I-5-4-7.Polaski, et al. v. Bowen
Table of Contents
| I |
Purpose |
| II |
Background |
| III |
Guiding Principles |
| IV |
Definition of Class |
| V |
Implementation of Court Order |
| VI |
OHA Adjudication of Class Member Claims |
| VII |
Inquiries |
| Attachment A |
Eighth Circuit Court of Appeals Order Dated July 17, 1984 |
| Attachment B |
Polaski Screening Instructions |
| Attachment C |
Polaski Screening Sheets |
| Attachment D |
Non-Member Notice (Title II) |
| Attachment E |
Non-member Notice (Title XVI) |
| Attachment F |
List of Field Office Addresses and Destination Codes |
| Attachment G |
Route Slip - OAO or ALJ Sending Non-Class Member's Claims File to the Field Office |
| Attachment H |
Route Slip - OAO Sending Polaski Class Member's Claim File to Servicing Hearing Office |
| Attachment I |
Option Notice: Arkansas Class Member with Claim Pending at AC |
| Attachment J |
Polaski Reply Form: Enclosure for Attachment I |
| Attachment K |
Option Notice: Non-Arkansas Class Member with Claim Pending at Appeals Council |
| Attachment L |
Polaski Reply Form: Enclosure for Attachment K |
| Attachment M |
AC Remand of Arkansas Case to ALJ |
| Attachment N |
AC Remand of Non-Arkansas Case to DDS |
| Attachment O |
Attachment O - Notice Transmitting AC Order of Remand |
| Attachment P |
Option Notice: Non-Arkansas Class Member with Claim Pending at the ALJ Level |
| Attachment Q |
Polaski Reply Form: Enclosure for Attachment P |
| Attachment R |
Notice Transmitting AC Order of Remand |
| Attachment S |
ALJ Remand of Non-Arkansas Case to DDS |
| Attachment T |
List of Addresses for Legal Aid Offices |
| Attachment U |
Polaski Option 2 Claim Flag |
ISSUED: August 2, 1989
I. Purpose
This Temporary Instruction (TI) contains instructions for implementing
orders dated April 12, 1985, July 18, 1988 and February 14, 1989 from the
U.S. District Court for the District of Minnesota in the
Polaski, et al. v. Bowen class action. Those
orders direct the reopening and readjudication of the title II and XVI
disability claims of certain Eighth Circuit residents and former
residents which were denied in 1983 and 1984. The TI also contains
previously disseminated information concerning the Eighth Circuit Court
of Appeals' order dated July 17, 1984, which OHA has followed since that
order was issued.
Adjudicators in all jurisdictions must be thoroughly familiar with this
TI, because Polaski class members who now reside
in states outside the Eighth Circuit must have their claims processed in
accordance with the requirements of the court orders, regardless of their
current state of residence.
II. Background
The Polaski class action included two primary
issues: (1) the evaluation of whether disability has ceased (the medical
improvement issue), and (2) the evaluation of pain and other subjective
complaints (the pain issue).
In July 1984, the Eighth Circuit accepted the Secretary's and the
plaintiffs' settlement language regarding the evaluation of pain and other
subjective complaints and ordered that this standard be followed in all
administrative and judicial proceedings within the Eighth Circuit. OHA
immediately notified its adjudicators of the court's order and the
standard to use in adjudicating all Eighth Circuit claims involving pain
or other subjective complaints. That order remains in effect.
On December 31, 1984, the Court of Appeals for the Eighth Circuit remanded
to SSA Polaski class pursuant to all medical
cessation claims in the Section 2 of Public Law 98-460, the Social
Security Disability Benefits Reform Act of 1984. This aspect of the court
order has been implemented, and these claims are not the subject of the
current instruction.
On April 12, 1985, the District Court for the District of Minnesota issued
an order directing SSA to notify certain individuals whose claims were
denied before the Eighth Circuit issued its order of July 17, 1984 of
their right to a readjudication of their claims under the court ordered
pain standard. On October 30, 1986 the Eighth Circuit upheld the district
court's order and on June 15, 1987, the Supreme Court denied the
Government's petition for a writ of
certiorari.
Based upon a stipulation by the Secretary and the plaintiffs, the district
court issued a detailed implementation order on July 18, 1988. The
district court ruled on the issue of consolidation of claims in an order
dated February 14, 1989. A further order on May 5, 1989, contained
additional implementation requirements.
III. Guiding Principles
A. Evaluation
of Pain and Other Subjective Complaints
In its order dated July 17, 1984, the Eighth Circuit accepted language
upon which plaintiffs and the Secretary had agreed. The court found the
language to be a correct restatement of Eighth Circuit case law concerning
evaluation of pain and other subjective complaints. The Secretary
promptly notified adjudicators of the language which the court approved.
The court's order remains in effect for all administrative and judicial
proceedings within the Eighth Circuit, including the readjudications
ordered by the district court. A copy of the Eighth Circuit's order is
contained in Attachment A.
B. Res
Judicata
In general, an Administrative Law Judge (ALJ) may dismiss a request for
hearing with respect to one or more issues if SSA previously made a final
determination or decision under the same title on a claim involving the
same facts, parties and issues. However, if there has been an intervening
change of position, i.e., a change of legal interpretation or
administrative ruling, which applies to the facts in the case, the
previously adjudicated period may not be considered
res judicata.
In considering whether a request for hearing on a subsequent claim by an
Eighth Circuit resident should be dismissed in whole or in part for
res judicata, consider the Eighth Circuit's order
of July 17, 1984, as implementing a change of position. Therefore, for
subsequent claims involving evaluation of pain or other subjective
complaints, if the final decision or determination on the prior claim was
made at any time on or before July 17, 1984, do not consider the
previously adjudicated period res judicata.
The above discussion applies to whether a request for hearing on a
subsequent claim by any Eighth Circuit resident may be dismissed for
res judicata. For a discussion of
res judicata in Polaski
class member claims, see section VI. C.
IV. Definition of Class
As stated in the Polaski court order, potential
Polaski class members are:
All persons who, at the time their applications were processed, resided in
Minnesota, North Dakota, South Dakota, Nebraska, Iowa, or Arkansas and
who:
applied for title II or title XVI benefits: and
alleged that they are unable to work in whole or in part as a result of
pain or other subjective complaints; and
received final adverse administrative determinations or decisions on
their claims dated as follows:
In Minnesota, North Dakota, South Dakota, and Nebraska, those persons who
received an adverse decision on their claims at any level of the
administrative review process between January 30, 1984, and July 17, 1984,
inclusive;
In Iowa, those persons who received an adverse decision on their claims at
any level of the administrative review process between November 26, 1983,
and July 17, 1984, inclusive; or
In Arkansas, those persons who received an adverse decision on their
claims at the ALJ or Appeals Council (AC) levels between February 20, 1984
and July 17, 1984, inclusive.
The district court orders which this TI implement do not apply to
Missouri residents. The pending class action in
Boyd, et al. v. Secretary applies to Missouri
residents with previously denied claims involving pain or other
subjective complaints. As of the publication of this TI, the
Boyd court has not yet issued a final
implementation order.
An individual's residency at the time of the final adverse decision or
determination is controlling for purposes of determining class membership.
