Reopening a Prior Decision

Every so often a client who is applying to social security wants to know if they can reopen a prior social security disability (DIB) or supplemental security insurance (SSI) case which resulted in a denial of benefits.
Although it is a difficult situation dealing with time limits and different evidenciary issues, it is still worth everyone’s time and attention to look into the prior application. The reason is possibility of a bigger recovery for the client and fees to the attorney. Social Security pays benefits back to the date of the original application or for disability insurance up to one year prior to application. If you can get the old claim opened and joined to a new application, there is a good possibility of getting a larger award of backpay.
It is important to the decision to attempt to reopen a case that the prior case ended after the initial determination i.e. the claimant was denied benefits (SSDI or SSI) and did not request reconsideration.¹
The next consider when consideration to be made prior to attempting to reopen a prior case is that the subject matter of the prior case needs to be related to the current case, i.e. prior case was back pain and the new case is back pain and herniated disk. If the cases are not related, social security will not allow a reopening.
Reopening the old case is an attempt to obtain a new decision, a second bite of the apple. The regulation, 20 CFR 404.988 provides that within 12 months of notice of the initial determination a decision may be reopened for any reason. Social Security has taken the position that phrase for any reason is to be read to mean when the prior determination was made.²

It is very difficult to reopen a case that has been closed for in excess of 12 months. It can be done and rules require a higher level of proof. This is set out in 20 CFR 404.988 and 20 CFR 404.989³ (For an SSI case the rules to reopen the case are set forth in 20 CFR§§ 416. 1487 through 416.1489, these parallel the rules for reopening a SSDI case )

To begin the process of opening a closed case, a written request to open the prior case must be made. Social Security does not have a form for this process. To reopen a case, you must file a new application and ask social security to reopen the old case. Your request must indicate the on-set date of disability was within the time frame covered by the first application. You must take some type of affirmative action in writing to make the request, for example, putting a statement in the new application that states the prior determination was incorrect.

If the case is over the one year threshold, it becomes more difficult and the requirements of proof increase exponentially.

What happens if social security denies your request to reopen a case? Social Security only allows appeals from initial determinations, and since a request to reopen is not an appeal from an initial determination there is no appeal.

An interesting case to read in this situation is Dealy v. Heckler, 616 F.Supp. 880 (WD Mo. 1984) @ 888⁴--

“The practice of administrative res judicata has been approved by the Supreme Court in United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). "When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."Id. 86 S.Ct. at 1560 (cites omitted). If "an administrative proceeding has not been of an adjudicative nature, a decision arrived at by the administrative agency cannot have res judicata effect." Delamater v. Schweiker, supra, 721 F.2d at 53. Only what is adjudicated can be res judicata, and administrative action other than adjudication cannot be res judicata. Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 350 n. 10 (2d Cir.1973). "An action taken by an administrative agency to grant or deny a benefit is not an adjudicated action unless the agency has made its decision using procedures substantially similar to those employed by the courts." Delamater, supra, 721 F.2d at 53. Use of adjudicative procedure is necessary to produce an adjudication that is binding under the rules of res judicata; where there is no hearing, no testimony, no subpoenaed evidence, no argument, and no opportunity to test any contention by confrontation, the doctrine of administrative res judicata has no application. Id. at 53-54. "Although application of the doctrine of res judicata to administrative decisions serves a useful purpose in preventing relitigation, it is not applied with the same rigidity as its judicial counterpart." Brinker v. Weinberger, 522 F.2d 13, 15 (8th Cir.1975).

Moreover, it is apparent that the regulations pertaining to res judicata adopted by the Secretary are in conflict with the Social Security Act itself. Pursuant to 42 U.S.C. § 405(a), the Secretary has the "full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter...." Id. See McCoy v. Schweiker, 683 F.2d 1138, 1143 (8th Cir.1982) (the Secretary is empowered to make rules and regulations so long as they are not inconsistent with the provisions of the Act). Where a regulation "is inconsistent with the Social Security statute it must, of course, give way." Marion v. Gardner, 359 F.2d 175, 181 (8th Cir. 1966).”

It does start the mind to wonder if the arguments are not applicable to your present case, but you may want to read my prior blog concerning how social security ignores, except as case specific, determination of the Federal District Court.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

1 20 CFR 404.988--A determination, revised determination, decision, or revised decision may be reopened—

(a) Within 12 months of the date of the notice of the initial determination, for any reason;

(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 reopen the case

2POMS DI 27505.001 Conditions for Reopening a Final Determination or Decision

A. Rules for Reopening

Generally, a determination or decision may be reopened and revised only when:

The determination or decision was incorrect when made;

3 20 CFR 404.989 – (a) We will find that there is good cause to reopen a determination or decision if—

(1) New and material evidence is furnished;

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

(3) The evidence that was considered in making the determination or decision clearly shows on its face that an error was made.

(b) We will not find good cause to reopen your case if the only reason for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made.

4Also see, Aversa v. Secretary of HHS, 672 f. Supp. 775 (DNJ 1987)