REOPENING

A claimant may need to request reopening of a previous denial, either an initial denial or a denial of a request for reconsideration which was not appealed further. We see people who may have filed a claim a year or two earlier, and failed to request a hearing on it. Then they come in with a new application which we take to a hearing. As part of the hearing process we make a formal request to reopen the previous denial, if the evidence will support that earlier date.

Say an application is originally filed in September, 2005 for a case of medical disability which you can prove as of September, 2005. Then, the reconsideration decision is issued turning down the claim in June, 2006. Then, the claimant did not request a hearing on that denial. If she starts over in 2007 she will need to ask for "reopening" if she has the facts to prove disability going all the way back to 2005.

In these situations the claimant relies on the law which covers this subject of reopening. 20 C.F.R. 404.988(b) provides that “a determination, revised determination, decision or revised decision may be reopened … within four years of the date of the notice of the initial determination if we find good cause, as defined in 404.989, to reopen the case.” Thus, a decision may be appealed four years from the date of the initial denial. If a claimant, as in my example above, requested reopening by letter in September, 2007, that is well within the four dear deadline for a disability claim which really needs to go back to September, 2005.

Section 20 C.F.R 404.989 defines “good cause” for reopening.
(a) We will find that there is good cause to reopen a determination or
decision if—
(1) New and material evidence is furnished;
(2) A clerical error in the computation or recomputation of
benefits was made; or
(3) The evidence that was considered in making the determination or
decision clearly shows on its face that an error was made.
(b) We will not find good cause to reopen your case if the only reason
for reopening is a change of legal interpretation or administrative
ruling upon which the determination or decision was made.

Note that the claimant’s reasons for not appealing the first denial are irrelevant; that is, good cause does not need to be shown for not appealing that first claim.

New and material evidence is the most frequently used argument for reopening.
Evidence is “new” when “the adjudicator who made the prior decision did not consider it.” HALLEX I-2-9-40 C.1. Evidence under this HALLEX evidence is “material when the new evidence, either by itself or when considered with other evidence than before the adjudicator, would warrant a change in any finding pertinent to any matter at issue or in the ultimate decision.”

New evidence can come in many forms. It is not just a medical report or test results that the SSA did not receive at the earlier adjudication. For example, the claimant’s testimony may constitute new evidence, as stated in HALLEX 1-2-4-40 G.

If a claimant did not appeal a prior denial to the ALJ level, as is often the case, the claimant has not had the opportunity to explain the impact of the impairments on the claimant's life.

If I get a case the needs reopening, I will review the Social Security electronic evidence folder from that earlier application. I will get the CD from that first application to determine what evidence was missing from that first file. I will then file the missing evidence as new and material evidence to justify a reopening - to get the claim to relate back to the earlier year where it belongs.

If you have a previous disability claim which was turned down and never appealed to a hearing, you may be able to get it revived by relying on these reopening procedures.

Widow Benefits

If you are a disabled widow age 50 or older you may be able to receive benefits off your spouse’s (or former spouse’s) Social Security record. Claims reps need to know that in some cases a disabled spouse needs to make the claim under the deceased spouse's account in this way, because the survivor may not have enough work credits for disability benefits under the survivor's own record. Additionally, for disabled widow benefits your deceased spouse needs to have earned a minimum of 40 credits (40 credits is 10 years of work) from working in jobs that pay Social Security taxes.

You can qualify for a disabled widow’s benefit if you are between ages 50 and 60 and have a disability that began before your spouse's death or within seven years after the spouse's death.

Also, disability claim reps need to be careful not to lose the forest through the trees - because at age 60 that spouse may be eligible for the survivor benefit regardless of disability. When a person fighting for disability is nearing 60, in almost all cases you will want to be sure the claimant applies for that age 60 survivor benefit without delay.

If you become eligible and your disability benefit is less than the widow’s benefit, you will receive the disability benefit plus the difference between the two. On the other hand, if the disability benefit is higher than your widow’s benefit, you will receive only the disability benefit.

Check out the link to the SSA site on widow survivor benefits for a disabled spouse 50 and over, and regardless of disability at age 60. The rights of divorced spouses are also explained at that link.

ALJ Approval Rates

A person fighting a Social Security disability appeal, after getting turned down twice in the appeal process, takes the case to an Administrative Law Judge. The database posted by The Oregonian makes it possible to check on the approval rate of any Administrative Law Judge in the country. The judges are not supposed to make decisions based on their own subjective emotions about a case. Our cases are to be decided on the law. People deserve equal treatment under the law. It is disappointing to see such huge differences in the approval rates of judges. As a representative, I need to do the best job that I can in presenting the evidence and the legal arguments. My job is to be totally prepared to present the claim. I can't worry about who the judge is. If a judge makes a mistake I appeal that decision to the Appeals Council, and if that does not work I can take the case to federal court.

