Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 1 of 26

1 GERALD A. McINTYRE (SBN 181746) gmcintyre@nsclc.org
2 NATIONAL SENIOR CITIZENS LAW CENTER 3660 Wilshire Blvd., Suite 718
3 Los Angeles, CA 90010 T: (213) 674-2900 / F: (213) 550-4001
4 ANNA RICH (SBN 230195)
5 arich@nsclc.org NATIONAL SENIOR CITIZENS LAW CENTER
6 1330 Broadway, Suite 525 Oakland, CA 94612
7 T: (510) 663-1055 / F: (510) 663-1051

8 Attorneys for Plaintiffs (Additional Counsel listed on next page)
9

10 UNITED STATES DISTRICT COURT
11 NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
13

14 KEVIN HART, NINA SILVA-COLLINS and LEE HARRIS, on behalf of themselves and all
15 others similarly situated,

Case No. CLASS ACTION COMPLAINT

16

Plaintiffs,

17

v.

18 CAROLYN W. COLVIN, Acting Commissioner of Social Security, in her official capacity,
19
Defendant. 20

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1 WILLIAM L. STERN (SBN 96105) WStern@mofo.com
2 CLAUDIA M. VETESI (SBN 233485) CVetesi@mofo.com
3 ROBERT T. PETRAGLIA (SBN 264849) RPetraglia@mofo.com
4 ELIZABETH BALASSONE (SBN 280563) EBalassone@mofo.com
5 MORRISON & FOERSTER LLP 425 Market Street
6 San Francisco, California 94105-2482 T: (415) 268-7000 / F: (415) 268-7522
7 TRINH PHAN (SBN 267288)
8 tphan@legalaidsmc.org HOPE NAKAMURA (SBN 126901)
9 hnakamura@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
10 330 Twin Dolphin Drive, Suite 123 Redwood City, CA 94065
11 T: (650) 558-0915 / F: (650) 517-8973
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1

Plaintiffs Kevin Hart, Nina Silva-Collins and Lee Harris, by and through their attorneys,

2 bring this action on behalf of themselves and all others similarly situated, against Carolyn W.

3 Colvin in her official capacity as Acting Commissioner of Social Security (“Defendant”), and

4 allege as follows:

5

INTRODUCTION

6

1. Plaintiffs bring this class action to challenge Defendant’s reliance on consultative

7 examinations (CEs), performed by a physician who is now disqualified, in denying or terminating

8 disability benefits. This physician, Dr. Frank Chen, routinely submitted reports that were not

9 based on medically acceptable clinical diagnostic techniques. As numerous complaints from

10 applicants demonstrate, Dr. Chen’s CE reports contained false statements and were based on

11 cursory examinations and inadequate communication with his patients. These CE reports were

12 then relied upon, in whole or in part, to deny or terminate Supplemental Security Income (SSI)

13 and/or Social Security Disability Insurance (SSDI) to Plaintiffs and members of the proposed

14 class. By this action, Plaintiffs seek the reopening of prior determinations where Defendant relied

15 on a report by Dr. Chen, and the opportunity to receive a new CE from a well-qualified clinician.

16

2. In order to qualify for benefits based on disability under either SSI or SSDI, an

17 individual must be unable “to engage in any substantial gainful activity by reason of any

18 medically determinable physical or mental impairment which can be expected to result in death or

19 which has lasted or can be expected to last for a continuous period of not less than 12 months[.]”

20 42 U.S.C. § 423(d)(1)(A).

21

3. The Social Security Act and the regulations promulgated thereunder require that

22 Defendant “need[s] evidence from acceptable medical sources to establish whether [an individual

23 has] a medically determinable impairment.” 20 C.F.R. §§ 404.1513(a), 416.913(a).

24

4. In order to have adequate medical evidence of an individual’s disabilities, it is

25 frequently necessary to procure a CE from a qualified medical source. 20 C.F.R. § 404.1517 et

26 seq.

27

5. For many years, Dr. Chen performed a large volume of these CEs in San Francisco

28 and surrounding counties. He regularly issued reports that he knew were incorrect or incomplete,

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1 including statements that he performed tests he did not in fact perform and conclusions that were

2 inconsistent with medical evidence already in the record, with no explanation or even

3 acknowledgement of the inconsistency.

4

6. On the basis of numerous complaints from applicants and their representatives

5 over a period of years, Dr. Chen was disqualified from continuing to provide CEs as of December

6 30, 2013. His CE reports, however, continue to be treated as competent evidence by the Social

7 Security Administration (SSA) and used in determinations to deny or terminate SSI and SSDI

8 benefits. 20 C.F.R. §§ 404.1503a, 416.903a.

9

7. Plaintiffs challenge Defendant’s policy and practice of relying on Dr. Chen’s

10 defective CE reports in denying or terminating disability benefits, in violation of its requirement

11 to base such determinations on evidence from acceptable medical sources.

12

8. SSA regulations also require that Defendant monitor and ensure the adequacy of

13 the CE process and providers. 42 U.S.C. § 421(j)(3); 20 C.F.R. §§ 404.1519s(g), 416.919s(g).

14 Defendant’s policy and practice of relying on Dr. Chen’s defective CE reports in denying or

15 terminating disability benefits is contrary to this mandate.

16

9. SSDI and SSI applicants and beneficiaries represent a population with education

17 levels well below the national average. These individuals are almost never represented by

18 counsel during the application process or on reconsideration, which is the first phase of the

19 administrative appeal process.

20

10. Plaintiffs and class members were neither notified of the disqualification of

21 Dr. Chen nor provided copies of his reports at the time of their denial or termination.

22 Accordingly, they had no basis for knowing that their disability determinations were based in part

23 on incorrect, incomplete medical reports.

24

JURISDICTION AND VENUE

25

11. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

26

12. Venue in this Court is proper pursuant to 42 U.S.C. § 405(g) because at least one

27 named Plaintiff resides within the Northern District of California.

28

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1

PARTIES

2

13. Plaintiff Kevin Hart is a resident of San Mateo County who receives SSI and SSDI

3 benefits and is facing termination of his benefits after a consultative examination by Dr. Chen.

4

14. Plaintiff Nina Silva-Collins is a resident of Alameda County who was denied SSI

5 after a consultative examination by Dr. Chen.

6

15. Plaintiff Lee Harris is a resident of Alameda County who was denied SSI after a

7 consultative examination by Dr. Chen.

8

16. Defendant Carolyn W. Colvin is the Acting Commissioner of Social Security,

9 charged by federal law with administering and supervising all benefit programs administered by

10 SSA nationwide, including SSI and SSDI. The Commissioner is responsible for determining

11 eligibility for SSI and SSDI benefits and is authorized to reopen and review these determinations.

12 She is sued in her official capacity as the official charged with performing the statutory and

13 regulatory duties of SSA and its divisions, agents, employees and representatives.

14

INDIVIDUAL PLAINTIFF ALLEGATIONS

15

Plaintiff Kevin Hart

16

17. Plaintiff Kevin Hart is a fifty year old man who was struck by a car on October 2,

17 2007, shattering his right leg. Mr. Hart underwent two surgeries in the following months to

18 attempt to repair his leg, but still experiences tremendous pain and limited mobility. His leg

19 injury has also resulted in related ankle and leg pain, and the growth of cysts on his feet. He

20 needs a cane to walk. The resulting decrease in mobility has also caused other health effects,

21 such as increased blood pressure and cholesterol and swelling in the feet. He also suffers from

22 diabetes and emphysema. Mr. Hart suffers substantial pain and is significantly limited in his day-

23 to-day activities. He cannot stand or sit for long periods of time.

24

18. While he wants to be able to work, Mr. Hart is incapable of sustained employment

25 due to his medical conditions. Mr. Hart worked from the time he was a teenager until his

26 accident. He started out doing construction, carpentry, painting and roofing. He spent a number

27 of years working for GMG, a Port of San Francisco janitorial contractor. Then he worked as a

28 loader for Blue Diamond Growers in Sacramento, California, and then as a groundskeeper for Cal

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1 Expo in Sacramento, until his accident in 2007. Mr. Hart attempted to return to his job at Cal

2 Expo in 2008 after the two surgeries and extensive physical therapy. He had to stop working

3 after less than a week because he was physically unable to perform the duties of the job. He also

4 contacted Blue Diamond Growers about returning to work there; however, he could not return to

5 the job because he was again physically unable to perform the duties of a loader.

6

19. Immediately after the accident, Mr. Hart underwent open reduction internal

7 fixation (ORIF) surgery to try to repair his ankle fracture, where hardware (an “internal fixation”

8 device) is placed on the bone.

9

20. In a June 2008 medical report, a doctor from UC Davis Medical Center explained

10 that Mr. Hart probably suffered from a “non-union of the fibular site that was very painful” and

11 while his ankle “would improve somewhat over time,” Mr. Hart “would likely have abnormalities

12 in terms of decreased range of motion and abnormal gait related to his injury.”

13

21. The hardware in Mr. Hart’s ankle was surgically removed on June 18, 2008,

14 leaving him with residual pain and stiffness. At an August 18, 2008 consultation, Mr. Hart

15 presented with “occasional sharp shooting pain” and “leg swelling on extensive walking.”

16

22. Medical records from UC Davis Medical Center and Sacramento County DHHS

17 show that Mr. Hart was also diagnosed with emphysema, hypertension, and eczema in late 2008,

18 and insomnia in early 2010.

19

23. On April 23, 2010, an Administrative Law Judge (“ALJ”) found Mr. Hart to be

20 disabled with an onset established retroactive to 2007, due to his history of right ankle fracture,

21 emphysema, and hypertension. Mr. Hart was assessed to have “less than sedentary residual

22 functional capacity.”

23

24. Then, on April 12, 2013, Mr. Hart was violently attacked by a group of teenagers

24 in San Francisco. He sustained a non-displaced rib fracture, a serious kidney laceration with

25 hematoma, ruptured cyst, and multiple abrasions. After the attack he urinated blood. The

26 hospital examination also revealed that Mr. Hart suffered from polycystic kidney disease.

27

25. Mr. Hart’s medical records show that, independent of his injuries from the attack,

28 Mr. Hart’s health declined in many respects after he was found to be disabled. Progress notes

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1 from his treatment at San Mateo Medical Center in 2013 showed that Mr. Hart had a mass on his

2 right foot that was diagnosed as plantar fibromatosis. The 2013 records also note new problems

3 with Mr. Hart’s foot, including a “nodule at plantar to forefoot/midfoot, along the medial margin

4 of plantar fascia.” Mr. Hart was also diagnosed with “polcycstic kidney NOS; Diabetes Mellitus,

5 Type II;” “Hyperlipidemia and Plantar Fibromatosis.” After the attack, Mr. Hart developed

6 debilitating back pain.

7

26. In 2013, SSA notified Mr. Hart that he was scheduled for a continuing disability

8 review (CDR) to determine if he continued to meet the disability standard. The CDR differs from

9 the initial disability determination in that the first step is to determine if there has been any

10 medical improvement since the date he was first determined to be disabled. If medical

11 improvement related to ability to do work cannot be established, and no exceptions apply,

12 benefits will continue. 20 C.F.R. § 404.1594.

13

27. As part of his CDR, Mr. Hart was referred to Dr. Chen for a consultative

14 examination, which he received on August 15, 2013.

15

28. Dr. Chen’s entire examination of Mr. Hart lasted approximately ten minutes.

16

29. Dr. Chen did not complete a full physical examination of Mr. Hart. He asked

17 Mr. Hart about his condition, but when Mr. Hart attempted to explain the diagnosis he had

18 received from his doctors during his hospitalization, Dr. Chen repeatedly interrupted him by

19 asking “who told you that?” It appears that Dr. Chen did not review Mr. Hart’s medical records,

20 which would have corroborated his explanations of his ailments. Dr. Chen did not show any

21 interest in learning about Mr. Hart’s condition.

22

30. In a subsequent report entitled “Comprehensive Internal Medicine Evaluation,”

23 dated August 15, 2013, Dr. Chen incorrectly identified Mr. Hart’s “Chief Complaint” as

24 “Hypertension” and “Intermittent shortness of breath.” His only two diagnoses were

25 “[h]ypertension,” and “symptoms of intermittent shortness of breath on exertion.”

26

31. Dr. Chen’s report claims that he completed tests that he did not in fact perform.

27 The report gave results for numerous range of motion tests that would have required Dr. Chen to

28 physically manipulate Mr. Hart’s body. However, Dr. Chen did not touch Mr. Hart’s body with

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1 his hands during the examination, ask him to lie down on the examination table, or ask him to

2 remove his clothes or shoes. He did not perform standard tests for strength or range of motion.

3 He did not perform even basic tests, such as listening to Mr. Hart’s chest with a stethoscope.

4

32. Neither Dr. Chen’s diagnoses nor his functional capacity assessment include any

5 mention of Mr. Hart’s leg. Dr. Chen completely omitted Mr. Hart’s leg and feet ailments from

6 these sections, despite the fact that Mr. Hart arrived at his CE with his cane, an assistive device.

7 Dr. Chen briefly looked at the scar on Mr. Hart’s leg, but only after Mr. Hart proactively

8 described his surgeries. He asked Mr. Hart to stand on his right leg while lifting his left leg.

9 When Mr. Hart responded that he was physically unable to stand one-legged on his right leg,

10 Dr. Chen had him sit down and hit his knees with a hammer to test his reflexes. He did not

11 perform any additional examination or test of Mr. Hart’s ability to stand or walk. He did not at

12 any point observe Mr. Hart walking without his cane.

13

33. Dr. Chen concluded that Mr. Hart was capable of standing and walking for six

14 hours in an eight hour day, and sitting for six hours in an eight hour day. He opined that

15 Mr. Hart could carry “50 pounds occasionally and 2 pounds frequently.” Mr. Hart, however,

16 cannot stand or walk for more than a few minutes without the assistance of a cane, and he cannot

17 sit for long periods of time without experiencing painful swelling in his feet.

18

34. After Dr. Chen’s evaluation, Mr. Hart received a notice from SSA dated

19 September 11, 2013 telling him that his benefits were being terminated because he was no longer

20 disabled. He did not receive a copy of the CE report. He promptly filed a Request for

21 Reconsideration on September 30, 2013, stating “I am disabled. The doctor that I was sent to did

22 not examine me.” A hearing was scheduled for February 26, 2014 before a Disability Hearing

23 Officer. He was not represented by counsel at the Reconsideration hearing. Although Dr. Chen

24 had been disqualified two months before the hearing, neither SSA nor Disability Determination

25 Service Division of the California Department of Social Services (DDSD) ever notified him of

26 Dr. Chen’s disqualification.

27

35. In a written order dated March 17, 2014, the Disability Hearing Officer found that

28 Mr. Hart’s physical impairments had “medically improved” since the Comparison Point Decision

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1 (CPD) and that he is no longer disabled. The Order specifically cited Dr. Chen’s report for its

2 opinion that “the claimant is able to do medium work activities.” Despite the fact that Mr. Hart

3 had submitted evidence from another doctor concluding Mr. Hart had “limitations approximate to

4 less than sedentary work ability,” the Order found that Dr. Chen’s opinion “is more reasonable as

5 consistent and supported by medical evidence.”

6

36. On March 25, 2014, Mr. Hart filed a Request for Hearing by an ALJ. He is

7 awaiting his hearing.

8

37. Mr. Hart currently lives with his seventy-eight-year-old mother in San Mateo. He

9 tries to help his mother with chores around the house but his disability makes simple tasks, like

10 doing the dishes, extremely difficult. He worries about having enough money to meet basic needs

11 like paying rent and buying food, let alone paying for the special shoes and inserts that his doctor

12 has prescribed to take care of his feet. He struggles to get by with his monthly SSI and SSDI

13 disability benefits, and cannot imagine how he will meet these basic life necessities without it.

14 That monthly benefit is his only income.

15

Plaintiff Nina Silva-Collins

16

38. Plaintiff Nina Silva-Collins is a thirty-eight year old woman who suffers from

17 severe, chronic anemia caused by menorrhagia (abnormally heavy and prolonged menstrual

18 bleeding), lumbar degenerative disc disease, depression, anxiety, asthma, and hypertension.

19

39. Menorrhagia is Ms. Silva-Collins’ most debilitating condition, resulting in a period

20 of intense bleeding that can last up to three weeks per menstrual cycle. She has been hospitalized

21 repeatedly as a result, and treated with blood transfusions and medication. She brings a change of

22 clothes everywhere she goes because she bleeds so heavily. When she is menstruating, she has to

23 go to the restroom once an hour. This makes even sedentary work impossible.

24

40. Ms. Silva-Collins applied for SSI and SSDI benefits on September 7, 2011, when

25 her condition required multiple blood transfusions at St. Rose Hospital in Hayward, California.

26 Her claim was denied initially on February 8, 2012. Ms. Silva-Collins filed a timely request for

27 reconsideration on February 16, 2012, which was denied on July 19, 2012. Ms. Silva-Collins

28

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1 filed a written request for a hearing on August 13, 2012. A hearing before an ALJ was held on

2 July 2, 2013, but a supplemental hearing was set when the ALJ determined that a CE was needed.

3

41. On August 10, 2013, Ms. Silva-Collins was examined by Dr. Chen at the Bay

4 View Medical Clinic in Oakland, California.

5

42. Dr. Chen’s entire examination lasted approximately ten minutes.

6

43. Dr. Chen did not complete a full physical examination of Ms. Silva-Collins. He

7 lifted Ms. Silva-Collins’ leg, and asked her to bend over and squat. Dr. Chen asked her how

8 much she could pick up, and she explained that her ability to lift items varied due to the cyclical

9 menorrhagia. Ms. Silva-Collins’ vital signs were not taken, nor did Dr. Chen use a stethoscope to

10 listen to her heart beat. Dr. Chen did not use a hammer or other instrument to test her reflexes,

11 and he did not test her grip or strength. Ms. Silva-Collins was never asked to remove her clothes,

12 shoes or socks, and her body was not measured or palpated. Dr. Chen did not ask Ms. Silva-

13 Collins any questions about her menorrhagia, anemia, or other blood issues, or the effect that

14 these chronic conditions had on her physical capabilities.

15

44. In a subsequent report, titled “Comprehensive Internal Medicine Evaluation,”

16 Dr. Chen made only two diagnoses: “[l]ow back pain, possibly due to obesity,” and “obesity.”

17 Neither his diagnoses nor the functional capacity assessment mention Ms. Silva-Collins’

18 menorrhagia or anemia.

19

45. Dr. Chen’s report claims that he completed tests that he did not in fact perform.

20 The report gave results for numerous strength and range of motion tests that he did not perform.

21

46. Dr. Chen concluded, as he did with Mr. Hart, that Ms. Silva-Collins was capable

22 of standing and walking for six hours in an eight hour day, and sitting for six hours in an eight

23 hour day. He opined that she could occasionally bend, stoop, and crouch, and warned only that

24 Ms. Silva-Collins should “avoid climbing ladders and scaffolds.”

25

47. Following the supplemental hearing on January 8, 2014, the ALJ denied her claim

26 for benefits in a written order dated January 16, 2014. In concluding that Ms. Silva-Collins was

27 not disabled, the ALJ gave “great weight to the opinion of consultative examiner Dr. Chen” and

28 noted “[h]is examination is the most thorough and detailed in the record, and well supported by

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1 the medical evidence as a whole, thus, the undersigned gives his opinion great weight to the

2 extent that it is consistent with this decision.”

3

48. Ms. Silva-Collins was never notified by SSA or DDSD of Dr. Chen’s

4 disqualification as a consultative examiner.

5

49. Upon learning of Dr. Chen’s disqualification as a consultative examiner,

6 Ms. Silva-Collins’ attorney sent a letter on February 12, 2014 to the ALJ, attaching a letter from

7 the California Department of Social Services explaining that Dr. Chen had been disqualified, and

8 asking the ALJ to reconsider the unfavorable decision. This request was denied.

9

50. Ms. Silva-Collins filed an appeal to the SSA Appeals Council, and is currently

10 awaiting their decision.

11

51. Ms. Silva-Collins is incapable of sustained employment due to her medical

12 conditions. While she has had some temporary, unskilled jobs—an assembly line worker from

13 January to June 2011, and a warehouse worker with United Parcel Service between June 2000

14 and February 2003—her highest lifetime earnings in any single year was $6,321 in 2001.

15 Ms. Silva-Collins has no high school diploma or GED, and no other skills or means to earn a

16 living.

17

52. Ms. Silva-Collins currently lives with her father and survives on CalFresh (food

18 stamps) and $336 a month in General Assistance, much of which she gives to her father in

19 exchange for his support. Ms. Silva-Collins has applied for Medi-Cal, but that application is

20 currently pending. SSI would allow Ms. Silva-Collins a measure of independence and stability,

21 and a means to afford needed medical supplies (such as heavy-duty menstrual pads) and other life

22 necessities.

23

Plaintiff Lee Harris

24

53. Plaintiff Lee Harris is a fifty-four year old man who has suffered from debilitating

25 pain since a car accident in April 2005 during which he fractured both of his ankles and injured

26 his lower back. A CT scan at the time of the accident revealed multiple transverse process

27 fractures involving the lower thoracic spine and lumbar spine. On April 13, 2005, Mr. Harris had

28 surgery to repair the fractures in his right heel bone and left foot that left him in a short leg cast.

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1 The next week, he underwent another surgical repair to repin the right heel bone fracture and the

2 screw in his left foot fracture.

3

54. The hardware in his right heel bone caused continued, debilitating pain, and

4 Mr. Harris had another surgery to remove it in January 2006.

5

55. Mr. Harris is incapable of sustained employment due to his medical conditions.

6 Before his accident, Mr. Harris worked as an auto dismantler for Dorris Auto Wreckers.

7 Mr. Harris has also worked in warehousing, anodizing, and construction. While he wants to be

8 able to work again, he is in too much pain.

9

56. Mr. Harris applied for SSI benefits on August 9, 2011. SSA referred Mr. Harris to

10 Dr. Chen for a consultative examination, which he received on October 28, 2011.

11

57. Mr. Harris was examined by Dr. Chen at the Bay View Medical Clinic in Oakland,

12 California. Mr. Harris was accompanied by his son, who was approximately six or seven years

13 old at the time.

14

58. Dr. Chen’s entire examination lasted approximately twelve minutes.

15

59. Dr. Chen did not complete a full physical examination of Mr. Harris. He asked

16 Mr. Harris to take off his socks and shoes. Dr. Chen looked at Mr. Harris’ feet. Dr. Chen did not

17 use a hammer or other instrument to test his feet.

18

60. Dr. Chen asked Mr. Harris to stand without his cane. Mr. Harris attempted to

19 stand, but he had to grab the examination table immediately. Dr. Chen told him to stop grabbing

20 the table, to which Mr. Harris responded that he could not.

21

61. Mr. Harris took out his medications to show Dr. Chen, but the doctor said that he

22 did not need to see them and asked no questions about them. Dr. Chen did not ask Mr. Harris any

23 questions about his conditions or his physical capabilities.

24

62. Dr. Chen’s report claims that he completed tests that he did not in fact perform.

25 The report gave results for numerous range of motion tests that would have required Dr. Chen to

26 physically manipulate Mr. Harris’s body. However, Dr. Chen did not touch Mr. Harris’s body

27 during the examination. He did not perform standard tests for strength or range of motion. He

28 did not perform even basic tests, such as listening to Mr. Harris’s chest with a stethoscope.

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1

63. Dr. Chen concluded that Mr. Harris did not need to use his cane to walk short

2 distances, even though he had never seen Mr. Harris stand without it. Dr. Chen also concluded

3 that Mr. Harris could sit for six hours, stand and walk for six hours in an eight-hour workday, lift

4 and carry 25 pounds frequently, and lift and carry 50 pounds occasionally.

5

64. Mr. Harris’s application was denied on November 18, 2011, and again upon

6 reconsideration on May 16, 2012. Thereafter, Mr. Harris filed a written request for hearing on

7 June 19, 2012. That hearing was held before an ALJ on April 29, 2013.

8

65. In a written order dated June 4, 2013, the ALJ determined that Mr. Harris has the

9 residual functional capacity to perform medium work as defined in 20 C.F.R. § 416.967(c). The

10 decision states that “the examination by Dr. Chen indicates far greater functionality than alleged

11 by the claimant.” The ALJ “assign[ed] the greatest weight to Dr. Chen’s opinion because he

12 personally examined the claimant.”

13

66. Mr. Harris applied again for SSI benefits on November 14, 2013.

14

67. On November 14, 2013, Mr. Harris’s counsel arranged a physical and forensic

15 examination of Mr. Harris by Dr. Emily Cohen. Dr. Cohen diagnosed Mr. Harris with chronic

16 lumbosacral pain, chronic ankle/foot pain, acute left forearm pain, and hypertension. Dr. Cohen

17 concluded that Mr. Harris could walk and/or stand for about two hours out of an eight-hour work

18 day, and sit for six hours out of an eight-hour work day. Given his instability, Dr. Cohen found

19 that Mr. Harris could only lift and carry about ten pounds frequently and occasionally.

20

68. On July 21, 2014, SSA referred Mr. Harris to Dr. Calvin Pon for a consultative

21 examination, which he received on August 8, 2014. Mr. Harris was examined by Dr. Pon at the

22 Bay View Medical Clinic in Oakland, California. Dr. Pon similarly diagnosed Mr. Harris with

23 chronic low back pain and chronic bilateral heel-foot pain.

24

69. Mr. Harris’s claim was denied initially on August 28, 2014. This initial

25 determination stated that Mr. Harris’s CE was “reviewed and compared with CE by Dr. Chen in

26 prior file.” Mr. Harris sent a request for reconsideration on September 12, 2014, which was

27 denied on January 26, 2015. Mr. Harris filed a written request for a hearing on February 4, 2015.

28 That request is pending.

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1

70. Mr. Harris lives alone in an apartment in Oakland, California. His disability

2 makes simple tasks extremely difficult. For example, Mr. Harris has to depend on others to do

3 his grocery shopping, since he is unable to carry the shopping bags. He struggles to get by with

4 his monthly $336 in General Assistance benefits and $189 in food stamps. He often has to seek

5 financial assistance from his brother and sister to meet basic life necessities.

6

71. Receiving SSI benefits would not only help Mr. Harris meet these basic needs, but

7 it would allow him to visit his eleven year old son, who currently lives in Reno, Nevada.

8

DISQUALIFICATION OF CONSULTATIVE EXAMINER DR. FRANK CHEN

9

72. Dr. Frank Chen is a medical doctor who was appointed by DDSD to be on its CE

10 panel, and saw applicants for disability benefits in at least four different clinics, in San Francisco,

11 Oakland, San Jose, and Pacific Grove, California.

12

Complaints Against Dr. Frank Chen

13

73. Over the years, applicants and their representatives filed numerous complaints

14 against Dr. Chen with DDSD, explaining that he had not actually conducted full physical

15 examinations as he stated in his reports. His examinations were not based on medically

16 acceptable clinical diagnostic techniques, and sometimes included unauthorized neurological

17 examinations. Dr. Chen’s reports ignored diagnoses, findings, and symptoms described in his

18 patients’ medical records, which he claimed to have reviewed. His reports were internally

19 inconsistent. Applicants also complained that Dr. Chen acted unprofessionally and displayed a

20 lack of attention and concern during their brief appointments. He interrupted applicants when

21 they tried to describe their diagnoses and symptoms and laughed when they described the list of

22 medications they were taking. He made inappropriate comments about religion and about

23 patients’ personal characteristics. When applicants described certain conditions, Dr. Chen

24 responded that they should go “tell the mental examiner” or “save it for the mental doctor.”

25

Corrective Action Letters to Dr. Frank Chen

26

74. On September 2, 2011, DDSD sent Dr. Chen an initial Corrective Action letter

27 identifying four areas of concern: the quality of his CE reports, the lack of thoroughness of his

28

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 15 of 26

1 examinations, religious comments made during examinations, and conducting unauthorized

2 neurological examinations.

3

75. DDSD sent a second Corrective Action letter to Dr. Chen on October 14, 2013,

4 identifying continuing problems with the quality of his CE reports, the lack of thoroughness of his

5 examinations, and his unprofessional manner towards applicants.

6

Removal from CE Panel

7

76. Finding Dr. Chen had not made the changes required to provide adequate service

8 and continuing to receive complaints about Dr. Chen, the DDSD removed Dr. Chen from the CE

9 panel as of December 30, 2013 due to Dr. Chen’s “unprofessional manner and failure to

10 adequately correct deficiencies in his CE reports.”

11

77. Plaintiffs and members of the class were given no notice of Dr. Chen’s

12 disqualification.

13

78. Even after his disqualification, Dr. Chen’s reports have still been treated as

14 competent evidence by the Social Security Administration. His reports continue to be relied upon

15 by the Office of Disability Adjudication and Review (ODAR) and courts making determinations

16 of eligibility for benefits.

17

LEGAL FRAMEWORK

18

79. The Social Security Act requires the SSA to provide benefits to qualified

19 individuals with disabilities who are “unable to engage in any substantial gainful activity by

20 reason of any medically determinable physical or mental impairment which can be expected to

21 result in death or which has lasted or can be expected to last for a continuous period of not less

22 than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

23

80. While the SSA administers these benefit programs, it contracts with state agencies

24 to make the disability determinations under standards established by SSA. 20 C.F.R.

25 § 404.1503(a). In California, these disability determinations are made by the DDSD.

26

Standards for Medical Evidence

27

81. The existence of an individual’s disabling impairment must be supported by

28 medical evidence: “there must be medical signs and findings, established by medically acceptable

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 16 of 26

1 clinical or laboratory diagnostic techniques[.]” 42 U.S.C. § 423(d)(5)(A); see also 42 U.S.C.

2 § 1382c(a)(3)(D).

3

82. Defendant is responsible for establishing uniform standards to be applied at all

4 levels of disability determinations. 42 U.S.C. § 421(k)(1). The determination that an individual

5 is disabled must be based on “evidence from acceptable medical sources” to establish whether an

6 individual has a medically determinable impairment. 20 C.F.R. §§ 404.1513(a), 416.913(a).

7

83. If the evidence provided by the claimant’s own medical sources is inadequate to

8 determine if he or she is disabled, additional medical information may be sought by contacting

9 claimant’s sources or by arranging for a consultative examination.

10

84. Defendant violated its mandate under the SSA and its implementing regulations to

11 use evidence from acceptable medical sources by relying upon deficient CE reports from

12 Dr. Chen in denying or terminating SSI and SSDI benefits.

13

Consultative Examinations and Reports

14

85. CEs are one-time physical or mental examinations performed by medical doctors

15 and other health professionals who are contractors with the DDSD.

16

86. The SSA’s internal operating instructions—known as the Program Operations

17 Manual System (“POMS”)—list specific tests which should be performed for different types of

18 exams. POMS Disability Insurance (DI) 22510.021 et seq., available at

19 https://secure.ssa.gov/apps10/poms.nsf/partlist. The POMS provisions also list minimum

20 scheduling intervals for different types of exams to “[a]llow sufficient time to permit the medical

21 source to take a case history and perform the examination, including any needed tests.” Id. at DI

22 39545.250. For example, the minimum scheduling interval for a comprehensive general medical

23 examination is “at least 30 minutes.” Id.

24

87. Following the CE, the examiner submits a CE report to the DDSD.

25

88. The SSA has promulgated specific guidelines regarding the content of these CE

26 reports. Consultative Examinations: A Guide for Health Professionals Part III, available at

27 http://www.ssa.gov/disability/professionals/greenbook/ce-guidelines.htm. The guidelines direct a

28 CE to use “standard reporting principles for a complete medical examination,” including detailed

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 17 of 26

1 reporting of the applicant’s medical history, the results of the physical examination, any

2 laboratory findings, and discussion of conclusions. Id.

3

89. The guidelines also state that the CE report “should be complete enough to enable

4 an independent reviewer to determine the nature, severity and duration of the claimant’s

5 impairment,” as well as “the claimant’s ability to perform basic work-related functions.” Id. The

6 physician must provide a narrative of the applicant’s medical history and the physical

7 examination. Id.

8

90. The guidelines require that conclusions in the CE report must be consistent with

9 “all available information,” including the “objective clinical findings found on examination and

10 the claimant’s symptoms” and medical history. Id. For adults, the CE report “should include a

11 description, based on the [CE’s] own findings, of the individual’s ability to do basic work-related

12 activities. It should not include an opinion as to whether the claimant is disabled under the

13 meaning of the law.” Id.

14

91. The guidelines explicitly outline seven requirements for a CE report. It must:

15

Provide evidence that serves as an adequate basis for disability

decision-making in terms of the impairment it assesses. 16

Be internally consistent, and ensure that all the diseases,

17

impairments and complaints described in the history are adequately

assessed and reported in the clinical findings. 18

Correlate conclusions with the medical history, the clinical

19

examination and laboratory tests, and explain all abnormalities.

20

Be consistent with the other information available within the

specialty of the examination requested. 21

Mention important or relevant complaints within the consultative

22

examiner’s specialty that is noted in other evidence in the file (e.g.,

blindness in one eye, amputations, pain, alcoholism, depression). 23

Be adequate as compared to the standards set out in the course of a

24

medical education.

25

Be properly signed.

26 Id.

27

92. The DDSD then relies on the CE report in making its disability recommendation.

28 20 C.F.R. §§ 404.1517 – 404.1519t, §§ 416.917 – 416.919t.

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 18 of 26

1

93. Because a CE report is used in making disability determinations, SSA regulations

2 require that it be evidence from an “acceptable medical source[].” 20 C.F.R. §§ 404.1513(a),

3 416.913(a).

4

94. Defendant’s reliance upon deficient CE reports from Dr. Chen in denying or

5 terminating SSI and SSDI benefits is contrary to these guidelines.

6

Monitoring of Consultative Examinations and Examiners

7

95. The Social Security Act tasks the Commissioner of Social Security to proscribe

8 regulations through which the consultative examination process and its examiners are monitored.

9 42 U.S.C. § 421(j)(3) (“The Commissioner of Social Security shall prescribe regulations which

10 set forth . . . procedures by which the Commissioner of Social Security will monitor . . . the

11 product of professionals to whom cases are referred.”).

12

96. Defendant is responsible for monitoring and ensuring the adequacy of the CE

13 process, including providers. See 20 C.F.R. §§ 404.1519s(g), 416.919s(g) (“The State agencies

14 will cooperate with us when we conduct monitoring activities in connection with their oversight

15 management of their consultative examination programs.”).

16

97. The SSA’s policy and practice of relying upon CE reports performed by Dr. Chen

17 is contrary to Defendant’s duty to monitor and ensure the adequacy of the CE process and

18 providers.

19

Disqualified Consultative Examiners

20

98. The SSA may disqualify a medical provider from performing CEs on its behalf.

21 Social Security Hearings, Appeals, and Litigation Law Manual (“HALLEX”) Ch. I-2-1-32,

22 available at http://ssa.gov/OP_Home/hallex/hallex.html.

23

99. Even after an examiner has been disqualified, Defendant may still rely on existing

24 reports from that examiner as “existing medical evidence.” See 20 C.F.R. §§ 404.1503a,

25 416.903a (“We will not use in our program any individual or entity, except to provide existing

26 medical evidence, who is currently excluded, suspended, or otherwise barred[.]”) (emphasis

27 added). But to the extent that Defendant relies on those existing reports—where those reports are

28 deficient and the CE has been disqualified, at least in part, because of such deficiency—to

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 19 of 26

1 determine an individual’s disability, such policy and practice violates Defendant’s obligation to

2 use evidence from acceptable medical sources. 20 C.F.R. §§ 404.1513(a), 416.913(a).

3

100. There is no rule or regulation directing SSA employees to provide applicants

4 whose benefits have been denied or terminated any notice that their examiner has been

5 disqualified. According to “HALLEX”—the Hearings, Appeals, and Litigation Law Manual that

6 provides policies and guidance for processing and adjudicating disability claims—the SSA leaves

7 it to the state agency to decide whether they should provide notice to the Office of Disability

8 Adjudication and Review. HALLEX Ch. I-2-1-32(A) (DDS “may provide formal notice” to the

9 ODAR of a disqualification and “[i]n most circumstances, DDS will identify cases pending in

10 ODAR that require further action because the record contains a consultative examination

11 performed by the disqualified consultative examiner.”) (emphasis added).

12

101. Moreover, any review of a denial or termination of benefits is done on an

13 individual basis: an ALJ “must evaluate the allegation of disqualification” based only “on the

14 medical evidence of record” for that claimant, and issue a decision after weighing that evidence.

15 Id. I-2-1-32(B). The ALJ “will not rely on or associate evidence of a consultative examiner

16 disqualification submitted by one claimant with a different claimant’s file.” Id.

17

Review of Disability Determinations

18

102. The Commissioner of Social Security has the authority to review any disability

19 determination, either before or after any action is taken to implement the disability determination.

20 42 U.S.C. § 421(c)(1).

21

103. SSA has promulgated regulations dictating the circumstances under which an

22 applicant’s disability determination or decision may be reopened for both the SSDI and SSI

23 programs. For the SSDI program, 20 C.F.R. § 404.988 states:

24

A determination, revised determination, decision, or revised

decision may be reopened— 25

(a) Within 12 months of the date of the notice of the initial

26

determination, for any reason;

27

(b) Within four years of the date of the notice of the initial

determination if we find good cause, as defined in § 404.989, to

28

reopen the case; or

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 20 of 26

(c) At any time if— 1

(1) It was obtained by fraud or similar fault (see § 416.1488(c)

2

of this chapter for factors which we take into account in

determining fraud or similar fault)[.] 3

4 104. For the SSI program, 20 C.F.R. § 416.1488 states:

5

A determination, revised determination, decision, or revised

6

decision may be reopened—

7

(a) Within 12 months of the date of the notice of the initial

determination, for any reason; 8

(b) Within two years of the date of the notice of the initial

9

determination if we find good cause, as defined in § 416.1489, to

reopen the case; or 10

(c) At any time if it was obtained by fraud or similar fault. In

11

determining whether a determination or decision was obtained by

fraud or similar fault, we will take into account any physical,

12

mental, educational, or linguistic limitations (including any lack of

facility with the English language) which you may have had at the

13

time.

14 105. “Good cause” for reopening a determination or decision will be found if:

15

(1) New and material evidence is furnished; 16

(2) A clerical error in the computation or recomputation of benefits

17

was made; or

18

(3) The evidence that was considered in making the determination

or decision clearly shows on its face that an error was made. 19

20 20 C.F.R. §§ 404.989, 416.1489.

21

106. “Fraud” exists “when a person, with intent to defraud, either: (1) Makes or causes

22 to be made a false statement or misrepresentation of a material fact for use in determining rights

23 to Social Security benefits; or (2) Conceals or fails to disclose a material fact for use in

24 determining rights to Social Security benefits.” POMS General (GN) § 04020.010(A)(1).

25

107. “Similar fault” exists “when a person either: (1) Knowingly makes an incorrect or

26 incomplete statement that is material to the determination; or (2) Knowingly conceals information

27 that is material to the determination. However, fraudulent intent is not required.” Id. GN

28 § 04020.010(A)(2).

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 21 of 26

1

CLASS ACTION ALLEGATIONS

2

108. Plaintiffs bring this action as a class action pursuant to Rule 23(b)(2) of the

3 Federal Rules of Civil Procedure.

4

109. This class consists of:

5

All persons whose SSI disability or SSDI benefits were either

denied or terminated and for whom a consultative examination

6

report was prepared by Dr. Frank Chen.

7

110. The class is so numerous that joinder of all members is impracticable. While the

8 exact number of class members can only be obtained through appropriate discovery, on

9 information and belief, there are hundreds and possibly thousands of class members whose SSI

10 and/or SSDI benefits were either denied or terminated because of reliance upon, in whole or in

11 part, a consultative examination report from Dr. Chen.

12

111. There are questions of law and fact common to all class members that predominate

13 over questions only affecting individual class members. Such questions include, among others:

14

a. Whether Defendant violated its mandate under the SSA and its implementing

15

regulations to use evidence from acceptable medical sources by relying upon

16

deficient CE reports from Dr. Chen in denying or terminating SSI and SSDI

17

benefits.

18

b. Whether Defendant violated its obligation under the SSA and its implementing

19

regulations to monitor and ensure the adequacy of the consultative examination

20

process and providers by relying upon deficient CE reports from Dr. Chen in

21

denying or terminating SSI and SSDI benefits.

22

c. Whether Plaintiffs and members of the class were deprived of due process by

23

Defendant’s failure to provide them with a complete and thorough consultative

24

examination by a competent consultative examiner, in violation of the Fifth

25

Amendment of the U.S. Constitution.

26

d. Whether Plaintiffs and members of the class were deprived of due process by

27

Defendant’s failure to notify them of the disqualification of Dr. Chen, in violation

28

of the Fifth Amendment of the U.S. Constitution.

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 22 of 26

1

e. Whether Plaintiffs and members of the class were deprived of due process by

2

Defendant’s failure to provide them with copies of their consultative examination

3

report, in violation of the Fifth Amendment of the U.S. Constitution.

4

f. Whether, under the Social Security Act and regulations, Plaintiffs and members of

5

the class are entitled to have their claims reopened and redetermined on the basis

6

of “good cause” because new and material evidence has been furnished as to the

7

adequacy of their CE examinations and reports from Dr. Chen.

8

g. Whether, under the Social Security Act and regulations, Plaintiffs and members of

9

the class are entitled to have their claims reopened and redetermined on the basis

10

of “good cause” because those determinations relied on a defective CE report from

11

Dr. Chen that clearly shows on its face that error(s) were made.

12

h. Whether, under the Social Security Act and regulations, Plaintiffs and members of

13

the class are entitled to have their claims reopened and redetermined on the basis

14

of “fraud or similar fault” because Dr. Chen knew he was making incorrect or

15

incomplete statements in his CE reports.

16

i. Whether, under the Social Security Act and regulations, Plaintiffs and members of

17

the class are entitled to have their claims reopened and redetermined on the basis

18

of “fraud or similar fault” because Dr. Chen knowingly concealed material

19

information when he prepared his CE reports.

20

j. Whether, under the Social Security Act and regulations, Plaintiffs and members of

21

the class are entitled to a new CE report from an acceptable medical source.

22

k. Whether, under the Social Security Act and regulations, Plaintiffs and members of

23

the class are entitled to have their claims reopened and redetermined without any

24

reliance on Dr. Chen’s consultative examination and report.

25

112. Plaintiffs’ claims are typical of the claims of all class members, and arise from the

26 same need to have their applications reopened and redetermined without any reliance on

27 Dr. Chen’s consultative examination reports. The declaratory and injunctive relief sought is

28 common to all class members.

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 23 of 26

1

113. A class action is superior to other available methods for a fair and efficient

2 adjudication of this matter in that the prosecution of separate actions by individual class members

3 would unduly burden the Court and create the possibility of conflicting decisions.

4

114. Plaintiffs will fairly and adequately protect the interests of the class members.

5

115. The named plaintiffs and the proposed class are represented by National Senior

6 Citizens Law Center, Morrison & Foerster LLP, and Legal Aid Society of San Mateo County,

7 whose attorneys are experienced in class action litigation and will adequately represent the class.

8

116. Defendant has acted on grounds generally applicable to the class, by relying on

9 defective CEs from Dr. Chen, that failed to meet the mandates in the SSA and its implementing

10 regulations to use evidence from acceptable medical sources to establish whether an individual

11 has a medically determinable impairment and to monitor and ensure the adequacy of the CE

12 process and providers.

13

117. If class certification is not granted, individuals would be forced to bring separate

14 actions, thereby wasting judicial resources, as well as the time of attorneys from government

15 agencies and legal services providers.

16

FIRST CAUSE OF ACTION

17

FOR DECLARATORY AND INJUNCTIVE RELIEF FOR

Improper Reliance on Dr. Frank Chen CE Reports 18

19

118. Paragraphs 1 – 117 are each re-alleged and incorporated as if fully set forth herein.

20

119. The Social Security Act and the regulations promulgated thereunder, 42 U.S.C.

21 §§ 421, 423 and 1383b, 20 C.F.R. §§ 404.1512 – 404.1513 and 416.912 – 416.913, require

22 Defendant to base disability determinations on evidence from acceptable medical sources.

23

120. The SSA’s policy and practice of relying upon CE reports performed by Dr. Chen

24 violates Defendant’s legal obligation to base disability determinations on evidence from

25 acceptable medical sources.

26

121. This policy and practice violates the Social Security Act and its implementing

27 regulations.

28

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 24 of 26

1

122. Defendant has the authority to review the disability determinations of Plaintiffs

2 and class members. 42 U.S.C. § 421(c)(1).

3

123. Pursuant to the 20 C.F.R. §§ 404.988, 404.989, 416.1488, 416.1489, grounds exist

4 to reopen these determinations.

5

SECOND CAUSE OF ACTION

6

FOR DECLARATORY AND INJUNCTIVE RELIEF FOR

Improper Reliance on Dr. Frank Chen CE Reports 7

8

124. Paragraphs 1 – 123 are each re-alleged and incorporated as if fully set forth herein.

9

125. The Social Security Act tasks the Commissioner of Social Security to proscribe

10 regulations through which the consultative examination process and its examiners are monitored.

11 42 U.S.C. § 421(j)(3).

12

126. SSA regulations assign Defendant responsibility for monitoring and ensuring the

13 adequacy of the CE process and providers. 20 C.F.R. §§ 404.1519s(g), 416.919s(g).

14

127. Accordingly, the SSA’s policy and practice of relying upon CE reports performed

15 by Dr. Chen is irreconcilable with Defendant’s duty to monitor and ensure the adequacy of the

16 CE process and providers.

17

128. This policy and practice violates the Social Security Act and its implementing

18 regulations.

19

129. Defendant has the authority to review the disability determinations of Plaintiffs

20 and class members. 42 U.S.C. § 421(c)(1).

21

130. Pursuant to the 20 C.F.R. §§ 404.988, 404.989, 416.1488, 416.1489, grounds exist

22 to reopen these determinations.

23

THIRD CAUSE OF ACTION

FOR DECLARATORY AND INJUNCTIVE RELIEF FOR

24

Violation of the Fifth Amendment of the United States Constitution,

25

Actionable Pursuant to 42 U.S.C. § 1983 (Due Process)

26

131. Paragraphs 1 – 130 are each re-alleged and incorporated as if fully set forth herein.

27

28

CLASS ACTION COMPLAINT

22

Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 25 of 26

1

132. Defendant’s failure to provide Plaintiffs and class members with a complete and

2 thorough consultative examination by a competent consultative examiner violates Plaintiffs’ and

3 class members’ Fifth Amendment rights to procedural due process.

