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)

Nonacquiescence of Federal Court Decision by Social Security Confuses Me, What About You?

You have struggled with this case for years, now finally you have had a federal court render judgment in your favor adopting your interpretation of the Social Security law. Equipped with the decision, you are ready to use it as stare decisis in another case you have pending before an Administrative Law Judge (ALJ).


You try your case before the ALJ, and you submit a brief covering the subject and referencing your recent win in federal court. You wait to get the decision, knowing the ALJ will reference your case and decide the present matter in your client’s behalf. The decision arrives and the ALJ has ignored your case and decided the case against your client ignoring the exact issue the federal court had previously ruled upon. Social Security/ALJ just would not acquiescence and accept the holding of the federal court.


What is going on? Federal Court decisions are not something a person or federal agency should ignore, right?


Nonacquiescence is an administrative agency’s refusal to follow federal court decisions in subsequent cases.¹ This appears to be a product of administrative law. Administrative law is a code based system normally without any role of common law. As such, when a court enters a decision challenging what has been decided in the administrative process friction (can arise) arises between the agency and the courts.


The Social Security Administration appears to have a history of not following federal court decisions with which it disagrees. Further, the administration is/can be influenced by the current political climate.


Take for example the 1980 Congress which passed the Social Security Act of 1980. The law required review of all current disability benefit recipients² It was a product of concern over the solvency of social security disability program. The Congress set out a call for fiscal austerity. The Secretary of Health and Human Services began to review eligibility of recipients of disability benefits under the social security disability insurance program (SSDI) and the supplemental security income (SSI) program³


This set in motion an accelerated review. Social Security tightened eligibility requirements and placed a burden placed upon beneficiaries, who were receiving benefits, to prove continuing eligibility. This policy resulted in many discontinuations of benefits to a beneficiary whose mental or physical condition had not improved since their initial award of benefits.


The policies that lead to beneficiaries losing benefits lead to attorneys for beneficiaries who were losing benefits to take the issue into the Federal Court system. The federal judiciary responded to the Secretary’s action by finding them inconsistent with the Social Security Act. The Federal Courts were not pleased with a policy under which their decisions were ignored. The Secretary faced with the judicial activism in this area reacted by accepting the result in the case in which the ruling arose, but not considering the decision as a precedent for other cases, dealing with the same issue. This policy took place even though the Secretary did not appeal the court’s decision with which the Secretary objected.⁴


There has been a power struggle between Social Security and the federal court system that has been on going. Social Security wanting dominance over its area of the law and the Federal Courts who believe it is their duty to interpret the law. Over time, Social Security began to recognize federal court decision impacting the implementation of social security disability act. It never was a full acceptance of the court's decisions affecting the rules and regulation of Social Security. Social security limited some court decision only to the case in which it arose. It recognized federal court of appeals cases which it determined conflicted with its own interpretation of either a provision of the act or the agency's regulation as applicable levels of the administrative review process within a particular circuit.⁵ It does appear to accept decisions of the U.S. Supreme Court, carte blanche.


Presently Social Security’s position is set forth at 20 CFR § 416.1485 Application of circuit court law.


“The procedures which follow apply to administrative determinations or decisions on claims involving the application of circuit court law.
(a) General. We will apply a holding in a United States Court of Appeals decision that we determine conflicts with our interpretation of a provision of the Social Security Act or regulations unless the Government seeks further judicial review of that decision or we relitigate the issue presented in the decision in accordance with paragraphs (c) and (d) of this section. We will apply the holding to claims at all levels of the administrative review process within the applicable circuit unless the holding, by its nature, applies only at certain levels of adjudication.
(b) Issuance of an Acquiescence Ruling. When we determine that a United States Court of Appeals holding conflicts with our interpretation of a provision of the Social Security Act or regulations and the Government does not seek further judicial review or is unsuccessful on further review, we will issue a Social Security Acquiescence Ruling. The Acquiescence Ruling will describe the administrative case and the court decision, identify the issue(s) involved, and explain how we will apply the holding, including, as necessary, how the holding relates to other decisions within the applicable circuit…”


