SSR 68-12a: SECTIONS 205(a), 216(i) and 223. -- FINALITY OF DECISION -- NEW AND MATERIAL EVIDENCE OF DISABILITY -- RES JUDICATA
20 CFR 404.937(a), 404.956-404.958
- Where the claimant alleged in his application for a period of disability and disability insurance benefits filed in September 1961 that he became unable to work in November 1957, and his application was denied initially by the Social Security Administration on January 4, 1962, and the claimant requested no review thereof but filed a new application in March 1966, again alleging he became unable to work in November 1957, and he was found by reason of new and material evidence to be under a disability from November 1957 within the meaning of the Act as in effect before enactment of the Social Security Amendments of 1965, held, (1) the rules of administrative finality set forth in sections 404.956- 404.958 of Social Security Administration Regulations No. 4 preclude the reopening of the initial determination of January 4, 1962, because more than 4 years had elapsed before new and material evidence was submitted with the application of March 1966; however, (2) a determination of entitlement to a period of disability and disability insurance benefits based on the March 1966 application is not precluded by section 404.937, subsection (a) (res judicata) of Social Security Administration Regulations No. 4, because such determination is not based on the same facts pertinent to the same issue as the unfavorable determination of January 1962. Accordingly, the claimant is entitled on his application of March 1966 to a period of disability beginning in November 1957, and to disability insurance benefits beginning March 1965, the twelfth month before the month in which he filed such application.
This case is before the Appeals Council on its own motion for review of the hearing examiner's decision dated February 1, 1967. The hearing examiner held that the claimant is entitled to a period of disability and to disability insurance benefits under the applicable provisions of the Social Security Act, as amended. Specifically, he found that the claimant became disabled on November 30, 1957, under the provisions of the Social Security Amendments of 1965. He further found that the claimant was not "disabled" within the meaning of the Act in effect prior to the amendments of 1965. The hearing examiner also found that because the claimant failed to request "reconsideration" of the initial determinations on applications filed in 1959 and 1961, these initial determinations became "final and binding" and that the doctrine of administrative finality barred a finding that the claimant was disabled under the disability law in effect prior to 1965.
The record shows that the claimant first filed an application for a period of disability and disability insurance benefits on October 12, 1959. At that time he stated that he was unable to work beginning in November 1957 because of a back injury and headaches. Said application was denied initially on December 28, 1959. No further review was requested by the claimant. On September 13, 1961, however, he filed a new application and realleged that he became disabled in November 1957, but added that he had heart trouble. This claim was denied on January 4, 1962, and no further action thereon was requested by the claimant. Finally, on March 31, 1966, the claimant filed a third application, in which he again alleged that he became disabled in November 1957 because of a back injury. This application was denied initially on July 6, 1966, and denied upon reconsideration on August 30, 1966. the claimant then requested a hearing before a hearing examiner who found that the claimant was "disabled" only within the meaning of the Act as amended in 1965.
Statement of the Law and Issues
Section 216(i) of the Social Security Act provides for the establishment of a period of disability, and section 223 provides for the payment of disability insurance benefits. As herein pertinent, both sections prior to the enactment of the amendments of 1965 on July 30, 1965, define "disability" as inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.
In pertinent part, sections 216(i) and 223 of the Act, as amended, now define "disability" as inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
When a claimant's entitlement is dependent on the amended definition of "disability," disability insurance benefits are not payable for any month prior to September 1965 [section 303(f)(1) of Public Law 89-97]. Entitlement to a period of disability may not be established under an application if the period would have ended more than 12 months before the date on which the application was filed [section 216(i)(2)(E) of the Act as amended in 1965].
The amendments of 1965 eliminated the provisions of the Act which specifically limited the prospective life of disability applications. The Act now provides that if a claimant meets all the requirements for entitlement at any time before the Secretary issues a final decision on an application, such application shall be deemed to have been filed in the first month in which all the requirements were met.
The general issues before the Appeals Council are whether the claimant is entitled to a period of disability and to disability insurance benefits under sections 216(i) and 223, respectively, of the Social Security Act, as amended. The specific issues are whether the claimant was under a "disability," as defined in the Act either prior to or after the amendments of 1965, and if so, when such "disability" commenced and the duration thereof; and whether the special earnings requirements of the Act were met for the purpose of entitlement.
The claimant's earnings record shows that the special earnings requirements of the Act were met from a time prior to November 1957 when the claimant allegedly became unable to work, and that these requirements continued to be met only through December 31, 1957. therefore, in order to be entitled to a period of disability or to disability insurance benefits, it is necessary for the claimant to establish that he was under a "disability" from a time on or prior to December 31, 1957.
