I-4-2-101.Exhibit - Memorandum From the Executive Director, Office of Appellate Operations Dated October 25, 2002

Last Update: 9/13/05 (Transmittal I-4-15)

MEMORANDUM

Date:

October 25, 2002

Refer To: TAHB

To:

Administrative Appeals Judges

Appeals Officers

Branch Chiefs

Hearings & Appeals Analysts

From:

Executive Director
Office of Appellate Operations

Subject:

Consideration of Subsequent Applications When Processing New Court Cases, Requests for Voluntary Remand, Court Remands and ALJ Final Decisions Following Court Remand on Prior Applications

 

I. Background

A. General

This set of instructions is for processing subsequent applications when a prior disability claim is the subject of a new court case (NCC), a request for voluntary remand (RVR), a court remand or an Administrative Law Judge (ALJ) final decision following court remand (Fin Dec). HALLEX Temporary Instruction (TI) I-5-3-17 contains instructions for processing subsequent applications involving the request for review (RR) workload. This instruction parallels HALLEX TI I-5-3-17. This instruction supplements and/or modifies prior instructions on the subject matter, including those contained in HALLEX Chapter I, Divisions 2 & 3. It supersedes prior instructions on the subject matter in HALLEX Chapter I, Division 4.

A claimant may file a new (subsequent) application while seeking review in court of the Commissioner's final decision on a prior claim. The period at issue in such a subsequent claim is limited to the period beginning with the day after the date of the Commissioner's final decision on the prior claim. Because the claimant has received a final decision on the first claim, the subsequent claim may proceed through the administrative review process. However, if the subsequent claim is allowed while the prior claim is pending in court or the court remands the prior claim, the Appeals Council (AC) must determine the effect, if any, of such action on the other claim.

When a court remands a prior final decision, the court remand does not per se affect the adjudication made on the subsequent claim in the administrative review process while the civil action was pending. The AC will determine how a subsequent claim is affected based, in part, on what level of the administrative review process the subsequent claim has reached.

B. Subsequent Claim Pending or Denied

When a subsequent claim is pending or has been denied at the initial or reconsideration level and the AC remands a prior claim, vacating the ALJ decision on that prior claim, the AC's remand action generally renders the subsequent claim (if under the same title) "duplicate," except in cessation claims. In this situation, the AC will consolidate the prior and subsequent claims. Even if the prior and subsequent claims are not under the same title, they may still involve an overlapping time period. The AC also will consolidate prior and subsequent claims that overlap.

Example: The ALJ concurrent title II/XVI decision before the court was issued in June 2001. The claimant was last insured for disability in December 2001. The claimant filed a subsequent title XVI only claim in March 2002. The court now remands the June 2001 decision to the AC. If the AC then vacates the June 2001 decision, the periods at issue in the concurrent title II/XVI claims would overlap the period at issue in the subsequent title XVI claim and the AC would consolidate the claims.

When SSA has denied a subsequent claim through the hearing level, that otherwise binding ALJ decision (20 CFR 404.955 and 416.1455) may need to be reviewed consistent with applicable reopening regulations, when deciding the prior claim(s) remanded by the court.

  1. Initial or Reconsideration

    If a subsequent claim is pending or has been denied at the initial or reconsideration level, the AC remand of a prior claim will consolidate (or direct the ALJ to consolidate) the two claims if the subsequent claim is made duplicate or now involves an overlapping time period. This will apply whether or not a request for hearing is pending on the subsequent claim(s).

  2. ALJ Decision

    If an ALJ denied the subsequent claim and that decision is otherwise binding, the AC remand of a prior claim will acknowledge the decision on the subsequent claim and direct the current ALJ to consider it if necessary, under applicable reopening regulations, when deciding the prior claim remanded by the court.

C. Subsequent Claim Allowed

When the AC decides how to proceed in an NCC, whether to agree to an RVR, or what action to take on a court remand or an ALJ Fin Dec, the AC will treat a favorable determination (or decision) on a subsequent claim as binding (with respect to the subsequent claim) unless that determination (or decision) is reopened under applicable regulations. The AC will apply HALLEX TI I-5-3-17, Section III.B.2. to decide what action, if any, to take with respect to a State agency or ALJ allowance on a subsequent claim.