It is important to note that acquiescence rulings do not bear the full weight of an actual regulation or law and is only binding within the circuit where the ruling took place.(There are view few acquiescence ruling approximately 43 in number).
The ALJ that hears a case derives authority from the Commissioner of Social Security.⁶ Without a directive from the Commissioner or acquiescence ruling, the ALJ must follow the agency's rules and regulations ignoring federal court decisions to the contrary.
What causes me difficulty in understanding the acquiescence and nonaquiescence is found in 42 USC § 405(g)⁷ I am not a legal scholar, but it appears that the federal court is limited in its review of a decision of an ALJ to consider only three questions, the last of which is 'is the agency's interpretation of its regulation consistent with what Congress intended.'
If the court's decision on this third questions clarifies, changes or reverses the Commissioner's interpretation of its regulation, shouldn't the court's decision be binding on the Commissioner?
Isn't that that exactly what was envisioned as the purpose for the court from the founding of our court system; determine the meaning of the law?
It appears that if you have a strong issue, you should still follow up with an appeal into district or the circuit court of appeals. If you win at the district level, you have done one particular client a great service. If you win at the court of appeals level, you have maybe done a benefit for all similarly situated claimants in your circuit.

1A memorandum to all ALJs in the Department of Health and Human Services provides in party, “ALJs are responsible for apply the Secretary’s policies and guidelines regardless of court decision below the level of the Supreme Court.” Memorandum from Louis B. Hays, Associated Commissioner of the Office of Hearings and Appeals to all ALJs (Jan 7, 1981)

242 U.S.C. § 405 (1982)

3Johnson, Angela M. (1987) “The Social Security Administration’s Policy of Nonacquiescence”, Indiana Law Journal Vol 62, Issue 4, Article 4

4The Social Security Administration’s Policy of Nonacquiescence, supra

520 CFR §§ 404.985(a) (2012)

642 USC § 405(1) – “ Sec. 205. [42 U.S.C. 405] (a) The Commissioner of Social Security shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder. “

742 USC § 405(g) – “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Commissioner of Social Security or a decision is rendered under subsection (b) hereof which is adverse to an individual who was a party to the hearing before the Commissioner of Social Security, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) hereof, the court shall review only the question of conformity with such regulations and the validity of such regulations.

Credibility, social security disability, and claimant

It is a phenomena that constantly bemuses me; the concept of credibility and how it appears in the  Administrative Law Judge’s decision denying a claimant’s disability claim.  Findings that the claimant’s ability to care for his hobby chicken coop, ability to keep the residence clean, prepare meals, even heat and eat meals, activities such as going to church, text, etc.  Especially because the Courts have had trouble with the issue.  Consider the following, Thomas v. Sullivan, 876 F2d. 666 @ 669 (8^th Cir. 1989) the Court noted:

        “First, we note that a claimant need not prove she is bedridden or completely helpless to be found disabled. Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 n. 6 (2d Cir.1972); Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir.1963). Second, we remind the Secretary that to find a claimant has the residual functional capacity to perform a certain type of work, the claimant must have the ability to perform the requisite acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world. McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc). Substantial gainful activity means the performance of substantial services with reasonable regularity either in competitive or self-employment. Markham v. Califano, 601 F.2d 533, 534 (10th Cir.1979). The ability to do light housework with assistance, attend church, or visit with friends on the phone does not qualify as the ability to do substantial gainful activity.”

Leckenby v Astrue, 487 F3d. 626 (8^th Cir. 2007) and Reed v. Barnhart, 399 F3d. 917 (8^th Cir. 2005) have similar holding concerning activities of day living.  While Wagner v. Astrue, 499 F3d 842 (8^th Cir.2007), and Halverson v Astrue, 600 F3d 922 (8^th Cir. 2010) put significant weight upon claimant’s testimony concerning his ability to do such activities.