This is particularly important because of the different timeframes in
each jurisdiction. For example, a resident of Nebraska who received an
adverse determination dated November 30, 1983, from the Iowa Disability
Determination Service (DDS), is not a class member, but a resident of Iowa
who received an adverse determination dated November 30, 1983, from the
Nebraska DDS, is a class member.
Only those individuals whose adverse determinations or decisions were
based on medical or medical-vocational grounds can qualify for class
membership. A res judicata dismissal qualifies a
person for class membership as long as all of the other requirements are
met with respect to that dismissal, i.e., the individual received the
dismissal within the applicable timeframe for class membership, and the
prior determination or decision was based on medical or medical-vocational
grounds.
Excluded from class membership are individuals who received adverse
determinations or decisions based on reasons other than medical or
medical-vocational grounds, such as failure to cooperate, whereabouts
unknown, or technical reasons such as no insured status. (See question
8.a. on the Polaski screening sheet in Attachment
C.)
In order to be a class member, the individual must have received a final
determination or decision on his or her claim which was dated within the
applicable timeframe for class membership. Therefore, if an individual
received a determination or decision dated within the applicable timeframe
for class membership, appealed that determination or decision, and
received a final determination or decision dated after July 17, 1984, that
person is not a Polaski class member. (See
question 8 on the Polaski screening sheet in
Attachment C.)
Example:
A potential Polaski class member received an ALJ
decision dated April 17, 1984, that would qualify him for class
membership. However, the claimant requested AC review and received a final
decision from the AC dated July 29, 1984. This claimant is not a
Polaski class member. However, if the AC had
denied the claimant's request for review on July 29, 1984, instead of
issuing a decision on the merits, the ALJ decision of April 17, 1984,
would have become the final decision of the Secretary and the claimant
would be a Polaski class member.
Similarly, a claimant may have received a determination or decision dated
during the applicable timeframe for class membership which became final
through lack of appeal or exhaustion of administrative remedies. If SSA
reopened and revised that final determination or decision after July 17,
1984, either at the claimant's request or on its own initiative, the
revised determination or decision would have become final, if not
appealed, and the individual would not be a class member. (See question 8
on the Polaski screening sheet in Attachment
C.)
V. Implementation of Court Order
A. General
The Polaski court orders require the Secretary to
reopen and reconsider the claims of most class members at the DDS
reconsideration level with full appeal rights to the next level of appeal,
i.e., an ALJ hearing. The only Polaski claims
which will come directly to OHA for review are Arkansas claims. As used
in the remainder of this TI, an “Arkansas claim” refers to a
claim by an individual who is a potential or actual
Polaski class member by virtue of having been an
Arkansas resident at the time an ALJ or the AC issued the decision
qualifying him or her for class membership, regardless of current state of
residence. A “non-Arkansas claim” is a potential or actual
Polaski class member claim in which the claimant
resided in Minnesota, North Dakota, South Dakota, Nebraska, or Iowa at the
time SSA issued the determination or decision qualifying him or her for
class membership, regardless of current residence.
Except as noted herein, hearing offices (HOs) and the AC must process
Polaski review claims according to all other
current adjudicatory practices and procedures such as coding, scheduling,
evidence development, adjudication, routing, attorney representation
issues, etc. Use current medical listings and other criteria when
adjudicating class member claims.
B. Proqram
Service Center, Field Office and DDS Actions
SSA headquarters sent system-generated notices to all potential class
members advising them of their rights under the court orders and offering
them the opportunity to request that their claims be reviewed again. The
Program Service Centers (PSCs) will screen each response to ensure that
the individual replied to the notice of potential class membership within
35 days after the notice was mailed. The PSCs will associate each response
with the claim file and forward the file for screening. The PSCs will
send Arkansas claims to OHA headquarters and non-Arkansas claims to the
appropriate DDSs. The PSCs will send all untimely responses to the
servicing Social Security field offices for development of good cause for
the untimely responses.
The field office will deem that good cause exists for a late response if
the claimant alleges a mental impairment or the record reflects a mental
impairment. If a mental impairment is not involved, the field office will
develop good cause for the late response and apply the same regulatory
standard (20 C.F.R.
404.911 and
416.1411) for
finding good cause as SSA applies to any other missed deadline for
requesting review. The field office will send notices to those claimants
who do not show good cause for failing to respond timely to the potential
class membership notice. That notice explains that SSA will not review the
claim under Polaski because the claimant did not
respond timely. These determinations not to review a responder's claim
because the response was untimely will be reviewable in the same manner as
any other class membership denial, as explained in section C. 3. below.
If the field office finds good cause for the late response, it will
forward the folder to OHA or the appropriate DDS for class membership
screening.
C. Screening
Office of Appellate Operations Actions
OHA headquarters staff will screen most Arkansas claims for class
membership. The PSCs will use system-generated folder alerts to retrieve
the Arkansas claim files and will send the files to the Office of
Appellate Operations (OAO). Upon receipt of the folder, the Docket and
Files Branch (DFR) of OAO will code in receipt on the Case Control System
(Code: 5012). DFB will also keep a running tally of the number of
Polaski claims received for screening.
If the system-generated folder alert shows that a potential class member
folder from any state is associated with a subsequent claim pending at the
AC level, the PSC will send the folder alert to the Division of
Litigation Analysis and Implementation (DLAI) in the Office of Civil
Actions. DLAI will forward the folder alert to the Office of the Deputy
Director for Operations, OAO, for action. That office will send the alert
to the OAO Program Review Branch which is processing the subsequent
claim. The paralegal specialist to whom the claim is assigned will make
the class membership determination. The AC must not take any action on
the subsequent claim until the claimant's class membership status is
resolved.
HO Actions
If a potential Polaski class member from any
state has a subsequent claim pending at the ALJ level, DLAI will send the
folder alert to the HO processing the subsequent claim. The Supervisory
Staff Attorney or his or her designee will make the class membership
determination. The ALJ must not take any action on the subsequent claim
until the claimant's class membership status is resolved.
HO and OAO Actions
If the HO or OAO receives a folder alert but does not have the prior
folder, note on the alert that you do not have the file and send the alert
to DLAI at the following address:
Office of Civil Actions
Division of Litigation Analysis
and
Implementation
P.O. Box 10723
Room 302, BCT II
Arlington, VA
-22210
Attn: Polaski Coordinator
DLAI will return the folder alert to the PSC to locate or reconstruct the
prior folder for class membership determination.
Use the screening instructions contained in Attachment B and the
Polaski screening sheet at Attachment C to screen
for class membership.
Res judicata is not a basis for denial of class
membership.
Follow existing procedures for contacting the local Social Security field
office if any additional information is needed to make the class
membership determination. Also, develop information in the file which
indicates an individual may be a class member. For example, block 10 of
the SSA-831-U5 or other information in the folder may indicate that there
are one or more other claims which might be subject to readjudication
under the Polaski order. Document the claim file
regarding any development undertaken.
The individual making the class membership determination must sign the
screening sheet. File the original screening sheet in the claim file and
send a copy of the first page to DLAI at the address shown on page 7.