HALLEX TI I-5-3-17 instructs the AC to consider all the evidence in the Administration's (SSA's) possession when it decides whether a prior ALJ denial and a subsequent allowance can be "reconciled." The instruction explains that the different outcomes can be reconciled when the evidence in SSA's possession is consistent both with the ALJ denial and the subsequent allowance.

II. Processing Instructions

A. New Court Case

When a Court Case Preparation Review Branch (CCPRB) learns of an NCC, before beginning the answer process Branch staff will determine whether the claimant has filed a new (subsequent) claim. If the claimant has not filed a subsequent claim, Branch staff will proceed with the answer process in the NCC in the usual fashion.

  1. Subsequent Claim Pending or Denied

    If a subsequent claim is pending or has been denied, the CCPRB will proceed with the answer process in the usual fashion.

  2. Subsequent Claim Allowed

    If a subsequent claim has been allowed, the NCC will be assigned to an analyst who will obtain whatever information is available concerning the subsequent allowance (e.g., onset date and allowance code) from SSA's electronic query system (e.g., MBR, SSID, DDSQ). Based on this information the analyst will, when possible, make a recommendation as to whether the evidence in SSA's possession is consistent with both the ALJ denial in the prior claim and the subsequent allowance. If the evidence is consistent with the different outcomes, the ALJ denial and the subsequent allowance can co-exist.

    1. Different Outcomes Can Co-exist

      If the CCPRB Chief agrees that the different outcomes can co-exist, the CCPRB will proceed with the answer process in the NCC. The CCPRB Chief may defer to the AC if in doubt.

      Examples of different outcomes that we will assume can co-exist:

      • A claimant attains age 62 and files a subsequent claim for retirement insurance benefits that is allowed. We can assume the retirement claim does not contain new and material evidence with respect to the disability claim and that the evidence before the Administration permits the allowance (based on the claimant's attainment of retirement age) to co- exist with the ALJ denial. The same would be true for a claimant who attains age 60 and files for widows/widowers benefits based on age.

      • The State agency allows a title XVI only claim for disability filed in December 2001 with an onset date of February 2002. The ALJ decision before the court is title II only with a date last insured of December 2000. We can assume the subsequent title XVI file does not contain new and material evidence with respect to the period on or before the date last insured and that the allowance can stand while the denial decision is defended in court.

      • The State agency allows concurrent title II & XVI claims for disability filed in March 2001 with an onset of February 2001, when the claimant suffered a stroke. In the claim before the court, the claimant alleged a June 1997 onset based on arthritis and low back strain. The ALJ denied in January 2000 under Rule 202.22. We can assume the subsequent file does not contain new and material evidence with respect to the period on or before January 2000 and that the allowance can stand while the denial decision is defended in court.

      • The State agency allows a claim for disability with an onset of January 2002, at age 55 under Rule 202.04. The ALJ had denied in October 2000 under Rule 202.13. We can assume the subsequent file does not contain new and material evidence with respect to the period on or before October 2000 and that the allowance can stand while the denial decision is defended in court.

      • In the claim before the court, the ALJ denied the claimant at age 48 under Rule 201.18. The State agency allowance is as of the claimant's attainment of age 50 based on Rule 201.09. We can assume the evidence in SSA's possession will allow the different outcomes to co-exist.

    2. Different Outcomes Cannot Co-exist

      If the information available does not suggest that the evidence in SSA's possession is consistent with both the ALJ denial in the prior claim and the subsequent allowance, the analyst will recommend that SSA seek remand to consider the subsequent allowance (and address any problem(s) identified in the ALJ decision). If the AC agrees, the CCPRB will seek remand in lieu of the answer process.

      Examples of different outcomes that we will assume cannot co-exist:

      • The ALJ denied the prior claim under a light Rule. The State agency allowance in the subsequent claim is based on meeting a listing beginning the day after the ALJ decision. The information available does not suggest that the different outcomes can both be correct and the analyst would recommend that SSA seek remand.

