Martin on Social Security

Part 2 – Topics

Administrative Process

§ E 000. Administrative Process – In General

For most Social Security issues the administrative process begins with a benefit application on which the Agency makes a determination.  This first determination about entitlement and benefit amount is termed an “initial determination.”  If the claimant is dissatisfied with the initial determination the next step is Agency “reconsideration.”  (Under a test procedure for disability claims currently operating in 10 states the reconsideration stage is eliminated.)

When the determination concerns the issue of an individual’s disability it will be made by a state agency under contract with the Social Security Administration.

Reconsideration and following steps are open not only to the claimant but also to others whose rights may be adversely affected by the Agency’s determination.  This would include, for example, individuals whose benefits will be reduced if the claimant’s benefits are granted.

Following a reconsideration, a dissatisfied individual’s next step is a hearing before an administrative law judge (ALJ).

Following an ALJ hearing and decision, the final administrative level of appeal is before the Appeals Council.

Not all Agency actions or decisions directly involve benefit claims.  Even those that do not may be pursued within this framework.  A request for correction of an earnings record, for example, leads to an initial determination that can be taken through all the following stages.

Some Agency determinations or actions are left to Agency discretion and cannot be appealed in this way.  That is the case, for example, with an Agency decision not to reopen a prior determination.

A plan for reforming this multi-stage process, as it applies to disability benefit claims, was adopted by the Agency in 2006. See 71 Fed. Reg. 16446 (Mar. 31, 2006). The new procedures were to be phased in, over time, across the U.S., starting with ME, NH, VT, MA, RI, and CT. Initial experience in those states together with appointment of a new agency head led to proposed regulations setting out a different reform scheme in October 2007. See 71 Fed. Reg. 61218 (Oct. 29, 2007).

Rev. 11/07

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 100. Effect of Misleading Agency Information or Advice

The general rule is that mistaken advice or information furnished by Agency staff will not bind the Agency.

In Schweiker v. Hansen, 450 U.S. 785 (1981), the Supreme Court held that the Agency was not estopped from denying benefits to a claimant who failed to file an application even though her failure to do so was the result of an erroneous statement.  She had not applied because an Agency staff member told her she was ineligible.

The Act now deals with this particular situation by providing that a later application can be dated from an earlier point at which misinformation furnished by Agency staff deterred the individual from applying.  However, the general principle still stands.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 200. Need to Comply With Agency Deadlines and Requirements

At each stage in the administrative process the determination becomes final if a request for appeal to the next level is not filed in writing within a specified number of days.  If, for example, the claimant’s request for a hearing is not filed within 60 days of notice of the action being appealed, the appeal can be dismissed without a hearing.  The regulations provide for Agency extension of these limits upon a showing of good cause.  The regulations include examples of grounds that may be considered good cause.  Social Security Ruling SSR No. 91-5 specifically addresses the importance of considering a claimant’s mental incapacity as a ground for finding good cause.  SSR No. 95-1 deals with good cause in cases prior to July 1, 1991 involving a notice of an Agency determination that failed to explain the difference between seeking review and filing a new application.

In disability cases, the claimant may be scheduled for a medical examination at the program’s expense.  A failure to appear for such an examination without good cause can itself furnish grounds for a conclusion that the individual is not disabled.

Finally, when an individual has requested an administrative law judge (ALJ) hearing following a reconsideration, he or she will receive notice of that hearing’s time and place.  That notice is supposed to be sent at least 20 days prior to the hearing.  Upon a request based on good cause the ALJ can change the time and place.  The individual appealing can have an ALJ decide a case on the record, without an oral hearing.  However, if an appellant or a representative simply fails to appear at a scheduled hearing that can result in a dismissal of the appeal.

Rev. 6/95

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 300. ALJ’s Conduct of Hearing – In General

The administrative law judge (ALJ) is responsible for setting the time and place for the hearing.  ALJ’s are directed to avoid hearing sites more than 75 miles from the claimant where possible, to consider proximity to the claimant in setting the site, and to bring the hearing to the claimant’s home or hospital bed if the claimant’s condition requires it.  Agency staff are supposed to check with participants before scheduling a hearing.  A claimant who objects to the time or place set for a hearing should do so in writing. The Agency has begun to experiment with videoconference hearings as an option for the claimant.