D. Timeliness
of Class Membership Determinations
On May 5, 1989, the district court ordered the Secretary to complete class
membership determinations, begin readjudication of the claims of class
members and issue denial of class membership notices to those found not to
be class members by August 14, 1989. Accordingly, all OHA personnel
involved in screening cases for Polaski class
membership must do so expeditiously in order to meet the court-ordered
deadline.
E. Non-Class
Member Determinations
Use Attachment D for title II claims and Attachment E for title XVI claims
to notify individuals that they are not class members. In concurrent
claims, send two separate notices. For each notice, send a copy to the
responder's representative, if one is shown in file, and file a copy in
the claim file.
A specific field office in each state in the Eighth Circuit (except
Missouri) has been designated to serve as a contact point for class
membership issues. These offices are listed in Attachment F. The
designated Polaski field offices will hold
non-class member claim files for 120 days for review by the plaintiffs'
counsel or co-counsel. Transmit all non-class member claim files to the
field office which has been designated to service the responder's state
using the route slip in Attachment G. Enter the claim file transfer on the
Case Control System; see Attachment F for the destination codes.
Upon review of the files, plaintiffs' counsel will contact the Office of
the General Counsel directly if there is any class membership dispute. The
district court will resolve any disputes which the parties are unable to
resolve. Refer any inquiries concerning non-class membership
determinations to DLAI.
If the claimant is not a Polaski class member, it
is not necessary to consolidate or otherwise coordinate action on the
class membership determination with action on a subsequent claim pending
at the ALJ or AC levels. However, if there is a subsequent claim pending,
photocopy any material contained in the prior folder which is pertinent to
the subsequent claim and place it in the subsequent claim folder before
shipping the non-class member folder to the field office designated to
service the responder's state.
Following completion of these actions, resume processing the subsequent
claim.
F. Initial
Handlins of Polaski Class Member Claims
OAO Actions
For Arkansas claims screened by OAO in which there is no subsequent claim
pending at the AC, the analyst will use the route slip in Attachment H to
send the Polaski class member folder to the HO
servicing the claimant's current address. Reflect the claim file
transfer on the Case Control System. For non-Arkansas claims in which
there is no subsequent claim pending at the AC, send the claim to the DDS
servicing the claimant's current address.
If a Polaski class member from any state has a
subsequent claim pending at the AC level, send an option notice, as
explained in G. below.
HO Actions
For Arkansas claims screened in the HO in which a subsequent claim is
pending before an ALJ, consolidate the Polaski
review with the pending claim. See Section B. in Part VI. below for more
information on consolidation. If the claimant is a non-Arkansas
Polaski class member who has a subsequent claim
pending at the ALJ level, OHA must send the claimant an option notice. See
G. below for further information concerning the option procedure.
G. Option
Notice Procedures
Under the terms of the district court's order of February 14, 1989, the
Secretary must notify any Polaski class member
with a subsequent claim pending at the ALJ hearing level or the AC level
of the right to choose to proceed with the subsequent claim or have it
consolidated with the Polaski claim. Accordingly,
SSA and the plaintiffs' counsel have developed option notices, which OAO
and the HOs will use to notify these claimants of their options, as well
as reply forms which the claimants will use to respond.
Option 1 is the consolidation option. Option 1 is to have the subsequent
claim and the Polaski claim reviewed together by
the component performing the Polaski review.
Option 2 is the separate processing option. It calls for OHA to proceed
with the action on the current claim and for the component which will
conduct the Polaski review to defer action on
the class member claim until the Secretary issues a final decision on the
subsequent claim.
The reply form asks the claimant to select an option, sign the form and
return it to the ALJ or AC as appropriate. The claimant must mail the
reply form back within 10 days from the date of receipt of the option
notice. Assume that the claimant received the option notice within 5 days
after the date of the notice. If there is no response within 10 days,
assume the claimant wants option 1, the-consolidation option.
OAO Actions
OAO will send option notices and reply forms as follows:
Attachment I- Arkansas Class Member With Claim Pending at the AC
Attachment J - Enclosure to Send With Attachment I
Attachment K - Non-Arkansas Class Member With Claim Pending at the AC
Attachment L - Enclosure to Send With Attachment K
If the claim is before the AC on its own motion, rather than on a
claimant's request for review, modify the language in the standard notice.
Enclose a self-addressed, franked envelope. Send a copy of the notice and
the enclosure to the claimant and the claimant's representative, if there
is one, and place a copy of the notice and enclosure in the claim file.
Diary the case for 25 days.
If the claimant elects option 1, the consolidation option,
or does not respond within 10 days of receiving the option notice,
the AC will:
take no further substantive action on the subsequent claim;
vacate the ALJ hearing decision; and
remand the subsequent claim to the component which will be conducting the
Polaski review. The HO servicing the claimant's
current address will conduct the review in Arkansas claims; the servicing
DDS will conduct the review in non-Arkansas claims.
Use the language in Attachment M to remand Arkansas claims to an ALJ and
Attachment N to remand non-Arkansas claims to a DDS. Attachment O is a
covering notice transmitting the AC remand order; select the appropriate
language depending on whether you use it to transmit Attachment M or
Attachment N.
If the claimant elects option 2, the separate processing option,
the AC will continue with its action on the request for review or own
motion review. Because the Polaski review will
not take place until after the decision on the subsequent claim becomes
final, there is no need to separate the subsequent claim file from the
Polaski review file.
Send copies of all reply forms electing option 2 to DLAI at the address
shown on page 7 of this instruction. In addition, attach an Option 2 Claim
Flag (Attachment U) to the outside of both the
Polaski review claim file and subsequent
application claim file. As indicated on the flag, send a copy of the AC's
final disposition in all option 2 claims to DLAI. DLAI will establish
controls on all option 2 claims and ensure that they are forwarded to the
appropriate DDS or HO after the decision on the subsequent claim becomes
final.
HO Actions
The court order requires Arkansas claims to be
readjudicated at the ALJ hearing level. Therefore, there is no option
notice for Arkansas claims in which a subsequent claim is pending at the
ALJ level because both reviews will be conducted at the same adjudicative
level. See section VI. B. below for further information on
consolidation.
The HO will send option notices in non-Arkansas claims using the
following attachments:
Attachment P - Non-Arkansas Class Member With Claim Pending at ALJ
Level
Attachment Q - Enclosure to Send With Attachment P
Enclose a self-addressed, franked envelope with the option notice. Send a
copy of the notice and the enclosure to the claimant and the claimant's
representative, if there is one, and place a copy of the notice and
enclosure in the claim file. Diary the case for 25 days.
If the claimant elects option 1, the consolidation option,
ordoes not respond within 10 days of receiving the option notice,
the ALJ will remand the subsequent claim to the DDS servicing the
claimant's current address for consolidation with the
Polaksi review claim.
Use the language in Attachment R to remand the claim to the appropriate
DDS. Attachment S is a covering notice transmitting the ALJ's remand
order; select the appropriate language according to whether the claimant
elected option 1 or failed to respond to the option notice within 10 days
of receipt.
If the claimant elects option 2, the separate processing option,
the ALJ will continue with his or her action on the request for hearing
on the subsequent claim. Because the Polaski
review will not take place until after the decision on the subsequent
claim becomes final, there is no need to separate the subsequent claim
file from the Polaski review file.
