Previous Contents Next

I-5-4-59. Small v. Chater

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Entitlement to Relief and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Reconciliation of Implementation
IX Inquiries
Attachment 1 - Joint Motion for Preliminary Approval of Settlement Agreement and Small Stipulation and Order; Approved by the U.S. District Court for the Southern District of Illinois on June 7, 1996.
Attachment 2 - Small Court Case Flag/Alert
Attachment 3 - Request for Cassette Tape Form
Attachment 4 Notice that File Is Available for Review
Attachment 5 - Certification Form
Attachment 6 Notice of Rebuttal (of Class Counsels' Certification)
Attachment 7 Non-Entitlement to Relief Notice
Attachment 8 - SMALL SCREENING SHEET
Attachment 9 - Route Slip or Case Flag for Certification/Screening
Attachment 10 Small Folder Flag for Hearing Office Use
Attachment 11 - Small Claim Flag for CCPRB Use
Attachment 12 - Small Claim Flag for OAO Disability Branch Use
Attachment 13 - Route Slip or Case Flag for Readjudication
Attachment 14 - Sample Notice of Unfavorable Decision on Small Adjudication
Attachment 15 Sample Denial of Request for Review of Small Readjudication

ISSUED: December 5, 1997

I. Purpose

This Temporary Instruction (TI) sets forth the procedures for implementing the parties' joint Stipulation and Order, approved by the United States District Court for the Southern District of Illinois on June 7, 1996, in the Small v. Chater class action involving allegations of misconduct by an Administrative Law Judge (ALJ).

Adjudicators throughout the country must be familiar with this TI because of case transfers and because Small class members who are entitled to relief and now reside outside of Illinois and Missouri must have their cases processed in accordance with the requirements of the joint Stipulation and Order.

II. Background

On September 13, 1989, plaintiffs filed a class complaint alleging misconduct by ALJ Robert Ritter (subsequently referred to as the “subject ALJ”) in the St. Louis, Missouri Hearing Office (HO) of the Office of Hearings and Appeals.

On September 21, 1992, the U.S. District Court for the Southern District of Illinois certified a class to include all individuals whose title II or title XVI claims were the subject of an adverse determination by the subject ALJ and whose claims were not reversed on any subsequent administrative appeal or readjudication.

In order to avoid further litigation, the parties agreed to settle their dispute. On May 15, 1995, the parties filed a jointly negotiated settlement agreement with the court (Attachment 1). On June 15, 1995, the district court preliminarily approved the parties' joint Stipulation and Order for settlement. Following the court's preliminary approval of the Stipulation, SSA performed a computer search to identify potential class members.

On February 21, 1996, at the parties' request, the court issued an order scheduling a fairness hearing, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, for June 7, 1996.

On April 10, 1996, SSA mailed notices to 1,824 individuals who had been identified by SSA's computer systems as potential class members. The notice informed those individuals of the basic terms of the settlement, advised them of the opportunity to object to the settlement, and offered them the opportunity to request relief by returning a review request form.

At the fairness hearing on June 7, 1996, the court considered written objections to the settlement and found the proposed settlement to be fair and reasonable. On the same day, the court issued a separate memorandum and order granting final approval of the settlement agreement.

III. Guiding Principles

In accordance with the Stipulation and Order in Small, the Commissioner will readjudicate the title II and title XVI disability claims of those individuals who: 1) respond to notice informing them of the opportunity to request relief or do not receive notice but otherwise self-identify and request relief (“walk-ins”); and 2) are determined to be class members entitled to relief (see Parts IV. and V. below).

Under the terms of the Stipulation, SSA's Office of Disability and International Operations (ODIO) or the Great Lakes Program Service Center (GLPSC) will retrieve the claim file for each responder or walk-in who had a hearing before the subject ALJ during the time frame for relief and ship it to the St. Louis HO. The St. Louis HO will notify class counsel of its availability for review. The settlement agreement provides that class counsel will perform the initial review of the claim file in the process of determining whether an individual is entitled to relief. Class counsel will have 60 days from the date of the notice to review the claim file for evidence of the conduct specified in Part V.C. and to provide written notice of the certification to the St. Louis HO and the Office of the General Counsel (OGC).

Class counsel may avoid review of the file for certain responders if available systems data establishes that vocational expert testimony was received at the hearing. SSA will provide a list of such individuals based on available systems data to class counsel, who may certify any individual on this list under Part V.B.4. without reviewing the claim file. For each individual that class counsel certifies pursuant to Part V.B.4., class counsel will mail a certification to the St. Louis HO and OGC within 60 days from the date of notification that the claim file is available for review.

The St. Louis HO will review class counsels' certification and, if appropriate, send class counsel a written rebuttal of the certification or notice that the individual is not otherwise entitled to relief within 60 days of the date class counsel mails the certification. If the individual is not otherwise entitled to relief, the St. Louis HO will send class counsel a notice describing why the individual is not entitled to receive relief under the Small Stipulation. If, within 60 days after the date of mailing of the certification, the St. Louis HO does not rebut the certification or send notice to class counsel that the individual is not otherwise entitled to relief, the individual will become entitled to relief.

With the exception of cases consolidated with a current claim pending at the Appeals Council (AC) level to expedite a favorable decision (see Part VI. below), class members who are entitled to relief will receive the opportunity for a new hearing decision from an ALJ other than the subject ALJ. The type of review to be conducted will be a “redetermination” (see Part VI. below). In most cases, the HO nearest to the claimant's residence will perform the required readjudications. Individuals entitled to relief who receive adverse decisions upon readjudication of their claims may appeal to the AC. Any action by the AC on these claims will be binding and not subject to further review.

IV. Definition of Class

The parties' June 7, 1996 Stipulation and Order revised the original class definition, set forth in the district court's September 21, 1992 Order, to include any individual who filed a claim for disability benefits pursuant to title II or title XVI of the Social Security Act; and

However, class members entitled to relief include only those class members

EXCEPTION:

A person is not a class member entitled to relief if the individual received a decision from an ALJ other than the subject ALJ (whether favorable or unfavorable) after a de novo hearing on the potential class member claim, or on a subsequent claim that covered the entire period at issue in the class member claim(s).

V. Determination of Class Membership and Entitlement to Relief and Preadjudication Actions

A. Pre-Certification — General

  1. Notification of Individuals Potentially Entitled to Relief

    1. On April 10, 1996, Litigation Staff mailed notices to 1824 individuals who had been identified by its computer systems as potential class members. Such individuals had 60 days (from the date of the notice) to request that SSA readjudicate their claims under the terms of the Small Stipulation and Order.

    2. ODIO will send untimely responses to the servicing field office (FO) (i.e. district or branch office) to develop for possible evidence of good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 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 GLPSC (title XVI only claims) for any additional folder retrieval action that may be necessary and for routing to OHA.

    3. An individual who did not receive written notice of the settlement could have, nonetheless, requested relief under the Stipulation by filing a written request with SSA by October 7, 1996, which is 180 days from the date (April 10, 1996) that SSA mailed the written notices to the systems-identified potential class members. The written request must have included the individual's social security number, claim number, date of birth, and request to receive relief under the Small Stipulation. The Stipulation does not provide for consideration of good cause for untimely responses by walk-ins received after October 7, 1996.

  2. Identification of Individuals Entitled to Relief

    Litigation Staff shall generate alerts and review its available systems data to determine whether individuals who requested relief as specified in Part V.A.1., above, had a hearing conducted by the subject ALJ during the time frame for relief (on or after September 28, 1986, but before January 22, 1992). For those individuals who had a hearing during the time frame for relief, SSA (ODIO or GLPSC) will retrieve and/or reconstruct the appropriate claim folder(s) and forward them to the St. Louis HO for class counsels' review. For those individuals who did not have a hearing during the time frame for relief, Litigation Staff will forward the alert and query package to the St. Louis HO.