4

133. Defendant’s failure to notify Plaintiffs and class members of the disqualification of

5 Dr. Chen violates Plaintiffs’ and class members’ Fifth Amendment rights to procedural due

6 process.

7

134. Defendant’s failure to provide Plaintiffs and class members with copies of their

8 CE report violates Plaintiffs’ and class members’ Fifth Amendment rights to procedural due

9 process.

10

135. As a result, Plaintiffs and members of the class were denied an opportunity for a

11 fair and adequate notice and hearing.

12

PRAYER FOR RELIEF

13

WHEREFORE Plaintiffs respectfully request that the Court:

14

a. Assume jurisdiction over this matter;

15

b. Certify this action as a class action pursuant to Rule 23(b)(2) of the Federal Rules

16

of Civil Procedure;

17

c. Declare that Defendant’s policies and practices, as set forth above, violate the

18

SSA’s obligations pursuant to the Social Security Act, its implementing

19

regulations and the Due Process Clause of the United States Constitution;

20

d. Preliminarily and permanently enjoin Defendant from relying on consultative

21

exam reports from Dr. Frank Chen to terminate or deny SSI and/or SSDI benefits;

22

e. Preliminarily and permanently enjoin Defendant to reopen all prior determinations

23

terminating or denying SSI and/or SSDI benefits that relied, in whole or in part, on

24

a consultative exam report from Dr. Frank Chen, and to offer Plaintiffs the

25

opportunity for a new consultative examination from a well-qualified clinician;

26

f. Preliminarily and permanently enjoin Defendant to provide notice to individuals

27

whose claims for SSI and/or SSDI benefits were terminated or denied, in whole or

28

in part, on a consultative exam report from Dr. Frank Chen;

CLASS ACTION COMPLAINT

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Case 3:15-cv-00623-JST Document 1 Filed 02/09/15 Page 26 of 26

1

g. Award Plaintiffs costs, disbursements, and reasonable attorneys’ fees, including,

2

without limitation, the costs and fees authorized by 28 U.S.C. § 2412;

3

h. Grant Plaintiffs such other and further relief as the Court may find just, proper and

4

equitable.

5

6 Dated: February 9, 2015 7 8 9 10 11

By: /s/ William L. Stern William L. Stern
MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 WStern@mofo.com T: (415) 268-7000
Attorney for Plaintiffs

12

13 sf-3484497

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CLASS ACTION COMPLAINT

24

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
KEVIN HART, et al., 7
Plaintiffs, 8
v. 9
CAROLYN W. COLVIN, 10
Defendant. 11

Case No. 15-cv-00623-JST
ORDER DENYING MOTION TO DISMISS Re: ECF No. 18

United States District Court Northern District of California

12

13

This is a putative class action about the evidence that Administrative Law Judges

14 (“ALJ’s”) may properly consider in determining whether claimants are entitled to disability

15 benefits from the Social Security Administration (“SSA”). Plaintiffs have sued Defendant

16 Carolyn W. Colvin in her capacity as Acting Commissioner of Social Security, ECF No. 1,

17 challenging the SSA’s alleged reliance on consultative examinations (CEs) performed by Dr.

18 Frank Chen, a physician who is now disqualified, in denying or terminating disability benefits. Id.

19 at ¶ 1. Plaintiffs seek declaratory and injunctive relief requiring the SSA to cease relying on Dr.

20 Chen’s reports and requiring it to reopen any benefits determination that relied, at least in part, on

21 a report prepared by Dr. Chen. Id. at 23-24.

22

Defendant now moves to dismiss Plaintiffs’ complaint for lack of subject matter

23 jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 18. She contends that

24 the Court cannot exercise jurisdiction over this case pursuant to 42 U.S.C. § 405(g) because

25 Plaintiffs have failed to exhaust their administrative remedies through the Social Security

26 Administration’s internal appeals process. Plaintiffs respond that this Court should waive the

27 exhaustion requirement of Section 405(g), because Plaintiffs’ claims are collateral to their claims

28 for benefits, administrative exhaustion would be futile, and Plaintiffs have made a colorable

1 showing of irreparable harm. ECF No. 25. This matter came for a hearing on June 25, 2015.

2

For the reasons set forth below, the Court concludes that administrative exhaustion would

3 be futile, and that Plaintiffs have satisfied the other requirements for waiver of the exhaustion

4 requirement. The Court therefore denies Defendant’s motion to dismiss. 5 I. Background1

6

To to obtain benefits based on disability under the Supplemental Security Income (SSI)

7 program or Social Security Disability Insurance (SSDI), a claimant must be unable “to engage in

8 any substantial gainful activity by reason of any medically determinable physical or mental

9 impairment which can be expected to result in death or which has lasted or can be expected to last

10 for a continuous period of not less than 12 months.” ECF No. 1 at ¶ 2 (citing 42 U.S.C. §

11 423(d)(1)(A)). The regulations promulgated pursuant to the Social Security Act require that

United States District Court Northern District of California

12 claimants provide the Social Security Administration (SSA) with “evidence from acceptable

13 medical sources to establish whether [an individual has] a medically determinable impairment(s).”

14 Id. at ¶ 3 (citing 20 C.F.R. § 404.1513(a)). Although the SSA administers SSI and SSDI, it

15 contracts with state agencies, such as the Disability Determination Service Division of the

16 California Department of Social Services (DDSD), in order to make disability determinations. Id.

17 at ¶ 80.

18

Consultative examinations (CEs) are examinations performed by doctors or other medical

19 professionals who contract with DDSD. Id. at ¶ 85. Following CEs, the examiner will send their

20 report on a claimant to the DDSD. Id. at ¶ 87. The SSA has promulgated various guidelines

21 regarding the standards for CEs and the consideration of CE reports. Id. at ¶¶ 88-93.

22

Named Plaintiffs Kevin Hart, Nina Silva-Collins, and Lee Harris all sought the award or

23 renewal of disability benefits from the SSA. Dr. Frank Chen performed consultative examinations

24 (CEs) on all of the Named Plaintiffs in connection with their application for award or renewal of

25 disability benefits. Named Plaintiffs allege various deficiencies with these examinations.

26

Plaintiff Hart suffered from “tremendous pain and limited mobility,” following a 2007 car

27

28

1 For the purposes of this order, the Court accepts as true all of the well-pled factual allegations contained in Plaintiff’s Complaint. ECF No. 1.

2

1 accident, as well as “diabetes and emphysema.” Id. at ¶ 17. Hart was found disabled by an ALJ in

2 April 2010. Id. at ¶ 23. In April of 2013, Hart was attacked violently, exacerbating his pre-

3 existing pain and causing additional serious health conditions. Id. at ¶ 24-25. Hart was scheduled

4 for a continuing disability review in 2013, and referred to Dr. Chen. Id. at ¶ 26. Dr. Chen’s

5 August 15, 2013 examination of Plaintiff Hart lasted only ten minutes. Id. at ¶¶ 28. Dr. Chen

6 submitted a report that misidentified Hart’s complaints and claimed that he had performed tests

7 that he had not actually performed during his examination. Id. at ¶¶ 29-32. The SSA relied on Dr.

8 Chen’s evaluation in terminating Hart’s benefits on September 11, 2013. Id. at ¶ 34. Following a

9 subsequent hearing, a Disability Hearing Officer concluded in a March 17, 2014 order that Hart’s

10 physical impairments had “medically improved” and that Hart was “able to do medium work

11 activities” based upon Dr. Chen’s report. Id. at ¶ 35. The Officer found Dr. Chen’s report “more

United States District Court Northern District of California

12 reasonable as consistent and supported by medical evidence” than another doctor’s report that had

13 been submitted by Hart. Id. at ¶ 35.

14

Plaintiff Silva-Collins suffers from “severe, chronic anemia caused by menorrhagia

15 (abnormally heavy and prolonged menstrual bleeding), lumbar degenerative disc disease,

16 depression, anxiety, asthma, and hypertension.” Id. at ¶ 38. Silva-Collins was examined by Dr.

17 Chen on August 10, 2013, after the ALJ determined that a CE was necessary to evaluate her

18 claims. Id. at ¶ 41. Dr. Chen’s examination of Silva-Collins lasted for only ten minutes. Id. at ¶

19 42. Dr. Chen diagnosed Silva-Collins with “[l]ow back pain, possibly due to obesity,” and

20 “obesity.” Id. at ¶ 44. Dr. Chen’s report claimed that Dr. Chen had completed various strength

21 and range of motion tests that he never actually performed. Id. at ¶ 45. “Dr. Chen did not ask Ms.

22 Silva-Collins any questions about her menorrhagia, anemia, or other blood issues, or the effect that

23 these chronic conditions had on her physical capabilities.” Id. at ¶ 43. On January 8, 2014, the

24 ALJ denied Silva-Collins’ claim for benefits, giving “great weight to the opinion of consultative

25 examiner Dr. Chen” and observing that Dr. Chen’s “examination is the most thorough and detailed

26 in the record, and well supported by the medical evidence as a whole.” Id. at ¶ 47.

27

Plaintiff Harris suffers from debilitating lower back, leg, and foot pain following an April

28 2005 car accident. Id. at ¶ 53. Following his August 2011 application for SSI benefits, the SSA 3

1 referred Plaintiff Harris to Dr. Chen for a CE, which was conducted on October 28, 2011. Id. at ¶

2 56. The examination lasted twelve minutes. Id. at ¶ 58. Dr. Chen instructed Harris to stand

3 without his cane and Harris responded that he could not do so without support. Id. at ¶ 60.

4 Nonetheless, “Dr. Chen concluded that Mr. Harris did not need to use his cane to walk short

5 distances, even though he had never seen Mr. Harris stand without it.” Id. at ¶ 63. Harris’s

6 application was denied on November 18, 2011 and again on reconsideration on May 16, 2012. Id.

7 at ¶ 64. Although Harris succeeded in obtaining a hearing before an ALJ in April 2013, the ALJ

8 denied the claim, stating that “the examination by Dr. Chen indicates far greater functionality than

9 alleged by the claimant.” Id. at ¶ 65. The ALJ gave “the greatest weight to Dr. Chen’s opinion

10 because he personally examined the claimant.” Id.

11

Unbeknownst to claimants who were being referred to Dr. Chen for CEs during this time,

United States District Court Northern District of California

12 DDSD had sent Dr. Chen a Corrective Action letter regarding deficiencies in his CEs in

13 September 2011. Id. at ¶ 74. DDSD sent Dr. Chen a second letter on October 14, 2013,

14 identifying continuing issues with the quality of his reports. Id. at ¶ 75. On December 30, 2013,

15 following years of complaints from applicants and their representatives regarding Dr. Chen’s

16 practices, the DDSD removed Dr. Chen from the CE panel, citing Dr. Chen’s “unprofessional

17 manner and failure to adequately correct deficiencies in his CE reports.” Id. at ¶ 76. Although Dr.

18 Chen’s reports were a part of the record in all of Plaintiffs’ ongoing challenges to their denial of

19 disability benefits, Plaintiffs were not provided with notice that Dr. Chen had been removed from

20 the CE panel. Id. at ¶ 77.

21

Plaintiffs ask that this Court assume jurisdiction over this case, certify a class action, and

22 grant declaratory and injunctive relief: 1) declaring that Defendant’s reliance on Dr. Chen’s CE

23 reports “violate[s] the SSA’s obligations pursuant to the Social Security Act, its implementing

24 regulations and the Due Process Clause of the United States Constitution”; 2) enjoining

25 Defendant from relying on CE reports prepared by Dr. Chen to terminate or deny disability

26 benefits; 3) requiring Defendant to reopen prior determinations terminating or denying benefits in

27 reliance on CE reports prepared by Dr. Chen; and 4) requiring Defendant to provide notice to all

28 individuals whose benefits were terminated or denied in reliance on a CE report prepared by Dr. 4

1 Chen. Id. at 23-24.

2 II. Legal Standard

3

The Social Security Act permits claimants to challenge the denial of social security

4 benefits in a federal District Court after a “final decision” is rendered by the Commissioner. 42

5 U.S.C. § 405(g). Plaintiffs filing a civil action generally must meet two requirements:

6 presentment and exhaustion. Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993). Presentment of

7 a benefits claim to the Commissioner is a jurisdictional requirement, but exhaustion is not; the

8 exhaustion requirement may therefore be waived by the SSA or the courts. Id. (citing Matthews v.

9 Eldridge, 424 U.S. 319, 330 (1975)).

10

Defendant acknowledges that Plaintiffs have satisfied the jurisdictional requirement by

11 presenting their claims to the Commissioner. Plaintiffs concede that they have not exhausted their

United States District Court Northern District of California

12 claims through the administrative review process, but urge the Court to waive the exhaustion

13 requirement under the circumstances alleged in the complaint.

14

The exhaustion requirement embodies the policy of deferring to the SSA “in the first

15 instance, both because of its superior ‘expertise in administering its own regulations,’ and because

16 it is generally more efficient to allow the agency, if it can, to resolve disputes concerning the

17 entitlement programs it administers.” Briggs v. Sullivan, 886 F.2d 1132, 1139 (9th Cir. 1989)

18 (quoting Bowen v. City of New York, 476 U.S. 467, 485 (1986)). Nevertheless, “cases may arise

19 where a claimant’s interest in having a particular issue resolved promptly is so great that deference

20 to the agency’s judgment is inappropriate.” Eldridge, 424 U.S. at 330.

21

A court may waive the exhaustion requirement where the claim to be reviewed is

22 “(1) collateral to a substantive claim of entitlement (collaterality), (2) colorable in its showing that

23 refusal to the relief sought will cause an injury which retroactive payments cannot remedy

24 (irreparability), and (3) one whose resolution would not serve the purposes of exhaustion

25 (futility).” Briggs v. Sullivan, 886 F.2d 1132, 1139 (9th Cir.1989) (citing Eldridge, 424 U.S. at

26 330) (internal quotations omitted). All three elements must be met. See Kaiser v. Blue Cross of

27 Cal., 347 F.3d 1107, 1115–16 (9th Cir. 2003). However, “[t]he ultimate decision of whether to

28 waive exhaustion should not be made solely by mechanical application of the Eldridge factors, but 5

1 should also be guided by the policies underlying the exhaustion requirement.” City of New York,

2 476 U.S. at 484.

3 III. Analysis

4

A. Irreparability

5

A plaintiff satisfies the irreparability requirement by making a claim that is “colorable in

6 its showing that refusal to the relief sought will cause an injury which retroactive payments cannot

7 remedy.” Briggs, 886 F.2d at 1139. A claimant states such a colorable claim where they allege

8 that “because of [their] physical condition and dependency upon the disability benefits, an

9 erroneous termination would damage [them] in a way not recompensable through retroactive

10 payments.” Eldridge, 424 U.S. at 331. The Ninth Circuit has held that back payment of benefits

11 cannot “erase either the experience or the entire effect of several months without food, shelter or

United States District Court Northern District of California

12 other necessities.” Briggs, 886 F.2d at 1140. Accordingly, courts have found irreparability where

13 a plaintiff has pled that they were living with their elderly mother while awaiting approval of their

14 SSI application, because they had no other income, Johnson, 2 F.3d at 920, or alleged reliance on

15 General Assistance and food stamps, a lack of medical insurance, and homelessness. Kildare, 325

16 F.3d at 1083.

17

The Court concludes that Plaintiffs have sufficiently demonstrated that their alleged

18 injuries are irreparable.2 Each Named Plaintiff has pled facts indicating the denial of benefits

19 represents a grave hardship to him or her for which back payments would not fully compensate.

20 The complaint states that Plaintiff Hart currently lives with his elderly mother and struggled to

21 afford basic needs even while he was receiving SSI and SSDI benefits, ECF No. 1 at ¶ 37, Plaintiff

22 Silva-Collins lives with her father and requires SSI in order to afford necessary medical supplies,

23 id. at ¶ 52, and Plaintiff Harris is currently dependent on family support to afford food and other

24 basic life necessities. Id. at ¶ 70.

25

Plaintiffs’ claims are colorable in their showing that refusal to the relief sought will cause

26 an injury which retroactive payments cannot remedy.

27

28

2 Defendant does not argue that Plaintiffs have failed to make a colorable showing of irreparability.

6

1

B. Collaterality

2

“A plaintiff’s claim is collateral if it is not essentially a claim for benefits.” Johnson, 2

3 F.3d at 921. Plaintiffs argue that they are not asking the Court to award or reinstate benefits as a

4 result of this litigation, but instead ask for injunctive relief that would require the SSA to reopen

5 proceedings that erroneously relied on Dr. Chen’s reports to terminate or deny benefits. ECF No.

6 25 at 8. Defendant contends that, despite Plaintiffs’ “artful attempt to frame their claims as a

7 challenge to an alleged SSA ‘policy and practice,’” ECF No. 18 at 15, Plaintiffs in fact seek to

8 advance their claims for benefits by challenging Dr. Chen’s reports. Id. at 16. Defendant finds it

9 significant that the Complaint challenges Defendant’s “policy and practice of relying on Dr.

10 Chen’s defective CE reports in denying or terminating benefits,” and argues that this demonstrates

11 that “Plaintiffs do not challenge a ‘policy’ but are, instead, challenging a specific outcome– denial

United States District Court Northern District of California

12 of benefits– in cases where Dr. Chen prepared reports.” ECF No. 27 at 7 (quoting ECF No. 1 at ¶

13 7).

14

The fact that Plaintiffs challenge the SSA’s use of Dr. Chen’s reports in cases that resulted

15 in denials of claims for benefits does not convert Plaintiffs’ challenge into a claim for benefits. In

16 City of New York, the Supreme Court held that a challenge to the SSA’s presumption that

17 mentally disabled applicants were qualified to do unskilled work was collateral to a claim for

18 benefits. 476 U.S. 467. The Court reasoned that “[t]he class members neither sought nor were

19 awarded benefits in the District Court, but rather challenged the Secretary’s failure to follow the

20 applicable regulations.” Id. at 483. The Court reached this conclusion even though Plaintiffs

21 challenged the SSA’s use of a blanket presumption that “led to routine denials of benefits to

22 eligible claimants.” Id. at 473 (emphasis added). Likewise, in Johnson, the Ninth Circuit held that

23 plaintiffs’ challenge to “the Secretary’s policy of treating as income all in-kind loans” was

24 collateral to their claims for benefits. 2 F.3d at 921. The Court observed that plaintiffs had

25 “sought the invalidation of a rule used to determine eligibility for benefits rather than the denial of

26 benefits in a particular case.” Id. The Johnson court acknowledged that a favorable decision for

27 plaintiffs would require the Secretary to “readjudicate those claims that were denied under the in-

28 kind policy.” Id. (emphasis added). But, the court concluded that, while adjudication would 7

1 mean that “[s]ome claimants will receive benefits they were once denied,” other claimants would

2 continue to be denied benefits as “[t]hey would not be entitled to benefits under either policy,”

3 demonstrating plaintiffs’ claims were collateral. Id.

4

Plaintiffs’ claims in this case are collateral to their claims for benefits because they do not

5 challenge the outcome of the SSA proceedings—the denial or termination of their SSI or SSDI

6 benefits. Rather, they challenge the process by which that outcome was reached—in reliance on

7 Dr. Chen’s CE reports. It is of no moment to the analysis that, should Plaintiffs be granted the

8 relief they seek, the outcome of their disability claims might ultimately prove different. This was

9 also true of the Plaintiffs in City of New York and Johnson, who alleged that procedural

10 deficiencies occasioned the wrongful denial of their claims for benefits. All that Plaintiffs seek

11 from this Court is relief mandating that the SSA not use Dr. Chen’s CE reports in the process of

United States District Court Northern District of California

12 evaluating Plaintiffs’ disability claims. In the event that Plaintiffs are entitled to such relief at the

13 close of the litigation, their ultimate entitlement to benefits will still be unknown and left to be

14 resolved by the SSA.

15

Defendant also contends that Plaintiffs’ claims are not collateral to their claims for benefits

16 because there is no SSA-wide “policy” to rely on Dr. Chen’s reports in resolving disability claims.

17 Defendant asserts that SSA adjudicators resolve disability claims on a case-by-case basis, and

18 “must decide the degree of weight, if any, to afford that report in determining whether the claimant

19 is disabled.” ECF No. 27 at 5. Therefore, “[a]pplication of SSA’s regulations in a particular case

20 may result in a degree of ‘reliance’ [on Dr. Chen’s reports] by the adjudicator, or it may not, all

21 depending on the particular circumstances of the case.” Id.

22

Defendant argues that this case resembles Kildare, where the Ninth Circuit concluded that

23 plaintiffs’ claims were not collateral to claims for benefits when plaintiffs had alleged “a series of

24 claimed irregularities in individual cases that [were] entirely dependent on the [plaintiffs’]

25 underlying claims for benefits.” 325 F.3d at 1083. Although the plaintiffs in that case had used

26 terms such as “policy,” “practice,” and “systematic” throughout their complaint, the Kildare court

27 observed that the plaintiffs had “admitted in their brief that they cannot point to any specific

28 policy, directive, or order” that had resulted in the alleged erroneous denial of plaintiffs’ claims. 8

1 Id. But Plaintiffs in this case do not merely allege “idiosyncratic individual errors,” as was the

2 case in Kildare, id.; they point to an SSA-wide policy to consider Dr. Chen’s reports in resolving

3 disability claims, even in the wake of widespread allegations of deficiencies in the quality of his

4 examinations.

5

Defendant’s reply brief points to a March 16, 2015,3 letter from the Chief Administrative

6 Law Judge for the SSA to the Acting Chief Administrative Law Judge for San Francisco providing

7 guidance to adjudicators regarding Dr. Chen and instructing them to “consider” Dr. Chen’s

8 removal from the panel in “determining the weight, if any, to which” Dr. Chen’s CE is entitled.

9 ECF No. 27-2 at 2-3. Defendant offers this letter in an attempt to show that the SSA is aware of

10 the serious issues with Dr. Chen’s CE reports and has instructed its adjudicators to factor these

11 concerns into the case-by-case review of Plaintiffs’ disability claims. But this letter only

United States District Court Northern District of California

12 underscores the existence of an SSA-wide policy regarding Dr. Chen, authorizing adjudicators to 13 continue to “consider” his CE reports following his removal from the CE panel.4

14

Plaintiffs do not seek an award of benefits from this Court. Instead, Plaintiffs seek

15 injunctive relief mandating that the SSA cannot rely on Dr. Chen’s reports in resolving disability

16 claims going forward and requiring the SSA to reopen terminations or denials of disability claims

17 that relied on CEs performed by Dr. Chen. Therefore, Plaintiffs’ claims challenge a policy and are

18 collateral to their claims for benefits.

19

C. Futility

20

The Ninth Circuit has held that a claimant can demonstrate futility by showing that

21 “[r]equiring him to exhaust administrative remedies would not serve the policies underlying

22 exhaustion.” Briggs, 886 F.2d at 1140 (quoting Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir.

23 1987)). For instance, “[w]hen the agency applies a ‘systemwide policy’ that is ‘inconsistent in

24 critically important ways with established regulations,’ nothing is gained ‘from permitting the

25

26 3 The complaint in this case was filed February 9, 2015.

27

4 Defendant submitted this letter as evidence for the first time in connection with her reply brief. The Court generally does not consider new evidence presented for the first time on reply. In re

28

Hansen Natural Corp. Sec. Litig., 527 F. Supp. 2d 1142, 1150 (C.D. Cal. 2007). The Court will consider the letter in this instance, however, because no prejudice to the Plaintiffs will result.

9

1 compilation of a detailed factual record, or from agency expertise.’” Johnson, 2 F.3d at 922

2 (quoting City of New York, 476 U.S. at 484). A Court’s conclusion that it is “unlikely that an

3 individual claimant could have succeeded in having the Secretary’s policy overturned or his

4 benefits restored through the administrative process” also supports a finding of futility, as in such

5 a case “[r]equiring each individual to exhaust his administrative remedies would result in a

6 considerable waste of judicial resources.” Id. In contrast, when alleged “errors require

7 interpretation of the regulations and vary with each Appellant, the errors must be determined in the

8 context of individual disability proceeding and require development of individual factual records.”

9 Kildare, 325 F.3d at 1084.

10

Plaintiffs argue that exhaustion would be futile as “a more fully developed factual record,

11 or agency expertise” would not assist the Court in resolving the purely legal issue of whether

United States District Court Northern District of California

12 continued reliance on Dr. Chen’s CE reports violates SSA’s legal obligations. ECF No. 25 at 13.

13 Defendant counters that the extent to which the adjudicator relied on Dr. Chen’s report varies

14 depending on the claimant, necessitating the development of an individualized factual record.

15 Defendant also argues that administrative exhaustion would not be futile because individual

16 Plaintiffs could prevail on administrative appeal of their denial or termination of benefits.

17 Defendant states that “SSA’s review process is capable of vacating any instances of improper

18 reliance, ordering new consultative examinations, or awarding benefits to meritorious claimants.”

19 ECF No. 27 at 9.

20

Defendant attempts to bolster her argument that administrative exhaustion would not be

21 futile by noting that, following the filing of the complaint in this case, the ALJ in Hart’s

22 administrative review provided Hart “with a new consultative examination from an internist other

23 than Dr. Chen.” ECF No. 18 at 17. Defendant argues that “Plaintiff Hart cannot plausibly argue

24 that there is ‘nothing to be gained’ from administrative exhaustion when he has received the very

25 thing he asked this Court to order.” Id. Defendant has also notified the Court that the Appeals

26 Council in Plaintiff Silva-Collins internal appeal has recently remanded her case back to the ALJ

27

28 10

1 for further proceedings.5 The Appeals Council reasoned that because the ALJ had given “great

2 weight” to Dr. Chen’s CE, despite the CE’s “inconsistent opinions regarding the claimant’s

3 functional limitations,” the ALJ was required to engage in “additional development and evaluation

4 of the evidence” in order to determine the claimant’s residual functional capacity. ECF No. 34-1

5 at 8. The Appeals Council noted that the ALJ a new CE “may be particularly helpful” to evaluate

6 Plaintiff’s residual functional capacity, but did not require the ALJ to order one. Id. Although the

7 Council noted the inconsistencies in Dr. Chen’s report and his recent disqualification, the Appeals

8 Council did not instruct the ALJ as to whether it could continue to consider Dr. Chen’s CE on

9 remand. Id. at 8-10.

10

Defendant argues that these orders demonstrate that Plaintiffs should be required to

11 exhaust the administrative process before bringing this suit, as the SSA internal appeals process is

United States District Court Northern District of California

12 aware of Dr. Chen’s disqualification and likely to grant affected claimants relief. But Plaintiffs do

13 not ask this Court merely to order the SSA to provide a new CE report in their particular cases or

14 to instruct ALJ’s to examine Dr. Chen’s reports critically for potential inconsistencies; they urge

15 that Dr. Chen’s reports are so unreliable that they should not be relied upon at all in the

16 administrative review of their disability claims. As Plaintiffs assert forcefully in their opposition,

17 “[t]he fact that Mr. Hart, or any other Plaintiff, may receive a new CE does not ensure that the

18 prior CE report from Dr. Chen will be excluded in the decision of whether the claimant is entitled

19 to benefits.” ECF No. 25 at 13. Indeed, even after Hart’s new CE, an ALJ could decide “that the

20 new CE report is less consistent with the evidence as a whole, including the improper and

21 misleading CE report by Dr. Chen, and make a determination to deny or terminate benefits on that

22 basis.” Id.

23

Because Plaintiffs challenge an SSA-wide policy of continuing to use Dr. Chen’s reports in

24 evaluating claimants, there is nothing to be gained “from permitting the compilation of a detailed

25 factual record.” Johnson, 2 F.3d at 922. Indeed, the SSA has already informed the Court of how

26

27

5 Following the hearing on this motion, Defendant submitted an unopposed administrative motion seeking to file notice of an Appeals Council order that was entered in Plaintiff Silva-Collins

28

administrative appeal. ECF No. 34. As the motion is unopposed, the Court will consider the appeals council order.

11

1 it intends to respond to the issues with Dr. Chen’s reports: it has directed adjudicators to

2 “consider” Dr. Chen’s removal from the CE panel “when evaluating a report from Dr. Chen and

3 determining the weight, if any, to which it is entitled,” ECF No. 27-2 at 3, and it has instructed

4 adjudicators to “consider whether ordering an additional CE is appropriate.” Id. Such remedial

5 action falls well short of the relief requested in the Complaint. Therefore, requiring all putative

6 class members to exhaust their administrative appeals “would result in a considerable waste of

7 judicial resources,” Johnson, 2 F.3d at 922, as Defendant has already stated the SSA’s intention to

8 continue to consider Dr. Chen’s reports in appeals of disability denials or terminations.

9

The Court therefore concludes that requiring Plaintiffs to exhaust administrative remedies

10 would not serve the policies underlying exhaustion. Briggs, 886 F.2d at 1140

11 IV. Conclusion

United States District Court Northern District of California

12

Because Plaintiffs have shown that waiver of Section 405(g)’s exhaustion requirement is

13 appropriate under the circumstances, the Court will deny Defendant’s motion to dismiss the 14 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1).6

15

IT IS SO ORDERED.

16 Dated: July 17, 2015 17 18

______________________________________
JON S. TIGAR United States District Judge

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20

21

22

23

24

25

26

27 6 Because the Court concludes that the exhaustion requirement is properly waived as to all of

28

Plaintiffs’ causes of action, the Court need not address the parties’ arguments regarding whether Plaintiffs’ third cause of action for violations of due process confers subject matter jurisdiction.

12

 
 Case 3:15-cv-00623-JST Document 40 Filed 08/06/15 Page 1 of 28

1 GERALD A. McINTYRE (SBN 181746) gmcintyre@justiceinaging.org
2 JUSTICE IN AGING 3660 Wilshire Blvd., Suite 718
3 Los Angeles, CA 90010 T: (213) 674-2900 / F: (213) 550-4001
4
ANNA RICH (SBN 230195) 5 arich@justiceinaging.org
JUSTICE IN AGING 6 1330 Broadway, Suite 525
Oakland, CA 94612 7 T: (510) 663-1055 / F: (510) 663-1051
8 Attorneys for Plaintiffs (Additional Counsel listed on next page)
9

10 UNITED STATES DISTRICT COURT
11 NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
13

14 KEVIN HART, NINA SILVA-COLLINS and
15 LEE HARRIS, on behalf of themselves and all others similarly situated,
16 Plaintiffs,
17 v.
18 CAROLYN W. COLVIN, Acting Commissioner
19 of Social Security, in her official capacity,

20

Defendant.

21

Case No. 3:15-cv-00623-JST

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time: Dept.: Judge:

October 8, 2015 2:00 p.m. Courtroom 9, 19th Floor Hon. Jon S. Tigar

Action Filed: February 9, 2015

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION CASE NO. 3:15-CV-00623-JST sf-3554959

Case 3:15-cv-00623-JST Document 40 Filed 08/06/15 Page 2 of 28
1 WILLIAM L. STERN (SBN 96105) WStern@mofo.com
2 CLAUDIA M. VETESI (SBN 233485) CVetesi@mofo.com
3 ROBERT T. PETRAGLIA (SBN 264849) RPetraglia@mofo.com
4 ELIZABETH BALASSONE (SBN 280563) EBalassone@mofo.com
5 MORRISON & FOERSTER LLP 425 Market Street
6 San Francisco, California 94105-2482 T: (415) 268-7000 / F: (415) 268-7522
7 TRINH PHAN (SBN 267288)
8 tphan@legalaidsmc.org HOPE NAKAMURA (SBN 126901)
9 hnakamura@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
10 330 Twin Dolphin Drive, Suite 123 Redwood City, CA 94065
11 T: (650) 558-0915 / F: (650) 517-8973
12 KATHRYN LANG (SBN 204102) klang@justiceinaging.org
13 JUSTICE IN AGING 1444 Eye Street NW, Suite 1100
14 Washington, DC 20005 T: (202) 683-1997 / F: (202) 289-7224
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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION CASE NO. 3:15-CV-00623-JST sf-3554959

Case 3:15-cv-00623-JST Document 40 Filed 08/06/15 Page 3 of 28

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES .........................................................................................................ii

4 NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION .................................. v I. INTRODUCTION ............................................................................................................. 1
5 II. ISSUE TO BE DECIDED..................................................................................................2

6 III. BACKGROUND ............................................................................................................... 2

7

A. SSA Is Obliged to Provide a Fair Process for Determining Whether Claimants Are Entitled to Benefits. ....................................................................... 2

8

B. SSA Denied Plaintiffs and Proposed Class Members a Fair Process. ................... 4

9

C. SSA’s Post-Litigation Fix Is Inadequate................................................................5

D. Plaintiffs’ Claims ................................................................................................... 7

10

E. Procedural Background .......................................................................................... 8

11 IV. LEGAL STANDARDS......................................................................................................8

12 V. CLASS DEFINITION........................................................................................................9

VI. ARGUMENT ..................................................................................................................... 9

13

A. Plaintiffs Satisfy All of Rule 23(a)’s Requirements. ............................................. 9

14

1. The proposed class is sufficiently numerous. ............................................ 9

15

2. The SSA-wide policy raises questions of law and fact common to the class. ................................................................................ 10

16

3. Plaintiffs’ claims are typical of the class..................................................13

17

4. Plaintiffs will fairly and adequately protect the interests of the proposed class. ................................................................................... 16

18

5. The proposed class is ascertainable.......................................................... 17

19

B. Plaintiffs Satisfy Federal Rule of Civil Procedure 23(b)(2).................................18

VII. CONCLUSION ................................................................................................................ 20

20

21

22

23

24

25

26

27

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

i

CASE NO. 3:15-CV-00623-JST

Case 3:15-cv-00623-JST Document 40 Filed 08/06/15 Page 4 of 28

1 2 3 CASES

TABLE OF AUTHORITIES

Page(s)

4 Arnott v. U.S. Citizenship & Immigration Serv., 290 F.R.D. 579 (C.D. Cal. Oct. 22, 2012) ................................................................................ 9
5

6

Berndt v. Cal. Dept. of Corrections, No. C. 03-3174 PJH, 2012 WL 950625 (N.D. Cal. Mar. 20, 2012) ....................................... 17

7 Bowen v. City of New York,

8

476 U.S. 467 (1986) .................................................................................................. 2, 7, 10, 19

9 Califano v. Yamasaki,

442 U.S. 682 (1979) ................................................................................................................ 12 10

Charlebois v. Angels Baseball, LP,

11

No. SACV 10-0853 DOC (ANx), 2011 WL 2610122 (C.D. Cal. June 30, 2011).................... 9

12 Doe v. Los Angeles Unified Sch. Dist.,

13

48 F. Supp. 2d 1233 (C.D. Cal. 1999) .................................................................................... 11

14 Gray v. Golden Gate Nat’l Recreational Area,

279 F.R.D. 501 (N.D. Cal. 2011) ............................................................................................ 17 15

Hanlon v. Chrysler Corp.,

16

150 F.3d 1011 (9th Cir. 1998)........................................................................................... 11, 16

17 In re Google Inc. Gmail Litig.,

18

No. 13-MD-02430-LHK, 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014) .............................. 17

19 In re High-Tech Emp. Antitrust Litig.,

985 F. Supp. 2d 1167 (N.D. Cal. 2013) .................................................................................. 17

20

In re Yahoo Mail Litig.,

21

No. 13-CV-04980, 2015 WL 3523908 (N.D. Cal. May 26, 2015) ......................................... 17

22 La Duke v. Nelson,

23

762 F.2d 1318 (9th Cir. 1985)................................................................................................. 12

24 Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014)............................................................................................. 11, 15

25 Perez-Funez v. Dist. Dir.,

26

611 F. Supp. 990 (C.D. Cal. 1984)............................................................................................ 9

27 Rodriguez v. Hayes,

28

591 F.3d 1105 (9th Cir. 2009)............................................................................... 11, 13, 15, 19

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

ii

CASE NO. 3:15-CV-00623-JST

Case 3:15-cv-00623-JST Document 40 Filed 08/06/15 Page 5 of 28

1 Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015).................................................................................................... 17
2

3

Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004)................................................................................................. 17

4 Sullivan v. Kelly Servs.,

5

268 F.R.D. 356 (N.D. Cal. 2010) ............................................................................................ 10

6 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) .................................................................................................. 8, 10, 15
7

Walters v. Reno,

8

145 F.3d 1032 (9th Cir. 1998)........................................................................................... 11, 18

9 Wolin v. Jaguar Land Rover N. Am., LLC,

10

617 F.3d 1168 (9th Cir. 2010)................................................................................................. 13

11 Yaffe v. Powers,
454 F.2d 1362 (1st Cir. 1972) ................................................................................................. 17 12

STATUTES 13

14

42 U.S.C. § 421(j)(3) ................................................................................................................................. 3

15

§ 423(d)(1)(A) ........................................................................................................................... 2

§ 423(d)(5)(A) ........................................................................................................................... 3

16

RULES

17

Fed. R. Civ. P.

18

Rule 12(b)(1) ............................................................................................................................. 8

19

Rule 23 .............................................................................................................................. 15, 20 Rule 23(a)......................................................................................................................... passim

20

Rule 23(a)(3) ..................................................................................................................... 13, 15

Rule 23(a)(4) ........................................................................................................................... 16

21

Rule 23(b) ................................................................................................................................. 8

Rule 23(b)(2) .................................................................................................................... passim

22

Rule 23(g)(1)(A) ..................................................................................................................... 16

23

24

25

26

27

28

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1 OTHER AUTHORITIES

2 20 C.F.R.

3

§ 401 app. A(b)(2)(c) .............................................................................................................. 18 § 404.988................................................................................................................................. 15

4

§ 404.1513(a) ........................................................................................................................ 2, 3

§ 404.1520(c) .......................................................................................................................... 18

5

§ 404.1527................................................................................................................................. 6

§ 404.1527(c) ...................................................................................................................... 6, 14

6

§ 404.1594............................................................................................................................... 13

7

§ 416.913(a) .............................................................................................................................. 3 § 416.919t.............................................................................................................................. 3, 4

8

§ 416.927(c) ........................................................................................................................ 6, 14

§ 416.930(c) ............................................................................................................................ 18

9

§ 416.1488............................................................................................................................... 15

10 FY 2016 Congressonal Justification,

11

http://www.ssa.gov/budget/FY16Files/2016FCJ.pdf ............................................................... 7

12 7AA Charles Alan Wright, et al., Federal Practice and Procedure § 1775, at 73 (3d ed. 2005) ..................................................................................................... 18

13 James M. Wagstaffe et al., California Practice Guide: Federal Civil Procedure Before

14

Trial § 10:261 (2015) ................................................................................................................ 9

15 Social Security Hearings, Appeals, and Litigation Law Manual (“HALLEX”) Ch. I-2-132A, http://ssa.gov/OP_Home/hallex/hallex.html .................................................................... 9
16

17

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

PLEASE TAKE NOTICE that on October 8, 2015, at 2:00p.m., or as soon thereafter as

3 the matter may be heard, in Courtroom 9, 19th Floor of the United States District Courthouse,

4 450 Golden Gate Avenue, San Francisco, California 94102, before the Honorable Jon S. Tigar,

5 Plaintiffs Kevin Hart, Nina Silva-Collins, and Lee Harris, on behalf of themselves and all others

6 similarly situated (“Plaintiffs”), will, and hereby do, move the Court for an Order certifying the

7 above-captioned action to proceed as a class action and appointing Plaintiffs’ counsel as class

8 counsel.

9

This Motion is made pursuant to Federal Civil Procedure Rule 23 on the grounds that this

10 matter meets all the requirements for class certification set forth in Rule 23. The Motion is based

11 upon this Notice; the accompanying Memorandum of Points and Authorities; the Declarations of

12 Trinh Phan, Kyle Kitson, Nyla Moujaes, Anna Rich, William Stern, and Andy Chu in Support of

13 Plaintiffs’ Motion for Class Certification, filed concurrently herewith; the pleadings and all

14 documents on file in this action; and such other matters as may be presented at or before the

15 hearing.

16

Plaintiffs request that this Court grant Plaintiffs’ motion, certify this matter as a class

17 action, and appoint Plaintiffs’ counsel as class counsel.

18

19 Dated: August 6, 2015 20 21 22

WILLIAM L. STERN CLAUDIA M. VETESI ROBERT T. PETRAGLIA ELIZABETH BALASSONE MORRISON & FOERSTER LLP

23

By: /s/ William L. Stern

WILLIAM L. STERN 24

Attorneys for Plaintiffs 25

26

27

28

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1 I. INTRODUCTION

2

This is a class action for declaratory and injunctive relief only, in which Plaintiffs seek

3 class certification under Rule 23(b)(2). Only three facts matter for purposes of this motion, and

4 all are uncontested.

5

First, after repeated complaints, the Social Security Administration (SSA) disqualified

6 Dr. Frank Chen in December 2013 from performing further consultative examinations (“CE”) due

7 to deficiencies in his reports and the inadequacy of his examinations. Second, before he was

8 disqualified, Dr. Chen submitted CE reports in at least 325 cases that resulted in a denial of

9 benefits and are now pending at the hearing level. That is only the tip of the iceberg, because it

10 does not include cases where an applicant may have simply dropped his or her claim after it was

11 denied, and does not include cases still at the pre-hearing stage. Altogether, the class likely

12 consists of thousands of claimants. Third, the SSA has now admitted—through an attempted

13 partial fix after this lawsuit was filed—that the integrity of the administrative process was

14 compromised by Dr. Chen’s CE reports. Yet, the SSA has instructed its adjudicators that these

15 reports may be considered nonetheless.

16

This is bad enough for those 325 claimants, because Dr. Chen’s reports could still play a

17 role in a denial or termination of their claims. But claimants do not ordinarily get to see the CE

18 reports, so what about the many claimants who never even saw theirs? They were never told that

19 their denials or terminations were based on an unreliable report from Dr. Chen. They likely

20 would not have had any reason to know they had grounds to challenge the SSA’s determination,

21 let alone possess the resources to pursue those claims even if they knew they had been wronged.

22 For them, the SSA’s attempted fix in the course of litigation is empty, and too late.

23

Every SSA claimant is entitled to a fair process. Whether any given claimant is ultimately

24 found to be entitled to Supplemental Security Income (SSI) or Social Security Disability

25 Insurance (SSDI) benefits is not at issue. This Court is not being asked to decide that. Here,

26 every class member’s process was tainted by a common injury, the SSA’s policy of considering

27 CE reports prepared by Dr. Chen in resolving their disability claims.

28

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1

That this was a policy cannot be disputed. In its motion to dismiss, SSA argued that there

2 was no “policy” being challenged, hence, each aggrieved claimant must individually run the

3 procedural gauntlet, one by one, and exhaust his or her administrative remedy. But this Court

4 concluded that exhaustion would be futile. It found that SSA’s use of reports by Dr. Chen was a

5 “policy.” That finding establishes the commonality element of Rule 23(a), because each class

6 member was aggrieved by a policy this Court described as “an SSA-wide policy to consider

7 Dr. Chen’s reports in resolving disability claims, even in the wake of widespread allegations of

8 deficiencies in the quality of his examinations.”

9

There is nothing novel about what Plaintiffs seek. In fact, it is precisely the kind of relief

10 ordered by the district court in Bowen v. City of New York upon certification of a class of

11 individuals who had been denied disability benefits or whose benefits had been terminated

12 pursuant to an allegedly unlawful policy: reopen decisions denying or terminating benefits, and

13 notify class members that their claims had been reopened. 476 U.S. 467, 475-76 & n.7 (1986).

14

The Court should certify the proposed class, and allow Named Plaintiffs to seek relief on

15 behalf of all those who had a CE report from Dr. Chen and were denied benefits or had their

16 benefits terminated.

17 II. 18

ISSUE TO BE DECIDED The issue to be decided is whether Plaintiffs’ claims satisfy the requirements for class

19 certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2).

20 III. BACKGROUND

21

A. SSA Is Obliged to Provide a Fair Process for Determining Whether

Claimants Are Entitled to Benefits. 22

23

To obtain benefits based on disability under the SSI or SSDI programs, a claimant must be

24 unable “to engage in any substantial gainful activity by reason of any medically determinable

25 physical or mental impairment which can be expected to result in death or which has lasted or can

26 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

27 § 423(d)(1)(A). A claimant must provide SSA with “evidence from acceptable medical sources to

28 establish whether [the individual has] a medically determinable impairment[].” 20 C.F.R.

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1 § 404.1513(a). SSA administers these benefit programs, but contracts with state agencies, such as

2 California’s Disability Determination Service Division (DDSD) of the Department of Social

3 Services, to make the disability determinations under standards established by SSA. Id.

4 § 404.1503(a).

5

If the DDSD finds that an applicant’s own medical records are insufficient to render a

6 decision, it can refer the applicant to a contracting doctor for a CE. Id. §§ 404.1519, 416.919.

7 The doctor performing a CE must be licensed, have adequate training, experience, and equipment

8 to perform the CE, and not otherwise be barred from participating in SSA programs. Id.

9 §§ 404.1519g, 416.919g.

10

Federal law provides the standard for determining whether someone is disabled: “there

11 must be medical signs and findings, established by medically acceptable clinical or laboratory

12 diagnostic techniques.” 42 U.S.C. § 423(d)(5)(A) (emphasis added); see also id.

13 § 1382c(a)(3)(D). SSA bears the ultimate responsibility to establish “uniform standards which

14 shall be applied at all levels of determination, review, and adjudication in determining whether

15 individuals are under disabilities.” Id. § 421(k)(1). SSA regulations require that the

16 determination that an individual is disabled be based on “evidence from acceptable medical

17 sources.” 20 C.F.R. §§ 404.1513(a), 416.913(a).

18

Further, the Commissioner of Social Security is charged with prescribing procedures for

19 monitoring both the CE referral processes used, and the product of doctors to whom cases are

20 referred for CEs. 42 U.S.C. § 421(j)(3). The resulting regulations explain SSA’s responsibility

21 for monitoring and ensuring the adequacy of the CE process, including providers. See 20 C.F.R.

22 § 416.919t; see also id. § 416.919j (SSA will review allegations that a medical source designated

23 to perform a CE “lacks objectivity.”); id. § 416.919s(g) (“The State agencies will cooperate with

24 [SSA] when [it] conduct[s] monitoring activities in connection with their oversight management

25 of their consultative examination programs.”).