Send copies of all reply forms electing option 2 to DLAI at the address
shown on page 7 of this instruction. In addition, attach an Option 2 Claim
Flag (Attachment U) to the outside of both the
Polaski review claim file and the subsequent
application claim file. As indicated on the flag, send a copy of the ALJ's
final disposition of the claim to DLAI. DLAI will establish controls on
all option 2 claims and ensure that they are forwarded to the appropriate
DDS or HO after the decision on the subsequent claim becomes final.
VI. OHA Adjudication of Class Member Claims
A. General
Pursuant to the court's order of May 5, 1989, the Secretary must complete
the screening and commence, but need not complete, the readjudication of
readily located class members' claims by August 14, 1989.
All decisions in Polaski class member claims, as
well as all other decisions within the jurisdiction of the Eighth Circuit,
must indicate that we have applied Polaski v.
Bowen 739 F.2d 1320 (8th Cir. 1984) (Attachment A), when deciding
claims involving allegations of pain or other subjective complaints. The
decision rationale must reflect careful consideration of all pertinent
facts in accordance with the pain standard enunciated in
Polaski for Eighth Circuit claims.
Pursuant to the Polaski court order, we must
fully readjudicate the claim of each class member to determine whether
the claimant was disabled at any time from the date of onset alleged in
the Polaski review claim up to the present (or,
if earlier, up to the date last insured in title II cases). The ALJ must
ensure that the record is fully documented for the entire period at issue.
The ALJ must follow normal case development procedures to obtain
necessary evidence for the entire reopened period. Arkansas class members
having their claims readjudicated at the hearing level have a right to a
hearing and a right to submit additional evidence relating to the
disabling condition(s) alleged in the Polaski
claim.
For Arkansas Polaski class member claims in which
there is no subsequent claim pending at the hearing level, HOs should use
the date of receipt from OHA headquarters as the request for hearing
date.
B. Consolidation
of Polaski Review With a Pending Subsequent
Application
The only Polaski review claims which we will
consolidate at the ALJ level of review with an appeal on a subsequent
application are:
Arkansas Polaski claims in which a subsequent
claim is pending at the ALJ hearing level, and
Arkansas Polaski claims in which a subsequent
claim is pending at the AC and the claimant elects option 1, the
consolidation option.
The ALJ's action following consolidation will depend on the status of the
pending claim at the time of consolidation and whether the issues are the
same. For example, the Polaski claim may involve
an earlier alleged onset date than the subsequent claim. The
Polaski claim would thus raise an additional
issue of disability between the first alleged onset date and the second.
If the ALJ has already held a hearing at the time the
Polaski review claim is consolidated with the
subsequent claim, the ALJ will need to notify the claimant of the new
issue and hold a supplemental hearing if payment from the earliest alleged
onset cannot be made. In all instances, the ALJ will issue a combined
decision which considers both the Polaski review
claim and the subsequent claim.
C. Effect
of a Previously Decided Subsequent Claim
The Polaski class member may have filed a new
claim and received a final determination or decision before the
Polaski review begins, or the claimant may have
elected to defer the Polaski review pending the
outcome of his or her appeal of a determination or decision on a
subsequent claim (option 2 cases).
Under the terms of the court order, SSA, in reopening and issuing new
determinations or decisions on Polaski class
member claims, will apply the normal rules of administrative
res judicata as described in the regulations
with respect to any final determinations or decisions made after July 17,
1984.
Examples:
A claimant received a March 1984 ALJ hearing decision which qualifies him
for Polaski relief. The ALJ's decision ruled on
the period from the alleged onset date in July 1982 through the date of
the decision in March 1984. The claimant filed a new application in
August 1984, alleging the same onset date; a second ALJ considered the
entire period from the alleged onset date in July 1982 through the date
of her decision in July 1986. An ALJ or DDS now has the first claim to
reopen and review pursuant to the Polaski court
order. If the claimant has submitted no additional evidence, and all
other conditions for a res judicata dismissal
are present, the Polaski class member claim can
be dismissed entirely for res judicata because
the entire period at issue has already been considered under the
Polaski standard.
In the example above, the second ALJ might have dismissed the request for
hearing with respect to the issue of disability during the previously
adjudicated period from July 1982 through March 1984 on the basis of
res judicata. In this instance, the second ALJ
would have only considered the merits of the period from the date of the
first ALJ's decision in March 1984 through the date of her decision in
July 1986. A DDS or ALJ conducting the Polaski
review in 1989 must reopen the first claim and consider the period from
the July 1982 to March 1984. However, the issue of disability after March
1984 can be dismissed on the basis of res
judicata because that period has already been considered under the
Polaski standard.
D. Substantial
Gainful Activity Denials
The court order directs that no class member shall be denied benefits on
the basis of substantial gainful activity unless the record conclusively
shows that the person actually engaged in substantial gainful activity for
the entire period of his or her alleged disability or for such a period
as would preclude him or her from establishing a 12 month period of
disability.
E. 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.
VII. Inquiries
Hearing office personnel may call the Regional Office. Regional Office
personnel may call the Division of Field Practices and Procedures in the
Office of the Chief Administrative Law Judge on FTS 235-3504. Headquarters
personnel may call DLAI on 235-3743.
Attachments
Lorraine POLASKI. et al., Appellees,
v.
Margaret M. HECKLER, Secretary of
Health and Human Services,
Appellant.
No. 84-5085
United States Court of Appeals,
Eighth Circuit
Submitted June 12, 184.
Decided July 17, 1984
Class action was brought challenging standards used by the Secretary of
Health and Human Services for evaluating pain and other subjective
complaints of disability claims, as well as that for evaluating medical
improvement. The United States District Court for the District of
Minnesota, Miles W. Lord, Chief Judge, enjoined the Secretary from denying
or terminating disability benefits without following precedential Eighth
Circuit decisions. Secretary appealed. The Court of Appeals held that: (1)
while claimant has burden of proving that disability results from
medically determinable physical or mental impairment, direct medical
evidence of cause and effect relationship between the impairment and
degree of claimant's subjective complaints need not be produced; (2)
absence of objective medical basis supporting degree of severity of
subjective complaints alleged is just one factor to be considered in
evaluating credibility of testimony and complaints; (3) adjudicator is not
free to accept or reject claimant's subjective complaints solely on basis
of personal observations; and (4) language of the parties settlement
agreement setting forth relevant standard correctly restates applicable
case law.
Order accordingly.
Social Security and Public Welfare
140.30
While claimant has burden of proving that disability results from
medically determinable physical or mental impairment, direct medical
evidence of the cause and effect relationship between impairment and
degree of claimant's subjective complaints need not be produced;
adjudicator may not disregard claimant's subjective complaints solely
because objective medical evidence does not fully support them.
Social Security and Public Welfare
140.30
Absence of objective medical basis supporting degree of severity of
disability claimant's subjective complaints alleged is just one factor to
be considered in evaluating credibility of testimony and complaints;
adjudicator must give full consideration to all of the evidence presented
relating to subjective complaints, including claimant's prior work record
and observations by third parties and treating and examining
physicians.
Social Security and Public Welfare
140.30
Disability claim adjudicator is not free to accept or reject claimant's
subjective complaints solely on basis of personal observations; subjective
complaints may be discounted if there are inconsistencies in the evidence
as a whole.
