TN 60 (08-96)

EXHIBIT 1 - Stieberger Teletype

EXHIBIT 2 - Court Case Flag/Alert

EXHIBIT 3 - Development/Payment Period Worksheet

EXHIBIT 4 - Corroboration of Stieberger 10 (e)(5)(i)(ii) Conditions

EXHIBIT 5 - Stieberger Supplement

EXHIBIT 6 - Folder Request Memo

Exhibit 1 - Stieberger Teletype

TELEGRAPHIC MESSAGE

Agency: HHS, SSA

Author: Gaye Wallace
Date: July 2, 1992

Phone: (410) 965-1770

From: ODCP, Litigation Staff, Baltimore, MD

To: SSARC in Region II

To: All SSAARCSFOS/SSAARCSPGS in New York State

To: New York State DDS

To: SSAODCPLS (SAWNY)

To: SSAODARCO (SAWDY)

To: All SSAPSCS/PSCDRS in New York State

To: ODIO

To: All SSADOS/SSABOS/SSATSCS in New York State

To: SSAOOMPI

To: All SSAADS in New York State

To: All SSAROPIR/SSADQBS

To: All SSADPEQS/SSADPEQSOS

To: All SSAOPIRS

To: SSAODARARO in Region II

To: All ODARHOS in New York State

To: SSAOD

To: SSADCO

To: COS

To: Chief Counsel, Region II (SSARO - Deliver)

IT-92-11

Emergency DI/SSI Instructions OD-92-071 (2782)

Published Instructions Will Follow Shortly

SUBJECT: Stieberger v. Sullivan Class Action Lawsuit Settlement Agreement - Adjudication Instructions--ACTION

Introduction

On June 18, 1992, Judge Sand, of the Southern District of New York, signed the Stieberger v. Sullivan class action lawsuit settlement agreement. In accordance with the provisions of the settlement agreement, all state and federal adjudicators must comply with Second Circuit holding in adjudicating or reviewing claims of New York State residents for disability benefits, as set forth below. POMS and HALLEX instructions related to the 1985 Stieberger preliminary injunction (including POMS DI 12586.001 - DI 12586.095 (Transmittal No. 1, SSA Pub. No. 68-0432500, April 1986), DI 42586.001 - DI 42586.015 (Transmittal No. 1, SSA Pub. No. 68-0442500, April 1986, and HALLEX I-5-413, I-5-413A, and I-5-413B) are hereby rescinded. Also rescinded are any instructions that could in any way be interpreted as calling for nonacquiescence in holdings of the Second Circuit in disability cases. (SSA does not believe such instructions exist; this direction is simply precautionary).

The following instruction is taken verbatim from Attachment 1 of the Stieberger settlement agreement, and will be published for placement in the “Manual of Second Circuit Disability Decisions”, which is discussed below, within the next 3 months. In the meantime, however, please use this teletyped instruction on how to apply Second Circuit holdings in adjudicating or reviewing claims of New York State residents. Please distribute a copy of this teletype to all decisionmakers and reviewers of decisions as soon as possible.

SSA realizes that adjudicators and reviewers will have questions about this. Please send them to the Office of General Counsel, Correspondence Control Staff, Altmeyer Room 617, 6401 Security Blvd., Baltimore, MD 21235, Attn: Class Action Coordinator) via the New York Regional Office. ODAR personnel should route any questions through the usual channels.

APPLICATION OF SECOND CIRCUIT DECISIONS TO SOCIAL SECURITY ACT DISABILITY BENEFIT CLAIMS OF NEW YORK RESIDENTS

A. General rule

Effective immediately, all persons who decide Social Security Act disability benefit claims of New York State residents or who review such decisions shall follow and apply the holdings of the United States Court of Appeals for the Second Circuit, except when written instructions to the contrary are issued pursuant to paragraphs D and E. This instruction applies to all Second Circuit disability decisions except those that are expressly designated not for publication.

B. How to apply holdings

Holdings of the Second Circuit Court of Appeals must be applied at all levels of administrative review to all claims for title II and title XVI disability benefits filed by New York State residents, unless written instructions to the contrary are issued pursuant to paragraphs D and E. You must apply those holdings in good faith and to the best of your ability and understanding whether or not you view them as correct or sound.