26

Upon submission of a claim for benefits, the applicant first receives an initial

27 determination of his or her claim. Id. §§ 404.902, 416.1402. If the applicant is denied, he or she

28 may seek reconsideration. Id. §§ 404.929, 416.1429. If the claim is once again denied, then the

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1 applicant must, within sixty days, request a hearing before an Administrative Law Judge (“ALJ”).

2 Id. §§ 404.930, 404.933, 416.1430, 416.1433. If the applicant does not pursue a hearing, the

3 initial denial becomes binding. Id. §§ 404.921, 416.1421. If the claimant requests a hearing, an

4 ALJ is assigned to the case, and required to review all evidence in the record. Id. §§ 404.929,

5 416.1429. The ALJ will then conduct a hearing and issue a written decision. Id. §§ 404.944,

6 404.953, 416.1444, 416.1453. If the applicant is denied again, he or she has sixty days to request

7 review from the Appeals Council. Id. §§ 404.967-68, 416.1467-416.1468. The Appeals Council

8 will grant review if there has been an abuse of discretion or an error of law, or if the ALJ’s

9 actions, findings, or conclusions are not supported by substantial evidence in the record. Id.

10 §§ 404.970(a), 416.1470(a). The Appeals Council may decline to review the case, or remand it to

11 an ALJ, or render a decision. Id. §§ 404.967, 416.1467. If the Appeals Council chooses not to

12 review the case, then the ALJ’s decision becomes binding. Id. §§ 404.955, 416.1455. If the

13 Appeals Council refuses to review the case, or issues an adverse decision, the applicant must then

14 file a complaint in federal court.

15

B. SSA Denied Plaintiffs and Proposed Class Members a Fair Process.

16

Plaintiffs and proposed class members all received a CE report from Dr. Chen, a medical

17 doctor who was appointed by the Disability Determination Service for the State of California to

18 be on its CE panel. Over the years, applicants and their representatives filed numerous

19 complaints against Dr. Chen with DDSD, explaining that he had not actually conducted full

20 physical examinations as he stated in his reports. See, e.g., Declaration of Andy Chu in Supp. of

21 Pls’ Mot. for Class Certification (“Chu Decl.”) ¶¶ 5-15, Exs. A-B.) Dr. Chen’s reports were also

22 internally inconsistent, and ignored diagnoses, findings, and symptoms described in the

23 applicants’ medical records, which he claimed to have reviewed. (See, e.g., id.) Ultimately,

24 Dr. Chen was disqualified because of “uncorrected deficiencies regarding the quality of his

25 examination reports and the thoroughness of his examinations, which were the subject of

26 corrective action letters dated September 2, 2011, and October 14, 2013.” (Decl. of Scott J.

27 Borrowman in Supp. of Mot. to Dismiss (“Borrowman Decl.”) Ex. B at 1, ECF No. 27-3.)

28

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1

SSA, however, never provided notice to Plaintiffs or proposed class members that

2 Dr. Chen had been disqualified. (See Declaration of Trinh Phan in Supp. of Pls’ Mot. for Class

3 Certification (“Phan Decl.”) ¶ 17; Declaration of Nyla Moujaes in Supp. of Pls’ Mot. for Class

4 Certification (“Moujaes Decl.”) ¶ 12; Declaration of Kyle Kitson in Supp. of Pls’ Mot. for Class

5 Certification (“Kitson Decl.”) ¶ 14; see also Def.’s Answer to Class Action Compl. (“Answer”)

6 ¶ 100, ECF No. 38 (“SSA admits that there is no regulation or rule directing SSA to provide

7 applicants whose benefits have been denied or terminated notice that the consultative examiner in

8 their case has been removed from the applicable CE panel.”).) Nor did SSA reopen the

9 applications that were tainted by Dr. Chen’s reports. Moreover, SSA did not even inform the

10 judges and staff who adjudicate disability claims that Dr. Chen was disqualified until over a year

11 after his disqualification—and months after this lawsuit was filed. (See Def.’s Reply in Supp. of 12 Mot. to Dismiss (“Reply”) at 14:11-15:6, ECF No. 271; Borrowman Decl. Ex. B, see also id.

13 Ex. A, ECF No. 27-2.)

14

C. SSA’s Post-Litigation Fix Is Inadequate.

15

Despite the SSA’s belated admission that there were “uncorrected deficiencies regarding

16 the quality of [Dr. Chen’s] examination reports” and questions about “the thoroughness of his

17 examinations,” the SSA has failed to restore the integrity of the administrative process. SSA

18 admits that “reports from Dr. Chen generated prior to December 30, 2013 are treated as reports

19 from acceptable medical sources under governing regulations.” (Answer ¶ 6.) SSA has

20 instructed adjudicators to “consider” Dr. Chen’s removal from the panel in “determining the

21 weight, if any, to which” Dr. Chen’s CE is entitled. (Borrowman Decl. Ex. A at 2.) In a

22 March 16, 2015 memorandum to the Acting Chief Administrative Law Judge for San Francisco,

23 the Chief Administrative Law Judge for SSA explains that Dr. Chen “was no longer authorized to

24 perform consultative examinations (CEs) . . . premised in part on uncorrected deficiencies

25

1 SSA’s own policies, which Plaintiffs claim are inadequate, place any responsibility on

26 DDSD to inform adjudicators that a consultative examiner has been disqualified, and even then qualify that DDSD “may provide formal notice to the Office of Disability Adjudication and

27 Review (ODAR) through the regional consultative examination coordinator (CEC).” Social Security Hearings, Appeals, and Litigation Law Manual (“HALLEX”) Ch. I-2-1-32A,

28 http://ssa.gov/OP_Home/hallex/hallex.html (emphasis added).

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1 regarding the quality of his examination reports and the thoroughness of his examinations, which

2 were the subject of corrective action letters dated September 2, 2011, and October 14, 2013.” (Id.

3 at 1.)

4

The memorandum then instructs: “When preparing the decision, the ALJ or senior

5 attorney advisor must consider the weight to give Dr. Chen’s report in accordance with the

6 regulations at 20 C.F.R. 404.1527 and 416.927.” (Id. at 2.) These cited regulations provide that

7 “every medical opinion” received by an ALJ will be evaluated “[r]egardless of its source[.]”

8 20 C.F.R. §§ 404.1527(c), 416.927(c). The regulations restrict an ALJ’s evaluation of the

9 evidence to the face of the report, and other evidence in the record. See id. They do not allow an

10 ALJ to disregard an unreliable report, or question its findings, based on the fact that the individual

11 who prepared it has been disqualified. See id. §§ 404.1527(b)-(c).

12

One month later, on April 15, 2015, the Division Chief Administrative Appeals Judge

13 issued a similar memorandum to all employees of the Office of Appellate Operations providing

14 instructions regarding the cases tainted by Dr. Chen’s reports that are pending appeal.

15 (Borrowman Decl. Ex. B at 1.) The memorandum requires the Appeals Council (AC) to grant

16 review of any case if it contains a CE report prepared by Dr. Chen after he was disqualified—a

17 highly unlikely, and perhaps nonexistent, scenario. (Id. at 2.) But “in all other cases involving

18 reports from Dr. Chen, the AC will rely on the record before it and adjudicate the issues in the

19 claim on a case-by-case basis.” (Id.) The policy provides three examples of how the AC should

20 proceed, but in each example Dr. Chen’s CE reports are still considered and weighed along with

21 other medical evidence in the record (assuming there is any). (Id.)

22

Accordingly, SSA has continued its agency-wide policy regarding Dr. Chen’s reports, and

23 continues to violate its obligations under the Social Security Act to make disability

24 determinations based upon medical signs and findings, established by medically acceptable

25 clinical and laboratory diagnostic techniques. Instead, it requires adjudicators to continue to

26 consider Dr. Chen’s reports as medical evidence to resolve disability claims, even though SSA

27 knows they are inadequate and based on incomplete examinations.

28

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1

Further, SSA’s memoranda only offer directives for the cases currently pending at the

2 hearing or appellate level. They do nothing for the far larger number of cases of individuals 3 whose claims are pending at earlier levels, or whose claims are no longer pending.2 Claimants

4 impacted by Dr. Chen’s CE reports may not have pursued their administrative remedies after an

5 initial denial or termination because they were never told they had grounds to reopen their case.

6 SSA requires those injured by Dr. Chen’s CE reports to both initiate and run an administrative

7 obstacle course before they have any chance of relief. They must somehow first learn about

8 Dr. Chen’s disqualification, seek out counsel, become informed that their case can be reopened,

9 reopen their case, and challenge Dr. Chen’s CE report. This gauntlet is especially unfair given

10 that claimants often lack the resources necessary to undertake such an ordeal. (See Phan Decl.

11 ¶¶ 22-23; Kitson Decl. ¶¶ 24-25; Moujaes Decl. ¶¶ 18-20; see also City of New York, 476 U.S.

12 at 483 (district court “found that class members not only were denied the benefits they were

13 seeking, but ‘[the] ordeal of having to go through the administrative appeal process may trigger a

14 severe medical setback.’”) And even if a claimant could clear all of these hurdles, the unreliable

15 evidence from Dr. Chen remains part of the record—and SSA still requires all adjudicators to

16 consider it. SSA’s partial attempt at corrective action is plainly insufficient to repair the damage

17 it has caused. That is why Plaintiffs come to this Court for prospective relief that will provide a

18 meaningful remedy for those whose administrative claims were tainted by Dr. Chen’s reports.

19

D. Plaintiffs’ Claims

20

By their complaint, Plaintiffs make four requests: First, they request a declaration that

21 SSA’s policies and practices violate the Social Security Act, its implementing regulations, and the

22 Due Process clause of the United States Constitution. Second, they ask that SSA be enjoined

23 from relying on the reports of Dr. Chen. Third, they request that their cases be reopened so that

24

25

2 According to its most recent budget justification, SSA denied 68% of all initial Social

Security and SSI disability determinations in fiscal year 2014, and only 40% of those denials

26 were appealed to the first level or reconsideration stage of the appeal process in the same year. See SSA FY 2016 Budget Justification at 143, Table 3.27-FY 2014 Workload Data Disability

27 Appeals, http://www.ssa.gov/budget/FY16Files/2016FCJ.pdf. Without reason to believe the population of claimants who received CE reports from Dr. Chen is significantly different than the

28 national average, the majority of putative class members did not reach the ALJ stage.

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1 they can receive a fair disability determination. And fourth, they ask that SSA provide notice to

2 claimants whose cases were tainted by a Dr. Chen report. The requested relief is appropriate for

3 the class as a whole because Plaintiffs and proposed class members suffered from the same

4 wrong: their administrative process was tainted by consideration of a Dr. Chen report in resolving

5 their disability claims.

6

E. Procedural Background

7

Plaintiffs filed their class action complaint (“Compl.”) on February 9, 2015. (ECF No. 1.)

8 On April 20, 2015, Defendant sought to dismiss this action under Rule 12(b)(1). (ECF No. 18.)

9 The Court denied that motion. (ECF No. 36.) It held that jurisdiction was proper and that Section

10 405(g)’s exhaustion requirement was properly waived because (1) Plaintiffs alleged irreparable

11 harm; (2) Plaintiffs’ claims for relief are collateral to any claim for benefits, as they challenge the

12 SSA’s policy of considering Dr. Chen’s reports in resolving disability claims; and (3) it would be

13 futile to require Plaintiffs to exhaust their administrative remedies “[b]ecause Plaintiffs challenge

14 an SSA-wide policy of continuing to use Dr. Chen’s reports in evaluating claimants,” and

15 “Defendant has already stated the SSA’s intention to continue to consider Dr. Chen’s reports in

16 appeals of disability denials or terminations.” (Id. at 11-12.)

17 IV. LEGAL STANDARDS

18

Plaintiffs must satisfy the requirements of Federal Rule of Civil Procedure 23(a), as well

19 as at least one of the three requirements listed in Rule 23(b). Wal-Mart Stores, Inc. v. Dukes,

20 131 S. Ct. 2541, 2548 (2011). Under Rule 23(a), the party seeking certification must demonstrate

21 that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are

22 questions of law or fact common to the class; (3) the claims or defenses of the representative

23 parties are typical of the claims of the class; and (4) the representative parties will fairly and

24 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); Dukes, 131 S. Ct. at 2548.

25 Here, Plaintiffs must also show that “the party opposing the class has acted or refused to act on

26 grounds that apply generally to the class, so that final injunctive relief or corresponding

27 declaratory relief is appropriate respecting the class as a whole.” See Fed. R. Civ. P. 23(b)(2);

28 Dukes, 131 S. Ct. at 2548-49.

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1 V. CLASS DEFINITION

2

Plaintiffs seek to certify a class of: All persons whose SSI or SSDI benefits were either

3 denied or terminated and for whom a consultative examination report was prepared by Dr. Frank

4 Chen.

5 VI. ARGUMENT

6

A. Plaintiffs Satisfy All of Rule 23(a)’s Requirements.

7

1. The proposed class is sufficiently numerous.

8

Plaintiffs satisfy the numerosity requirement of Rule 23(a) because SSA has admitted

9 there are at least 325 claimants in the proposed class. In its March 16, 2015 memorandum, SSA

10 states: “We have identified 325 pending cases at the hearing level with medical evidence from

11 Dr. Chen.” (Borrowman Decl. Ex. A at 2.) In its April 15, 2015 memorandum, SSA identifies

12 additional proposed class members: “Some cases now pending at the Appeals Council (AC) level

13 contain reports from Dr. Chen[.]” (Id. Ex. B at 1.) Accordingly, the proposed class certainly

14 contains several hundred members. By comparison, courts in the Ninth Circuit have found that

15 classes of far fewer than 100 members are sufficiently numerous to render joinder impracticable.

16 See, e.g., Perez-Funez v. Dist. Dir., 611 F. Supp. 990, 995 (C.D. Cal. 1984) (“Classes consisting

17 of 25 members have been held large enough to justify certification.”); James M. Wagstaffe et al.,

18 California Practice Guide: Federal Civil Procedure Before Trial § 10:261 (2015) (citing

19 Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998)).

20

Plaintiffs also have the advantage of a “relaxed” numerosity standard because they seek

21 only injunctive and declaratory relief. Arnott v. U.S. Citizenship & Immigration Serv., 290 F.R.D.

22 579, 586 (C.D. Cal. Oct. 22, 2012) (in an action for injunctive and declaratory relief, plaintiffs

23 “may rely on [] reasonable inference[s] arising from plaintiffs’ other evidence that the number of

24 unknown and future members of [the] proposed []class . . . is sufficient to make joinder

25 impracticable”) (quoting Sueoka v. United States, 101 F. App’x 649, 653 (9th Cir. 2004)); see

26 also Charlebois v. Angels Baseball, LP, No. SACV 10-0853 DOC (ANx), 2011 WL 2610122,

27 at *9 (C.D. Cal. June 30, 2011) (noting that “numerosity requirements are often ‘relaxed’ when

28 only injunctive or declaratory relief is sought”).

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1

While Plaintiffs do not know precisely how many individuals are in the proposed class,

2 common sense dictates that it is large enough to satisfy the numerosity requirement. See

3 Sullivan v. Kelly Servs., 268 F.R.D. 356, 362 (N.D. Cal. 2010) (“[W]here ‘the exact size of the

4 class is unknown, but general knowledge and common sense indicate that it is large, the

5 numerosity requirement is satisfied.’” (quoting 1 Alba Cone & Herbert B. Newberg, Newberg on

6 Class Actions § 3.3 (4th ed. 2002))). The 325 claimants whose cases are currently pending at the

7 hearing level are a small minority of putative class members, as the majority of claimants do not

8 reach the ALJ stage and Dr. Chen has been submitting CE reports for many years. (See

9 discussion supra Part III.C.; Second Decl. of Scott J. Borrowman in Supp. of Mot. to Dismiss,

10 Ex. C at 12, ECF No. 28-1 (listing October 8, 2008 CE report from Dr. Chen).) It can reasonably

11 be inferred that the proposed class contains thousands of members.

12

2. The SSA-wide policy raises questions of law and fact common to the

class.

13

14

Plaintiffs challenge the SSA-wide policy that has applied uniformly to each proposed

15 class member: consideration of Dr. Chen’s reports in resolving disability claims. A class bringing

16 similar challenge to an allegedly unlawful SSA policy was certified in City of New York,

17 including individuals who had been denied benefits or whose benefits were terminated pursuant

18 to that policy. 476 U.S. at 475-76. In both cases, the SSA policies provide the bases for

19 commonality.

20

As the Supreme Court has explained, “[c]ommonality requires the plaintiff to demonstrate

21 that the class members ‘have suffered the same injury,’” such that “all their claims can be

22 productively litigated at once.” Dukes, 131 S. Ct. at 2551 (citation omitted). The common

23 questions must “generate common answers” that are “apt to drive the resolution of the litigation.”

24 Id. (citation omitted). Commonality is therefore satisfied where the claims of all class members

25 “depend upon a common contention . . . of such a nature that it is capable of classwide

26 resolution—which means that determination of its truth or falsity will resolve an issue that is

27 central to the validity of each one of the claims in one stroke.” Id. The commonality requirement

28 has “been construed permissively,” and “[a]ll questions of fact and law need not be common to

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1 satisfy the rule.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998); see also

2 Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2009) (noting that “common” does not mean

3 “complete congruence” (citation omitted)). In its Order denying Defendant’s motion to dismiss,

4 this Court confirmed “the existence of an SSA-wide policy regarding Dr. Chen, authorizing

5 adjudicators to continue to ‘consider’ his CE reports following his removal from the CE panel.”

6 (ECF No. 36 at 9.)

7

This case contains numerous common issues of fact and law stemming from SSA’s

8 consideration of Dr. Chen’s reports that will drive the resolution of this case. While the

9 circumstances of individual applicants’ disability claims will vary, they were all subjected to the

10 same tainted process: unreliable reports from Dr. Chen were submitted into evidence in their

11 cases and SSA required adjudicators to consider the reports. Additionally, SSA did not provide

12 putative class members with a copy of their CE report prior to their hearing, or notice that

13 Dr. Chen had been disqualified. (See Kitson Decl. ¶¶ 14, 25; Moujaes Decl. ¶¶ 12, 20; Phan

14 Decl. ¶ 17.) In fact, SSA “admits that there is no regulation or rule directing SSA to provide

15 applicants whose benefits have been denied or terminated notice that the consultative examiner in

16 their case has been removed from the applicable CE panel.” (Answer ¶ 100; see also Reply at 1

17 (explaining such policy “is its ordinary administrative process for disability determinations”).)

18 Courts have held that such processes are sufficient to show commonality under Rule 23(a). See,

19 e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (common agency policies and practices

20 can be the “glue” required to bring common constitutional claims on behalf of a class of prisoners

21 with individualized medical needs); Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998)

22 (differences among class members regarding merits of individual cases were “simply insufficient

23 to defeat the propriety of class certification”); Doe v. Los Angeles Unified Sch. Dist., 48 F.

24 Supp. 2d 1233, 1241 (C.D. Cal. 1999) (“[C]ommonality exists if plaintiffs share a common harm

25 or violation of their rights, even if individualized facts supporting the alleged harm or violation

26 diverge.”).

27

Plaintiffs’ challenges to the constitutionality of SSA’s policies and procedures also

28 support certification of the class. Courts have found class certification is particularly well-suited

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1 in such cases. See La Duke v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985) (case challenging

2 constitutionality of INS procedure “[p]lainly” raised common questions of law and fact). In

3 language that applies nearly verbatim here, the Supreme Court in Yamasaki found class relief to

4 be “peculiarly appropriate” because:

5

The issues involved are common to the class as a whole. They turn

on questions of law applicable in the same manner to each member

6

of the class. . . . It is unlikely that the differences in the factual

background of each claim will affect the outcome of the legal issue.

7

And the class-action device saves the resources of both the courts

and the parties by permitting an issue potentially affecting every

8

social security beneficiary to be litigated in an economical fashion

under Rule 23. 9

10 Califano v. Yamasaki, 442 U.S. 682, 701 (1979).

11

Specifically, the SSA-wide policy requiring consideration of Dr. Chen’s reports raises two

12 types of common questions. First, there are common questions about the legality of admitting

13 unreliable evidence from Dr. Chen into SSI and SSDI proceedings. Specifically, these questions

14 include whether requiring adjudicators to consider CE reports provided by a doctor who has been

15 disqualified because of “uncorrected deficiencies regarding the quality of his examination reports

16 and the thoroughness of his examinations” is a violation of (1) the Social Security Act, (2) its

17 implementing regulations, or (3) the Due Process clause of the United States Constitution.

18

Second, there are common questions regarding SSA’s legal obligations, including

19 (1) whether the Due Process clause requires SSA to provide applicants with a copy of their CE

20 report; (2) whether SSA had an obligation to monitor Dr. Chen; and (3) whether SSA failed to

21 adequately monitor Dr. Chen.

22

None of these questions turn on the facts of any individual’s case. The first set of

23 common questions requires the Court to determine whether this unreliable evidence from

24 Dr. Chen can legally be considered in a particular administrative proceeding. In short, is the

25 SSA-wide policy authorizing adjudicators to consider Dr. Chen’s CE reports legal? All proposed

26 class members were, or are, subject to this policy. The second set of questions require the Court

27 to determine SSA’s legal obligations, and also to consider SSA’s conduct in relation to

28 Dr. Chen—not individual class members.

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1

In addition to being common, the bulk of these questions are case-dispositive. For

2 example, if SSA’s policy of requiring adjudicators to consider unreliable CE reports as medical

3 evidence is illegal, then Plaintiffs are entitled to declaratory relief. Likewise, if SSA is not

4 required to provide applicants with a copy of their CE report, or did not have an obligation to

5 monitor Dr. Chen, then Plaintiffs will lose those claims.

6

3. Plaintiffs’ claims are typical of the class.

7

Plaintiffs’ claims are typical of the class because Plaintiffs have been subjected to the

8 same SSA-wide policy and have lost or been denied benefits as a result. Rule 23(a)(3) requires

9 that “the claims or defenses of the representative parties [be] typical of the claims or defenses of

10 the class.” “‘The purpose of the typicality requirement is to assure that the interest of the named

11 representative aligns with the interests of the class.’” Wolin v. Jaguar Land Rover N. Am., LLC,

12 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508

13 (9th Cir. 1992)). The typicality requirement is “‘satisfied when each class member’s claim arises

14 from the same course of events, and each class member makes similar legal arguments to prove

15 the defendant’s liability.’” Rodriguez, 591 F.3d at 1124 (quoting Armstrong v. Davis, 275 F.3d

16 849, 868 (9th Cir. 2001)). “Like the commonality requirement, the typicality requirement is

17 ‘permissive’ and requires only that the representative’s claims are ‘reasonably co-extensive with

18 those of absent class members; they need not be substantially identical.’” Rodriguez, 591 F.3d

19 at 1124 (quoting Hanlon, 150 F.3d at 1020).

20

In this case, Plaintiffs’ experiences exemplify the problem faced by all members of the

21 proposed class: each received a CE report from Dr. Chen and had their claim for benefits denied

22 or terminated. In August 2013, Dr. Chen examined Named Plaintiff Kevin Hart when he was

23 scheduled for a continuing disability review (CDR) to determine if he continued to meet the 24 disability standard.3 (Phan Decl. ¶¶ 9-10; Ex. B.)

25

26

3 The CDR differs from the initial disability determination in that the first step is to

27 determine if there has been any medical improvement since the date the applicant was first determined to be disabled. If medical improvement related to ability to do work cannot be

28 established, and no exceptions apply, benefits will continue. 20 C.F.R. § 404.1594.

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1

SSA relied on Dr. Chen’s evaluation in terminating Mr. Hart’s benefits on September 11,

2 2013. (Id. ¶ 11.) Following a subsequent hearing, a Disability Hearing Officer concluded in a

3 March 17, 2014 order that Mr. Hart’s physical impairments had “medically improved” and that he

4 was “able to do medium work activities” based upon Dr. Chen’s report. (Id. ¶¶ 14-15, Ex. E at

5 6.) The Officer found Dr. Chen’s report “more reasonable as consistent and supported by medical

6 evidence” than another doctor’s report that had been submitted by Mr. Hart. (Id. Ex. E at 9.)

7

Mr. Hart promptly filed a Request for Hearing by an ALJ, which occurred in March 2015.

8 Thanks to his counsel’s complaints about the existing Dr. Chen report, Mr. Hart received a new

9 CE on May 6, 2015. (See id. ¶ 18.) The prior CE report by Dr. Chen, however, still remains in

10 the administrative record of his claim and, in accordance with SSA regulations, it must be

11 considered by the fact-finder. See 20 C.F.R §§ 404.1527(c), 416.927(c) (“Regardless of its

12 source, we will evaluate every medical opinion we receive.”).

13

Like Mr. Hart, Named Plaintiffs Nina Silva-Collins and Lee Harris also received CEs

14 from Dr. Chen and their claims for benefits were denied. The cases of Ms. Silva-Collins and

15 Mr. Harris also demonstrate how Dr. Chen’s CE reports have continued to be used in the

16 adjudication of individual disability claims well after his disqualification. Ms. Silva-Collins was

17 examined by Dr. Chen on August 10, 2013, after the ALJ determined that a CE was necessary to

18 evaluate her claims. (Moujaes Decl. ¶ 10.) Nevertheless, the ALJ who denied her claim for

19 benefits following a supplemental hearing on January 8, 2014, “gave great weight to the opinion

20 of consultative examiner Dr. Chen.” (Id. ¶ 13, Ex. E at 12.) Ms. Silva-Collins filed an appeal to

21 SSA’s Appeals Council, which was recently granted. (Id. ¶¶ 15-16.) Her case was remanded to

22 an ALJ for further proceedings; however, the Order requires the ALJ to consider all medical

23 evidence in the record, and does not exclude the Dr. Chen CE. (Id. ¶ 16, Ex. G.)

24

Mr. Harris has been unfairly haunted by a similarly inadequate examination following his

25 application for SSI. He previously applied for benefits in 2011, and that application was denied

26 by an ALJ on June 4, 2013, based on Dr. Chen’s CE report, which was assigned the “greatest

27 weight” in the ALJ’s decision. (Kitson Decl. ¶ 11, Ex. D at 10.) Mr. Harris applied for SSI

28 benefits again on November 14, 2013. (Id. ¶ 12.) Mr. Harris subsequently obtained not one but

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1 two subsequent examinations, one arranged by his counsel and another by a different SSA

2 consultative examiner, both of which found Mr. Harris’ limitations to be much greater than those

3 described by Dr. Chen. (Id. ¶¶ 13, 15, Exs. E-F.) Yet once again, Dr. Chen’s CE report was

4 considered in the initial denial of Mr. Harris’ 2013 application. The denial stated that Mr.

5 Harris’s CE was “reviewed and compared with CE by Dr. Chen in prior file.” (Id. ¶ 16, Ex. G

6 at 7.) Mr. Harris’s written request for a hearing was submitted on February 4, 2015, and is still 7 pending.4 (Id. ¶ 20, Ex. J.)

8

In this case, Plaintiffs and all members of the proposed class received a CE report from

9 Dr. Chen, and have had benefits terminated or denied. Plaintiffs’ claims for declaratory and

10 injunctive relief are identical to that of the class, and their interest in enforcing their statutory and

11 constitutional rights is identical to that of the class. See Parsons, 754 F.3d at 686 (Rule 23(a)(3)

12 requires only that the named plaintiffs’ “claims be ‘typical’ of the class, not that they be

13 identically positioned to each other or to every class member.”). In short, “named plaintiff’s

14 claim and the class claims are so interrelated that the interests of the class members will be fairly

15 and adequately protected.” Wal-Mart Stores, Inc., v. Dukes, 131 S. Ct. at 2551. Differences in

16 the underlying facts concerning class members’ disability status are not relevant because this

17 lawsuit challenges only SSA-wide policies and practices in resolving disability claims. It does

18 not seek to adjudicate individual benefit amounts. See, e.g., Rodriguez, 591 F.3d at 1124 (holding

19 that variations in named plaintiff and class members’ entitlements to relief did not defeat

20 typicality because such “particular characteristics . . . will not impact the resolution of this general

21 statutory question”). Thus, Rule 23’s typicality requirement is met.

22

23

24

25

4 In her Answer to the Complaint, Defendant cites a 60-day statute of limitations defense

26 against Mr. Harris’s claims. (Answer at 20.) That statute of limitations is inapplicable because Plaintiffs have alleged “good cause,” as well as “fraud or similar fault.” (See Compl. ¶ 111; see

27 also, e.g., Chu Decl. ¶¶ 5-15, Exs. A-B.) An SSDI or SSI disability determination may be reopened at any time in the case of fraud of similar fault. (20 C.F.R. §§ 404.988, 416.1488.) This

28 issue is one that must be resolved after a full consideration of the merits.

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1

4. Plaintiffs will fairly and adequately protect the interests of the

proposed class.

2

3

Plaintiffs are adequate class representatives as their claims are typical of the class, and

4 therefore they have no conflicts with class members. Rule 23(a)(4) is satisfied when the class

5 representatives will “fairly and adequately protect the interests of the class.” In order to make this

6 determination, courts must resolve two questions: “(1) do the named plaintiffs and their counsel

7 have any conflicts of interest with other class members and (2) will the named plaintiffs and their

8 counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020. In

9 considering the adequacy of plaintiffs’ counsel, the court must consider “(i) the work counsel has

10 done in identifying or investigating potential claims in the action; (ii) counsel’s experience in

11 handling class actions, other complex litigation, and the types of claims asserted in the action;

12 (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to

13 representing the class.” Fed. R. Civ. P. 23(g)(1)(A). Plaintiffs and proposed class members share

14 the same interest: to remedy the systemic consideration of Dr. Chen’s reports in resolving their

15 disability claims. Because SSA has instructed adjudicators to continue using reports by Dr. Chen,

16 and those reports remain in the record for each claimant’s file, Plaintiffs and proposed class

17 members are all interested in the relief requested by this action, including a declaration that

18 SSA’s policies and practices violate the law, and that SSA be stopped from relying on the reports

19 of Dr. Chen.

20

Plaintiffs are also adequate class representatives as they have retained experienced and

21 committed counsel, namely Justice in Aging (formerly known as the National Senior Citizens

22 Law Center), the Legal Aid Society of San Mateo County, and the law firm of Morrison &

23 Foerster LLP, working pro bono. Collectively, the two nonprofit organizations and the law firm,

24 as well as the particular attorneys involved in the case, have extensive experience in public

25 benefits law, the Social Security Act, and class-action litigation, as well as the necessary

26 resources and commitment to pursue the interests of the class vigorously. (Declaration of

27 William Stern in Supp. of Pls’ Mot. for Class Certification ¶¶ 4-15; Declaration of Anna Rich in

28

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1 Supp. of Pls’ Mot. for Class Certification ¶¶ 2-7; Second Declaration of Trinh Phan in Supp. of

2 Pls’ Mot. for Class Certification ¶¶ 2-7.)

3

5. The proposed class is ascertainable.

4

“[C]ourts have implied an additional requirement under Rule 23(a): that the class to be

5 certified be ascertainable.” In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK, 2014 WL

6 1102660, at *10 (N.D. Cal. Mar. 18, 2014). “‘A class definition should be precise, objective, and

7 presently ascertainable,’ though ‘the class need not be so ascertainable that every potential

8 member can be identified at the commencement of the action.’” Gray v. Golden Gate Nat’l

9 Recreational Area, 279 F.R.D. 501, 508 (N.D. Cal. 2011) (quoting O’Connor v. Boeing N. Am.,

10 Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998)). In the Ninth Circuit, some courts have held that 11 there is no ascertainability requirement in class actions brought under Rule 23(b)(2)5; while

12 others have merely relaxed the requirement. Compare In re Yahoo Mail Litig., No. 13-CV-

13 04980, 2015 WL 3523908, at *16 (N.D. Cal. May 26, 2015) (holding that there is no

14 ascertainability requirement in 23(b)(2) cases), with Berndt v. Cal. Dept. of Corrections, No.

15 C. 03-3174 PJH, 2012 WL 950625, at *9 (N.D. Cal. Mar. 20, 2012) (finding the ascertainability

16 requirement satisfied for a proposed (b)(2) class where the “class definition satisfactorily

17 describes and reaches members of the class who may experience harm” as a result of the

18 defendant’s conduct “at some point in the future”). In any event, Plaintiffs’ proposed class is

19 ascertainable because they have precisely defined the class based on objective criteria. See In re

20 High-Tech Emp. Antitrust Litig., 985 F. Supp. 2d 1167, 1182 (N.D. Cal. 2013) (explaining it must

21 be possible to determine whether a class member is included “by reference to objective criteria”)

22 (quoting 5 James W. Moore, Moore’s Federal Practice, § 23.21[3] (Matthew Bender 3d ed.)).

23 Here, an individual is a member of the class if (1) they received a CE report from Dr. Chen, and

24 (2) their benefits were denied or terminated.

25

26

5 The First, Third, and Tenth Circuits have all concluded that the ascertainability

27 requirement is inappropriate for (b)(2) classes. See Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972); Shelton v. Bledsoe, 775 F.3d 554, 561 (3d Cir. 2015); Shook v. El Paso Cnty., 386

28 F.3d 963, 972 (10th Cir. 2004).

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1

Moreover, SSA has implicitly conceded the ascertainability of the class proposed here: it

2 was able to identify 325 cases pending at the hearing level with medical evidence from Dr. Chen

3 (Borrowman Decl. Ex. A at 2), and it must maintain records of those applicants who have been

4 granted benefits, denied benefits, or had their benefits terminated, in order to administer the SSI

5 and SSDI programs. See 20 C.F.R. § 401 app. A(b)(2)(c). Therefore, the class meets the

6 ascertainability requirement, to the extent there is one.

7

B. Plaintiffs Satisfy Federal Rule of Civil Procedure 23(b)(2).

8

This case meets the requirements for certification under Rule 23(b)(2) because SSA “has

9 acted or refused to act on grounds generally applicable to the class, thereby making appropriate

10 final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

11 Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). Plaintiffs present a prototypical Rule

12 23(b)(2) class. Rule 23(b)(2) “has been used extensively to challenge the enforcement and

13 application of complex statutory schemes, such as suits involving the award or termination of

14 benefits under the Social Security Act.” 7AA Charles Alan Wright, et al., Federal Practice and

15 Procedure § 1775, at 73 (3d ed. 2005).

16

SSA has acted on grounds that apply generally to the class proposed here: it has acted

17 based on an SSA-wide policy to consider CE reports from Dr. Chen to deny or terminate

18 disability benefits. And, as the Court explained in its denial of Defendant’s motion to dismiss, the

19 memorandum issued by the SSA “only underscores the existence of an SSA-wide policy

20 regarding Dr. Chen, authorizing adjudicators to continue to ‘consider’ his CE reports following

21 his removal from the CE panel.” (ECF No. 36 at 9.) In this way, SSA has confirmed that

22 adjudicators must continue to consider these unreliable reports in determining the disability

23 claims of class members.

24

Further, the relief requested by Plaintiffs is appropriate for the class as a whole. In City of

25 New York, the district court certified a strikingly similar class of individuals who had applied for

26 or received Title II and/or Title XVI benefits, were found to have “a functional psychotic or

27 functional nonpsychotic mental impairment which is severe (i.e., determined under 20 CFR

28 § 404.1520(c) or § 416.930(c) to require evaluation under Appendix I of that Regulation), and

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1 whose applications for benefits have been denied or whose benefits have been or will be

2 terminated, on the basis of defendants’ determination that such persons are capable of substantial

3 gainful activity.” 476 U.S. at 475-76 n.6 (1986). “As a remedy, the District Court ordered the

4 Secretary to reopen the decisions denying or terminating benefits, and to redetermine eligibility. .

5 . . The District Court also ordered SSA to notify class members that their claims had been

6 reopened, and to inform class members with an appeal pending before an ALJ that such claimants

7 had the option of proceeding with their appeals upon the existing record rather than with the

8 administrative reopening of their case.” Id. at 476 & n.7. Here, if Plaintiffs succeed on the

9 merits, SSA will similarly be required to provide all class members with notice that their cases are

10 being reopened. SSA will now have to give claimants what they were previously denied—the

11 determination of their disability claim through a fair process.

12

SSA may argue that some class members are not entitled to this relief because the

13 outcome of their benefits determination was not entirely dependent on a CE report from Dr. Chen.

14 But “[t]he fact that some class members may have suffered no injury or different injuries from the

15 challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2).”

16 Rodriguez, 591 F.3d at 1125.

17

Indeed, this case is quite similar to Rodriguez, where plaintiffs sought injunctive and

18 declaratory relief providing individual bond hearings to all members of the class. Id. at 1111.

19 The defendants in Rodriguez argued that Rule 23(b)(2) certification was inappropriate because

20 some class members may not be entitled to a bond hearing since they were properly subject to

21 mandatory detention. Id. at 1125. The Ninth Circuit acknowledged that some of the class

22 members may not have viable individual claims for relief, but that did “not alter the fact that

23 relief from a single practice is requested by all class members.” Id. at 1126. It was sufficient that

24 “all class members seek the exact same relief as a matter of statutory or, in the alternative,

25 constitutional right.” Id.

26

As in Rodriguez, the possibility that some class members may not have a viable claim for

27 benefits does not preclude Rule 23(b)(2) certification. Members of the class may differ in terms

28 of the exact deficiencies of the exam that they received, or the degree of weight given to the CE

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1 report in the course of SSA’s denial or termination of their benefits, and the details of Plaintiffs’

2 financial or medical eligibility for benefits are, of course, highly individualized. None of those

3 differences matters for purposes of Rule 23, however, because Plaintiffs do not ask the Court to

4 adjudicate the disability status of the entire class. Rather, Plaintiffs challenge SSA-wide policies,

5 which apply to Plaintiffs and all class members.

6 VII. CONCLUSION

7

For the foregoing reasons, the Court should grant the Plaintiffs’ motion, certify this matter

8 as a class action as defined above, and appoint Plaintiffs’ counsel as class counsel.

9

10 Dated: August 6, 2015 11 12 13

WILLIAM L. STERN CLAUDIA M. VETESI ROBERT T. PETRAGLIA ELIZABETH BALASSONE MORRISON & FOERSTER LLP

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By: /s/ William L. Stern

WILLIAM L. STERN 15

Attorneys for Plaintiffs 16

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CERTIFICATE OF SERVICE

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I hereby certify that on August 6, 2015, I electronically transmitted the foregoing

3 document to the Clerk of Court using the CM/ECF System for filing and transmittal of a Notice

4 of Electronic Filing to the CM/ECF registrants.

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/s/ William L. Stern

WILLIAM L. STERN 6

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CERTIFICATE OF SERVICE sf-3554959

 
 1

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UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
KEVIN HART, et al., 7
Plaintiffs, 8
v. 9
CAROLYN W. COLVIN, 10
Defendant. 11

Case No. 15-cv-00623-JST
ORDER GRANTING CLASS CERTIFICATION Re: ECF No. 40

United States District Court Northern District of California

12

This is a putative class action about the evidence that Administrative Law Judges (“ALJs”)

13 may properly consider in determining whether claimants are entitled to disability benefits from the

14 Social Security Administration (“SSA”). Plaintiffs have sued Defendant Carolyn W. Colvin in her

15 capacity as Acting Commissioner of Social Security, ECF No. 1, challenging the SSA’s alleged

16 reliance on consultative examinations performed by Dr. Frank Chen, a physician who is now

17 disqualified, in denying or terminating disability benefits. Id. ¶ 1. Plaintiffs seek declaratory and

18 injunctive relief requiring the SSA to cease relying on Dr. Chen’s reports, to reopen any benefits

19 determination that relied, at least in part, on a report prepared by Dr. Chen, and to notify those

20 individuals whose benefits have been denied or terminated of their right to these forms of relief. 21 Id. at 23–24.1

22

Now before the Court is Plaintiffs’ Motion for Class Certification. ECF No. 40. For the

23 reasons set forth below, the Court will grant the motion.

24 I. BACKGROUND

25

A. Factual Background

26

To obtain benefits based on disability under the Supplemental Security Income (“SSI”) or

27

28

1 Citations are to the internal pagination of the document and not to the pages assigned by the Court’s electronic case filing system.

1 Social Security Disability Insurance (“SSDI”) programs, a claimant must be unable “to engage in

2 any substantial gainful activity by reason of any medically determinable physical or mental

3 impairment which can be expected to result in death or which has lasted or can be expected to last

4 for a continuous period of not less than 12 months.” ECF No. 1 ¶ 2 (citing 42 U.S.C. §

5 423(d)(1)(A)). SSA, which administers the SSI and SSDI programs, is required to “establish by

6 regulation uniform standards which shall be applied at all levels of determination, review, and

7 adjudication in determining whether individuals are under disabilities.” 42 U.S.C. § 421(k)(1).

8 The regulations promulgated pursuant to the Social Security Act require that claimants provide

9 SSA with “evidence from acceptable medical sources to establish whether [an individual has] a

10 medically determinable impairment(s).” ECF No. 1 ¶ 3 (citing 20 C.F.R. § 404.1513(a)).

11 “Objective medical evidence of pain or other symptoms established by medically acceptable

United States District Court Northern District of California

12 clinical or laboratory techniques . . . must be considered in reaching a conclusion as to whether [a

13 claimant] is under a disability.” 42 U.S.C. § 423(d)(5)(A).

14

Although SSA administers SSI and SSDI, it contracts with state agencies, such as the

15 Disability Determination Service Division of the California Department of Social Services

16 (“DDSD”), to make disability determinations. Id. ¶ 80. If DDSD cannot get the information it

17 needs to make a disability determination from a claimant’s own medical records, DDSD may

18 decide to purchase a consultative examination (“CE”). 20 C.F.R. § 404.1519a. CEs are

19 examinations performed by doctors or other medical professionals who contract with DDSD. ECF

20 No. 1 ¶ 85. Following a CE, the examiner sends a report regarding the claimant to DDSD. Id.

21 ¶ 87. SSA has promulgated various guidelines regarding the standards for CEs and the

22 consideration of CE reports. Id. ¶¶ 88–93. In particular, SSA regulations require that evidence

23 used in making disability determinations, such as CE reports, must come from “acceptable

24 medical sources.” 20 C.F.R. §§ 404.1513(a), 404.1519(g). “Acceptable medical sources” include

25 “[l]icensed physician[s].” Id. §§ 404.1513(a)(1), 416.913(a)(1).

26

SSA regulations require adjudicators to “always consider” CE reports along with the rest

27 of the relevant evidence in making a disability determination. Id. §§ 404.1527(b), 416.927(b); see

28 2

1 also ECF No. 46 at 3. “Regardless of its source, [SSA adjudicators] will evaluate every medical

2 opinion,” including every CE, the adjudicator receives in light of multiple factors to “determine[e]

3 the weight,” if any, the opinion should be given. 20 C.F.R. §§ 404.1527(c)(2), 416.927(b). Even

4 after an examiner has been disqualified, SSA regulations permit adjudicators to rely on existing

5 CE reports prepared by the disqualified examiner. ECF No. 1 at ¶ 99 (citing 20 C.F.R. §§

6 404.1503, 416.903a (“We will not use in our program any individual or entity, except to provide

7 existing medical evidence, who is currently excluded, suspended, or otherwise barred from

8 participation in . . . any other Federal or Federally-assisted program.”)).

9

Named Plaintiffs Kevin Hart, Nina Silva-Collins, and Lee Harris all sought the award or

10 renewal of disability benefits from SSA. Dr. Frank Chen performed CEs on all of the Named

11 Plaintiffs in connection with their applications for award or renewal of disability benefits. Named

United States District Court Northern District of California

12 Plaintiffs allege various deficiencies with these examinations.

13

Plaintiff Hart suffered from “tremendous pain and limited mobility,” following a 2007 car

14 accident, as well as “diabetes and emphysema.” Id. ¶ 17. Hart was found disabled by an ALJ in

15 April 2010. Id. ¶ 23. In April of 2013, Hart was attacked violently, exacerbating his pre-existing

16 pain and causing additional serious health conditions. Id. ¶ 24–25. Hart was scheduled for a

17 continuing disability review in 2013 and referred to Dr. Chen. Id. ¶ 26. Dr. Chen’s August 15,

18 2013 examination of Plaintiff Hart lasted only ten minutes. Id. ¶ 28. Dr. Chen submitted a report

19 that misidentified Hart’s complaints and claimed that he had performed tests that he had not

20 actually performed during his examination. Id. ¶¶ 29–32. SSA relied on Dr. Chen’s evaluation in

21 terminating Hart’s benefits on September 11, 2013. Id. ¶ 34. Following a subsequent hearing, a

22 Disability Hearing Officer concluded in a March 17, 2014 order that Hart’s physical impairments

23 had “medically improved” and that Hart was “able to do medium work activities” based upon Dr.

24 Chen’s report. Id. ¶ 35. The Officer found Dr. Chen’s report “more reasonable as consistent and

25 supported by medical evidence” than another doctor’s report that had been submitted by Hart. Id.

26

Plaintiff Silva-Collins suffers from “severe, chronic anemia caused by menorrhagia

27 (abnormally heavy and prolonged menstrual bleeding), lumbar degenerative disc disease,

28 3

1 depression, anxiety, asthma, and hypertension.” Id. ¶ 38. Silva-Collins was examined by Dr.

2 Chen on August 10, 2013, after an ALJ determined that a CE was necessary to evaluate her

3 claims. Id. ¶ 41. Dr. Chen’s examination of Silva-Collins lasted only ten minutes. Id. ¶ 42. Dr.

4 Chen diagnosed Silva-Collins with “[l]ow back pain, possibly due to obesity,” and “obesity.” Id.

5 ¶ 44. Dr. Chen’s report claimed that he had completed various strength and range of motion tests

6 that he never actually performed. Id. ¶ 45. “Dr. Chen did not ask Ms. Silva-Collins any questions

7 about her menorrhagia, anemia, or other blood issues, or the effect that these chronic conditions

8 had on her physical capabilities.” Id. ¶ 43. On January 8, 2014, the ALJ denied Silva-Collins’

9 claim for benefits, giving “great weight to the opinion of consultative examiner Dr. Chen” and

10 observing that Dr. Chen’s “examination is the most thorough and detailed in the record, and well

11 supported by the medical evidence as a whole.” Id. ¶ 47.