_____________
Mary G. Gray, Minneapolis, Minn., Mark Bohnhorst, Martha Eaves and Steven
Moon, Southern Minnesota Regional Legal Services, St Paul, Minn., for
appellees. Donald A. Gonya, Randolph W. Gaines, Jason R. Baron, A George
Lowe, Gen. Counsel of Health and Human Services, Baltimore, Md., Edward
Rafel, Paul W. Day and Howard S. Scher, U.S. Dept. of Justice, Appellate
Staff, Civ. Div., Washington, D.C., for appellant
Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.
ORDER
On January 20, 1984, Lorraine Polaski filed a complaint in federal
district court for the District of Minnesota seeking review of the
termination of her social security disability benefits by the Secretary of
Health and Human Services (Secretary). She later successfully amended her
complaint to pursue her case as a class action on behalf of similarly
situated disabled persons within the Eighth Circuit. The amended complaint
alleges: first that the Secretary is not following Eighth Circuit Law by
requiring that objective medical evidence fully corroborate a disability
claimant's allegations of pain and other subjective complaints; and
second, that the Secretary is not following Eighth Circuit law by
terminating disability benefits absent new evidence demonstrating either
that the claimant's condition has materially improved or that the original
decision granting benefits was erroneous.
On April 27, 1984, the district court issued a preliminary injunction and
revised its class certification order, 585 FSupp. 1004. The court
determined that the Secretary was nonacquiescing in Eighth Circuit
decisions concerning both the standard for evaluating pain and other
subjective complaints and the standard for evaluating medical improvement.
The court enjoined the Secretary from denying or terminating disability
benefits without following those decisions. It also provided for
reconsideration of the claims of persons within the class under the proper
standards.
On May 1, 1984 the Secretary sought an emergency stay of the preliminary
injunction pending appeal to our Court. The district court denied the
motion for a stay on May 2, 1984. The Secretary filed a notice of appeal
on May 15,1984. On May 25, 1984, our Court granted a temporary stay
pending appeal. We heard oral arguments on June 12, 1984.
In her brief and at oral argument, the Secretary maintained that she had
been applying Eighth Circuit cases concerning the standard for evaluating
allegations of pain and other subjective complaints. At the conclusion of
oral argument, we stated from the bench that our Court would defer any
immediate action in order to allow the parties a chance to reach an
agreement on the standard to be used in evaluating pain and other
subjective complaints in cases within the Eighth Circuit.
[1-3] On July 11, 1984, the Justice Department notified this Court
that the parties reached a settlement, agreeing that the relevant
standard is as follows:
A claimant has the burden of proving that the disability results from a
medically determinable physical or mental impairment. Symptoms such as
pain, shortness of breath, weakness, or nervousness are the individual's
own perceptions of the effects of a physical or mental impairment(s).
Because of their subjective characteristics and the absence of any
reliable techniques for measurement symptoms (especially pain) are
difficult to prove, disprove, or quantify. As a result of this difficulty,
some adjudicators have misinterpreted the Secretary's policies as
enunciated in SSR-82-58.
In particular, some adjudicators may have misinterpreted Example No. 2 in
SSR-82-58 to allow allegations of pain to be disregarded solely because
the allegations are not fully corroborated by objective medical findings
typically associated with pain. The example should not be constructed to
be inconsistent with the text of SSR-82-58 which states in part:
The effects of symptoms must be considered in terms of any additional
physical or mental restrictions they may impose beyond those clearly
demonstrated by the objective physical manifestations of disorders.
Symptoms can sometimes suggest a greater severity of impairment than is
demonstrated by objective and medical findings alone.
While the claimant has the burden of proving that the disability results
from a medically determinable physical or mental impairment, direct
medical evidence of the cause and effect relationship between the
impairment and the degree of claimant's subjective complaints need not be
produced. The adjudicator may not disregard a claimant's subjective
complaints solely because the objective medical evidence does not fully
support them.
The absence of an objective medical basis which supports the degree of
severity of subjective complaints alleged is just one factor to be
considered in evaluating the credibility of the testimony and complaints.
The adjudicator must give full consideration to all of the evidence
presented relating to subjective complaints,including the claimant's
prior work record, and observations by third parties and treating and
examining physicians relating to such matters as:
the claimants daily activities;
the duration, frequency and intensity of the pain;
precipitating and aggravating factors;
dosage, effectiveness and side effects of medication;
functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective
complaints solely on the basis of personal observations. Subjective
complaints may be discounted if there are inconsistencies in the evidence
as a whole. [Emphasis in original.]
The parties also agreed that the Secretary will transmit the agreed-upon
language to adjudicators within the Eighth Circuit responsible for
determining disability, including personnel in state and district offices,
and personnel within the Social Security Administration, ALJs, and the
Appeals Council. The language is to be transmitted no later than July 18,
1984.
This Court agrees with the above language as a correct statement of the
law concerning the evaluation of pain and other subjective complaints for
determining disability. This language thus serves as a correct restatement
of our case law, to be followed in al1 administrative and judicial
proceedings within the Eighth Circuit.
This order shall be issued forthwith. All other questions tied in this
appeal are reserved for further decision by this Court.
General Instructions
Answer the questions on the screening sheet. Check only one block
in Part B on the sheet. Your check mark shows the reason for screening in
or screening out the responder.
You must consider all applications denied (including
res judicata denials) during the period covered
by the court order when making the class membership determination.
Sign the original screening sheet and file it in the claim file.
Send a copy of the first page of the screening sheet to DLAI.
Follow the instructions on the screening sheet guiding you to further
instructions in B. or C. below.
Class Membership Not Found
Prepare the appropriate non-class membership notice. (See TI section V.E.
for handling of non-class member claims.)
Send the notice to the responder and a copy to the representative, if one
is shown in file. Place a copy of the notice in the claim file.
Send the claim file to the designated Social Security field office.
Class Membership Found
No notice regarding class membership is necessary.
See TI section V.F. for initial handling of class member claims.
Part A - Identifying Information
___ ___ ___ - ___ ___ - ___ ___ ___ ___ BIC ___ ___
Member (J) ___ Non-member (F) ___ code (04-08 or
10)___ ___
Name ___________________________
Title II______ Title XVI_______ Concurrent
II/XVI_________
Part B - Screening Criteria
If the responder lived in either Minnesota, North Dakota, South Dakota, or
Nebraska, start at 5.
If the responder lived in Iowa, start at 6.
If the responder lived in Arkansas, start at 7.
If the responder never lived in any of the specified locations, check
block 4 and see note on following page.
___
4.
As a resident of Minnesota, North Dakota, South Dakota, or Nebraska, did
the responder have a claim denied, at any level of the administrative
review process, between January 30, 1984, and July 17, 1984,
inclusive?
If yes: Go to 8.
If no: Check block 5 and see note on following page. ___ 5.
As a resident of Iowa, did the responder have a claim denied, at any level
of the administrative review process, between November 26, 1983, and July
17, 1984, inclusive?
If yes: Go to 8.
If no : Check block 6 and see note on following page. ___ 6.
As a resident of Arkansas, did the responder have a claim denied, at
either the Administrative Law Judge or Appeals Council level, between
February 20, 1984, and July 17, 1984, inclusive?
