Fifth Circuit Organization of Social Security Claimant s Representatives Meeting: Houston, February 2016 Reopening and Revision of prior decisions: Issues of Administrative Finality and Res Judicata i I. What is Reopening: Overcoming Administrative Finality to Maximize your client s benefits and Medicare/Medicaid eligibility. A. Administrative Finality and Reopening Generally, administrative finality is the concept that a court will not judicially review an administrative decision until it is final. The Social Security Administration (SSA) has defined Administrative Finality in POMS VB 02507.001(B)1: a determination or decision becomes final and binding when rendered, unless it is timely appealed or later reopened and revised within a specified period and for special reasons. Thus, reopening is the mechanism by which administrative finality can be overcome if an appeal was not taken in a timely manner. This question of administrative finality of a prior SSA decision or determination is a commonplace issue in Social Security practice. Our clients frequently apply for benefits unsuccessfully multiple times over the lifetime of their illness or injury before your efforts on your client s behalf result in the client s receipt of a favorable determination or decision. Failing to advise your client of the opportunity to reopen the initial level determinations that were issued to your client by the State agency prior to your representation could cost your client months of backpay and, equally important, months of eligibility for either Medicare or Medicaid. Because the SSA rules for reopening prior determinations 1 or decisions 2 are relatively liberal, reopening should be requested as a matter of course in any case where a prior determination of the same period at issue has been made by the State agency. The Social Security Administration s rules governing the finality of its agency decisions and determinations are located at 20 CFR 404.987-404.996 for Title II claims and at 20 CFR 416.1487-416.1494 for Title XVI claims. The Regulations allow for a final determination in a Title II (disability) case to be reopened and revised for any reason if the request for reopening was made within twelve months of the initial determination. Subsequent to this twelve-month period, a prior application for Title II Disability Insurance Benefits can be reopened and revised if the request for reopening is made within four years of the initial determination of the prior application AND good cause is shown. A prior application for Title XVI (SSI) benefits can be reopened and revised within 1 A determination refers to an initial determination or a reconsidered determination. In all cases, the decision maker is below the level of the administrative law judge (ALJ). POMS VB 02507.001(B)(3). 2 A decision is SSA s formal, written disposition of a formal action by an ALJ or the Appeals Council (AC). POMS VB 02507.001(B)(4).
twelve months for any reason, and can be reopened and revised if the request for reopening is made within two years of the initial determination, if good cause is shown. Good cause exists for reopening when: new and material evidence is furnished; a clerical error in the computation or recomputation of benefits was made; or the evidence that was considered in making the determination or decision clearly shows on its face that an error was made. 20 CFR 404.989, 416.1489. Evidence is new and material when: -the evidence is not part of the claim(s) record as of the date of the ALJ decision or determination; -the evidence is relevant, i.e., involves or is directly related to the issues adjudicated in the prior decision or determination; -the evidence relates to the period on or before the date of the decision or determination; and, -the evidence shows that the decision or determination is contrary to the weight of the evidence. HALLEX I-2-9-40. The weight of the evidence is defined as the balance or preponderance of the evidence; thus, the weight of the evidence means that it is more likely than not that the totality of the evidence, including the additional evidence, would change the action, findings or conclusion. HALLEX I-2-9-40, citing also HALLEX I-3-3-6C. The Regulations, Rulings, HALLEX or POMS do not require that the claimant show any good reason why the new and material evidence was not furnished for consideration during the prior application, nor does the claimant have to show a reason for failing to appeal the prior application 3. Good cause will not be found when the only reason for reopening is a change of legal interpretation or administrative ruling upon which a determination or decision was made. 20 CFR 404.989(b); 416.1489(b). Title II cases can be reopened at ANY TIME for findings of fraud or similar fault or an enumerated list of specific occurrences, including clerical error, later added credits to earnings record which extend a DLI, felony convictions or overturning of felony convictions which affect entitlement. 20 CFR 404.988(c), HALLEX I-3-10-7, HALLEX I-3-9-60. Title XVI determinations may be reopened at any time if the grant was obtained by fraud or similar fault. 20 CFR 416.1488(c). In this regard, it is important to remember that the reopening mechanism can also be employed by SSA, on its own motion. 3 Please note, if appealing a final administrative determination in federal court, a different set of rules and standards concerning submission of new and material evidence apply.