  3. Alert and Folder Retrieval Process

    All response forms should be returned to ODIO so that the information can be entered into the Civil Actions Tracking System (CATS). CATS will generate folder alerts to the current claim file location for all potential class members who had a hearing before the subject ALJ during the time frame for relief. See Attachment 2 for a sample Small alert.

    ODIO will associate the computer-generated alerts with available title II and concurrent title II and title XVI claim file(s) for potential class members who had a hearing before the subject ALJ during the time frame for relief. For title XVI only claims, the GLPSC will retrieve available files for potential class members who had a hearing before the subject ALJ during the time frame for relief. Once the claim files and alerts have been associated, ODIO or the GLPSC will forward the alert and claim files directly to the St. Louis HO, unless there is another claim pending, for further processing.

    If ODIO or the GLPSC determines that a potential class member's claim file or a subsequent claim file is pending or stored at OHA Headquarters, ODIO or the GLPSC will send the alert, along with any prior claim file(s) not in OHA's possession, to the OAO Class Action Coordinator for association with the pending or stored claim file. If ODIO or the GLPSC determines that the potential class member's claim file (either current or prior Small claim file) is pending or stored in an OHA HO, ODIO or the GLPSC will send the alert, along with any prior claim file(s) not in OHA's possession, to the HO which has the pending or stored claim file. Since all certification and screening actions will be conducted in the St. Louis HO, the OHA component receiving the alert must forward all current and prior files to the St. Louis HO for processing. If the pending or stored claim file cannot be released, a photocopy of that file should be forwarded to the St. Louis HO as provided in Parts V.E.3. and V.E.4. below.

    NOTE:

    The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters. The Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final reconciliation for individuals entitled to relief.

  4. Ensuring Folder Is Ready for Review

    The St. Louis HO will review the file to determine whether the individual was represented at the hearing(s) held by the subject ALJ during the time frame for relief. If the individual was unrepresented, and a transcript or cassette recording of the Small hearing(s) is not present in the file, the St. Louis HO will complete a Cassette Tape Request Form (Attachment 3) and forward it to the Computer Cassette Library (CCL) located in OHA Headquarters at the following address:

     

    Office of Hearings and Appeals
    Office of Appellate Operations
    Computer Cassette Library (CCL)
    One Skyline Tower, Suite 803
    5107 Leesburg Pike
    Falls Church, VA 22041-3200

    Attn: Branch Chief

    The CCL will retrieve available transcripts or hearing tapes, and forward them to the St. Louis HO for association with the claim file.

  5. Folder Reconstruction

    1. SSA shall make good faith efforts to reconstruct missing claim files of individuals who had a hearing during the time frame for relief. SSA will reconstruct these files to the best of its ability under existing SSA procedures. ODIO will initiate any necessary reconstruction of prior claim files for title II and concurrent cases, and the GLPSC will initiate claim file reconstruction for title XVI cases.

    2. The HO or OAO will not delay action on a current claim when a prior Small claim file is being reconstructed for class counsels' review and certification. When the HO or OAO completes action on the current claim, the HO or OAO, as appropriate, will forward a copy of the action on the current claim to the St. Louis HO for association with the reconstructed file.

    3. Upon receipt of a reconstructed file, the St. Louis HO will review the file to determine whether the individual was represented at the hearing(s) held by the subject ALJ during the time frame for relief. If the individual was unrepresented, and a transcript or cassette recording of the Small hearing(s) is not present in the file, the HO will follow the procedures in Part V.A.4. above.

B. Certification by Class Counsel — General

Class counsel will review the retrieved (or reconstructed) claim files to determine whether the files contain evidence of the conduct specified in Part V.C. below, by the subject ALJ.

  1. Notification of Class Counsel that the Folder Is Available for Review

    After receiving a claim file for a potential class member and ensuring that the file is ready for review pursuant to Part V.A.4. above, the St. Louis HO will send class counsel a notice (Attachment 4) that the file is available for review. The notice will be sent to class counsel at the following address:

     

    A. Robert Kassin
    Attorney At Law
    P.O. Box 425
    Edwardsville, IL 62025

    Attn: Small court case

  2. Completion of Certification Form

    Within 60 days after the St. Louis HO sends notification to class counsel that an individual's claim file is available for review, if class counsel reviews the file and finds that any of the conduct by the subject ALJ specified in Part V.C. below, is evidenced in that file, class counsel shall mail a completed certification form (Attachment 5) to the St. Louis HO at the following address:

     

    Office of Hearings and Appeals
    Old Post Office Building, Room 220
    815 Olive Street
    St. Louis, Missouri 63101-9933

    A copy will be sent to OGC at the following address:

     

    Office of the General Counsel
    Altmeyer Bldg., Rm. 600
    6401 Security Blvd.
    Baltimore, MD 21235

    Attn: Small Attorney

    If class counsel does not certify the case within the 60 day time frame, the potential class member will not receive relief.

  3. Rebuttal of Certification/Notice that Individual Is Not Otherwise Entitled to Relief

    Class counsels' certification will become the final determination of entitlement to relief unless the St. Louis HO provides a rebuttal or notice to class counsel that the individual is otherwise not entitled to relief within 60 days of the date that class counsel mails the certification to the St. Louis HO (see Parts V.D. and V.E. below). In the event that SSA mails class counsel a rebuttal or notice that the individual is otherwise not entitled to relief, class counsel may dispute that determination by raising an appeal to the Department of Health and Human Services' Departmental Appeals Board (DAB) pursuant to Part V.G. below. The DAB's decision on whether an individual is or is not a member of the class entitled to relief will be binding and not subject to further review.

  4. Certification Based on Available Systems Data

    Prior to retrieving claim files, SSA shall review its available systems data to determine whether a vocational expert testified at the hearing of any individual responder who had a hearing conducted by the subject ALJ during the time frame for relief (on or after September 28, 1986, but before January 22, 1992). SSA will create a list of those individuals and will provide a copy of such list to class counsel. Class counsel may certify the claim of any individual on this list without reviewing the claim file by mailing a completed certification form (Attachment 5) to the St. Louis HO and OGC at the addresses in Part V.B.2. above, within 60 days from the date the St. Louis HO mails class counsel a notice that an individual's claim file is available for review. For each individual so certified, class counsel will annotate item 2 on Attachment 5 to indicate that the certification is based on systems data provided by SSA.

    The St. Louis HO will place a copy of the certification in the claim file. The certification will become the final determination of entitlement to relief unless the St. Louis HO mails a rebuttal or notice that the individual is otherwise not entitled to relief within 60 days of the date class counsel mails the certification.

C. Conduct Specified in Paragraph V(B) of Small Stipulation and Order

The Stipulation provides that class counsel will mail SSA a certification form if any of the conduct described below is evidenced in the individual's claim file:

  1. The subject ALJ obtained a consultative examination, whether pre-hearing or post-hearing, and the claim file includes no documentation that the subject ALJ first requested the treating physician to conduct the examination;

  2. An expert witness testified at the hearing at the request of SSA;

  3. The subject ALJ obtained post-hearing development and the claim file includes no documentation that the subject ALJ provided the individual or the individual's representative an opportunity to examine and comment on, to object to, or to refute the post-hearing evidence;

  4. The subject ALJ sent an interrogatory to an expert witness and the claim file includes no documentation that the interrogatory was proffered to the individual or the individual's representative (before being propounded to the expert) with the opportunity to object to the use of the interrogatory, to object to the substance of the interrogatory, or to propose additional interrogatories;

  5. The subject ALJ sent an interrogatory to an expert witness that was not modified or supplemented as requested by the individual or the individual's representative unless the requested modification or supplementation was not material to the issue of disability;

  6. The subject ALJ sent an interrogatory to an expert witness that was modified or supplemented as requested by the individual or the individual's representative and the claim file includes no documentation that the interrogatory as modified or supplemented was proffered to the individual or the individual's representative for further comment (before being propounded to the expert) with the opportunity to object to the use of the interrogatory, to object to the substance of the interrogatory, or to propose additional interrogatories;

