I-5-3-17.Instructions for Processing Subsequent Disability Claims While a Prior Claim is Pending Review at the Appeals Council

Table of Contents
I Policy
II Hearing Office and OHA Regional Office Process
III Office of Appellate Operations Process
IV Inquiries
V Attachments - Case Flags
Attachment 1
Attachment 2

Issued: April 30, 2001

NOTE:

The following instructions apply when:

  • A request for review on a hearing decision in a claim for disability benefits under title II and/or title XVI of the Social Security Act (the Act) is pending at the Appeals Council (AC); and

  • The claimant files a subsequent claim for disability benefits under either title of the Act.

I. Policy

A. General

Effective December 30, 1999, the Social Security Administration (SSA) will process subsequent disability claims at the initial (and, as applicable, reconsideration) level when a request for review of a hearing decision in a prior claim is pending at the AC.

Under this policy, both subsequent claims filed under the same title of the Act as the claim(s) before the AC and claims filed under a different title will be processed according to these instructions. Prior instructions directed SSA field offices (FOs) to forward subsequent claims filed under the same title to the AC for association with the request for review, and to process subsequent claims filed under a different title.

These instructions do not apply to subsequent claims that are duplicate to prior claims that have previously been adjudicated (e.g., a claim for title II disability benefits in which the date last insured expired before the Administrative Law Judge's (ALJ's) decision on the prior application for the same benefits).

Any favorable determination on the subsequent claim made while the request for review of the hearing decision in the prior claim is pending will be limited to the period beginning the day after the date of the ALJ's decision on the prior claim.

These instructions are prospective only. SSA components will process subsequent claims under the new policy effective December 30, 1999 (the date of Emergency Message (EM) — 99147).

B. Favorable Determination on Subsequent Claim

If the initial (or reconsidered) determination in the subsequent claim is favorable, the AC will consider the evidence in the subsequent claim to determine whether there is new and material evidence relating to the prior claim. The AC will expedite its action on the request for review in this situation.

The AC may also conclude that the favorable determination on the subsequent claim was incorrect. In such cases, the AC may exercise the Agency's authority under existing regulations for review and reopening to revise the subsequent favorable determination.

C. Unfavorable Determination on Subsequent Claim

If the initial (or reconsidered) determination on the subsequent claim is unfavorable and a request for hearing is filed, the hearing office (HO) will not schedule a hearing and/or issue a decision until the AC acts on the request for review in the prior claim.

NOTE:

If a claimant submits new and material evidence to the HO and there is reason to believe that a revised determination would be fully favorable to the claimant, an ALJ may formally remand the case to the State Agency.

Because the HO is holding the request for hearing pending AC action, the AC will take its action as soon as possible (consistent with existing workload priorities) and make the results known to the HO. The claimant continues to have the burden of submitting to the AC any new and material evidence he/she wishes to have considered with the request for review on the prior claim. The AC will not obtain a subsequent claim file if the subsequent claim was denied at the initial or reconsideration level; rather, the AC will presume that the subsequent claim file does not contain new and material evidence relevant to the request for review before it.

II. Hearing Office and OHA Regional Office Process

HOs are to follow the procedures below when processing requests for hearing on subsequent disability claims when a request for review of a hearing decision on a prior disability claim is pending at the AC.

A. Initial Case Screening and Preparation

HO staff will follow the established guidelines for case screening in HALLEX I-2-0-10 in addition to the following:

  1. Obtain an OHAQ to verify that a request for review is pending at the AC. (Even if the FO has already provided an OHAQ with the subsequent claim, obtain an updated query).

    NOTE:

    If the OHAQ does not show that there is a request for review, remove the SUBSEQUENT CLAIM FLAG attached by the field office (Attachment 1) and process the case as a regular request for hearing.

  2. If the OHAQ verifies that there is a request for review pending at the AC, associate the prior ALJ closed file; and

  3. Maintain the subsequent application case file in Master Docket until the AC takes action on the initial application.

B. Establishing Case Controls

HO staff will follow the established guidelines for case receipt in HALLEX I-2-0-30, HOTS User Manual Part 2-2-1 and the OHA Case Control System Handbook to properly receipt this workload in the HO.