On the other hand - consider Halverson v. Astrue, 600 F3d 922 (8^th Cir. 2010):   

 "We have held that acts which are inconsistent with a claimant's assertion of disability reflect negatively upon that claimant's credibility." Heino, 578 F.3d at 881. Moreover, "acts such as cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are inconsistent with subjective complaints of disabling pain." Medhaug, 578 F.3d 805. Cf. Reed v. Barnhart, 399 F.3d 917, 923-24 (8th Cir.2005) "This court has repeatedly observed that the ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a claimant can perform full-time competitive work.". In this case, because the record contains several inconsistencies as to Halverson's disability, the ALJ did not err. Heino, 578 F.3d at 881. While Halverson argues the ALJ overstated the extent of her daily activities, the record indicates the ALJ's credibility assessment was proper. Mouser, 545 F.3d at 638 “

Credibility, of a person testifying, is the extent to which his/her statements about pain, etc., can be relied upon as probative evidence in determining if the person is impaired to the extent complained. In general terms, credibility is the believability of the claimant as to his/her extent of impairment. 

This is essential in cases where the record establishes a basis for the symptoms, but the symptoms are subjective to the claimant, i.e., pain.

A person wanting to obtain social security disability benefits has a burden to prove that he/she cannot be employed at any job that is within that person’s functional capacity.  This tends to push a claimant to exaggerate his/her limitations. Because of a probability that this will take place in any one case, social security demands that the adjudicator make a determination as to the claimant’s credibility.

SSR 96-7p states that:

“Because symptoms, such as pain, sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, the adjudicator must carefully consider the individuals statements about symptoms with the rest of the relevant evidence in the case…”

To do this the ruling sets forth a highly detailed regulated guide for evaluating testimony. In its introduction it provides:

“PURPOSE:  The purpose of this Ruling is to clarify when the evaluation of symptoms, including pain, under 20 CFR 404.1529 …requires a finding about the credibility of an individual’s statements about pain or other symptom(s) and its functional effects; to explain the factors to be considered in assessing the credibility of the individual’s statements about symptoms; and to state the importance of explaining the reasons for the findings about the credibility of the individual’s statements in the disability determination or decision.”

To carry out the burden placed upon the adjudicator it provides that a determination by the adjudicatory must be founded upon consideration of the entire case record.

On its face, the ruling appears to indicate that a claimant, who has medical findings that demonstrate the existence of an impairment that could produce pain, may be found disabled on nothing more than the strength of the claimant’s allegations, if the allegations are found credible.

 

In many cases it is not that cut and dried.  The ruling and regulation places the burden upon the adjudicator to evaluate the intensity, persistence and limiting effects of the claimant’s symptoms.  To do that the adjudicator must review the whole file, medical records, witness statements, third party statements, consultants and the claimant’s testimony, be it at the hearing or from forms the claimant previously filled out and submitted at an earlier level in the case.  These cases usually cover years of treatment, numerous documents and experiences, and statements that get into the medical records that have nothing to do with treatment..

Here is where the rub comes into play.  The medical reports contain the treating physician’s opinion of limitations placed upon the claimant because of claimant’s impairment.   Claimant, in subsequent visits to the doctor, has done many things and reports them to the doctor.  One case, the claimant reported swimming all day long in Hawaii (actually he had been on a floatation device for a good portion of the morning and moved around occasionally by moving his hands and arms in the water).  The judge found a basis for the client’s pain, but also ruled the claimant testimony showed that the doctor’s limitations lack credibility.

Can you introduce witness evidence at the disability hearing?

Recently, I had a prospective client come into the office to have me review his denial of benefits and determine if I would handle an appeal.  He indicated that  his other representative told him that no witnesses would be allowed in his case.  I have had experience with an Administrative Law Judge who limited the number of witnesses, provided that witnesses submit their testimony by written submission, but I had never run into a ALJ who said, “No witnesses”.

