I-3-9-30.Procedure When the Appeals Council Considers Reopening
Last Update: 9/08/05 (Transmittal I-3-36)
A. General Procedures
When the Appeals Council is to consider a request for reopening, the analyst must review the material to see whether reopening and revision are warranted. The analyst must request the claim file and/or appeals file if not already on hand. The analyst will take one of the following actions:
If further development is needed to determine whether reopening and revision are warranted, the analyst will recommend such development to the “A” and “B” AAJs.
If the analyst believes that reopening and revision are warranted, the analyst will prepare an appropriate recommendation and draft decision, etc. When forwarding a reopening recommendation to the Appeals Council, the analyst must clearly show on the route slip the date by which reopening must be initiated.
If the analyst believes that reopening and revision are not warranted and the material was submitted to OHA Headquarters by the claimant (or representative), the analyst will prepare a letter to the claimant (with copy to the representative, if any) over the signature of the “A” AAJ responding to any questions contained in the correspondence and explaining why the additional material does not warrant a change in the prior decision (see sample paragraphs below). The letter must be prepared in final and routed for review to the “A” AAJ. Upon approval, the “A” AAJ's support staff will release it. The analyst must prepare a similar letter to the claimant if the material was submitted by some other source and the claimant was aware of its submission. If the claimant was not aware of its submission, the analyst will not prepare a letter to the claimant but, instead, will prepare a memorandum for the file (form HA-521) documenting that the material submitted does not warrant reopening and revision. The file must be routed to the “A” AAJ for approval.
Use the following (or similar) language in the letter sent to the claimant (and the representative, if any) when reopening and revision is not warranted:
“The Appeals Council has carefully studied the medical report of October 1, 1998, signed by John Jay, M.D. The information contained in this report is essentially the same as that appearing in an earlier report by Dr. Jay, which is already a part of the record in your case. For this reason the additional evidence does not warrant a change in the (Appeals Council's) decision of August 4, 1998, which stands as the final decision of the Commissioner.”
“The Appeals Council has carefully studied the report of your recent hospitalization from June 15 to June 21, 1998. You had requested the Mayo Clinic to submit the report in support of your claim for disability benefits. The evidence was not previously a part of the record in your case and shows that you have an arthritic impairment. However, the record as supplemented by this report does not show that this impairment was present on or before March 31, 1995, when you last met the special earnings requirement of the law. Therefore, the hospital report does not warrant a change in the (Appeals Council's) decision of April 25, 1998, which stands as the final decision of the Commissioner.”
B. Declining to Reopen Does Not Readjudicate Prior Claim
When the Appeals Council declines to reopen, the AAJ must make clear that consideration of reopening is only a threshold inquiry. The rationale must be tailored to the facts of the particular case to demonstrate that reopening has been considered. However, the rationale must not suggest that the merits of the prior claim have been readjudicated. Rather, the rationale must specifically state that the AAJ has made only a threshold inquiry into the nature of the evidence and has not reopened the claim on the merits.
In considering a subsequent claim involving facts and issues decided in a prior final determination or decision, the adjudicator at the initial, reconsideration, or hearing level may give the impression that the prior claim was readjudicated even though no reopening occurred. In considering a request for review in such cases, the AAJ must first carefully consider the language in the notice, determination, or decision issued at the initial, reconsideration, or hearing level.
Under 20 CFR 404.903(l) and 416.1403(a)(5), if the adjudicator at the initial, reconsideration, or hearing level concluded that the criteria for reopening were not met, the claimant has no right to review of the action taken with respect to reopening.
In some instances, the initial, reconsideration, or hearing level's action may include extensive discussion of the merits of the prior application but also state that the criteria for reopening the prior application were not met. When this occurs, the component's statement declining to reopen is the determining factor in deciding the true nature of the action. If the AAJ concludes that the initial, reconsideration, or hearing level's action is, in fact, a denial of reopening, the AAJ must state that the adjudicator's discussion of the merits was a threshold inquiry, not a reopening, and that the AAJ will not treat the prior claim as having been reopened.
In other instances, the initial, reconsideration, or hearing level may have issued a new determination or decision on the merits of the subsequent claim without acknowledging the administratively final prior determination or decision, and without addressing the requirements for reopening. If the AAJ decides that the reopening requirements are not met, he or she must, in the notice, order, or decision issued on the subsequent claim, specifically state that the merits of the prior claim properly could be reached only if there were grounds to reopen the prior determination or decision, include a rationale explaining why the conditions for reopening are not met, and deny reopening.
C. Sample Language
The following samples contain language for use by AAJs to address the issues discussed in B. above. If the ALJ's decision provided the necessary language, the AAJ need not repeat it in reviewing the ALJ's action on the subsequent claim. If the ALJ's decision did not provide the necessary language, however, the Appeals Council must exercise its authority to do so, using the sample language as a guide. The necessary language must appear in notices denying a request to review and, when appropriate, in notices of review in which the Appeals Council proposes an action. The necessary language must also be provided in dismissals, remand orders, and decisions in which the issue of reopening is considered.
The AAJ will use language along the following lines when he or she concludes that the criteria for reopening are not met:
“The purpose of the above analysis is solely to determine whether good cause or any other basis exists for reopening the final (determination/decision) on the claimant's prior application. The Appeals Council has reviewed that determination/decision) and the basis for it only to the extent of deciding whether there is any reason to reopen it under the regulations governing administrative finality. The Council has not considered the merits of that (determination/decision). Because neither good cause nor any other basis to reopen exits, the Council has not reopened the (determination/decision) dated ________, and it stands as the final decision of the Commissioner on the claimant's application of ________.”
For cases in which an earlier adjudicative level has, in the process of adjudicating a subsequent claim decided not to reopen a determination or decision on a prior claim, but has given the impression that it has readjudicated the merits of the prior claim, the AAJ will use language along the following lines:
“The reconsideration (determination/action) dated ________ indicates that there is no basis to reopen the final determination on the claimant's prior application. The [insert date] (determination/action) discusses the merits of the prior claim. However, in light of the ultimate conclusion in that (determination/action), the (determination/action) did not constitute a reopening. Under Social Security regulations (20 CFR 404.903(l) and/or 20 CFR 416.1403(a)(5), administrative actions denying a request to reopen are not subject to administrative or judicial review. Therefore, the claimant has no right to further review on the issue of whether the criteria for reopening the final determination on the prior application are met.”
For cases in which an earlier adjudicative level issued a substantive determination on the merits of a subsequent claim, and (1) did not acknowledge the administratively final prior determination and (2) did not consider whether the requirements for reopening that determination were met, the AAJ will use the language along the following lines:
“In response to the most recent application, a new (initial/reconsideration determination) or (decision) was issued on the merits of this claim. However, that action did not consider the final (determination/decision) on the claimant's prior application. In view of the existence of a prior final determination on the same facts and issues, the merits of (the prior claim/a portion of the prior claim) properly could be reached only if the prior final determination can be reopened. Neither good cause nor any other basis to reopen existed at the time of the issuance of the new determination, and no basis for reopening currently exists. Accordingly, the Appeals Council has not reopened the (determination/decision) dated ________, which stands as the final decision of the Commissioner on your application of ________. [Where the claim is barred only in part, omit the last sentence and substitute: Accordingly, the Council has not reopened the (determination/decision) dated ________, which stands as the final decision of the Commissioner on your claim for the time period ending ________.]”
I-5-1-8 contains a full discussion of the policy to be applied in determining whether the above language should be used.