STIPULATED REQUEST TO AMEND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND [PROPOSED] ORDER

JON S. TIGAR, District Judge.

Plaintiffs, Kevin Hart, Nina Silva-Collins, and Lee Harris, on behalf of themselves and all others similarly situated, and Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security, sued solely in her official capacity ("SSA"), submit this Stipulated Request to Amend the Court's April 17, 2017 Order Granting Final Approval of Class Action Settlement ("Order") [ECF No. 88] to comport with the terms of the parties' Amended Settlement Agreement ("Agreement") [ECF No. 79-1]. The April 17, 2017 Order differs from the Agreement in the following four material respects. First, on page 1, line 19, the Order recites that the case involves "evidence used by Administrative Law Judges (`ALJs')," but the case involved adjudications at all levels, not just at the ALJ stage, so Plaintiff would request that "Administrative Law Judges (`ALJs')" be replaced with "Social Security Administration (`SSA')"; and at page 1, line 20-21, instead of saying "The evidence ALJs consider when making a disability benefits determination includes consultative evaluations," this should be re[placed with "The evidence the agency considers when making a disability benefits determination often includes consultative evaluations... ." Second, the Order sets the date for mailing Request Forms as May 19, 2017, but under the Agreement that the Court was approving, the deadline for mailing the Request Forms is later, namely, ninety days (for most forms) and twenty days (for another form) after the time for any appeals from the approval order has elapsed. Third, the Order contains language that might create confusion concerning the enforcement mechanism negotiated and agreed upon by the parties. Fourth, the parties had requested that the Court grant final approval to the amended class definition, which was omitted from the Court's Order Granting Final Approval. Respectfully, therefore, the parties request that the Court amend its April 17, 2017 Order in the manner described below. Alternatively, the parties request that the Court withdraw the Order and enter the Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in connection with Plaintiffs' Motion for Final Approval.

Request for Amendment of the Order

The Conclusion of the Order provides as follows:

CONCLUSION

Order 5. The parties request that the Order be amended to remove the second and fourth paragraphs of this Conclusion, and to include a term that the parties had requested that the Court include.

Second Paragraph: In the Agreement, the parties did not establish a date certain (such as May 19, 2017) by which SSA would send claimants the agreed-upon notices and claim forms (referred to by the Court as "Request Forms" in the Order). Instead, the deadline to send such forms is to be established in relation to the "date on which the Settlement becomes effective." See Agreement 18, 20, 27, 28, 31 (providing that SSA will send Notices A, A2, B, and B2 within ninety days after the effective date and Notice C within twenty days after the effective date). Pursuant to the agreed definition, the "date on which the Settlement becomes effective" will not be known until either (1) any timely appeal of the approval order is resolved; or (2) no timely appeal is filed. Agreement 4 (defining "date on which the Settlement becomes effective"). A May 19, 2017 deadline to distribute the Request Forms is therefore at odds with the terms of the Agreement. Further, counsel have been informed that SSA is not in a position to meet a May 19, 2017 deadline (which would in any event come before the deadline for an appeal from the April 17, 2017 Order). Therefore, the parties respectfully request that the second paragraph of the Conclusion be stricken. Otherwise, the parties will be in the difficult position of having an Order granting final approval of a Settlement Agreement that deviates from the negotiated terms of the Settlement Agreement (and which, as a practical matter, cannot be performed).

Fourth Paragraph: In the Agreement, the parties identified specific pre-dispute resolution procedures in an Enforcement provision. Agreement 33-35. Without noting the Enforcement provision, the April 17, 2017 Order states that the Court "reserves exclusive and continuing jurisdiction over the Action, the Class Representatives, the Class members, and Defendants for the purposes of supervising the implementation, enforcement, and construction of the Settlement and this Judgment." Order 5. In the Agreement, however, the parties agreed to an "exclusive process for remedying alleged violations of this Agreement." Agreement 33. The parties "further agree[d] 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 [concerning Enforcement]." Id. In order to avoid potential confusion from the language in the Order (which does not expressly reference the Enforcement provision), the parties respectfully request that the fourth paragraph of the Conclusion be stricken.1

Final Approval of Amended Class Definition: In the Agreement, the parties agreed, for settlement purposes, to amend the definition of the class and to request that the Court 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 and for whom a consultative examination was prepared by Dr. Chen." Agreement 6-7. Although the Court preliminarily approved this modification of the class definition, see Order Granting Mot. for Prelim. Approval, ECF No. 81, at 6-7, it did not expressly grant final approval to this modification. To ensure that proper notice is given of the amended class definition, and out of an abundance of caution, the parties respectfully request that the Court add a new paragraph to the Conclusion granting final approval to the amended class definition. See also Notice of Am. Proposed Order, ECF No. 85-1, at 1-2, ¶ 5.

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In summary, the parties respectfully request that the Court amend page 1, line 19 to replace "Administrative Law Judges (`ALJs')" with "Social Security Administration (`SSA')"; and at page 1, line 20-21, instead of saying "The evidence ALJs consider when making a disability benefits determination includes consultative evaluations," this should be replaced with "The evidence the agency considers when making a disability benefits determination often includes consultative evaluations...." The Conclusion of the Order should be amended so that it provides as follows:

CONCLUSION

Alternatively, the parties request that the Court withdraw the Order in its entirety and enter the Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in connection with Plaintiffs' Motion for Final Approval. A proposed order is attached.

[PROPOSED] ORDER

Upon stipulation of the parties, and good cause appearing, the Court hereby orders that:

The Court's April 17, 2017 Order Granting Final Approval of Class Action Settlement is amended by

Replacing, at page 1, line 19, "Administrative Law Judges (`ALJs')" with "Social Security Administration (`SSA')";

Replacing, at page 1, line 20-21, "The evidence ALJs consider when making a disability benefits determination includes consultative evaluations," with "The evidence the agency considers when making a disability benefits determination often includes consultative evaluations,"; and

Striking the Conclusion section appearing at lines 2 through 12 of page 5, and replacing it with the following text:

CONCLUSION

PURSUANT TO STIPULATION, IT IS SO ORDERED.

ATTESTATION

Pursuant to Local Rule 5-1(i)(3), I attest that I am the ECF user whose user ID and password are being used in the electronic filing of this document, and further attest that I have obtained the concurrence in the filing of the document from the other signatory.