If yes: Go to 8.
If no : Check block 7 and see note on following page. ___ 7.
Were all of the determinations that meet the above requirement appealed or
reopened, resulting in determination(s) after July 17, 1984? (That is,
was the final decision that was made in each of the
Polaski determinations made July 17, 1984?)
If yes: Check block 8 and see note below.
If no : Go to 8.a.
___ 8.
8.a. Were all of the determinations that meet the above requirements made
on other than medical or medical-vocational grounds? (Consider a
res judicata dismissal as a “determination
based on other than medical or medical-vocational grounds” only if
the prior final determination or decision was based on other than medical
or medical-vocational grounds.)
If yes: Check block 8 and see note below.
If no : Go to 9.
Did the responder allege pain or another subjective complaint (e.g.,
shortness of breath, numbness, weakness, dizziness, nervousness, or any
other problem that may not show up in x-rays, blood tests, or similar
tests )?
If yes: Check block 9 and see note
below. ___ 9.
If no : You must review the medical evidence of record (MER) for
allegations of pain or another subjective complaint. If such is found in
the MER go back and check block 9 and see note below. If no allegations of
pain or other subjective complaints are found in the MER, check block 10
and see note below.
___
10.
Be sure you checked only one block in Part B.
If you checked block 4, 5, 6, 7, 8, or 10, the responder is not a class
member. Check the non-member block in Part A.l., enter the screen-out code
number in Part A.l., and sign below. Follow the instructions in section B
of the instruction sheet.
If you checked block 9, the responder is a class member. Check the member
block in Part A.l. and sign below. Follow the instructions in section C of
the instruction sheet.
Social Security Administration
Retirement, Survivors and Disability Insurance
Important Information
Date:
Claim Number:
This notice is about your Social Security disability benefits. Read it
carefully.
You asked us to review your case under the terms of the
Polaski v. Bowen court decision. We have,
reviewed your case and have decided that you are not a
Polaski class member. This means that we will
not review our earlier decision to deny you benefits. The reason you are
not a class member under the Polaski court
decision is checked below.
Why You Are Not A Class Member
We Are Not Deciding If 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 a
Polaski class member.
If You Are Disabled Now
If you think you are disabled now you should fill out a new application at
any Social Security office.
If You Have A Representative
If a representative is handling your Social Security claims and he or she
is identified in your record, we have sent a copy of this letter to him or
her. However, you might want to tell him or her about this letter
anyway.
If You Have Any Questions
Call or visit any Social Security office. If you do not have a
representative, you may contact one of the Legal Aid offices in your area
or you may contact: (fill-in).
If you visit an office, please bring this letter with you. It will help to
answer your questions.
Social Security Administration
Retirement, Survivors and Disability Insurance
Important Information
Date:
Claim Number:
This notice is about your Supplemental Security Income Disability
payments. Read it carefully.
You asked us to review your case under the terms of the
Polaski v. Bowen court decision. We have,
reviewed your case and have decided that you are not a
Polaski class member. This means that we will
not review our earlier decision to deny you benefits. The reason you are
not a class member under the Polaski court
decision is checked below.
Why You Are Not A Class Member
We Are Not Deciding If 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 a
Polaski class member.
If You Are Disabled Now
If you think you are disabled now you should fill out a new application at
any Social Security office.
If You Have A Representative
If a representative is handling your Social Security claims and he or she
is identified in your record, we have sent a copy of this letter to him or
her. However, you might want to tell him or her about this letter
anyway.
If You Have Any Questions
Call or visit any Social Security office. If you do not have a
representative, you may contact one of the Legal Aid offices in your area
or you may contact: (fill-in).
If you visit an office, please bring this letter with you. It will help to
answer your questions.
Social Security Office (Destination Code 0690)
Room 293, Federal
Building
210 Walnut Street
Des Moines, Iowa 50309
Social Security Office (Destination Code 0675)
1811 Chicago
Avenue
Minneapolis, Minnesota 55404
Social Security Office (Destination Code 0726)
Room 191
100
Centennial Mall North
Lincoln, Nebraska 68508
Social Security Office (Destination Code 0708)
2nd Floor
1025 N. 3rd
Street
Bismarck, North Dakota 58501
Social Security Office (Destination Code 0715)
Post Office Box
1710
Sioux Falls, South Dakota 57117
Social Security Office (Destination Code 0755)
Post Office Box
8032
Little Rock, Arkansas 72201
Send claims folders of non-class members from any other state to the
Minneapolis, Minnesota Social Security office.
Claimant's Name
Address
City, State, ZIP
Dear
I am a member of the Appeals Council which is considering the appeal of
your current claim for Social Security disability benefits and/or
Supplemental Security Income. In addition to your current claim, you had a
prior claim which makes you a class member in the class action entitled
Polaski, et al. v. Bowen.
What Class Membership Means To You.
As a Polaski class member, you are entitled to a
review of the decision made on your prior claim. We will look at your
previous claim and make a new decision on that claim using the standards
ordered by the court.
What Rights You Have.
You have the right to choose whether to have these two claims decided
together (Option # 1) or separately (Option # 2).
OPTION # 1: Have both claims decided together
You may ask us to return your current claim to an Administrative Law Judge
(ALJ) so that both claims can be decided at the same time.
If you choose this option, we will not do any more on your appeal.
Instead, we will vacate the hearing decision on your current claim and
return your case to an ALJ.
The ALJ will make one decision covering both your current claim and your
class member claim. If the decision is not completely in your favor, you
will have the right to request a review before the Appeals Council.
OPTION # 2 : Continue current claim and delay prior
claim
You may continue with the appeal on your current claim and delay action on
your class member claim until a final decision is made on your current
claim.
If you choose this option, we will continue to process your current
appeal. Your class member claim will be processed by an ALJ, after there
is a final decision on your current claim.
The ALJ wi11 then make a decision on the class member Claim. If you
disagree with that decision, you will have the right to request a review
before the Appeals Council.
What You Need To Do Now.
Choose the option you want from the enclosed option form. Then you should
complete, sign, date, and return the option form to us in the enclosed
self-addressed envelope. You do not need to put a stamp on the
envelope.
How Soon You Have To Act.
You must mail the option form to us within 10 days after the date you
received this notice. We will presume you received this notice within 5
days after the date shown above unless you show that you did not receive
it within the 5-day period. If you do not mail the option form to us
within 10 days, we will assume that you want option 1, vacate the hearing
decision on your current claim and return your case to an ALJ.
If You Need More Information.
If you have any questions, you should write the office listed above, or
call, write, or visit any Social Security Office. If you have someone
helping you with your claim, you should contact him or her. If you do not,
you may contact one of the Legal Aid offices in your area, or you may
contact:
[Fill in the address and phone number of the Legal Aid office in the
claimant's state, or if the claimant now lives outside the 8th Circuit,
indicate Mid-Minnesota Legal Assistance. See Attachment T.]
If you visit an office, please bring this letter with you. It will help to
answer your questions.
Enclosures
Representative's Name and Address:
POLASKI REPLY FORM
I have a prior claim for disability benefits which is going to be reviewed
because I am a member of the class in Polaski v.
Bowen. I also have a current claim on appeal. I want to choose one of
the options described below.