So what are the rules?   A good place to start is at 20 C.F.R. § 404.916. Disability hearing—procedures.

“(b) Your procedural rights. We will advise you that you have the following procedural rights in connection with the disability hearing process:

(1) You may request that we assist you in obtaining pertinent evidence for your disability hearing and, if necessary, that we issue a subpoena to compel the production of certain evidence or testimony. We will follow subpoena procedures similar to those described in § 404.950(d) for the administrative law judge hearing process;

(2) You may have a representative at the hearing appointed under subpart R of this part, or you may represent yourself;

(3) You, or your representative, may review the evidence in your case file, either on the date of your hearing or at an earlier time at your request, and present additional evidence;

(4) You may present witnesses and question any witnesses at the hearing;”

Lay witness testimony can be submitted by written letter, sworn affidavit or testimony at a hearing.   Which method to use depends a lot on the witness.  If the witness is well spoken, over a lengthy period of time, s/he had had close contact to claimant, and can testify in a direct manner concerning detailed information, it might be preferable to have live testimony. Other cases may be better submitted by written statement or affidavit.

Why do I emphasize a credible individual? Many times your witnesses will not be allowed to be in the hearing room when you are questioned and testify.  After you have completed your testimony the Administrative Law Judge will allow your witness to testify. If, in an attempt to help you win your claim,  your witness exaggerates, lies, or provides inconsistent information from what the claimant testified to, the testimony in the eyes of the judge may hurt the claim.

There are some instances in which calling a witness can be helpful. A judge might want to hear from a witness for a claimant who because of his/her impairment cannot fully testify on his/her own behalf. For example, claimants who have faulty memory, speech impediment, mental or emotional issues that make claimant lose control.
In fact, a judge may ask to receive testimony from a close friend or family member present at the hearing – even if you hadn’t intended for them to be a witness!  This is generally done when the judge feels that the claimant, for whatever reason, is unable to elaborate well enough on a particular subject.

In the end, the judge will decide whether or not a witness will be allowed. Your attorney will be able to advise you on the matter in order to provide the best outcome for your claim

You should select one or at most two people and each of your witnesses should be able to talk about what you can and cannot do, what activities you have trouble with, how your work performance has suffered, how your personal life has suffered, and the hope is that the witness(es) can shed additional light upon the effects of your impairment on your life. Remember, what you are trying to accomplish at a hearing is proving that  you cannot do work that you did in the prior fifteen years and that you cannot adjust to other work because of your medical, psychological condition(s), and your disability must also last, or be expected to, or has lasted for at least one year (or result in your death).

Once you have selected your witnesses, you should contact the Social Security Administration or hearing office right away to let them know. If you do not inform them ahead of time, your witnesses may not be allowed, or your hearing may be delayed.

Notwithstanding the foregoing, I like to have witnesses provide written statements for submission into claimant’s file.  It gives me an opportunity to review what is being presented, and it provides the author with an opportunity to include everything they think is relevant.

I have found that in many cases, submitting a written letter is more helpful than having a witness provide live testimony. It gives the Administrative Law Judge an opportunity to examine the written evidence before the hearing.
A nice thing about a written statement, it gives time for the author to express all that is considered important.  Life testimony doesn’t  provide any second thoughts or do-overs after a hearing.  After testifying, many times witnesses’ stated regrets for things not said.
Finally, hearings are generally set on a pretty tight schedule. Each hearing is scheduled for a short period of time, i.e., one hour  to one hour and a half.  It helps everyone by getting the testimony before the Judge in the time allowed.

Lastly, I like written statements because, at the hearing you know the testimony is in the record and you need not worry about it if the witness doesn’t testify; if the witness doesn’t appear; or if the witness falls apart on the stand or will not stop talking and puts material into the record that damages the case.

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.