  7. The subject ALJ received a response to an interrogatory to an expert witness and the claim file includes no documentation that the response to the interrogatory was proffered to the individual or the individual's representative;

  8. The subject ALJ communicated ex parte with a treating source, consultative examiner, or a medical or vocational expert;

  9. With respect to an individual who was unrepresented at the time of the hearing:

    1. The claim file includes documentation that additional, specific medical records relevant to the claim existed and the claim file includes no documentation that the subject ALJ requested such records; or

    2. The subject ALJ did not obtain a consultative examination when such an examination would have been required under the standards currently set forth in 20 CFR §§ 404.1519 and 416.919; or

    3. The subject ALJ did not obtain expert evidence on vocational issues and the claim file includes documentation that the individual had a severe nonexertional impairment and the claim was denied at the fourth or fifth step of the sequential evaluation process;

  10. With respect to an individual who was unrepresented at the time of the hearing, the tape recording or transcript of the hearing (if available) documents that:

    1. The subject ALJ did not advise the individual of the right to representation, including an explanation of the manner in which an attorney can aid in the proceedings, the possibility of free counsel or a contingency arrangement, and the limitation on attorney's fees to twenty-five percent of past-due benefits plus required Agency approval of the fees; or

    2. The subject ALJ did not elicit testimony from the individual regarding an issue that was relevant to the claim, or the ALJ's inquiry regarding the issue was wholly inadequate to support a finding on the issue; or

  11. If SSA reconstructed the individual's claim file pursuant to Part V.A.5. above, the claim file includes insufficient information to determine whether any of the above-specified conduct may have occurred.

D. Rebuttal of Class Counsels' Certification

The St. Louis HO is the only component that will review the claim file(s) and class counsels' certifications for possible rebuttal. Within 60 days after class counsel mails a certification that indicates that the conduct specified in Part V.C. above occurred, the St. Louis HO will review the file for evidence that supports or contradicts class counsels' certification and may rebut the certification by mailing written notice to class counsel that the specified conduct did not occur (Attachment 6). Class counsel may dispute the rebuttal pursuant to Part V.G. below.

E. Post-Certification Action/Determination that an Individual is Not Entitled to Relief

The St. Louis HO is the only component that will review the claim file(s) of those individuals whose claims are certified to determine whether all other requirements for relief are met. Within 60 days after class counsel mails a certification that the conduct specified in Part V.C. above occurred, the St. Louis HO will complete a screening sheet (Attachment 8), as provided in Part V.E.2. below, to determine whether the other requirements for relief specified in Part I.V. and Attachment 8. If the St. Louis HO determines that the individual is otherwise not entitled to relief, the HO will mail a non-entitlement to relief notice (Attachment 7) to class counsel. Class counsel may dispute the determination pursuant to Part V.G. below.

  1. Jurisdiction for Review/Pre-Screening Actions

    All claims will be screened at the OHA level by the St. Louis HO. The St. Louis HO will ensure that a timely certification has been received for the individual pursuant to Part V.B. above prior to screening for entitlement to relief.

  2. General Screening Instructions

    In cases where class counsel mails a timely certification, the St. Louis HO will associate the alert and any prior claim file(s) with the claim file(s) in its possession and complete a screening sheet (Attachment 8) as follows.

    • Consider all applications that fall within the Small time frame;

    • Follow the screening sheet instructions when completing the screening sheet; and

    • Sign and date the original screening sheet and place it in the claim file (on the top right side of the file).

  3. Special Instructions - Current Claim is Pending at OHA

    If a current claim is before the AC, the OAO Class Action Coordinator will forward the alert, a photocopy of the current claim file and the prior claim file(s) (or a photocopy of the prior file if it is needed to adjudicate the current claim) to the St. Louis HO using Attachment 9 for review by class counsel. The Coordinator will place a notation in the current claim file regarding the Small claim because the adjudicating component must notify the St. Louis HO when processing of the current claim is completed. The St. Louis HO will notify the OAO branch if the individual is subsequently determined to be entitled to relief under Small.

    If a current claim is pending in an HO other than the St. Louis HO, the HO will forward the alert, a photocopy of the current claim file and the prior claim file(s) (or a photocopy of the prior file if it is needed to adjudicate the current claim) to the St. Louis HO using Attachment 9 for review by class counsel. The St. Louis HO will notify the HO if the individual is subsequently determined to be entitled to relief under Small.

  4. Special Instructions - Claim at OHA But No Current Action Pending

    If a claim file (either on a Small claim or another claim) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file(s) awaiting potential receipt of a request for review or notification that a civil action has been filed, the OAO Class Action Coordinator will forward the alert and a photocopy of the file(s) at OHA headquarters to the St. Louis HO using Attachment 9.

  5. Special Screening Instructions if a Civil Action Is Involved

    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 a copy of any accompanying claim file(s) to the St. Louis HO for review by class counsel. The route slip to the HO should indicate that there is a civil action pending. The Coordinator will also notify the appropriate OAO Court Case Preparation and Review Branch (CCPRB) of the potential Small claim.

    If a civil action is involved, after screening, the St. Louis HO will forward the 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, the CCPRB will immediately notify OGC so that OGC can notify the claimant of the option to have the case remanded for readjudication under Small.

    • If the claim pending in court is a subsequent claim and resolved all Small issues, the claimant is not a Small class member entitled to relief. The St. Louis HO staff will follow the instructions in Part V.F.1. below, for processing such claims.

    • If the claim pending in court is a subsequent claim and did not resolve all Small issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Small claim, the CCPRB will forward the Small claim to the appropriate HO for separate review. The CCPRB will use the case flag in Attachment 11 to indicate that the pending court case does not resolve all Small issues and that the Small class member claim is being forwarded for separate processing. The CCPRB will notify the Class Action Coordinator of this action.

    • If the final administrative decision on the claim pending in court was not adjudicated in accordance with the Small settlement or is legally insufficient for other reasons, the CCPRB may wish to initiate voluntary remand proceedings and consolidate the claims.

F. Post-Screening

  1. Screened-Out Cases

    If the St. Louis HO determines that the individual is not a class member entitled to relief, the St. Louis HO will:

    • notify class counsel of that determination using Attachment 7 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);

    • retain a copy of the notice in the claim file;

    NOTE:

    Include the date and claim number at the top of Attachment 7 in the spaces indicated.

    • retain the claim file(s) (or copy of the file(s)) for 90 days pending a possible dispute regarding entitlement to relief; and

    • if class counsel does not, in a timely manner (see Part V.G. below), dispute the rebuttal or screening determination, return the file(s) (or copy of the file(s)) to the appropriate storage location at the expiration of the 90-day retention period.

  2. Cases Determined to Be Class Members Entitled to Relief

    If SSA does not rebut class counsels' certification or notify class counsel that the individual is otherwise not entitled to relief within the 60-day time frame (see Part V.B.4. above), then the individual shall receive relief.

    If the claimant's current residence is outside the jurisdiction of the St. Louis HO, the St. Louis HO will forward the claim file to the appropriate HO to perform the readjudication using Attachment 13.

    The readjudicating HO will review the file to determine whether a fully favorable decision can be issued on the current record. If necessary the HO will forward the folder via the Small folder flag (Attachment 10) to the appropriate FO for needed development. Medical development will be limited to updating the medical evidence of record where the HO is prepared to find that the claimant became disabled during the redetermination period or that the individual's disability did not cease. The HO will then proceed with processing in accordance with the instructions in Part VI. below.

