TN 3 (01-11)

NOTE: If a claimant files a new disability application and has a prior disability claim for the same title and benefit type pending at any level of administrative review, see DI 51501.001 – Procedural Change for Subsequent Disability Applications Effective July 28, 2011.

A. Limited consideration on subsequent claims

Adjudicators’ consideration on the subsequent claim is limited to the period after the period adjudicated by a prior final determination or decision unless one of the following applies:

• When reopening and revising the prior final determination or decision, see Reopening and Revising a Determination or Decision – Operating Policies DI 27501.005B;

• The disability criteria changed since the medical determination or decision denying a prior claim and more than 12 months elapsed since the date of the notice of the initial determination on the prior claim.

• New and material evidence establishes disability within the period adjudicated in the determination or decision denying a prior claim and more than 4 years elapsed since the date of the notice of the initial determination on the prior claim; or

• The prior determination was a FO (not DDS) denial for “insufficient evidence furnished” (M5 or M6), when a claimant fails to submit essential evidence, see DI 11018.005.

If an unadjudicated period does not exist (and no new fact or issue), process the current claim in accordance with Refilings for the Same Period (Res Judicata Cases) in DI 27516.000.

NOTE: For prior claims decided at the Administrative Law Judge (ALJ) or Appeals Council (AC) level only, limit your consideration to the period after the date that the ALJ or the AC makes a final decision. For example, do not consider an ALJ dismissal action a final decision of the Commissioner. For more information on hearing dismissal, see GN 03103.220, Hearing Dismissal.

B. Distinction between “Period Adjudicated” and Title II “Period of Disability”

For Title II claims of insured workers, the period adjudicated and the period of disability are not the same. This distinction is important because we cannot pay Disability Insurance Benefits (DIB) for overlapping periods of disability.

When a claimant files a subsequent application after a Title II post-entitlement action where a period of disability has ended:

1. The period adjudicated ends with the date of disability cessation.

2. The period of disability (i.e., disability freeze) ends with the close of whichever of the following is the earliest:

   • The last day of the month before the month the claimant attains full retirement age; or

   • The last day of the month immediately preceding the termination month; or

   • The last month for which benefits were paid if the claimant has performed substantial gainful activity during the 36-month extended period of eligibility following the completion of a trial work period.

C. DDS can reopen prior determination or decision

1. Disability Determination Services (DDS) has authority to reopen

If the prior determination is below the Administrative Law Judge (ALJ) hearing level, and not by a Disability Hearing Officer (DHO) or the Office of Disability Operations (ODO), reopen and revise the prior determination unless:

• A non-medical issue is involved; or

• A DHO reopens a favorable reconsideration determination based on medical or medical/vocational factors. See The Right to a Disability Hearing at Reconsideration Level in DI 29001.001.

NOTE: When reopening a prior determination electronically, follow the procedures for Processing Reopenings in DI 81020.115 and Processing Medical Reactivations DI 81020.117.

2. DDS does not have authority to reopen

a. DHO or ODO made the prior determination

DDS does not have the authority to reopen the prior determination if a DHO or ODO made the decision. The DDS refers both the prior claim and the subsequent claim to either the State or Federal Disability Hearing Unit (DHU) or ODO, as appropriate.

b. ALJ, Appeals Council (AC), or a Court made the prior decision

DDS does not have authority to reopen a prior decision made at the ALJ, AC or court level. Instead, the DDS must take the following actions:

1. Complete action on the subsequent claim.

2. Establish onset after the period adjudicated by the prior decision if establishing disability on the subsequent claim.

3. Place a Form SSA-5002 (Report of Contact) in the electronic folder (or if the official folder is paper, place a paper SSA-5002 in the folder) explaining the reason (e.g., new and material evidence indicating the claimant may have been disabled at the time a prior decision was made) for referring the case to:

   • ODO,

   • the Processing Center (PC), or

   • the FO.

To route the file take one of these actions:

• If the official folder is a paper folder, route the paper Modular Disability Folder (MDF) to the FO and state the reopening issues in the remarks section of Form SSA-408 (Route Slip).

  If the DDS establishes disability on the subsequent claim, the FO must adjudicate the subsequent claim for payment.

  After the FO processes the subsequent claim, the FO must prepare a SSA-5002 indicating that reopening is possible on a prior ALJ or AC decision and place it in the MDF to alert the PC or ODO for consideration of the possible reopening; or

• If the official folder is a Certified Electronic Folder (CEF) route the file to the field office (FO), and include an electronic special message in the CEF to alert the FO of the possible reopening at the ALJ or AC level. (If DDS establishes disability on the subsequent claim, the FO must adjudicate the subsequent claim for payment and then forward the claim to ODO or the PC.)

  After the FO adjudicates the subsequent claim, the FO prepares a SSA-5002 stating that reopening is possible on a prior ALJ or AC decision and faxes the SSA -5002 into the electronic folder to alert the PC or ODO.

  Fax under cover of an SSA-3601 Claims Routing with a checkmark in Action Required, and in item 26 (Other) along with the remark “See SSA-5002 included in this fax”.