B. Res Judicata - or what Reopening is NOT While reopening is the mechanism for overcoming administrative finality in the absence of a timely appeal, it cannot be employed to circumvent the doctrine of res judicata. Res judicata is the common-law doctrine that bars revision or reconsideration of a prior determination that has been previously administratively or judicially decided in regards to the same facts, issues and parties. This bar is codified by SSA at 20 CFR 404.957(c)(1) and 416.1457(c)(1). HALLEX further explains that administrative res judicata exists when: 1. There has been a previous determination or decision under the same subpart with respect to the same party; 2. the previous determination or decision was based on the same facts and on the same issue(s); and, 3. the previous determination or decision became final by either administrative or judicial action. HALLEX I-2-4-40(B). The differences between res judicata and reopening are most easily illustrated by examples from our practice. Thus, as discussed above, while reopening is not available to the claimant simply because there is a change in the law or statute [e.g. a change in the Listings], res judicata is not a bar to revisiting the prior determination. In this instance, the regulatory creature of administrative finality in the context of Social Security law trumps the doctrine of res judicata in that administrative finality bars reopening when the law changes. Another such example arises any time a claimant provides new evidence in order to request reopening. If the evidence is new and material, then the res judicata bar to reconsideration of the previous decision is overcome in that the determination will now no longer be based upon the same facts (as the new evidence has provided new facts). However, rules of administrative finality may preclude obtaining benefits for that time period (for example, the evidence is not dated within the 4 year good cause period), but because the evidence overcomes the bar of res judicata, the claimant can establish disability during this time period. Thus, even though the claimant may not be entitled to payment of benefits during the period covered by the new evidence, an earlier onset date might extend a date last insured and lead to an award of disability insurance benefits on a current application 4. 4 To illustrate: Claimant alleges an onset date of 1/1/05 and files her Title II application on 2/1/05. She receives her initial denial on 3/31/05. Thus, the last time that she could request reopening of that initial denial is 4/1/09. Unfortunately, due to multiple hurricane evacuations, she never does so, but comes to seek your legal advice after filing a new application on 1/1/11. You note that claimant s DLI was 1/1/10. You obtain evidence documenting disability as of 1/1/05. While the rules regarding reopening no longer allow you to overcome the administrative finality of the 4/1/09 initial denial (you cannot reach back that far and ask the ALJ to reopen the 2005 denial), the new evidence allows you to overcome the bar of res judicata. A finding of disabled of 1/1/05 would fall within the DLI and entitle her to disability benefits on her new application, filed on 1/1/11. Note, your client would only receive payment of benefits from 12 months prior to the date of filing.
C. You Gotta ask for It! 1. Reopening is Mandatory. Sort of. HALLEX I-2-9-10 provides: An ALJ must reopen a determination or decision if the conditions and timeframes for reopening are met, the ALJ has jurisdiction over the issue, and the facts and evidence of the particular case warrant reopening. This language supersedes previous HALLEX language and seems to allow for more discretion of the ALJ to find that perhaps your particular case s evidence and facts do not warrant reopening. However, you can argue that reopening is the preferred action according to SSA procedure in that, if applicable, reopening is the general practice that SSA follows. HALLEX I-3-9-1 notes: While the regulations are written in permissive terms, as a general practice, if both the conditions and timeframes for reopening are met, the SSA component with jurisdiction will usually reopen a determination or decision. It is important to expressly request reopening, for if the claimant has made an express request to reopen a previous determination or decision, the ALJ must rule on the request to reopen: the ALJ will include a finding on the reopening and revision issue in the decision, with supporting rationale. See HALLEX I-2-9-85. Also, note that REOPENING is mandatory, but revision is not. Therefore, the ALJ is obligated only to reopen the prior application, and make findings as to whether or not to revise it. 2. Reopening is reviewable. Sort of. It would seem that if the ALJ must make findings regarding the reopening of the prior determination or decision, that must mean that his findings are appealable, and the decision to reopen or not to reopen is judicially reviewable. Unfortunately, the Supreme Court has held that a decision to reopen a prior application is solely within the discretion of the Commissioner and the Court lacks jurisdiction to review a refusal by SSA to reopen a prior application unless by doing so the claimant s constitutional rights were violated 5. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L. Ed. 2 nd 192 (1977). However, the Fifth Circuit has on occasion reopened a prior determination. In Cieutat v. Bowen, 824 F.2d 348 (5 th Cir.1987), the Court, in essence reviewed the Appeals Council s own motion review of a fully favorable decision. In this case, the Appeals Council (AC) reopened a fully 5 This is another area where the interplay of res judicata and administrative finality can become confusing. Thus, even the Supreme Court s more restrictive reading in Sanders allows certain circumstances under which federal courts retain jurisdiction to review refusals to reopen prior applications. These circumstances generally involve constitutional claims; if a claimant s due process rights are violated, res judicata does not apply. For example, a mentally retarded claimant is unable to understand the denial and appeal deadlines, or a defective notice was issued, or disparate treatment is argued. When arguing to set aside deadlines using due process grounds, you are not urging reopening using the SSA regulatory process therefor, but rather attacking res judicata on due process grounds. You are therefore not limited to one or four year time limits. See SSR 91-5p.
