subsequent claim) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, the OAO Class Action Coordinator will retrieve that claim file and forward it to the Kendrick Screening Unit (using Attachment 4) which will associate the alert with the file and screen for class membership and entitlement to relief. If the Screening Unit determines that the individual is not a class member entitled to relief and the individual does not dispute the denial of entitlement to relief, the Screening Unit will return the file to the OAO Class Action Coordinator. (The OAO Class Action Coordinator will coordinate the necessary actions, as explained in Part V.) (See Part V.B.5., below, for non-class member processing instructions.)
General Screening Instructions

The following instructions are applicable to claims in which the individual requested relief after receiving a written notice and to claims for which the individual did not receive a written notice but the Kendrick Screening Unit applied a presumption of class membership or otherwise determined that the individual is entitled to relief.

The Kendrick Screening Unit will perform the screening for all potential class member claims. The Screening Unit will associate the alert and any prior claim file(s) with the claim file(s) in its possession and then complete a screening sheet (see Attachment 5) as follows.
- Consider all applications denied/ceased or other determinations/decisions adverse to the claimant issued during the Kendrick timeframe;
- Follow all instructions on the screening sheet and the screening sheet instructions;
- Sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and
- Forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V.A.2. above. (The Coordinator will enter information from the screening sheet into CATS and the Kendrick OHA database and will forward the screening sheet to DLAI.)
Special Screening Instructions if a Civil Action Is Involved

As noted in Part V.B.1. above, the Kendrick Screening Unit will screen all requests for relief. However, if a civil action is involved, after screening, the Kendrick Screening Unit will forward the claim file(s) to the CCPRB for appropriate action. The screening determination will dictate the appropriate post-screening action.

If the claim pending in court is the potential class member claim or a subsequent claim that involves unresolved Kendrick issues, the CCPRB will immediately notify OGC (as appropriate, OGC will then notify the Assistant United States Attorney (AUSA)) so that OGC (or the AUSA) can notify the claimant of the option to agree to a remand of the case for readjudication under Kendrick.
Post-Screening Actions
1. Individuals Determined Not to Be Class Members Entitled to Relief
  
  If the Kendrick Screening Unit determines that the individual is not a class member eligible for relief, the Screening Unit will:
  - notify the individual and representative, if any, (with copies to class counsel and the OAO Class Action Coordinator) of that determination using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);
    
    NOTE:
    
    Include the date and claim number at the top of Attachment 6 in the spaces indicated.
  - retain a copy of the notice in the claim file;
  - send a copy of the notice to Kendrick class counsel:
    
    Legal Services for the Elderly
    130 West 42nd St., 17th Floor
    New York, NY 10036
    
    Attn: Kendrick Class Counsel
  - retain the claim file(s) for 90 days pending a possible class membership dispute; and
    
    NOTE:
    
    An individual who wishes to dispute a determination of non-class membership and ineligibility for relief should do so directly, or through their representative of record.
  - if class counsel makes a timely request to OGC to review a screened-out claim file in order to assist the individual, send the file to the OHA New York Regional Office using the pre-addressed route slip in Attachment 7.
  If SSA, through OGC, resolves the dispute in the claimant's favor: 1) the Kendrick Screening Unit will prepare a revised screening sheet and send notice of the revised class membership/eligibility for relief determination (Attachment 8) to the claimant, and representative, if any, and class counsel; 2) the case will proceed in accordance with Part VI. below; 3) the Kendrick Screening Unit will notify the OAO Class Action Coordinator of the revised determination by forwarding a copy of the revised screening sheet to the Coordinator; and 4) the OAO Class Action Coordinator will send DLAI a copy of the revised screening sheet.
  
  If the dispute cannot be resolved, OGC will send the claimant, and class counsel, a notice indicating that the claimant will have 60 days to request that a magistrate judge review the class membership/eligibility for relief determination. OGC will also send a copy of the notice to the AUSA.
  
  If after 90 days no review is requested, the OAO Class Action Coordinator will make a notation in the file that no request was received and will return the file(s) to the appropriate storage location if not otherwise needed.
2. Cases Determined to Be Class Members Entitled to Relief
  
  If the Kendrick Screening Unit determines that the individual is a class member entitled to relief and the claim(s) involves disability, it will forward the claim, using Attachment 10, to the appropriate FO for updating. If the FO finds evidence of SGA, the FO will include that information in the claim file.
  
  Once the FO has completed its updating action, it will forward the claim to the Disability Determination Service (DDS) to update and develop the medical evidence to the present. Prior to forwarding the file to the FO, the Screening Unit will identify the HO, based on the claimant's residence, that will perform the readjudication and will note the address of the HO on the Kendrick Flag/Alert used to forward the claim for updating (Attachment 10). However, if the individual resides in New York State, the Screening Unit will make a notation on the Kendrick Flag/Alert that the claim should be forwarded to the OHA New York Regional Office (addressed to the attention of the "Kendrick Unit"). The OHA New York Regional Office will coordinate assignment of claims for readjudication. Once the DDS has completed its development and updating of the medical evidence for disability cases, the DDS will forward the claim to the appropriate HO (or the OHA New York Regional Office) as noted on the Flag/Alert (Attachment 10), and the HO will then proceed with processing in accordance with the instructions in Part VI. below.
  
  In non-disability cases, the Screening Unit will forward the claim directly to the appropriate HO or the OHA New York Regional Office (see Part VI.A.3. below).
  
  NOTE:
  
  Updating by the FO and DDS will not be necessary in reconstructed cases. Updating will have already been accomplished by those components in the course of reconstruction. Unless there is another case pending in OHA, the DDS (disability cases) or the FO (non-disability cases) will route reconstructed cases directly to the OAO Class Action Coordinator who will forward the cases to the Kendrick Screening Unit for final screening and assignment to an HO for reajudication, if entitled to relief.

VI. Processing and Adjudication

A. OHA Adjudication of Class Member Claims

All of the Kendrick readjudications will be conducted at the OHA level. Both disability and non-disability claims will be readjudicated under the terms of the Kendrick settlement. In some instances, such as consolidation cases, the Appeals Council will conduct the Kendrick readjudication. In cases readjudicated at the ALJ level, the individual will receive a de novo hearing from an ALJ other than the subject ALJ unless a favorable on-the-record decision will be issued. Kendrick class members who receive adverse readjudication determinations will have full appeal rights (i.e., Appeals Council and judicial review). Except as noted herein, HOs and OHA Headquarters will process Kendrick class member cases according to all other current practices and procedures including coding, developing evidence, routing, etc. However, the notice of hearing should include a statement that the hearing will be held pursuant to the Kendrick settlement. HOs and OAO will send copies of hearing decisions and Appeals Council decisions, respectively, to DLAI at the address listed in Part V.B.2.b. above. DLAI will forward copies of the decisions to class counsel and the OAO Class Action Coordinator.