In general, a holding in a decision is a legal principle that is the basis of the court's decision on any issue in the case. There may be more than one holding in a decision. A holding must be applied whenever the legal principle is relevant.

Not all of the discussion in a decision is a holding. For example, the factual discussion in a decision is not a holding although it can help you understand the holding by placing it in context. Also, in their decisions courts may make observations or other remarks that are helpful in understanding the court's reasoning. You are required to apply the holdings, not those observations or other comments of the court.

Of course, you should continue to make sure that the decision whether a claimant is disabled is an individualized decision based on the evidence regarding that claimant.

C. Availability of decisions and instructions

To help ensure that decisionmakers and reviewers of decisions apply Second Circuit holdings, SSA will do the following:

1. SSA will provide each office of decisionmakers and reviewers of decisions with a copy of the settlement approved by the Court in                 Stieberger v. Sullivan.

2. SSA will provide all decisionmakers and reviewers of decisions with a Manual of Second Circuit disability decisions (“Manual”) containing excerpts of the principal holdings of the Second Circuit issued before June 18, 1992, the date that the settlement in Stieberger was approved by the Court.

3. SSA will provide each office of decisionmakers and reviewers of decisions with a copy of each Second Circuit disability decision issued after June 17, 1992 promptly after the decision is issued by the Court. Each such office shall maintain a volume containing copies of these decisions. This volume shall be readily accessible to decisionmakers and reviewers of decisions.

4. SSA will issue instructions to ODD decisionmakers and reviewers of decisions about applying Second Circuit decisions rendered after June 17, 1992. These instructions must be added to the Manual as supplements. SSA may issue instructions to ODAR adjudicators.

You should familiarize yourself with the Manual, with SSA's instructions on Second Circuit holdings, and with Second Circuit decisions as they are issued.

While SSA will take the steps described above to help you apply Second Circuit holdings, you must apply the holdings even in the absence of an instruction, and even if they are not included in the Manual.

Example: You have become aware of a Second Circuit disability decision (for example, a claimant draws it to your attention or you receive notification of it from SSA), but you have not yet received the instruction from SSA on how to apply the decision and it is not in the Manual. You must apply the holding[s] of that decision to all claims where it is relevant.

D. Instructions regarding when decisions become effective

1. You must apply the holdings in a decision once the decision becomes effective. A decision of the Second Circuit generally becomes effective 20 ¹ days after the decision is issued by the Court, unless a specific written instruction is issued that requires the decision to be applied earlier or later. If you have not received instructions about a particular Second Circuit decision issued after the date of this instruction, consult with your supervisor for further guidance about whether the decision has become effective. (If you are an administrative law judge, you may inquire with the Regional Office concerning the status of the decision.)

    

2. As long as a Second Circuit decision is pending further court review, SSA may instruct decisionmakers and reviewers of decisions not to apply some or all holdings stated in that Second Circuit decision. In such instances SSA will issue specific instructions explaining which holdings are not to be applied and identifying the issues addressed by those holdings. When such instructions are issued, decisionmaking and reviewing offices will maintain a list of disability claims decisions that may be affected because the Second Circuit holding is not being applied. Any notice sent to claimants on the list, denying benefits in whole or in part, will include the following language:

    

   If you do not agree with this decision, you can appeal. You must ask for an appeal within 60 days.

    

   You should know that we decided your claim without applying all of what the court said about the law in         .                 is a recent court ruling that we do not consider final because it may be reviewed further by the courts. If it becomes final, we may contact you again.

    

   If you disagree with our decision in your case, do not wait for us to contact you. You should appeal within 60 days of the date you receive this notice. If you do not appeal within 60 days, you may lose benefits.

    

3. When no further judicial review of a Second Circuit decision will occur, SSA will promptly rescind any instructions issued under this paragraph D, and will advise decisionmakers and reviewers of decisions about the final decision in the case. SSA will also explain what action is to be taken, including any reopenings, with respect to claimants whose cases may have been affected by the instruction not to apply the Second Circuit decision pending further court review.