United States District Court Northern District of California

12

Plaintiff Harris suffers from debilitating lower back, leg, and foot pain caused by an April

13 2005 car accident. Id. ¶ 53. Following his August 2011 application for SSI benefits, SSA referred

14 Plaintiff Harris to Dr. Chen for a CE, which was conducted on October 28, 2011. Id. ¶ 56. The

15 examination lasted twelve minutes. Id. ¶ 58. Dr. Chen instructed Harris to stand without his cane,

16 and Harris responded that he could not do so without support. Id. ¶ 60. Nonetheless, “Dr. Chen

17 concluded that Mr. Harris did not need to use his cane to walk short distances, even though he had

18 never seen Mr. Harris stand without [the cane].” Id. ¶ 63. Harris’s application was denied on

19 November 18, 2011 and denied again upon reconsideration on May 16, 2012. Id. ¶ 64. Although

20 Harris succeeded in obtaining a hearing before an ALJ in April 2013, the ALJ denied Harris’

21 claim, stating that “the examination by Dr. Chen indicates far greater functionality than alleged by

22 the claimant.” Id. ¶ 65. The ALJ gave “the greatest weight to Dr. Chen’s opinion because he

23 personally examined the claimant.” Id.

24

Unbeknownst to claimants who were being referred to Dr. Chen for CEs during this time,

25 DDSD had sent Dr. Chen a Corrective Action letter regarding deficiencies in his CEs in

26 September 2011. Id. ¶ 74. DDSD sent Dr. Chen a second letter on October 14, 2013, identifying

27 continuing issues with the quality of his reports, the lack of thoroughness of his examinations, and

28 4

1 his unprofessional manner towards applicants. Id. ¶ 75. On December 30, 2013, following years

2 of complaints from applicants and their representatives regarding Dr. Chen’s practices, DDSD

3 removed Dr. Chen from the CE panel, citing Dr. Chen’s “unprofessional manner and failure to

4 adequately correct deficiencies in his CE reports.” Id. ¶ 76. Although Dr. Chen’s reports were a

5 part of the record in all of Plaintiffs’ ongoing challenges to their denial of disability benefits,

6 Plaintiffs were not provided with notice that Dr. Chen had been removed from the CE panel. Id.

7 ¶ 77; see also Defendant’s Answer to Class Action Complaint (“Answer”), ECF No. 38 ¶ 100

8 (“SSA admits that there is no regulation or rule directing SSA to provide applicants whose

9 benefits have been denied or terminated notice that the consultative examiner in their case has

10 been removed from the applicable CE panel.”).

11

B. Procedural Background

12

On February 9, 2015, Plaintiffs filed a Complaint, asking the Court to grant declaratory

United States District Court Northern District of California

13 and injunctive relief: 1) declaring that Defendant’s reliance on Dr. Chen’s CE reports “violate[s]

14 the SSA’s obligations pursuant to the Social Security Act, its implementing regulations and the

15 Due Process Clause of the United States Constitution;” 2) enjoining Defendant from relying on

16 CE reports prepared by Dr. Chen to terminate or deny disability benefits; 3) requiring Defendant

17 to reopen prior determinations terminating or denying benefits in reliance on CE reports prepared

18 by Dr. Chen; and 4) requiring Defendant to provide notice to all individuals whose benefits were

19 terminated or denied in reliance on a CE report prepared by Dr. Chen of their right to these forms

20 of relief. ECF No. 1 at 23–24. On April 20, 2015, Defendant filed a motion to dismiss for lack of

21 subject matter jurisdiction, contending that the Court could not exercise jurisdiction over this case 22 pursuant to 42 U.S.C. § 405(g)2 because Plaintiffs have failed to exhaust their administrative

23 remedies through the SSA’s internal appeals process. ECF No. 18. On July 17, 2015, the Court

24 denied Defendant’s motion to dismiss, concluding that administrative exhaustion would be futile

25

26 2 42 U.S.C. § 405(g) provides: “Any individual, after any final decision of the Commissioner of 27 Social Security made after a hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action commenced within sixty days 28 after the mailing to him of notice of such decision . . . .”
5

1 and that Plaintiffs had satisfied the other requirements for waiver of the exhaustion requirement.

2 ECF No. 36.

3

On July 31, 2015, Defendant filed her Answer to the Complaint. ECF No. 38. On August

4 6, 2015, Plaintiffs filed a motion for class certification, seeking to certify a class of “[a]ll persons

5 whose SSI or SSDI benefits were either denied or terminated and for whom a consultative

6 examination was prepared by Dr. Frank Chen,” ECF No. 40 at 9, which motion the Court now

7 considers.

8 II. JURISDICTION

9

As the Court previously determined, ECF No. 36, the Court has jurisdiction pursuant to 42

10 U.S.C. § 405(g).

11 III. LEGAL STANDARD

12

Class certification under Rule 23 is a two-step process. First, Plaintiff must demonstrate

United States District Court Northern District of California

13 that the numerosity, commonality, typicality, and adequacy requirements of 23(a) are met. “One

14 or more members of a class may sue or be sued as representative parties on behalf of all members

15 only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are

16 questions of law or fact common to the class; (3) the claims or defenses of the representative

17 parties are typical of the claims or defenses of the class; and (4) the representative parties will

18 fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). “Class certification

19 is proper only if the trial court has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has been

20 satisfied.” Wang v. Chinese Daily News, Inc., 709 F.3d 829, 833 (9th Cir. 2013) (quoting Wal–

21 Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551 (2011)). In addition, “[w]hile it

22 is not an enumerated requirement of Rule 23, courts have recognized that “in order to maintain a

23 class action, the class sought to be represented must be adequately defined and clearly

24 ascertainable.” Vietnam Veterans of Am. v. C.I.A., 288 F.R.D. 192, 211 (N.D. Cal. 2012) 25 (quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)).3

26

Second, a plaintiff must also establish that one of the bases for certification in Rule 23(b) is

27 28 3 Defendant does not dispute that the proposed class is ascertainable.
6

1 met. Here, Plaintiff invokes Rule 23(b)(2), which requires that “the party opposing the class has

2 acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or

3 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

4 23(b)(2).

5 IV. ANALYSIS

6

A. Rule 23(a) requirements

7

1. Numerosity

8

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

9 impracticable.” Fed. R. Civ. P. 23(a)(1). “[C]ourts generally find that the numerosity factor is

10 satisfied if the class comprises 40 or more members.” In re Facebook, Inc., PPC Advertising

11 Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012).

United States District Court Northern District of California

12

Here, Plaintiffs argue that the proposed class is sufficiently numerous because “SSA has

13 admitted there are at least 325 claimants in the proposed class.” ECF No. 40 at 9 (citing letter

14 from the Chief Administrative Law Judge, Debra Bice, to the Acting Chief Administrative Law

15 Judge for San Francisco, John Rolph, stating, “[w]e have identified 325 pending cases at the

16 hearing level with medical evidence from Dr. Chen.”). Plaintiffs further argue that “[t]he 325

17 claimants whose cases are currently pending at the hearing level are a small minority of putative

18 class members, as the majority of claimants do not reach the ALJ stage and Dr. Chen has been

19 submitting CE reports for many years.” Id. at 10 (emphasis in original). As a result, “[i]t can be

20 reasonably inferred that the proposed class contains thousands of members.” Id. Defendant does

21 not dispute Plaintiffs’ contentions regarding numerosity. Accordingly, the Court concludes that

22 Plaintiffs have satisfied the numerosity requirement.

23

2. Commonality

24

A Rule 23 class is certifiable only if “there are questions of law or fact common to the

25 class.” Fed. R. Civ. P. 23(a)(2). “[F]or purposes of Rule 23(a)(2) [e]ven a single [common]

26 question will do.” Wal-Mart, 131 S. Ct. at 2556 (internal quotation marks omitted). However, the

27 common contention “must be of such a nature that it is capable of classwide resolution—which

28 7

1 means that determination of its truth or falsity will resolve an issue that is central to the validity of

2 each one of the claims in one stroke.” Id. at 2551. “‘What matters to class certification . . . is not

3 the raising of common ‘questions’ ‒ even in droves ‒ but rather the capacity of a classwide

4 proceeding to generate common answers apt to drive the resolution of the litigation.’” Id. (quoting

5 Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97,

6 131–32 (2009)). Additionally, “[c]ommonality requires the plaintiff to demonstrate that the class

7 members ‘have suffered the same injury,’” which cannot merely be the suffering of “a violation of

8 the same provision of law.” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157

9 (1982)).

10

The Court previously determined that SSA acted according to an SSA-wide policy

11 regarding Dr. Chen, which policy authorized adjudicators to continue to “consider” Dr. Chen’s CE

United States District Court Northern District of California

12 reports following his removal from the CE panel. ECF No. 36 at 9. In making this determination,

13 the Court relied on a March 16, 2015 letter from the Chief Administrative Law Judge for SSA to

14 the Acting Chief Administrative Law Judge for San Francisco, providing guidance to adjudicators

15 regarding Dr. Chen and instructing them to “consider” Dr. Chen’s removal from the CE panel in

16 “determining the weight, if any, to which” Dr. Chen’s CE is entitled. Id. (quoting ECF No. 27-2

17 at 2–3). The letter also instructed adjudicators that they “must consider the weight to give Dr.

18 Chen’s report in accordance with the regulations at 20 CFR 404.1527 and 416.927.” ECF No. 27-

19 2 at 3. Those regulations, in turn, provide that “[r]egardless of its source, [SSA] will evaluate

20 every medical opinion we receive.” 20 C.F.R. § 404.1527(c). Plaintiffs claim that the SSA’s

21 regulations do not allow an ALJ to disregard an unreliable report, or question its findings, based

22 on the fact that the individual who prepared it has been disqualified. ECF No. 40 at 6 (citing 20 23 C.F.R. §§ 404.1527, 416.927).4

24

Plaintiffs argue that this SSA-wide policy that requires adjudicators to consider Dr. Chen’s

25 reports raises two sets of common questions. First, the SSA-wide policy raises the question of

26 whether requiring adjudicators to consider CE reports provided by a disqualified doctor is a

27 28 4 The SSA conceded this point at the hearing on the motion.
8

1 violation of (1) the Social Security Act, (2) its implementing regulations, or (3) the Due Process

2 clause of the United States Constitution. ECF No. 40 at 12. Second, the SSA-wide policy raises

3 “common questions regarding . . . SSA’s legal obligations regarding Dr. Chen, including whether 4 the Due Process clause requires SSA to provide applicants with a copy of their CE report;5

5 whether SSA had an obligation to monitor Dr. Chen; and whether SSA failed to adequately

6 monitor Dr. Chen.” Id. Simply put, Plaintiffs argue that the common question raised by all

7 proposed class members is whether the SSA-wide policy authorizing adjudicators to consider Dr.

8 Chen’s CE reports without giving notice to claimants is legal.

9

In response, Defendant first argues that Plaintiffs have not established commonality

10 because “[c]ommonality . . . does not mean merely that they have all suffered violation of the

11 same provision of law.” ECF No. 46 at 9 (quoting Wal-Mart, 131 S.Ct. at 2551). According to

United States District Court Northern District of California

12 Defendant, Plaintiffs’ first four purportedly common questions listed above “do just that, asking

13 whether SSA’s alleged conduct violated any of three provisions of law,” and nothing more. Id.

14 Indeed, in Wal-Mart, the Supreme Court observed that “the mere claim by employees of the same

15 company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury,

16 gives no cause to believe that all their claims can productively be litigated at once. Their claims

17 must depend upon a common contention—for example, the assertion of discriminatory bias on the

18 part of the same supervisor.” 131 S.Ct. at 2551. Id. However, unlike in Wal-Mart’s hypothetical,

19 while Plaintiffs do claim that each member of the proposed class has suffered violations of the

20 same provisions of law, the proposed class’s claims also depend on a common contention, namely

21 that a single SSA-wide policy requiring consideration of Dr. Chen’s reports injured each class

22 member because any consideration of those reports, prepared by an examiner who had been

23 subsequently disqualified, violated the Social Security Act, its implementing regulations, and the

24

25 5 In this respect, Plaintiffs claim that “SSA did not provide putative class members with a copy of 26 their CE report prior to their hearing, or notice that Dr. Chen had been disqualified.” ECF No. 40
at 11. Plaintiffs also note that SSA itself “admits that there is no regulation or rule directing SSA 27 to provide applicants whose benefits have been denied or terminated notice that the consultative
examiner in their case has been removed from the applicable CE panel.” Id. (quoting Answer ¶ 28 100).
9

1 Due Process Clause. In this way, the SSA-wide policy regarding consideration of Dr. Chen’s

2 reports is the “‘glue’ that hold[s] together the putative class;” either that policy “is unlawful as to

3 every [member of the proposed class] or it is not.” Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir.

4 2014).

5

Second, Defendant argues that the Supreme Court’s decision in Wal-Mart forecloses class

6 certification here because Wal-Mart found commonality lacking where the plaintiffs had only

7 shown a “corporate policy . . . allowing discretion by local supervisors over employment matters.”

8 131 S.Ct. at 2554. Defendant argues that this is “effectively identical to the practice SSA is

9 accused of perpetrating” here, and, as a result, the Court should find that Plaintiffs have failed to

10 allege the existence of an SSA-wide policy, which has led to an injury common to all proposed

11 class members. ECF No. 46 at 18. This argument is unpersuasive.

United States District Court Northern District of California

12

In Wal-Mart, the Supreme Court reasoned that “Wal-Mart’s ‘policy’ of allowing discretion

13 by local supervisors” did not bridge the “conceptual gap” between an individual’s claim and the

14 existence of a class of persons who have suffered the same injury, such that common questions

15 will be typical of all class members, because “demonstrating the invalidity of one manager’s use

16 of discretion will do nothing to demonstrate the invalidity of another’s.” 131 S.Ct. 2553–54. By

17 contrast here, Plaintiffs argue that the SSA-wide policy of allowing discretion by individual

18 adjudicators to determine how much weight to give to Dr. Chen’s reports was unlawful precisely

19 because giving any weight to Dr. Chen’s reports whatsoever violates the Social Security Act, its

20 implementing regulations, and the Due Process Clause. Wal-Mart would be a more apt

21 comparison to this case had the Wal-Mart plaintiffs alleged a corporate policy, which allowed

22 managers to consider some unlawful characteristic—say the sex of an employee—when making

23 employment decisions. As it is, however, the holding in Wal-Mart simply does not apply here

24 because the Wal-Mart plaintiffs did not allege that Wal-Mart explicitly gave its managers the 25 discretion to consider unlawful criteria, as Plaintiffs allege here.6

26 27 6 Moreover, as Plaintiffs note, Wal-Mart is further distinguishable because plaintiffs in Wal-Mart
had only shown a “corporate policy . . . allowing discretion by local supervisors over employment 28 matters,” whereas SSA requires adjudicators to “always consider” CE reports, including CE
10

1

The Court agrees with Plaintiffs that this case is more similar to Bowen v. City of New

2 York, 476 U.S. 467 (1986) than Wal-Mart. In Bowen, plaintiffs sued the Secretary of Health and

3 Human Services under 42 U.S.C. § 405(g), challenging a policy of the SSA which allegedly

4 “mandated a presumption . . . that a failure to meet or equal [certain criteria] was tantamount to a

5 finding of ability to do at least unskilled work; that the presumption led to routine denials of

6 benefits to eligible claimants; and that such a presumption was arbitrary, capricious, and violative 7 of the Constitution, the Social Security Act, and the applicable regulations.”7 476 U.S. at 473.

8 The district court certified a class consisting of claimants residing in the State of New York who

9 were subject to the allegedly unlawful policy and “whose applications for benefits ha[d] been

10 denied or whose benefits ha[d] been or [would] be terminated, on the basis of defendants’

11 determination that such persons are capable of substantial gainful activity.” Id. at 475 n.6. Just as

United States District Court Northern District of California

12 the district court found in Bowen, Plaintiffs allege here the existence of a “systemwide, unrevealed

13 [SSA] policy that [is allegedly] inconsistent in critically important ways with established

14 regulations.” Id. at 485. The existence of such an allegedly unlawful SSA-wide policy

15 distinguishes this case from Wal-Mart.

16

Third, Defendant argues that the potential members of the proposed class have not suffered

17 the same common injury because “they have not alleged—let alone demonstrated—that reports

18 from Dr. Chen are uniformly deficient across the proposed class.” ECF No. 46 at 10 (emphasis in

19 original). Defendant notes that while Dr. Chen’s CE reports submitted for some Plaintiffs may be

20 deficient, “some will be entirely competent.” Id. at 8. Similarly, Defendant asserts that the

21 adjudicators reviewing Dr. Chen’s reports could have given them great weight, no weight, or some

22 degree of weight in between. Id.

23

This argument misapprehends the alleged wrong in this case, which is one of process, not

24 outcome. As the Plaintiffs put it, “[a]t its core, [this] action asks SSA to give claimants what they

25 were previously denied—the determination of their disability claim through a fair process.” ECF

26

27

reports submitted by Dr. Chen. ECF No. 47 at 5 (quoting Wal-Mart, 131 S.Ct. at 2254). 7 The Bowen plaintiffs also alleged, as here, “that failure to make the policy known to claimants

28 denied the individual plaintiffs and class members due process of law.” 476 U.S. at 474.

11

1 No. 47 at 3. In Parsons, the Ninth Circuit affirmed the district court’s certification of a class of

2 Arizona prisoners who were subject to the same allegedly unconstitutional policies of prison

3 administrators despite the fact that the Complaint did “not allege that the care provided on any

4 particular occasion to any particular inmate . . . was insufficient.” 754 F.3d at 676. Rather, the

5 allegedly unconstitutional policies were “of statewide and systemic application expos[ing] [the

6 entire class of inmates] to a substantial risk of serious harm.” Id. Similarly here, it is

7 inconsequential that Plaintiffs do not allege that Dr. Chen’s reports were uniformly deficient

8 across the proposed class because Plaintiffs’ alleged harm stems from an SSA-wide policy which

9 uniformly deprived the entire class of the adequate process, which Plaintiffs assert is required by

10 law. And just as in Parsons, determination of whether the SSA-wide policy is unlawful or not

11 “does not require [the Court] to determine the effect of [that policy] upon any individual class

United States District Court Northern District of California

12 member . . . or to undertake any other kind of individualized determination.” Parsons, 754 F.3d at

13 678.

14

Fourth, Defendant argues that the proposed class does not meet the commonality

15 requirement because some proposed class members “may wish to challenge Dr. Chen’s physical

16 examination findings; others may not; still other may seek to challenge them in part, but not in

17 whole.” ECF No. 46 at 13. Indeed, Defendant notes that some of Dr. Chen’s reports contain

18 favorable evidence for individual claimants, and that some potential class members may therefore

19 wish to give greater weight to Dr. Chen’s reports. According to Defendant, “[t]he removal of such

20 a report from the file could be adverse to such a claimant’s interests, and run directly contrary to

21 his or her efforts to obtain benefits.” Id. at 14.

22

In support of this argument, Defendant cites Mayfield v. Dalton, a case in which members

23 of the armed services challenged the constitutionality of a Department of Defense program which

24 collected and stored blood samples from all members of the armed forces for future DNA analysis.

25 109 F.3d 1423 (9th Cir. 1997). Plaintiffs sought to certify a class consisting of all active duty

26 United States Navy and Marine Corps personnel who had been compelled to provide blood

27 samples for the program. Id. at 1424. The district court denied class certification and the Ninth

28 12

1 Circuit affirmed that decision, relying on the fact that some class members may not have opposed

2 the DNA collection program, thereby rendering the class representatives’ interests “antithetical to

3 the interests of [other] class members.” Id. at 1427. However, the Mayfield Court found that

4 “there were undoubtedly people among the broad class [of all United States Navy and Marine

5 Corps personnel] who did not oppose” the challenged DNA repository and “who, in fact, approved

6 of it and wished the policies fully enforced.” Id. (emphasis added). Here, by contrast, Defendant

7 merely asserts that “a significant number of potential class members may have no objection to

8 SSA’s consideration of Dr. Chen’s reports,” ECF No. 46 at 15 (emphasis added), although

9 Defendant offers no evidence of class members who actually take that position. “Mere

10 speculation as to conflicts that may develop at the remedy stage is insufficient to support denial of

11 initial class certification.” Soc. Servs. Union, Local 535, Serv. Employees Int’l Union, AFL-CIO

United States District Court Northern District of California

12 v. Santa Clara Cnty., 609 F.2d 944, 948 (9th Cir. 1979); Myers v. Jani-King of Philadelphia, Inc.

13 No. 09-1738, 2015 WL 1055700, *9–10 (E.D. Pa. Mar. 11, 2015).

14

Moreover, there may not be a conflict even if some putative class members believe that Dr.

15 Chen’s report in their individual cases was favorable to them. While the question of remedy is not

16 currently before the Court, there is no reason why individual class members could not elect either

17 to waive the right to have their claims redetermined or to proceed on an administrative record that

18 included a report from Dr. Chen. The district court in Bowen appears to have provided a similar

19 remedy when it ordered the SSA “to notify class members that their claims had been reopened,

20 and to inform class members with an appeal pending before an ALJ that such claimants had the

21 option of proceeding with their appeals upon the existing record rather than with the

22 administrative reopening of their case.” Bowen, 476 U.S. at 476 n.7 (emphasis added).

23

In short, because Defendant has not shown that a realistic possibility of antagonism exists

24 between certain members of the proposed class and the Named Plaintiffs, the Court rejects

25 Defendant’s conflict of interest argument.

26

Ultimately, each of Defendant’s arguments is unconvincing. The Court concludes that

27 Plaintiffs have satisfied their burden of showing that there exists questions of law or fact common

28 13

1 to the proposed class members and that determination of the truth or falsity of these common

2 questions “will resolve an issue that is central to the validity of each one of the claims in one

3 stroke.” Wal-Mart, 131 at 2551. In particular, Plaintiffs’ claim asks the Court to determine

4 whether the SSA-wide policy instructing adjudicators to continue to “consider” Dr. Chen’s CE

5 reports following his removal from the CE panel violated the Social Security Act, its

6 implementing regulations, and the Due Process Clause. Resolution of these questions will not

7 depend on the individual facts of each Plaintiff’s claims because Plaintiffs argue that any

8 consideration of Dr. Chen’s report whatsoever violated the law. Accordingly, Plaintiffs have

9 satisfied the requirement to establish commonality.

10

3. Typicality

11

Defendant next challenges whether the proposed class meets the typicality requirement. In

United States District Court Northern District of California

12 certifying a class, courts must find that “the claims or defenses of the representative parties are

13 typical of the claims or defenses of the class.” Fed R. Civ. P. 23(a)(3). “The purpose of the

14 typicality requirement is to assure that the interest of the named representative aligns with the

15 interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). “Under

16 the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably

17 coextensive with those of absent class members; they need not be substantially identical.”

18 Parsons, 754 F.3d at 685 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).

19 “The test of typicality ‘is whether other members have the same or similar injury, whether the

20 action is based on conduct which is not unique to the Named Plaintiffs, and whether other class

21 members have been injured by the same course of conduct.’” Id. (quoting Hanon, 976 F.2d at

22 508).

23

“Where the challenged conduct is a policy or practice that affects all class members . . . the

24 typicality inquiry involves comparing the injury asserted in the claims raised by the Named

25 Plaintiffs with those of the rest of the class.” Id. (quoting Armstrong v. Davis, 275 F.3d 849, 868–

26 69 (9th Cir. 2001)). Here, the Court has already concluded that Plaintiffs challenge an SSA-wide

27 policy, which affects the entire class. Plaintiffs assert that each class member’s process was

28 14

1 “tainted” by this SSA-wide policy and that each class member was “injured by SSA’s policy of

2 considering CE reports prepared by Dr. Chen in resolving their disability claims.” ECF No. 47 at

3 3. The Named Plaintiffs thus allege “the same or a similar injury as the rest of the putative class;

4 they allege that this injury is a result of a course of conduct that is not unique to any of them; and

5 they allege that the injury follows from the course of conduct at the center of the class claims.” Id.

6 (internal quotation marks omitted).

7

Defendant raises two arguments why the typicality requirement is not satisfied here. First,

8 Defendant asserts that the Named Plaintiffs’ claims are not typical of the proposed class because

9 “[t]here is no allegation . . . that Dr. Chen uniformly provided deficient examination reports.” ECF

10 No. 46 at 19 (emphasis in original). The Court has already rejected this argument in the context of

11 the commonality requirement. Plaintiffs’ alleged harm stems from an SSA-wide policy which

United States District Court Northern District of California

12 uniformly deprived the entire class of the adequate process allegedly required by law.

13 Determination of whether the SSA-wide policy is unlawful or not “does not require [the Court] to

14 determine the effect of [that policy] upon any individual class member . . . or to undertake any

15 other kind of individualized determination.” Parsons, 754 F.3d at 678. As a result, it simply does

16 not matter that Plaintiffs have not alleged that Dr. Chen uniformly provided deficient CE reports.

17

Second, Defendant argues that the Named Plaintiffs’ claims are not typical of other class

18 members’ claims because the Named Plaintiffs’ claims are still pending in SSA’s administrative

19 process, whereas other proposed class members’ claims are no longer pending. ECF No. 46 at 20.

20 As a result, Defendant claims that unlike the claims of the Named Plaintiffs, the claims of

21 potential class members with closed claims will require these class members to seek reopening,

22 which, in turn, requires these claimants “to satisfy narrowly defined, case-specific conditions.” Id.

23 However, Defendant cites no authority for the proposition that the typicality requirement is not

24 satisfied where certain members of the proposed class may need to satisfy additional requirements

25 from those of the Named Plaintiffs to eventually prevail on their underlying claims. Whether

26 certain class member may need to surmount additional obstacles to prevail on their claims for

27 benefits is inconsequential because this lawsuit does not seek to adjudicate individual benefit

28 15

1 claims. ECF No. 40 at 15. Rather, Plaintiffs simply seek a determination of whether the process

2 involved in each of their benefits determinations was unlawful. And if the Court finds in favor of

3 the Plaintiffs on the merits, a potential remedy would be to require SSA to “reopen the [closed]

4 decisions denying or terminating benefits, and to redetermine eligibility.” Bowen, 476 U.S. at

5 476. The Court concludes that Plaintiffs have demonstrated typicality.

6

4. Adequacy

7

“The adequacy of representation requirement . . . requires that two questions be addressed:

8 (a) do the Named Plaintiffs and their counsel have any conflicts of interest with other class

9 members and (b) will the Named Plaintiffs and their counsel prosecute the action vigorously on

10 behalf of the class?” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000). The

11 requirement “‘tend[s] to merge’ with the commonality and typicality criteria of Rule 23(a).”

United States District Court Northern District of California

12 Amchem Prods. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (quoting Falcon, 457 U.S. at 158 n.13

13 (1982)). Among other functions, the requirement serves as a way to determine whether “the

14 Named Plaintiff’s claim and the class claims are so interrelated that the interests of the class

15 members will be fairly and adequately protected in their absence.” Falcon, 457 U.S. at 158 n.13.

16

Defendant does not specifically argue that Plaintiffs and their counsel fail to meet Rule

17 23(a)(4)’s adequacy requirement, and the Court finds that Plaintiffs have satisfied both prongs of

18 the requirement.

19

First, the Court rejects the argument, raised by Defendant with respect to the commonality

20 requirement, that the Named Plaintiffs and their counsel will not be able to “fairly and adequately

21 protect the interests of the class” simply because some potential class members may wish that Dr.

22 Chen’s CE report be given greater weight. While “[t]he Ninth Circuit has rejected class

23 certification when the class representatives’ ‘interests would . . . have been antithetical to the

24 interests of [other] class members,” Mayfield, 109 F.3d at 1427, Defendant has not provided the

25 Court with even a single specific example of such a conflict. Moreover, as Plaintiffs note, even

26 assuming the existence of potential class members who would prefer that greater weight be given

27 to Dr. Chen’s report, “provision of a new CE by a competent examiner,” which is what Plaintiffs

28 16

1 ultimately seek, “would not be at odds with the interests of proposed class members because . . .

2 findings that accurately reflect [these claimants’] disabilities would be captured in a new CE

3 report.” ECF No. 47 at 7.

4

Second, the Named Plaintiffs have retained experienced counsel, including two nonprofit

5 organizations and a law firm, which collectively “have extensive experience in public benefits

6 law, the Social Security Act, and class-action litigation, as well as the necessary resources and

7 commitment to pursue the interests of the class vigorously.” ECF No. 40 at 16. Nothing in the

8 record suggests, and Defendant does not argue, otherwise. Accordingly, Plaintiffs have satisfied

9 the adequacy requirement.

10

5. Ascertainability

11

“[A] class definition is sufficient if the description of the class is ‘definite enough so that it

United States District Court Northern District of California

12 is administratively feasible for the court to ascertain whether an individual is a member.’”

13 Vietnam Veterans of Am., 288 F.R.D. at 211 (quoting O’Connor v. Boeing N. Am., Inc., 184

14 F.R.D. 311, 319 (C.D. Cal. 1998)). While, as Plaintiff notes, some courts in this Circuit have held 15 that there is no ascertainability requirement in Rule 23(b)(2) cases,8 the Court need not address

16 this issue because Defendant does not contest ascertainability. Even assuming that such a

17 requirement does exist in Rule 23(b)(2) cases, Plaintiffs have persuasively argued that the

18 proposed class is ascertainable because the proposed class is defined by two objective criteria:

19 individuals (1) who received a CE report from Dr. Chen and (2) whose benefits were denied or

20 terminated. ECF No. 40 at 17. As a result, the Court finds that the proposed class is ascertainable.

21

B. Rule 23(b)(2)

22

Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on

23 grounds that apply generally to the class, so that final injunctive relief or corresponding

24 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Rule

25 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to

26

27 8 See, e.g., In re Yahoo Mail Litig., No. 13-cv-04980-LHK, 2015 WL 3523908, at *16 (N.D. Cal. 28 May 26, 2015).
17

1 each member of the class. It does not authorize class certification when each individual class

2 member would be entitled to a different injunction or declaratory judgment against the defendant.”

3 Wal-Mart, 131 S.Ct. at 2557. “These requirements are unquestionably satisfied when members of

4 a putative class seek uniform injunctive or declaratory relief from policies or practices that are

5 generally applicable to the class as a whole.” Parsons, 754 F.3d at 688 (citing Rodriguez v.

6 Hayes, 591 F.3d 1105, 1125 (9th Cir. 2011)). “That inquiry does not require an examination of

7 the viability or bases of the class members’ claims for relief, does not require that the issues

8 common to the class satisfy a Rule 23(b)(3)-like predominance test, and does not require a finding

9 that all members of the class have suffered identical injuries.” Id.

10

Here, contrary to Defendant’s assertion, ECF No. 46 at 22, Plaintiffs allege that SSA

11 applied the same allegedly unlawful policy to each member of the proposed class. While the

United States District Court Northern District of California

12 application of that SSA-wide policy “may not affect every member of the proposed class . . . in

13 exactly the same way,” Plaintiffs seek uniform injunctive and declaratory relief from policies that

14 are generally applicable to the class as a whole. Parsons, 754 F.3d at 688; 7AA Charles A. Wright

15 et al., Federal Practice and Procedure § 1775 (3d ed.) (“Rule 23(b)(2) . . . has been used

16 extensively to challenge the enforcement and application of complex statutory schemes, such as

17 suits involving the award or termination of benefits under the Social Security Act.”).

18

Moreover, the relief requested by Plaintiffs—a declaration that the SSA-wide policy in

19 question is unlawful, an injunction forbidding SSA from relying on Dr. Chen’s CE reports in

20 making disability determinations, an injunction requiring SSA to reopen all of the closed claims of

21 proposed class members, and an injunction requiring that SSA notify all proposed class

22 members—satisfies Rule 23(b)(2)’s requirement that “final injunctive relief or corresponding

23 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); ECF

24 No. 1 at 23. Plaintiffs do not seek monetary damages or individual disability determinations. ECF

25 No. 47 at 9. Contrary to Defendant’s argument, ECF No. 46 at 23, the fact that a single injunction

26 may affect different individual Plaintiffs in different ways because of the procedural posture of

27 their individual claims does not negate the fact that a single injunction and declaratory judgment

28 18

1 would provide relief to each member of the class. See Rodriguez v. Hayes, 591 F.3d 1105, 1125

2 (9th Cir. 2009) (“The fact that some class members may have suffered no injury or different

3 injuries from the challenged practice does not prevent the class from meeting the requirements of

4 Rule 23(b)(2).”). Indeed, the relief sought by Plaintiffs here is similar to that afforded by the

5 district court in Bowen. 476 U.S. at 476, 476 n.7 (ordering “the Secretary to reopen the decisions

6 denying or terminating benefits, . . . to redetermine eligibility,” to notify the class members with

7 closed cases that their claims would be reopened, and to notify class members with pending

8 appeals that “such claimants had the option of proceeding with their appeals upon the existing

9 record rather than the administrative reopening of their case.”).

10

Accordingly, the Court finds that Plaintiffs have satisfied Rule 23(b)(2).

11

CONCLUSION

United States District Court Northern District of California

12

The Court hereby grants Plaintiffs’ motion to certify a class consisting of all persons

13 whose SSI or SSDI benefits were either denied or terminated and for whom a consultative

14 examination was prepared by Dr. Frank Chen.

15

In the joint case management statement due on November 5, 2015, the parties are ordered

16 to propose a schedule for the remainder of the case through trial.

17

IT IS SO ORDERED.

18 Dated: October 14, 2015 19 20 21

______________________________________ JON S. TIGAR
United States District Judge

22

23

24

25

26

27

28 19

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 KEVIN HART, et al.,

8

Plaintiffs,

9

v.

10 CAROLYN W. COLVIN,

11

Defendant.

Case No. 15-cv-00623-JST
ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Re: ECF No. 75

United States District Court Northern District of California

12

Before the Court is Plaintiffs’ unopposed Motion for Preliminary Approval of Class Action

13 Settlement. ECF Nos. 75, 79.1 For the reasons set forth below, the Court grants the motion.

14 I. BACKGROUND

15

A. Factual Background

16

This is a putative class action about the evidence that Administrative Law Judges (“ALJs”)

17 may properly consider in determining whether claimants are entitled to disability benefits from the

18 Social Security Administration (“SSA”). ECF No. 50. Named Plaintiffs Kevin Hart, Nina Silva-

19 Collins, and Lee Harris represent a class of individuals who received a consultative examination

20 (“CE”) performed by Dr. Frank Chen, a physician who is now disqualified, in connection with

21 their applications for award or review of disability benefits from the SSA. ECF No. 50; ECF No.

22 1 ¶¶ 13-15. Defendant Carolyn W. Colvin is the Acting Commissioner of Social Security.

23

To obtain benefits based on disability under the Supplemental Security Income (“SSI”) or

24 Social Security Disability Insurance (“SSDI”) programs, a claimant must be unable “to engage in

25 any substantial gainful activity by reason of any medically determinable physical or mental

26

27

1 On November 8, 2016, the parties filed a Notice of Amended Settlement Agreement, which is the agreement currently before the Court. The only amendment was a change in the notice by

28

publication term of the settlement to specify the publications in which notice will be published. The change is sensible, is not material, and does not require further discussion.

1 impairment which can be expected to result in death or which has lasted or can be expected to last

2 for a continuous period of not less than 12 months.” ECF No. 1 ¶ 2 (citing 42 U.S.C. §

3 423(d)(1)(A)). SSA, which administers the SSI and SSDI programs, is required to “establish by

4 regulation uniform standards which shall be applied at all levels of determination, review, and

5 adjudication in determining whether individuals are under disabilities.” 42 U.S.C. § 421(k)(1).

6 The regulations promulgated pursuant to the Social Security Act require that claimants provide

7 SSA with “evidence from acceptable medical sources to establish whether [an individual has] a

8 medically determinable impairment(s).” ECF No. 1 ¶ 3 (citing 20 C.F.R. § 404.1513(a)).

9 “Objective medical evidence of pain or other symptoms established by medically acceptable

10 clinical or laboratory techniques . . . must be considered in reaching a conclusion as to whether [a

11 claimant] is under a disability.” 42 U.S.C. § 423(d)(5)(A).

United States District Court Northern District of California

12

Although SSA administers SSI and SSDI, it contracts with state agencies, such as the

13 Disability Determination Service Division of the California Department of Social Services

14 (“DDSD”), to make disability determinations. Id. ¶ 80. If DDSD cannot get the information it

15 needs to make a disability determination from a claimant’s own medical records, DDSD may

16 decide to purchase a consultative examination (“CE”). 20 C.F.R. § 404.1519a. CEs are

17 examinations performed by doctors or other medical professionals who contract with DDSD. ECF

18 No. 1 ¶ 85. Following a CE, the examiner sends a report regarding the claimant to DDSD. Id.

19 ¶ 87. SSA has promulgated various guidelines regarding the standards for CEs and the

20 consideration of CE reports. Id. ¶¶ 88–93. In particular, SSA regulations require that evidence

21 used in making disability determinations, such as CE reports, must come from “acceptable

22 medical sources.” 20 C.F.R. §§ 404.1513(a), 404.1519(g). “Acceptable medical sources” include

23 “[l]icensed physician[s].” Id. §§ 404.1513(a)(1), 416.913(a)(1).

24

SSA regulations require adjudicators to “always consider” CE reports along with the rest

25 of the relevant evidence in making a disability determination. Id. §§ 404.1527(b), 416.927(b); see

26 also ECF No. 46 at 3. “Regardless of its source, [SSA adjudicators] will evaluate every medical

27 opinion,” including every CE, the adjudicator receives in light of multiple factors to “determine[e]

28 the weight,” if any, the opinion should be given. 20 C.F.R. §§ 404.1527(c)(2), 416.927(b). Even 2

1 after an examiner has been disqualified, SSA regulations permit adjudicators to rely on existing

2 CE reports prepared by the disqualified examiner. ECF No. 1 at ¶ 99 (citing 20 C.F.R. §§

3 404.1503, 416.903a (“We will not use in our program any individual or entity, except to provide

4 existing medical evidence, who is currently excluded, suspended, or otherwise barred from

5 participation in . . . any other Federal or Federally-assisted program.”)).

6

Named Plaintiffs Kevin Hart, Nina Silva-Collins, and Lee Harris all sought the award or

7 renewal of disability benefits from SSA. Dr. Frank Chen performed CEs on all of the Named

8 Plaintiffs in connection with their applications for award or renewal of disability benefits. Named

9 Plaintiffs allege various deficiencies with these examinations.

10

Plaintiff Hart suffered from “tremendous pain and limited mobility,” following a 2007 car

11 accident, as well as “diabetes and emphysema.” Id. ¶ 17. Hart was found disabled by an ALJ in

United States District Court Northern District of California

12 April 2010. Id. ¶ 23. In April of 2013, Hart was attacked violently, exacerbating his pre-existing

13 pain and causing additional serious health conditions. Id. ¶ 24–25. Hart was scheduled for a

14 continuing disability review in 2013 and referred to Dr. Chen. Id. ¶ 26. Dr. Chen’s August 15,

15 2013 examination of Plaintiff Hart lasted only ten minutes. Id. ¶ 28. Dr. Chen submitted a report

16 that misidentified Hart’s complaints and claimed that he had performed tests that he had not

17 actually performed during his examination. Id. ¶¶ 29–32. SSA relied on Dr. Chen’s evaluation in

18 terminating Hart’s benefits on September 11, 2013. Id. ¶ 34. Following a subsequent hearing, a

19 Disability Hearing Officer concluded in a March 17, 2014 order that Hart’s physical impairments

20 had “medically improved” and that Hart was “able to do medium work activities” based upon Dr.

21 Chen’s report. Id. ¶ 35. The Officer found Dr. Chen’s report “more reasonable as consistent and

22 supported by medical evidence” than another doctor’s report that had been submitted by Hart. Id.

23

Plaintiff Silva-Collins suffers from “severe, chronic anemia caused by menorrhagia

24 (abnormally heavy and prolonged menstrual bleeding), lumbar degenerative disc disease,

25 depression, anxiety, asthma, and hypertension.” Id. ¶ 38. Silva-Collins was examined by Dr.

26 Chen on August 10, 2013, after an ALJ determined that a CE was necessary to evaluate her

27 claims. Id. ¶ 41. Dr. Chen’s examination of Silva-Collins lasted only ten minutes. Id. ¶ 42. Dr.

28 Chen diagnosed Silva-Collins with “[l]ow back pain, possibly due to obesity,” and “obesity.” Id. 3

1 ¶ 44. Dr. Chen’s report claimed that he had completed various strength and range of motion tests

2 that he never actually performed. Id. ¶ 45. “Dr. Chen did not ask Ms. Silva-Collins any questions

3 about her menorrhagia, anemia, or other blood issues, or the effect that these chronic conditions

4 had on her physical capabilities.” Id. ¶ 43. On January 8, 2014, the ALJ denied Silva-Collins’

5 claim for benefits, giving “great weight to the opinion of consultative examiner Dr. Chen” and

6 observing that Dr. Chen’s “examination is the most thorough and detailed in the record, and well

7 supported by the medical evidence as a whole.” Id. ¶ 47.

8

Plaintiff Harris suffers from debilitating lower back, leg, and foot pain caused by an April

9 2005 car accident. Id. ¶ 53. Following his August 2011 application for SSI benefits, SSA referred

10 Plaintiff Harris to Dr. Chen for a CE, which was conducted on October 28, 2011. Id. ¶ 56. The

11 examination lasted twelve minutes. Id. ¶ 58. Dr. Chen instructed Harris to stand without his cane,

United States District Court Northern District of California

12 and Harris responded that he could not do so without support. Id. ¶ 60. Nonetheless, “Dr. Chen

13 concluded that Mr. Harris did not need to use his cane to walk short distances, even though he had

14 never seen Mr. Harris stand without [the cane].” Id. ¶ 63. Harris’s application was denied on

15 November 18, 2011 and denied again upon reconsideration on May 16, 2012. Id. ¶ 64. Although

16 Harris succeeded in obtaining a hearing before an ALJ in April 2013, the ALJ denied Harris’

17 claim, stating that “the examination by Dr. Chen indicates far greater functionality than alleged by

18 the claimant.” Id. ¶ 65. The ALJ gave “the greatest weight to Dr. Chen’s opinion because he

19 personally examined the claimant.” Id.

20

Unbeknownst to claimants who were being referred to Dr. Chen for CEs during this time,

21 DDSD had sent Dr. Chen a Corrective Action letter regarding deficiencies in his CEs in

22 September 2011. Id. ¶ 74. DDSD sent Dr. Chen a second letter on October 14, 2013, identifying

23 continuing issues with the quality of his reports, the lack of thoroughness of his examinations, and

24 his unprofessional manner towards applicants. Id. ¶ 75. On December 30, 2013, following years

25 of complaints from applicants and their representatives regarding Dr. Chen’s practices, DDSD

26 removed Dr. Chen from the CE panel, citing Dr. Chen’s “unprofessional manner and failure to

27 adequately correct deficiencies in his CE reports.” Id. ¶ 76. Although Dr. Chen’s reports were a

28 part of the record in all of Plaintiffs’ ongoing challenges to their denial of disability benefits, 4

1 Plaintiffs were not provided with notice that Dr. Chen had been removed from the CE panel. Id.

2 ¶ 77; see also Defendant’s Answer to Class Action Complaint (“Answer”), ECF No. 38 ¶ 100

3 (“SSA admits that there is no regulation or rule directing SSA to provide applicants whose

4 benefits have been denied or terminated notice that the consultative examiner in their case has

5 been removed from the applicable CE panel.”).

6

B. Procedural Background

7

On February 9, 2015, Plaintiffs filed a Complaint, asking the Court to grant declaratory

8 and injunctive relief: 1) declaring that Defendant’s reliance on Dr. Chen’s CE reports “violate[s]

9 the SSA’s obligations pursuant to the Social Security Act, its implementing regulations and the

10 Due Process Clause of the United States Constitution”; 2) enjoining Defendant from relying on

11 CE reports prepared by Dr. Chen to terminate or deny disability benefits; 3) requiring Defendant

United States District Court Northern District of California

12 to reopen prior determinations terminating or denying benefits in reliance on CE reports prepared

13 by Dr. Chen; and 4) requiring Defendant to provide notice to all individuals whose benefits were

14 terminated or denied in reliance on a CE report prepared by Dr. Chen of their right to these forms

15 of relief. ECF No. 1 at 23–24. On April 20, 2015, Defendant filed a motion to dismiss for lack of

16 subject matter jurisdiction, contending that the Court could not exercise jurisdiction over this case 17 pursuant to 42 U.S.C. § 405(g)2 because Plaintiffs have failed to exhaust their administrative

18 remedies through the SSA’s internal appeals process. ECF No. 18. On July 17, 2015, the Court

19 denied Defendant’s motion to dismiss, concluding that administrative exhaustion would be futile

20 and that Plaintiffs had satisfied the other requirements for waiver of the exhaustion requirement.

21 ECF No. 36.

22

On July 31, 2015, Defendant filed her Answer to the Complaint. ECF No. 38. On August

23 6, 2015, Plaintiffs filed a motion for class certification, seeking to certify a class of “[a]ll persons

24 whose SSI or SSDI benefits were either denied or terminated and for whom a consultative

25 examination was prepared by Dr. Frank Chen,” ECF No. 40 at 9. On October 14, 2015, the Court

26

27

2 42 U.S.C. § 405(g) provides: “Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in

28

controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision . . . .”

5

1 granted the motion for class certification, concluding that Plaintiffs had met the requirements of

2 Federal Rules of Civil Procedure 23(a) and 23(b)(2). ECF No. 50. On September 19, 2016,

3 Plaintiffs filed an unopposed motion for preliminary approval of class action settlement

4 agreement, which motion the Court now considers. ECF No. 75.

5 II. CLASS CERTIFICATION

6

A. Legal Standard

7

Class certification under Rule 23 of the Federal Rules of Civil Procedure is a two-step

8 process. First, a plaintiff must demonstrate that the four requirements of Rule 23(a) are met:

9 numerosity, commonality, typicality, and adequacy. “Class certification is proper only if the trial

10 court has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has been satisfied.” Wang v.

11 Chinese Daily News, Inc., 709 F.3d 829, 833 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc. v.

United States District Court Northern District of California

12 Dukes, 131 S. Ct. 2541, 2551 (2011)).

13

Second, a plaintiff must establish that the action meets one of the bases for certification in

14 Rule 23(b). Here, because they rely on Rule 23(b)(3), Plaintiffs must establish that “questions of

15 law or fact common to class members predominate over any questions affecting only individual

16 members, and . . . [that] a class action is superior to other available methods for fairly and

17 efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

18

The party seeking class certification bears the burden of demonstrating by a preponderance

19 of the evidence that all four requirements of Rule 23(a) and at least one of the three requirements

20 under Rule 23(b) are met. See Wal-Mart, 131 S. Ct. at 2551.