Type of Review and Period to Be Considered

Pursuant to the Kendrick Stipulation and Order, regardless of whether the claim under review is an initial claim or a cessation case, the type of review to be conducted is a reopening. In cases involving entitlement to benefits based on disability, the period at issue shall commence with the period at issue in the claim that led to class membership and shall continue through the date of the new hearing decision, or the date of a later allowance or the date that the claimant attains age 65, whichever is earlier, or for title II claims, the date last insured, if earlier. The reopening shall be a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file including newly obtained evidence relevant to the period at issue.
Class Member Is Deceased

If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.
No Current Claim Pending at OHA

If the class member claim involves entitlement to disability benefits and is the only claim at the OHA level and the case has been screened-in as a class member entitled to relief, the Screening Unit will forward the case to the appropriate FO for additional development as described in Part V.B.5.b. above. Once the FO has completed its action on the claim, it will forward the claim to the DDS for updating and development of the medical evidence. Upon completion of its action on the claim, the DDS will forward the claim to the appropriate HO, or the OHA New York Regional Office, as noted in Attachment 10, for Kendrick processing and readjudication (see Part V.B.5.b. above).

If the claim involves an issue other than disability, the Kendrick Screening Unit will forward the claim directly to the HO or the OHA New York Regional Office. If, upon receipt of the claim for readjudication, the HO finds that additional non-medical development is required for a non-disability claim, the HO will forward the file(s) to the FO for development using Attachment 10.

B. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims and Other Class Actions (Consolidation Procedures)

NOTE:

Even claims subject to consolidation should be consolidated only to the extent practicable. Thus, for example, if consolidation would unreasonably delay a decision on the current claim, consolidation would not be appropriate.

General
1. Current Claim Pending at OHA
  
  If a class member has a current claim pending at the OHA level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Kendrick class member claims with the current claim at the level (hearing or Appeals Council) at which the current claim is pending. No claims will be consolidated before the subject ALJ, however.
2. Current Claim Pending at the DDS
  
  If the class member has a current claim pending at the DDS level and consolidation is warranted and would not unduly delay action on the current claim, the DDS will forward the current claim to OHA for consolidation with the Kendrick claim(s) pending at the OHA level (hearing or Appeals Council levels).
3. Coordination of Relief in Kendrick With Relief in Other Class Actions
  
  Class members entitled to relief under Kendrick may also be class members entitled to relief in other class actions. If the alert, or other evidence in the file, indicates that the individual is entitled to relief under another class action (e.g., Dixon, S.P., State of New York, Stieberger, etc.) and, if the Kendrick claim and the claim(s) in the other class action(s) involve a common issue, the Kendrick readjudication may include readjudication of the claim(s) at issue in the other class action(s). However, Kendrick claims and claims based on other class actions will only be consolidated if practicable. If the claim(s) in the other class action(s) is at the DDS level and the DDS has already made, or is about to make, a favorable determination, the claims will not be consolidated. Furthermore, the claims will not be consolidated if Kendrick readjudication would not cover the time period at issue in the other class action(s).
  
  If another class action claim is consolidated with the Kendrick claim, the hearing decision will include a statement that the decision also covers the individual's request for relief under the other class action(s).
Current Claim Pending in the Hearing Office
1. Hearing Has Been Scheduled or Held, and All Remand Cases
  
  Except as noted below, if a Kendrick class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing,and in all remand cases, the ALJ will not consolidate the Kendrick case with the appeal on the current claim.
  
  EXCEPTION:
  
  If the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant a Kendrick class member, the ALJ will consolidate the claims and issue a favorable decision.
  
  If the claims are consolidated, follow Part VI.B.2.c. below. If the claims are not consolidated, follow Part VI.B.2.d. below.
2. Hearing Not Scheduled
  
  Except as noted below, if a Kendrick class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will consolidate the Kendrick claim and the current claim (see Part VI.B.2.d. below). However, the ALJ should not consolidate the claims if consolidation would delay processing of the current claim. As noted in 1.a. above, no class member claims will be consolidated before the subject ALJ.
  EXCEPTIONS:
  
  The ALJ will not consolidate the claims if
  - the current claim and the Kendrick claim do not have any issues in common, or
  - a court remand contains a court-ordered time limit, and it will not be possible to meet the time limit if the claims are consolidated.
  If the claims are consolidated, follow Part VI.B.2.c. below. If the claims are not consolidated, follow Part VI.B.2.d. below.
3. Actions If Claims Consolidated
  
  When consolidating a Kendrick claim with any subsequent claim, in disability claims, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present or to the date of the most recent allowance or the date the claimant attains age 65 (or through the date the claimant last met the insured status requirements or the prescribed period requirements, if earlier). If the ALJ decides to consolidate the current claim or a claim under another class action with the Kendrick 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 Kendrick claim raises any additional issue(s) not raised by the current claim, or the claim at issue in another class action;
  - issue one decision that addresses both the issues raised by the current request, or the claim at issue in another class action, for hearing and those raised by the Kendrick claim (the ALJ's decision will clearly indicate that the ALJ considered the Kendrick claim pursuant to the Kendrick Stipulation and Order, and, if appropriate, that the decision covers the claim at issue in another class action).
4. Action If Claims Not Consolidated
  
  If the ALJ decides not to consolidate the current claim with the Kendrick claim because: 1) the claims do not have any issues in common or 2) there is a court-ordered time limit, the ALJ will:
  - take the necessary action to complete the record and issue a decision on the current claim.
  - schedule the hearing and issue a decision on the Kendrick claim.
  If the ALJ decides not to consolidate the Kendrick claim with a current claim elevated by the FO or DDS or the claim(s) at issue in another class action, the ALJ will return the other claim(s) to the FO or the DDS where the other claim(s) was pending.
Current Claim Pending at the Appeals Council

If there is a current claim pending at the Appeals Council, the Kendrick Screening Unit will forward the claim file(s) and the completed screening sheet to the appropriate OAO disability review branch. The action the Appeals Council takes on the current claim determines the disposition of the Kendrick claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify possible Appeals Council actions on the current claim and the corresponding action on the Kendrick claim.
1. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — No Kendrick Issue(s) Will Remain Unresolved.
  
