I-1-10-30.Appeals Council (AC) Actions When There Is an Allowance on the Subsequent Application

Last Update: 8/26/13 (Transmittal I-1-67)

As described in HALLEX I-1-10-1 D., the AC will identify a favorable determination on a subsequent application in the Appeals Review Processing System (ARPS) with the case characteristic “SUBC.”

An allowance on a subsequent application may or may not affect the AC's action and is considered on a case-by-case basis. However, the AC's action generally depends on whether the AC agrees or disagrees with the subsequent application allowance.

A. Evaluating a Subsequent Allowance

The State agency may find the claimant disabled with an onset no earlier than the day after the date of the administrative law judge's (ALJ) decision on the prior claim. If the State agency allows a subsequent application, the analyst must review the record before the ALJ and the evidence in the subsequent application file before making a recommendation to the AC. An allowance after the ALJ decision, especially the day after the ALJ decision, may suggest that new and material evidence that relates to the period at issue in the prior claim may exist in the subsequent application.

In the ARPS analysis, the analyst will address the subsequent allowance and its effect on the pending request for review.

Based on a review of all of the evidence, the AC must determine whether it agrees with the State agency's determination that the claimant is disabled and, when necessary, whether the different outcomes (the ALJ denial and the subsequent favorable determination) can be reconciled.

B. AC Agrees With Subsequent Allowance

1. Basis to Grant Review Is Present

When the AC agrees with the subsequent allowance, and a basis to grant review exists, the AC will grant the request for review.

Depending on the evidence, the AC may:

  • issue a fully favorable decision that references but does not disturb the subsequent allowance;

  • propose a partially favorable decision (by establishing an earlier onset date based on the evidence in the subsequent application); or

  • affirm the allowance, remand the case for further proceedings, and instruct the ALJ to consider only the period prior to the date disability was established.

NOTE:

If the subsequent allowance involves a different title than the claim pending before the AC, but involves an overlapping period of time with the prior claim, the remand order will adopt the subsequent allowance using collateral estoppel. See 20 CFR 404.950(f) and 416.1450(f).

2. Basis to Grant Review Is Not Present

When the AC agrees with the subsequent allowance and there is no basis to grant review, the AC will deny the request for review. The denial notice will state that the AC considered the allowance but concluded that it does not provide a basis to change the ALJ's decision. Appropriate language is included in the Document Generation System (DGS).

If the subsequent allowance significantly invades and re-adjudicates a time period adjudicated by the ALJ, the AC must reconcile the adjudication of the same period of time. In this circumstance, even if the AC agrees with a subsequent allowance, the AC cannot deny a request for review without reopening and revising the subsequent allowance.

C. AC Does Not Agree With Subsequent Allowance

When the AC does not agree with the subsequent allowance, the AC will determine whether the subsequent allowance can be reopened under 20 CFR 404.988 and 416.1488. The AC generally will not reopen a favorable determination based solely on the fact that there are different outcomes in the ALJ decision and the subsequent allowance. For more information relating to reopening requirements and time limits, see HALLEX I-3-9-4.

1. Reopening Is Appropriate

If the AC determines that reopening is appropriate, the AC will issue a notice granting review, reopening the subsequent allowance, proposing to consolidate the claims, and remanding to an ALJ for further proceedings.

The AC notice must specifically state the basis for reopening and why the AC disagrees with the favorable determination. Appropriate language can be found in DGS.

2. Reopening Is Not Appropriate

If reopening is not appropriate, the AC will generally either deny the request for review or, if a basis for review exists, grant review and remand. If the AC grants review, it will note the subsequent allowance and explain that the favorable determination is final and binding. If the AC denies the request for review, the denial notice will acknowledge the subsequent allowance and, if appropriate, state that the AC did not find a basis to reopen the determination or that the time period for reopening for good cause has expired.