favorable ALJ decision dated August 11, 1983, stemming from an October 6, 1982 application for disability insurance benefits. The claimant challenged the Appeals Council s reopening of the favorable decision while the Government argued that under Sanders, the Court lacked jurisdiction to review the decision to reopen. The Fifth Circuit, using creative reasoning, found that it had jurisdiction to review the AC decision which involved reopening because: here the basis for judicial review is not the decision respecting reopening, but rather the admittedly reviewable decision denying benefits Thus, assuming a federal court can review an Appeals Council s decision to reopen consistently with the Sanders holding, this Court should have jurisdiction over Cieutat s challenge to the Appeals Council s reopening of his case inasmuch as the reopening forms the basis for the denial of benefits of which Cieutat complains. Cieutat, at 358, n.15. The Fifth Circuit again addressed the issue of reopening prior determinations in Cole v. Barnhart, 288 F.3d 149, 150 (5 th Cir.2002). In that case, Cole had received an initial determination on 10/18/90, denying his benefits and subsequently received a favorable ALJ decision in April 1992. The ALJ then reopened his decision on 5/9/94 to find that Cole had performed work prior to the expiration of the twelfth month duration period, and therefore found him not disabled. The Fifth Circuit reviewed the ALJ s decision to reopen his prior favorable decision and found: The decision to reopen and withdraw the ALJ s April 1992 [favorable] decision was in error in that there was no error on the face of the determination and no good cause. Most importantly to the issue of reopening, the Fifth Circuit stated: We review de novo the conclusion that good cause exists for reopening. Cole, p. 152. The Fifth Circuit revisited this very issue last year in Yates v. Colvin, decided on April 6, 2015. While this decision is not published, it provides important insight into Fifth Circuti thinking on the issue of whether the decision to reopen is reviewable. Yates, like Cole before him, suffered the reopening of a favorable ALJ Decision due to a later reporting of earnings during the relevant period. Judge Orr found that Yates was not disabled and Yates appealed, challenging that ALJ Orr erred in reopening the case pursuant to a finding of similar fault. The government argued that pursuant to Califano v. Sanders, the Fifth Circuit lacked subject matter jurisdiction to review ALJ Orr s decision to reopen Yates case. The Fifth Circuit clarified its precedent, and it is worth citing at length: Sanders dealt only with jurisdiction over the decision not to reopen; we have declined to extend it to decisions to reopen that result in a decision against a claimant. In Cole ex rel. Cole v. Barnhart, 288 F.3d 149, 152 (5 th Cir. 2002), we noted that we review de novo the conclusion that good cause exists for reopening. See also id. at 150 ( We have jurisdiction to consider whether there is error in such a decision to reopen for good cause when the reopening led to the partially unfavorable decision. (citing Cieutat v. Bowen, 824 F.2d 348, 358 n.15 (5 th Cir. 1987); Carolyn Kubitschek & Jon Dubin, SOCIAL SECURITY DISABILITY LAW & PROCEDUER IN FEDERAL COURT 6:48 ( In the Fifth Circuit, the court reviews de novo the decision of the Commissioner that there is good cause for reopening. )). Cole involved the decision to reopen a case for good cause, which is a different ground than ALJ Orr s decision here to reopen due to fraud or similar fault. The same rationale nonetheless applies to decision to reopen
based on fraud or similar fault made after a hearing the magistrate judge thus erred in concluding that the decision to reopen is not reviewable. Yates, p. 5(5 th Cir. 2015). Lest we worry that the Fifth Circuit has gone soft and claimant friendly, please note that having found that it does have subject matter jurisdiction over the reopening of a prior decision, the Fifth Circuit promptly affirmed ALJ Orr s decision because substantial evidence supported his factual findings. The Fifth Circuit also refused to find Judge Orr s behavior in the hearing constituted bias. II. Why Reopen? A. Claimant/Claimant s Representative There are three good reasons to spend some time documenting disability during the period previously determined and requesting that the current ALJ reopen any prior unfavorable determinations or decisions. The most obvious is that reopening a prior application can yield a substantially larger award of back pay for your client. In some cases, reopening of a prior initial denial may allow the claimant to prove an onset date prior to an expired DLI, ensuring payments of disability insurance benefits instead of SSI benefits only. In a related issue, reopening an earlier determination could allow the client to prove an earlier onset date which will often mean a larger PIA calculation. Thirdly, reopening a prior decision or determination may extend your client s appeal rights. To illustrate, review this example provided in HALLEX I-2-9-40(C)(2): An ALJ found that a 30 year-old claimant for disability insurance benefits was illiterate, unskilled, could no longer perform his heavy labor job due to his back impairment but had the residual