  This will usually arise when the current claim duplicates the Kendrick review claim, i.e., the current claim raises the issue of disability and covers the entire period adjudicated in the Kendrick claim. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action. The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Kendrick claim.
2. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — Kendrick Issue(s) Will Remain Unresolved.
  
  This will usually arise when the current claim does not duplicate the Kendrick claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Kendrick claim. For example, the Kendrick claim raises the issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim.
  
  OAO staff will attach a Kendrick case flag (Attachment 9) to the Kendrick claim, immediately forward the Kendrick claim to the appropriate HO, or the OHA New York Regional Office (see Part V.B.5.b. above), for action, and retain a copy of Attachment 9 in the current claim file. The current claim should not be forwarded with the Kendrick claim unless the appeal period for the current claim has expired. OAO will indicate on Attachment 9 that the Appeals Council's action on the current claim does not resolve all Kendrick issues and that the Kendrick class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision. If, upon receipt of the Kendrick claim, the HO determines that additional development (medical or non-medical) is required, the HO will forward the claim to the FO for updating using Attachment 10 (see Part V.B.5.b. above).
3. Appeals Council Intends to Grant Claimant's Request for Review and to Issue a Favorable Decision on the Current Claim — No Kendrick Issue(s) Will Remain Unresolved.
  
  If the Appeals Council intends to issue a favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Kendrick class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final decision on the Kendrick claim and issue a favorable decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Kendrick claim pursuant to the Kendrick Stipulation and Order.
4. Appeals Council Intends to Issue a Favorable Decision on the Current Claim — Kendrick Issue(s) Will Remain Unresolved.
  
  If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Kendrick claim, the Appeals Council will proceed with its intended action. In this situation, the Appeals Council will request the effectuating component to forward the claim files to the appropriate HO, or the OHA New York Regional Office (see Part V.B.5.b. 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: "Kendrick court case review needed — following effectuation forward the attached combined folders to the designated Hearing Office for further action." If the HO determines that additional development (medical or non-medical) is required, the HO will forward the Kendrick claim to the FO for updating using Attachment 10 (see Part V.B.5.b. above).
5. Appeals Council Intends to Remand the Current Claim to an Administrative Law Judge.
  
  If the Appeals Council intends to remand the current claim to an ALJ, it will proceed with its intended action unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Kendrick claim with the action on the current claim pursuant to the instructions in Part VI.B.2.a. above.
  EXCEPTIONS:
  
  The Appeals Council will not direct the ALJ to consolidate the claim if
  - the current claim and the Kendrick claim do not have any issues in common, or
  - a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.
  If the claims do not share any common issues or a court-ordered time limit makes consolidation impractical, OAO will forward the Kendrick class member claim to the HO, or the OHA New York Regional Office, for separate review. If the HO determines that additional development (medical or non-medical) is required, the HO will forward the Kendrick claim to the FO for updating using Attachment 10 (see Part V.B.5.b. above).

Attachment 1. Kendrick Stipulation and Order; Approved by the U.S. District Court for the Southern District of New York on December 26, 1995; Entered by the Clerk of the Court on December 27, 1995.

Privacy Act and Protective Order approved by the U.S. District Court for the Southern District of New York on November 6, 1996.

[DATE FILED 08/17/1995]

MARY JO WHITE
United States Attorney for the
Southern District of New York
By: LINDA A. RIFFKIN (LR-9651)
Assistant United States Attorney
100 Church Street — 19th Floor
New York, New York 10007
Tel. (212) 385-4360

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------X

CLAUDIA KENDRICK and LOURDES ALMONTE,
individually and on behalf of
all others similarly situated,
	JOINT MOTION FOR
Plaintiffs,	PRELIMINARY APPROVAL
	OF SETTLEMENT
- v -	AGREEMENT
	90 Civ. 3776 (RJW)


SHIRLEY S. CHATER,
Commissioner, Social Security
Administration

Defendant.¹

-----------------------------------------------X

The plaintiff class and defendant, by their respective counsel, request the Court, pursuant to the terms of their settlement agreement and Fed. R. Civ. P. 23(e), to approve preliminarily the Stipulation and Order attached at Tab A.

Respectfully submitted,
 Dated: New York,
New York 
 August 16, 1995

__________/s/____________
TOBY GOLICK, ESQ.
CARDOZO BET TZEDEK LEGAL SERVICES
Attorneys for the Plaintiff Class
55 Fifth Avenue
New York, New York 10003
Telephone: (212) 790-0240

__________/s/____________
DAVID S. UDELL, ESQ.
JONATHAN A. WEISS, ESQ.
LEGAL SERVICES FOR THE ELDERLY
Attorneys for the Plaintiff Class
130 West 42nd Street, 17th Floor
New York, New York 10036
Telephone: (212) 391-0120

__________/s/____________
JILL ANN BOSKEY, Of Counsel To
WAYNE G. HAWLEY, ESQ.
MFY LEGAL SERVICES
Attorneys for the Plaintiff Class
35 Avenue A
New York, NY 10009
Telephone: (212) 475-8000

MARY JO WHITE
United States Attorney for the
Southern District of New York
Attorney for Defendant

__________/s/____________
LINDA A. RIFFKIN
Assistant United States Attorney
100 Church Street; 19th Floor
New York, New York 10007
Telephone: (212) 385-4360
(LR - 9651)

[

DATE FILED 08/17/1995

]



	August 17, 1995
	Motion for preliminary approval of settlement agreement granted on consent. Stipulation and Order signed.