Additional information is necessary to properly identify subsequent applications in HOTS:

  1. Assign ALJ Code 9000;

  2. Status code MDKT;

  3. Employee code must reflect the two-letter abbreviation of claimant's state of residence, for example, show Virginia as “VA_”: IMPORTANT: support staff entering state must press the space bar in the third space to ensure a 2-letter-only state abbreviation.

The case file will be maintained in the Master Docket workload until notification of the AC's action is received.

C. Acknowledging Request for Hearing in Subsequent Claims

HO staff will follow established guidelines for sending an acknowledgement letter to the claimant/representative in HALLEX I-2-0-20 with the following exception:

The acknowledgement letter will contain custom language regarding hearing office procedures for subsequent claims, inserted immediately following the introductory paragraph. The opening of the letter will read as follows:

Dear [Claimant]:

We have received your request for a hearing before an Administrative Law Judge (ALJ). This letter tells you about the hearing process and things you should do now to prepare for your hearing. We will mail a Notice of Hearing to you at least 20 days before the date of the hearing to tell you its time and place.

Subsequent Application

Our records show that you have a prior application(s) pending at the Appeals Council. The Appeals Council will complete its action on your prior application(s) as soon as possible and send you a notice explaining the outcome.

  • If the Appeals Council denies your request for review on your prior application(s), we will send you a Notice of Hearing on your current application(s) at least 20 days before the date of the hearing to tell you its time and place.

  • If the Appeals Council decides to remand your prior application(s) for a new hearing, your prior and current application(s) may be consolidated for the new hearing. We will send you a Notice of Hearing at least 20 days before the date of the hearing to tell you its time and place.

  • If the Appeals Council renders a favorable decision on your prior application(s) that resolves all the issues raised in your current application(s), then no further action will be taken on your new application(s).

D. Formal Remand by ALJ to State Agency

If there is reason to believe that a revised determination would be fully favorable to the claimant, the ALJ may remand the case to the State Agency (20 CFR 404.948(c) and 416.1448(c)). If the claimant submits new and material evidence or if there is a change in law that permits a favorable determination, the ALJ should remand the case to the State Agency under these provisions of the regulations and HALLEX I-2-5-12.

NOTE:

Under the regulations, if the ALJ decides that remand is appropriate and the claimant did not request the remand, the ALJ must advise the claimant of the remand and that unless he or she objects within 10 days of the date the case is remanded, SSA will assume that the claimant agrees to the remand. If the claimant objects, the ALJ will consider the objection and rule on it in writing.

After the Appeals Council takes action on the request for review of the hearing decision in the prior claim, the following instructions apply.

E. Application of Acquiescence Rulings (ARs)

In processing the subsequent claim, HOs servicing claims from claimants residing in the 4th Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia), 6th Circuit (Kentucky, Michigan, Ohio, and Tennessee) and 9th Circuit (Alaska, Arizona, California, Guam, Hawaii (including American Samoa), Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington) must comply with the relevant ARs addressing consideration of prior findings within their Circuits.

F. Processing Subsequent Application After AC Denial or Dismissal of Request for Review

Upon notification of the AC's denial/dismissal of the request for review, the HO will:

  1. Associate the OHA SUBSEQUENT CLAIM FLAG showing the AC action (Attachment 2) with the pending subsequent application case file;

  2. Assign the case file for pre-hearing screening; and follow existing procedures to process the request for hearing on the subsequent application (based on the date of the request for hearing) (HALLEX I-2-1-1).

G. Processing Subsequent Application After AC Partially Favorable or Unfavorable Decision

Upon notification of the AC's partially favorable or unfavorable decision, the HO will:

  1. Associate the OHA SUBSEQUENT CLAIM FLAG, AC Decision, and AC Exhibit List with pending subsequent application case file;

  2. Assign case for pre-hearing screening and follow existing procedures to process the request for hearing on the subsequent application (based on the date of the request for hearing) (HALLEX I-2-1-1).