====================================================================
OPTION # 1: Have both claims decided together
The Appeals Council will return my current claim to an Administrative Law
Judge so that my current claim and my class member claim can be decided at
the same time. The Administrative Law Judge will make one decision
covering the current claim and the class member claim. If the decision is
not completely in my favor, I will have the right to request review by the
Appeals Council.
CHECK HERE IF YOU WANT OPTION 1. [ ]
OPTION # 2: Continue current claim and delay prior claim
The Appeals Council will continue to process my current appeal. An
Administrative Law Judge will not process my class member claim until
after there has been a final decision on my current claim.
The Administrative Law Judge will then make a decision on the class member
claim. If I disagree with that decision, I will have the right to request
a review by the Appeals Council.
CHECK HERE IF YOU WANT OPTION 2. [ ]
Claimant's Name
Address
City, State, ZIP
Dear
I am a member of the Appeals Council which is considering the appeal of
your current claim for Social Security disability benefits and/or
Supplemental Security Income. In addition to your current claim, you had a
prior claim which makes you a class member in the class action entitled
Polaski, et al. v. Bowen.
What Class Membership Means To You.
As a Polaski class member, you are entitled to a review of the decision
made on your prior claim. We will look at your previous claim and make a
new decision on that claim using the standards ordered by the court.
What Rights You Have.
You have the right to choose whether to have these two claims decided
together (Option # 1) or separately (Option # 2).
OPTION # 1: Have both claims decided together.
You may ask us to return your current claim to the disability
determination service (DDS), which makes disability decisions for the
Social Security Administration, so that both claims can be decided at the
same time.
If you choose this option, we will not do any more on your appeal.
Instead, we will vacate the hearing decision on your current claim and
return your case to the DDS.
The DDS will make one decision covering both your current claim and your
class member claim. If the decision is not completely in your favor, you
will have the right to request a hearing before an Administrative Law
Judge.
OPTION # 2: Continue current claim and delay prior claim
You may continue with the appeal on your current claim and delay action on
your class member claim until a final decision is made on your current
claim.
If you choose this option, we will continue to process your current appeal
Your class member claim will be processed by the DDS after there is a
final decision on your current claim.
The DDS will then make a decision on the class member claim. If you
disagree with that decision, you will have the right to request a hearing
before an Administrative Law Judge.
What You Need To Do Now.
Choose the option you want from the enclosed option form. Then you should
complete, sign, date, and return the option form to us in the enclosed
self-addressed envelope. You do not need to put a stamp on the
envelope.
How Soon You Have To Act.
You must mail the option form to us within 10 days after the date you
received this notice. We will presume you received this notice within 5
days after the date shown above unless you show that you did not receive
it within the 5-day period. If you do not mail the option form to us
within 10 days, we will assume that you want option 1, vacate the hearing
decision on your current claim and return your case to the DDS.
If You Need More Information.
If you have any questions, you should write the office listed above, or
call, write, or visit any Social Security office. If you have someone
helping you with your claim, you should contact him or her. If you do not,
you may contact one of the Legal Aid offices in your area, or you may
contact,
[Fill in the address and phone number of the Legal Aid office in the
claimant's state or, if the claimant now lives outside the 8th Circuit,
indicate Mid-Minnesota Legal Assistance. See Attachment T.]
If you visit an office, please bring this letter with you. It will help to
answer your questions.
Name
Appeals Council Member
Enclosures
Representatives Name and Address
POLASKI REPLY FORM
I have a prior claim for disability benefits which is going to be reviewed
because I am a member of the class in Polaski v.
Bowen. I also have a current claim on appeal. I want to choose one of
the options described below.
===================================================================
OPTION # 1: Have both claims decided together
The Appeals Council will return my current claim to the disability
determination service (DDS) so that my current claim and my class member
claim can be decided at the same time.
The DDS will make one decision covering the current claim and the class
member claim. If the decision is not completely in my favor, I will have
the right to request a hearing before an Administrative Law Judge.
CHECK HERE IF YOU WANT OPTION 1. [ ]
OPTION # 2: Continue current claim and delay prior claim
The Appeals Council will continue to process my current appeal. The DDS
will not process my class member claim until after there has been a final
decision on my current claim.
The DDS will then make a decision on the class member claim. If I disagree
with that decision, I will have the right to request a hearing before an
Administrative Law Judge.
CHECK HERE IF YOU WANT OPTION 2. [ ]
ORDER OF APPEALS COUNCIL
This case is before the Appeals Council (a) (on the claimant's request
for review of) OR (b) (on its own motion to review) the
Administrative Law Judge's decision.
In accordance with an order of the United States District Court for the
District of Minnesota in the case of Polaski. et al.
v. Bowen, No. 4-84-64 (D. Minn., February 15, 1989). the claimant
was given a choice of having the class member claim decided together with
or separate from the current claim.
(a) (The claimant chose to have both claims decided by an
Administrative Law Judqe.) OR (b) (The claimant did not respond
to the option notice.)
Therefore, pursuant to the order of the court, the Appeals Council
(grants the request for review,) vacates the Administrative Law
Judge's decision and remands this case to an Administrative Law Judge.
Pursuant to the order of the court, the Administrative Law Judge will
reopen the prior decision which serves as the basis for class membership
and issue a consolidated decision on both claims.
The Administrative Law Judge will schedule a new hearing and so notify the
claimant. The Administrative Law Judge shall take any further action
needed to complete the administrative record.
The Administrative Law Judge will notify the claimant of the new decision
and of the right to file a new request for review.
Date:
ORDER OF APPEALS COUNCIL
This case is before the Appeals Council (a) (on the claimant's request
for review of) OR (b) (on its own motion to review) the
Administrative Law Judge's decision.
In accordance with an order of the United States District Court for the
District of Minnesota in the case of Polaski, et al.
v. Bowen, No. 4-84-64 (D. Minn., February 15, 1989) the claimant
given a choice of having the class member claim decided together with or
separate from the current claim.
(a) (The claimant chose to have both claims decided by the disability
determination service which makes disability determinations for the Social
Security Administration.) OR (b) (The claimant did not respond to
the option notice.)
Therefore, pursuant to the order of the court, the Appeals Council
(grants the request for review,) vacates the Administrative Law
Judge's decision and the reconsideration determination, and remands this
case to the appropriate disability determination service for further
consideration. Pursuant to the order of the court, the disability
determination service will reopen the prior determination which serves as
the basis for class membership and issue a consolidated determination on
both claims.
The disability determination service will notify the claimant of its new
determination and of the right to file a new request for hearing.
The Administrative Law Judge will notify the claimant of the new decision
and of the right to file a new request for review.
Date:
Department of
HEALTH AND HUMAN SERVICES
Social Security
Administration
Office of Hearings and Appeals
Name and Address of Claimant
NOTICE OF ORDER OF APPEALS COUNCIL
Enclosed is the Appeals Council order remanding your case to (a)(an
Administrative Law Judge.) or (b) (the disability determination
service which makes disability determinations for the Social Security
Administration.) Please read this notice and the order carefully.
What This Order Means
(a) (In accordance with your request and the order of the court,,)
OR (b) (Because you did not respond to the option notice required by
the court,) we have sent your current claim and your class member
claim back to (a) (an Administrative Law Judge.) OR (b) (the
disability determination service.) In the enclosed order, we explain
why we did this.