21

B. Proposed Class Modification

22

The Court has previously certified a class “consisting of all persons whose SSI or SSDI

23 benefits were either denied or terminated and for whom a consultative examination was prepared

24 by Dr. Frank Chen.” ECF No. 50 at 19. Solely for purposes of the proposed settlement, as agreed

25 to by the parties, Plaintiffs request that the class definition be amended to be:

26

[A]ll persons whose SSI or SSDI benefits were either denied or terminated and for

27

whom a consultative examination was prepared by Dr. Frank Chen, and all persons

who received a partially favorable decision or determination on their claim for SSI

28

or SSDI benefits and for whom a consultative examination was prepared by Dr.

6

United States District Court Northern District of California

Chen. 1
ECF No. 76 at 5. Plaintiffs argue that “this is not a substantive change,” and merely includes in 2
the class, in explicit terms, “individuals who did not receive an award or benefits for the full 3
period of their application—in other words, whose benefits were ‘denied or terminated’ only in 4
part.” Id. As stated in the Court’s order granting class certification, the alleged wrong in this case 5
“is one of process, not outcome,” and resolution does not “depend on the individual facts of each 6
Plaintiff’s claims because Plaintiffs argue that any consideration of Dr. Chen’s report whatsoever 7
violated the law.” ECF No. 50 at 10, 14. Therefore, the Court concludes that Plaintiffs’ requested 8
modification is appropriate and does not affect the class’s sufficiency under Rule 23. The 9
modification is approved. 10
III. PRELIMINARY APPROVAL 11
A. Legal Standard 12
The Ninth Circuit maintains a “strong judicial policy” that favors the settlement of class 13
actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Courts generally 14
employ a two-step process in evaluating a class action settlement. First, courts make a 15
“preliminary determination” concerning the merits of the settlement and, if the class action has 16
settled prior to class certification, the propriety of certifying the class. See Manual for Complex 17
Litigation, Fourth (“MCL, 4th”) § 21.632 (FJC 2004). “The initial decision to approve or reject a 18
settlement proposal is committed to the sound discretion of the trial judge.” City of Seattle, 955 19
F.2d at 1276. Courts “must be particularly vigilant not only for explicit collusion, but also for 20
more subtle signs that class counsel have allowed pursuit of their own self-interests and that of 21
certain class members to infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig., 654 22
F.3d 935, 947 (9th Cir. 2011). 23
The Court’s task at the preliminary approval stage is to determine whether the settlement 24
falls “within the range of possible approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 25
1078, 1080 (N.D. Cal. 2007) (quotation omitted); see also MCL, 4th § 21.632 (explaining that 26
courts “must make a preliminary determination on the fairness, reasonableness, and adequacy of 27
the settlement terms and must direct the preparation of notice of the certification, proposed 28
7

1 settlement, and date of the final fairness hearing.”). Second, courts must hold a hearing pursuant

2 to Rule 23(e)(2) to make a final determination of whether the settlement is “fair, reasonable, and

3 adequate.”

4

Preliminary approval of a settlement is appropriate if “the proposed settlement appears to

5 be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does

6 not improperly grant preferential treatment to class representatives or segments of the class, and

7 falls within the range of possible approval.” In re Tableware, 484 F. Supp. 2d at 1079 (quotation

8 omitted). The proposed settlement need not be ideal, but it must be fair and free of collusion,

9 consistent with counsel’s fiduciary obligations to the class. Hanlon v. Chrysler Corp., 150 F.3d

10 1011, 1027 (9th Cir. 1998) (“Settlement is the offspring of compromise; the question we address is

11 not whether the final product could be prettier, smarter or snazzier, but whether it is fair, adequate

United States District Court Northern District of California

12 and free from collusion.”). To assess a settlement proposal, courts must balance a number of

13 factors:

14

the strength of the plaintiffs’ case; the risk, expense, complexity, and likely

duration of further litigation; the risk of maintaining class action status throughout

15

the trial; the amount offered in settlement; the extent of discovery completed and

the state of the proceedings; the experience and views of counsel; the presence of a

16

governmental participant; and the reaction of the class members to the proposed

settlement. 17

Id. at 1026 (citations omitted). The proposed settlement must be “taken as a whole, rather than the

18

individual component parts” in the examination for overall fairness. Id. Courts do not have the

19

ability to “delete, modify, or substitute certain provisions”; the settlement “must stand or fall in its

20

entirety.” Id.

21

B. Settlement Negotiations

22

On August 17, 2015, the Court referred the parties for a Settlement Conference before

23

Magistrate Judge Maria-Elena James, scheduled for November 2015. ECF Nos. 44-45. The

24

parties engaged in settlement discussions in person, by phone, and by email in the intervening

25

months. ECF No. 76 at 4. The first Settlement Conference took place on November 17, 2015.

26

ECF No. 54. The parties subsequently had six additional Settlement Conferences with Magistrate

27

Judge James: on December 18, 2015, April 5, 2016, April 28, 2016, May 19, 2016, July 13, 2016,

28

8

1 and July 28, 2016. ECF Nos. 57, 62, 65, 66, 68, 71. The parties reached an agreement on

2 September 19, 2016. ECF No. 76.

3

C. Terms of the Settlement

4

As described by Plaintiffs, “[t]he Settlement Agreement provides relief to class members

5 through procedural mechanisms that vary depending on the status of their claims and the amount

6 of time since their examination by Dr. Chen.” ECF No. 76 at 5.

7

1. Individuals with “Open” Claims

8

“A class member who has an ‘open’ claim is an individual who received an unfavorable

9 decision or determination of their claim but, as of the date of final approval of this Settlement

10 Agreement, that decision or determination is not final.” Id.

11

For individuals who meet this definition, the ALJs handling their claims are required to:

United States District Court Northern District of California

12

o Notify the individual that he or she received a CE from Dr. Chen, and that Dr. Chen’s

13

reports were flawed in important ways and subject to complaints, and that he is no longer

14

allowed to perform these examinations;

15

o Notify the individual that he or she has the option to have the report from Dr. Chen

16

excluded from consideration in the forthcoming adjudication; and

17

o Notify the individual that the adjudicator has the discretion to consider whether ordering an

18

additional CE is appropriate.

19

ECF No. 76 at 5-6; ECF No. 76-1 at III.C.

20

2. Individuals with “Closed” Claims Who Were Examined by Dr. Chen

21

On or After January 1, 2011

22

“A class member who has a ‘closed’ claim is an individual who received an unfavorable

23 decision or determination of their claim and, as of the date of final approval of this Settlement

24 Agreement, that decision or determination is final.” ECF No. 76 at 6; ECF No. 76-1 at III.A.

25

Due to the fact that these class members’ claims are “closed,” if they are eligible for relief

26 they will need to proceed through a readjudication process. ECF No. 76 at 6. “The person or

27 entity responsible for readjudicating these claims will reflect the level at which each claimant

28 received the unfavorable decision or determination.” Id. 9

1

If the DDS made the final decision at issue, the proposed settlement provides that the SSA

2 will readjudicate those claims through its “Disability Processing Unit,” without consideration of

3 Dr. Chen’s CE report. Id.; ECF No. 76-1 at III.A.2.a. In addition to the omission of Dr. Chen’s

4 report, the claimant will also have the opportunity to submit supplemental evidence relating to the

5 previously-adjudicated period, and receive back benefits or payments if found to have been

6 disabled for all, or any part of, the previously-adjudicated period. Id.

7

Moreover, if the Disability Processing Unit finds that the claimant was disabled at the end

8 of the previously-adjudicated period, the claimant may use supplemental evidence or a new CE

9 ordered by the Disability Processing Unit to show that his or her disability has continued beyond

10 the previously adjudicated period, up to and including the date of readjudication. Id. A claimant

11 who makes the appropriate showing will receive the appropriate additional back benefits or

United States District Court Northern District of California

12 payments, and/or current benefits or payments. Id.

13

If an ALJ made the final decision at issue, a new hearing will be scheduled for

14 reconsideration of the claim without consideration of Dr. Chen’s report. ECF No. 76 at 7; ECF

15 No. 76-1 at III.A.2.b. A claimant in this category also has the opportunity to submit supplemental

16 evidence relating to the previously-adjudicated period, the ALJ can order a new CE within his or

17 her discretion, and the claimant will receive back benefits or payments if found to have been

18 disabled for all, or any part of, the previously-adjudicated period. Id. Furthermore, if the

19 Disability Processing Unit finds that the claimant was disabled at the end of the previously-

20 adjudicated period, the claimant can show that his or her disability has continued beyond the

21 previously adjudicated period, up to and including the date of the readjudication. Id. Then, again,

22 the claimant may use supplemental evidence and the ALJ can order a new CE in the exercise of

23 his or her discretion. Id. If the claimant can make such a demonstration, he or she will receive the

24 appropriate additional back benefits or payments, and/or current benefits or payments. Id.

25

If class members in this category requested review by the Appeals Council or if the

26 Appeals Council took review on its own motion, their case will be remanded, and they will have a

27 new hearing with the same rights described above. Id.; ECF No. 76-1 at III.A.2.c.

28

3. Individuals With “Closed” Claims Who Were Examined by Dr. Chen

10

1 Between January 1, 2007 and December 31, 2010

2

“A class member who has a ‘closed’ claim, and who was examined by Dr. Chen between

3 January 1, 2007, and December 31, 2010, will be invited by SSA to apply for SSI or DIB benefits,

4 or both, by timely returning a claim form, indicating on the form whether he or she is currently

5 disabled, and proceeding to file a new application within the applicable timeframe.” ECF No. 76;

6 ECF No. 76-1 at III.B.2. If the claimant is determined to be disabled upon adjudication of his or

7 her current application, he or she will then be entitled to a “lookback assessment” for the

8 previously-adjudicated period for which he or she were denied benefits. Id. The Disability

9 Processing Unit will perform the lookback assessments based on the record without considering

10 Dr. Chen’s report. Again, the claimants are allowed to submit any relevant supplemental

11 evidence. Id.; ECF No. 76-1 at III.B.2.b. A finding of disability during the previously-

United States District Court Northern District of California

12 adjudicated period will entitle the claimant to the appropriate award of back benefits or payments.

13 ECF No. 76 at 8.

14

4. Individual in “Current Pay Status”

15

Individuals in “current pay status” are currently receiving benefits, despite a past denial (or

16 partial denial) of a claim for benefits that involved an examination by Dr. Chen. Id. “An

17 individual who was already in ‘current pay status’ as of October 14, 2015—the date the Court

18 granted class certification—will not be eligible for relief.” Id.

19

5. Individuals With Claims Where ALJ Explicitly Afforded No Weight to

20 Dr. Chen’s Report

21

“If SSA reviews the prior ALJ decision and determines that Dr. Chen’s CE report was

22 explicitly afforded no weight in the analysis, that individual will not be eligible for another review

23 of his or her claim.” ECF No. 76 at 8; ECF No. 76-1 at III.A.2.b; III.A.2.c.

24

6. Individuals With “Closed” Claims Who Appealed to Federal Court

25

For claimants eligible for relief who appealed their final decision to a federal court

26 pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3) prior to the date of final approval and have a

27 pending federal court case, “SSA will file a notice of non-opposition in response to a timely

28 motion for remand to the agency for further proceedings if the claimant wishes to be eligible for 11

1 consideration for such relief.” ECF No. 76 at 8; ECF No. 76-1 at III.A.2.d. If a claimant is

2 eligible for relief but his or her “federal court case has resulted in a final judgment affirming the

3 final decision of the Commissioner, SSA will file a notice of non-opposition in response to a

4 timely 60(b)(6) motion for remand to the agency for further proceedings if the claimant wishes to

5 be eligible for consideration for such relief.” ECF No. 76 at 8-9.

6

7. Additional Relief

7

In addition to the relief discussed for each category of class member, Defendant will

8 “begin a study of the processes through which it monitors the California DDS’s engagement,

9 review, and retention of empaneled consultative examiners,” with the goal of identifying

10 “mechanisms to improve the monitoring of these processes.” ECF No. 76 at 9.

11

Defendant has also “agreed to issue a document setting out processes for notifying

United States District Court Northern District of California

12 adjudicators when an individual CE provider previously engaged by the California DDS has been

13 disqualified for conduct determined to undermine the reliability of that provider’s reports.” Id.;

14 ECF No. 76-1 at IV.B. “The document will also identify, to the extent feasible, processes for (1)

15 providing notice to claimants with open claims, and their representatives, that they were examined

16 by a disqualified provider and/or (2) providing new CEs to such claimants.” Id.

17

Defendants will also “pay attorney’s fees, both for pre-approval work already incurred and

18 for post-approval work in the future, and reimbursement of expenses and costs by Plaintiff’s

19 counsel Justice in Aging and Legal Aid Society of San Mateo County in the amount of $490,000.”

20 ECF No. 76 at 10; ECF No. 76-1 at VII. “Plaintiffs’ counsel Morrison & Foerster has agreed to

21 waive any attorney’s fees and costs incurred in connection with this action.” Id.

22

In exchange, “Plaintiffs agree to the dismissal of the Case with prejudice under Federal

23 Rules of Civil Procedure 41(a)(1) and 23(e),” and agree to “release, waive, acquit, and forever

24 discharge the United States, the Commissioner, the Social Security Administration, the California

25 Disability Determination Service, and all of their officers, employees, and agents, from, and are

26 hereby forever barred and precluded for prosecuting, any and all claims, causes of action, and/or

27 requests for relief that would be barred by the doctrine of res judicata were final judgment on the

28 merits entered on all claims asserted in this case.” ECF No. 76-1 at VII-VIII. 12

1

D. Analysis

2

The Court concludes that the proposed benefits to be awarded to the class fall “within the

3 range of possible approval.”

4

1. Risk, Expense, Complexity, and Likely Duration of Further Litigation

5

While the parties agree that the outcome of a trial is “uncertain,” they do not describe

6 Plaintiffs’ claims as “not particularly strong” or weak. ECF No. 76 at 12; see also In re Bluetooth

7 Headset Products Liability Litigation, 654 F.3d 935, 946 (9th Cir. 2011). Still, the Court agrees

8 that it would be more expensive and time-consuming for the parties to litigate this case through

9 trial, and that resolution of this action through settlement is appropriate. Discovery and an

10 eventual trial would surely prolong the wait class members face to obtain relief.

11

2. Non-Collusive Negotiations

United States District Court Northern District of California

12

In examining the means by which the parties arrived at a settlement, the Court concludes

13 that the negotiations and agreement were non-collusive. The stipulated settlement was reached

14 after the parties engaged in motion practice and participated in arms-length, extensive settlement

15 negotiations overseen by an experienced and neutral third party. ECF No. 76 at 14. These

16 assertions support the conclusion that the settlement is non-collusive and likely to benefit the class

17 members. See, e.g., Harris v. Vector Marketing Corp., No. C-08-5198 EMC, 2011 WL 1627973,

18 at *8 (N.D. Cal. Apr. 29, 2011). While no formal discovery has taken place, the parties exchanged

19 some documents and information “that allowed the parties to draft and refine the terms of the

20 Settlement Agreement,” and Plaintiffs’ own investigation resulted in useful documents that were

21 included in the SSA’s prior filings. Id. at 13; see In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454,

22 459 (9th Cir. 2000) (“[F]ormal discovery is not a necessary ticket to the bargaining table where the

23 parties have sufficient information to make an informed decision about settlement.” (citations

24 omitted)). The Court also agrees that counsel for both Plaintiffs and Defendants are experienced

25 and competent. ECF No. 76 at 13.

26

3. Presence of a Government Participant

27

Defendant Carolyn W. Colvin is Acting Commissioner of Social Security and is charged

28 by federal law with administering and supervising the benefit programs administered by SSA. 13

1 The Court agrees that her participation weighs in favor of approval. Id. at 14.

2

4. Obvious Deficiencies

3

The settlement has no obvious deficiencies. The settlement addresses Plaintiffs’ central

4 claim by providing that class members will be afforded fair process to determine their eligibility

5 for benefits without consideration of Dr. Chen’s reports. It also allows some class members to

6 preserve Dr. Chen’s report in their record by giving them the option of whether to challenge it.

7 ECF No. 76 at 17. The Court concludes that such relief falls within the range of possible

8 approval.

9

5. Preferential Treatment

10

Under this factor, the Court looks at whether the settlement agreement provides

11 preferential treatment to any class member. The named plaintiffs receive the same relief as all

United States District Court Northern District of California

12 other class members under the agreement. The variations that are included in the different sub-

13 classes reflect only that different class members occupy different procedural postures within

14 SSA’s administrative process. The Court agrees that the agreement provides relief through the use

15 of procedural mechanisms most appropriate for each sub-group based on procedural posture.

16 While such differences may result in different types of relief for the different subclasses, they are

17 rational in this instance because some claimants’ claims are “closed” while others are “open,” and

18 the September 2011 distinguishing date represents when Defendant sent Dr. Chen a corrective

19 action letter and was officially aware of problems with his reports. See, e.g., Torrisi v. Tucson

20 Elec. Power Co., 8 F.3d 1370, 1377 (9th Cir. 1993) (holding that two subclasses were rationally

21 distinguished by events occurring on a certain date). Thus, while Dr. Chen’s reports may well

22 have been deficient before that date, class members for whom Dr. Chen prepared a report before

23 September 2011 may require extra evidentiary support for their claims. This distinction reflects a

24 reasonable compromise.

25

6. Notice Procedure

26

“Courts typically require less notice in Rule 23(b)(2) actions, as their outcomes do not

27 truly bind class members.” Lilly v. Jamba Juice Co., No. 13-cv-2998-JST, 2015 WL 1248027, at

28 *8 (N.D. Cal. Mar. 18, 2015). As the Supreme Court has stated, “[t]he Rule provides no 14

1 opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District

2 Court to afford them notice of the action.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362

3 (2011). Yet the Court “may direct appropriate notice to the class.” Fed. R. Civ. P. 2(c)(2).

4

When, for instance, “the settlement provides for only injunctive relief, and, therefore, there

5 is no potential for the named plaintiffs to benefit at the expense of the rest of the class,” notice “is

6 not uniformly required.” Green v. Am. Express Co., 200 F.R.D. 211, 212-13 (S.D.N.Y. 2001).

7 Such is the case here, as the settlement provides for injunctive relief and a readjudication process.

8 Unlike in Lilly, however, in this case class members are releasing all of their claims in exchange

9 for settlement relief. Lilly, 2015 WL 1248027, at *8 (“[T]he settlement does not release the

10 monetary claims of class members.”).

11

In any case, the parties have proposed that notice be provided to the class. This is wise,

United States District Court Northern District of California

12 since class members’ will have to take affirmative action if they desire their claims to be reopened,

13 and will subsequently be notified via the claim form procedure if the settlement agreement is

14 finally approved. First, notice is to be published, at Defendant’s expense, in three newspapers of

15 general circulation. ECF No. 76 at 18. Plaintiffs’ counsel will also disseminate notice of the

16 settlement to “several organizations that are likely to interact with class members,” and “provide

17 adequate notice of the proposed class settlement so that interested parties may object to its

18 reasonableness.” Id. The Court agrees that individual notice of the settlement is not required

19 because class members are not afforded an opportunity to opt out. Fed. R. Civ. P. 23(c)(2). In

20 response to Plaintiffs’ request, the Court will order publication of this Publication Notice.

21

7. Claim Form Procedure

22

If the Court approves the settlement agreement, the parties will send notice and

23 corresponding “Request Forms” to “individual class members based on the relief afforded to

24 them.” ECF No. 76 at 19. The Notice forms will be sent to class members’ last known address,

25 will describe their procedural status within the SSA process, apprise them of the opportunity and

26 risks associated with reopening their claims, advise claimants that they can have a representative

27 help with his or her claim and that the claimant may want to speak to that representative before

28 returning the request form, and includes an option to submit a different address. Id.; ECF No. 7615

1 1, Exh. A. The Claim Forms require that class members return the forms within 30, 90, or 180

2 days, depending on their subclass, if they wish for their claims to be reopened. Id. It is fair and

3 reasonable to require claim forms to enable the class members to make a choice as to whether to

4 reopen their claims.

5

8. Notice Provision for Objections

6

The Notice of Settlement contains a section entitled, “What Can You Do If You Object To

7 The Settlement Or Have Other Comments?” ECF No. 76-1 at 76. Consistent with the Northern

8 District’s Procedural Guidance for Class Action Settlements,

9 http://www.cand.uscourts.gov/ClassActionSettlementGuidance, the parties are ordered to amend

10 that section of the Notice to read as follows:

United States District Court Northern District of California

11

You can ask the Court to deny approval by filing an objection. You can’t ask the

Court to order a larger or different settlement; the Court can only approve or deny

12

the settlement. If the Court denies approval, no relief will be awarded to the class

and the lawsuit will continue. If that is what you want to happen, you must object. 13

You may object to the proposed settlement in writing. You may also appear at the

14

Final Approval Hearing, either in person or through your own attorney. If you

appear through your own attorney, you are responsible for paying that attorney. All

15

written objections and supporting papers must (a) clearly identify the case name

and number (Hart v. Colvin, Case Number 3:15-cv-00623-JST), (b) be submitted to

16

the Court either by mailing them to the Class Action Clerk, United States District

Court for the Northern District of California, 450 Golden Gate Avenue, San

17

Francisco, CA 94102, or by filing them in person at any location of the United

States District Court for the Northern District of California, and (c) be filed or

18

postmarked on or before February 10, 2017.”

19

CONCLUSION

20

The Motion for Preliminary Approval of Class Action Settlement Agreement is granted.

21 The Court therefore orders as follows:

22

1. The Court preliminarily approves the agreement set forth in the Settlement

23 Agreement. See ECF No. 76-1.

24

2. The class certified in the Court’s prior order, ECF No. 50, is modified to be defined

25 as follows:

26

[A]ll persons whose SSI or SSDI benefits were either denied or terminated and for

27

whom a consultative examination was prepared by Dr. Frank Chen, and all persons who received a partially favorable decisions or determination on their claim for SSI

28

or SSDI benefits and for whom a consultative examination was prepared by Dr.

16

Chen. 1

2

3. The Court sets the following dates and deadlines:

3

Deadline

Action

4 Thirty (30) calendar days after the Defendant delivers the Publication Notice Court enters the Preliminary
5 Approval Order

6 Sixty (60) calendar days after the Plaintiffs’ Motion for Final Approval 7 Court enters the Preliminary
Approval Order

8

Fourteen (14) calendar days after Defendant’s Memorandum in Support of Final Approval due,

9 Plaintiff files Motion for Final

if any

Approval 10

11

Ninety (90) calendar days after the Deadline for objections Court enters the Preliminary

12 Approval Order

United States District Court Northern District of California

13 Fifteen (15) calendar days prior to Replies due in support of motion for Final Approval
Final Approval Hearing 14

15

4. The Court sets the Final Approval Hearing for March 16, 2017 at 2:00 p.m.

16

IT IS SO ORDERED.

17 Dated: November 9, 2016

18

19

______________________________________

JON S. TIGAR

20

United States District Judge

21

22

23

24

25

26

27

28 17

 
 Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 1 of 83
Exhibit 1

Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 2 of 83

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

KEVIN HART, NINA SILVA-COLLINS and LEE HARRIS, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, in her official capacity,
Defendant.

Case No. 3:15-cv-00623-JST

AMENDED SETTLEMENT AGREEMENT
WHEREAS, Plaintiffs are individuals whose Social Security Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income (“SSI”) payments were either denied or terminated and for whom a consultative examination (“CE”) was prepared by Dr. Frank Chen. On February 9, 2015, Plaintiffs, on behalf of a putative class, filed against Carolyn W. Colvin, Acting Commissioner of Social Security in her official capacity (the “Acting Commissioner” or “SSA”), a Complaint alleging that SSA improperly relied on CEs from Frank Chen, M.D. Frank Chen performed consultative examinations for the California Disability Determination Service Division (“DDS”) from 2007 through 2013. As of December 30, 2013, the California DDS removed Dr. Chen from its panel of consultative examination providers for reasons related to the quality of his reports, the thoroughness of his examinations, and his manner toward claimants.
1

Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 3 of 83
This Complaint and related allegations are hereinafter referred to as “the Case”;
WHEREAS, the Acting Commissioner expressly denies any wrongdoing, as alleged in the Case or otherwise, and does not admit or concede any actual or potential fault, wrongdoing or liability in connection with any facts or claims that have been or could have been alleged in the Case. Nonetheless, the Acting Commissioner considers it desirable to settle the Case on the terms set forth in this Settlement Agreement;
WHEREAS, Plaintiffs and the Acting Commissioner (collectively “the Parties”) wish to avoid further litigation in this matter and to bring the Case to a close, and have determined to settle the Case, including all claims that Plaintiffs, the certified Class (as defined below), and the members of that Class have brought or could have brought in the Case;
NOW, THEREFORE, in reliance on the mutual promises, covenants, releases, and obligations as set out in this Settlement Agreement, and for good and valuable consideration, the Parties hereby stipulate and agree to resolve all claims that were or could have been at issue in this Case as follows: I. DEFINITIONS
As used in this Settlement Agreement:
A. The terms “ALJ” and “an administrative law judge” refer to an individual appointed in accordance with 5 U.S.C. § 3105, who conducts hearings and makes decisions on claims filed under Titles II and XVI of the Social Security Act (hereinafter referred to as “the Act”).
B. The term “Appeals Council” refers to the component of SSA’s Office of 2

Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 4 of 83
Disability Adjudication and Review that, under direct delegation from the Commissioner of Social Security, provides the final level of administrative review for claims filed under Titles II and XVI of the Act.
C. The term “Class Member” refers to an individual who meets the criteria set forth in section II.
D. The term “Commissioner” refers to the Commissioner of Social Security, whether that individual be Commissioner or Acting Commissioner, as the case may be.
E. The term “current pay status” refers to the status of a Class Member who, despite a denial (or partial denial) of a claim for SSI or DIB (or a termination of his or her SSI or DIB) on an application for which the individual was examined by Dr. Chen, receives DIB or SSI benefits or payments as of October 14, 2015 (or, if awarded DIB, did receive such benefits until the individual converted to retirement insurance benefits once he or she reached full retirement age).
F. The term “days” means calendar days. G. The “date the Class Member receives” a notice refers to the date five (5) days after the date on the notice, unless the Class Member establishes that the notice was received at a later date. H. The “date of final approval” refers to the date on which an order granting final approval of this Settlement Agreement is entered, via the Electronic Case Filing System of the U.S. District Court for the Northern District of California, on the docket of the Case.
3

Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 5 of 83
I. The “date on which the Settlement becomes effective” refers to the date as of which no timely appeals may be taken from the Court’s order granting final approval of this Settlement Agreement, and as of which any and all timely appeals of such an order have been resolved.
J. The term “DIB” refers to disability insurance benefits provided under the Social Security Disability Insurance (“SSDI”) program pursuant to Title II of the Act.
K. The term “Disability Processing Unit” refers to the Social Security Administration component with primary responsibility for readjudicating Group 1 claims for individuals whose final determination did not proceed past the initial or reconsideration levels, and Group 2 claims for individuals who qualify for a “Lookback Assessment” (as defined in Section III.B.2.b of this Settlement Agreement).
L. The term “final decision or determination” refers to a decision or determination, as those terms are defined by the regulations at 20 C.F.R. §§ 404.901 and 416.1401, that has become binding either through completion of the steps of the administrative review process defined by the regulations at 20 C.F.R. §§ 404.900 and 416.1400, resulting in a final decision of the Commissioner, or by the individual’s failure to timely request the next level of administrative review pursuant to the Commissioner’s regulations at 20 C.F.R. §§ 404.909, 404.933, 404.968, 416.1409, 416.1433, and 416.1468. Where the final determination is rendered at the initial administrative level, the date of the initial determination is the date of the final decision or determination. Where the final determination is rendered at the reconsideration level, the date of the reconsideration determination is the date of the final decision or determination. Where the final decision is rendered by an ALJ and either the
4

Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 6 of 83
claimant did not seek Appeals Council review or the Appeals Council denied or dismissed the claimant’s request for review, the date of the final decision or determination is the date of the ALJ’s decision. Where the final decision is rendered by the Appeals Council (meaning that the Appeals Council reviewed the ALJ’s decision and rendered a decision on the merits), the date of the Appeals Council’s decision is the date of the final decision or determination. If, prior to the date of final approval, the claimant appealed a final decision of the Commissioner to a federal court pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3), and (1) that case is remanded by the court upon motion by the claimant pursuant to Section III.A.2.d or Section III.B.2.c.; or (2) the court grants relief from judgment upon motion by the claimant pursuant to Section III.A.2.d or Section III.B.2.c., then the date of the final decision or determination is (1) if review was denied by the Appeals Council, the date of the ALJ’s decision; or (2) if review was granted by the Appeals Council, the date of the Appeals Council’s decision.
M. The term “Partially Favorable decision or determination” refers to a final decision or determination finding that an individual was disabled on a claim for which he or she was examined by Dr. Chen, but not for the full period of time alleged.
N. A “previously-adjudicated period” refers to the period of time between the date of an individual’s alleged onset of disability on the claim for which an Unfavorable decision or determination (as that term is defined in Section R), or a Partially Favorable decision or determination (as that term is defined in Section M), was rendered and the date of the Unfavorable decision or determination or Partially Favorable decision or determination, as applicable. A “previously-adjudicated period” also refers to the period between the date an individual is determined to have medically improved and the date of the Unfavorable decision or determination finding that the individual’s disability has ended.
5

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O. The terms “section” and “paragraph” refer to the numbered and lettered parts of this Settlement Agreement, respectively.
P. The term “SSA” refers to the Social Security Administration.
Q. The terms “SSI” and “SSI payments” refer to payments based on disability provided under the Supplemental Security Income program pursuant to Title XVI of the Act.
R. The term “Unfavorable decision or determination” refers to a final decision or determination finding that an individual was not disabled on a claim for which he or she was examined by Dr. Chen. “Unfavorable decision or determination” also refers to a final decision or determination finding that an individual who was previously awarded DIB or SSI is no longer disabled, upon a continuing disability review in which the individual was examined by Dr. Chen.
II. CLASS A. Rule 23(b)(2) Class Defined: Pursuant to Federal Rule of Civil Procedure
23(b)(2), the Court has certified a plaintiff class consisting of all persons whose SSI or SSDI benefits were either denied or terminated and for whom a consultative examination was prepared by Dr. Frank Chen. Solely for purposes of the settlement of this Case, the parties have agreed to amend the class definition, and will request that the Court in approving this Settlement Agreement amend the certified class, so that the plaintiff class is defined as consisting of “all persons whose SSI or SSDI benefits were either denied or terminated and for whom a consultative examination was prepared by Dr. Frank Chen, and all persons who received a partially favorable decision or determination on their claim for SSI or SSDI benefits
6

Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 8 of 83
and for whom a consultative examination was prepared by Dr. Chen.” In this Settlement Agreement, the plaintiff class as amended by this Section II.A is referred to as “the Class” and members of the Class are referred to as “Class Members.”
B. Settlement Agreement Binding on Class Members: As of the date on which the Settlement becomes effective, all Class Members are bound by the terms of the Settlement Agreement.
III. INDIVIDUAL RELIEF A. Group 1 Readjudication Relief for Class Members With Closed Claims Who
Were Examined by Dr. Chen On or After January 1, 2011 1. Eligibility for Group 1 Readjudication Relief: A Class Member eligible for
Group 1 readjudication relief (“Group 1 claimant”) is someone who filed a claim for DIB or SSI or both; who, as part of that claim (or as part of a continuing disability review), underwent a consultative examination performed by Dr. Frank Chen on or after January 1, 2011; who received an Unfavorable decision or determination on that claim (or that continuing disability review), or a Partially Favorable decision or determination on that claim, on or before the date of final approval; and who is not in current pay status. A person who meets all of the requirements for eligibility in the preceding sentence and who, prior to the date of final approval, appealed a final decision of the Commissioner to a federal court pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3), is a Group 1 claimant only if he or she (1) obtains a judicial remand of that case upon motion by the claimant pursuant to Section 2.d; or (2) obtains relief from judgment in that case upon motion by the claimant pursuant to Section 2.d.
2. Group 1 Readjudication Relief – Readjudication Process: A Group 1 claimant 7

Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 9 of 83
will be entitled to readjudication of his or her Unfavorable decision or determination or Partially Favorable decision or determination, provided the Group 1 claimant requests this relief within the time limit set forth in Section III.A.3 (for a Group 1 claimant who received an Unfavorable decision or determination) or Section III.A.4 (for a Group 1 claimant who received a Partially Favorable decision or determination) below. Any Group 1 claimant whose claim history reflects more than one basis for Group 1 eligibility (i.e., satisfaction of all of the conditions in paragraph III.A.1 above) and who proceeds through the readjudication process will proceed based on the earliest of his or her Group 1 eligibility bases. The process for readjudication shall be as follows:
(a) For Group 1 claimants whose Unfavorable decision or determination or Partially Favorable decision or determination was rendered at the DDS level: Every Group 1 claimant who timely requests readjudication relief will be provided with forms that will provide him or her with the opportunity to submit supplemental evidence relating to the previously-adjudicated period within sixty (60) days from receipt of the forms. The forms shall include a notification that a Group 1 claimant may, prior to the expiration of the 60-day period, request a reasonable extension of time to submit supplemental evidence relating to the previously-adjudicated period.
Such supplemental information and evidence may include a re-articulation of the nature of the impairment(s) that existed during the previously-adjudicated period, the disclosure of medical providers who have information that bears on the claimant’s condition during the previously-adjudicated period, and medical or other evidence that relates to his or her condition during the previouslyadjudicated period. Within 60 days of the date of final approval, SSA will
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provide to Class counsel a draft copy of the forms for submission of supplemental evidence. Within three business days of receiving these draft forms, Class counsel may provide comments on these draft forms to SSA, and SSA will consider those comments in good faith, but shall have no obligation to implement or accept any comments or changes from Class counsel. No Group 1 claimant will be obliged to provide any additional information in order to receive a readjudication, and if a Group 1 claimant elects not to provide additional information, he or she may proceed exclusively on the record that was created during his or her previous application process, as further described in this paragraph. Through its Disability Processing Unit, SSA will readjudicate claims by considering the original record and any supplemental information or evidence submitted by the Class Member that relates to the previously-adjudicated period, but without considering the consultative examination report prepared by Dr. Frank Chen. No consultative examinations will be purchased by SSA with respect to readjudication of the previously-adjudicated period. If, as a result of the readjudication, the Class Member is found to have been disabled for the previously-adjudicated period, or any portion thereof, he or she will receive the appropriate award of DIB or SSI back benefits or payments for the period of disability demonstrated. In addition, the Class Member, if found to have been disabled for the previously-adjudicated period (but not for a closed period of disability that is within the previously-adjudicated period and whose end date is before the end date of the previously-adjudicated period), may attempt to demonstrate that his or her disability continues to exist into the period after the
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previously-adjudicated period, up to and including the date of the readjudication, through use of supplemental evidence; as part of this process of demonstrating continuing disability into the period after the previously-adjudicated period, if SSA in its discretion deems it appropriate, SSA may order a consultative examination to assess the Class Member’s current medical condition. If the Class Member successfully demonstrates that his or her disability continues forward through the date of the readjudication decision, he or she will receive the appropriate award of back benefits or payments from the end of the previouslyadjudicated period through the date of the readjudication decision, as well as appropriate current benefits or payments (subject to continuing disability reviews, reporting responsibilities, and any other rules and procedures generally applicable to recipients of DIB or SSI). Likewise, if the Class Member successfully demonstrates that his or her disability continues forward, but only for a closed period that does not continue forward to the date of the readjudication decision, he or she will receive the appropriate award of back benefits or payments from the end of the previously-adjudicated period to the end of the closed period demonstrated. Notwithstanding the foregoing, to the extent that the Class Member has an application for DIB or SSI pending at the time of the readjudication, SSA will not consider the period of disability alleged in that pending application in the readjudication.
(b) For Group 1 claimants whose Unfavorable decision or determination or Partially Favorable decision or determination was rendered at the ALJ level: As part of the readjudication process for Group 1 claimants who timely request
10

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readjudication relief and whose pertinent Unfavorable decision or determination or Partially Favorable decision or determination was rendered at the ALJ level, SSA will review the prior ALJ decision to assess whether Dr. Frank Chen’s CE report was explicitly afforded no weight in the analysis. A new hearing will not be scheduled for a claimant if Dr. Chen’s report was explicitly afforded no weight by the adjudicator, or if the decision was rendered for failure to meet non-medical criteria; the readjudication process will conclude for such a claimant. A hearing will be scheduled for all other claimants. For any claimant for whom a new hearing is scheduled, the claimant will be provided forms that provide him or her with the opportunity to submit supplemental evidence relating to the claim of disability that was previously denied. Such supplemental information and evidence may include a re-articulation of the nature of the impairment(s) that existed during the previously-adjudicated period, the disclosure of medical providers who have information that bears on the claimant’s condition during the previously-adjudicated period, and medical or other evidence that relates to his or her condition during the previously-adjudicated period. Within 60 days of the date of final approval, SSA will provide to Class counsel a draft copy of the forms for submission of supplemental evidence. Within three business days of receiving these draft forms, Class counsel may provide comments on these draft forms to SSA, and SSA will consider those comments in good faith, but shall have no obligation to implement or accept any comments or changes from Class counsel. No Group 1 claimant will be obliged to provide any additional information in order to receive a new hearing, and if a Group 1 claimant elects not to provide
11

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additional information, he or she may proceed on the record that was created during his or her previous application process, as further described in this paragraph. At the same time, should the Group 1 claimant allege that he or she is disabled at the date of the readjudication, the claimant will be asked to provide updated disability information pertaining to his or her current condition as well. At the hearing, the ALJ will have the discretion to take evidence for both the previously-adjudicated period and the current period (or any part thereof), should the ALJ find that most efficient in light of the circumstances of the case. The ALJ also may exercise his or her usual discretion to engage a vocational expert, procure a CE report, engage a medical expert, and the like. If, as a result of the readjudication, the Group 1 claimant is found to have been disabled for the previously-adjudicated period, or any portion thereof, he or she will receive the appropriate award of back benefits or payments for the period of disability demonstrated. If the Group 1 claimant is found to have been disabled for the previously-adjudicated period (but not for a closed period of disability that is within the previously-adjudicated period and whose end date is before the end date of the previously-adjudicated period), should that Group 1 claimant also successfully demonstrate that his or her disability continues forward through the date of the readjudication decision, he or she will receive the appropriate award of back benefits or payments from the end of the previously-adjudicated period through the date of the readjudication decision, as well as appropriate current benefits or payments (subject to continuing disability reviews, reporting responsibilities, and any other rules and procedures generally applicable to
12

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recipients of DIB or SSI). Likewise, if the Group 1 claimant successfully demonstrates that his or her disability continues forward, but only for a closed period that does not continue forward to the date of the readjudication decision, he or she will receive the appropriate award of back benefits or payments from the end of the previously-adjudicated period to the end of the closed period demonstrated. Notwithstanding the foregoing, to the extent that the Class Member has an application for DIB or SSI pending at the time of the readjudication, SSA will not consider the period of disability alleged in that pending application in the readjudication.
(c) For Group 1 claimants who requested review of the ALJ’s decision by the Appeals Council or for whom the Appeals Council took review on its own motion: As part of the readjudication process for Group 1 claimants who timely request readjudication relief and whose pertinent Unfavorable decision or determination or Partially Favorable decision or determination was rendered at the Appeals Council level, or who requested Appeals Council review of an Unfavorable decision or determination or Partially favorable decision or determination rendered at the ALJ level, SSA will review the Unfavorable decision or determination or Partially Favorable decision or determination to assess whether Dr. Frank Chen’s CE report was explicitly afforded no weight in the analysis. A new ALJ hearing will not be scheduled for a claimant if Dr. Chen’s report was explicitly afforded no weight by the adjudicator, or if the decision was rendered for failure to meet non-medical criteria; and the readjudication process will conclude for such a claimant. The Appeals Council
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will issue an Order of Remand to the ALJ, and a new hearing will be scheduled, for all other claimants. For any claimant for whom a new hearing is scheduled, the claimant will be provided forms that provide him or her with the opportunity to submit supplemental evidence relating to the claim of disability that was previously denied. Such supplemental information and evidence may include a re-articulation of the nature of the impairment(s) that existed during the previously-adjudicated period, the disclosure of medical providers who have information that bears on the claimant’s condition during the previouslyadjudicated period, and medical or other evidence that relates to his or her condition during the previously-adjudicated period. Within 60 days of the date of final approval, SSA will provide to Class counsel a draft copy of the forms for submission of supplemental evidence. Within three business days of receiving these draft forms, Class counsel may provide comments on these draft forms to SSA, and SSA will consider those comments in good faith, but shall have no obligation to implement or accept any comments or changes from Class counsel. No Group 1 claimant will be obliged to provide any additional information in order to receive a new hearing, and if a Group 1 claimant elects not to provide additional information, he or she may proceed on the record that was created during his or her previous application process, as further described in this paragraph. At the same time, should the Group 1 claimant allege that he or she is disabled at the date of the readjudication, the claimant will be asked to provide updated disability information pertaining to his or her current condition as well. At the hearing, the ALJ will have the discretion to take evidence for both the
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previously-adjudicated period and the current period (or any part thereof), should the ALJ find that most efficient in light of the circumstances of the case. The ALJ also may exercise his or her usual discretion to engage a vocational expert, procure a CE report, engage a medical expert, and the like. If, as a result of the readjudication, the Group 1 claimant is found to have been disabled for the previously-adjudicated period, or any portion thereof, he or she will receive the appropriate award of back benefits or payments for the period of disability demonstrated. If the Group 1 claimant is found to have been disabled for the previously-adjudicated period (but not for a closed period of disability that is within the previously-adjudicated period and whose end date is before the end date of the previously-adjudicated period), should that Group 1 claimant also successfully demonstrate that his or her disability continues forward through the date of the readjudication decision, he or she will receive the appropriate award of back benefits or payments from the end of the previously-adjudicated period through the date of the readjudication decision, as well as appropriate current benefits or payments (subject to continuing disability reviews, reporting responsibilities, and any other rules and procedures generally applicable to recipients of DIB or SSI). Likewise, if the Group 1 claimant successfully demonstrates that his or her disability continues forward, but only for a closed period that does not continue forward to the date of the readjudication decision, he or she will receive the appropriate award of back benefits or payments from the end of the previously-adjudicated period to the end of the closed period demonstrated. Notwithstanding the foregoing, to the extent that the Class
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Member has an application for DIB or SSI pending at the time of the readjudication, SSA will not consider the period of disability alleged in that pending application in the readjudication.
(d) For claimants who appealed a final decision of the Commissioner to federal court: Certain claimants appealed their final decisions to a federal court pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3) prior to the date of final approval. For any such claimant, assuming he or she otherwise meets the eligibility criteria to be a Group 1 claimant, as set forth in Section III.A.1, and submits a timely request for readjudication pursuant to Section III.A.3 or Section III.A.4 below, as applicable, SSA agrees to take the procedural steps described below upon request from the claimant or his or her counsel in the federal court case to counsel for SSA in the federal court case. For a claimant whose case is pending in federal court at the time of the request, SSA will file a notice of non-opposition in response to a motion for remand to the agency for further proceedings so long as (1) the motion is filed within ninety (90) days of the date the claimant receives Notice A or Notice A2 (as described below); (2) the basis for that motion is that the agency has entered into this Settlement Agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and (3) SSA determines that Dr. Chen’s report was afforded weight (i.e., more than no weight) in the ALJ’s analysis. For a claimant whose case has resulted in a final judgment affirming the final decision of the Commissioner at the time of the request, the claimant may file a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). So long as
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(1) the Rule 60(b)(6) motion is filed within ninety (90) days of the date the claimant receives Notice A or Notice A2 (as described below); and (2) the basis for that motion is that the agency has entered into this Settlement Agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and (3) SSA determines that Dr. Chen’s report was afforded weight (i.e., more than no weight) in the ALJ’s analysis, SSA will file a notice of non-opposition in response to such a motion. SSA reserves its right to oppose any motion for remand or motion for relief from judgment on any basis other than the agency’s entering into this Settlement Agreement.
All completed Group 1 readjudication decisions or determinations that address the claimant’s disability on the merits will be subject to administrative or judicial review under the statutes, rules, and regulations applicable to determinations and decisions and set forth at 42 U.S.C. §§ 405(g) and 1383(c)(3), and 20 C.F.R. §§ 404.929, 404.967, 416.1429, and 416.1467, with the exception that there will be no “reconsideration” step. Therefore, Group 1 claimants who receive a readjudication of a claim previously adjudicated at the DDS level may proceed to request an ALJ hearing without first seeking reconsideration of that readjudicated claim.
3. Group 1 Readjudication Relief -- Time to Request Readjudication: Except for Group 1 claimants seeking readjudication of a Partially Favorable decision or determination (discussed separately in Section III.A.4 below), in order to receive a readjudication, a Group 1 claimant must affirmatively request readjudication within ninety (90) days after the date he or she receives the notice informing him or her of his or her right to relief (described herein as “Notice A”), using the procedures described in that notice, unless the claimant demonstrates to
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the satisfaction of SSA that this ninety (90)-day deadline was missed for good cause. The Disability Processing Unit will evaluate good cause using the standards set forth in 20 C.F.R. §§ 404.911 and 416.1411. Determinations that good cause is lacking are final and not subject to further review.
4. Special Procedures for Group 1 claimants who received Partially Favorable decisions or determinations: In order to receive a readjudication, a Group 1 claimant seeking readjudication of a Partially Favorable decision or determination must affirmatively request readjudication within one hundred eighty (180) days after the date he or she receives the notice informing him or her of his or her right to relief (described herein as “Notice A2”), using the procedures described in that notice, unless the claimant demonstrates to the satisfaction of SSA that this 180-day deadline was missed for good cause. The Disability Processing Unit will evaluate good cause using the standards set forth in 20 C.F.R. §§ 404.911 and 416.1411. Determinations that good cause is lacking are final and not subject to further review.
5. Notice of Group 1 Readjudication Relief for Group1 Claimants With Unfavorable decisions or determinations (“Notice A”): Attached to this Settlement Agreement is Notice A (Exhibit A), the language of which has been agreed to by the Parties. Personal information such as a Class Member’s address, appropriate field office, and similar information, will be included by SSA in Notice A. Contact information for Class counsel will be included by Class counsel where indicated in Notice A. SSA shall send Notice A by first class mail with a designated post office box as the return address within ninety (90) days after the date on which the Settlement becomes effective to the last known address in the “case information” section of the electronic claim file, or the pertinent disability application in the paper claim file, for each Class Member identified by SSA as potentially eligible for Group 1 readjudication relief who
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received an Unfavorable decision or determination. Prior to sending Notice A, SSA shall match the addresses in its records for all Class Members who are not in current pay status against the U.S.P.S. National Change of Address (NCOA) file. Notice A will be sent in standard print format and, in addition, will be sent in Spanish to those individuals whose claims files indicate an existing record of receiving Notices in that language, and will be sent to individuals who have an existing election for a special notice option for the blind or visually impaired in the Special Notice Options format elected, pursuant to POMS NL 01001.001, 01001.010. Notice A, in addition to describing the potential relief available and the necessary steps to be taken, will also advise the Class Member of his or her right to retain a representative to assist with his or her claim. If mail is returned as undeliverable, SSA will query the Supplemental Security Record/Master Beneficiary Record, and, if necessary, contact the field office to request any updated address information the field office may have. If an updated address for the Class Member is found, SSA will mail another copy of Notice A to the Class Member at the updated address found. SSA shall bear the cost of printing and mailing copies of Notice A. Where, sixty (60) days after the mailing of Notice A, SSA records indicate that a Class Member to whom Notice A was mailed and not returned as undeliverable has not returned the required form that accompanied Notice A, SSA will mail a letter indicating that a time-sensitive form had been mailed to them 60 days earlier, summarizing information from the correspondence, and including a copy of Notice A. Receipt of, or a request for, another copy of Notice A shall not operate to toll or otherwise enlarge the time for return of the claim form.
6. Notice of Group 1 Readjudication Relief for Group1 Claimants With Partially Favorable decisions or determinations (“Notice A2”): Attached to this Settlement Agreement is Notice A2 (Exhibit A2), the language of which has been agreed to by the Parties. Personal
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information such as a Class Member’s address, appropriate field office, and similar information, will be included by SSA in Notice A2. Contact information for Class counsel will be included by Class counsel where indicated in Notice A2. SSA shall send Notice A2 by first class mail with a designated post office box as the return address within ninety (90) days after the date on which the Settlement becomes effective to: the last known address in the “case information” section of the electronic claim file, or the pertinent disability application in the paper claim file, for each Class Member identified by SSA as potentially eligible for Group 1 readjudication relief who received a Partially Favorable decision or determination. If so elected by a Class Member on the Representative Notification Request Form, SSA will also mail a copy of Notice A2 to the representative, if any, who assisted the Class Member on the prior claim, so long as that representative has not been disqualified from appearing in Social Security matters. Prior to sending Notice A2, SSA shall match the addresses in its records for all Class Members who are not in current pay status against the U.S.P.S. National Change of Address (NCOA) file. Notice A2 will be sent in standard print format and, in addition, will be sent in Spanish to those individuals whose claims files indicate an existing record of receiving Notices in that language, and will be sent to individuals who have an existing election for a special notice option for the blind or visually impaired in the Special Notice Options format elected, pursuant to POMS NL 01001.001, 01001.010. Notice A2, in addition to describing the potential relief available and the necessary steps to be taken, will also advise the Class Member of his or her right to retain a representative to assist with his or her claim. Because readjudication of a Partially Favorable decision or determination has the potential to result in an unfavorable determination or decision on the claim, Notice A2 will apprise the claimant of such risk, advise the claimant to carefully evaluate such risk before deciding to return the claim form seeking a readjudication, and advise
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the claimant that he or she may wish to consult with counsel. If mail is returned as undeliverable, SSA will query the Supplemental Security Record/Master Beneficiary Record, and if necessary, contact the field office to request any updated address information the field office may have. If an updated address for the Class Member is found, SSA will mail another copy of Notice A2 to the Class Member at the updated address found. SSA shall bear the cost of printing and mailing copies of Notice A2. Receipt of, or a request for, another copy of Notice A2 shall not operate to toll or otherwise enlarge the time for return of the claim form.
B. Group 2 Relief for Class Members With Closed Claims Who Were Examined by Dr. Chen Between January 1, 2007 and December 31, 2010
1. Eligibility for Group 2 Relief: A Class Member eligible for Group 2 relief (“Group 2 claimant”) is someone who filed a claim for DIB or SSI or both; who, as part of that claim (or as part of a continuing disability review), underwent a consultative examination performed by Dr. Frank Chen between January 1, 2007 and December 31, 2010; who received an Unfavorable decision or determination on that claim (or that continuing disability review), or a Partially Favorable decision or determination on that claim, on or before the date of final approval; and who is not in current pay status. A person who meets all of the requirements for eligibility in the preceding sentence and who, prior to the date of final approval, appealed a final decision of the Commissioner to a federal court pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3), is a Group 2 claimant only if he or she (1) obtains a judicial remand of that case upon motion by the claimant pursuant to Section 2.c; or (2) obtains relief from judgment in that case upon motion by the claimant pursuant to Section 2.c. Class Members who are eligible to be Group 1 claimants are ineligible to be Group 2 claimants.
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Process: A Group 2 claimant will be invited to apply for SSI or DIB or both by timely returning a claim form and indicating on the form whether he or she is currently disabled. A Group 2 claimant who (1) timely returns the claim form; (2) indicates on the form that he or she is currently disabled; (3) files a current application for DIB and/or SSI within the time limit set forth in paragraph III.B.3 below; and (4) is found to be disabled upon adjudication of his or her current application, will then become entitled to a Lookback Assessment for the previouslyadjudicated period. The process for Group 2 relief shall be as follows:
a) Application for DIB and/or SSI Based on Present Disability Status: Each Group 2 claimant may file an application for DIB or SSI or both. This application shall be filed and pursued in the normal manner, using SSA’s online system if for DIB only, or telephone systems or by appearing at the appropriate SSA field office, and completing the forms that normally accompany or follow such applications. SSA will adjudicate these claims pursuant to the rules and regulations ordinarily applicable to disability claims. Decisions or determinations on these claims will be subject to administrative or judicial review under the rules and regulations applicable to determinations and decisions and set forth at 42 U.S.C. §§ 405(g) and 1383(c)(3), and 20 C.F.R. §§ 404.902, 404.907, 404.929, 404.967, 416.1402, 416.1407, 416.1429, and 416.1467.
b) Lookback Assessment: For a Group 2 claimant who (1) timely returns the claim form; (2) indicates on the form that he or she is currently disabled and intends to file a current application for DIB and/or SSI; (3) files a current application for DIB and/or SSI within the time limit set forth in paragraph III.B.3 below; and (4) receives a favorable or partially favorable decision on his or her current 22