H. Processing Subsequent Application After AC Remand

Upon notification of an AC remand to an ALJ, the HO will:

  1. Associate the AC remand with the pending subsequent application;

  2. Close HOTS record for the subsequent application as a technical dismissal (HOTS Disposition code (OTDI));

    NOTE:

    The ALJ will NOT issue an actual order.

  3. Update HOTS to assign AC Remand for pre-hearing screening; and follow existing procedures to process the AC Remand. (HALLEX I-2-1-1).

I. Processing Subsequent Application After AC Fully Favorable Decision

Upon notification of an AC fully favorable decision, the HO will:

  1. Associate the OHA SUBSEQUENT CLAIM FLAG, AC favorable decision and AC exhibit list with the pending subsequent application;

  2. Close HOTS record for the subsequent application as a technical dismissal (HOTS Disposition code (OTDI));

    NOTE:

    The ALJ will NOT issue an actual order;

  3. Route case file to effectuating component for association.

J. Misrouted Subsequent Application Allowances

If an HO receives a misrouted subsequent application case file in which the subsequent claim was allowed, the HO will return the file to the servicing FO for any further action.

K. Subsequent Application Case Tracking - Regional Office and Hearing Office Reporting Requirements

The Office of the Chief Administrative Law Judge and the Office of Appellate Operations must be informed of the receipt of subsequent applications in the HOs in order to coordinate and monitor processing of requests for review pending at the Appeals Council. Therefore, the Regional Office and Hearing Office Management will report these claims as follows:

Hearing Offices

  1. Run a HOTS Report 01 for each established monthly reporting cycle to capture the monthly receipts of subsequent applications selecting the following information;

    1. Reporting cycle dates - Monthly Report dates;

    2. ALJ Code - 9000;

    3. Case Status - ALL;

    4. Employee Initial - ALL;

    (The HOTS Report 01 will contain the following information: Claimant's Name, SSN, Claim Type, Hearing Type, ALJ 9000, Request for Hearing date, Status, Status Date, Employee Code reflecting the claimant's residential state.)

  2. HOTS Report 01 will be sent with the Monthly Activity Report (MAR) via existing procedures to the Regional Office for compilation.

Regional Offices

Regional Office staff will submit a compilation of all hearing office HOTS 01 reports within their region with the MAR on established due dates via E-mail to (^ OHA ACTIVITY REPORT).

III. Office of Appellate Operations Process

A. General

In every request for review (RR) case involving disability issues, the Office of Appellate Operations (OAO) analyst is responsible for determining whether a subsequent claim has been filed and, if so, whether the subsequent claim was allowed.

If a RR case is not already flagged or otherwise identified as a subsequent claim case, the OAO analyst will obtain a query (i.e., MBR (FACT/AACT), SSID and/or DDSQ) to determine:

  • whether the claimant has filed a subsequent disability claim;

  • whether the claim was allowed;

  • if allowed, established onset date.

If the query indicates that a subsequent claim exists, the analyst will place a copy of the query in the folder and complete the intake information on an OHA SUBSEQUENT CLAIM FLAG (Attachment 2) and attach it to the folder.

B. Subsequent Claim Allowed at the Initial (or Reconsideration) Level

1. Identifying Cases

  1. If the subsequent claim is allowed, the FO will fax OAO a copy of the SSA-831. SSA-831s sent from the FOs will be distributed to each OAO branch by jurisdiction (account number and state of residence) as they are received in OAO's Central Office.

  2. The OAO branch will receive the claim file in a subsequent allowance case from component, under cover of a SUBSEQUENT CLAIM FLAG (Attachment 1) after the effectuating component completes effectuation of the subsequent allowance.

  3. As soon as a subsequent allowance is identified, the OAO Branch will obtain the claim file with the request for review (either from branch pending or from the megasite).

  4. When the cases are identified or received in the branch, the OAO Legal Assistant will attach an OHA SUBSEQUENT CLAIM FLAG (Attachment 2) to the claim folder and complete the intake information on the flag: claimant's name and Social Security number.

  5. OAO branch chiefs will distribute subsequent allowance cases to OAO analysts. OAO analysts will work these cases on a high priority basis.