G. Third Party Resolution of Disputes Concerning Entitlement to Relief

Within 35 days after the St. Louis HO mails rebuttal documentation or notice that the individual otherwise is not entitled to relief, class counsel may file an original and two copies of a request for final resolution of the dispute with the DAB. Copies of the review request shall also be sent to the St. Louis HO and OGC. Within 15 days of class counsels' filing of a review request with the DAB, OGC shall mail to the DAB an original and two copies of all documents and arguments that OGC will submit which identify the specific reasons why OGC believes that the individual is not a class member entitled to relief.

The DAB will assign each review request to a Third Party Review Panel drawn from the DAB's professional staff. The Panel's resolution of the matter will be final and not subject to further review.

H. Case Tracking Requirements

The St. Louis HO and the OAO Class Action Coordinator share responsibility for maintaining a personal computer-based record of OHA implementation activity. This information is necessary to respond to inquiries and to complete reconciliation (see Part VIII.).

  1. The St. Louis HO is responsible for keeping a record of alerts and files received, hearing tape and transcripts received (for unrepresented claimants), notification of class counsel that the file is available for review, whether certification by class counsel is timely, ensuring a timely screening determination and, if appropriate, the timely mailing of rebuttal of class counsels' certification or notice that an individual is not otherwise entitled to relief. The St. Louis HO is also responsible for updating OHA records with any case transfers made to other hearing offices for readjudication.

  2. The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters. The Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred, as well as folder movement where there is a current claim pending or stored in OHA Headquarters.

VI. Processing and Adjudication

A. OHA Adjudication of Claims

All individuals entitled to relief will receive the opportunity for a new hearing decision on their claim from an ALJ other than the subject ALJ. All of the Small readjudications will be conducted at the OHA level. In consolidation cases, the Small readjudication will be performed at the hearing level or the AC level. The conditions under which the AC would perform the readjudication are limited to cases where an ALJ decision is not required because the AC will issue a favorable decision. Most consolidations at the AC level would involve fully favorable dispositions, however, the AC may issue a partially favorable decision as long as it is fully favorable with respect to the Small claim. Individuals who receive adverse readjudication determinations of their Small claims will be able to appeal the determinations to the AC. Any decision by the Appeals Council will be binding and not subject to further review. Except as noted herein, HOs and OHA Headquarters will process Small claims according to all other current practices and procedures including coding, developing evidence, routing, etc.

  1. Type of Review and Period to Be Considered

    1. Pursuant to the Small 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 redetermination. Normal OHA policy and standard operating procedures apply to the scheduling and notice of the Small hearing. The new hearing decision will be based on the claim and period that were at issue in the hearing that led to class membership and entitlement to relief. The readjudication shall be a de novo evaluation of the individual's entitlement to benefits based on all evidence in his or her file including any new evidence relevant to the period at issue.

    2. If the redetermination will result in a favorable decision (in whole or in part), the ALJ shall determine pursuant to 20 CFR §§ 404.1588 - 404.1599 and 416.988 - 416.998, whether the individual's disability continues as of the date of the new decision. However, if the individual is already within a period of disability (20 CFR § 404.321) or is eligible for Supplemental Security Income based on a disability (20 CFR § 416.202), the ALJ shall only consider whether the individual's disability continued up to, but not including, the date on which the individual's disability was found to have begun.

  2. Individual Is Deceased

    If an individual entitled to relief is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.

  3. Releasing Instructions

    The new hearing decision should be accompanied by a special notice of Small Class Action Readjudication (See Attachment 14 — Sample Notice of Unfavorable Decision) rather than a standard notice of unfavorable decision. Likewise, at the AC level, denials of requests for review of Small claims should utilize a modified notice (See Attachment 15 — Sample Denial of Request for Review of Small Readjudication). For a favorable or partially favorable decision at the AC level, the standard notices should be tailored to the circumstances of the particular case using the language contained in Attachments 14 and 15 as a guide.

B. Processing and Adjudicating Small Claims in Conjunction with Current Claims (Consolidation Procedures)

  1. General

    If an individual has a current claim pending at the OHA level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Small claims with the current claim at the level at which the current claim is pending.

  2. Current Claim Pending in the Hearing Office

    1. Hearing Has Been Scheduled or Held, and All Remand Cases

      Except as noted below, if an individual 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 Small 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 an individual entitled to relief under Small, 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 an individual 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 Small claim and the current claim (see Part VI.B.2.d. below).

      EXCEPTION:

      The ALJ will not consolidate the claims if

      • the current claim and the Small 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; or

      • consolidation will unreasonably delay action on either the current claim or the Small claim.

      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 Small claim with any current claim, and when the two claims involve overlapping periods at issue, 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 individual attains age 65 (or through the date the claimant last met the insured status requirements or the prescribed period requirements, if applicable and earlier). Accordingly, consolidation will result in a reopening of the Small claim through the time period at issue in the current claim. However, if the period at issue in the current claim does not overlap the period to be adjudicated in the Small claim, the two claims should be considered separately.

      Nevertheless, if the claimant is found to be disabled within the time frame of the Small claim, the claim will be reopened through the date at issue in the current claim. If the current claim and the Small claim are consolidated, 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 Small claim raises any additional issue(s) not raised by the current claim;

      • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Small claim (the ALJ's decision will clearly indicate that the ALJ considered the Small claim pursuant to the Small Stipulation and Order);

      • indicate in the decision which findings are subject to court review and which are not because there are no court appeal rights with respect to Small readjudications; and

      • modify the sample notice (Attachment 14), as appropriate to fit the circumstances of the particular case.

    4. Action If Claims Not Consolidated

      If the ALJ decides not to consolidate the current claim with the Small claim because 1) the claims do not have any issues in common, or 2) there is a court-ordered time limit, or 3) consolidation would unreasonably delay action on either the current claim or the Small claim, the ALJ will:

      • take the necessary action to complete the record and issue a decision on the current claim; and

      • schedule a hearing and issue a separate decision on the Small claim.

  3. Current Claim Pending at the AC

    If there is a current claim pending at the AC, the St. Louis HO will forward the claim file(s) and the completed screening sheet to the appropriate OAO disability review branch. The action the AC takes on the current claim determines the disposition of the Small claim. Therefore, OAO must keep the claim files together until it completes its action on the current claim. The following sections identify possible AC actions on the current claim and the corresponding action on the Small claim.

    1. AC Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim — Small Issue(s) Will Remain Unresolved.

      This will usually arise when the current claim does not duplicate the Small claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Small claim. For example, the Small claim raises the issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the AC will proceed with its intended action on the current claim.

      OAO staff will attach a Small case flag (Attachment 12) to the Small claim, immediately forward the Small claim to the appropriate HO for action, and retain a copy of Attachment 12 in the current claim file. However, the current claim should not be forwarded with the Small claim unless the appeal period for the current claim has expired. OAO will indicate on Attachment 12 that the AC's action on the current claim does not resolve all Small issues and that the Small claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or AC'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 AC's decision.

    2. AC Intends to Issue a Favorable Decision on the Current Claim — No Small Issue(s) Will Remain Unresolved.

      If the AC 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 an individual entitled to relief under Small, the AC should proceed with its intended action. In this instance, the AC will consolidate the claims, reopen the final decision on the Small claim and issue a decision that adjudicates both applications. The AC's decision will clearly indicate that the AC considered the Small claim pursuant to the Small Stipulation and Order.

    3. AC Intends to Issue a Favorable Decision on the Current Claim — Small Issue(s) Will Remain Unresolved.

      If the AC 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 Small claim, the AC will proceed with its intended action. In this situation, the AC will request the effectuating component to forward the claim files to the appropriate HO, after the AC's decision is effectuated. The HO will assign the Small claim to an ALJ other than the subject ALJ for a new hearing. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: "Small court case review needed — following effectuation forward the attached combined folders to the designated HO for further action."

    4. AC Intends to Remand the Current Claim to an Administrative Law Judge.

      If the AC 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 AC will direct the ALJ to consolidate the Small claim with the action on the current claim pursuant to the instructions in Part VI.B.2.a. above.