The Next Action on Your Claim
(a) (An Administrative Law Judge) OR (b) (The disability
determination service processing your claim) will contact you to tell
you what you need to do.
If you do not hear from (a) (an Administrative Law Judge) OR (b)
(the disability determination service) within 30 days, you should
contact your local hearing office or your local Social Security office.
You should also contact that office if you have any questions.
This notice and enclosed order of remand
Mailed _________________
cc: Name and Address of Representative
HO, (City, State)
SSO,
(City, State)
Claimant's Name
Address
City, State, ZIP
Dear
I am an Administrative Law Judge (ALJ) assigned to act on your request for
hearing on your current claim for Social Security disability benefits
and/or Supplemental Security Income. In addition to your current claim,
you had a prior claim which makes you a class member in the class action
entitled Polaski, et al. v. Bowen..
What Class Membership Means To You.
As a Polaski class member, you are entitled to a
review of the decision made on your prior claim. We will look at your
previous claim and make a new decision on that claim using the standards
ordered by the court.
What Rights You Have.
You have the right to choose whether to have these two claims decided
together (Option # 1) or separately (Option # 2).
OPTION # 1: Have both claims decided together
You may ask me to return your current claim to the disability
determination service (DDS), which makes disability decisions for the
Social Security Administration, so that both claims can be decided at the
same time.
If you choose this option, I will not do any more on your request for
hearing. Instead, I will return your current claim to the DDS.
The DDS will make one decision covering both the current claim and the
class member claim. If the decision is not completely in your favor, you
will have the right to request a hearing before an Administrative Law
Judge.
OPTION # 2: Continue current claim and delay prior claim
You may continue with the request for hearing on your current claim and
delay action on your class member claim until a final decision is made on
your current claim.
If you choose this option, I will continue to process your request for
hearing. Your class member claim will be processed by the DDS after there
is a final decision on your current claim.
The DDS will then make a decision on the class member claim. If you
disagree with that decision, you will have the right to request a hearing
before an Administrative Law Judge.
What You Need To Do Now.
Choose the option you want from the enclosed option form. Then you should
complete, sign, date, and return the option form to me in the enclosed
self-addressed envelope. You do not need to put a stamp on the
envelope.
How Soon You Have To Act.
You must mail the option form to me within 10 days after the date you
received this notice. We will presume you received this notice within 5
days after the date shown above unless you show that you did not receive
it within the 5-day period. If you do not mail the option form to me
within 10 days, I will assume that you want option 1, and I will dismiss
your appeal and return your case to the DDS.
If You Need More Information.
If you have any questions, you should write the office listed above, or
call, write, or visit any Social Security office. If you have someone
helping you with your claim, you should contact him or her. If you do not,
you may contact one of the Legal Aid offices in your area, or you may
contact,
[Fill in the address and phone number of the Legal Aid office in the
claimant's state or, if the claimant now lives outside the 8th Circuit,
indicate Mid-Minnesota Legal Assistance. See Attachment T.]
If you visit an office, please bring this letter with you. It will help to
answer your questions.
Name
Administrative Law Judge
POLASKI REPLY FORM
I have a prior claim for disability benefits which is going to be reviewed
because I am a member of the class in Polaski v.
Bowen. I also have a current claim on appeal. I want to choose one of
the options described below.
===================================================================
OPTION # 1: Have both claims decided together
The Administrative Law Judge will return my current claim to the
disability determination service (DDS) so that my current claim and my
class member claim can be decided at the same time.
The DDS will make one decision covering the current claim and the class
member claim. If the decision is not completely in my favor, I will have
the right to request a hearing before an Administrative Law Judge.
CHECK HERE IF YOU WANT OPTION 1. [ ]
OPTION # 2: Continue current claim and delay prior claim
The Administrative Law Judge will continue to process my request for
hearing. The DDS will not process my class member claim until after there
has been a final decision on my current claim.
The DDS will then make a decision on the class member claim. If I disagree
with that decision, I will have the right to request a hearing before an
Administrative Law Judge.
CHECK HERE IF YOU WANT OPTION 2. [ ]
Department of
HEALTH AND HUMAN SERVICES
Social Security
Administration
Office of Hearings and Appeals
Name and Address of Claimant
NOTICE OF ORDER OF ADMINISTRATIVE LAW JUDGE
Enclosed is my order remanding your case to the disability determination
service which makes disability determinations for the Social Security
Administration. Please read this notice and the order carefully.
What This Order Means
(a) (In accordance with your request and the order of the court)
OR (b) (Because you did not respond to the option notice required by
the court), I have sent your current claim and your class member
claim back to the disability determination service. In the enclosed
order, I explain why I did this.
The Next Action on Your Claim
The disability determination service processing your claim will contact
you to tell you what you need to do.
If you do not hear from the disability determination service within 30
days, you may contact your local hearing office or your local Social
Security office. You may also contact that office if you have any
questions.
This notice and enclosed order of remand
Mailed _________________
cc: Name and Address of Representative
SSO, (City, State)
ORDER OF ADMINISTRATIVE LAW JUDGE
This case is before the Administrative Law Judge on the claimant's request
for hearing.
In accordance with an order of the United States District Court for the
District of Minnesota in the case of Polaski, et al.
v. Bowen, the claimant was given a choice of having the class member
claim decided together with or separate from the current claim.
(a) (The claimant chose to have both claims decided by the disability
determination service which makes disability determinations for the Social
Security Administration.) OR (b) (The claimant did not respond to
the option notice.)
Therefore, pursuant to the order of the court, this case is remanded to
the appropriate disability determination service. Pursuant to the order of
the court, the disability determination service will reopen the prior
determination which serves as the basis for class membership and issue a
consolidated determination on both claims.
The disability determination service will notify the claimant of its new
determination and of the right to file a new request for hearing.
Date:
Mid-Minnesota Legal Assistance
222 Grain Exchange Building 323 4th
Avenue
South Minneapolis, MN 55415
(612) 332-1441
Legal Assistance of North Dakota
P.O. Box 2419
Bismarck, ND
58502
(701) 258-4270 (Bismarck area)
1-800-932-8882
(Statewide)
Legal Aid of Southeast Nebraska
825 Terminal Building
Lincoln, NE
68508
(402) 435-2161 (Lincoln area)
1-800-742-7555
(Statewide)
East River Legal Services
335 North Main Avenue
Suite 300
Sioux
Falls, SD 57102
(605) 336-9230 (Sioux Falls area)
1-800-952-3015
(Statewide)
Legal Services Corporation of Iowa
315 East Fifth Street
Des
Moines, IA 50309
(515) 243-2151 (Des Moines area)
1-800-532-1275
(Statewide)
Arkansas Legal Services Support Center
615 West Markham
Suite
200
Little Rock, AR 72201
(501) 376-8025
Polaski Option 2 Claim
Send a copy of the ALJ's and Appeals Council's final disposition of this
claim to:
OHA Polaski Coordinator
Office of Civil Actions
Division of
Litigation
Analysis and Implementation
P.O. Box 10723
Room 302,
BCT II
Arlington, VA 22210