    

E. Issuance and rescission of acquiescence rulings

This instruction on application of Second Circuit decisions to disability benefit claims does not prevent SSA from issuing or rescinding acquiescence rulings, or relitigating issues under 20 C.F.R. 404.985 and 416.1485.

F. Questions concerning this instruction and second circuit decisions

This instruction is issued pursuant to the settlement agreement in Stieberger v. Sullivan, 84 Civ. 1302 (S.D.N.Y.). A copy of the complete agreement is available in your office. Any questions about applying Second Circuit decisions that you cannot resolve yourself may be directed to your supervisors and, if more guidance is needed, through supervisory channels to the Litigation Staff in SSA Central Office in Baltimore, Maryland. In addition, a team of SSA personnel will visit the New York ODD one month after you receive this instruction and quarterly thereafter for 3 years to discuss any questions decisionmakers and reviewers of decisions have about applying Second Circuit disability decisions.

 G. Binding effect of this instruction

This instruction is binding on all personnel, including state employees, ALJ's Appeals Council Administrative Appeals Judges, quality assurance staff, and all other personnel who process, render decisions on, or review claims of New York residents for disability benefits under the Social Security Act.

Because this instruction arises out of a lawsuit, it does not apply to claims of any persons who do not reside in the State of New York. However, this limitation does not lessen the extent to which court decisions are to be applied to claims of persons who reside in any other state. This limitation also should not be deemed to suggest that such decisions are not given or should not be given proper consideration in any other state.

Jean H. Hinckley, 

Director,        

ODCP Litigation Staff    

File Code: HA-4-7

Published instructions are targeted to reach users by October 2, 1992.

Exhibit 2 - Court Case Flat/Alert

999889   00000

CTWALT01          STIEBERGER COURT CASE FLAG/ALERT

REVIEW  PSC  DOC  TOE  ALERT DATE  RESPONSE DATE  OLD BOAN/PAN
OFFICE

SSN (BOAN OR PAN)     NAME          BIRTH DATE     REFERENCE #

FOLDER LOCATION INFORMATION

CAN/HUN  BIC/MFT  CATG  TITLE  CFL   CFL DATE   ACN

PAYEE ADDRESS

SHIP TO ADDRESS

SERVICING FO

SPECIAL INSTRUCTIONS:

IF A CURRENT CLAIM IS PENDING AT TIME OF FO INTERVIEW, THIS CLAIM MAY BE CONSOLIDATED WITH THE CURRENT CLAIM. SEE DI 12586.025B. FOR ADDITIONAL INSTRUCTIONS

Exhibit 3 - DEVELOPMENT/PAYMENT PERIOD Worksheet

STIEBERGER DEVELOPMENT/PAYMENT PERIOD WORKSHEET
SUMMARY SHEET --- KEEP ON TOP!

CLAIMANT'S SSN:          -      -           

PERSON WHO COMPLETED THIS WORKSHEET:

                      ,  ;           ;  (        )         -            
Surname and initial        Office code          Telephone

============================================================== = ======

FIRST MONTH OF DEVELOPMENT PERIOD:       /     

============================================================== = ======

TITLE II PAYMENT: BIC:       

POTENTIAL ADMINISTRATIVE ONSET:       /0 1/      [  ] Cessation Case

                                                                  See DI 32586.020

POTENTIAL MOET:                              /      

TITLE XVI PAYMENT:

POTENTIAL ONSET AND ENTITLEMENT:       / 0 1 /      (“administrative

                                                        onset”)

DDS could establish onset as early as       /     /       if 10(e)(5) exception is met.

STIEBERGER DEVELOPMENT/PAYMENT PERIOD WORKSHEET

PART I. GATHER INFORMATION - DEVELOPMENT PERIOD

PART II. DETERMINE THE DEVELOPMENT PERIOD

USE THE CHART ON THE NEXT PAGE TO COMPUTE THE DEVELOPMENT PERIOD

For the following calculations, use the results of Part I.

1. “X” out any month later than the month shown in A.3.

2. Find the earlier of the months shown in B.2., C OR D. “X” out any months before this month.

3. “X” out any months in the periods shown in E, F, G, or H

4. “X” out ALL months in any year shown in J.