	__________/s/____________
	Robert J. Ward
	U.S.D.J.

[

DATE FILED 08/17/1995

]

MARY JO WHITE
 United States Attorney for
the
 Southern District of New York
 By: LINDA A.
RIFFKIN (LR-9651)
 Assistant United States Attorney
 100
Church Street — 19th Floor
 New York, New York
10007
 Tel. (212) 385-4360
 
 
 UNITED
STATES DISTRICT COURT
 SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------X

CLAUDIA KENDRICK and LOURDES ALMONTE,
individually and on behalf of
all others similarly situated,

Plaintiffs,	STIPULATION AND
	ORDER OF SETTLEMENT
- v -	AND DISMISSAL
	90 Civ. 3776 (RJW)


SHIRLEY S. CHATER,
Commissioner, Social Security
Administration

Defendant.¹

-----------------------------------------------X

WHEREAS plaintiffs filed an amended class complaint on June 28, 1990; and

WHEREAS, by order dated February 27, 1992, the Court certified a class; and

WHEREAS the parties have agreed to fully and finally resolve the outstanding issues in this case without further litigation;

WHEREFORE, the parties, by their undersigned counsel, agree to the settlement of plaintiffs' claims in accordance with the following terms.

The class definition as stated in the Court's February 27, 1992 order is amended. The class is now comprised of any individual:

(a) Who filed a claim for benefits pursuant to title II or title XVI of the Social Security Act; and

(b) Who requested a hearing decision by an Administrative Law Judge (ALJ) on that claim or any issues arising from that claim; and

(c) Whose request was dismissed by or who received a less than fully favorable decision on the claim from the ALJ whose conduct was the subject of this litigation (subject ALJ); and

(d) Whose dismissal or decision by the subject ALJ was dated on or after September 25, 1977, but before May 22, 1995.
Class members entitled to relief under this Stipulation and Order (Stipulation) shall include all class members who are eligible pursuant to the terms of this Stipulation, except for any class member:

(a) Who received a fully favorable decision, on the claim giving rise to class membership, following an appeal, or remand from an appeal, or a reopening; or

(b) Who received the equivalent of a fully favorable decision on the claim giving rise to class membership, as a consequence of having obtained a fully favorable decision on another claim awarding benefits for the entire time period(s) at issue in the claim giving rise to class membership; or

(c) Who received a de novo hearing and decision (whether favorable or unfavorable) on the claim giving rise to class membership for the entire time period(s) at issue in the claim, from an ALJ other than the subject ALJ, following an appeal, or remand from an appeal, or a reopening; or

(d) Who received a de novo hearing and decision (whether favorable or unfavorable) on the claim giving rise to class membership for the entire time period(s) at issue in the claim, where the de novo hearing and decision provided all the rights and protections under this Stipulation concerning the time period(s) at issue in the claim giving rise to class membership, from an ALJ other than the subject ALJ, as a result of another class action; or

(e) Who received a final decision from a federal court (whether favorable or unfavorable) in which the issue of the subject ALJ's conduct at issue in this action was addressed and determined.
(a) Following signing of this Stipulation, the parties shall promptly move the Court to enter this Stipulation as an Order by endorsing it. Such entry by the Court constitutes preliminary approval of this Stipulation.

(b) Following preliminary approval of this Stipulation, SSA shall, as soon as practicable, use its available data processing systems, to the extent data is available in its systems, to identify the names, Social Security numbers, claim numbers, and last known addresses of potential class members. SSA, within its sole discretion, shall determine the appropriate means to identify potential class members but shall notify class counsel of such means as are eventually used. SSA shall provide class counsel an alphabetical listing of the potential class members it identifies accompanied by the Social Security numbers, and, if different, the relevant claim numbers of such individuals.

(c) Following identification of potential class members, the parties shall request the Court to schedule a hearing (Rule 23(e) hearing) to consider final approval of the Stipulation pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

(d) Following scheduling of the Rule 23(e) hearing, SSA shall send a copy of the notice attached as Exhibit 1, by first class mail to the potential class members, identified pursuant to ¶ 3(b) above, at their last known addresses. The notice shall advise each individual of the opportunity to object to approval of this Stipulation but shall not mention the subject ALJ by name.

(e) Any class member may comment on the terms of this Stipulation by submitting written comments to class counsel postmarked no later than 30 days prior to the Rule 23(e) hearing and signed by the class member or representative or by appearing at the Rule 23(e) hearing and testifying. If a class member testifies at the Rule 23(e) hearing without having previously submitted written comments to class counsel, the parties reserve the right to review the testimony and to submit a written response after the Rule 23(e) hearing. Class counsel shall forward to defendant's counsel within 7 days of receipt, and file with the Court, copies of all comments received. However, class counsel shall not be required to forward or file comments that class counsel deems to be privileged. If class counsel withholds any such comments, class counsel shall provide defendant's counsel with the following information: the type of document withheld, the date of the document, the addressee of the document, the author of the document and the subject matter of the document described in sufficient detail to explain the claim of privilege. At the Rule 23(e) hearing, the parties shall request the Court to enter an order granting final approval of this Stipulation.
(a) Following the Court's final approval of this Stipulation, the Commissioner shall draft instructions to implement the terms of this Stipulation. The Commissioner shall make a good faith effort to complete the instructions within 180 days of the Court's final approval of this Stipulation. The Commissioner shall make a good faith effort to provide class counsel with a copy of the instructions not less than four weeks prior to issuance:

(b) Following issuance of the instructions, SSA shall send a copy of the notice attached as Exhibit 2, together with a review request form attached as Exhibit 3 and a postage-paid return envelope, by first class mail to potential class members, identified pursuant to ¶ 3(b) above as being potentially entitled to relief, at their last known addresses. The notice shall advise each individual of the possibility of relief under this Stipulation but shall not mention the subject ALJ by name.

(c) SSA shall attempt to obtain current addresses for potential class members whose notices are mailed pursuant to ¶ 4(b) above and returned to SSA as undeliverable by requesting that the state governments in Illinois and New York provide current addresses through a computerized match with public assistance, food stamp or other like records. SSA requests for computer matches with state agencies' data systems will be subject to the requirements of the Privacy Act as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a. SSA shall not be obligated to bring any legal proceedings to gain access to such records. If SSA receives readily usable computer data from the computer matches, SSA shall resend the returned notice by first class mail to all potential class members for whom the computerized match produces a more recent address. SSA shall not be required to resend any notices unless it receives readily usable computer data from the computer matches.