      EXCEPTION:

      The AC will not direct the ALJ to consolidate the claim if

      • the current claim and the Small 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 a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Small claim to the HO for separate review. The case flag in Attachment 12 should be used to indicate that the AC is forwarding the Small claim for separate processing.

VII. Case Coding

HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI.B.2. above), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” To identify individuals entitled to relief in HOTS, HO personnel will code “SM” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Reconciliation of Implementation

At an appropriate time, Litigation Staff will request OHA components to reconcile their disposition of class member claims with information available on CATS. Within OHA, the OAO Class Action Coordinator and St. Louis HO share responsibility for maintaining a personal computer-based record of OHA implementation activity (i.e., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA). See Part V.H. and HALLEX I-1-7-12 with respect to reporting requirements.

IX. Inquiries

HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022. OHA headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0721.

Attachment 1. - Joint Motion for Preliminary Approval of Settlement Agreement and Small Stipulation and Order; Approved by the U.S. District Court for the Southern District of Illinois on June 7, 1996.

 
[DATE FILED 05/15/1995]
 
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
 
 
CORENE SMALL, et. al. )  
  )  
Plaintiffs, )  
  )  
v. ) Civil Action No. 89-CV-3700-WDS
  ) (Stiehl, C.J.; Cohn, M.J.)
SHIRLEY S. CHATER, )  
Commissioner, Social )  
Security Administration )  
  )  
Defendant. )  
_________________________________ )  
 
JOINT MOTION FOR PRELIMINARY APPROVAL
OF SETTLEMENT AGREEMENT
 

The plaintiff class and defendant, by their respective counsel, hereby 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,
   
   
 

____________/s/____________
RICHARD CHASE
JOAN SPIEGEL
Land of Lincoln Legal
Assistance Foundation, Inc.
327 Missouri Avenue, Suite 605
East St. Louis, IL 62201
Telephone: (618) 271-2476

  Attorneys for the Plaintiff Class
   
  Date:     May 15, 1995    
   
 

FRANK W. HUNGER
Assistant Attorney General

 

W. CHARLES GRACE
United States Attorney

 

LAURA J. JONES
Assistant United States Attorney
   
OF COUNSEL:  
   

Randolph W. Gaines
Acting Principal Deputy
General Counsel

____________/s/____________
BRIAN G. KENNEDY

   

A. George Lowe
Acting Associate General
Counsel, Litigation Division

Dean Landis
Attorney

Office of the General
Counsel
Social Security
Administration

____________/s/____________
FELICIA L. CHAMBERS
U. S. Department of Justice
Civil Division
Federal Programs Branch
P.O. Box 883
Ben Franklin Station
Washington, D. C. 20044
Telephone: (202) 514-3259

Attorneys for Defendant

Date: May 12, 1995

   
 
 
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
 
 
CORENE SMALL, et. al. )  
  )  
Plaintiffs, )  
  )  
v. ) Civil Action No. 89-CV-3700-WDS
  ) (Stiehl, C.J.; Cohn, M.J.)
SHIRLEY S. CHATER, )  
Commissioner, Social )  
Security Administration )  
  )  
Defendant. )  
_________________________________ )  
 
STIPULATION AND ORDER
 

The parties, by and through their respective counsel, hereby agree to the full and final settlement of this class action on the following basis.

 
I — DESCRIPTION OF THE CAUSE
 

On September 13, 1989, this class action seeking declaratory and injunctive relief was filed against the Secretary of Health and Human Services. On September 21, 1992, the District Court issued a Memorandum and Order denying the Secretary's Motion to Dismiss and granting Plaintiffs' Motion for Class Certification, Small v. Sullivan, 820 F. Supp. 1098 (S.D. Ill. 1992).

 
II — CLASS MEMBERSHIP
 

The class definition as stated in the Court's September 21, 1992 Order is amended, as follows, to include any individual:

  1. Who filed a claim for disability benefits pursuant to Title II or XVI of the Social Security Act;

  2. 1. Who requested a hearing on the claim and had the request dismissed by the Administrative Law Judge (ALJ) whose conduct was the subject of this action (subject ALJ) on or after September 28, 1986, but on or before the date of preliminary approval of this Stipulation and Order (Stipulation) by the Court pursuant to ¶ IV(A) below, or

    2. Who had a hearing on the claim conducted by the subject ALJ on or after September 28, 1986, but on or before the date of preliminary approval of this Stipulation by the Court pursuant to ¶ IV(A) below, and who received a less than fully favorable decision by the subject ALJ which was not reversed upon appeal or remand from an appeal; and

  3. Who did not file a federal civil action in which the issue of the subject ALJ's alleged predisposition to deny claims was addressed and determined.

 
III — CLASS MEMBERS ENTITLED TO RELIEF
 

Class members entitled to relief under this Stipulation shall include any class member:

  1. Who had a hearing conducted by the subject ALJ on or after September 28, 1986, but before January 22, 1992; and

  2. Who is determined to be entitled to relief pursuant to ¶ V(E) below.

 
IV — COURT APPROVAL OF STIPULATION AND REQUESTS FOR RELIEF
 

  1. Preliminary Approval of Stipulation

    Following execution, the parties shall promptly move the Court to enter this Stipulation as an Order by endorsing it following the signature of counsel. Such entry by the Court constitutes preliminary approval of the proposed settlement.

  2. Identification of Class Members

    Following preliminary approval of the Stipulation, the Social Security Administration (SSA) shall, as soon as practicable, use its available data processing systems to identify the names, Social Security numbers, claim numbers and last known addresses of class members.

  3. Scheduling of Rule 23(e) Hearing

    Following identification of 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.

  4. Notice of Rule 23(e) Hearing and Entitlement to Relief

    Following scheduling of the Rule 23(e) hearing, SSA shall send a copy of the notice attached as Exhibit 1, together with a review request form attached as Exhibit 2 and a postage-paid return envelope, by first class mail to class members, identified pursuant to ¶ IV(B) above, at their last known addresses. The notice shall advise each individual of the opportunity to object to approval of this Stipulation and of the possibility of relief under this Stipulation but shall not mention the subject ALJ by name. SSA shall bear the cost of this notice.

  5. Rule 23(e) Hearing

    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. Class counsel shall forward to defendant's counsel and file with the Court copies of all comments immediately upon receipt and no later than 21 days prior to the Rule 23(e) hearing. Any class member who submits such timely written comments may testify at the Rule 23(e) hearing and object to final approval of this Stipulation. Any such testimony by a class member shall be limited to matters addressed in the class member's timely written comments. At the Rule 23(e) hearing, the parties shall request the Court to enter a final order granting final approval of this Stipulation, dismissing this action with prejudice, and expressly retaining jurisdiction for the limited purpose of enforcing the terms and conditions of this Stipulation.

  6. Request for Relief

    1. Any individual who receives the notice of Rule 23(e) hearing and entitlement to relief and who wishes to receive relief under this Stipulation must mail a completed review request form to SSA within 60 days of the date SSA sent the notice to the individual. No individual who receives the notice and whose review request form is not timely received by SSA shall receive relief under this Stipulation unless the individual demonstrates good cause (as defined in 20 C.F.R. §§ 404.911 and 416.1411) for the untimeliness. A determination by SSA concerning good cause shall be binding and not subject to further review.

    2. Any individual who does not receive the notice of Rule 23(e) hearing and entitlement to relief but who wishes to receive relief under this Stipulation must notify SSA in writing of the individual's Social Security number, the individual's claim number, the individual's date of birth, and the individual's request to receive relief under this Stipulation. The individual must notify SSA within 180 days after SSA mails the notices pursuant to ¶ IV(D) above. If the individual fails to do so, then that individual shall not receive relief.