5. Find the most recent 48 months that were not been “X'ed” out. If there are fewer than 48 such months, use all the boxes that were not “X'ed”. Counting back with the month shown in A.3, place a “D” in the 48th month not “X'ed” out. Enter that month here:

        /     

6. If the month in 5. above is later than the month shown in B.4 or B.6, enter the month shown in B.4 or B.6.

        /     

7. The first month of the DEVELOPMENT PERIOD is the earlier of the month in 5. or 6. above. Show that month at the top of the Summary Sheet.

        /     

    

   Stieberger DEVELOPMENT PERIOD Chart:

    

PART III: GATHER INFORMATION - PAYMENT PERIOD(S)

Before you compute PAYMENT PERIODS, you will have to show additional information (from your interview with the class member, if necessary):

11. Periods of entitlement to “A” (reduced or unreduced), “HA” , DWB or CDB benefits:

    • began:     /        ended:     /     

      began:     /        ended:     /     

12. Periods the class member was confined due to felony-related conviction:

    • began:     /        ended:     /     

      began:     /        ended:     /     

13. Periods the class member absent from the U.S., or institutionalized (N02) (SI 00501.400; SI 00520.001):

    • began:     /        ended:     /     

      began:     /        ended:     /     

       

PART IV: COMPUTE THE TITLE II PAYMENT PERIOD

USE THE CHART ON THE NEXT PAGE TO COMPUTE THE TITLE II PAYMENT PERIOD

     /      

1. Determine the MOET based on the earliest Stieberger claim. If the claimant had no previous Title II entitlement, you can use the following procedure; otherwise, use regular Title II rules for the result of this step.

   If the Stieberger determination is a cessation, show the month of termination, as shown in D above:

        /      

   If it was an initial claim for HA, HC, or DWB benefits, subtract 12 months from the month shown in B.1. If it was a claim for C benefits (RSI), subtract 6 months from the month shown in B.1:

        /      

   If it was a claim for HA or DWB benefits, add 5 full calendar months to the date shown in B.2. If it was a claim for C or HC benefits, show the month shown in B.2 (or the following month, if the AOD in B.2 is not the first day of the month):

        /      

   If it was a claim for DWB or surviving child benefits, show the date of death of the number holder as shown in B.3:

        /      

   If it was a claim for DWB benefits, show the date the DWB attained age 50 as shown in B.3:

Circle the latest date.

2. Using the chart on THIS page, “X” out any month before the month you circled in step 1 above.

3. Put a “T” in the box for any month in the period shown in H.

4. “X” out any months in periods shown in G, K or L.

5. Count the LATEST 48 months that have not been marked. Mark these boxes with an “E”.

   The FIRST “E” month is the potential month of entitlement (MOET):

        /      

6. The Potential MOET is also the potential administrative onset for cessations, all SSI claims , and CDB claims. For initial claims for HA or DWB benefits, subtract 5 months from the MOET. This will be the potential established onset date:

        /0 1/      .

   (note: The DDS may make the onset as early as the AOD [or termination date in cessations], if the 10(e)(5) conditions are met).

7. If any “T” months are shown, benefits AND THE PERIOD OF DISABILITY will TERMINATE with the first “T” month. Benefits and the period of disability will resume with the first non-“T” month if the claimant is found to be currently disabled.

   Potential benefits would terminate:  

        /      

   Potential resumption of benefits:  

        /      

    

   Stieberger PAYMENT PERIOD CHART Title II

    

PART V: COMPUTE THE TITLE XVI PAYMENT PERIOD

USE THE CHART ON THIS PAGE TO COMPUTE THE TITLE XVI PAYMENT PERIOD

Stieberger PAYMENT PERIOD CHART Title XVI

1. “X” out any month before the month shown in C.

2. “X” out any month in the periods shown in F, G, H, K, or M.

3. Count the LATEST 48 months that have not been marked. Mark these boxes with an “E”.

   The FIRST “E” month is the potential established onset date:

        /0 1/     

   (note: The DDS may make the onset as early as the AOD, if the 10(e)(5) conditions are met).