The ALJ has authority to issue subpoenas requiring the appearance of a reluctant witness or the production of documents.  The decision to do so can be upon the ALJ’s own motion or at the claimant’s request.  A claimant has a right to request issuance of a subpoena, but must do so at least 5 days prior to the hearing.

At the hearing, the administrative law judge (ALJ) is responsible for looking into the issues of a case.  The ALJ’s role is an active one.  He or she has a duty not merely to receive evidence and to preside over the hearing, but to ask questions of the appellant and other witnesses.  Hearings are tightly scheduled so that normally the ALJ will limit the proceeding to 30 minutes.  But the ALJ also has the authority to stop a hearing temporarily and continue it at a later date or reopen a hearing to receive new and material evidence.

The ALJ is supposed to discharge three contending duties at once.  In addition to serving as an impartial decider, the ALJ is responsible for testing the claimant’s evidence, asking questions that the Agency might ask if it were represented at the hearing.  The ALJ’s third responsibility is to assure full development of the claimant’s case, especially when the claimant is not represented by an attorney.

In LA, MS, and TX an acquiescence ruling (AR 91-1) has implemented the Fifth Circuit’s ruling in Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990) that an ALJ must grant a claimant’s request for a subpoena for the purpose of cross-examining an examining physician.  The Agency’s position is that the decision on whether to issue a subpoena is discretionary, requiring a showing by the claimant that the testimony sought is reasonably necessary for presentation of the claimant’s case.

Rev. 12/04

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 310. ALJ’s Conduct of Hearing – Evidence of ALJ’s Bias

A fair hearing requires an impartial and unbiased judge.  The regulations allow a claimant to seek a different administrative law judge (ALJ) in situations where he or she suspects bias.  Courts will also review claims of bias based on the ALJ’s statements or behavior at the hearing.  But establishing bias sufficient to cause a court to upset the determination is extremely difficult.  Courts have declined to find bias in statements reflecting impatience with the claimant or characterizing the claimant’s acts in unfavorable terms such as “uncooperative” or misstating the law.

When a reviewing court finds error in an ALJ’s decision and also grounds for concluding that the ALJ may be committed to a denial of the claim, it can urge that the case be assigned to another upon remand.

Rev. 6/96

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 320. ALJ’s Conduct of Hearing – Duty to Pro Se Claimant

Courts generally hold that the basic obligation of an administrative law judge (ALJ) to develop a full and fair record rises to a higher level when the claimant is unrepresented and is unfamiliar with the procedures.  When the claimant is confused or has language difficulties the duty is especially strong.  This duty requires the ALJ to inquire, to probe, to explore and even to seek additional evidence in order to assure a full record on the issues raised by the claim.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 330. ALJ’s Conduct of Hearing – ALJ’s Development of Hearing Record

The administrative law judge (ALJ) is responsible for developing a full and fair record.  This responsibility exists even when the claimant is represented by an attorney.  It arises from the non-adversarial nature of the proceedings and the remedial purposes of the Act.  The ALJ cannot take a passive role leaving it to the claimant, who carries the ultimate burden of proof, to develop the relevant facts.  The ALJ has the obligation to develop the record to ensure that all necessary and relevant information is produced.

In addition to that substantive responsibility, the ALJ has the responsibility to assure that there is a verbatim record of the entire hearing.  Should questions arise that are not relevant to the claimant’s case they can be discussed off-the-record but the ALJ must summarize the content and conclusion of any such actions for the record.  Since the ALJ’s decision must be supported by substantial evidence as determined in a court’s review of the record, gaps in the transcript of the hearing raise a serious problem.  So long as they are minor and there is an adequate basis in the rest of the transcript to support the ALJ’s decision a court may affirm, but even small gaps at critical stages of hearing testimony can lead a court to remand for a rehearing.

The Agency has embarked on a major initiative to replace tape recorders with digital recorders as the means of capturing ALJ hearings, part of a larger plan to create digital case files.

Rev. 12/04

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 340. ALJ’s Conduct of Hearing – ALJ’s Treatment of Claimant

The administrative law judge (ALJ) has a duty to allow the claimant to make a full presentation of his or her case.  The ALJ’s obligation to develop a full record includes a duty to ask appropriate questions of the claimant and the claimant’s witnesses.