    3. SSA shall provide copies of the requests received under ¶¶ IV(F)(1) and (2) to class counsel.

 
V — DETERMINATION OF ENTITLEMENT TO RELIEF
 

  1. Retrieval of Claim Files

    1. As soon as practicable, for each individual who requests relief in compliance with ¶ IV(F) above, SSA shall make good faith efforts to retrieve the claim file for that individual and shall forward it to the St. Louis, Missouri, hearing office (hearing office). With respect to an individual who was unrepresented at the time of the hearing, SSA shall also make good faith efforts to retrieve and forward the tape recording or transcript of the hearing (if available).

    2. If SSA cannot retrieve the claim file for any individual who requests relief in compliance with ¶ IV(F) above, then SSA shall reconstruct the claim file under existing SSA procedures and shall forward the reconstructed claim file to the hearing office.

    3. Upon receiving claim files, the hearing office will notify class counsel in writing that they are available for review for the purpose of making a certification pursuant to ¶ V(B) below.

  2. Certification by Class Counsel

    Within 60 days after the hearing office sends notification to class counsel that an individual's claim file is available for review pursuant to ¶ V(A)(3) above, class counsel shall mail to SSA (i.e., the hearing office and the Office of the General Counsel, Room 600, Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235) a certification form (attached as Exhibit 3) only if any of the conduct described below is evidenced in the individual's claim file:

    1. The ALJ obtained a consultative examination, whether pre-hearing or post-hearing, and the claim file includes no documentation that he first requested the treating physician to conduct the examination;

    2. An expert witness testified at the hearing at the request of SSA;

    3. The ALJ obtained post-hearing development and the claim file includes no documentation that he provided the individual or individual's representative an opportunity to examine and comment on, to object to, or to refute the post-hearing evidence;

    4. The ALJ sent an interrogatory to an expert witness and the claim file includes no documentation that the interrogatory was proffered to the individual or the individual's representative (before being propounded to the expert) with the opportunity to object to the use of the interrogatory, to object to the substance of the interrogatory, or to propose additional interrogatories;

    5. The ALJ sent an interrogatory to an expert witness that was not modified or supplemented as requested by the individual or the individual's representative unless the requested modification or supplementation was not material to the issue of disability;

    6. The ALJ sent an interrogatory to an expert witness that was modified or supplemented as requested by the individual or the individual's representative and the claim file includes no documentation that the interrogatory as modified or supplemented was proffered to the individual or the individual's representative for further comment (before being propounded to the expert) with the opportunity to object to the use of the interrogatory, to object to the substance of the interrogatory, or to propose additional interrogatories;

    7. The ALJ received a response to an interrogatory to an expert witness and the claim file includes no documentation that the response to the interrogatory was proffered to the individual or the individual's representative;

    8. The ALJ communicated ex parte with a treating source, consultative examiner, or a medical or vocational expert;

    9. With respect to an individual who was unrepresented at the time of the hearing:

      1. The claim file includes documentation that additional, specific medical records relevant to the claim existed and the claim file includes no documentation that the ALJ requested such records;

      2. The ALJ did not obtain a consultative examination when such an examination would have been required under the standards currently set forth in 20 C.F.R. §§ 404.1519 and 416.919; or

      3. The ALJ did not obtain expert evidence on vocational issues and the claim file includes documentation that the individual had a severe non-exertional impairment and the claim was denied at the fourth or fifth step of the sequential evaluation process;

    10. With respect to an individual who was unrepresented at the time of the hearing, the tape recording or transcript of the hearing (if available) documents that:

      1. The ALJ did not advise the individual of the right to representation, including an explanation of the manner in which an attorney can aid in the proceedings, the possibility of free counsel or a contingency arrangement, and the limitation on attorneys' fees to twenty-five percent of past-due benefits plus required agency approval of the fees; or

      2. The ALJ did not elicit testimony from the individual regarding an issue that was relevant to the claim, or the ALJ's inquiry regarding the issue was wholly inadequate to support a finding on the issue; or

    11. If SSA reconstructed the individual's claim file pursuant to ¶ V(A)(2) above, the claim file includes insufficient information to determine whether the conduct identified in ¶ V(B)(1) - (10) above may have occurred.

  3. SSA Rebuttals

    Within 60 days after class counsel mails a certification, SSA may rebut the certification by mailing to class counsel written documentation that the conduct did not occur. Within the same time limit, SSA may mail a notice to class counsel that the individual otherwise is not a member of the class entitled to relief under this Stipulation.

  4. Third Party Resolution

    1. Within 35 days after SSA mails rebuttal documentation or notice that the individual otherwise is not a member of the class entitled to relief under this Stipulation, class counsel may file an original and two copies of a request for review by mail with the designated third party, the Departmental Appeals Board of the Department of Health and Human Services (Room 637-D Humphrey Building, 200 Independence Avenue, S.W., Washington, D.C. 20201 — (202) 690-5863 (telecopier)), for final resolution. Copies of the request for review shall be sent simultaneously to SSA (i.e., the hearing office and the Office of the General Counsel, Room 600, Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235).

    2. Within 15 days of the filing of the request for review, class counsel shall mail to the Departmental Appeals Board an original and two copies (with an additional copy to SSA) of all documents and arguments that class counsel will submit. These papers shall:

      1. Identify the specific reasons class counsel believes that the individual is a member of the class entitled to relief and why SSA's determination is incorrect; and

      2. Include all relevant documents, including a copy of the notice or other documentation referred to in ¶ V(C) above and any attachments.

    3. Within 15 days of class counsel's filing of a request for review, SSA shall mail to the Departmental Appeals Board an original and two copies (with an additional copy to class counsel) of all documents and arguments that SSA will submit. These papers shall:

      1. Identify the specific reasons SSA believes that the individual is not a member of the class entitled to relief and why SSA's determination is correct; and

      2. Include all relevant documents.

      SSA shall advise the Departmental Appeals Board within five days of receipt of the request for review if it will not be making a submission.

    4. Each request for review will be assigned for final decision to a Third Party Review Panel, drawn from the professional staff of the Departmental Review Board, under the authority of 45 C.F.R. §§ 16.4 and 16.13. The Panel will promptly notify class counsel and SSA of the receipt of the request for review and name a Panel contact for questions about case status and procedure. The Panel may grant brief extensions of time for good cause shown (as explained in 45 C.F.R. § 16.15). While the Panel may grant an extension for the submission of documentation in support of the parties' respective positions regarding class membership, the Panel will not grant an extension for receipt of the request for review itself. The Panel may take such actions as the Panel deems necessary to develop a sound record, including, inter alia, requesting a party to file a response to the other party's submission and holding a telephone conference (which will be recorded or transcribed). Within 30 calendar days following completion of the record as determined by the Panel (or as soon thereafter as is practicable), the Panel will issue a written decision explaining why the individual is or is not a member of the class entitled to relief. The Panel's decision on whether an individual is or is not a member of the class entitled to relief will be binding and not subject to further review.

  5. Entitlement to Relief

    If SSA does not rebut class counsel's certification or notify class counsel that the individual otherwise is not a member of the class entitled to relief under this Stipulation, or if the third party finds that SSA has not adequately rebutted class counsel's certification and that the individual otherwise is a member of the class entitled to relief under this Stipulation, then the individual shall receive relief under this Stipulation.

 
VI — RELIEF
 

  1. Nature of Relief

    A class member entitled to relief under this Stipulation shall receive an opportunity for a new hearing decision based on the claim and period that were at issue in the hearing that led to membership in the class and entitlement to relief.

  2. Supplementation of Record

    The class member entitled to relief may supplement the record concerning the claim at issue with evidence that relates to the period at issue in the hearing that led to membership in the class and entitlement to relief.

  3. Hearing Office Procedure

    1. The hearing office shall assign the case of a class member entitled to relief to an ALJ (other than the subject ALJ), chosen by the normal method of assignment, and shall notify the class member of the assignment.