4. Payment may be made for all “E” months, subject to the regular rules of eligibility and applying the Stieberger tolerances in DI 12586.080. As of Jan. 1st of the year prior to the year in which the favorable SSA-831 was signed, regular development rules apply.

Exhibit 4 - Corroboration Of Stieberger 10 (e) (5) (i) (ii) Conditions

CORROBORATION OF STIEBERGER 10(e)(5)(i)-(ii) CONDITIONS WORKSHEET

This 3-page worksheet must be completed, signed and placed in the Stieberger green jacket file, if the DDS determines that the claimant was not disabled for all or part of the basic Stieberger “DEVELOPMENT PERIOD,” which ordinarily begins 48 months prior to SSA's receipt of claimant's request for readjudication.

*************************************************************** ******************

DECISION

If readjudicating a:

                       ,                  ,       /  /  

SIGNATURE               TITLE               DATE

*************************************************************** ******************

CORROBORATION PROCESS

Below is an overview of the factors to consider in deciding whether one of the following conditions requires DDS to develop/adjudicate an earlier period when readjudicating a denial:

• Claimant had a chronic impairment that s/he alleged was more severe in the past (e.g., rheumatoid arthritis in major joints that is not currently active), and more information is needed about any earlier acute phase; OR

• Claimant had a new or no treating source during the DEVELOPMENT PERIOD and it is learned that other evidence may be available (e.g., from a former treating source) that may attest to more serious impairment in the past.

============================================================== = ======

IN APPLYING THE FACTORS BELOW, ALWAYS GIVE THE BENEFIT OF ANY UNCERTAINTY TO THE CLAIMANT.

============================================================== = ======

1. Comparison date:

Enter here the earliest date covered by the DEVELOPMENT PERIOD:

    /    /    .

2. 10(e)(5)(i) chronic impairment:

   1. Did claimant allege that a condition(s) present during the DEVELOPMENT PERIOD was a chronic impairment that was more severe before the above date? If yes, or there is reason to disregard a negative response, e.g., claimant confused, disoriented, poor historian, or, if the file shows a mental condition that would make the negative response questionable: Continue. If no: Go to

   2. Does the green jacket file refer to a chronic impairment that started, or could have, before the above date and that could have been worse in the past? If yes: Continue. If no: Go to C.

      CONSIDER FACTORS SUCH AS: Is the CI (physical or mental) one that is subject to exacerbations and remissions and might have been more severe in the past? Did the claimant allege, or does the green jacket file show, a past acute phase before the above date that made him/her more severely impaired in the past, e.g., period preceding and/or following open heart surgery, or following some kind of trauma?

   3. Did claimant submit corroboration from a medical source, e.g., a letter from a doctor, that his/her condition(s) was worse in the past and might possibly have been disabling? If yes: EARLIER DEVELOPMENT AND ADJUDICATION REQUIRED. If no: Continue.

      NOTE: Assume that a corroborated past condition might possibly have been disabling unless the corroborating evidence clearly indicates that it could not have been disabling, e.g., it clearly establishes that the condition lasted for too short a period to meet the duration requirement, e.g., severe only a few days or weeks. Resolve uncertainty in the claimant's favor.

   4. If the claimant did not submit corroboration, does the green jacket file show that the condition was worse prior to the above date and might possibly have been disabling? (See NOTE in B.3 above.) If yes: Continue. If no: Go to C.

   5. Is more information needed about any earlier acute phase (e.g., rheumatoid arthritis in major joint that became inactive, or previously uncontrolled epilepsy or diabetes that later was under control)? If yes: Continue. If no: If there is enough information for a favorable decision, prepare one; if not, go to C.

   6. Did claimant, or does the green jacket file, identify a medical source(s) that could substantiate that a chronic impairment was more severe in the past? If yes: EARLIER DEVELOPMENT AND ADJUDICATION REQUIRED. If no: Go to C.

3. 10(e)(5)(ii) new or no treating source:

   The following questions apply whether or not the impairment(s) is chronic.

   1. Did the claimant's treating source(s) (TS) during the DEVELOPMENT PERIOD differ from his/her prior TS(s), or did s/he have no TS(s) during the DEVELOPMENT PERIOD? If yes (new or no TS): Continue. If no: EARLIER DEVELOPMENT AND ADJUDICATION NOT REQUIRED.