      • The State agency allowance in the subsequent claim establishes an onset date on or before the date of the ALJ decision in the prior claim. The State agency erroneously invaded the previously adjudicated period. The analyst would recommend that SSA seek remand.

      • The State agency allowance in a title XVI claim for disability benefits is as of August 2001 (the date of filing). The ALJ decision before the court was issued in July 2001. The State agency determined that the claimant met a listing based on the same impairment(s) in the claim before the ALJ. The analyst would recommend that SSA seek remand.

    3. Insufficient Information

      If the analyst believes the information available is not sufficient to determine whether the evidence in SSA's possession is consistent with both the ALJ denial in the prior claim and the subsequent allowance, the analyst will explain why in the recommendation to the AC. Generally, in this instance the AC would seek remand to consider the subsequent allowance and address any problem(s) noted in the ALJ decision.

    4. Request Subsequent Claim File(s)

      When the CCPRB initiates the process to request remand in a case, Branch staff will immediately request the file(s) for the subsequent allowance in accordance with the Executive Director's memorandum, Obtaining Claim Files for Subsequent Allowances, dated March 27, 2002.

    The AC's action upon receipt of the subsequent allowance file and the court remand will depend on its review of all the evidence and application of HALLEX TI I-5-3-17, Section III.B.2.

  3. RRE Cases

    New court cases involving claims in the Request for Review Elimination (RRE) II test will be handled consistent with the above instructions.

B. Request for Voluntary Remand

When an RVR is received in a CCPRB or Program Review Branch (PRB), Branch staff will first determine whether the claimant has filed a new (subsequent) claim and, if so, the status. If the claimant has not filed a subsequent claim, the RVR will be handled in the usual fashion.

  1. Subsequent Claim Pending or Denied

    If a subsequent claim is pending or has been denied, the analyst will include that information in the recommendation to the AC. If the analyst recommends the AC seek remand and the AC agrees, the response to the RVR and the AC remand (after remand by the court) will address the subsequent claim.

    1. Initial or Reconsideration

      If the AC agrees to seek remand of a prior claim and a subsequent claim is pending or has been denied at the initial or reconsideration level, the AC remand will consolidate the claims if the subsequent claim is made duplicate or now involves an overlapping time period. The analyst should use the following language in the AC remand for this purpose:

      The claimant filed [a] new (subsequent) claim(s) for disability benefits on [MM/DD/YY]. The Appeals Council's present action with respect to the prior claim(s) renders the subsequent claim(s) duplicate or causes it to involve an overlapping period of time. Therefore, the Appeals Council consolidates the claims. The Administrative Law Judge will associate the claim(s) files and issue a new decision on the consolidated claims.

    2. ALJ Decision

      If a subsequent claim was denied by an ALJ, Branch staff must determine whether an RR of that decision is pending.

      1. No Appeal (or RR Denied) on Subsequent Claim

        If no appeal is pending (or RR was denied), an AC remand in the prior claim (following court remand) will acknowledge the decision on the subsequent claim and direct the ALJ to consider that decision if necessary, consistent with applicable reopening regulations, when deciding the claim remanded by the court. The analyst should use the following language in the AC remand for this purpose:

        The claimant filed [a] new (subsequent) claim(s) for disability benefits on [MM/DD/YY], which [was/were] denied by hearing decision issued [MM/DD/YY]. The Administrative Law Judge will consider that decision if necessary, consistent with applicable reopening regulations, when deciding the claim remanded by the court.

      2. Appeal Pending on Subsequent Claim

        If an RR is pending, the (prior claim) RVR will be worked in the respective PRB. If possible the analyst will work the RR and the RVR at the same time. If the RR cannot be worked at the same time, the AC response to the RVR will acknowledge the pending appeal and advise that the AC may consolidate the two claims, depending on its' action on the RR.

        1. AC Denies Review on Subsequent Claim

          If the AC denies review in the subsequent claim it will issue a standard denial notice. An AC remand in the prior claim (following court remand) would then direct the ALJ to consider the decision on the subsequent claim if necessary, consistent with applicable reopening regulations, when deciding the claim remanded by the court. The analyst should use the language in section II.B.1.b.i. above in the AC remand for this purpose.

