AR 87-2(11) -- Rescinded 8/6/98


AR 87-2(11): Butterworth v. Bowen, 796 F.2d 1379 (11th Cir. 1986) The Conditions under which the Appeals Council has the Right to Reopen and Revise Prior Decisions -- Titles II and XVI of the Social Security Act[1]


Under what conditions does the Appeals Council have the right to reopen and revise prior final determinations or decisions?


Section 205 and 1631 of the Social Security Act (42 U.S.C. Sections 405 and 1383); 20 C.F.R. Sections 404.969, 404.987-404.988 and 416.1469, 416.1487-416.1488



Butterworth v. Bowen, 796 F.2d 1379 (11th Cir. 1986)


The court's holding affects only cases at the Appeals Council level. Therefore, the Ruling applies to decisions at the Appeals Council level and only to cases in which the claimant resides in Alabama, Florida or Georgia at the time of the Appeals Council's review.


Joseph D. Butterworth filed an application for disability insurance benefits on May 20, 1983. The application was denied on June 27, 1983. On July 7, the denial was affirmed on reconsideration. Following a de novo hearing, an Administrative Law Judge (ALJ) found that the claimant was entitled to a period of disability, and advised the claimant of his decision by a notice dated September 28, 1983. That notice informed Mr. Butterworth that the Appeals Council could, under 20 C.F.R. Section 404.969 of the Social Security Regulations, on its own motion within 60 days from the date of the ALJ decision undertake a review of the decision which could possibly change it. The notice further advised Mr. Butterworth that, after the 60 day period the Appeals Council generally could only reopen and revise the decision under 20 C.F.R. Section 404.988 of the Social Security Regulations on the basis of new and material evidence, or if a clerical error had been made as to the amount of the benefits, or if there was an error on the face of the evidence on which the decision was based.

On March 1, 1984, the Appeals Council sent Mr. Butterworth a letter stating that it was reopening the ALJ's September 28 decision. The letter explained that under 20 C.F.R. Section 404.988 a determination may be reopened for any reason within 1 year of the date of the initial determination (i.e., June 27, 1983). The Appeals Council concluded that Mr. Butterworth was not disabled under Rule 203.11 of the medical-vocational guidelines. The letter informed Mr. Butterworth that he or his representative could submit additional evidence or a further written statement within 20 days from the date of the letter or could inform the Council within that period when additional material could be expected. It noted that it would only consider additional evidence pertaining to Mr. Butterworth's condition as of the date of the ALJ's decision. It informed Mr. Butterworth that within 20 days of the date of the letter he or his representative could request, and provide the reasons for requesting, an appearance to present oral argument to the Appeals Council. It explained that the request would be granted if the Council determined that there was a significant question of law or policy presented, or that oral argument would be beneficial in rendering a proper decision. In closing, the Appeals Council stated that if Mr. Butterworth or his representative did not contact the Appeals Council within 20 days, the Council would assume he did not want to submit anything further and would then issue its decision.

The Appeals Council did not receive a response from Mr. Butterworth to this March 1 letter. On June 29, 1984, it issued a decision reversing the ALJ decision. The Appeals Council began its decision by stating that "[t]his case is before the Appeals Council on its own motion to review the decision of the administrative law judge. . . ." It concluded that although Mr. Butterworth had a severe respiratory impairment which precluded him from returning to past relevant work, he was still capable of performing medium work and under Rules 203.11 and 203.12 of the medical-vocational guidelines was therefore not disabled. The cover letter accompanying the Appeals Council decision informed Mr. Butterworth that if he disagreed with the decision he could file suit in Federal court within 60 days.

On July 27, 1984, Mr. Butterworth wrote to the Appeals Council contending that its review of his case was legally improper. On August 1, 1984, Mr. Butterworth filed a complaint in Federal district court claiming inter alia, that in utilizing 20 C.F.R. Section 404.988(a) to reopen the ALJ's decision, the Appeals Council did not properly and legally apply the specific Regulation which permits Appeals Council review. The case was referred to a magistrate for review and recommendation. The magistrate recommended that the Appeals Council's decision be reversed.

On July 23, 1985, the district court entered an order reversing the decision of the Appeals Council, and ordering remand of the case for the reinstatement of disability benefits. The district court concluded that the reopening authority of 20 C.F.R. Section 404.987 is limited to claimants and therefore the Appeals Council's initiation of the reopening and revising process was improper. The court reasoned that the language of 20 C.F.R. Sections 404.987 and 404.988 clearly indicates that they are meant for exclusive use by the claimant. The Secretary appealed from that order to the United States Court of Appeals for the Eleventh Circuit.


The Court of Appeals for the Eleventh Circuit held that the Secretary as well as the claimant is authorized to initiate reopening of an administrative determination. The court of appeals went on to hold that while the Secretary is not precluded from initiating the reopening and revising of cases, he may initiate such action only when the case is properly before the component level proposing to take the action. Thus, the court went on to specify that the Appeals Council cannot reopen an ALJ decision which is not properly before it.

The court explained the several methods by which a decision may be properly before the Appeals Council. They are:

Claimant timely requests Appeals Council review;
Appeals Council timely takes own motion review;
Appeals Council has assumed responsibility for holding a hearing in lieu of the ALJ;
Appeals Council is deciding a second claim based on the same earnings record.

Since Mr. Butterworth had not requested Appeals Council review, the court concluded that the ALJ decision could properly have been before the Appeals Council on review only under the terms of 20 C.F.R. Section 404.969. The court concluded that:

[W]e have not held that the Secretary is precluded from initiating the reopening and revising of cases. We have only given section 404.969 its necessary force and recognized that it limits somewhat the reopening jurisdiction of the Appeals Council. The Appeals Council is free to review ALJ decisions on its own motion review in accordance with the requirements of section 404.969. Even where the Appeals Council is limited, the ALJ's are still free to reopen and revise ALJ decisions where the other appropriate conditions exist.


20 C.F.R. Sections 404.987-404.995 and Sections 416.1487-416.1494 set out the rules for reopening and revising final determinations and decisions. These rules use the word "we" to signify SSA components, including the Appeals Council, and thus vest the authority to reopen and revise in the Appeals Council as well as in other SSA components.[2] Therefore, under SSA policy, the Appeals Council may reopen and revise any ALJ or Appeals Council decision if the procedures and conditions set forth in 20 C.F.R. Sections 404.987 and 404.988 or 416.1487 and 416.1488 are met. Such actions are subject only to the time limits found in those provisions and not the time limits of any other regulations.

The holding in Butterworth prohibits reopening and revising determinations or decisions by the Appeals Council unless the determination or decision is properly before it. "Properly before it" is defined in Butterworth to cover only the four circumstances set forth above under HOLDING. This is contrary to SSA policy.


This ruling applies only to cases in which the claimant resides in Alabama, Florida or Georgia at the time of the Appeals Council's review.

Where an ALJ's decision has become final (i.e., the 60-day time limit for appealing to the Appeals Council has expired, and the claimant has not appealed and the Appeals Council has not initiated own motion review within the 60-day time limit), the Appeals Council may not reopen and revise the ALJ's decision since the ALJ's decision is not considered to be properly before the Appeals Council.


(Date of Publication) 5/1/87

[1] Although Butterworth was a title II case, the Appeals Council's reopening and revising procedures involved in Butterworth are identical in title XVI claims. Therefore, this Ruling extends to both title II and title XVI claims.

[2] SSA has long held that only an ALJ or the Appeals Council can reopen and revise a prior decision by an ALJ, and only the Appeals Council can reopen and revise a prior decision by the Appeals Council.

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