    2. The hearing office shall review the record, including any supplemental evidence submitted by the class member relating to the period at issue, to determine whether the record supports a fully favorable decision on the claim at issue. If so, the ALJ shall reopen the previous determination on the claim and shall issue a fully favorable decision.

    3. If the hearing office determines that the record does not support a fully favorable decision on the claim at issue, then the ALJ may offer the class member the opportunity for a pre-hearing conference pursuant to 20 C.F.R. §§ 404.961 and 416.1461.

    4. If the ALJ cannot make a fully favorable decision on the claim at issue after any pre-hearing conference, then the ALJ shall offer the class member the opportunity for a hearing on the claim. The ALJ shall thereafter make any appropriate decision on the claim, which may include reopening the previous determination on the claim, without regard to any prior decision by the subject ALJ in the case.

    5. If the new decision will be favorable (in whole or in part), then the ALJ shall determine, pursuant to 20 C.F.R. §§ 404.1588-99 and 416.988-98, whether the class member's disability continues as of the date of the new decision. However, if, on the date of the new decision, the class member is already within a period of disability, 20 C.F.R. § 404.321, or is already eligible for Supplemental Security Income on the basis of a disability, 20 C.F.R. § 416.202, then the ALJ shall only determine whether the class member's disability continued up to, but not including, the date on which the class member's disability had already been found to have begun.

    6. If the new decision is not fully favorable, then the class member may appeal the decision to the Appeals Council. Any decision by the Appeals Council will be binding and not subject to further review.

  4. Named Plaintiffs

    1. The claim of Plaintiff Corene Small will be remanded, pursuant to sentence four of 42 U.S.C. § 405(g), for further administrative proceedings. SSA will not make a decision that is less than fully favorable without offering Plaintiff Corene Small the opportunity for a new hearing (before an ALJ (other than the subject ALJ) chosen by the normal method of assignment) on the claim and period that were at issue in the hearing that led to membership in the class.

    2. The claim of Plaintiff Addie Liddell will be remanded, pursuant to sentence four of 42 U.S.C. § 405(g), for further administrative proceedings. SSA will not make a decision that is less than fully favorable without offering Plaintiff Addie Liddell the opportunity for a new hearing (before an ALJ (other than the subject ALJ) chosen by the normal method of assignment) on the claim and period that were at issue in the hearing that led to membership in the class.

 
VII — REPORTS
 

SSA shall provide class counsel with two statistical reports concerning hearings by the subject ALJ on disability claims showing the number of (A) dispositions; (B) affirmances (decisions unfavorable to claimants); (C) reversals (decisions favorable to claimants); and (D) dismissals. The first report shall include information concerning the period ending with the date of the Court's final approval of this Stipulation and following the period included in response to Interrogatory Number 1 of Plaintiffs' Third Set of Interrogatories. The second and final report shall include information concerning the period ending with the date one year from the date of the Court's final approval of this Stipulation and following the period included in the first report.

 
VIII — ATTORNEYS' FEES AND COSTS
 

Each party shall bear its own attorneys' fees, expenses and costs resulting from this litigation.

 
IX — PRIVACY ACT PROVISION
 

Any disclosures of information made under ¶¶ IV(F)(3) and V and any other disclosures authorized under this Stipulation shall be permitted pursuant to the Privacy Act, 5 U.S.C. § 552a(b)(11). Authorized disclosures include, inter alia, disclosures (pursuant to current written consent by individual class members attached at Exhibit 4) made by class counsel to persons representing individual class members (or to persons formerly representing individual class members on the claim and period that were at issue in the hearing that led to membership in the class) for the purpose of effectuating the terms and conditions of this Stipulation. The Stipulated Protective Order dated October 30, 1990, hereby incorporated by reference, shall govern the disclosures of the claim files to class counsel for the purpose of making certifications pursuant to ¶ V(B), the disclosures of individuals' requests for relief under ¶ IV(F)(3), the treatment of the certification forms described in ¶ V(B), disclosures of information by class counsel to persons representing individual class members (or to persons formerly representing individual class members on the claim and period that were at issue in the hearing that led to membership in the class), and any other disclosures authorized under this Stipulation.

 
X — GENERAL PROVISIONS
 

  1. Upon final approval by the Court of this Stipulation, the claims of all class members are dismissed, with prejudice, subject to the retention of jurisdiction for the limited purpose of enforcing the terms and conditions of this Stipulation. This Stipulation represents the full and final resolution of, and the full and exclusive remedy for, any and all allegations, claims or causes of action, whether known or unknown, which have been or could have been asserted in this action or in any other proceeding of any kind, by reason of, with respect to, or in connection with class members' claims.

  2. Defendant, 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 hereby discharged and released from any claims and causes of action that have been or could have been asserted in this action, or administratively, by reason of, with respect to, in connection with, or that arise out of, any matters alleged in this action; provided, however, that nothing in this paragraph shall relieve defendant of the duty to comply with this Stipulation. Nothing in this Stipulation shall bind the defendant to take any action that is contrary to law.

  3. This Stipulation does not constitute an admission by defendant of any pattern or practice that violates or fails to comply with any law, rule, or regulation dealing with any matter within the scope of the allegations contained in the complaint or otherwise raised by plaintiffs in this action. The parties agree that no admission with respect to any claim or defense raised in this action shall be deemed in any subsequent proceeding hereunder to constitute a waiver of any defense which otherwise might be raised. This Stipulation shall not serve as precedent in any other litigation.

  4. Neither this Stipulation nor any of its terms may be amended, modified, changed, or abrogated except by written agreement executed by the parties and approved by the Court. This Stipulation shall have no force or effect if not finally approved by the Court in its entirety.

  5. Preliminary approval of this Stipulation shall be a condition precedent to any obligation of any party pursuant to this Stipulation.

  6. Final judgment in accordance with Rules 54, 58 and 79(a) of the Federal Rules of Civil Procedure shall be entered upon the Court's final approval of this Stipulation. This Stipulation shall become effective on the 61st day after such entry of final judgment; provided however, that this Stipulation shall not be effective if an appeal of the Court's entry of the Stipulation or the final judgment is filed, in which event the Stipulation shall be effective only upon the expiration of all subsequent appeal periods.

  7. If this Stipulation is finally disapproved by any court, or in the event that it fails to become effective for any reason whatsoever, or it is finally reversed or modified on appeal, then this Stipulation shall be null and void, shall have no further force and effect, and shall not be used in this action or in any other action or proceeding. If any of those circumstances occur, then this Stipulation and all negotiations, proceedings and statements made in connection with it shall be without prejudice to any person or party, shall not be deemed or construed to be an admission by any party of any fact, matter or proposition, and shall not be used in any manner or for any purpose in any subsequent proceedings in this action or in any other action, court or administrative proceedings, except for the purpose of restoring the procedural posture of this action to the status quo ante.

    AGREED to by counsel representing the respective parties subject to approval of the Court.

   
   
 

____________/s/____________
RICHARD CHASE
JOAN SPIEGEL
Land of Lincoln Legal
Assistance Foundation, Inc.
327 Missouri Avenue, Suite 605
East St. Louis, IL 62201
Telephone: (618) 271-2476

  Attorneys for the Plaintiff Class
   
  Date:     May 15, 1995    
   
 

FRANK W. HUNGER
Assistant Attorney General

 

W. CHARLES GRACE
United States Attorney

 

LAURA J. JONES
Assistant United States Attorney
   
OF COUNSEL:  
   

Randolph W. Gaines
Acting Principal Deputy
General Counsel

____________/s/____________
BRIAN G. KENNEDY

   

A. George Lowe
Acting Associate General
Counsel, Litigation Division

Dean Landis
Attorney

Office of the General
Counsel
Social Security
Administration

____________/s/____________
FELICIA L. CHAMBERS
U. S. Department of Justice
Civil Division
Federal Programs Branch
P.O. Box 883
Ben Franklin Station
Washington, D. C. 20044
Telephone: (202) 514-3259

Attorneys for Defendant

Date: May 12, 1995

   

     PRELIMINARILY APPROVED AND ORDERED, pursuant to ¶ IV(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 _____ day of ________________, 1995. The parties shall forthwith implement the terms of this Stipulation and Order.