(d) Except as specifically provided in this Stipulation, SSA shall not be required to take any action concerning identification of potential class members' addresses or the mailing of notices, beyond sending notices to potential class members at their last known addresses identified on SSA's computer systems or, if readily useable computer data is available, to their more recent addresses, as described above.
(a) Any individual who receives the notice of entitlement to request relief must, in order to obtain relief under this Stipulation, file a completed review request form with SSA within 90 days after the date the individual receives the notice. See 20 C.F.R. §§ 404.901 and 416.1401 (defining “date you receive notice”). SSA shall assist any individual who contacts an SSA office by telephone, in person or in writing to complete and file a review request form and also shall provide a copy of the form to the individual if the original is, for any reason, unavailable. No individual who receives the notice and who does not timely file a request for relief shall receive relief under this Stipulation unless the individual shows SSA that there is good cause for the untimely filing, in which case SSA shall extend the deadline. The standards for "good cause' shall be those set forth in 20 C.F.R. §§ 404.909, 404.911, 416.1409 and 416.1411.

(b) Any individual who for any reason does not receive the notice of entitlement to request relief must, in order to obtain relief under this Stipulation, file a written request with SSA which includes the individual's Social Security number, claim number, date of birth, address and request to receive relief under this Stipulation. If the individual remembers the date or year of the hearing with the subject ALJ, then this information should be included with the request. Such an individual must file the request within 90 days after SSA mails the notices pursuant to ¶ 4(b) above to the potential class members identified by SSA. SSA shall assist any individual who contacts an SSA office by telephone, in person or in writing to complete and file the written request described in this paragraph. Such assistance shall include requesting the needed information from the individual. If the individual does not file the request within 90 days after SSA mails the notices pursuant ¶ 4(b) above to the potential class members identified by SSA, then the individual shall not receive relief unless the individual shows SSA that there is good cause for the untimely filing, in which case SSA shall extend the deadline. The standards for “good cause” shall be those set forth in 20 C.F.R. §§ 404.909, 404.911, 416.1409 and 416.1411.
(a) An individual's request for relief concerning any claim giving rise to class membership shall constitute a request for relief concerning all of the individual's claims that give rise to class membership.

(b) A class member's response to an individual notice, or other written or oral contacts with SSA, shall be considered by SSA to be a request for assistance in filing a request for review pursuant to ¶ 5 above, if the class member's intention is ambiguous or unclear but the class member refers to the Kendrick case or the subject ALJ.
(a) In conjunction with receipt of a written request of an individual who requests relief pursuant to ¶ 5(b) above, SSA shall obtain and review its computer records and claim files retrievable in the ordinary course of business to determine whether the individual meets the requirements of class membership, stated in ¶ 1 above.

(b) If this review of SSA's records does not provide sufficient information to determine whether the individual is a class member, SSA shall apply a presumption that the individual meets the requirements for class membership stated in ¶ 1 above if the individual:

     (1) Provides a copy of a hearing decision or dismissal issued by the subject ALJ between September 25, 1977, and May 22, 1995; or

     (2) Provides written documentation that shows that the individual's request for hearing was assigned to the subject ALJ for decision, e.g., notice of hearing or a letter from the individual's representative or a medical source to the subject ALJ.

This presumption may be overcome by evidence to the contrary.

(c) If the review of SSA's records does not provide sufficient information to determine whether the individual is a class member and if the individual is unable to provide the documentation described in ¶ 7(b) above, then SSA shall request the individual's statement concerning class membership, and shall also request whatever other information the individual may wish to provide concerning class membership. SSA shall evaluate the information submitted in the following manner:

     (1) If SSA finds that material information is credible and the information establishes all of the elements necessary to meet the requirements of class membership stated in ¶ 1 above, then SSA shall apply a presumption that the individual meets the requirements of class membership stated in ¶ 1 above. This presumption may be overcome by evidence to the contrary.

     (2) If SSA finds that material information is credible but that it does not establish all of the elements necessary to meet the requirements of class membership stated in ¶ 1 above, then SSA may, but need not, resolve doubts in favor of the individual in determining whether the requirements of class membership stated in ¶ 1 above are met. In such cases, the record does not need to contain conclusive proof that the requirements of class membership stated in ¶ 1 above are satisfied.

     (3) If SSA finds that material information is not credible or that the information does not establish all of the elements necessary to meet the requirements of class membership as explained in ¶ 7(c)(1) and (2) above, then SSA shall determine that the individual is not a class member.

(d) If the presumption of class membership described in ¶ 7(b) or (c) above applies and is not overcome by evidence to the contrary, then SSA shall deem the individual a class member and shall determine whether the individual is entitled to relief under this Stipulation.
SSA shall determine within a reasonable time whether each individual who requests relief under this Stipulation is a class member entitled to relief and shall complete a written determination including the reason for the determination. SSA shall place a copy of the determination in the individual's claim file. If SSA determines that an individual is a class member entitled to relief, SSA shall include, in the notice of hearing to the individual, the information that the hearing is pursuant to the Kendrick settlement.

(a) If SSA determines that an individual is not a class member entitled to relief, SSA shall notify the individual in writing (Exhibit 4) of that determination and the reason for the determination. If SSA determines that the individual is not a class member entitled to relief based on a finding that the information in support of the request for relief is not credible, SSA shall include a rationale for the credibility finding in a written determination that SSA shall place in the individual's claim file.