   2. Did claimant allege a more severe past condition that might possibly have been disabling? (See NOTE in B.3.) If yes: Go to C.5. If no: Continue.

   3. Did claimant submit corroboration from a medical source, such as a letter from a doctor, that s/he had a past condition that might possibly have been disabling? (See NOTE B.3. above.) If yes: go to C.5. If no: Continue.

   4. Does the green jacket file show a condition prior to the above date that might possibly have been disabling? (See NOTE in B.3 above.) If yes: continue. If no: EARLIER DEVELOPMENT AND ADJUDICATION NOT REQUIRED.

   5. Did claimant identify, or does the green jacket file reference, other medical evidence that may be available, and that may attest to the past condition referred to in C.2, 3 or 4? If yes: EARLIER DEVELOPMENT AND ADJUDICATION REQUIRED. If not: EARLIER DEVELOPMENT AND ADJUDICATION NOT REQUIRED.

Exhibit 5 - Stieberger Supplement

STIEBERGER SUPPLEMENT
To be completed in all Stieberger Case Reviews

Name                         

Social Security Number          /      /           

PART I. (For Social Security Administration Completion)

1. Earliest date covered by a Stieberger denial/termination (AOD for Title II, date of filing for Title XVI:     /     /      

2. Earliest date covered by the SSA-3368:       /     /      

    

   PART II. Information about your disability.

3. 1. Have any conditions you mentioned on the Disability Report (SSA-3368) changed since the date in A. above?

                Y   N

   2. If there was any change in your condition, did it get

                    Worse   Better

   3. Describe when and how your condition was worse or better

                           

                           

                           

                           

                           

                           

4. 1. Have you had any conditions, during the period between the dates in Part I A. & B above, that you did not describe on the Disability Report (SSA-3368)?

                Y     N

   2. If yes, describe the other conditions and when they bothered you                

                     

                     

                     

                     

   3. If the other condition(s) that you described in D.2 made you feel worse during the period between the dates in Part I A & B above, describe how and when.

                     

                     

                     

                     

                     

5. 1. Did you receive treatment for any condition, from a medical source (doctor, hospital, clinic, etc.) that is not already listed on the Disability Report (SSA-3368)?

                Y   N

   If yes, show the names and addresses of the source, the dates of treatment and the condition you were treated for.

                  

                  

                  

                  

                  

                  

    

   PART III PAYMENT PERIOD Questions

6. 1. Since the date in A. above, have you been incarcerated due to conviction on a felony or felony-level offense?

                Y   N

   2. If yes, show the dates and place(s) of confinement below.

                     

                     

                     

7. 1. Were there any months since the date in A. above that you resided in a public institution?

                Y   N

   2. If yes, show the name of the institution and the dates of residence               

                     

                     

                     

8. 1. Were there any times since the date in A. above that you were outside the United States throughout a calendar month or for 30 days or more? (Outside the United States means outside the 50 states, American Samoa and/or the Northern Mariana Islands)?

                Y   N

   2. If yes, for each period of absence, show the date you left and the date on which you returned.               

                     

                     

                     

                     

       

   PART IV. Protective Filing

9. If you wish to protect the rights of your spouse and/or children to any benefits to which they may be entitled on your record as a result of the Stieberger review, show their name(s) and date(s) of birth below.

   •                

                    

                    

                    

                    

Signature                          Date                     

Exhibit 6- Folder Request Memo

STIEBERGER Folder Request Memo

Please obtain the Title II and XVI claim file/medical evidence for the following Stieberger application(s) and forward to this office.

                                                      
Requestor's Name               Requestor's Telephone No.

Attachment: Copy of Stieberger Alert-Query Package

NOTE: Please do not forward completed folders to The Class Action Section (CAS) located in Baltimore, Maryland. Upon completion of a case, the folder should be forwarded to the appropriate storage facility (PSC, WBDOC, ODO). CAS does not house completed folders.

Footnotes:

[1]

After the Stieberger settlement was approved, court rules increased the time for issuing mandates to 52 days.