 

 

  _____________________________
  UNITED STATES DISTRICT JUDGE
 
EXHIBIT 1
 
 
SOCIAL SECURITY ADMINISTRATION

______________________________________________________________________________
[Name] DOC: DATE:
[Address] TA: Social Security Number:
[City State ZIP]   Key Code:
    Reference Number:
    Claim Numbers:
 
IMPORTANT NOTICE OF PROPOSED SETTLEMENT
— PLEASE READ CAREFULLY —
 

Our records show that you requested a hearing on a Social Security or Supplemental Security Income (SSI) disability claim which was denied or dismissed on or after September 28, 1986, but before [date of preliminary approval of the settlement agreement]. This is a notice of a proposed settlement of the lawsuit Small v. Chater, No. 89-CV-3700-WDS (S.D. Ill.), that may affect you.

The lawsuit was filed on September 13, 1989, in the United States District Court for the Southern District of Illinois seeking declaratory and injunctive relief against the Secretary of Health and Human Services. In their Amended Complaint, the Plaintiffs alleged that an Administrative Law Judge of the St. Louis, Missouri, Office of Hearings and Appeals was generally biased against claimants for Social Security or Supplemental Security Income (SSI) disability benefits. On September 21, 1992, the Court issued a Memorandum and Order denying the Secretary's Motion to Dismiss and granting Plaintiffs' Motion for Class Certification, Small v. Sullivan, 820 F. Supp. 1098 (S.D. Ill. 1992). The proposed settlement was filed recently in the Court so that the Court may decide if it is fair.

This notice describes the proposed settlement, how to get more information about the proposed settlement, and how to tell the Court if you think it is fair. This notice also describes what you must do if the proposed settlement is approved by the Court and you want us to review your claim again.

The proposed settlement includes the following main terms.

 
People Who May Ask Us to Review Their Claims Again
 

Class members who had a hearing, in the St. Louis, Missouri, Office of Hearings and Appeals, on a disability claim on or after September 28, 1986, but before January 22, 1992, may ask us to review their claims again. People in this group who are entitled to have us review their claims again and whose claims are approved may receive money.

 
People Who May Not Ask Us to Review Their Claims Again
 

Class members who had a hearing on or after January 22, 1992, or whose requests for hearing were dismissed, may not ask us to review their claims again. People in this group and all other class members will be bound by the proposed settlement, if the Court approves it. This means that class members can no longer raise the issues that were raised in this lawsuit.

 
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. To object to the proposed settlement, you must write your objections, sign the letter (or have it signed by your representative, if you have one), and send it to Mr. Richard Chase, Land of Lincoln Legal Assistance Foundation, Inc., 327 Missouri Avenue, Suite 605, East St. Louis, IL 62201. Your letter must be postmarked by [date 30 days prior to the date of the Rule 23(e) hearing]. District Court Judge William D. Stiehl will decide whether to approve the settlement at a hearing on [date of the Rule 23(e) hearing] in [courtroom address]. If you wish to testify at the hearing, your testimony will be limited to the matters addressed in your written objections.

 
What to Do If You Want Us to Review Your Claim Again
 

If you would like us to review your claim again (whether or not you comment on the proposed settlement), you must complete the enclosed “SMALL v. CHATER [mdash ] REVIEW REQUEST FORM” and send it to us in the enclosed postage-paid envelope. YOU MUST SEND US THE FORM WITHIN 60 DAYS OR WE WILL NOT REVIEW YOUR CLAIM AGAIN. DO NOT WAIT OR YOU MAY LOSE THE RIGHT TO HAVE YOUR CLAIM REVIEWED. Even if you now get money from us, we may still owe you more.

 
What We Will Do If You Ask Us to Review Your Claim Again
 

If you send us the “SMALL v. CHATER [mdash ] REVIEW REQUEST FORM”, we and the legal assistance lawyers who worked on this lawsuit will check to see if you are entitled to have us review your claim again. If so, an Administrative Law Judge (ALJ) will make a new decision. If the new decision is not fully favorable to you, then you may appeal that decision to the Appeals Council. Any decision by the Appeals Council will be binding and not subject to further review.

To get a copy of the proposed settlement, or for more information, write Mr. Richard Chase, Land of Lincoln Legal Assistance Foundation, Inc., 327 Missouri Avenue, Suite 605, E. St. Louis, IL 62201, or call (618) 271-2476. If someone is helping you with your claim, you should contact that person. You may also write or call your local Social Security office for more information, or you may call us toll-free at 1-800-772-1213. Do not contact Judge Stiehl or the Clerk of the Court about this proposed settlement. They will not be able to assist you.
 
EXHIBIT 2
 
 
SOCIAL SECURITY ADMINISTRATION

______________________________________________________________________________
SMALL v. CHATER — REVIEW REQUEST FORM
 
 
IMPORTANT
RETURN THIS FORM WITHIN 60 DAYS
IF YOU WANT US TO REVIEW YOUR CLAIM AGAIN
____________________________________________________________________________
[Name] DOC: DATE:
[Address] TA: Social Security Number:
[City State ZIP]   Key Code:
    Reference Number:
    Claim Numbers:
 
IF YOU WANT US TO REVIEW YOUR CLAIM AGAIN, 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 3
 
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
 
 
CORENE SMALL, et. al. )  
  )  
Plaintiffs, )  
  )  
v. ) Civil Action No. 89-CV-3700-WDS
  ) (Stiehl, C.J.; Cohn, M.J.)
SHIRLEY S. CHATER, )  
Commissioner, Social )  
Security Administration )  
  )  
Defendant. )  
_________________________________ )  
 
CERTIFICATION PURSUANT TO PARAGRAPH V(B)
OF STIPULATION AND ORDER
 

As one of the counsel for the plaintiff class, I have reviewed the claim file of ____________________________ (Claim # ______________________) regarding the Social Security or Supplemental Security Income disability claim decided in the St. Louis, Missouri Hearing Office on ______________________. Pursuant to paragraph V(B) of the Stipulation and Order, I certify that I am of the opinion that the claim file contains evidence of the conduct indicated by checkmark below. The evidence of this conduct in the claim file is also described below.

___ 1.     The ALJ obtained a consultative examination, whether pre-hearing or post-hearing, and the claim file includes no documentation that he first requested the treating physician to conduct the examination. Rationale:
  ___________________________________________________________________
  ___________________________________________________________________
  ___________________________________________________________________
   
___ 2.     An expert witness testified at the hearing at the request of SSA. Rationale:
  ___________________________________________________________________
  ___________________________________________________________________
  ___________________________________________________________________
   
___ 3.     The ALJ obtained post-hearing development and the claim file includes no documentation that he provided the individual or individual's representative an opportunity to examine and comment on, to object to, or to refute the post-hearing evidence. Rationale:
  ___________________________________________________________________
  ___________________________________________________________________
  ___________________________________________________________________
   
___ 4.     The ALJ sent an interrogatory to an expert witness and the claim file includes no documentation that the interrogatory was proffered to the individual or the individual's representative (before being propounded to the expert) with the opportunity to object to the use of the interrogatory, to object to the substance of the interrogatory, or to propose additional interrogatories. Rationale:
  ___________________________________________________________________
  ___________________________________________________________________
  ___________________________________________________________________
   
___ 5.     The ALJ sent an interrogatory to an expert witness that was not modified or supplemented as requested by the individual or the individual's representative unless the requested modification or supplementation was not material to the issue of disability. Rationale:
  ___________________________________________________________________
  ___________________________________________________________________
  ___________________________________________________________________
   
___ 6.     The ALJ sent an interrogatory to an expert witne