(b) Within 60 days after the date an individual receives SSA's determination that the individual is not a class member entitled to relief, see 20 C.F.R. §§ 404.901 and 416.1401 (defining “date you receive notice”), the individual may request review of the determination by filing a written request for review of the determination with the Office of the General Counsel (OGC) at the address provided in the notice. SSA shall assist any individual who contacts an SSA office, in person or in writing, to complete and file a written request for review with OGC. If the individual does not timely file a request with OGC requesting that OGC review SSA's determination, then the determination shall be binding and not subject to further review unless the individual shows SSA that there is good cause for the untimely filing, in which case SSA shall extend the deadline. The standards for “good cause” shall be those set forth in 20 C.F.R. §§ 404.909, 404.911, 416.1409 and 416.1411. OGC shall seek to resolve disputes regarding class membership and entitlement to relief and shall act within a reasonable period of time. OGC shall consult with class counsel, to the extent feasible, concerning these disputes, unless the individual is represented in the matter by other counsel, or objects to the involvement of class counsel. In the event that the parties are unable to resolve the dispute, OGC shall advise the individual and counsel, in writing, and shall also advise class counsel unless the parties objected to the involvement of class counsel. Within 60 days after the date the individual receives the notice from OGC, see 20 C.F.R. §§ 404.901 and 416.1401 (defining “date you receive notice”), the individual may request review of SSA's determination by a magistrate judge (to be designated by the court) who shall make a final determination. If the individual does not timely request that the magistrate judge review SSA's determination, then the determination shall be binding and not subject to further review unless the individual shows SSA that there is good cause for the untimely filing, in which case SSA shall extend the deadline. The standards for “good cause” shall be those set forth in 20 C.F.R. §§ 404.909, 404.911, 416.1409 and 416.1411. If the magistrate judge determines that an individual is a class member entitled to relief, then the individual shall receive relief under this Stipulation. The magistrate judge's determination shall be binding and not subject to further review.
The hearing office shall assign the case of each class member entitled to relief to an ALJ (other than the subject ALJ) in the ordinary course of business. SSA shall advise ALJs to whom these cases may be assigned of the terms of the settlement by means of the instructions referred to in ¶ 4(a) above.
A class member entitled to relief shall receive an opportunity for a new hearing decision based on the claim that led to membership in the class and entitlement to relief. In cases involving entitlement to benefits based on disability, the period at issue shall commence with the period at issue in the claim that led to membership in the class and entitlement to relief and shall continue through the date of the new hearing or the date of a later allowance or the date of attainment of age 65, whichever is earlier. Unless an SSA adjudicator issues a fully favorable decision on the subject claim without a hearing, the new hearing shall be de novo and conducted pursuant to SSA's regulations and all applicable law, including the regulations and the applicable law concerning development of evidence and the opportunity to appear in person, testify and offer evidence into the record.
SSA shall make a good faith effort to maintain by computerized tracking system a record of the number of individuals to whom it sends notices of entitlement to request relief and the number of individuals who respond to the notices. SSA shall provide class counsel with annual reports containing this information, if any, for a period of three years following issuance of the instructions pursuant to ¶ 4(a) above.
Upon request, SSA shall provide class counsel with reasonable access to class members' files for the purpose of resolving class membership issues, if they arise. Class counsel may request that SSA provide class counsel with access to specific information concerning the implementation of the settlement. SSA shall review such requests for information regarding implementation and shall determine whether release of the information is appropriate. SSA shall make a good faith effort to provide class counsel with copies of hearing decisions issued pursuant to the terms of this Stipulation at the time such decisions are issued or quarterly.
Individual class members retain all statutory and regulatory rights to administrative and judicial review of any new hearing disposition received pursuant to this Stipulation. Except as explicitly provided in this Stipulation, nothing in this Stipulation shall be deemed to waive any right or benefit contained in any statute, regulation, Social Security Ruling, Program Operations Manual System instruction or other applicable law.
Any disclosures of information made under this Stipulation, shall be permitted pursuant to the Privacy Act, 5 U.S.C. § 552a(b) (11).
The Commissioner is excused from the requirements of paragraphs 3,4,5,6,7,8,9,10,11 and 12 of this Stipulation with respect to the claim of any individual, if the Commissioner decides to issue a decision on the individual's claim that is fully favorable to the individual.
The parties shall attempt to resolve between themselves questions concerning attorney's fees, expenses, and costs relating to this litigation. This Stipulation does not constitute an admission by the Commissioner that her position in this litigation was not substantially justified, nor is this Stipulation an admission of liability on the part of the Commissioner for the payment of any attorney's fees, expenses or costs. If plaintiffs' counsel decides to file an application for fees and costs, plaintiffs' counsel shall file the application within 30 days after the date of the Court's entry of judgment approving this Stipulation becomes final.
Upon final approval by the Court of this Stipulation:

(a) All class members' claims arising out of the conduct of the subject ALJ in title II and title XVI cases that occurred before May 22, 1995, that have been or could have been asserted in this action or administratively before May 22, 1995, concerning any matters alleged in this action, are dismissed with prejudice; and

(b) The Commissioner, her administrators or successors, and any department, agency, or establishment of the United States and any officers, employees, agents, or successors of any such department, agency, or establishment, are released from any claims arising out of the conduct of the subject ALJ in title II and title XVI cases that occurred before May 22, 1995, that have been or could have been asserted in this action or administratively before May 22, 1995, concerning any matters alleged in this action; and

(c) Class members are barred forever from prosecuting any claims arising out of the conduct of the subject ALJ in title II and title XVI cases that occurred before May 22, 1995, that have been or could have been asserted in this action or administratively before May 22, 1995, concerning any matters alleged in this action; and

(d) Nothing in this paragraph shall relieve the Commissioner of the duty to comply with this Stipulation. Nothing in this Stipulation shall bind the Commissioner to take any action that is contrary to law.
The relief provided under this Stipulation to eligible class members is in no way to be construed as an admission of wrongdoing by the Commissioner or to be offered in any proceeding as evidence of any past violation of, or failure to comply with federal laws, regulations, or rules at issue in this action. The Commissioner agrees to this Stipulation solely to settle the case and to avoid the cost of further litigation.
If class counsel represents any individuals who file a new class action involving the subject ALJ, counsel for the Commissioner shall not object to assignment of the new class action to the Honorable Robert J. Ward, United States District Judge, Southern District of New York, in accordance with the principles of the related case doctrine and with any local rules in effect at the time of the filing of the new class action. However, the Commissioner does not waive any defenses in agreeing to permit assignment of such a new class action in this fashion.
Class counsel, by their signatures below, warrant that they are sole counsel in this action to the plaintiff class and that they are authorized to stipulate to settlement of this action.
None of the terms of this Stipulation may be changed except by written agreement of the parties and approval by the Court. This Stipulation shall have no force or effect if not finally approved by the Court in its entirety. The Court shall retain jurisdiction over this action solely for the purposes of enforcement of the specific provisions of this Stipulation and of deciding any claim for attorney's fees and costs if the parties are unable to agree on such fees and costs.