2. AC Consideration

NOTE:

On February 26, 1999, the AC adopted guiding principles for the adjudication of an appeal of an unfavorable ALJ decision on a claim for disability benefits when a subsequent application for disability benefits is allowed while the appeal is pending. (See Meeting Note of the Appeals Council Meeting of February 26, 1999.) The Meeting Note addresses situations that occur when prior instructions were not followed; however, the guiding principles in the Meeting Note also apply to AC processing under the new policy. Therefore, this section generally tracks the guidance in the Meeting Note.

The Meeting Note remains in effect and applies to cases involving subsequent applications that were adjudicated BEFORE THE EFFECTIVE DATE of these instructions.

The fact that a subsequent application for disability benefits is allowed while a request for review (RR) of a prior denial is pending before the AC may or may not affect the AC's action on the appeal. Each case requires consideration of the individual facts presented.

Example 1. Claim filed under title II and denied through ALJ decision. RR is before the AC when a subsequent title II claim is allowed with an onset date the day after the date of the ALJ decision. (This example would work the same if the claims were under title XVI and applicable regulations.)

The Disability Determination Service's (DDS) allowance of the subsequent claim does not invade the period previously adjudicated by the ALJ decision; however, it suggests SSA has in its possession new and material evidence that relates to the period on or before the date of that decision. The analyst must determine whether this is so before he or she can make a recommendation on the RR. If the analyst does not already have the subsequent claim file, OAO will obtain it and the analyst will prepare a recommendation to the AC based on the record before the ALJ and all the additional material.

  1. If there is new and material evidence that relates to the period on or before the date of the ALJ decision and the AC agrees with the subsequent allowance,[1] the AC will grant review and, depending on the evidence, either issue a fully favorable decision, propose a partially favorable decision, or remand. If the AC issues a decision, the decision will reference but not disturb the subsequent allowance[2]. If remand is necessary, the AC will use the “affirmation and order” remand as a model (modified as appropriate) for adopting the subsequent allowance while remanding for additional proceedings. In this instance, the AC would adopt the subsequent allowance determination because the remand would be to further consider only that period prior to the date disability has been found, just as when the AC affirms the favorable portion of an ALJ decision and remands.

  2. If there is not new and material evidence that relates to the period on or before the date of the ALJ decision, the AC agrees with the subsequent allowance and no other basis for granting review is present, the AC will deny the RR[3] and not disturb the subsequent allowance.

    b.i. If there is not new and material evidence that relates to the period on or before the date of the ALJ decision, the AC agrees with the subsequent allowance and another basis for granting review is present, the AC will grant review and proceed with its action. The AC action will adopt the subsequent allowance and limit itself to the period prior to the date disability has been found.

  3. If there is not new and material evidence relating to the period on or before the date of the ALJ decision and the AC does not agree with the subsequent allowance, the AC will determine whether it can be reopened.[4]

    c.i. If the AC determines that reopening is appropriate,[5] the AC will issue a notice granting the RR[6] and reopening the subsequent allowance and proposing to consolidate the claims and remand. The AC will then proceed depending on the response, if any, to its notice.

    c.ii. If the AC determines that the 12 month period for reopening for any reason has expired and that “good cause” does not exist for reopening within 4 years, the AC will deny the RR (see footnote 3 for language).

Example 2. Claim filed under title II and denied through ALJ decision. RR is before the AC when a subsequent title II claim is allowed with an onset date established on or before the date of the ALJ decision. (The example would work the same if the claims were under title XVI and applicable regulations.)

The DDS allowance of the subsequent claim suggests that SSA has in its possession new and material evidence that relates to the period on or before the date of the ALJ's decision. If the analyst does not already have the subsequent claim file, OAO will obtain it and the analyst will make a recommendation to the AC based on the record before the ALJ and all the additional material.

  1. If there is new and material evidence that relates to the period on or before the date of the ALJ decision and the AC agrees with the subsequent allowance, the AC will grant review and, depending on the evidence, either issue a fully favorable decision, propose a partially favorable decision, or remand. The AC will adopt the subsequent allowance, although the effect of the AC action may render the subsequent application duplicate.[7] If remand is necessary, the AC will use the “affirmation and order” remand as a model (modified as appropriate) for adopting the subsequent allowance while remanding for additional proceedings. The AC remand would be to further consider only that period prior to the date disability has been found.