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application, SSA’s Disability Processing Unit will conduct a Lookback Assessment. No Lookback Assessment will be initiated until after any agency review of the current application has been completed and the decision or determination has been effectuated. In conducting the Lookback Assessments, SSA will evaluate the record, but without considering the consultative examination report prepared by Dr. Chen, and will request that the individual submit any additional evidence relevant to the Lookback Assessment Period (defined below). Additional consultative examinations will not be ordered as part of this Lookback Assessment. The Lookback Assessment will address a “Lookback Assessment Period.” The Lookback Assessment Period means either (1) in the case of an eligible Group 2 claimant who received an Unfavorable decision or determination, the previously-adjudicated period, which begins on the alleged onset date and ends on the date of the Unfavorable decision or determination; (2) in the case of an eligible Group 2 claimant who received a Partially Favorable decision or determination, the previously-adjudicated period, which begins on the alleged onset date and ends on the date of the Partially Favorable decision or determination; or (3) in the case of a termination of benefits or payments upon a continuing disability review in which the individual was examined by Dr. Chen, the previously-adjudicated period, which begins on the date the individual is determined to have medically improved and the date of the final decision or determination finding that disability has ended. A Lookback Assessment is a readjudication of the Lookback Assessment Period; if, as a result of a Lookback Assessment, a Group 2 claimant is found to have been disabled for
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the Lookback Assessment Period, or any portion thereof, he or she will receive the appropriate award of back benefits or payments for the period of disability demonstrated. A Lookback Assessment does not include a readjudication of any period between the date of the Unfavorable decision or determination or the Partially Favorable decision or determination, as the case may be, and the date as of which benefits or payments are awarded on the Group 2 claimant’s current application; back benefits or payments for this intervening period are not available as part of the Lookback Assessment. The determination made by the Disability Processing Unit on a Lookback Assessment will be final and not subject to further administrative or judicial review.
c) For claimants who appealed a final decision of the Commissioner to federal court: Certain claimants appealed their final decisions to a federal court pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3) prior to the date of final approval. For any such claimant, assuming he or she otherwise meets the eligibility criteria to be a Group 2 claimant, as set forth in Section III.B.2, and submits a timely request for relief pursuant to Section III.B.3 or Section III.B.4, as applicable, SSA agrees to take the procedural steps described below upon (1) request from the claimant or his or her counsel in the federal court case to counsel for SSA in the federal court case; and (2) confirmation that the Group 2 claimant has been awarded benefits on the current application and the decision or determination has been effectuated. For a claimant whose case is pending in federal court at the time of the request, SSA will file a notice of non-opposition in response to a motion for remand to the agency for further proceedings so long as (1) the motion is filed within ninety (90)
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days of the date on which the Group 2 claimant receives his or her award letter on his or her current application; (2) the basis for that motion is that the agency has entered into this Settlement Agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and (3) SSA determines that Dr. Chen’s report was afforded weight (i.e., more than no weight) in the ALJ’s analysis. For a claimant whose case has resulted in a final judgment affirming the final decision of the Commissioner at the time of the request, the claimant may file a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). So long as (1) the Rule 60(b)(6) motion is filed within ninety (90) days of the date on which the Group 2 claimant receives his or her award letter on his or her current application; (2) the basis for that motion is that the agency has entered into this Settlement Agreement under which the claimant is potentially eligible for relief, and that the claimant wishes to be eligible for consideration for such relief; and (3) SSA determines that Dr. Chen’s report was afforded weight (i.e., more than no weight) in the ALJ’s analysis, SSA will file a notice of non-opposition in response to such a motion. SSA reserves its right to oppose any motion for remand or motion for relief from judgment on any basis other than the agency’s entering into this Settlement Agreement.
3. Group 2 Relief -- Time to Submit Claim Form and to File Current Application: Except for Group 2 claimants with a Partially Favorable decision or determination (discussed separately in Section III.B.4 below), in order to be eligible for Group 2 relief, a Group 2 claimant must: (1) return the claim form that will be included with Notice B within ninety (90) days of the
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date the claimant receives Notice B (as described below), and indicate on that form that he or she is currently disabled; and (2) file a new application for DIB or SSI or both, within one hundred eighty (180) days of the date the claimant receives Notice B (as described below). Return of a properly completed claim form that conforms to the requirements of POMS GN 00204.010B will establish a protective filing date for the filing of the Group 2 claimant’s new application as of the date SSA receives the form, but does not operate to toll the time for filing the new DIB or SSI application. The claimant may also demonstrate, to the satisfaction of SSA, that the ninety (90)-day deadline for returning the claim form was missed for good cause. SSA will evaluate good cause using the standards set forth in 20 C.F.R. §§ 404.911 and 416.1411. Determinations that good cause is lacking are final and not subject to further review.
4. Special Procedures for Group 2 claimants with Partially Favorable determinations or decisions: In order for a Group 2 claimant who has received a Partially Favorable determination or decision to be eligible for Group 2 relief, he or she must: (1) return the claim form that will be included with Notice B2 (as described below) within one hundred eighty (180) days of the date the claimant receives Notice B2, and indicate on that form that he or she is currently disabled; and (2) file a new application for DIB or SSI or both, within one hundred eighty (180) days of the date the claimant receives Notice B2. Return of a properly completed claim form that conforms to the requirements of POMS GN 00204.010B will establish a protective filing date for the filing of the Group 2 claimant’s new application as of the date SSA receives the form, but does not operate to toll the time for filing the new DIB or SSI application. The claimant may also demonstrate, to the satisfaction of SSA, that the one hundred eighty (180)-day deadline for returning the claim form was missed for good cause. SSA will evaluate good cause using the standards set forth in 20 C.F.R. §§ 404.911 and 416.1411.
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Determinations that good cause is lacking are final and not subject to further review.
5. Notice of Group 2 Relief for Group 2 Claimants With Unfavorable decisions or determinations (“Notice B”): Attached to this Settlement Agreement is Notice B (Exhibit B), the language of which has been agreed to by the Parties. Personal information such as a Class Member’s address, appropriate field office, and similar information, will be included by SSA in Notice B. Contact information for Class counsel will be included by Class counsel where indicated in Notice B. SSA shall send Notice B by first class mail with a designated post office box as the return address within ninety (90) days after the date on which the Settlement becomes effective to the last known address in the “case information” section of the electronic claim file, or the pertinent disability application in the paper claim file, for each Class Member identified by SSA as potentially eligible for Group 2 relief. Prior to sending Notice B, SSA shall match the addresses in its records for all Class Members who are not in current pay status against the U.S.P.S. National Change of Address (NCOA) file. Notice B will be sent in standard print format and, in addition, will be sent in Spanish to those individuals whose claims files indicate an existing record of receiving Notices in that language, and will be sent to individuals who have an existing election for a special notice option for the blind or visually impaired in the Special Notice Options format elected, pursuant to POMS NL 01001.001, 01001.010. Notice B, in addition to describing the potential relief available and the necessary steps to be taken, will also advise the Class Member of his or her right to retain a representative to assist with his or her claim. If mail is returned as undeliverable, SSA will query the Supplemental Security Record/Master Beneficiary Record, and if necessary, contact the field office to request any updated address information the field office may have. If an updated address for the Class Member is found, SSA will mail another copy of Notice B to the Class Member at the updated
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address found. SSA shall bear the cost of printing and mailing copies of Notice B. Where, sixty (60) days after the mailing of Notice B, SSA records indicate that a Class Member to whom Notice B was mailed and not returned as undeliverable has not returned the required form that accompanied Notice B, SSA will mail a letter indicating that a time-sensitive form had been mailed to them 60 days earlier, summarizing information from the correspondence, and including a copy of Notice B. Receipt of, or a request for, another copy of the form shall not operate to toll or otherwise enlarge the time for return of the claim form.
6. Notice of Group 2 Readjudication Relief for Group 2 Claimants With Partially Favorable decisions or determinations (“Notice B2”): Attached to this Settlement Agreement is Notice B2 (Exhibit B2), the language of which has been agreed to by the Parties. Personal information such as a Class Member’s address, appropriate field office, and similar information, will be included by SSA in Notice B2. Contact information for Class counsel will be included by Class counsel where indicated in Notice B2. SSA shall send Notice B2 by first class mail with a designated post office box as the return address within ninety (90) days after the date on which the Settlement becomes effective to: the last known address in the “case information” section of the electronic claim file, or the pertinent disability application in the paper claim file, for each Class Member identified by SSA as potentially eligible for Group 2 readjudication relief. If so elected by a Class Member on the Representative Notification Request Form, SSA will also mail a copy of Notice B2 to the representative, if any, who assisted the Class Member on the prior claim, so long as that representative has not been disqualified from appearing in Social Security matters. Prior to sending Notice B2, SSA shall match the addresses in its records for all Class Members who are not in current pay status against the U.S.P.S. National Change of Address (NCOA) file. Notice B2 will be sent in standard print format and, in addition, will be
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sent in Spanish to those individuals whose claims files indicate an existing record of receiving Notices in that language, and will be sent to individuals who have an existing election for a special notice option for the blind or visually impaired in the Special Notice Options format elected, pursuant to POMS NL 01001.001, 01001.010. Notice B2, in addition to describing the potential relief available and the necessary steps to be taken, will also advise the Class Member of his or her right to retain a representative to assist with his or her claim. Because performing a Lookback Assessment of a Partially Favorable decision or determination has the potential to result in an unfavorable determination or decision on the claim, Notice B2 will apprise the claimant of such risk, advise the claimant to carefully evaluate such risk before deciding to return the claim form seeking a readjudication, and advise the claimant that he or she may wish to consult with counsel. If mail is returned as undeliverable, SSA will query the Supplemental Security Record/Master Beneficiary Record, and if necessary, contact the field office to request any updated address information the field office may have. If an updated address for the Class Member is found, SSA will mail another copy of Notice B2 to the Class Member at the updated address found. SSA shall bear the cost of printing and mailing copies of Notice B2. Receipt of, or a request for, another copy of Notice B2 shall not operate to toll or otherwise enlarge the time for return of the claim form.
C. Group 3 Relief for Class Members With Open Claims 1. Eligibility for Group 3 Relief: A Class Member eligible for Group 3 relief (“Group 3 claimant”) is someone (1) who filed a claim for DIB or SSI or both; (2) who, as part of that claim (or as part of a continuing disability review), underwent a consultative examination performed by Dr. Frank Chen; and (3) who received an unfavorable decision or determination on that claim (or that continuing disability review), or a partially favorable decision or
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determination on that claim, that, as of the date of final approval of this Settlement Agreement, is not a final decision or determination.
2. Group 3 Relief – Processing Guidance: Within twenty (20) days of the date on which the Settlement becomes effective, SSA will issue processing guidance to ALJs who will be handling claims of Group 3 claimants. The processing guidance will require ALJs to advise any Group 3 claimant who, at the time the guidance is issued, has not yet proceeded to hearing during his or her upcoming hearing that: (1) he or she received a CE from Dr. Chen, a provider who was later removed from the California DDS panel for reasons that include uncorrected deficiencies regarding the quality of his examination reports and the thoroughness of his examinations; (2) he or she has the option to have the report from Dr. Chen excluded from consideration in the forthcoming adjudication; and (3) the adjudicator has the discretion to consider whether ordering an additional CE is appropriate. The parties have negotiated and approved the language of this processing guidance to be issued to ALJs. SSA will provide Class counsel with a copy of this processing guidance. Group 3 claimants who have already proceeded to hearing but who have not received a decision from the ALJ at the time the processing guidance is issued will be provided the option to have Dr. Chen’s report excluded from consideration in the forthcoming adjudication. Claims of Group 3 claimants that are pending at the Appeals Council level at the date of final approval or thereafter will be remanded to an ALJ for processing in accordance with the processing guidance issued to ALJs unless the Appeals Council determines that the ALJ explicitly afforded no weight to Dr. Chen’s report in the analysis, or excluded Dr. Chen’s report from consideration (in which case the request for review will be processed pursuant to otherwise applicable regulations).
3. Notice of Group 3 Relief (“Notice C”): Attached to this Settlement Agreement is 30

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Notice C (Exhibit C), the language of which has been agreed to by the Parties. Personal information such as a Class Member’s address, appropriate field office, and similar information, will be included by SSA in Notice C. Contact information for Class counsel will be included by Class counsel where indicated in Notice C. No later than twenty (20) days after the date on which the settlement becomes effective, SSA shall send Notice C to the claimant; and the Class Member’s appointed representative, if any. Notice C will be sent in accordance with HALLEX I-2-3-45 (for Spanish-language notices) and HALLEX I-2-3-50 (for visual impairments). SSA shall bear the cost of printing and mailing copies of Notice C.
IV. PROSPECTIVE RELIEF A. Study of the California DDS CE Provider Processes and Recommendations for
Improvement: SSA will, within thirty (30) days of the date on which the Settlement becomes effective, begin a study of the processes through which it monitors the California DDS’s engagement, review, and retention of empaneled consultative examiners. The goal of the study, which SSA will complete within one (1) year and thirty (30) days of the date on which the Settlement becomes effective, will be to identify, for potential implementation, mechanisms to improve monitoring of the California DDS’s engagement, review, and retention of empaneled consultative examiners. SSA, through its counsel, will provide written notice to Plaintiffs’ counsel upon (1) the study’s commencement; and (2) its conclusion. Nothing in this paragraph precludes SSA from conducting further study of the California DDS beyond the timeframes set forth above.
B. Notice to Adjudicators in Open Claims of Disqualified California CE Providers: Within thirty (30) days after completion of the study referenced in Section IV.A above, SSA
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shall issue a document identifying processes for notifying adjudicators when an individual consultative examination provider previously engaged by the California DDS has been disqualified for conduct determined to undermine the reliability of that provider’s previouslyissued reports. The document will also identify, to the extent feasible, appropriate, and consistent with applicable law, processes for securing new consultative examinations and/or providing notice of such consultative examination provider’s disqualification to claimants, and their authorized representative, if any, with administratively open claims pending at the ALJ or Appeals Council levels and who were examined by the disqualified provider for that administratively open claim.
V. PROCEDURES FOR APPROVAL OF SETTLEMENT A. Preliminary approval: Following its execution, the Parties shall promptly present
the Settlement Agreement to the Court with a request that the Court preliminarily approve the Settlement Agreement. The Parties shall further request that upon any preliminary approval the Court schedule a hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure (hereinafter referred to as the “Fairness Hearing”), after which the Court will determine whether to grant its final approval of the Settlement Agreement.
B. Notice of Proposed Class Action Settlement and Fairness Hearing: Attached to this Settlement Agreement is a Notice of Proposed Class Action Settlement and Fairness Hearing (“Notice D”) (Exhibit D), the language of which has been agreed to by the Parties. Notice D contains a brief description of the claims advanced by Plaintiffs and SSA’s denial of liability for such claims, a summary of the terms of the proposed settlement, and information regarding the upcoming Fairness Hearing. Information related to the Fairness Hearing date and time, postmark deadline for written comments, and the manner of submission of certain
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comments will be included in Notice D where indicated following any preliminary approval by the Court.
C. Publication: Within thirty (30) days after the date on which the Court preliminarily approves the Settlement Agreement, SSA shall deliver for publication a copy of Notice D, or such other notice as ordered by the Court, to the following five (5) newspapers with instructions that the Notice be published at least once per week for three (3) successive weeks as a one-eighth (1/8th) page advertisement: San Francisco Chronicle, San Francisco Examiner, San Luis Obispo Tribune, Monterey Herald, and Santa Cruz Sentinel. Class counsel will also disseminate notice of the settlement to the organizations listed in Exhibit E. The parties agree that such publication of Notice D, if approved by the Court, shall satisfy the notice requirement of Rule 23(c)(2) and Rule 23(e)(1) of the Federal Rules of Civil Procedure.
VI. ENFORCEMENT A. Any party, including any member of the Class, may seek enforcement of this
Agreement (the “Enforcement Parties”). The parties agree that the process set forth in this Section is the exclusive process for remedying alleged violations of this Agreement. The parties further agree that no other litigation action in the Case, including but not limited to the filing of any motions or pleadings, may be taken except as set forth in this Section VI. While enforcement may be sought against SSA in accordance with this Section VI by a Class Member without being represented by Class counsel in such an enforcement effort, such a Class Member must first state in writing to SSA that he or she requested representation from Class counsel, but that Class counsel has declined to represent the Class Member in the enforcement effort. SSA shall have no obligation to respond to any enforcement effort until such time as the Class Member either secures representation by Class counsel or provides the
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required certification in writing to SSA.
B. In the event that one of the Enforcement Parties (the “Noticing Party”) believes that the other Enforcement Party (the “Receiving Party”) has not complied with a provision of this Agreement, the Noticing Party shall serve on the Receiving Party a written notice describing with particularity the alleged failure to comply. This notice must (1) identify the specific provision(s) of this Agreement that have allegedly been violated; (2) describe the errors or omissions upon which the alleged violation is based; and (3) identify reasonable measures that the Receiving Party can take to cure the alleged violation. The notice must be served promptly, and no later than sixty (60) days after the Noticing Party becomes aware, or reasonably should have become aware, of a potential violation.
C. Within sixty (60) days of the Responding Party’s receipt of a written notice from the Noticing Party, counsel for the Enforcement Parties will meet and confer in an effort to address the alleged failure to comply. Upon request, the Noticing Party will provide to the Receiving Party any reasonably available, non-privileged information that supports the alleged failure to comply.
D. If the Enforcement Parties are unable to resolve the alleged failure to comply, and the Noticing Party still wishes to pursue a remedy for the alleged violation of the Agreement, the Noticing Party shall request, no sooner than sixty (60) days after the date on which the notice was served, and no later than one hundred twenty (120) days after the date on which the notice was served, a mediation conference with Magistrate Judge Maria-Elena James. Should Judge James cease to be a Magistrate Judge for the United States District Court, Northern District of California, the Noticing Party shall request a mediation conference with the
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Magistrate Judge then assigned to this case, or, if no Magistrate Judge is assigned at that time, with whichever Magistrate Judge is assigned by the Clerk of Court following a request for such assignment by the Noticing Party. The Noticing Party shall serve its request for mediation conference on the Receiving Party at the time the request is made. The Receiving Party may at any time prior to sixty (60) days after the date on which the notice was served take the measures to cure the alleged violation that were identified by the Noticing Party in its notice, in which case no request for mediation conference may be made.
E. No later than sixty (60) days after the date of the mediation conference, the Noticing Party may request judicial enforcement of the provision that has allegedly been violated by filing a motion for enforcement with the Court, which motion shall be subject to the Local Civil Rules for the Northern District of California. The Receiving Party may at any time prior to thirty (30) days after the date of the mediation conference take the measures to cure the alleged violation that were identified by the Noticing Party in its notice, in which case no request for judicial enforcement may be brought. The Parties agree that in the event the Court decides any motion for enforcement in favor of the Noticing Party, the remedy shall be limited to requiring the Receiving Party to comply with whichever provision(s) of Section III or Section IV the Court finds there has been a lack of compliance. The Enforcement Parties agree that any such motion for enforcement shall not include a request that any party or nonparty to the Case be held in contempt.
VII. DISMISSAL AND SETTLEMENT AGREEMENT Plaintiffs agree to the dismissal of the Case with prejudice under Federal Rules of Civil
Procedure 41(a)(1) and 23(e), subject to the terms of the Settlement Agreement. In accordance
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with the terms of this Settlement Agreement, immediately following, and no later than the day after, final approval of the Settlement Agreement the Parties will file a joint stipulation of dismissal with prejudice that incorporates the terms of this agreement, and which shall be effective three years after the date of final approval and which will be subject to the enforcement provisions set forth in Section VI of this Agreement. Notwithstanding the effective date of the joint dismissal, all other terms of this Settlement Agreement shall be effective upon the date on which the Settlement becomes effective. A copy of the joint stipulation of dismissal to be filed is attached as Exhibit F to this Agreement. SSA agrees to pay the amount of $490,000 to Plaintiffs’ counsel as attorneys’ fees and costs incurred through the date of final approval and for any implementation and enforcement of this settlement following the date of final approval. This payment shall be the full and final payment for any and all claims for attorneys’ fees, costs, or expenses. The amount of $490,000 that SSA has agreed to pay to Plaintiffs’ counsel shall be paid to Justice in Aging and the Legal Aid Society of San Mateo County, with the payment of that amount to be allocated between those two organizations in a manner to be communicated by Plaintiffs’ counsel to counsel for Defendant at a later date. Plaintiffs’ counsel Morrison & Foerster has agreed to waive any attorneys’ fees and costs incurred in connection with this action. The parties negotiated this settlement term only after all of the substantive settlement terms were resolved.
VIII. RELEASES Plaintiffs, the members of the Class defined above, and their heirs, administrators,
representatives, attorneys, successors, and assigns, and each of them hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE the United States, the Commissioner, the Social Security Administration, the California Disability Determination Service, and all of their
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officers, employees, and agents, from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting, any and all claims, causes of action, and/or requests for relief that would be barred by the doctrine of res judicata were final judgment on the merits entered on all claims asserted in this Case.
IX. NO ADMISSION OF LIABILITY A. Neither this Settlement Agreement nor any order approving it constitutes an
admission by the Commissioner and/or the United States and/or any other released party of the truth of any allegation or the validity of any claim asserted in the Case, or of the liability of the Commissioner and/or the United States and/or any other released party, nor a concession or an admission of any fault or omission of any act or failure to act, or of any statement, written document, or report heretofore issued, filed or made by the Commissioner and/or the United States and/or any other released party.
B. Neither this Settlement Agreement nor any confidential papers related to the Agreement and created for settlement purposes only, nor any of the terms of either, may be offered or received as evidence against the Commissioner in any civil, criminal, or administrative action or proceeding, nor shall they be the subject of any discovery or construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Commissioner and/or the United States and/or any other released party, or as an admission by any party to this Settlement Agreement that the consideration to be given under the terms of this Agreement represents the relief that could have been recovered after trial.
X. DUTIES CONSISTENT WITH LAW AND REGULATIONS Nothing contained in this Settlement Agreement shall impose on the Commissioner
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and/or the United States any duty, obligation, or requirement, the performance of which would be inconsistent with law, as set forth in federal statutes or federal regulations or elsewhere in effect at the time of such performance. XI. INTEGRATION
This Settlement Agreement and its Exhibits constitute the entire agreement of the Parties, and no prior statement, representation, or agreement that is not contained herein, will have any force or effect. XII. MODIFICATION
This Settlement Agreement may be modified with the written agreement of Class counsel and counsel for Defendant and with the approval of the District Court, upon such notice to the Class, if any, as the District Court may require. XIII. DUTY TO DEFEND
The Parties to this Settlement Agreement shall defend against any challenges to it in any forum. XIV. SEVERABILITY
Should any non-material provision of this Settlement Agreement be found by a court to be invalid or unenforceable, then (A) the validity of other provisions of this Settlement Agreement shall not be affected or impaired, and (B) such provisions shall be enforced to the maximum extent possible.
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XV. CONDITIONS THAT RENDER SETTLEMENT AGREEMENT VOID OR VOIDABLE This Settlement Agreement shall be void if not approved as written at any stage by the
Court.
XVI. EFFECT OF SETTLEMENT AGREEMENT IF VOIDED A. Should this Settlement Agreement become void after its execution, the
Commissioner will not object to reinstatement of this action in the same posture and form as it was pending as of the date of execution of this Agreement.
B. All negotiations in connection herewith, and all statements made by the Parties at or submitted to the District Court as part of the Fairness Hearing process, shall be without prejudice to the Parties to this Settlement Agreement and shall not be deemed or construed to be an admission by a party of any fact, matter, or proposition, nor admissible for any purpose in the Case other than with respect to settlement of same.
C. The Parties retain all defenses, arguments, and motions as to all claims that have been or might later be asserted in the Case, and nothing in this Settlement Agreement shall be raised or construed by any party, Class Member, or party’s counsel, to defeat or limit any claims, defenses, arguments, or motions asserted by either party. Neither this Settlement Agreement, nor the fact of its having been made, nor any exhibit or other document prepared in connection with this Settlement Agreement, shall be admissible, entered into evidence, or used in any form or manner in discovery in the Case or in any other action or proceeding for any purpose inconsistent with Rule 408 of the Federal Rules of Evidence.
D. The provisions set forth in section XI will apply even if the Settlement Agreement
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Case 3:15-cv-00623-JST Document 79-1 Filed 11/08/16 Page 45 of 83 San Francisco, CA 94102 Telephone: (415) 436-6646 Fax: (415) 436-6632 Email: m.andrew.zee@usdoj.gov Attorneys for Defendant
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Exhibit A

A Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 47 of 83
EXHIBIT A

Social Security Administration
Important Information

SOCIAL SECURITY [6401 SECURITY BLVD BALTIMORE, MD 21235] Date: BNC:

John Doe 123 Main St Anytown, MD 12345

NOTICE OF CLASS ACTION SETTLEMENT AND REQUEST FORM

You May Be Eligible For Review Of Your Prior Disability Claim – Please Return The Enclosed Form Within 90 Days After You Get This Notice
You are receiving this notice and request form because of a class action settlement in a lawsuit. The lawsuit alleged the Social Security Administration should not have relied on consultative examination reports from Dr. Frank Chen. Plaintiffs alleged that Dr. Chen’s reports were flawed in important ways and subject to complaints, and that he is no longer allowed to perform these examinations.
This notice is about an earlier disability application that we denied, or a decision to stop disability benefits that you were receiving. Our records show that Dr. Chen examined you between January 1, 2011, and December 31, 2013, as part of this claim, and you received an unfavorable decision.
As a result of this settlement, you may be eligible to have us review your prior claim. For some people, the review may result in current benefits and back benefits. If you want us to review your prior claim, you must return the enclosed “Hart v. Colvin Request Form” within 90 days. This review may or may not change the prior decision.
How We Will Review Claims
There are four steps to the review process under the settlement:
1) You must request review of your claim by returning the attached request form within 90 days of the date you receive this notice. We will assume you received this notice within 5 days of the date printed on the top of this notice unless you show you did not get it within the 5-day period.
2) We will determine whether you are eligible for review under the settlement. If we decide you are not eligible for review, we will send you a notice telling you why.

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3) If we decide you are eligible for review, we will ask you to complete updated disability forms and give us any additional medical evidence that relates to your prior claim. Then, we will review your prior claim without considering Dr. Chen’s report.
4) We will make a decision about your claim. This could mean you will receive current benefits and back benefits.

If you do not respond within 90 days, you may lose your chance for review. We will not consider a late request unless we find you had a good reason for not responding in time.

If You Have Or Want A Representative

You can have a friend, representative, or someone else help you. It is important to understand that if you had an appointed representative at the time of your prior claim, that representation ended after the decision on your claim became final. This means that if you want a representative to help you, you must appoint one by giving us a notice of appointment.

If you want more information about having, getting, or appointing a representative, you may call our toll-free number or contact a Social Security office as shown below. You may also visit our website at www.ssa.gov/pubs/EN-05-10075.pdf to read “Your Right to Representation” (Publication No. 05-10075). Be aware that a representative may charge a fee for his or her services.

If You Have Any Questions

If you have any questions about this notice or request form, please contact [designated plaintiff’s firm], the lawyers who brought the Hart v. Colvin lawsuit, No. 3:15-cv-623-JST (N.D. Cal.). You may call them toll-free at [number and address below to be supplied by class counsel] or write to them at:

[Street Address] [City, State ZIP]

You may also contact Social Security toll-free at the following number: 1-[number to be supplied by SSA].

If you call or visit a Social Security office, please have this notice with you. It will help us answer your questions.

If You Appealed Your Prior Claim To Federal Court
If you appealed your prior claim to Federal court, then in addition to returning the request form, you must do the following:
- If the Federal court case is still pending, you must file a motion within 90 days of the date you receive this notice asking the court to send your case back to us.
- If the court has ruled against you, you must file a motion within 90 days of the date you receive this notice asking the court for relief from the final judgment.
Enclosure(s): Hart v. Colvin Request Form

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Return Envelope

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John Doe 123 Main Street Anytown, MD 12345

Hart v. Colvin REQUEST FORM

IMPORTANT Return This Form Using the Enclosed Envelope Within 90 Days of Receiving It If You Want Us To Review Your Prior Claim
Part I: Request That Social Security Review My Prior Claim By signing below, you are requesting that Social Security review your prior claim.

_______________ Date
_______________________ Telephone Number

__________________________________ Signature

Part II: Updated Address If your current address is different from the one printed at the top of this request form, please print your current address information below. Otherwise, you should leave Part II blank: Street Address: ___________________
City, State, and Zip Code ___________________

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 51 of 83
Exhibit A2

A2 Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 52 of 83
EXHIBIT A2

Social Security Administration
Important Information

SOCIAL SECURITY [6401 SECURITY BLVD BALTIMORE, MD 21235] Date: BNC:

John Doe 123 Main St Anytown, MD 12345

NOTICE OF CLASS ACTION SETTLEMENT AND REQUEST FORM

You May Be Eligible For Review Of Your Prior Disability Claim If You Return The Enclosed Form Within 180 Days After You Get This Notice.
You are receiving this notice and request form because of a class action settlement in a lawsuit. The lawsuit alleged the Social Security Administration should not have relied on consultative examination reports from Dr. Frank Chen. Plaintiffs alleged that Dr. Chen’s reports were flawed in important ways and subject to complaints, and that he is no longer allowed to perform these examinations.
This notice is about an earlier disability application where you received a partially favorable decision. This means that you received benefits but only for part of the period covered by your application. Our records show that Dr. Chen examined you between January 1, 2011, and December 31, 2013, as part of this claim.
As a result of this settlement, you may be eligible to have us review your prior claim. For some people, the review may result in current benefits and back benefits. If you want us to review your prior claim, you must return the enclosed “Hart v. Colvin Request Form” within 180 days. This review may or may not change the prior decision.
How We Will Review Claims
There are four steps to the review process under the settlement:
1) You must request review of your claim by returning the attached “Hart v. Colvin Request Form” within 180 days of the date you receive this notice. We will assume you received this notice within 5 days of the date printed on the top of this notice unless you show you did not receive it within the 5-day period.
2) We will determine whether you are eligible for review under the settlement. If we decide you are not eligible for review, we will send you a notice telling you why.
SOCIAL SECURITY ADMINISTRATION BALTIMORE, MD 21235-0001

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3) If we decide you are eligible for review, we will ask you to complete updated disability forms and give us any additional medical evidence that relates to your prior claim. Then, we will review your prior claim without considering Dr. Chen’s report.
4) We will make a decision about your claim. This could mean you will receive current benefits and back benefits.

If you do not respond within 180 days, you may lose your chance for review. We will not consider a late request unless we find you had a good reason for not responding in time.

PLEASE READ THE FOLLOWING VERY CAREFULLY

Your prior decision was partially favorable, and you may have received benefits as a result. If you ask us to review your prior claim, it is possible that the result will be the same. It is possible that the result will be better, which means we may decide you are entitled to benefits for the entire period covered by your application. It is also possible that the decision will be unfavorable, which means we will decide you were not entitled to the benefits you already received.
Before you return the request form asking us to review your claim, you should carefully consider the possible risks. Even if you do not want us to review your prior claim and choose not to return the request form, you may file a new claim if you believe you are disabled.
If you are currently receiving benefits, the review of your claim may result in additional benefits. However, we may decide that you were not disabled. If we review your claim and make an unfavorable decision finding that you were not disabled, it would mean that you were not entitled to the benefits you already received. In that case, benefits you may be currently receiving would no longer be paid. Also, if we decide that you were not disabled, it could mean that you were overpaid, and it is possible that you may have to pay us back some or all of the benefits we paid you.
You may also wish to ask questions of the attorneys who represent the members of the plaintiff class who brought the Hart v. Colvin lawsuit. For this purpose, we have provided contact information for the attorneys who represent the members of the class in this notice.
If You Have Or Want A Representative

You can have a friend, representative, or someone else help you. It is important to understand that if you had an appointed representative at the time of your prior claim, that representation ended after the decision on your claim became final. This means that if you want a representative to help you, you must appoint one by signing and giving us a notice of appointment. That person can be the representative who helped you on your prior claim, or another representative. If you want a representative to help you, you may wish to speak with that person before deciding whether to return the Request Form.

If you had a representative on your prior claim and want that person to receive a copy of this notice, please check the box on the enclosed “Hart v. Colvin Representative Notification Request Form,” and we will send him or her a copy of this notice. You do not have to send a copy of this notice to your prior representative and may choose to work with any representative you want, or no representative. Remember that even if you want us to send a copy of this notice to your prior

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representative, or choose to show it to another representative, you will still need to appoint that person as your representative so that he or she can help you while we review your prior claim.

If you want more information about having, getting, or appointing a representative, you may call our toll-free number or contact a Social Security office as shown below. You may also visit our website at www.ssa.gov/pubs/EN-05-10075.pdf to read “Your Right to Representation” (Publication No. 05-10075). Be aware that a representative may charge a fee for his or her services.
If You Have Any Questions
If you have any questions about this notice or request form, please contact [designated plaintiff’s firm], the lawyers who brought the Hart v. Colvin lawsuit No. 3:15-cv-623-JST (N.D. Cal.). You may call them, toll free, at [number and address below to be supplied by class counsel] or write to them at:
[Street Address] [City, State ZIP]
You may wish to contact these attorneys before deciding whether to return the request form asking us to review your prior claim.
You may also contact Social Security toll free at the following number: 1-[number to be supplied by SSA].
If you call or visit a Social Security office, please have this notice with you. It will help us answer your questions.
If You Appealed Your Prior Claim To Federal Court
If you appealed your claim to Federal court, then in addition to returning the request form, you must do the following:
- If the Federal court case is still pending, you must file a motion within 90 days of the date you receive this notice asking the court to send your case back to us.
- If the court has ruled against you, you must file a motion within 90 days of the date you receive this notice asking the court for relief from the final judgment.

Enclosure(s): Hart v. Colvin Request Form Hart v. Colvin Representative Notification Request Form Return Envelope

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John Doe 123 Main St Anytown, MD USA 12345

Hart v. Colvin REQUEST FORM
IMPORTANT Return This Form Using the Enclosed Envelope Within 180 Days of Receiving It If You Want Us To Review Your Prior Claim.
Before deciding whether to return this form, be sure to read carefully the attached notice that describes the potential benefits and risks of requesting review of your prior claim. If we review your prior claim, it is possible you could receive a better result, the same result,
or a worse result, including a finding that you are not disabled. If you want a representative to assist you, you may wish to speak with that person before deciding
whether to return this Request Form.

Part I: Request That Social Security Review My Prior Claim By signing below, you are requesting that Social Security review your prior claim.

_______________ Date
_______________________ Telephone Number

__________________________________ Signature

Part II: Updated Address If your current address is different from the one printed at the top of this Request Form, please print your current address information below. Otherwise, you should leave Part II blank: Street Address: ___________________
City, State, and Zip Code ___________________

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John Doe 123 Main Street Anytown, MD 12345

Hart v. Colvin REPRESENTATIVE NOTIFICATION REQUEST FORM
USE THE ENCLOSED PREPAID ENVELOPE TO RETURN THIS FORM
You can have us send a copy of this notice to the representative who assisted you on your prior claim by checking the box below. If you do not wish for Social Security to send a copy of this notice to your prior representative, you should not mail in this form.
You do not have to send a copy of this notice to your prior representative and may choose to work with any representative you want, or no representative.
____ If my file shows that I had a representative on my prior claim, I would like Social Security to mail a copy of this notice to him or her.

(Please note: we will not be able to send a copy of this notice to a representative if you did not have a representative on your prior claim, or if that person has been disqualified from appearing in Social Security matters.)

_______________ Date

__________________________________ Signature

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 57 of 83
Exhibit B

B Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 58 of 83
EXHIBIT B

Social Security Administration
Important Information

John Doe 123 Main St Anytown, MD 12345

SOCIAL SECURITY [6401 SECURITY BLVD BALTIMORE, MD 21235] Date: BNC:

NOTICE OF CLASS ACTION SETTLEMENT AND REQUEST FORM

You May Be Eligible For Review Of Your Prior Disability Claim – Please Return The Enclosed Form Within 90 Days After You Get This Notice
You are receiving this notice and request form because of a class action settlement in a lawsuit. The lawsuit alleged the Social Security Administration should not have relied on examination reports from Dr. Frank Chen. Plaintiffs alleged that Dr. Chen’s reports were flawed in important ways and subject to complaints, and that he is no longer allowed to perform these examinations.
This notice is about an earlier disability application that we denied, or a decision to stop disability benefits that you were receiving. Our records show that Dr. Chen examined you between January 1, 2007, and December 31, 2010, as part of this claim, and you received an unfavorable decision.
As a result of this settlement, you may be eligible to have us review your prior claim. For some people, the review may result in back benefits. If you want us to review your prior claim, you must return the enclosed request form within 90 days. This review may or may not change the prior decision.
How We Will Review Claims
There are five steps to the review process for your claim under the settlement:
1) You must request review of your claim by returning the enclosed “Hart v. Colvin Request Form” within 90 days of the date you receive this notice. We will assume you received this notice within 5 days of the date printed on the top of this notice unless you show you did not receive it within the 5-day period.
2) You must file a new application for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) (or both) within 180 days of the date you receive this notice.
SOCIAL SECURITY ADMINISTRATION BALTIMORE, MD 21235-0001

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3) If we find you are disabled and eligible for benefits on your new claim, then we will determine whether you are eligible for review of your prior claim under the settlement. If we decide that you are not eligible for review of your prior claim, we will send you a notice telling you why. If we find you are not disabled on your new claim, then you are not eligible for review of your prior claim.
4) If we decide you are eligible for review of your prior claim, we will ask you to complete updated disability forms and give us any additional medical evidence that relates to your prior claim.
5) If we decide you are eligible for review of your prior claim, we will review your claim without considering Dr. Chen’s report. If we find that you were disabled during the period covered by your prior claim or any part of that time, you may receive back benefits for the period of disability established. If we find that you were not disabled during the period covered by your prior claim, you will not receive back benefits. That decision will be final and not subject to appeal.

If you do not respond within 90 days, you may lose your chance for review. We will not consider a late request unless we find you had a good reason for not responding in time.

You may file your new claim by visiting your local Social Security office. You can find more information about how to apply for SSDI or SSI by visiting www.socialsecurity.gov on the Internet. If you have specific questions, you may call toll-free at 1-800-772-1213. If you are deaf or hard of hearing, you may call our TTY number toll-free at 1-800-325-0778.

If you do not file your new claim within 180 days of the date you receive this notice, we will still decide your new claim, but you will not be eligible for review of your prior claim under the settlement agreement.

If You Have Or Want A Representative

You can have a friend, representative, or someone else help you. It is important to understand that if you had an appointed representative at the time of your prior claim, that representation ended after the decision on your prior claim became final. This means that if you want a representative to help you, you must appoint one by giving us a notice of appointment.

If you want more information about having, getting, or appointing a representative, you may call our toll-free number or contact a Social Security office using the instructions below. You may also visit our website at www.ssa.gov/pubs/EN-05-10075.pdf to read “Your Right to Representation” (Publication No. 05-10075). Be aware that a representative may charge a fee for his or her services.

If You Have Any Questions

If you have any questions about this notice or request form, please contact [designated plaintiff’s firm], the lawyers who brought the Hart v. Colvin lawsuit, No. 3:15-cv-623-JST (N.D Cal.). You may call them, toll free, at [number and address below to be supplied by class counsel] or write to them at:

[Street Address] [City, State ZIP]

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You may also contact Social Security toll free at the following number: 1-[number to be supplied by SSA]. If you call or visit a Social Security office, please have this notice with you. It will help us answer your questions.

If You Appealed Your Prior Claim To Federal Court:

If you appealed your prior claim to Federal court, then if you are found disabled on your new claim you must also do the following in order to request review of your prior claim:

- If the Federal court case is still pending, you must file a motion within 90 days of the date you receive a Notice of Award on your new claim asking the court to send your case back to us.

- If the court has ruled against you, you must file a motion within 90 days of the date you receive the Notice of Award on your new claim asking the court for relief from the final judgment.