Summary of Medical Evidence
The medical evidence shows that as early as 1956 the claimant was treated at a hospital for headache and back complaints of undetermined etiology. After a rather extensive neurological evaluation, it was concluded that there was no organic basis for his head discomfort, and the clinical diagnosis was post-concussion syndrome and anxiety reaction. The claimant's medical course between 1956 and the latter part of 1958 is not clearly documented. However, in November 1958, an examination at an orthopedic clinic produced the opinion that the claimant had an unstable back and that there was an element of nerve root compression. Surgery was recommended as a means of returning the claimant to productive employment. Vocational evaluation was obtained, including a battery of psychological tests which revealed that the claimant's primary interests were gardening and landscaping. Results tended to confirm that he had many somatic complaints related to a back condition; headaches; pains in the eyes, exhaustion and fatigue. Neurotic characteristics were felt to be present as well as hypochondriacal tendencies, and there were some psychopathic aspects to the claimant's "make-up." From the vocational point of view, it was felt that he could not work in close contact with other people and that he had little or no ability for clerical or sales work. Moreover, the tests results suggested that in spite of what appeared to be some ability in the mechanical field, anything other than relatively simple, routine mechanical work was probably beyond his ability. Medical opinion at approximately the same time indicated that if the claimant continued to be mentally disturbed he should seek hospitalization in the appropriate institution. Medical authorities diagnosed chronic anxiety reaction with conversional features.
The remainder of the medical evidence encompassing a period from about 1958 through late 1966 documents that the claimant finally underwent the recommended surgery in 1959. He suffered a heart attack in 1961 and began to manifest gastric symptoms. Throughout this period medical doctors generally reported that an extremely high degree of "disability" existed that would prevent rehabilitation efforts and that the claimant's medical condition was a composite of cardiac, musculoskeletal, and gastrointestinal impairments as well as a mental component. In the aggregate, these impairments were sufficient to make the claimant almost completely disabled.
In summary, the Department of Public Welfare authorities, supported by medical evidence over a substantial period of time, considered him unemployable and unable to participate in any of the various work programs offered by them.
Evaluation of Evidence
The Appeals Council agrees with the hearing examiner's finding concerning the ultimate question of "disability," and accepts an onset of November 1957 as reasonably supported. However, the Council disagrees with the hearing examiner's finding that the claimant was not disabled within the meaning of the Act prior to the amendments of 1965 or that the applicable regulations would, in this case, preclude such a finding.
In resolving the question of whether the evidence now of record establishes that the claimant was under a "disability" as contemplated by the Act prior to the amendments of 1965, it is necessary to show that the medical impairments were of a nature that could be expected to be of long-continued and indefinite duration or result in death. In this regard, despite a careful and detailed study of the evidence, the Appeals Council fails to find credible medical evidence to the effect that the claimant's impairments were in fact remediable, or that even after completion of the recommended surgery that the attending physicians ever declared him able to return to substantial gainful activity at any reasonably determinable time in the future. Rather, there was virtually an unanimity of opinion, both lay and medical, that rehabilitation was not feasible and that he could not be successfully placed in any of the available work programs. It is convincingly shown that, in spite of what appeared to be competent medical supervision over a long period of time, the claimant's physical status continued to deteriorate. His impairments have continued undiminished over a span of about 9 years and there is no persuasive evidence that any significant improvement may reasonably be expected. Consequently, the hearing examiner's finding that the claimant's impairments did not satisfy the requirements for a finding of "disability" under the Act prior to the amendments of 1965 is contrary to the evidence.
Also, it appears that the hearing examiner was of the opinion that the regulations would not permit him to make a finding of entitlement under the Act prior to the amendments of 1965 even if he were so disposed, i.e., that he was precluded by the doctrine of res judicata. In this he clearly erred since section 404.937 subsection (a) of Regulations No. 4 [20 CFR 404.937, subsection (a)], indicates that res judicata should be applied, among other conditions not present here, only "on the same facts" and the hearing examiner impliedly conceded that the present record contains new and material evidence. It is apparent that the hearing examiner was led into this error by confusing the concept of res judicata with the rules of administrative finality under sections 404.956 through 404.958 of said Regulations No. 4, which latter rules, in pertinent part, merely preclude the reopening of a prior unfavorable decision under an earlier application where the initial administrative denial thereof was more than 4 years from the filing date of the current application. Thus, where it has been found that new and material evidence exists in the present record, the restrictive doctrine of res judicata may not be applied thereto, and the claimant may now be entitled to a favorable finding on an issue previously decided against him even though -- as in the instant case -- the lapse of time may prevent the reopening of prior determinations to the contrary. It is noted that the last prior initial determination herein was made on January 4, 1962, which obviously was more than 4 years from the filing date of the current application (March 31, 1966), and thus cannot be reopened.19 It follows, therefore, that benefit payments must be confined to the retroactive scope of the present application, that is, may not commence more than one year prior to the filing date thereof.
Findings of the Appeals Council
The Appeals Council makes the following findings of fact:
1. The claimant's impairments have prevented him from engaging in substantial gainful activity since November 30, 1957.
2. Said impairments have lasted for a continuous period of 12 months and are expected to be of long-continued and indefinite duration.
3. The claimant's inability to engage in substantial gainful activity by reason of his impairments has continued from November 30, 1957, through the date of this decision.
4. The claimant has been under a "disability" as defined in the Act prior to the amendments of 1965, which commenced on November 30, 1957, and has continued through the date of this decision.
It is the decision of the Appeals Council that the claimant, based on his application filed on March 31, 1966, is entitled to a period of disability commencing on November 30, 1957, and to disability insurance benefits under sections 216(i) and 223, respectively, of the Social Security Act, as in effect prior to the amendments of 1965 thereto. The decision of the hearing examiner is modified accordingly.