Potential Benefits for Disabled Persons Who Return to Work

In this post I call the disabled person the claimant, which is the jargon you see in judge's decisions. If you google these matters, try typing in "Social Security disability" and "Red Book" and you will find all kinds of information on this subject. Excuse the technical stuff here. My main point is: Check to be sure on these potential benefits when you return to work after a period of no work caused by disability. You may be entitled to more benefits, even after you return to work.

Some of our disability appeals involve closed periods. That is, the person claiming benefits claims disability for a period of at least 12 months, but then returns to work. In those cases benefits start after five months from the beginning date of disability and if there is medical improvement benefits will stop after the return to work, following a three month grace period. But claimants should not be too quick to think that they have to limit benefits to just the closed period of time when that person was off work. A claimant may have returned to work while still medically disabled. This post explains benefits for disabled people who return to work. I will not discuss the blindness situation here. That is a separate subject.

Trial Work Period

Don't forget to consider the trial work period (TWP) if medical improvement is not involved.

If there was medical improvement, the claimant would not be entitled to a trial work period under sec. 404.1592. I'll come back to that below. Section 404.1592(e) (3) provides as follows:

The month in which new evidence, other than evidence relating to any work you did during the trial work period, shows that you are not disabled, even though you have not worked a full 9 months. We may find that your disability has ended at any time during the trial work period if the medical or other evidence shows that you are no longer disabled.

See §404.1594 for information on how we decide whether your disability continues or ends.

This statute would apply if the claimant was and is medically disabled but still has been doing substantial gainful activity. The evidence to terminate benefits before the 9 month trial work period is up - must be evidence of medical improvement. Evidence of “the work you did” does not terminate disability, until after claimant uses up the nine months.

Extended Period of Eligibility

Be aware of what the law calls the extended period of eligibility. Say that a claimant completed the trial work period (TWP)and used up the nine months. At that point, he or she would begin the 36-month Extended Period of Eligibility Period (EPE). The EPE is a period of at least 36-months in which he is eligible to receive SSDI for any month in which here countable earnings are below the SGA level. After that the claimant would have access to the expedited reinstatement within the 60 month period described below. See http://www.ssa.gov/redbook/eng/ssdi-only-employment-supports.htm (the so called Red Book).

Expedited Reinstatement Benefit Should Apply if Claimant Stops Work Within 60 Months

If claimant is awarded benefits which terminate after he uses up the nine months of trial work period followed by the three month grace period, and then later finds that he or she cannot work because of the above impairments, the claimant is eligible for a return to the disability program if the person applies to do so within 60 months of the termination date. Sec. 404.1592b provides as follows:

The expedited reinstatement provision provides you another option for regaining entitlement to benefits when we previously terminated your entitlement to disability benefits due to your work activity. The expedited reinstatement provision provides you the option of requesting that your prior entitlement to disability benefits be reinstated, rather than filing a new application for a new period of entitlement. Since January 1, 2001, you can request to be reinstated to benefits if you stop doing substantial gainful activity within 60 months of your prior termination. You must not be able to do substantial gainful activity because of your medical condition. Your current mpairment must be the same as or related to your prior impairment and you must be disabled. To determine if you are disabled, we will use our medical improvement review standard that we use in our continuing disability review process. The advantage of using the medical improvement review standard is that we will generally find that you are disabled unless your impairment has improved so that you are able to work or unless an exception under the medical improvement review standard process applies. We explain the rules for expedited reinstatement in §§404.1592c through 404.1592f.

Note the language in this statute that in effect states that to gain the benefit of these reinstatement rights the termination must be “due to your work activity.” Just as with the trial work period, the 60 month reinstatement provision only benefits those who have continuing medical disability but who return to work nevertheless.

Section 301 VR Benefit May Apply With Medical Improvement

Even with medical improvement a claimant may be able to extend benefits under this VR program found in section 301 of the Social Security code, a person who medically recovers and no longer meets SSA's definition of disability, receives monthly payments which continue if the person is actively participating in an approved vocational rehabilitation (VR) program that is expected to help the person become self-supporting. Monthly SSDI can continue until the person completes the program. See discussion at: http://www.socialsecurity.gov/disabilityresearch/wi/detailedinfo.htm

Therefore, if the Social Security Administation finds that a claimant has a closed period case, with a termination based on medical improvement, benefits may continue under section 301.

Understand Benefits On Return to Work

Many people don't know that they can claim benefits for limited periods of time - these closed periods. And many others, including lawyers and judges, overlook these continuing benefits for disabled people who return to work. If you have that situation be sure that your lawyer takes a hard look at these potential continuing benefits.