Enclosure(s): Hart v. Colvin Request Form Return Envelope

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John Doe 123 Main St Anytown, MD USA 12345
Hart v. Colvin REQUEST FORM
IMPORTANT Return This Form Using the Enclosed Envelope Within 90 Days of Receiving It If You Want Us To Review Your Prior Claim
Part I: Request That Social Security Review My Prior Claim.
I believe that I am currently disabled, and I intend to file a new claim for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) (or both) within 180 days of the date I received the attached Notice. If I file a new claim for SSDI or SSI (or both), and am found disabled on my new claim, I request that the Social Security Administration review my prior claim.

_______________ Date

__________________________________ Signature

______________________ Telephone Number

Part II: Updated Address If your address is different from the one printed at the top of this Request Form, please print your updated address information below. Otherwise, you should leave Part II blank: Street Address:
___________________
City, State, and Zip Code
___________________

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 62 of 83
Exhibit B2

B2 Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 63 of 83
EXHIBIT B2
Social Security Administration
Important Information
SOCIAL SECURITY [6401 SECURITY BLVD BALTIMORE, MD 21235] Date: BNC:
John Doe 123 Main St Anytown, MD 12345
NOTICE OF CLASS ACTION SETTLEMENT AND REQUEST FORM
You May Be Eligible For Review Of Your Prior Disability Claim If You Return The Enclosed Form Within 180 Days After You Get This Notice.
You are receiving this notice and request form because of a class action settlement in a lawsuit. The lawsuit alleged the Social Security Administration should not have relied on consultative examination reports from Dr. Frank Chen. Plaintiffs alleged that Dr. Chen’s reports were flawed in important ways and subject to complaints, and that he is no longer allowed to perform these examinations.
This notice is about an earlier disability application where you received a partially favorable decision. This means that you received benefits but only for part of the period covered by your application. Our records show that Dr. Chen examined you between January 1, 2007, and December 31, 2010, as part of this claim.
As a result of this settlement, you may be eligible to have us review your prior claim. For some people, the review may result in additional benefits. If you want us to review your prior claim, you must return the enclosed request form within 180 days. This review may or may not change the prior decision.
How We Will Review Claims
There are five steps to the review process for your claim under the settlement:
1) You must request review of your claim by returning the attached “Hart v. Colvin Request Form” within 180 days of the date you receive this notice. We will assume you received this notice within 5 days of the date printed at the top of this notice unless you show you did not receive it within the 5-day period.
SOCIAL SECURITY ADMINISTRATION BALTIMORE, MD 21235-0001

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2) You must file a new application for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) (or both) within 180 days of the date you receive this notice.
3) If we find you are disabled and eligible for benefits on your new claim, then we will determine whether you are eligible for review of your prior claim under the settlement. If we decide that you are not eligible for review of your prior claim, we will send you a notice telling you why. If we find you are not disabled on your new claim, then you are not eligible for review of your prior claim.
4) If we decide you are eligible for review of your prior claim, we will ask you to complete updated disability forms and give us any additional medical evidence that relates to your prior claim.
5) If we decide you are eligible for review of your prior claim, we will review your prior claim without considering Dr. Chen’s report. If we find that you were disabled during the period covered by your prior claim or any part of that time, you may receive back benefits for the period of disability established. If we find that you were not disabled during the period covered by your prior claim, you will not receive back benefits. That decision will be final and not subject to appeal.

If you do not respond within 180 days, you may lose your chance for review. We will not consider a late request unless we find you had a good reason for not responding in time.

You may file your new claim by visiting your local Social Security office. You can find more information about how to apply for SSDI or SSI by visiting www.socialsecurity.gov on the Internet. If you have specific questions, you may call toll-free at 1-800-772-1213. If you are deaf or hard of hearing, you may call our TTY number toll-free at 1-800-325-0778.

If you do not file your new claim within 180 days of the date you receive this notice, we will still decide your new claim, but you will not be eligible for review of your prior claim under the settlement agreement.

PLEASE READ THE FOLLOWING VERY CAREFULLY

Your prior decision was partially favorable, and you may have received benefits as a result. If you ask us to review your prior claim, it is possible that the result will be the same. It is possible that the result will be better, which means we may decide you are entitled to benefits for the entire period covered by your application. It is also possible that the decision will be unfavorable, which means we will decide you were not entitled to the benefits you already received.
Before you return the request form asking us to review your claim, you should carefully consider the possible risks. Even if you do not want us to review your prior claim and choose not to return the request form, you may file a new claim if you believe you are disabled. That would not create the same risks as asking us to review your prior claim.
If you are currently receiving benefits, the review of your claim may result in additional benefits. However, we may decide that you were not disabled. If we review your claim and make an unfavorable decision finding that you were not disabled, it would mean that you were not entitled to the benefits you already received. In that case, benefits you may be currently receiving would no longer be paid. Also, if we decide that you were not disabled, it could mean that you were overpaid, and it is possible you may have to pay us back some or all of the benefits we paid you.

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You may also wish to ask questions of the attorneys who represent the members of the plaintiff class who brought the Hart v. Colvin lawsuit. For this purpose, we have provided contact information for the attorneys who represent the members of the class at the bottom of this notice.
If You Have Or Want A Representative
You can have a friend, representative, or someone else help. It is important to understand that if you had an appointed representative at the time of your prior claim, that representation ended after the decision on your claim became final. This means that if you want a representative to help you, you must appoint one by signing and giving us a notice of appointment. That person can be the representative who helped you on your prior claim, or another representative. If you want a representative to help you, you may wish to speak with that person before deciding whether to return the Request Form.
If you had a representative on your prior claim and want that person to receive a copy of this notice, please check the box on the enclosed form and we will send him or her a copy of this notice. You do not have to send a copy of this notice to your prior representative and may choose to work with any representative you want, or no representative. Remember that even if you want us to send a copy of this notice to your prior representative, or choose to show it to another representative, you will still need to appoint that person as your representative so that he or she can help you while we review your prior claim.
If you want more information about having, getting, or appointing a representative, you may call our toll-free number or contact a Social Security office using the instructions below. You may also visit our website at www.ssa.gov/pubs/EN-05-10075.pdf to read “Your Right to Representation” (Publication No. 05-10075). Be aware that a representative may charge a fee for his or her services.
If You Have Any Questions
If you have any questions about this notice or request form, please contact [designated plaintiff’s firm], the lawyers who brought the Hart v. Colvin lawsuit, No. 3:15-cv-623-JST (N.D. Cal.). You may call them toll free at [number and address below to be supplied by class counsel] or write to them at:
[Street Address] [City, State ZIP]
You may wish to contact these attorneys before deciding whether to return the request form asking us to review your prior claim.
You may also contact Social Security toll-free, at the following number: 1-[number to be supplied by SSA].
If you call or visit a Social Security office, please have this notice with you. It will help us answer your questions.
If You Appealed Your Prior Claim To Federal Court

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If you appealed your claim to Federal court, then if you are found disabled on your new claim, you must also do the following in order to request review of your prior claim:

- If the Federal court case is still pending, you must file a motion within 90 days of the date you receive a Notice of Award on your new claim asking the court to send your case back to us.

- If the court has ruled against you, you must file a motion within 90 days of the date you receive a Notice of Award on your new claim asking the court for relief from the final judgment.

Enclosure(s): Hart v. Colvin Request Form Hart v. Colvin Representative Notification Request Form Return Envelope

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John Doe 123 Main St Anytown, MD 12345

Hart v. Colvin REQUEST FORM
IMPORTANT Return This Form Using the Enclosed Envelope Within 180 Days of Receiving It If You Want Us To Review Your Prior Claim

Before deciding whether to return this form, be sure to read carefully the attached notice that describes the potential benefits and risks of requesting review of your prior claim. If we review your prior claim, it is possible you could receive a better result, the same result,
or a worse result, including a finding that you are not disabled. If you want a representative to assist you, you may wish to speak with that person before deciding
whether to return this Request Form.

Part I: Request That Social Security Review My Prior Claim
I believe that I am currently disabled, and I intend to file a new claim for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) (or both) within 180 days of the date I received the attached notice. If I file a new claim for SSDI or SSI (or both), timely and I am found disabled on my new claim, and am otherwise eligible, I request that the Social Security Administration review my prior claim.

_______________ Date

__________________________________ Signature

_______________________ Telephone Number

Part II: Updated Address If your current address is different from the one printed at the top of this request form, please print your current address information below. Otherwise, you should leave Part II blank: Street Address: ___________________
City, State, and Zip Code ___________________

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John Doe 123 Main Street Anytown, MD 12345

Hart v. Colvin REPRESENTATIVE NOTIFICATION REQUEST FORM
USE THE ENCLOSED ENVELOPE TO RETURN THIS FORM
You can have us send a copy of this notice to the representative who assisted you on your prior claim by checking the box below. If you do not wish for Social Security to send a copy of this notice to your prior representative, you should not mail in this form.
You do not have to send a copy of this notice to your prior representative and may choose to work with any representative you want, or no representative.
____ If my file shows that I had a representative on my prior claim, I would like Social Security to mail a copy of this notice to him or her.

(Please note: we will not be able to send a copy of this notice to a representative if you did not have a representative on your prior claim, or if that person has been disqualified from appearing in Social Security matters.)

_______________ Date

__________________________________ Signature

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 69 of 83
Exhibit C

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EXHIBIT C

Social Security Administration
Important Information
John Doe 123 Main St Anytown, MD 12345

SOCIAL SECURITY [6401 SECURITY BLVD BALTIMORE, MD 21235] Date: BNC:

NOTICE OF CLASS ACTION SETTLEMENT AND REQUEST FORM

Please Return The Enclosed Form Within 30 Days After You Get This Notice
You are receiving this notice and request form because of a class action settlement in a lawsuit. The lawsuit alleged the Social Security Administration should not have relied on examination reports from Dr. Frank Chen. Plaintiffs alleged that Dr. Chen’s reports were flawed in important ways and subject to complaints, and that he is no longer allowed to perform these examinations.
This notice is about your pending disability application or continuing disability review. Our records show that between January 1, 2007, and December 31, 2013, Dr. Chen examined you as part of this claim. Our records also show that your claim is either currently pending before an administrative law judge (ALJ) or has recently been decided by an ALJ, and you either still have time to appeal or have already done so.
As a result of this settlement, you are entitled to choose whether we consider this doctor’s report when we decide your claim. You should return the attached request form indicating your preference within 30 days of the date you receive it, or, if your hearing has already been scheduled, no fewer than 5 days before the hearing date.
If You Have Not Had A Hearing Before An ALJ Yet
If you have not had your ALJ hearing yet, you should return the attached request form within 30 days of the date you receive this notice and tell us whether you want us to consider or ignore Dr. Chen’s report. If your hearing has already been scheduled, you should return the attached request form no fewer than 5 days before the hearing date. If you tell us that you do not want us to consider Dr. Chen’s report, then we will make a decision on your claim by considering all of the evidence in your record except for his report. The ALJ may also decide to send you for a new consultative examination with another doctor. If the ALJ decides that a new consultative examination report is necessary, you will receive a separate notice explaining this.

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If you want to have the ALJ consider Dr. Chen’s report, then the ALJ will consider it. The ALJ will also consider the reasons Dr. Chen was removed from the consultative examination panel. The ALJ should also consider whether ordering an additional consultative examination is appropriate. The ALJ should explain the weight, if any, he or she gives to Dr. Chen’s report.

At your hearing, the ALJ will remind you of your right to decide whether we consider the doctor’s report when we decide your claim.

If You Have Had A Hearing But Have Not Received An ALJ Decision Yet

If you have already had an ALJ hearing but have not gotten a decision yet, you should return the attached request form within 30 days of the date you receive this notice. Please tell us whether you want us to consider or ignore Dr. Chen’s report when deciding your claim. If you tell us that you do not want us to consider his report, then we will make a decision on your claim by considering all of the evidence in your record except for that report. The ALJ may also decide to send you for a new consultative examination with another doctor. If the ALJ decides that a new consultative examination is necessary, you will receive a separate notice explaining this.

If You Have Already Received An ALJ Decision

If you have already received an ALJ decision on your claim, you should request that the Appeals Council review the ALJ’s decision if you have not already done so. Remember that you have 60 days from the date you receive the ALJ’s decision to request Appeals Council review. However, your time to request review can be extended if we find that you had good cause for not meeting this deadline.

If you did not have a chance to state your preference to the ALJ, once you request review, or if you have already requested review of the ALJ’s decision, the Appeals Council will consider whether Dr. Chen’s report was given any weight in the ALJ’s decision. If the Appeals Council determines that the ALJ explicitly gave no weight to Dr. Chen’s report, the Appeals Council will not grant review on the basis of the doctor’s report (but may grant review on other bases, if warranted).

If the Appeals Council determines that the ALJ did not make it clear that no weight was given to Dr. Chen’s report when deciding your claim, the Appeals Council will grant your request for review and send your claim to an ALJ for further consideration. If the Appeals Council sends your claim back to an ALJ, you will have the option to choose whether the ALJ considers Dr. Chen’s report when deciding your claim on remand.

If You Have Or Want A Representative

You can have a friend, representative, or someone else help you with your claim. If a representative is helping you with your claim, you should contact that person to let him or her know about this notice. You may want to do so before returning the request form. If we have information about your representative in your file, we will send him or her a copy of this notice. That person’s name will also be listed below.

If you want more information about having, getting, or appointing a representative, you may call our toll-free number or contact a Social Security office as shown below. You may also visit our website at www.ssa.gov/pubs/EN-05-10075.pdf to read “Your Right to Representation”

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(Publication No. 05-1007bout 5). Be aware that a representative may charge a fee for his or her services.

If You Have Any Questions
If you have any questions about this notice and request form, you can contact [designated plaintiff’s firm to be supplied by class counsel], the lawyers who brought the Hart v. Colvin lawsuit, No. 3:15-cv-623-JST (N.D. Cal.), by writing to them at [address to be supplied by class counsel], or calling them at [number to be supplied by class counsel]. You may also call [HO phone number to be supplied by SSA], or write this office. For your convenience, our address is on the first page of this notice.

Enclosure(s): Hart v. Colvin Request Form Return Envelope
cc: [Representative of record]

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John Doe 123 Main St Anytown, MD 12345

Hart v. Colvin REQUEST FORM

IMPORTANT
Return This Form Using the Enclosed Envelope Within 30Days of Receiving It, Or No Fewer Than 5 Days Before A Scheduled Hearing
Please check below to indicate whether you want the ALJ to consider Dr. Chen’s report when deciding your claim.
__________ Yes, I want the ALJ to consider Dr. Chen’s report.

__________ No, I do not want the ALJ to consider Dr. Chen’s report.

_______________ Date

__________________________________ Signature

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 74 of 83
Exhibit D

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 75 of 83
Notice of Proposed Class Action Settlement and Fairness Hearing Regarding Consultative Examinations by a Certain Doctor in Social Security Disability Claims
This proposed settlement may affect your rights if you were examined by Dr. Frank Chen between January 1, 2007, and December 31, 2013, in connection with your claim for Social Security Disability Insurance or Supplemental Security Income. You must have received an unfavorable or partially favorable decision on that claim, or had a continuing disability review where benefits were stopped. What Is The Lawsuit About? The lawsuit is called Hart v. Colvin, Civil Action No. 3:15-cv-00623-JST (N.D. Cal.). Plaintiffs said that the Social Security Administration should not have relied on consultative examination reports from this doctor when it denied disability claims or stopped benefits. This doctor examined people in the San Francisco Bay Area and in counties along the coast as far south as San Luis Obispo. Social Security denies any wrongdoing or liability. The parties are proposing to settle the lawsuit. What Are The Terms Of The Proposed Settlement? This notice contains only a summary of the proposed settlement. To fully understand the proposed settlement, you should read the entire proposed settlement agreement. The proposed settlement provides that:
1. If you are a class member with a closed disability claim or continuing disability review who was examined by this doctor between January 1, 2011, and December 31, 2013, you can have your case decided again if you were not receiving disability benefits as of October 14, 2015. If Social Security finds you disabled for the period covered by your original application or continuing disability review, Social Security will also give you the opportunity to show that you continued to be disabled after that period
2. If you are a class member with a closed disability claim or continuing disability review who was examined by this doctor between January 1, 2007, and December 31, 2010, and you are not receiving disability benefits as of October 14, 2015, you may be able to have your case decided again. To have your case decided again, you first have to file a new claim for current disability benefits and be found disabled and eligible for current disability benefits. If Social Security decides your case again and finds you disabled for the period covered by your original application or continuing disability review, Social Security will not give you the opportunity to show that you continued to be disabled after that period. You will not be able to appeal the decision that Social Security makes when it looks at your case again.
3. If you are a class member with an open claim or continuing disability review, you will have the chance to decide whether you want Social Security to consider this doctor’s report when it makes a decision on your open claim or review.
4. Social Security will also provide other relief. This relief includes guidance to administrative law judges and Appeals Council adjudicators and a study of the processes through which Social Security monitors the California Disability

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 76 of 83
Determination Service Division’s consultative examination provider process, under which Dr. Chen performed examinations. 5. As part of the settlement, lead counsel for class plaintiffs—Morrison & Foerster LLP—agreed to waive its fees for work done on this lawsuit. Morrison & Foerster’s co-counsel, not-for-profit organizations called Justice in Aging and Legal Aid Society of San Mateo County, will be paid fees of $490,000 for work done on this lawsuit. How Will The Court Decide Whether To Approve The Proposed Settlement? The Court will need to approve the proposed settlement before it becomes final. The Court will hold a public hearing, called a fairness hearing, to decide if the proposed settlement is fair. The hearing will be held on _____, 2016 at ________, at the following address: United States District Court Northern District of California 450 Golden Gate Avenue, Courtroom 9 -19th Floor San Francisco, California 94102.
What Can You Do If You Object To The Settlement Or Have Other Comments? IF YOU AGREE with the proposed settlement, you do not have to do anything at this time. You have the right to attend the fairness hearing, at the time and place above. IF YOU DISAGREE OR HAVE COMMENTS about the proposed settlement, you can write to the Court or ask to speak at the hearing. You must do this by writing to the Clerk of the Court, at the following mailing address:
Clerk of the Court United States District Court Northern District of California 450 Golden Gate Avenue San Francisco, California 94102.
Your written comments or request to speak at the fairness hearing must be postmarked by _____, 2016. The Clerk will provide copies of written comments to the lawyers who brought the lawsuit and to the Social Security Administration by filing the comments on the court's electronic case filing system. If your comments involve your health or other personal information, and you do not want such information to be widely available, you may ask the Court to keep your comments private by requesting that they be filed “_____________.” If you do this, your comments will be seen by the Court, the lawyers, and the Social Security Administration, but will not be made public. If you do not say that you want your comments “_____________,” they may be read, downloaded, or distributed by anyone who has an account with the Court’s public access service. Do not include your social security number with your comments. The Court will decide who gets to speak at the fairness hearing. What Can You Do If You Have Questions?

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 77 of 83
If you have any questions about this lawsuit or about the proposed settlement, or want a copy of the proposed settlement, please contact the lawyers who brought the lawsuit at:
Hart Class Counsel Justice in Aging 1330 Broadway, Suite 525 Oakland, CA 94612
Tel. (510) 663-1055

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 78 of 83
Exhibit E

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 79 of 83
Exhibit E AIDS Legal Referral Panel Alameda County Homeless Action Center Bay Area Legal Aid Bay Area Social Security Claimants Representatives California Rural Legal Assistance, Inc. Contra Costa Senior Legal Services Disability Rights California Disability Rights Education & Defense Fund, Inc. East Bay Community Law Center Law Foundation of Silicon Valley Legal Aid of Marin Legal Services for Seniors Legal Services for Northern California National Organization of Social Security Claimants Representatives Positive Resource Center Santa Clara County Asian Law Alliance Senior Citizens Legal Services
sf-3694970

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 80 of 83
Exhibit F

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 81 of 83

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

3

4
5 KEVIN HART, NINA SILVA-COLLINS, and LEE HARRIS, on behalf of themselves
6 and all others similarly situated,
7
Plaintiffs,
8
v.
9
10 CAROLYN W. COLVIN, Acting Commissioner of Social Security, in her
11 official capacity,

12

Defendant.

13

14

) ) ) ) ) Case No. 3:15-cv-00623-JST ) ) JOINT STIPULATION OF DISMISSAL ) WITH PREJUDICE ) ) Hon. Jon S. Tigar ) ) ) ) )

15
Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiffs, Kevin Hart, Nina

16
Silva-Collins, and Lee Harris, on behalf of themselves and all others similarly situated, including

17 the Class to which reference is made in the Settlement Agreement approved in the captioned

18 action [ECF No. __] and the members of that Class, and Defendant, Carolyn W. Colvin, Acting

19 Commissioner of Social Security, in her official capacity, stipulate to the dismissal with

20 prejudice of this action in its entirety subject to the following terms:

21

1. The dismissal with prejudice shall be effective three years from the date

22

this Joint Stipulation of Dismissal is filed.

23

2. This Joint Stipulation of Dismissal incorporates the terms of the

24

Settlement Agreement executed by the parties on [insert date] and finally approved by the

25

Court on [insert date] [ECF No. __].

26

27 Dated: [month] [day], [year].
28

Respectfully submitted,

Hart, et al. v. Colvin, Case No. 3:15-cv-00623-JST Joint Stipulation of Dismissal With Prejudice
- 1 -

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 82 of 83

1

GERALD A. McINTYRE (SBN 181746)

2

gmcintyre@justiceinaging.org

JUSTICE IN AGING

3

3660 Wilshire Blvd., Suite 718

Los Angeles, CA 90010

4

Telephone: (213) 674-2900 / F: (213) 550-4001

5

ANNA RICH (SBN 230195)

6

arich@justiceinaging.org

TRINH PHAN (SBN 267288)
7
tphan@justiceinaging.org

8

JUSTICE IN AGING

1330 Broadway, Suite 525

9

Oakland, CA 94612

10

Telephone: (510) 663-1055 / F: (510) 663-1051

11

WILLIAM L. STERN (SBN 96105)

WStern@mofo.com

12

CLAUDIA M. VETESI (SBN 233485)

13

CVetesi@mofo.com

ROBERT T. PETRAGLIA (SBN 264849)

14

RPetraglia@mofo.com

ELIZABETH BALASSONE (SBN 280563)

15

EBalassone@mofo.com

16

MORRISON & FOERSTER LLP

425 Market Street

17

San Francisco, California 94105-2482

Telephone: (415) 268-7000 / F: (415) 268-7522
18

19

HOPE NAKAMURA (SBN 126901)

hnakamura@legalaidsmc.org

20

LEGAL AID SOCIETY OF SAN MATEO

COUNTY

21

330 Twin Dolphin Drive, Suite 123

22

Redwood City, CA 94065

Telephone: (650) 558-0915 / F: (650) 517-8973

23

KATHRYN LANG (SBN 204102)

24

klang@justiceinaging.org

25

JUSTICE IN AGING

1444 Eye Street NW, Suite 1100

26

Washington, DC 20005

27

Telephone: (202) 683-1997 / F: (202) 289-7224

28

Attorneys for Plaintiffs

Hart, et al. v. Colvin, Case No. 3:15-cv-00623-JST Joint Stipulation of Dismissal With Prejudice
- 2 -

Case 3:15-cv-00623-JST Document 769-1 Filed 0191/1098/16 Page 83 of 83

1

U.S. DEPARTMENT OF JUSTICE

2
BENJAMIN C. MIZER

3

Principal Deputy Assistant Attorney General

JUDRY L. SUBAR

4

Assistant Director

5

Federal Programs Branch

6

M. ANDREW ZEE (CA Bar No. 272510)
7
United States Department of Justice

8

Civil Division, Federal Programs Branch

450 Golden Gate Avenue, Room 7-5395

9

San Francisco, CA 94102

10

Telephone: (415) 436-6646

Fax: (415) 436-6632

11

Email: m.andrew.zee@usdoj.gov

12

Attorneys for Defendant

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Hart, et al. v. Colvin, Case No. 3:15-cv-00623-JST Joint Stipulation of Dismissal With Prejudice
- 3 -

 
 Case 3:15-cv-00623-JST Document 88 Filed 04/17/17 Page 1 of 5

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 KEVIN HART, et al.,

8

Plaintiffs,

9

v.

10 CAROLYN W. COLVIN,

11

Defendant.

Case No. 15-cv-00623-JST
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT Re: ECF No. 82

12

Before the Court is Plaintiffs’ Motion for Final Approval of Class Action Settlement

13 Agreement. ECF No. 82. The Court previously granted a motion for preliminary approval of the

14 agreement, ECF No. 81, and held a Final Approval Hearing on March 16, 2017. The Court will

15 grant the motion.

16 I. BACKGROUND

17

A. The Parties and Claims

18

This case is a putative class action against Defendant Carolyn W. Colvin, Acting

19 Commissioner of Social Security, involving the evidence used by Administrative Law Judges

20 (“ALJs”) in deciding whether individuals are entitled to receive disability benefits. The evidence

21 ALJs consider when making a disability benefits determination includes consultative evaluations

22 (“CEs”) performed by medical professionals under the guidelines provided by the Social Security

23 Administration (“SSA”). SSA regulations require adjudicators to “always consider” CE reports

24 along with the other evidence when making a disability determination. 20 C.F.R. §§ 404.1527(b),

25 416.927(b). The SSA contracts with state agencies, including the Disability Determination Service

26 Division of the California Department of Social Services (DDSD) to make disability

27 determinations. ECF No. 36 at 2.

28

One of the evaluators was Dr. Frank Chen. After receiving complaints that Dr. Chen’s

Case 3:15-cv-00623-JST Document 88 Filed 04/17/17 Page 2 of 5

United States District Court Northern District of California

1 reports were of low quality, and sometimes included results of tests that he never actually

2 performed, the DDSD disqualified him from providing CEs, citing Dr. Chen’s “unprofessional

3 manner and failure to adequately correct deficiencies in his CE reports.” Id. at 4. Plaintiffs were

4 not given notice that Dr. Chen had been disqualified, even though the SSA relied on his reports in

5 deciding to deny their applications for disability benefits. Plaintiffs commenced this lawsuit,

6 asking the Court to grant declaratory and injunctive relief. ECF No. 1 at 23-24.

7

B. Procedural History

8

Plaintiffs filed their Complaint on February 9, 2015. ECF No. 1. After the SSA’s motion

9 to dismiss was denied, ECF No. 36, it answered the Complaint on July 31, 2015, ECF No. 38.

10 Plaintiffs then filed a motion for class certification, ECF No. 40, which the Court granted on

11 October 14, 2015, ECF No. 50.

12

Settlement negotiations began in November 2015 before Magistrate Judge Maria-Elena

13 James. See ECF Nos. 44-45. On September 19, 2016, the parties reached an agreement and

14 Plaintiffs filed an unopposed motion for preliminary approval of class action settlement

15 agreement. ECF No. 76. The Court granted a motion for preliminary approval on November 9,

16 2016, concluding that “the proposed benefits to be awarded to the class [fell] ‘within the range of

17 possible approval,’” and that it otherwise met the criteria for approval. ECF No. 81 at 13-14. The

18 Court found that the settlement agreement was appropriate in light of the risk and expense of

19 litigation, the negotiations were non-collusive, there was a government participant, and the

20 settlement contained no obvious deficiencies or preferential treatment to any class member. Id. at

21 13-14.

22

Because the class was certified under Federal Rule of Civil Procedure 23(b)(2) and the

23 settlement provides only injunctive relief, the Court was not obliged to require the parties to

24 provide notice of the settlement to the class. Id. at 14-15 (citing Wal-Mart Stores, Inc. v. Duke,

25 564 U.S. 338, 362 (2011); Green v. Am. Express Co., 200 F.R.D. 211, 212-13 (S.D.N.Y. 2001)).

26 Nonetheless, the parties proposed and the Court ordered that notice be given, “since class

27 members’ will have to take affirmative action if they desire their claims to be reopened, and will

28 subsequently be notified via the claim form procedure if the settlement agreement is finally 2

Case 3:15-cv-00623-JST Document 88 Filed 04/17/17 Page 3 of 5

United States District Court Northern District of California

1 approved.” Id. at 15. The Court ordered Defendant to publish a Publication Notice in newspapers 2 of general circulation1 and Plaintiffs’ counsel to disseminate the notice to “several organizations

3 that are likely to interact with class members.” Id. Individual notice was not required because

4 “class members are not afforded an opportunity to opt out.” Id.

5

Plaintiffs now bring this unopposed motion for final approval of the class action settlement

6 agreement. ECF No. 82.

7 II. LEGAL STANDARD

8

The Ninth Circuit has a “strong judicial policy” favoring the settlement of class actions.

9 Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Rule 23(e) “requires the

10 district court to determine whether a proposed settlement is fundamentally fair, adequate, and

11 reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). The proposed

12 settlement need not be ideal, but it must be fair and free of collusion, consistent with counsel's

13 fiduciary obligations to the class. Id. at 1027. In assessing a settlement agreement, a court must

14 weigh:

15

[T]he strength of the plaintiffs' case; the risk, expense, complexity, and likely

duration of further litigation; the risk of maintaining class action status throughout

16

the trial; the amount offered in settlement; the extent of discovery completed and

the stage of the proceedings; the experience and views of counsel; the presence of a

17

governmental participant; and the reaction of the class members to the proposed

settlement. 18

Id. at 1026. The court need not consider all of these factors, and may consider others. In re 19

Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011). 20

III. DISCUSSION

21

A. Notice Publication

22

When a class is certified under Rule 23(b), courts typically do not require the parties to

23

notify the class. Jamba Juice Co., 2015 WL 1248027, at *8. Moreover, when a settlement

24

25

26 1 In its preliminary approval of the settlement agreement, the Court initially ordered that the notice

be published in three newspapers of general circulation. ECF No. 81 at 15. On November 8, 27 2016, the Defendant filed an unopposed Amendment to the Settlement agreement, specifying five

28

newspapers in which the SSA would publish the notice: San Francisco Chronicle, San Francisco Examiner, San Luis Obispo Tribune, Monterey Herald, and Santa Cruz Sentinel. ECF No. 79 at 3.

3

Case 3:15-cv-00623-JST Document 88 Filed 04/17/17 Page 4 of 5

United States District Court Northern District of California

1 provides only injunctive relief, as is the case here, notice “is not uniformly required.” Green v.

2 Am. Express Co., 200 F.R.D. 211, 212-13 (S.D.N.Y. 2001). In its preliminary approval of the

3 settlement agreement, however, the Court found that publication of notice would nonetheless be

4 wise, and ordered notice to be published in newspapers of general circulation and organizations

5 likely to come in contact with class members. ECF No. 81 at 15.

6

The parties have complied with the publication requirement. Defendant published notice

7 of the settlement in five newspapers and Plaintiffs’ counsel disseminated the notice to a number of

8 organizations’ publications within the time limits established by the Court. See ECF No. 82-1

9 (Decl. of Trinh Phan), 82-2 (Decl. of Patricia Raymond). The Court finds that the class notice

10 plan was implemented properly.

11

B. Fairness, Adequacy, and Reasonableness of the Settlement

12

The Court previously found that the settlement agreement fell within the range of possible

13 approval, with no obvious deficiencies, no preferential treatment to any class member, and

14 resulting from non-collusive negotiations led by experienced and competent counsel. ECF No. 81

15 at 13-14. No objections to the settlement have been filed or brought to the parties’ or the Court’s

16 attention. ECF No. 82 at 3. Defendant has no objection to final approval of the settlement

17 agreement. ECF No. 83 at 2. The Court incorporates here its reasons for granting preliminary

18 approval of the settlement, and finds that the settlement is fair, adequate, and reasonable within the

19 meaning of Rule 23(e).

20

C. Claim Form Procedure

21

The proposed settlement agreement provides that upon final approval of the agreement, the

22 parties will send “Request Forms” to individual class members describing the member’s

23 procedural status with the SSA, informing them of the risks of reopening their claims, informing

24 them that they can have a representative assist them with their claim, and providing an option to

25 submit a different address. ECF No. 81 at 15; ECF No. 76 at 24-25. The forms shall be sent to

26 the class members’ last known address in accordance with the terms of the agreement. See ECF

27 No. 76 at 24-25.

28 4

Case 3:15-cv-00623-JST Document 88 Filed 04/17/17 Page 5 of 5

United States District Court Northern District of California

1

CONCLUSION

2

The Court finds the settlement agreement fair, adequate, and reasonable and GRANTS

3 Plaintiffs motion for final approval of the settlement.

4

The parties shall distribute the Request Forms by May 19, 2017.

5

Defendant will pay $490,000 in attorneys’ fees and costs to Plaintiffs’ counsel Justice in

6 Aging and Legal Aid Society of San Mateo County. The Court finds that this award is fair and

7 reasonable in light of the nature of this Action, counsel’s experience and efforts in prosecuting and

8 resolving this action, and the benefits obtained for the Class. Plaintiffs’ co-counsel, Morrison &

9 Foerster, has agreed to waive its fees and costs.

10

The Court reserves exclusive and continuing jurisdiction over the Action, the Class

11 Representatives, the Class members, and Defendants for the purposes of supervising the

12 implementation, enforcement, and construction of the Settlement and this Judgment.

13

IT IS SO ORDERED.

14 Dated: April 17, 2017

15

______________________________________

16

JON S. TIGAR

17

United States District Judge

18

19

20

21

22

23

24

25

26

27

28 5

 
 Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 1 of 10

1 GERALD A. McINTYRE (SBN 181746)
2 gmcintyre@justiceinaging.org JUSTICE IN AGING
3 3660 Wilshire Blvd., Suite 718
Los Angeles, CA 90010 4 T: (213) 674-2900 / F: (213) 550-0501

5

ANNA RICH (SBN 230195)

6 arich@justiceinaging.org

7

TRINH PHAN (SBN 267288) tphan@justiceinaging.org

8 JUSTICE IN AGING

1330 Broadway, Suite 525

9 Oakland, CA 94612

10 T: (510) 663-1055 / F: (213) 550-0501

CHAD A. READLER Acting Assistant Attorney General JUDRY L. SUBAR Assistant Director Federal Programs Branch M. ANDREW ZEE (CA Bar No. 272510) United States Department of Justice Civil Division, Federal Programs Branch 450 Golden Gate Avenue, Room 7-5395 San Francisco, CA 94102 T: (415) 436-6646 / F: (415) 436-6632 Email: m.andrew.zee@usdoj.gov
Attorneys for Defendant

11 Attorneys for Plaintiffs
(Additional Counsel listed on next page)
12

13

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15
16 KEVIN HART, NINA SILVA-COLLINS, and LEE HARRIS, on behalf of themselves
17 and all others similarly situated,

18

Plaintiffs,

19
v.
20
NANCY A. BERRYHILL, Acting 21 Commissioner of Social Security, in her 22 official capacity,

23

Defendant.

24

25

26

27

28

) ) ) ) ) Case No. 3:15-cv-00623-JST ) ) STIPULATED REQUEST TO AMEND ) ORDER GRANTING FINAL APPROVAL ) OF CLASS ACTION SETTLEMENT AND ) [PROPOSED] ORDER ) ) Hon. Jon S. Tigar ) ) ) ) ) ) ) ) )

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 2 of 10
1 WILLIAM L. STERN (SBN 96105) WStern@mofo.com
2 CLAUDIA M. VETESI (SBN 233485) 3 CVetesi@mofo.com
ROBERT T. PETRAGLIA (SBN 264849) 4 RPetraglia@mofo.com
ELIZABETH BALASSONE (SBN 280563) 5 EBalassone@mofo.com 6 MORRISON & FOERSTER LLP
425 Market Street 7 San Francisco, California 94105-2482 8 T: (415) 268-7000 / F: (415) 268-7522 9 HOPE NAKAMURA (SBN 126901)
hnakamura@legalaidsmc.org 10 LEGAL AID SOCIETY OF SAN MATEO COUNTY 11 330 Twin Dolphin Drive, Suite 123
Redwood City, CA 94065 12 T: (650) 558-0915 / F: (650) 517-8973
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 3 of 10

1

Plaintiffs, Kevin Hart, Nina Silva-Collins, and Lee Harris, on behalf of themselves and all

2 others similarly situated, and Defendant, Nancy A. Berryhill, Acting Commissioner of Social

3 Security, sued solely in her official capacity (“SSA”), submit this Stipulated Request to Amend

4 the Court’s April 17, 2017 Order Granting Final Approval of Class Action Settlement (“Order”)

5 [ECF No. 88] to comport with the terms of the parties’ Amended Settlement Agreement

6 (“Agreement”) [ECF No. 79-1]. The April 17, 2017 Order differs from the Agreement in the

7 following four material respects. First, on page 1, line 19, the Order recites that the case involves

8 “evidence used by Administrative Law Judges (‘ALJs’),” but the case involved adjudications at

9 all levels, not just at the ALJ stage, so Plaintiff would request that “Administrative Law Judges

10 (‘ALJs’)” be replaced with “Social Security Administration (‘SSA’)”; and at page 1, line 20-21,

11 instead of saying “The evidence ALJs consider when making a disability benefits determination

12 includes consultative evaluations,” this should be re[placed with “The evidence the agency

13 considers when making a disability benefits determination often includes consultative evaluations

14 … . “ Second, the Order sets the date for mailing Request Forms as May 19, 2017, but under the

15 Agreement that the Court was approving, the deadline for mailing the Request Forms is later,

16 namely, ninety days (for most forms) and twenty days (for another form) after the time for any

17 appeals from the approval order has elapsed. Third, the Order contains language that might create

18 confusion concerning the enforcement mechanism negotiated and agreed upon by the parties.

19 Fourth, the parties had requested that the Court grant final approval to the amended class

20 definition, which was omitted from the Court’s Order Granting Final Approval. Respectfully,

21 therefore, the parties request that the Court amend its April 17, 2017 Order in the manner

22 described below. Alternatively, the parties request that the Court withdraw the Order and enter

23 the Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in

24 connection with Plaintiffs’ Motion for Final Approval.

25

Request for Amendment of the Order

26

The Conclusion of the Order provides as follows:

27
CONCLUSION
28

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST

Stipulated Request to Amend Order Granting Final Approval

1

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 4 of 10

The Court finds the settlement agreement fair, adequate, and

1

reasonable and GRANTS Plaintiffs motion for final approval of the

2

settlement.

The parties shall distribute the Request Forms by May 19,

3

2017.

Defendant will pay $490,000 in attorneys’ fees and costs to

4

Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San

5

Mateo County. The Court finds that this award is fair and reasonable

in light of the nature of this Action, counsel’s experience and efforts

6

in prosecuting and resolving this action, and the benefits obtained

7

for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has agreed to waive its fees and costs.

8

The Court reserves exclusive and continuing jurisdiction

over the Action, the Class Representatives, the Class members, and

9

Defendants for the purposes of supervising the implementation,

10

enforcement, and construction of the Settlement and this Judgment.

11
Order 5. The parties request that the Order be amended to remove the second and fourth
12
paragraphs of this Conclusion, and to include a term that the parties had requested that the Court
13
include.
14
Second Paragraph: In the Agreement, the parties did not establish a date certain (such as
15
May 19, 2017) by which SSA would send claimants the agreed-upon notices and claim forms
16
(referred to by the Court as “Request Forms” in the Order). Instead, the deadline to send such
17
forms is to be established in relation to the “date on which the Settlement becomes effective.”
18
See Agreement 18, 20, 27, 28, 31 (providing that SSA will send Notices A, A2, B, and B2 within
19
ninety days after the effective date and Notice C within twenty days after the effective date).
20
Pursuant to the agreed definition, the “date on which the Settlement becomes effective” will not
21
be known until either (1) any timely appeal of the approval order is resolved; or (2) no timely
22
appeal is filed. Agreement 4 (defining “date on which the Settlement becomes effective”). A
23
May 19, 2017 deadline to distribute the Request Forms is therefore at odds with the terms of the
24
Agreement. Further, counsel have been informed that SSA is not in a position to meet a May 19,
25
2017 deadline (which would in any event come before the deadline for an appeal from the April
26
17, 2017 Order). Therefore, the parties respectfully request that the second paragraph of the
27
Conclusion be stricken. Otherwise, the parties will be in the difficult position of having an Order
28

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST

Stipulated Request to Amend Order Granting Final Approval

2

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 5 of 10

1 granting final approval of a Settlement Agreement that deviates from the negotiated terms of the

2 Settlement Agreement (and which, as a practical matter, cannot be performed).

3

Fourth Paragraph: In the Agreement, the parties identified specific pre-dispute resolution

4 procedures in an Enforcement provision. Agreement 33-35. Without noting the Enforcement

5 provision, the April 17, 2017 Order states that the Court “reserves exclusive and continuing

6 jurisdiction over the Action, the Class Representatives, the Class members, and Defendants for

7 the purposes of supervising the implementation, enforcement, and construction of the Settlement

8 and this Judgment.” Order 5. In the Agreement, however, the parties agreed to an “exclusive

9 process for remedying alleged violations of this Agreement.” Agreement 33. The parties “further

10 agree[d] that no other litigation action in the Case, including but not limited to the filing of any

11 motions or pleadings, may be taken except as set forth in this Section VI [concerning

12 Enforcement].” Id. In order to avoid potential confusion from the language in the Order (which

13 does not expressly reference the Enforcement provision), the parties respectfully request that the 14 fourth paragraph of the Conclusion be stricken.1

15

Final Approval of Amended Class Definition: In the Agreement, the parties agreed, for

16 settlement purposes, to amend the definition of the class and to request that the Court amend the

17 certified class so that the plaintiff class is defined as consisting of “all persons whose SSI or SSDI

18 benefits were either denied or terminated and for whom a consultative examination was prepared

19 by Dr. Frank Chen, and all persons who received a partially favorable decision or determination

20 on their claim for SSI or SSDI benefits and for whom a consultative examination was prepared

21 by Dr. Chen.” Agreement 6-7. Although the Court preliminarily approved this modification of

22 the class definition, see Order Granting Mot. for Prelim. Approval, ECF No. 81, at 6-7, it did not

23 expressly grant final approval to this modification. To ensure that proper notice is given of the

24
1 It appears that the fourth paragraph of the Conclusion may have been drawn from the 25 original proposed order submitted by Plaintiffs in connection with their Motion for Final 26 Approval. See Proposed Order, ECF No. 82-3, at 5, ¶ 10 (using same language as fourth
paragraph of the Conclusion). Following submission of this proposed order, SSA registered its
27 objections to this language with Plaintiffs’ counsel, and the parties then agreed to submit an Amended Proposed Order, in which this language does not appear. See Notice of Am. Proposed
28 Order, ECF No. 85-1; see also Def.’s Mem. Supp. Final Approval, ECF No. 83, at 1 n.2.

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST

Stipulated Request to Amend Order Granting Final Approval

3

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 6 of 10

1 amended class definition, and out of an abundance of caution, the parties respectfully request that

2 the Court add a new paragraph to the Conclusion granting final approval to the amended class 3 definition. See also Notice of Am. Proposed Order, ECF No. 85-1, at 1-2, ¶ 5.

4

* * *

5

In summary, the parties respectfully request that the Court amend page 1, line 19 to replace

6 “Administrative Law Judges (‘ALJs’)” with “Social Security Administration (‘SSA’)”; and at

7 page 1, line 20-21, instead of saying “The evidence ALJs consider when making a disability

8 benefits determination includes consultative evaluations,” this should be replaced with “The

9 evidence the agency considers when making a disability benefits determination often includes

10 consultative evaluations … . “ The Conclusion of the Order should be amended so that it provides

11 as follows:

12

CONCLUSION

13

The Court finds the settlement agreement fair, adequate, and

14

reasonable and GRANTS Plaintiffs motion for final approval of the

settlement.

15

This Court gives its final approval of the Settlement to the

amended class definition as approved in its Order Granting Motion

16

for Preliminary Approval of Class Action Settlement:

17

[A]ll persons whose SSI or SSDI benefits

were either denied or terminated and for whom a

18

consultative examination was prepared by Dr. Frank

Chen, and all persons who received a partially

19

favorable decision or determination on their claim

20

for SSI or SSDI benefits and for whom a consultative

examination was prepared by Dr. Chen.

21

(ECF No. 81 at 6-7.)

Defendant will pay $490,000 in attorneys’ fees and costs to

22

Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San

23

Mateo County. The Court finds that this award is fair and reasonable

in light of the nature of this Action, counsel’s experience and efforts

24

in prosecuting and resolving this action, and the benefits obtained

25

for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has agreed to waive its fees and costs.

26 Alternatively, the parties request that the Court withdraw the Order in its entirety and enter the

27 Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in

28 connection with Plaintiffs’ Motion for Final Approval. A proposed order is attached.

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST

Stipulated Request to Amend Order Granting Final Approval

4

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 7 of 10

1
2 Dated: April 21, 2017
3 4 5 6 7 8
9 Dated: April 21, 2017
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WILLIAM L. STERN CLAUDIA M. VETESI ROBERT T. PETRAGLIA ELIZABETH BALASSONE MORRISON & FOERSTER LLP
By: /s/ William L. Stern WILLIAM L. STERN
Attorney for Plaintiffs
U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION
CHAD A. READLER Acting Assistant Attorney General JUDRY L. SUBAR Assistant Director M. ANDREW ZEE (CA Bar # 272510) Attorney
By: /s/ Andrew Zee M. ANDREW ZEE
Attorneys for Defendant

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST

Stipulated Request to Amend Order Granting Final Approval

5

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 8 of 10

[PROPOSED] ORDER
1

2

Upon stipulation of the parties, and good cause appearing, the Court hereby orders that:

3

The Court’s April 17, 2017 Order Granting Final Approval of Class Action Settlement is

4 amended by
5
Replacing, at page 1, line 19, “Administrative Law Judges (‘ALJs’)” with “Social
6
7 Security Administration (‘SSA’)”;

8

Replacing, at page 1, line 20-21, “The evidence ALJs consider when making a disability

9 benefits determination includes consultative evaluations,” with “The evidence the agency

10
considers when making a disability benefits determination often includes consultative
11
evaluations,“; and
12

13

Striking the Conclusion section appearing at lines 2 through 12 of page 5, and replacing it

14 with the following text:

15

CONCLUSION

16

The Court finds the settlement agreement fair, adequate, and

reasonable and GRANTS Plaintiffs motion for final approval of the

17

settlement.

