Wednesday, October 28, 2009

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.

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