 Dated: New York, New York 
 August
16, 1995

__________/s/____________
TOBY GOLICK, ESQ.
CARDOZO BET TZEDEK LEGAL SERVICES
Attorneys for the Plaintiff Class
55 Fifth Avenue
New York, New York 10003
Telephone: (212) 790-0240

__________/s/____________
DAVID S. UDELL, ESQ.
JONATHAN A. WEISS, ESQ.
LEGAL SERVICES FOR THE ELDERLY
Attorneys for the Plaintiff Class
130 West 42nd Street, 17th Floor
New York, New York 10036
Telephone: (212) 391-0120

__________/s/____________
JILL ANN BOSKEY, Of Counsel To
WAYNE G. HAWLEY, ESQ.
MFY LEGAL SERVICES
Attorneys for the Plaintiff Class
35 Avenue A
New York, NY 10009
Telephone: (212) 475-8000

MARY JO WHITE
United States Attorney for the
Southern District of New York
Attorney for Defendant

By: __________/s/____________
LINDA A. RIFFKIN
Assistant United States Attorney
100 Church Street; 19th Floor
New York, New York 10007
Telephone: (212) 385-4360
(LR - 9651)

OF COUNSEL:
 
 Arthur J. Fried
 General
Counsel
 
 Randolph W. Gaines
 Acting Principal
Deputy General Counsel
 
 Dean Landis

Attorney
 
 Social
Security Administration

PRELIMINARILY APPROVED AND ORDERED, pursuant to ¶ 3(a) of the stipulation and Order, Rule 23(e) of the Federal Rules of Civil Procedure, and the Privacy Act, 5 U.S.C. § 552a(b)(11), this 17th day of August, 1995. The parties shall forthwith implement the terms of this Stipulation and Order. A separate order will be issued scheduling the Rule 23(e) hearing, and setting forth the dates for the mailing of the notices to potential class members and the submissions of any objections to the proposed settlement.

________________/s/_________________

Robert
J. Ward
 UNITED STATES DISTRICT JUDGE

Exhibit 1

SOCIAL SECURITY ADMINISTRATION

_________________________________________________________________________

[Name]	DOC:	DATE:
[Address]	KE:	Social Security Number:
[City State ZIP]		Key Code:
		Reference Number:
		Claim Numbers:

NOTICE OF OPPORTUNITY TO OBJECT TO PROPOSED SETTLEMENT

- PLEASE READ CAREFULLY -

This notice is about a proposed settlement of a class action lawsuit that may affect you. The lawsuit is called Kendrick v. Chater, No. 90 Civ. 3776 (S.D.N.Y.). This notice explains how to get more information about the proposed settlement, and how to tell the Court if you think the proposed settlement is unfair. This notice does not require you to do anything.

We believe that the proposed settlement may affect you because our records show that we made an unfavorable hearing decision on your claim for Social Security or Supplemental Security Income (SSI) benefits between September 25, 1977, and May 22, 1995. Therefore, you may be a member of the class of individuals affected by the proposed settlement of the lawsuit.

Explanation of the Lawsuit

The lawsuit was filed against the Secretary of Health and Human Services on June 4, 1990, in the United States District Court for the Southern District of New York. The lawsuit claimed that an Administrative Law Judge (ALJ) who worked in the Chicago, Illinois and New York, New York, Office of Hearings and Appeals was generally biased against people seeking benefits. On February 27, 1992, the Court issued an Order granting Plaintiffs' Motion for Class Certification, Kendrick v. Sullivan, 784 F. Supp. 94 (S.D.N.Y 1992). (Shirley S. Chater became the defendant in this case as of March 31, 1995.) The court certified a class of individuals whose claims were before the ALJ who was the subject of this litigation.

Terms of the Proposed Settlement

The proposed settlement was filed recently in federal district court so that the Court may decide if it is fair. Under the settlement, an individual who requested a hearing before the ALJ who was the subject of this litigation in the Manhattan, New York, or Chicago, Illinois, Office of Hearings and Appeals, on a Social Security or SSI claim, and who received an unfavorable decision issued between September 25, 1977, and May 22, 1995, will be able to ask us to review the decision. An individual in this group who is entitled to have us review the claim again and whose claim is approved may receive money.

Under the terms of the settlement, we will not review unfavorable decisions for people (a) who did not receive a decision from the ALJ who was the subject of this lawsuit, or (b) who received a decision issued before September 25, 1977, or after May 21, 1995, or (c) who received all the benefits they claimed, either on appeal, or on remand from an appeal or by filing another claim, or (d) who received a new hearing and decision from an ALJ other than the ALJ who was the subject of this lawsuit and that considered the entire time period raised in the Kendrick claim, either on remand or as the result of the settlement in another class action, or (e) who filed a case in federal court and received a final decision concerning the conduct of the ALJ who was the subject of this litigation.

Effect of the Settlement

All class members will be bound by the terms of the proposed settlement if the court approves it. This means that class members will not be able to bring new lawsuits arising out of past actions by the ALJ who was the subject of this litigation.

How to Object to the Proposed Settlement

You may tell the Court what you think about the proposed settlement. If you think it is fair, you do not need to comment. If you think it is unfair, you should send your written objections to the law office that represented the plaintiff class. Write David Udell, Esquire, Legal Services for the Elderly, 130 West 42nd Street, 17th Floor, New York, New York 10036-7803. Your letter must be postmarked by [date 30 days prior to the date of the Rule 23(e) hearing]. You may also appear at the hearing and testify before District Court Judge Robert J. Ward who will decide whether to approve the settlement at a hearing on [date of the Rule 23(e) hearing] in the United States Courthouse, One Foley Square, Courtroom 1506, New York, New York. If you send written comments and wish to testify at the hearing, your testimony should be related to the matters addressed in your written objections.

Do Not Ask Us to Review Your Past Hearing Decision At This Time

We will not review your past hearing decision at this time. If the court approves the settlement, then we will send you a notice offering you the opportunity to ask us to review your past decision. At that time, you can ask us to determine whether you are entitled to relief under the settlement.

How to Get More Information

To get a copy of the proposed settlement, or for more information concerning the lawsuit, write the law office that represented the plaintiff class. Write David Udell, Esquire, Legal Services for the Elderly, 130 West 42nd Street, 17th Floor, New York, New York 10036-7803 or call (212) 391-0120. If someone is helping you with your claim, you should contact that person. Please do not contact Judge Ward or the Clerk of the Court about this proposed settlement.

Exhibit 2

SOCIAL SECURITY ADMINISTRATION

_________________________________________________________________________

[Name]	DOC:	DATE:
[Address]	KE:	Social Security Number:
[City State ZIP]		Key Code:
		Reference Number:
		Claim Numbers:

PLEASE READ CAREFULLY!

YOU ONLY HAVE 90 DAYS TO RESPOND

We may owe you money. This is because of a court case called Kendrick v. Chater.

Our records indicate that we made an unfavorable hearing decision on your Social Security or Supplemental Security Income (SSI) claim on or after September 25, 1977, but before May 22, 1995. You can ask us to look at the decision again by sending in the enclosed reply form within 90 days.