        2. AC Grants Review on Subsequent Claim

          If the AC is prepared to grant review and remand the subsequent claim, it must coordinate that action with its action on the prior claim (the subject of the RVR). Generally, if the AC seeks voluntary remand in the prior claim(s), it will consolidate the prior claim(s) with the subsequent claim(s) because the subsequent claim(s) will either be made duplicate or involve an overlapping period. The AC will issue a single remand order that sets forth the basis for seeking voluntary remand in the prior claim(s) and the basis for granting review in the subsequent claim(s). The order also will set forth what actions are to be taken in the consolidated claims on remand.

  2. Subsequent Claim Allowed

    If a subsequent claim was allowed, the analyst's recommendation to the AC and the AC response to the RVR will address the subsequent allowance as well as the issue(s) raised in the RVR. There generally will not be time to obtain the subsequent claim file before making a recommendation. Therefore, the analyst will obtain whatever information is available concerning the subsequent allowance (e.g., onset date and allowance code) from SSA's electronic query system (e.g., MBR, SSID, DDSQ). The analyst will consider that information and, if possible, make a recommendation on whether the evidence in SSA's possession is consistent with both the ALJ denial in the prior claim and the subsequent allowance (see discussion in section II.A.2. above).

    If the analyst believes the information available is not sufficient to determine whether the evidence is consistent with both the ALJ denial and the subsequent allowance or that the evidence is not consistent with the different outcomes, the analyst will explain why in the recommendation to the AC. Generally, in either instance the AC would seek remand to consider the subsequent allowance and address any problem(s) noted in the ALJ decision.

    If the AC agrees and decides that SSA should seek remand, the AC response will advise that the AC will obtain the subsequent file(s) and consider all the evidence in accordance with HALLEX TI I-5-3-17, Section III.B.2. In this instance, Branch staff will immediately request the subsequent file(s) in accordance with the Executive Director's March 27, 2002 memorandum.

C. Court Remands

When a CCPRB receives a court-initiated remand for further proceedings before an ALJ (i.e., a court remand that did not result from either the NCC, RRE or RVR processes discussed above), Branch staff will first determine whether a new (subsequent) claim has been filed and, if so, the status. If the claimant has not filed a subsequent claim, the case will be handled in the usual fashion.

  1. Subsequent Claim Pending or Denied

    1. Initial or Reconsideration

      If a subsequent claim is pending or has been denied at the initial or reconsideration level, the AC remand (of the prior claim) will consolidate the claims if the subsequent claim is made duplicate or now involves an overlapping time period. The analyst should use the language in section II.B.1.a. above in the AC remand for this purpose.

    2. ALJ Decision

      1. No Appeal (or RR Denied) on Subsequent Claim

        If the subsequent claim was denied by an ALJ, Branch staff will determine whether an RR of that decision is pending. If no appeal is pending (or RR was denied) the court remand will be worked in the respective CCPRB. The AC remand (in the prior claim) will acknowledge the decision on the subsequent claim and direct the ALJ to consider that decision if necessary, consistent with applicable reopening regulations, when deciding the prior claim remanded by the court. The analyst should use the language in section II.B.1.b.i. above in the AC remand for this purpose.

      2. Appeal Pending on Subsequent Claim

        If an RR of the ALJ decision on the subsequent claim is pending, the respective PRB will work the RR and the court remand. The analyst will work the RR as soon as possible and the AC will act on the RR at the same time as the court remand.

        1. AC Denies Review

          If the AC denies review in the subsequent claim it will issue a standard denial notice. An AC remand in the prior claim (following court remand) will acknowledge the decision on the subsequent claim and direct the ALJ to consider that decision if necessary, consistent with applicable reopening regulations, when deciding the claim remanded by the court. The analyst should use the language in section II.B.1.b.i. above in the AC remand for this purpose.

        2. AC Grants Review

          If the AC grants review in the subsequent claim, it will generally consolidate the claims because the subsequent claim(s) is made duplicate or involves an overlapping time period. The AC will issue a single remand order that sets forth the basis for the court remand in the prior claim(s) and the basis for granting review in the subsequent claim(s). The order also will set forth what actions are to be taken in the consolidated claims on remand.