  2. If there is not new and material evidence related to the period on or before the date of the ALJ decision and the AC does not agree with the subsequent allowance, the AC will determine whether it can be reopened (see footnotes 4 and 5).

    b.i. If the AC determines that reopening is appropriate[8], the AC will issue a notice granting review and reopening and propose to consolidate the claims and remand. The AC would then proceed depending on the response, if any, to its notice.

    b.ii. If the time for reopening has expired but a basis for granting review exists, the AC will grant review and proceed with its action. The AC action will note the subsequent allowance and explain that the time period for reopening that determination has expired.

    b.iii. If the time for reopening has expired and no basis for granting review is present, the AC will deny the RR (see footnote 3 for language).

Example 3. Claim filed under title II and denied through ALJ decision. RR is before the AC when a subsequent title XVI only claim is allowed with an onset date after the date of the ALJ decision.

The periods at issue are not the same; however, the subsequent allowance still raises a possibility that SSA has in its possession new and material evidence that relates to the period on or before the date of the ALJ's decision. If the analyst does not already have the subsequent claim file, OAO will obtain it and the analyst will make a recommendation based on the record before the ALJ and all the additional material.

  1. If there is new and material evidence that relates to the period on or before the date of the ALJ decision and the AC agrees with the subsequent allowance, the AC will grant review and, depending on the evidence, either issue a fully favorable decision, propose a partially favorable decision, or remand. If the AC issues a decision, the decision will reference but not disturb the subsequent allowance. If remand is necessary, the AC will use the “affirmation and order” remand as a model (modified as appropriate) for adopting the subsequent allowance under collateral estoppel (20 CFR 404.950(f) and 416.1450(f)), while remanding for additional proceedings. The AC remand would be to further consider only that period prior to the date disability has been found.

  2. If there is not new and material evidence that relates to the period on or before the date of the ALJ decision, the AC agrees with the subsequent allowance and no other basis for granting review is present, the AC will deny the RR (see footnote 3 for language) and not disturb the subsequent allowance.

    b.i. If there is not new and material evidence that relates to the period on or before the date of the ALJ decision, the AC agrees with the subsequent allowance and another basis for granting review is present, the AC will grant review and proceed with its action. The AC action will adopt the subsequent allowance and limit itself to the period prior to the date disability has been found.

  3. If there is not new and material evidence that relates to the period on or before the date of the ALJ decision and the AC does not agree with the subsequent allowance, the AC will determine whether it can be reopened (see footnotes 4 and 5).

    c.i. If the AC determines that reopening is appropriate, the AC will issue a notice granting the RR and proposing to consolidate the claims and remand. The AC will then proceed depending on the response, if any, to its notice.

    c.ii. If the AC determines that the 12 month period for reopening has expired and that “good cause” does not exist for reopening within 2 years, the AC will deny the RR (see footnote 3 for language).

Example 4. Claim filed under title II and denied through ALJ decision. RR is before the AC when a subsequent title XVI only claim is allowed with an onset date on or before the date of the ALJ decision.

The DDS allowance of the subsequent claim suggests that SSA has in its possession new and material evidence that relates to the period on or before the date of the ALJ's decision. If the analyst does not already have the subsequent claim file, OAO will obtain the subsequent file and the analyst will make a recommendation to the AC based on the record before the ALJ and all the additional material.

  1. If there is new and material evidence that relates to the period on or before the date of the ALJ decision and the AC agrees with the subsequent allowance, the AC will grant review and, depending on the evidence, either issue a fully favorable decision, propose a partially favorable decision, or remand. The AC will adopt the subsequent allowance under collateral estoppel. If remand is necessary, the AC will use the “affirmation and order” remand as a model (modified as appropriate) for adopting the subsequent allowance while remanding for additional proceedings. The AC remand would be to further consider only that period prior to the date disability has been found.

