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Clark Class Definition Amended

March 27, 2012

Author: Louise M. Tarantino| Catherine M. Callery (Kate)

The definition of the plaintiff class in Clark v. Astrue - the case challenging SSA’s policy of suspending or denying benefits based on the existence of a probation or parole violation warrant - was recently amended by the District Court.  Advocates will recall that in March of 2010, the Court of Appeals for the Second Circuit ruled that SSA’s practice of considering the issuance of a warrant equivalent to a determination that one is in fact violating a condition of probation or parole is contrary to the Social Security Act.  It remanded the case back to the district court for further proceedings.  Clark v. Astrue, 602 F.3d 140 (2d Cir. 2010).  On March 18, 2011, the district court granted certification of a nationwide class.  Clark v. Astrue, 274 F.R.D. 462, 2011 WL 1044527 (S.D.N.Y. March 18, 2011).

In December 2011, the district court granted the plaintiffs’ motion to amend the class definition.  The new definition differs in three respects from the original definition in the original class certification order. First and least important is that the cutoff date for inclusion in the class is moved back five days to include initial determinations made on or after October 24, 2006.  Second, while the court’s earlier class definition was limited to people whose benefits had been suspended or denied, the revised definition also includes anyone with an initial determination of an overpayment of benefits based on a probation or parole warrant.  Third, the revised definition also includes anyone who had a pending appeal of a suspension, denial, or overpayment at any time on or after October 24, 2006.  This last change brings in the group with the greatest potential for large retroactive awards of benefits going back five years or more.

While actual data on the number of people in the plaintiff class is not available, it is estimated that it could number as many as 100,000 people, and individual relief could be substantial.  One class member reports that he has already been notified in advance of any determination of class-wide relief, that his benefits will be reinstated and that he will receive a retroactive payment of $106,000.

Although the court has not yet ordered the relief that will be provided to the plaintiff class, plaintiffs’ counsel suggests there are some steps advocates can take now to assure that clients receive the full benefits to which they are entitled.  First, try to find potential class members.  It would be very useful, if possible, to review old Social Security and SSI files to identify members of the class.  It is also something to keep in mind when interviewing new clients, including those who present with housing, family or other seemingly unrelated problems.  Also, it would help to notify homeless advocacy programs since many class members are homeless. 

And be sure to ask clients with suspensions, denials or overpayments prior to October 24, 2006, whether or not they appealed, since anyone with an appeal pending on or after that date is included in the class.  Don’t forget that all too often requests for reconsideration are never decided or resolved.  This is especially true when people were not represented at the time of filing.  Be sure that SSA has a current mailing address for clients so they will be notified of class-wide relief in timely fashion.  For those who received or applied for OASDI benefits, this is most reliably done on-line.  In SSI cases, it is not possible to do it on-line.  The most effective way to report an address update is to visit the local Social Security office.

For more information about the Clark litigation, see


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