  2. Subsequent Claim Allowed

    If the subsequent claim has been allowed, the analyst will obtain whatever information is available concerning the allowance (e.g., onset date and allowance code) from SSA's electronic query system (e.g., MBR, SSID, DDSQ). The analyst will consider this information and make a recommendation as to whether the claim(s) remanded by the court should now be allowed and/or whether it is necessary to obtain the subsequent allowance file. (See section II.A.2. above and the Executive Director's March 27, 2002 memorandum for further discussion of when it is necessary to obtain a subsequent claim file.) The AC will consider all available evidence/information and apply HALLEX TI I-5-3-17, Section III.B.2.

    If the subsequent allowance presents new and material evidence that warrants a favorable decision in the claim(s) remanded by the court, the AC will proceed accordingly.

    If the evidence is consistent with the subsequent allowance but the AC must still remand the prior claim(s), the AC remand will affirm the allowance and limit the scope of the remand to the period prior to the established onset date.

    If the evidence indicates the subsequent allowance is incorrect, the AC will apply HALLEX TI I-5-3-17, Section III.B.2. to decide whether to reopen the subsequent allowance when it acts on the court remand.

D. ALJ Final Decision Following Court Remand

When an analyst makes a recommendation involving a Fin Dec, the recommendation must address whether the claimant has filed a new (subsequent) claim and, if so, the status. If a claimant has not filed a subsequent claim, the Fin Dec should be handled in the usual fashion.

  1. Subsequent Claim Pending or Denied

    1. AC Declines Jurisdiction

      When a subsequent claim is pending or has been denied and the analyst recommends that the AC decline jurisdiction of the Fin Dec, the AC notice declining jurisdiction will acknowledge the subsequent claim and inform the claimant that the AC's action pertains only to the final decision following court remand. The analyst should use the following language in the AC notice for this purpose:

      This notice is only about the Administrative Law Judge's decision dated [MM/DD/YY], on the application(s) you filed on [MM/DD/YY]. That decision is the final decision in your case following court remand. This notice is not about any other application(s) for benefits that you have filed.

    2. AC Takes Jurisdiction

      When an analyst recommends that the AC take jurisdiction of the Fin Dec, the AC notice (if notice required) should inform the claimant when the AC will consolidate the claims. Generally, when the AC vacates a Fin Dec it will render the subsequent claim(s) at the initial or reconsideration level duplicate or cause it to involve an overlapping period and the AC will consolidate. If so, the analyst should use the language in section II.B.1.a. above in the AC remand for this purpose.

      If the subsequent claim has been denied by an ALJ, the AC notice (if notice required) should acknowledge the subsequent claim. The AC remand will direct the ALJ to consider reopening if necessary, consistent with applicable reopening regulations, when deciding the claim remanded by the court. The analyst should use the language in section II.B.1.b.i. above in the AC remand for this purpose.

  2. Subsequent Claim Allowed

    If the subsequent claim has been allowed, the analyst will obtain whatever information is available concerning the allowance (e.g., onset date and allowance code) from SSA's electronic query system (e.g., MBR, SSID, DDSQ). The analyst will consider this information and make a recommendation as to whether the Fin Dec claim(s) should now be allowed and/or whether it is necessary to obtain the subsequent allowance file. (See section II.A.2. above and the Executive Director's March 27, 2002 memorandum for further discussion of when it is necessary to obtain a subsequent claim file.) The AC will consider all available evidence/information and apply HALLEX TI I-5-3-17, Section III.B.2.

    If the subsequent allowance presents new and material evidence that warrants a favorable decision in the (prior) Fin Dec claim(s), the AC will proceed accordingly.

    If the evidence is consistent with the subsequent allowance but the AC must still take jurisdiction and remand the (prior) Fin Dec claim(s), the AC remand will affirm the allowance and limit the scope of the remand to the period prior to the established onset date.

    If the evidence indicates the subsequent allowance is incorrect, the AC will apply HALLEX TI I-5-3-17, Section III.B.2. to decide whether to reopen the subsequent allowance when it acts on the Fin Dec claim(s).

original signed by
Andrew E. Wakshul