  2. If there is not new and material evidence related to the period on or before the date of the ALJ decision and the AC does not agree with the subsequent allowance, the AC will determine whether it can be reopened (see footnotes 4 and 5).

    b.i. If the AC determines that reopening is appropriate,[9] the AC will issue a notice granting the RR and reopening the subsequent allowance and propose to consolidate the claims and remand. The AC would then proceed depending on the response, if any, to its notice.

    b.ii. If the time for reopening has expired but a basis for granting review exists, the AC will grant review and proceed with its action. The AC action should note the subsequent allowance and explain that the time period for reopening that determination has expired.

    b.iii. If the time for reopening has expired and no basis for granting review exists, the AC would deny the RR (see footnote 3 for language).

3. Disposition of Claim Files

  1. If the AC denied the request for review, the claim files will be retained in OAO for the period for which files are retained in the event the claimant files a civil action.

    NOTE:

    The file for the subsequent claim is not part of the administrative record of the ALJ decision; however, the subsequent file will be retained by OAO for review if a civil action is filed.

  2. If the AC remands the case to an ALJ, the claim files will be sent to the HO.

  3. If the AC issues a favorable decision, the claim files will be sent for effectuation.

C. Subsequent Claim Not Allowed

1. Identifying Cases

  1. Subsequent claims denied at the initial and (if applicable) the reconsideration level, in which a hearing was requested, will be identified by the HOs as described above. Referral lists from the OHA ROs will be distributed to each OAO branch by jurisdiction (account number and state of residence) monthly. OAO Branches will obtain these files (either from the branch pending or the megasite).

  2. When the cases are identified or received in the branch, the OAO Legal Assistant will attach an OHA SUBSEQUENT CLAIM FLAG (Attachment 2) to the claim folder and complete the intake information on the flag: claimant's name, Social Security number, and date of request for review.

2. AC Actions

a. AC Denies Request for Review

After the AC's action, the Appeals Assistant will annotate the OHA SUBSEQUENT CLAIM FLAG to indicate the specified action and FAX the flag to the HO.

NOTE:

If the AC denies the request for review and the claimant submitted any additional evidence which the AC determines is not material to the period ruled on by the ALJ, the evidence will be forwarded either to the FO or the HO (depending on whether a request for hearing has been filed on the subsequent claim) for consideration with the subsequent claim(s). The AC denial notice will be modified to include language along the following lines:

The AC also received [identify evidence]. The Administrative Law Judge ruled on the issue of disability in your case only through [insert date], the date of the decision. The information provided by [identify source] is not material to the issue of whether you were disabled beginning on or before [insert date of decision]. However, because you have filed a new claim(s) for disability benefits, we are sending the evidence to your local (FO/HO) to consider with your new claim(s).

NOTE:

If the AC denies the request for review of an ALJ dismissal and the claimant submitted any additional evidence which the AC determines is not material to the dismissal, follow the instructions in b. below.

b. AC Dismisses Request for Review

After the AC's action, the Appeals Assistant will annotate the OHA SUBSEQUENT CLAIM FLAG to indicate the specified action, and FAX the flag to the HO.

NOTE:

If the AC dismisses the request for review, and the claimant submitted any additional evidence which the AC determines is not material to the issue of the dismissal, the evidence will be forwarded either to the FO or the HO (depending on whether a request for hearing has been filed on the subsequent claim) for consideration with the new claim. The AC dismissal order will be modified to include language along the following lines:

The AC received [identify evidence]. The information provided by [identify source] is not material to the (AC's/ALJ's) dismissal. However, because you have filed a new claim(s) for disability benefits, we are sending the evidence to your local (FO/HO) to consider with your new claim(s).

c. AC Remands the Case to ALJ

If the AC remands the case to an ALJ, the AC remand order will acknowledge the subsequent claim, explain the effect of the AC's action on the subsequent claim, and direct the ALJ to consolidate the claim files.

The Appeals Assistant will annotate the OHA SUBSEQUENT CLAIM FLAG to indicate the date and type of action taken. The file will then be forwarded to the HO.

d. AC Issues a Favorable Decision

If the AC issues a fully or partially favorable decision in the case, the AC decision will address the effect of the decision on the subsequent claim.