functional capacity to perform light work. The ALJ issued a decision finding that the claimant was not disabled pursuant to Rule 202.16. The ALJ s decision became final and binding when the claimant did not appeal to the Appeals Council. Two years later, the claimant requests that the ALJ reopen the hearing decision and submits evidence that establishes he was limited to sedentary work during the period at issue. Even though the claim will still be denied under Rule 201.23, if the reopening time limit criteria are met, the ALJ may reopen the prior hearing decision, issue a revised decision and provide the claimant with appeal rights. B. The Administration As we saw in our discussion of whether reopening is reviewable, SSA often employs reopening procedures to revisit a favorable determination when later evidence of earnings or other payments to the claimant arises. Some such reopened decisions then lead to findings of fraud or similar fault.
III. When to Request Reopening? As noted, the regulations provide that reopening must be requested within twelve months of the initial determination or within two years from the prior SSI determination if good cause is present, or four years from the prior Disability Benefits determination if good cause is present. Several important practice tips to keep in mind are: - The time limit for reopening runs from the date of the initial denial (which is the first denial issued after an application is filed) to the date of the current application. It does not run from the date of filing of the prior application or from the date of the last decision rendered by the Administration. 20 CFR 404.988; 416.1488. - Any application falling within the four years (for disability insurance benefits) and two years (for SSI) may be reopened or, to restate, the oldest application within the time limit can be reopened. If a claimant filed an application in 2011 and it was denied, and then refiled applications in 2012, 2013, and 2014, the 2011 application should be the one that you specifically and explicitly request to reopen at the 2015 hearing. - It is not possible to piggy back a request to reopen based on an application which falls outside the time period even if a subsequent application within the time period is reopened. To state another way, you cannot treat the reopened application as a request to reopen the oldest application. This is the even earlier rule. To illustrate: claimant is denied benefits on 1/1/00 and refiles and is denied again on 1/1/03, but subsequently is granted benefits by an ALJ on an application initially denied 1/1/05. In this example, the reopening of the 2003 application does not allow for arguing for reopening of the 2000 application, even though the 2000 application is now within four years of 2003 application because the 2000 application is not within four years of the 2005 application that eventually resulted in the grant of benefits. Your four (or two) years run backwards from the date of the APPLICATION that resulted in the grant of benefits. - When a request for reopening is made within the prescribed time limit, the regulatory time periods are tolled so that the decision on the request for reopening does not have to fall within the prescribed time limits. NOTE: 20 CFR 404.991a allows SSA to revise a decision after the normal time periods for reopening IF the investigation was commenced within the time period, was diligently pursued and SSA carried out the action as promptly as circumstances permit. If SSA does not diligently pursue the investigation, the decision may only be revised if the revision is favorable to the claimant. HALLEX I-3-9-50. Finally, the ALJ has jurisdiction to reopen an earlier claim that was denied at hearing even when there is no current claim pending and even if some other ALJ issued the prior decision. HALLEX I-2-9-5. Even though we are accustomed to amending onset dates in new applications to the day after the prior ALJ denial, it is worthwhile, if new evidence surfaces indicating that the
prior denial was in error, to forward the new evidence to the ALJ adjudicating the current claim and requesting that he consider the evidence in conjunction with reopening of the prior ALJ denial. An ALJ cannot reopen a prior AC decision (HALLEX I-2-9-5(B)(2), but CAN make a finding that a claimant was disabled as of the date established by the evidence, but is only entitled on the basis of the current application, AND send a memorandum and copy of his decision to the Office of the Chief ALJ requesting that that office immediately forward the matter to the AC for consideration of reopening of the decision. HALLEX I-2-9-6. IV. Who can Reopen? Who can reopen a prior determination is a question of jurisdiction addressed in POMS and HALLEX. A general rule of thumb to initially remember is that a decision maker can reopen a prior decision issued at the same administrative level or below. For example, an initial decision maker can reopen a prior initial denial, a reconsideration decision maker can reopen an initial denial or a prior denial at reconsideration. State agency employees have no jurisdiction to reopen an earlier ALJ unfavorable decision. POMS DI 27501.005B.3. The questions really arise when determining whether an ALJ or the Appeals Council has the authority