This Court gives its final approval of the Settlement to the

18

amended class definition as approved in its Order Granting Motion

19

for Preliminary Approval of Class Action Settlement:

[A]ll persons whose SSI or SSDI benefits

20

were either denied or terminated and for whom a

consultative examination was prepared by Dr. Frank

21

Chen, and all persons who received a partially

22

favorable decision or determination on their claim

for SSI or SSDI benefits and for whom a consultative

23

examination was prepared by Dr. Chen.

(ECF No. 81 at 6-7.)

24

Defendant will pay $490,000 in attorneys’ fees and costs to

25

Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San

Mateo County. The Court finds that this award is fair and reasonable

26

in light of the nature of this Action, counsel’s experience and efforts

27

in prosecuting and resolving this action, and the benefits obtained

for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has

28

agreed to waive its fees and costs.

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST

Stipulated Request to Amend Order Granting Final Approval

6

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 9 of 10

1
2 PURSUANT TO STIPULATION, IT IS SO ORDERED.

3

4

5
Dated: April 25, 2017
6
7

HON. JON S. TIGAR United States District Court Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST

Stipulated Request to Amend Order Granting Final Approval

7

Case 3:15-cv-00623-JST Document 90 Filed 04/25/17 Page 10 of 10

ATTESTATION
1

2

Pursuant to Local Rule 5-1(i)(3), I attest that I am the ECF user whose user ID and

3 password are being used in the electronic filing of this document, and further attest that I have

4 obtained the concurrence in the filing of the document from the other signatory.
5

6
/s/ Andrew Zee

7

M. ANDREW ZEE

8

9

CERTIFICATE OF SERVICE

10

I hereby certify that on the 21st day of April, 2017, I electronically transmitted the

11 foregoing document to the Clerk of Court using the ECF System for filing.

12

13

14

/s/ Andrew Zee

15

M. ANDREW ZEE

16

17

18

19

20

21

22

23

24

25

26

27

28

Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval

 
 Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 1 of 14
ADRMOP,CLOSED,CONSENT,REFSET−LB
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:15−cv−00623−JST

Kevin Hart et al v. Nancy A. Berryhill Assigned to: Judge Jon S. Tigar Referred to: Magistrate Judge Laurel Beeler (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/09/2015 Date Terminated: 04/17/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Kevin Hart

represented by William Lewis Stern Covington & Burling LLP One Front Street San Francisco, CA 94111 415−591−7069 Fax: 415−955−6569 Email: WStern@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Margaret Rich California Department of Justice 1515 Clay St. Suite 2000 Oakland Oakland, CA 94612−1499 510−879−0296 Fax: 510−622−2270 Email: Anna.Rich@doj.ca.gov ATTORNEY TO BE NOTICED

Claudia Maria Vetesi Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105−2482 415−268−6626 Fax: 415−268−7522 Email: cvetesi@mofo.com ATTORNEY TO BE NOTICED

Elizabeth Gilmore Balassone Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105−2482 415−268−7000 Fax: 415−268−7522 Email: EBalassone@mofo.com TERMINATED: 02/13/2020

Gerald Andrew McIntyre Justice in Aging 3660 Wilshire Boulevard, Suite 718 Los Angeles, CA 90010 213−674−2900 Fax: 213−550−4001 Email: gmcintyre@justiceinaging.org ATTORNEY TO BE NOTICED

Hope Gisele Nakamura Legal Aid Society of San Mateo County Sobrato Center for Nonprofits

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 2 of 14

Plaintiff Nina Silva−Collins

330 Twin Dolphin Drive, Suite 123 Redwood City, CA 94065 650−558−0915 Fax: 650−517−8973 Email: hnakamura@legalaidsmc.org ATTORNEY TO BE NOTICED
Kathryn Rose Lang Justice in Aging 1444 Eye Street NW, Suite 1100 Washington, DC 20005 202−683−1997 Fax: 202−289−7224 Email: klang@justiceinaging.org ATTORNEY TO BE NOTICED
Robert Travis Petraglia Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105−2482 415−268−7000 Fax: 415−268−7522 Email: rpetraglia@mofo.com TERMINATED: 05/11/2017
Spencer McManus Morrison & Foerster LLP 425 Market Street San Francisco, CA 941052482 415−268−7906 Fax: 415−268−7522 Email: smcmanus@mofo.com ATTORNEY TO BE NOTICED
Trinh Phan Justice in Aging 1330 Broadway, Suite 525 Oakland, CA 94612 510−663−1055 Fax: 510−663−1051 Email: tphan@justiceinaging.org ATTORNEY TO BE NOTICED
represented by William Lewis Stern (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Claudia Maria Vetesi (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Gilmore Balassone (See above for address) TERMINATED: 02/13/2020
Gerald Andrew McIntyre (See above for address) ATTORNEY TO BE NOTICED

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 3 of 14

Plaintiff
Lee Harris on behalf of themselves and all others similarly situated

Hope Gisele Nakamura (See above for address) ATTORNEY TO BE NOTICED
Kathryn Rose Lang (See above for address) ATTORNEY TO BE NOTICED
Robert Travis Petraglia (See above for address) TERMINATED: 05/11/2017
Spencer McManus (See above for address) ATTORNEY TO BE NOTICED
Trinh Phan (See above for address) ATTORNEY TO BE NOTICED
represented by William Lewis Stern (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Claudia Maria Vetesi (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Gilmore Balassone (See above for address) TERMINATED: 02/13/2020
Gerald Andrew McIntyre (See above for address) ATTORNEY TO BE NOTICED
Hope Gisele Nakamura (See above for address) ATTORNEY TO BE NOTICED
Kathryn Rose Lang (See above for address) ATTORNEY TO BE NOTICED
Robert Travis Petraglia (See above for address) TERMINATED: 05/11/2017
Spencer McManus (See above for address) ATTORNEY TO BE NOTICED
Trinh Phan (See above for address) ATTORNEY TO BE NOTICED

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 4 of 14

V.
Defendant
Nancy A. Berryhill Acting Commissioner of Social Security, in her official capacity

represented by Michael Andrew Zee United States Department of Justice Civil Division, Federal Programs Branch 450 Golden Gate Avenue, Room 7−5395 San Francisco, CA 94102 415−436−6646 Fax: 415−436−6632 Email: m.andrew.zee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/09/2015 02/09/2015 02/09/2015
02/09/2015 02/10/2015 02/10/2015 02/13/2015 02/24/2015
02/26/2015 03/17/2015

# Docket Text
1 Class Action COMPLAINT against Carolyn W. Colvin, (Filing Fee: $400.00, receipt number 0971−9274100). Filed by Lee Harris, Nina Silva−Collins, Kevin Hart. (Attachments: #(1) Civil Cover Sheet)(Stern, William) (Filed on 2/9/2015) (Entered: 02/09/2015)
2 Proposed Summons. (Stern, William) (Filed on 2/9/2015) (Entered: 02/09/2015)
3 Case assigned to Magistrate Judge Donna M. Ryu.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (bwS, COURT STAFF) (Filed on 2/9/2015) (Entered: 02/09/2015)
4 Certificate of Interested Entities by lee Harris, kevin hart, nina silva−collins (Stern, William) (Filed on 2/9/2015) (Entered: 02/09/2015)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 5/6/2015. Case Management Conference set for 5/13/2015 01:30 PM. (vlkS, COURT STAFF) (Filed on 2/10/2015) (Entered: 02/10/2015)
6 Summons Issued as to Carolyn W. Colvin. (vlkS, COURT STAFF) (Filed on 2/10/2015) (Entered: 02/10/2015)
7 SUMMONS Returned Executed by Lee Harris, Nina Silva−Collins, Kevin Hart. All Plaintiffs. (Stern, William) (Filed on 2/13/2015) (Entered: 02/13/2015)
8 CLERK'S NOTICE Re: Consent or Declination: Plaintiffs shall file a consent or declination to proceed before a magistrate judge within 14 days of this notice. The forms are available at: http://cand.uscourts.gov/civilforms. (This is a docket text entry only, there is no document associated with this entry) (ig, COURT STAFF) (Filed on 2/24/2015) (Entered: 02/24/2015)
9 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Lee Harris, Kevin Hart, Nina Silva−Collins.. (Stern, William) (Filed on 2/26/2015) (Entered: 02/26/2015)
10 NOTICE of Appearance by William Lewis Stern , Gerald A. McIntyre, Anna Rich, Claudia M. Vetesi, Robert Petraglia, Elizabeth Balassone, Trinh Phan, and Hope Nakamura (Stern, William) (Filed on 3/17/2015) (Entered: 03/17/2015)

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 5 of 14

03/26/2015 03/26/2015 03/27/2015
03/30/2015 03/30/2015
04/03/2015 04/03/2015 04/03/2015 04/20/2015
04/28/2015 04/29/2015 04/29/2015 05/01/2015 05/06/2015 05/13/2015

11 NOTICE of Appearance by Michael Andrew Zee (Zee, Michael) (Filed on 3/26/2015) (Entered: 03/26/2015)
12 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Carolyn W. Colvin.. (Zee, Michael) (Filed on 3/26/2015) (Entered: 03/26/2015)
13 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned. ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE−NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED. This is a text only docket entry; there is no document associated with this notice. (vlkS, COURT STAFF) (Filed on 3/27/2015) (Entered: 03/27/2015)
14 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Jon S. Tigar for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to the case. Signed by the Executive Committee on March 30, 2015. (cjlS, COURT STAFF) (Filed on 3/30/2015) (Entered: 03/30/2015)
15 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 5/6/2015. Initial Case Management Conference set for 5/20/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Standing Order, # 2 Standing Order for All Judges of the Northern District) (wsn, COURT STAFF) (Filed on 3/30/2015) (Entered: 03/30/2015)
16 STIPULATION WITH [PROPOSED] ORDER SETTING BRIEFING SCHEDULE FOR DEFENDANT'S MOTION TO DISMISS filed by Carolyn W. Colvin. (Attachments: #(1) Declaration of M. Andrew Zee)(Zee, Michael) (Filed on 4/3/2015) (Entered: 04/03/2015)
17 STIPULATION AND ORDER re 16 STIPULATION WITH PROPOSED ORDER SETTING BRIEFING SCHEDULE filed by Carolyn W. Colvin. Signed by Judge Jon S. Tigar on April 3, 2015. (wsn, COURT STAFF) (Filed on 4/3/2015) (Entered: 04/03/2015)
Set Deadlines/Hearings: Motion Hearing set for 6/25/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. (wsn, COURT STAFF) (Filed on 4/3/2015) (Entered: 04/03/2015)
18 MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by Carolyn W. Colvin. Motion Hearing set for 6/25/2015 02:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Responses due by 5/18/2015. Replies due by 6/8/2015. (Attachments: # 1 Declaration of Lisa Pagan, # 2 Exhibit A)(Zee, Michael) (Filed on 4/20/2015) (Entered: 04/20/2015)
19 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Zee, Michael) (Filed on 4/28/2015) (Entered: 04/28/2015)
20 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Stern, William) (Filed on 4/29/2015) (Entered: 04/29/2015)
21 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Stern, William) (Filed on 4/29/2015) (Entered: 04/29/2015)
22 ADR Clerk's Notice Setting ADR Phone Conference on Wednesday, May 13, 2015 at 1:00 PM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 5/1/2015) (Entered: 05/01/2015)
23 JOINT CASE MANAGEMENT STATEMENT filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 5/6/2015) (Entered: 05/06/2015)
ADR Remark: ADR Phone Conference held by Robin Siefkin on 5/13/2015. A further ADR Phone Conference is scheduled on 7/27/2015 at 11:00 AM Pacific time. The call−in information remains the same. (af, COURT STAFF) (Filed on 5/13/2015)

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 6 of 14

05/18/2015 05/18/2015 05/20/2015
06/08/2015 06/24/2015 06/25/2015 06/26/2015 06/29/2015 07/08/2015 07/08/2015
07/10/2015 07/15/2015 07/17/2015 07/21/2015

(Entered: 05/13/2015)
24 NOTICE of Appearance by Kathryn Rose Lang (Lang, Kathryn) (Filed on 5/18/2015) (Entered: 05/18/2015)
25 RESPONSE to (re 18 MOTION to Dismiss for Lack of Subject Matter Jurisdiction) filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 5/18/2015) (Entered: 05/18/2015)
26 Minute Entry for proceedings held before Hon. Jon S. Tigar: Initial Case Management Conference held on 5/20/2015. Case Management Statement due by 8/5/2015. Further Case Management Conference set for 8/19/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. Court Reporter: Not reported. (wsn, COURT STAFF) (Date Filed: 5/20/2015) (Entered: 05/20/2015)
27 REPLY (re 18 MOTION to Dismiss for Lack of Jurisdiction ) filed byCarolyn W. Colvin. (Attachments: # 1 Declaration of Scott J. Borrowman, # 2 Exhibit A, # 3 Exhibit B)(Zee, Michael) (Filed on 6/8/2015) (Entered: 06/08/2015)
28 Second Declaration of Scott J. Borrowman in Support of 18 MOTION to Dismiss for Lack of Jurisdiction filed by Carolyn W. Colvin. (Attachments: # 1 Exhibit C)(Related document(s) 18 ) (Zee, Michael) (Filed on 6/24/2015) (Entered: 06/24/2015)
29 Minute Entry for proceedings held before Hon. Jon S. Tigar: Motion Hearing held on 6/25/2015 re 18 MOTION to Dismiss for Lack of Jurisdiction filed by Carolyn W. Colvin. Court Reporter Name Pam Batalo. (wsn, COURT STAFF) (Date Filed: 6/25/2015) (Entered: 06/25/2015)
30 TRANSCRIPT ORDER by Lee Harris, Kevin Hart, Nina Silva−Collins for Court Reporter Pam Batalo. (Balassone, Elizabeth) (Filed on 6/26/2015) (Entered: 06/26/2015)
31 TRANSCRIPT ORDER by Carolyn W. Colvin for Court Reporter Pam Batalo. (Zee, Michael) (Filed on 6/29/2015) (Entered: 06/29/2015)
32 STIPULATION WITH [PROPOSED] ORDER REGARDING BRIEFING SCHEDULE FOR PLAINTIFFS MOTION FOR CLASS CERTIFICATION filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 7/8/2015) (Entered: 07/08/2015)
33 ORDER APPROVING STIPULATION AND SETTING HEARING DATE re 32 STIPULATION WITH PROPOSED ORDER REGARDING BRIEFING SCHEDULE FOR PLAINTIFFS MOTION FOR CLASS CERTIFICATION filed by Kevin Hart, Nina Silva−Collins, Lee Harris. Motion Hearing set for 10/8/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Signed by Judge Jon S. Tigar on July 8, 2015. (wsn, COURT STAFF) (Filed on 7/8/2015) (Entered: 07/09/2015)
34 UNOPPOSED ADMINISTRATIVE MOTION for Leave to File Notice of Appeals Council Order in Further Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Carolyn W. Colvin. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Zee, Michael) (Filed on 7/10/2015) (Entered: 07/10/2015)
35 RESPONSE to (re 34 Unopposed Administrative MOTION for Leave to File Notice of Appeals Council Order in Further Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction) filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 7/15/2015) (Entered: 07/15/2015)
36 ORDER DENYING MOTION TO DISMISS by Judge Jon S. Tigar; denying 18 Motion to Dismiss for Lack of Jurisdiction. (wsn, COURT STAFF) (Filed on 7/17/2015) (Entered: 07/17/2015)
37 Transcript of Proceedings held on 6/25/15, before Judge Tigar. Court Reporter Pamela A. Batalo, Telephone number 626−688−7509; pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 7 of 14

07/27/2015 07/31/2015 08/05/2015 08/06/2015
08/06/2015 08/06/2015
08/16/2015
08/17/2015 08/17/2015 08/17/2015 08/18/2015

Redaction, if required, is due no later than 5 business days from date of this filing. (Re 30 Transcript Order, 31 Transcript Order ) Redaction Request due 8/11/2015. Redacted Transcript Deadline set for 8/21/2015. Release of Transcript Restriction set for 10/19/2015. (Related documents(s) 30 , 31 ) (Batalo, Pam) (Filed on 7/21/2015) (Entered: 07/21/2015)
ADR Remark: ADR Phone Conference held by Howard Herman Director, ADR Program on 7/27/2015. (af, COURT STAFF) (Filed on 7/27/2015) (Entered: 07/27/2015)
38 ANSWER to Plaintiffs' Class Action Complaint filed by Carolyn W. Colvin. (Zee, Michael) (Filed on 7/31/2015) (Entered: 07/31/2015)
39 JOINT CASE MANAGEMENT STATEMENT filed by Carolyn W. Colvin. (Zee, Michael) (Filed on 8/5/2015) (Entered: 08/05/2015)
40 NOTICE OF MOTION & MOTION for Class Certification; Memorandum of Points & Authorities filed by Lee Harris, Kevin Hart, Nina Silva−Collins. Motion Hearing set for 10/8/2015 02:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Responses due by 8/20/2015. Replies due by 8/27/2015. (Attachments: # 1 Proposed Order CERTIFYING CLASS ACTION, # 2 Declaration OF WILLIAM STERN IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION, # 3 Declaration OF ANNA RICH IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION, # 4 Declaration OF ANDY CHU IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION, # 5 Exhibit A, # 6 Exhibit B, # 7 Declaration OF NYLA MOUJAES IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION, # 8 Exhibit A, # 9 Exhibit B, # 10 Exhibit C, # 11 Exhibit D, # 12 Exhibit E, # 13 Exhibit F, # 14 Exhibit G)(Stern, William) (Filed on 8/6/2015) (Entered: 08/06/2015)
41 Declaration of KYLE KITSON in Support of 40 MOTION for Class Certification filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 40 ) (Stern, William) (Filed on 8/6/2015) (Entered: 08/06/2015)
42 Declaration of TRINH PHAN in Support of 40 MOTION for Class Certification filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Declaration (SECOND) OF TRINH PHAN IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION)(Related document(s) 40 ) (Stern, William) (Filed on 8/6/2015) (Entered: 08/06/2015)
43 ORDER CONTINUING CASE MANAGEMENT CONFERENCE The Court having already set a class certification briefing schedule and referred the case to a Magistrate Judge for settlement, and it appearing that there are no case management matters currently requiring the Court's attention, the case management conference currently scheduled for August 19, 2015 is CONTINUED to November 19, 2015 at 2:00 p.m. The parties must file a joint case management statement at least ten court days in advance. (Entered by Judge Jon S. Tigar) (Filed on 8/16/2015) (Entered: 08/16/2015)
44 ORDER OF REFERENCE TO MAGISTRATE JUDGE FOR SETTLEMENT. Signed by Judge Jon S. Tigar on August 16, 2015. (wsn, COURT STAFF) (Filed on 8/17/2015) (Entered: 08/17/2015)
Set Deadlines/Hearings: Case Management Statement due by 11/5/2015. Further Case Management Conference set for 11/19/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. (wsn, COURT STAFF) (Filed on 8/17/2015) (Entered: 08/17/2015)
CASE REFERRED to Magistrate Judge Maria−Elena James for Settlement (ahm, COURT STAFF) (Filed on 8/17/2015) (Entered: 08/17/2015)
45 Order Setting Settlement Conference before Magistrate Judge: Settlement Conference set for 11/17/2015 10:00 AM, in Chambers, 15th Floor. Signed by Magistrate Judge Maria−Elena James on 08/18/2015. (rmm2S, COURT STAFF) (Filed on 8/18/2015) (Entered: 08/18/2015)

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 8 of 14

08/27/2015 09/03/2015 10/08/2015
10/09/2015

46 RESPONSE to (re 40 MOTION for Class Certification) filed by Carolyn W. Colvin. (Zee, Michael) (Filed on 8/27/2015) (Entered: 08/27/2015)
47 REPLY (re 40 MOTION for Class Certification) filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 9/3/2015) (Entered: 09/03/2015)
48 Minute Entry for proceedings held before Hon. Jon S. Tigar: Motion Hearing held on 10/8/2015 re 40 MOTION to Certify Class filed by Kevin Hart, Nina Silva−Collins, Lee Harris. Court Reporter: Kathy Sullivan. (wsn, COURT STAFF) (Date Filed: 10/8/2015) (Entered: 10/08/2015)
49 CORRECTED BY ORDER AT DOCKET 50

10/14/2015 10/15/2015 10/26/2015
11/05/2015 11/17/2015
11/17/2015 11/17/2015 12/18/2015

ORDER GRANTING CLASS CERTIFICATION by Judge Jon S. Tigar; granting 40 Motion for Class Certification. (wsn, COURT STAFF) (Filed on 10/9/2015) Modified on 10/14/2015 (wsn, COURT STAFF). (Entered: 10/09/2015)
50 ORDER GRANTING CLASS CERTIFICATION by Judge Jon S. Tigar; granting 40 Motion for Class Certification. Correction of docket 49. (wsn, COURT STAFF) (Filed on 10/14/2015) (Entered: 10/14/2015)
51 TRANSCRIPT ORDER by Carolyn W. Colvin for Court Reporter Katherine Sullivan. (Zee, Michael) (Filed on 10/15/2015) (Entered: 10/15/2015)
52 Transcript of Proceedings held on 10/8/15, before Judge Jon S. Tigar. Court Reporter/Transcriber Katherine Sullivan, telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 51 Transcript Order ) Redaction Request due 11/16/2015. Redacted Transcript Deadline set for 11/27/2015. Release of Transcript Restriction set for 1/25/2016. (Related documents(s) 51 ) (Sullivan, Katherine) (Filed on 10/26/2015) (Entered: 10/26/2015)
53 THIRD JOINT CASE MANAGEMENT STATEMENT filed by Lee Harris, Kevin Hart. (Stern, William) (Filed on 11/5/2015) (Entered: 11/05/2015)
54 Minute Entry for proceedings held before Magistrate Judge Maria−Elena James: Settlement Conference held on 11/17/2015.FTR Time: Not Recorded. Plaintiff Attorney(s): Elizabeth Balassone, William L. Stern, Trinh Phan, Anna Rich, Gerald McIntyre. Defendant Attorney: M. Andrew Zee. Attachment: Minutes of Settlement Conference; Further Settlement Conference scheduled for December 18, 2015 at 10:00 a.m., before Magistrate Judge James. See attached minutes.(rmm2S, COURT STAFF) (Date Filed: 11/17/2015) (Entered: 11/17/2015)
Set/Reset Hearing re 54 Settlement Conference, Further Settlement Conference set for 12/18/2015 10:00 AM, before Magistrate Judge Maria−Elena James. (rmm2S, COURT STAFF) (Filed on 11/17/2015) (Entered: 11/17/2015)
55 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Case Management Conference previously set for 11/19/2015 is continued to 1/20/2016 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. A Joint Case Management Statement is due by 1/13/2016. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 11/17/2015) (Entered: 11/17/2015)
56 ORDER CONTINUING CASE MANAGEMENT CONFERENCE At the request of Magistrate Judge James, the Case Management Conference currently scheduled for January 20, 2016 is CONTINUED to February 24, 2016 at 2:00 p.m. A Joint Case Management Statement must be filed at least seven days beforehand. The Court is unlikely to grant a further continuance of this Case Management Conference. (Entered by Judge Jon S. Tigar) (Filed on 12/18/2015) (This is a text−only entry generated by the court. There is no document associated with this entry) (Entered: 12/18/2015)

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 9 of 14

12/18/2015 12/21/2015
12/21/2015 02/04/2016
02/17/2016 02/24/2016 03/01/2016 04/05/2016
04/05/2016 04/06/2016 04/07/2016 04/28/2016

Set Deadlines/Hearings: Case Management Statement due by 2/17/2016. Further Case Management Conference set for 2/24/2016 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. (wsn, COURT STAFF) (Filed on 12/18/2015) (Entered: 12/18/2015)
57 Minute Entry for proceedings held before Magistrate Judge Maria−Elena James: Settlement Conference held on 12/21/2015.FTR Time: Not Recorded. Plaintiff Attorney(s): Gerald McIntyre; Anna Rich; Elizabeth Balassone, Trinh Phan. Defendant Attorney(s): M.Andrew Bee; Jay Ortis; Scott Borrowman. Attachment: Settlement Conference held, case did not settle, further Settlement Conference scheduled for February 5, 2016, at 10:30 a.m., see attached minutes.(rmm2S, COURT STAFF) (Date Filed: 12/21/2015) (Entered: 12/21/2015)
Set/Reset Hearing re 57 Settlement Conference, Settlement Conference set for 2/5/2016 10:30 AM. (rmm2S, COURT STAFF) (Filed on 12/21/2015) (Entered: 12/21/2015)
58 CLERK'S NOTICE: At the request of the parties and their counsel, the Settlement Conference scheduled for tomorrow, Friday, February 5, 2016 at 10:30 a.m., is VACATED. Counsel shall meet and confer and let the Court know if the wish to go forward with the Settlement Conference at a later date or whether a phone conference would be the preference. Counsel shall contact the Courtroom Deputy, Rose Maher, at 415−522−4708 and let the Court know their preference.. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rmm2S, COURT STAFF) (Filed on 2/4/2016) (Entered: 02/04/2016)
59 FOURTH JOINT CASE MANAGEMENT STATEMENT filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 2/17/2016) (Entered: 02/17/2016)
60 Minute Entry for proceedings held before Hon. Jon S. Tigar: Further Case Management Conference held on 2/24/2016. Motion due by 4/29/2016. Total Time in Court: 5 minutes. Court Reporter: Not reported. (wsn, COURT STAFF) (Date Filed: 2/24/2016) (Entered: 02/24/2016)
61 Order Setting Settlement Conference before Magistrate Judge: Settlement Conference set for 4/5/2016 10:00 AM, in Chambers, 15th Floor, 450 Golden Gate Avenue, San Francisco, CA 94102. Signed by Magistrate Judge Maria−Elena James on 3/1/2016. (rmm2S, COURT STAFF) (Filed on 3/1/2016) (Entered: 03/01/2016)
62 Minute Entry for proceedings held before Magistrate Judge Maria−Elena James: Settlement Conference held on 4/5/2016.FTR Time: Not Recorded. Plaintiff Attorney(s): Trinh Phan, Esq.; William L. Stern, Esq.; Robert T. Petraglia, Esq.; Anna Rich, Esq.; Gerald McIntyre, Esq. Defendant Attorney(s): M. Andrew Zee, Esq.; Jamie Dixon, Esq. Attachment: Minutes of Settlement Conference; Further Settlement Status Hearing set for April 28, 2016, at 10:00 a.m., in Courtroom B, 15th Floor, before Magistrate Judge Maria−Elena James. See attached Minutes.(rmm2S, COURT STAFF) (Date Filed: 4/5/2016) (Entered: 04/05/2016)
Set/Reset Hearing re 62 Settlement Conference: Further Settlement Status Conference set for 4/28/2016 10:00 AM in Courtroom B, 15th Floor, San Francisco before Magistrate Judge Maria−Elena James. (rmm2S, COURT STAFF) (Filed on 4/5/2016) (Entered: 04/05/2016)
63 CLERK'S NOTICE CONTINUING MOTION FILING DEADLINE. The deadline for filing a motion for preliminary approval currently set for 4/29/2016 is continued to 6/10/2016. The parties are to notice a hearing date for the motion when it is filed on the Court's docket. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 4/6/2016) (Entered: 04/06/2016)
64 TRANSCRIPT ORDER for proceedings held on 10/08/2015 before Hon. Jon S. Tigar by Lee Harris, Kevin Hart, Nina Silva−Collins, for Court Reporter FTR − San Francisco. (Stern, William) (Filed on 4/7/2016) (Entered: 04/07/2016)
65 CLERK'S NOTICE SETTING STATUS HEARING RE SETTLEMENT CONFERENCE: Status Conference set for 5/19/2016 10:00 AM in Courtroom B, 15th Floor, San Francisco before Magistrate Judge Maria−Elena James. (rmm2S, COURT

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 10 of 14

05/26/2016 06/06/2016 07/14/2016
07/14/2016 07/28/2016 07/28/2016 07/29/2016
09/06/2016 09/07/2016
09/16/2016 09/16/2016

STAFF) (Filed on 4/28/2016) (Entered: 04/28/2016)
66 CLERK'S NOTICE SCHEDULING FURTHER SETTLEMENT CONFERENCE: A further Settlement Conference is set for 7/13/2016 10:00 AM, in Courtroom B, 15th Floor, San Francisco, before Magistrate Judge Maria−Elena James. Counsel shall come directly to the Courtroom rather than Chambers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rmm2S, COURT STAFF) (Filed on 5/26/2016) (Entered: 05/26/2016)
67 CLERK'S NOTICE CONTINUING MOTION FILING DATE. The deadline for filing a motion for preliminary approval currently set for 6/10/2016 is continued to 8/12/2016. The parties are to notice a hearing date for the motion when it is filed on the Court's docket. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 6/6/2016) (Entered: 06/06/2016)
68 Minute Entry for proceedings held before Magistrate Judge Maria−Elena James: Settlement Conference held on 7/14/2016.FTR Time: Not Recorded. Plaintiff Attorney(s): William Stern; Robert Petraglia; Anna Rich, Esq.;Trinh Phan, Esq., Gerald McIntyre, Esq. Defendant Attorney: M.Andrew Zee, Esq.; Jamie Dixon, Esq. Attachment: Minutes of Further Settlement Conference; A further Settlement Conference is scheduled for July 28, 2016 at 10:00 a.m.(rmm2S, COURT STAFF) (Date Filed: 7/14/2016) (Entered: 07/14/2016)
69 CLERK'S NOTICE SCHEDULING FURTHER SETTLEMENT CONFERENCE: Further Settlement Conference set for 7/28/2016 10:00 AM. (rmm2S, COURT STAFF) (Filed on 7/14/2016) (Entered: 07/14/2016)
70 CLERK'S NOTICE CONTINUING MOTIONS FILING DATE. The deadline for filing a motion for preliminary approval currently set for 8/12/2016 is continued to 9/16/2016. The parties are to notice a hearing date for the motion when it is filed on the Court's docket. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 7/28/2016). (Entered: 07/28/2016)
Set Deadlines/Hearings: Motion for preliminary approval due by 9/16/2016. Correction of ECF No. 70. (wsn, COURT STAFF) (Filed on 7/28/2016) (Entered: 07/28/2016)
71 Minute Entry for proceedings held before Magistrate Judge Maria−Elena James: Settlement Conference held on 7/29/2016.FTR Time: Not Recorded. Plaintiff Attorney(s): Trinh Phan; William L. Stern; Robert T. Petraglia; Anna Rich; Gerald McIntyre. Defendant Attorney(s): M. Andrew Zee, AUSA; Jamie Dixon. Attachment: Minutes of Further Settlement Conference on 7/28/2016; A Further Settlement Conference is scheduled for September 8, 2016 at 10:00 a.m., in Chambers, before Judge James.(rmm2S, COURT STAFF) (Date Filed: 7/29/2016) (Entered: 07/29/2016)
72 NOTICE of Change of Address by Anna Margaret Rich Change of Address for Plaintiffs' Attorney Trinh Phan (Rich, Anna) (Filed on 9/6/2016) (Entered: 09/06/2016)
73 CLERK'S NOTICE CONTINUING SETTLEMENT CONFERENCE: The Settlement Conference which was scheduled for Thursday, September 8, 2016 at 10:00 am, has been CONTINUED to Monday, September 26, 2016, at 10:00 am, in Chambers, 15th Floor, 450 Golden Gate Avenue, San Francisco, CA 94102, before Magistrate Judge Maria−Elena James. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rmm2S, COURT STAFF) (Filed on 9/7/2016) (Entered: 09/07/2016)
74 ORDER CONTINUING DEADLINE TO FILE MOTION FOR PRELIMINARY APPROVAL. Signed by Judge Jon S. Tigar on September 16, 2016. (jstlc2, COURT STAFF) (Filed on 9/16/2016) (Entered: 09/16/2016)
Set Deadlines/Hearings: Motions due by 10/17/2016. (wsn, COURT STAFF) (Filed on 9/16/2016) (Entered: 09/18/2016)

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 11 of 14

09/19/2016 09/19/2016 09/21/2016
09/22/2016 11/08/2016 11/09/2016 11/09/2016 01/09/2017
01/23/2017

75 Notice of Plaintiffs' Unopposed Motion and Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement filed by Lee Harris, Kevin Hart, Nina Silva−Collins. Motion Hearing set for 10/27/2016 01:30 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Responses due by 10/3/2016. Replies due by 10/11/2016. (Stern, William) (Filed on 9/19/2016) (Entered: 09/19/2016)
76 Brief in Support re 75 Notice of Plaintiffs' Unopposed Motion and Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement; Memorandum of Points and Authorities in Support of Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Attachments: #(1) Exhibit A, #(2) [Proposed] Order)(Related document(s) 75 ) (Stern, William) (Filed on 9/19/2016) (Entered: 09/19/2016)
77 CLERK'S NOTICE Continuing Motion Hearing as to 75 MOTION for Settlement Notice of Plaintiffs' Unopposed Motion and Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement. This motion has been noticed for hearing on a date when Judge Tigar is not conducting civil law and motion. The Motion Hearing previously noticed for 10/27/2016 is continued to 11/9/2016 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. All other deadlines are unchanged. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 9/21/2016) (Entered: 09/21/2016)
78 CLERK'S NOTICE VACATING SETTLEMENT CONFERENCE: The parties have advised the Court that this matter has settled. Therefore the Settlement Conference scheduled before Magistrate Judge Maria−Elena James on September 26, 2016 at 10:00 am, is VACATED. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rmm2S, COURT STAFF) (Filed on 9/22/2016) (Entered: 09/22/2016)
79 NOTICE of Amended [Proposed] Settlement Agreement filed by Carolyn W. Colvin re 75 Notice of Plaintiffs' Unopposed Motion and Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement, re 76 Brief (Attachments: # 1 Exhibit 1 − Amended Settlement Agreement)(Zee, Michael) (Filed on 11/8/2016) (Entered: 11/08/2016)
80 Minute Entry for proceedings held before Hon. Jon S. Tigar: Motion Hearing held on 11/9/2016 re 75 MOTION for Settlement Notice of Plaintiffs' Unopposed Motion and Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement filed by Kevin Hart, Nina Silva−Collins, Lee Harris. Fairness Hearing set for 3/16/2017 at 2:00 PM. Total Time in Court: 7 minutes. Court Reporter Name: Leo Mankiewicz. (wsn, COURT STAFF) (Date Filed: 11/9/2016) (Entered: 11/09/2016)
81 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT by Judge Jon S. Tigar; granting 75 Motion for Settlement. Fairness Hearing set for 3/16/2017 at 2:00 PM. (wsn, COURT STAFF) (Filed on 11/9/2016) (Entered: 11/09/2016)
82 MOTION for Settlement [Memorandum of Points and Authorities In Support of Motion for Final Approval of Class Action Settlement Agreement] filed by Lee Harris, Kevin Hart, Nina Silva−Collins. Motion Hearing set for 3/16/2017 02:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Responses due by 1/23/2017. Replies due by 1/30/2017. (Attachments: # 1 Declaration of Trinh Phan In Support of Plaintiffs Motion For Final Approval of Class Action Settlement Agreement, # 2 Declaration of Patricia Raymond, # 3 Proposed Order Granting Plaintiffs Motion for Final Approval of Class Action Settlement Agreement)(Stern, William) (Filed on 1/9/2017) (Entered: 01/09/2017)
83 MEMORANDUM in Support of Final Approval re 82 MOTION for Final Approval of Class Action Settlement Agreement; Memorandum of Points and Authorities In Support of Motion for Final Approval of Class Action Settlement Agreement filed by Carolyn W. Colvin. (Zee, Michael) (Filed on 1/23/2017) (Entered: 01/23/2017)

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 12 of 14

03/01/2017
03/01/2017
03/16/2017 03/17/2017 04/17/2017 04/21/2017 04/25/2017 04/25/2017 05/11/2017 05/18/2018 06/05/2018
06/06/2018

84 REPLY (re 82 MOTION for Final Approval of Class Action Settlement Agreement; −[Memorandum of Points and Authorities In Support of Motion for Final Approval of Class Action Settlement Agreement]); −REPLY IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 3/1/2017) (Entered: 03/01/2017)
85 NOTICE filed by Lee Harris, Kevin Hart, Nina Silva−Collins re 82 MOTION for Final Approval of Class Action Settlement Agreement; −[Memorandum of Points and Authorities In Support of Motion for Final Approval of Class Action Settlement Agreement] NOTICE of Amended [Proposed] Order Granting Plaintiffs' Motion for Final Approval of Class Action Settlement Agreement (Attachments: #(1) Exhibit 1)(Stern, William) (Filed on 3/1/2017) (Entered: 03/01/2017)
86 Minute Entry for proceedings held before Hon. Jon S. Tigar: Fairness Hearing held on 3/16/2017, Motion Hearing held on 3/16/2017 re 82 MOTION for Settlement filed by Kevin Hart, Nina Silva−Collins, Lee Harris. Total Time in Court: 2 minutes. Court Reporter: Rhonda Aquilina. (wsn, COURT STAFF) (Date Filed: 3/16/2017) (Entered: 03/16/2017)
87 JOINT STIPULATION OF DISMISSAL WITH PREJUDICE filed by Lee Harris, Kevin Hart, Nina Silva−Collins. (Stern, William) (Filed on 3/17/2017) (Entered: 03/17/2017)
88 ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT by Judge Jon S. Tigar; granting 82 Motion for Settlement. (wsn, COURT STAFF) (Filed on 4/17/2017) (Entered: 04/17/2017)
89 STIPULATION WITH [PROPOSED] ORDER TO AMEND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT re 88 Order on Motion for Class Action Settlement filed by Nancy A. Berryhill. (Zee, Michael) (Filed on 4/21/2017) (Entered: 04/21/2017)
90 STIPULATION AND ORDER re 89 STIPULATION WITH [PROPOSED] ORDER TO AMEND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT re 188 Order on Motion for Class Action Settlement filed by Nancy A. Berryhill. Signed by Judge Jon S. Tigar on April 25, 2017. (wsn, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
91 NOTICE by Nancy A. Berryhill of Re−Filing of Joint Stipulation of Dismissal With Prejudice (Attachments: # 1 Joint Stipulation of Dismissal With Prejudice)(Zee, Michael) (Filed on 4/25/2017) (Entered: 04/25/2017)
92 NOTICE filed by Lee Harris, Kevin Hart, Nina Silva−Collins of Notice of Change in Counsel (Petraglia, Robert) (Filed on 5/11/2017) (Entered: 05/11/2017)
93 Order Setting Further Settlement Conference before Magistrate Judge: Further Settlement Conference set for 6/6/2018 at 10:00 AM in San Francisco, Chambers. Signed by Judge Magistrate Judge Maria−Elena James on 5/18/2018. (rmm2S, COURT STAFF) (Filed on 5/18/2018) (Entered: 05/18/2018)
94 CLERK'S NOTICE: Changing Start Time of Settlement Conference.
The Settlement Conference presently scheduled for June 6, 2018 at 10:00 a.m., shall instead start at 11:00 a.m., in Chambers, 15th Floor, before Magistrate Judge Maria−Elena James.
Settlement Conference set for 6/6/2018 at 11:00 AM in San Francisco, Chambers.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (rmm2S, COURT STAFF) (Filed on 6/5/2018) (Entered: 06/05/2018)
95 Minute Entry for proceedings held before Magistrate Judge Maria−Elena James: Settlement Conference held on 6/6/2018.
FTR Time: Not Recorded
Plaintiff Attorney(s): Trinh Phan, Gerald McIntyre, William L. Stern, Elizabeth

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 13 of 14

Balassone

Defendant Attorney(s): M. Andrew Zee, Counsel, USDOJ, Jamie Dixon, Office of the Attorney General

Minutes: Settlement Conference held, pending Ddspute settled by the parties. Counsel shall put settlement in writing and circulate for approval by all. Matter settled.

02/10/2020 02/13/2020 02/13/2020 02/14/2020
02/18/2020
02/20/2020

(This is a text−only entry generated by the court. There is no document associated with this entry.)(rmm2S, COURT STAFF) (Date Filed: 6/6/2018) (Entered: 06/06/2018)
96 STIPULATION WITH PROPOSED ORDER Requesting Assignment of Magistrate Judge for Mediation filed by Lee Harris, Kevin Hart, Nina Silva−Collins and Andrew Saul. (Balassone, Elizabeth) (Filed on 2/10/2020) Modified on 2/11/2020 (jmlS, COURT STAFF). (Entered: 02/10/2020)
97 Order by Judge Jon S. Tigar granting 96 Stipulation Requesting Assignment of Magistrate Judge for Mediation.(mllS, COURT STAFF) (Filed on 2/13/2020) (Entered: 02/13/2020)
98 NOTICE of Substitution of Counsel by Spencer McManus for Plaintiffs (McManus, Spencer) (Filed on 2/13/2020) (Entered: 02/13/2020)
99 **PLEASE DISREGARD**DOCKETED IN ERROR**ORDER, Case Reassigned to Magistrate Judge Laurel Beeler for all further proceedings. Judge Jon S. Tigar no longer assigned to the case.. Signed by The Clerk on 2/14/20. (haS, COURT STAFF) (Filed on 2/14/2020) Modified on 2/20/2020 (haS, COURT STAFF). (Entered: 02/14/2020)
100 CLERK'S NOTICE SETTING SETTLEMENT CONFERENCE SCHEDULING CALL: Settlement Conference Scheduling Call set for 2/20/2020 at 11:30 AM. The court will email the call−in number separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 2/18/2020) (Entered: 02/18/2020)
101 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference Call held on 2/20/2020. The court sets the in−person settlement conference for Friday, March 27, 2020 at 10:00 a.m. (Not Reported).

02/20/2020

Plaintiffs' Attorneys: Claudia Vetesi, Spencer McManus, Gerald McIntyre, Trinh Phan and Regan Bailey. Defendant's Attorney: Michael Zee. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 2/20/2020) Modified on 2/20/2020 (ejkS, COURT STAFF). (Entered: 02/20/2020)
102 Order Setting Settlement Conference before Magistrate Judge. The court asked the parties to confer at least two weeks before the settlement conference to narrow any disagreements and to allow them to submit statements one week before the settlement conference that are an up−to−date reflection of their disagreements.

02/20/2020 02/21/2020 03/16/2020

Settlement Conference set for 3/27/2020 at 10:00 AM in San Francisco, Courtroom B, 15th Floor. Settlement Conference Statements due 3/20/2020. Signed by Judge Laurel Beeler on 2/20/2020. (ejkS, COURT STAFF) (Filed on 2/20/2020) Modified on 2/20/2020 (ejkS, COURT STAFF). (Entered: 02/20/2020)
Case is assigned to Judge Jon S. Tigar. (haS, COURT STAFF) (Filed on 2/20/2020) (Entered: 02/20/2020)
CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement. (mklS, COURT STAFF) (Filed on 2/21/2020) (Entered: 02/21/2020)
103 CLERKS NOTICE RE: SETTLEMENT CONFERENCE: Through at least April 17, 2020, pursuant to a recently issued court policy, the court will not be have any

Case: 4:15-cv-00623-JST As of: 08/23/2020 10:11 AM PDT 14 of 14

03/19/2020 03/20/2020 04/17/2020 04/20/2020
04/20/2020 04/20/2020 05/08/2020 05/11/2020 06/25/2020

in−person settlement conferences. The court is open to helping the parties work to find other options, including by having video conferencing or rescheduling the conference. Generally, telephonic settlement conferences are not helpful (though if the parties have already met with the court in person, then a telephonic conference may be useful). The court asks the parties to confer within in three business days and to file something with their positions about their proposed next steps. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/16/2020) (Entered: 03/16/2020)
104 JOINT STATUS REPORT by Lee Harris, Kevin Hart, Nina Silva−Collins and Andrew Saul. (McManus, Spencer) (Filed on 3/19/2020) Modified on 3/20/2020 (jmlS, COURT STAFF). (Entered: 03/19/2020)
105 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE: The court resets the settlement conference previously set for March 27, 2020 to July 14, 2020 at 10:00 a.m., which is its next available date. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/20/2020) (Entered: 03/20/2020)
106 MOTION to Enforce Settlement Agreement and Unopposed Request for Stay of Adjudication of Motion filed by Lee Harris, Kevin Hart, Nina Silva−Collins. Motion Hearing set for 6/3/2020 02:00 PM in Oakland, Courtroom 6, 2nd Floor before Judge Jon S. Tigar. Responses due by 5/1/2020. Replies due by 5/8/2020. (Vetesi, Claudia) (Filed on 4/17/2020) (Entered: 04/17/2020)
Electronic filing error. Case division and case location information are incorrect. The correct information, per the ECF notification sent August 21, 2019, is Oakland Division and the case number should be 4:15−cv−00623 JST. Counsel need not re−file the document, but should reference the correct case information on future filings. Re: 106 MOTION to Enforce Settlement Agreement and Unopposed Request for Stay of Adjudication of Motion filed by Kevin Hart, Nina Silva−Collins, Lee Harris (jmlS, COURT STAFF) (Filed on 4/20/2020) (Entered: 04/20/2020)
Electronic filing error. Proposed order required in accordance with L.R. 5−1(g) Re: 106 MOTION to Enforce Settlement Agreement and Unopposed Request for Stay of Adjudication of Motion filed by Kevin Hart, Nina Silva−Collins, Lee Harris (jmlS, COURT STAFF) (Filed on 4/20/2020) (Entered: 04/20/2020)
107 Proposed Order re 106 MOTION to Enforce Settlement Agreement and Unopposed Request for Stay of Adjudication of Motion by Lee Harris, Kevin Hart, Nina Silva−Collins. (Vetesi, Claudia) (Filed on 4/20/2020) (Entered: 04/20/2020)
108 STIPULATION WITH PROPOSED ORDER to Hold Plaintiffs' Motion for Enforcement of Settlement Agreement in Abeyance filed by Lee Harris, Kevin Hart, Nina Silva−Collins and Andrew Saul. (McManus, Spencer) (Filed on 5/8/2020) Modified on 5/8/2020 (jmlS, COURT STAFF). (Entered: 05/08/2020)
109 Order by Judge Jon S. Tigar granting 108 Stipulation to Hold Plaintiffs' Motion for Enforcement of Settlement Agreement in Abeyance.(mllS, COURT STAFF) (Filed on 5/11/2020) (Entered: 05/11/2020)
110 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE: Pursuant to the parties' stipulation, the court resets the Settlement Conference, previously set for 7/14/2020, to 10/21/2020 at 10:00 AM in San Francisco, Courtroom B, 15th Floor. Settlement Conference Statements due 10/14/2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 6/25/2020) (Entered: 06/25/2020)