  NOTE: Some ALJ denials where the DDS believes reopening is possible could be pending at the Appeals Council (AC). In cases where the AC has a pending request for review, the FO should follow the procedures in DI 12045.027.D., New Claim or Appeal Filed While a Prior Claim or Appeal is Pending Before the Appeals Council (AC) – Title II or Title XVI.

c. See Also

DI 81020.115, Processing Reopenings

DI 81020.117, Processing Medical Reactivations

D. When a prior unfavorable Title II determination or decision cannot be reopened

1. Evaluate any new claim evidence on its own merits and prepare a determination.

2. Establish the Disability Onset Date (DOD) within the period adjudicated when supported by the evidence of record on file if:

   • More than 12 months have elapsed since the date of the notice of the initial determination on the previous claim (thereby precluding reopening for any reason) and the disability criteria have changed since the prior determination or decision. See Change of Ruling or Legal Precedent (Change of Position) in DI 27505.020B.3.; or

   • More than 4 years have elapsed since the date of the notice of the initial determination on the previous claim (thereby precluding reopening for “good cause”) and new and material evidence establishes a DOD within the period adjudicated in the determination or decision on the prior claim. See Additional Policy Reminders For Processing Cases When Reopening Does or Does Not Apply in DI 27501.005C.2.; or

   • The prior determination was a FO (not DDS) denial for “insufficient evidence furnished” (M5/M6), when a claimant fails to submit essential evidence see DI 11018.005.

NOTE: The component authorizing payment bases the retroactivity of benefits on the date of new application.

EXAMPLE:

We denied the number holder’s (NH’s) application for Disability Insurance Benefits (DIB) filed in June 2002 in September 2002 and we released the determination notice in the same month.

The NH filed for DIB again in September 2005. We also denied this application and the initial denial notice was sent in December 2005. The NH filed for DIB a third time in February 2007. We allowed this application based on new and material evidence, with an onset date established in the period preceding the first application.

Although the determination on the first application cannot be reopened, the determination on the second application may be reopened under the 4-year rule and benefit rights may be established based on the September 2005 application.

E. When a prior favorable Title II freeze determination or decision cannot be reopened because the 4-Year period for reopening based on “Good Cause” expires

When a claimant files a subsequent claim for DIB:

• Evaluate the evidence of record, and prepare a determination on the new claim on its own merits; and

• Consider the prior determination under the continuing disability procedures if the freeze determination was incorrect.

NOTE: You can establish onset within the prior adjudicated period after the 4-year period for reopening based on “good cause” has expired, and we base benefits on the current application date.

F. When a prior Title XVI determination cannot be reopened

Evaluate any new and material evidence and prepare a determination on the new application on its own merits, adhering to the subsequent applications procedure in DI 27510.005A.

G. When reopening issue is unresolved and the DDS allows subsequent claim

When a reopening issue cannot be resolved at the time of a subsequent claim allowance, DDS will:

1. Process the current allowance and request the FO to return the claim to DDS for later resolution of the reopening issue;

2. Establish onset no earlier than the day following the date of the previous determination or decision for title II claims. Follow the interim onset date procedures in Return of Allowances to Consider Possible Earlier or Later Onset Dates in DI 25501.270, if the onset date is not fully favorable. For title XVI claims, see DI 25501.370;

3. Annotate the remarks section of the SSA-831 (Disability Determination and Transmittal), SSA-832 (Cessation or Continuance of Disability or Blindness Determination and Transmittal (Title XVI)), or SSA-833 (Cessation or Continuance of Disability or Blindness Determination and Transmittal (Title II) or post a message in the CEF as follows: “Return Folder to the DDS After Award Payment - Possible Reopening to be Developed;”

4. Return the claim to the FO for processing of the allowance determination on the subsequent claim; and

5. Resolve the reopening issue after receiving the claim back from the FO.

   NOTE: The FO must return the claim to DDS for resolution of the reopening issue.

H. Prior folder lost or destroyed

When the prior folder is lost or destroyed, the DDS should attempt to obtain evidence relating to the prior claim in order to make a judgment about the correctness of the prior determination. When the prior folder is lost or destroyed, take the following actions:

• For title II - Secure a Master Beneficiary Record (MBR) see SM 00510.000;

• For title XVI – Secure a Supplemental Security Record (SSR) see SM 01601.000;

• For concurrent title II/title XVI – Secure both an MBR and an SSR;

• Request assistance from the FO in obtaining information on the prior claim;

• Consider all available evidence (which may include DDS records from the prior claim available from the residual files for the old 831, PDN, worksheets, copies of CE reports, etc.), and prepare a determination as to whether reopening is possible under the rules of administrative finality. See Conditions for Reopening a Final Determination or Decision in DI 27505.001; and

• When the Medical Improvement Review Standard (MIRS) is applicable, see Lost Folders/Medical Evidence – Background in DI 28035.001.

I. References

See the following cross-references for additional information pertaining to reopenings and related issues:

• DI 27500.000, Reopenings, Adoptions and Refilings

• DI 27516.001, Field Office (FO) Res Judicata Development and Processing

• DI 28035.001, Disability Determination Services (DDS) Initial Receipt and Development of Lost Folders/Medical Evidence for Continuing Review (CDR)

• DI 28055.001, Extended Period of Eligibility (EPE) and Related Medicare Provisions – General

• DI 29001.001 The Right to a Disability Hearing at Reconsideration Level

• DI 29025.000, Preparation of Continuing Review Cases and Reopenings Applicable to Disability Hearings (Pre-DHU Processing)

• DI 81020.115, Processing Reopenings

• DI 81020.117, Processing Medical Reactivations

• DI 80830.050, Initial Claims and Reconsideration Actions

• DI 11010.075, Title II Technical Denials, and Claims Not Requiring a Disability Determination

• GN 04000.000, Administrative Finality