to reopen. A. The ALJ s jurisdiction to reopen prior determinations. As we all know, an ALJ may reopen and revise a prior final determination made at the initial or reconsideration level. HALLEX I-2-9-1. This most commonly occurs, as has been discussed above, when the claimant has a subsequent application pending before an ALJ for hearing and the claimant had previously filed an application and received an adverse determination either at the initial or reconsideration level and had not appealed it. However, the claimant could also request reopening without filing a second application. In order to do so, the claimant must first submit to the local office a request that the determination be reopened. If that request is refused, that district office refusal to reopen can be appealed to the ALJ level. The ALJ can also reopen and revise a prior ALJ decision, even if it is not his own. As noted above, the ALJ has jurisdiction to reopen another ALJ s decision simply upon request of any party to the hearing; this means that the claimant does not even have to file a new application and pursue it to the ALJ level to ask for reopening of the prior unfavorable decision. The claimant can simply write to an ALJ and make an express request that the prior ALJ decision be reopened. HALLEX I-2-9-10. The ALJ can also reopen and revise a prior ALJ decision which has been appealed to the Appeals Council IF the Appeals Council dismissed the request for review, or the Appeals Council denied the request for review, causing the prior ALJ decision to become final and binding. NOTE: an ALJ may not reopen and revise an Appeals Council substantive decision. Again, a simple denial of request for review (which is the AC s general practice if it chooses not to reverse or grant remand of a claim) does not take the prior ALJ decision out of the jurisdiction of a later reviewing ALJ. For example, a petitioner who may not desire to take a particular claim to federal court for various reasons but who still believes that the prior ALJ decision was in error,
has the recourse of requesting reopening and revision by any other ALJ once the AC has denied the request for review. An ALJ may also reopen and revise a decision which was denied by a prior ALJ, appealed to the Appeals Council, the request for review was denied and that denial was affirmed by a federal district court. HALLEX I-2-9-5 Note 2. B. The Appeals Council. The Appeals Council has unlimited jurisdiction to reopen and revise any decision of the Appeals Council itself. The Appeals Council has jurisdiction to reopen and revise decisions made by an ALJ if the claimant has filed a request for review with respect to the prior ALJ decision, Appeals Council has denied the request for review but the 60 day period for filing a civil action has not yet expired. Therefore, a practitioner who may not want to pursue a case to federal court, but who is within the federal filing deadline can ask the Appeals Council to reopen the ALJ denial and revise it. HALLEX I-3-9-10, also see I-3-5-50. V. How to request reopening. A request for reopening can be explicit or implied. As noted above, an express request to reopen forces the ALJ to: specifically respond to the request even if the ALJ is denying the request or if the ALJ does not have jurisdiction to reopen the determination or decision. When the ALJ issues a decision on a current application in which a claimant expressly requested reopening of a prior determination or decision, the ALJ will include a finding on the reopening and revision issue in the decision, with supporting rationale. See HALLEX 1-2-9-7. HALLEX I-2-9-10. Because of the HALLEX provision which mandates consideration of the request to reopen, it is important to document the request so that the reviewing body can address the issue. However, SSA s policies and procedures also recognize an implied request for reopening. HALLEX provides examples of such implied requests: -a claimant submits additional evidence or information that implies he or she is requesting reopening and revision of a prior determination or decision (e.g. alleging onset of disability during a previously adjudicated period), or -submitting new and material evidence to ALJ after unfavorable decision was issued, which relates to the period unfavorably adjudicated. HALLEX I-2-9-10B. Why would you ever argue that an implied request for reopening was made, instead of just expressly requesting reopening at hearing? To fit the request for reopening into the prescribed time period. Remember, HALLEX I-2-9-40A provides that: If a claimant requests reopening after the specified time for reopening has expired, the ALJ will deny the request. Therefore, to
request reopening four or two years after the initial disability or SSI denial respectively, the claimant must be able to argue that during the specified time for reopening, the claimant filed an implicit request to reopen. As can be seen from the discussion above, SSA regulations, policies and procedures regarding overcoming administrative finality are surprisingly liberal and should be creatively exploited to garner more financial security and medical insurance eligibility for your claimant. i These materials revise and expand upon a prior presentation at FOSSCR 2003 with permission of the authors.