The Appeals Assistant will annotate the OHA SUBSEQUENT CLAIM FLAG to indicate the date and type of action taken. The Appeals Assistant will FAX the flag and a copy of the AC decision (including the AC exhibit list) to the HO.

3. Advising the Field Office

Generally, the AC must advise the FO when it issues a decision or remand, or when the claimant resides in a Circuit for which SSA has issued a relevant acquiescence ruling (AR). Otherwise, it will not be necessary for the AC to advise FOs of its action.

a. OAO will advise the FO of the AC's action:

IF:

the AC remands the prior claim to an ALJ, OR issues a fully or partially favorable decision in the prior claim;

AND:

a subsequent claim is pending at the initial or reconsideration level, OR a subsequent claim was denied and the time period for filing an appeal has not expired;

THEN:

the Appeals Assistant will FAX the OHA SUBSEQUENT CLAIM FLAG with a copy of the AC's decision or remand order to the FO. This will enable the FO to determine what issues, if any, remain to be resolved with respect to the subsequent claim.

The OAO analyst will advise the Appeals Assistant on completing the flag and routing the materials. (The location/fax number of the claimant's servicing FO can be determined through a DOORS query. Display will show data regarding the FO that services the claimant's address, including the FAX number.)

b. Application of Acquiescence Rulings

If the claimant resides in the 4th Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia), 6th Circuit (Kentucky, Michigan, Ohio, and Tennessee) or 9th Circuit (Alaska, Arizona, California, Guam, Hawaii (including American Samoa), Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington) adjudicators of the subsequent claim must be advised if the AC denies a request for review so that they may apply the relevant ARs addressing prior findings in their circuits.

Therefore, if information before the AC regarding the subsequent claim indicates that the claimant resides in a state or territory in the 4th, 6th, or 9th Circuit, the OAO analyst will direct the Appeals Assistant to FAX the OHA SUBSEQUENT CLAIM FLAG, a copy of the denial notice, and a copy of the ALJ's decision to the appropriate FO.

IV. Inquiries

Hearing Office personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 605-8530. Headquarters personnel should contact the Office of Policy, Planning, and Evaluation at (703) 605-8260.

V. Attachments - Case Flags

Attachment 1 - Subsequent Claim Flag - Attached by the FO and completed at the initial and reconsideration levels

Attachment 2 - OHA Subsequent Claim Flag - Attached and completed by OAO Staff

Attachment 1.

Attached to front of file when FO first takes subsequent claim

SUBSEQUENT CLAIM FLAG

Claimant's name:

SSN(s):

Request for Review (RR) Date on ALJ Decision ___________

OAO Branch with jurisdiction of ALJ Decision ____________

This claimant has filed a new application and has an appeal of an ALJ decision on a prior application pending at the Appeals Council (see attached OHA query).

________________________________________________________________________

DDS ACTION ON SUBSEQUENT CLAIM

Initial Level

[ ] FAVORABLE - The FO or PC should immediately FAX a copy of the SSA-831 to the Office of Appellate Operations (OAO) at (703) 605-7101. After effectuation, the FO or PC should send the file to the OAO branch that has jurisdiction of the ALJ decision on the prior claim.
[ ] UNFAVORABLE - Process any reconsideration request.

________________________________________________________________________

Reconsideration Level

[ ] FAVORABLE - The FO or PC should immediately FAX a copy of the SSA-831 to the Office of Appellate Operations (OAO) at (703) 605-7101. After effectuation, the FO or PC should send the file to the OAO branch that has jurisdiction of the ALJ decision on the prior claim.
[ ] UNFAVORABLE - Process any request for hearing.

Attachment 2.

Attached by OAO Staff

I-5-317-V.gif


[1]  SSA has issued a series of Acquiescence Rulings (ARs) on the effect of prior “final” decisions or prior findings on the adjudication of a subsequent disability claim under the same title of the Act. Because 20 CFR 404.955 & 416.1455 provide, in pertinent part, that the decision of the ALJ is “binding” unless the claimant requests review and the AC reviews the decision, the ALJ decision before the AC in these examples is not “final” for the purpose of applying an AR to the adjudication of the subsequent application.