IF YOU ALREADY GET MONTY FROM SOCIAL SECURITY OR ARE PURSUING A CLAIM FOR BENEFITS

Even if you are already receiving money from Social Security, or are presently pursuing a claim for benefits, we may owe you more money in connection with the past hearing decision.

WHAT YOU NEED TO DO IF YOU WANT US TO REVIEW THE UNFAVORABLE HEARING DECISION THAT WE MADE IN THE PAST

Fill out the enclosed reply form and send it to us now.

You have only 90 days to do this. You should act as soon as possible. Do not wait or you may lose your right to have the decision reviewed.

WHAT WE WILL DO

After we receive the reply form from you, we will look to see if you meet the requirements for a new review. These requirements are described in the settlement agreement in the Kendrick court case. Although we will try to review your case as soon as possible, it will likely be some time before we look at your case. If you do not meet the requirements, we will send you a letter that explains why.

If we find that you meet all the requirements, we will make a new decision to replace the unfavorable decision that we made in the past. We will contact you if a new hearing is required. We will also notify you if you must do anything to help us make the new decision.

IF YOU HAVE ANY QUESTIONS

If you have any questions, you may call your local Social Security office. We can answer most questions over the telephone. You can also write or visit any Social Security office. If you call or visit an office, please try to have this letter with you. It will help us answer your questions. You may also call us toll free at 1-800-772-1213 if you have any questions.

If you already have a lawyer or other legal representative, you may show this notice to him or her: You do not need a lawyer or legal representative to send the reply form back to Social Security.

Si usted no entiende esta carta, llevela a la oficina de seguro social para que se la expliquen.

Enclosures:
 Reply form and envelope

Exhibit 3

SOCIAL SECURITY ADMINISTRATION

___________________________________________________________________________________

KENDRICK v. CRATER - REVIEW REQUEST FORM

___________________________________________________________________________________

IMPORTANT

RETURN THIS FORM WITHIN 90 DAYS

___________________________________________________________________________________

[Name]	DOC:	DATE:
[Address]	KE:	Social Security Number:
[City State ZIP]		Key Code:
		Reference Number:
		Claim Numbers:

IF YOU WANT US TO REVIEW THE HEARING DECISION DATED ON OR AFTER SEPTEMBER 25, 1977, BUT BEFORE MAY 22, 1995, PLEASE SIGN AND DATE THIS FORM, AND RETURN IT IN THE ENCLOSED PRE-PAID ENVELOPE.

SIGNATURE ______________________________________________ DATE _____________________

Please write the area code and the telephone number where we can call you.

AREA CODE _____________ TELEPHONE NUMBER ___________________________

If your address is different from that shown above, please write your correct address.

___________________________________________________________________________________
ADDRESS
(Number and Street, Apartment Number, Post Office Box, or Rural
Route)
 

___________________________________________________________________________________

CITY
AND STATE ZIP CODE

If your Social Security Number is different from that shown above, please write your correct Social Security Number.

_____________________________
 SOCIAL SECURITY
NUMBER.

Privacy Act Notice

The Social Security Act (Sections 205(a) of title II, 702 of title VII 1631(e)(1)(A) and (B) of title XVI. and 1869(b)(1) and (c) of title XVIII) allows us to collect the information on this form. We will use the information to process your claim. You do not have to give us this information, but without it we may not be able to process your claim. Information may be disclosed to another person or to another governmental agency for the administration of the Social Security program or for the administration of programs requiring coordination with the Social Security Administration. Explanations about these and other reasons why information you provide us may be used or given out are available in Social Security Offices. If you want to learn more about this, contact any Social Security office.

Exhibit 4

SOCIAL

SECURITY Important Information

NOTICE

___________________________________________________________________________________

From: Social Security Administration

___________________________________________________________________________________

________________________________________		DATE: ___________________

________________________________________		CLAIM NUMBER: ___________________

________________________________________		DOC: ________________________

THIS NOTICE IS ABOUT YOUR PAST CLAIM FOR SOCIAL SECURITY OR

SUPPLEMENTAL SECURITY INCOME (SSI) BENEFITS

PLEASE READ IT CAREFULLY

You asked us to review your case under the terms of the Kendrick v. Chater settlement agreement. We have looked at your case and decided that you are not entitled to a new hearing decision under the Kendrick settlement agreement. The reason you are not entitled to a new hearing decision is checked below.


___	You did not file a claim for Social Security or SSI benefits.

___	You did not request a hearing with an Administrative Law Judge (ALJ) on your case.

___	You did not receive a less than fully favorable hearing decision issued on or after September 25, 1977, but before May 22, 1995.

___	You did not receive a decision issued by the ALJ whose conduct was the subject of the Kendrick case (subject ALJ).

___	The less than fully favorable decision on your claim was changed to a fully favorable decision following appeal, remand or reopening.

___	You filed another claim which resulted in a decision having the effect of a fully favorable decision on your Kendrick claim.

___	Your case was remanded to another ALJ and you received a new hearing and decision that considered the entire time period(s) at issue in your Kendrick claim.

___	You received a final decision from a federal court in which the subject ALJ's conduct, at issue in the Kendrick case, was addressed and determined.

___	You received a new hearing and decision on your Kendrick claim from another ALJ, as the result of another class action, and that decision considered the entire time period(s) at issue in your Kendrick claim.

___	You have already received all the benefits you could receive under the Kendrick settlement agreement.

___	Other: _________________________________________________________________
	________________________________________________________________________

THIS NOTICE IS NOT A DETERMINATION ABOUT WHETHER YOU ARE DISABLED

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not entitled to a new decision under the Kendrick settlement.

IF YOU DISAGREE WITH THIS DETERMINATION

I-5-4-57. Kendrick v. Chater

I. Purpose

II. Background

III. Guiding Principles

IV. Definition of Class

V. Determination of Class Membership and Eligibility for Relief and Preadjudication Actions

A. Pre-Screening Actions - General

B. OHA Screening Actions

VI. Processing and Adjudication

A. OHA Adjudication of Class Member Claims

B. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims and Other Class Actions (Consolidation Procedures)

VII. Case Coding

VIII. Reconciliation of Implementation

IX. Inquiries

Attachment 1. Kendrick Stipulation and Order; Approved by the U.S. District Court for the Southern District of New York on December 26, 1995; Entered by the Clerk of the Court on December 27, 1995.