[2]  While the AC action “refloats” the application ruled on in the ALJ decision and may technically render the subsequent application duplicate, it does not require the AC to disturb the subsequent determination. Because the subsequent determination did not invade the period ruled on in the ALJ's decision and there is no reason to reopen that determination, the AC decision would reference but not disturb the subsequent allowance.

[3]  The AC would add language to the denial notice as follows:

The AC considered the fact that since the date of the ALJ's decision, you were found to be under a disability beginning (date), based on the application you filed on (date); however, the Council found that this information does not warrant a change in the ALJ's decision.

[4]  20 CFR 404.905 and 416.1405 provide that an initial determination is binding unless a claimant requests reconsideration within the stated time period, or SSA revises the initial determination. Because the claimant has not requested reconsideration of the favorable determination on the subsequent application, that determination is administratively final unless SSA reopens and revises it. See 20 CFR 404.987ff and 416.1487ff.

In deciding whether it agrees with the allowance on the subsequent application, the AC will consider all the evidence and decide whether the prior ALJ denial and the subsequent allowance can be reconciled (i.e., is the evidence consistent with the ALJ denial through the date of the decision and the allowance at a later date?). If the claimant seeks judicial review of the ALJ denial, SSA would have to reconcile the subsequent allowance. If the ALJ denial and the subsequent allowance cannot be reconciled, the AC will consider whether it can reopen the subsequent allowance.

[5]  In this instance the AC would reopen “for any reason” if within 12 months of the subsequent allowance determination (20 CFR 404.988(a)). If not within 12 months, but within 4 years, the AC would reopen if it finds “good cause” under 20 CFR 404.989(a). The AC would find good cause if new and material evidence is furnished or if there is error on the face of the evidence that was considered in making the determination (20 CFR 404.989(a)(1) & (3)).

In this context, “new and material evidence ... furnished” (20 CFR 404.989(a)(1)) should be read to include only such evidence submitted or obtained in connection with the RR (i.e., “furnished” by the claimant or obtained by SSA) that is new and material with respect to the subsequent determination. Stated another way, that evidence already in the record on which the ALJ decision is based is not “new” and would not satisfy this requirement. It would appear that a basis for reopening under 20 CFR 404.989(a)(1) would be rare.

However, the AC would find “error on the face” of the evidence (20 CFR 404.989(a)(3)) if the subsequent allowance involves an error of law (See SSR 85-6c), or based on the DDS' failure to consider all the evidence in SSA's possession (specifically that which is in the record on which the ALJ decision is based) when making its allowance determination, but only if the evidence clearly shows on its face that the subsequent allowance was erroneous. (See 20 CFR 404.989(b) and 416.1489(b); SSR 85-6c; HALLEX I-2-9-40 H. and I-3-9-4 H.; and POMS GN 04010.020 for further discussion of what is and is not “error on the face of the evidence.”)

[6]  20 CFR 404.970 and 416.1470 explain when the Council will grant review. These sections do not limit the Council's review authority. In this instance the Council could grant review under 20 CFR 404.970(a)(4): There is a broad policy or procedural issue that may affect the general public interest.

[7]  The AC action “refloats” the application ruled on in the ALJ decision and may technically render the subsequent application duplicate. The AC action should correct the subsequent determination (it improperly invaded a previously adjudicated period), but would not disturb the subsequent allowance. Rather, the AC would adopt that allowance when ruling on the same period.

[8]  In this instance the AC would reopen “for any reason” if within 12 months. If not within 12 months, but within 4 years, the AC would find “good cause” to reopen relying on “error on the face” based on the DDS's improper invasion of the period previously adjudicated by the ALJ decision.

[9]  In this instance the AC would reopen “for any reason” if within 12 months (20 CFR 416.1488(a)). If not within 12 months, but within 2 years, the AC would reopen based on “error on the face” (DDS' improper invasion of the period previously adjudicated by the ALJ decision).