Despite these obligations the ALJ remains in charge of the hearing and therefore may limit questions and interrupt the claimant or other witnesses and may admonish them about delays or repetitious testimony.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 400. Adequacy of ALJ’s Decision

While the administrative law judge (ALJ) need not discuss every document, the ALJ cannot in making findings select for comment only the evidence that supports his or her ultimate conclusion.  The ALJ’s decision must address all the evidence at some reasonable level.  When there is considerable evidence that runs counter to the Agency’s position it must be dealt with.

The decision of an ALJ is subject to judicial review.  That review does not constitute an independent appraisal of the record but simply a determination whether the record contains substantial evidence supporting the ALJ’s findings.

While courts express understanding for the practical burdens under which ALJs operate, they view an adequate ALJ decision as essential for appropriate judicial review.  Adequacy for these purposes requires the ALJ to apply the relevant legal standards to the pertinent evidence in the record and explain the legal and factual underpinnings of a determination in sufficient detail for a reviewing court to understand them.  The decision need not refer to each item of evidence, piece-by-piece.  It is enough that the findings be related to a summary of the evidence that allows a court to follow how the determination was made.

The court’s role is not to find whether substantial evidence can be found in the record to support the ALJ’s ultimate conclusion but whether the intermediate determinations the ALJ made were supported by substantial evidence.  That requires the ALJ’s decision to contain findings on the factors and stages of determination laid out in the Act and regulations.

Social Security Ruling SSR No. 96-7p lays out specific requirements for findings about the credibility of the claimant’s testimony on symptoms and their effects.

The Agency amended its regulations in October 2004 to allow an ALJ to enter a wholly favorable, oral decision into the record of a hearing, and then to issue a written decision incorporating the findings of fact and the reasons stated orally at the hearing by reference.

Rev. 12/04

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 500. Adequacy and Timing of Agency Notice

When a claimant fails to take a step or fails to take it within the allotted time, issues can arise about the adequacy of the Agency’s notice of the need to do so.  Underlying such arguments over notice may be a Constitutional “due process” claim.  Often, however, the issue can be framed simply in terms of the requirements of the Act, regulations, or agency policy.  For example, Spanish language notices are required not only when they are requested by a claimant but when the Agency has reason to believe that they may be necessary, and special provisions exist governing notice to blind recipients or claimants.

Generally, the issue is raised in the context of an Agency claim that the claimant’s failure to act or to act in timely fashion precludes consideration of the claim.  For example, the Agency may assert that the claimant’s failure to request reconsideration or seek review of an adverse hearing bars a later application on grounds of administrative res judicata. And in return the claimant may argue that the notice of the right to appeal did not make clear the full consequences of a failure to do so.

The claimant may argue notice defensively in situations where the claimant appeals an Administrative Law Judge decision on narrow grounds and the Appeals Council undertakes a broader review of the matter.

The Act excludes from operation of administrative res judicata any decision on initial determination or reconsideration that was not appealed because of inadequate notice about the consequences of a failure to appeal.  The provision requires that the Agency furnish clear notice of the difference between appealing and reapplying.  The Act also codifies the requirement that Agency notices be expressed in clear and simple language and specifically requires that the notice include the address and phone number of a local office.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 600. Claimant’s Right to Counsel

A claimant is entitled to representation by counsel in proceedings before the Agency.  This is a statutory right, not one flowing from the U.S. Constitution.  The standard notice of a claimant’s right to a hearing explains the right to be represented.  The right to counsel does not mean that an attorney is assured or that the Agency will provide counsel.  Social Security Ruling No. 71-23 stresses that the Act does not require legal representation and that the claimant’s evidentiary hearing can be fair and impartial without counsel.  The right is effectively denied in cases where the Agency fails to give notice of the hearing to the claimant’s attorney or to determine that a claimant appearing without counsel is, in fact, represented.

In cases where due to the claimant’s psychological, intellectual, or language limitations an attorney would be especially valuable, the administrative law judge (ALJ) may be required by a court to assure that a claimant proceeding unrepresented has made an intelligent waiver of this right or had reasonable opportunity to secure counsel.  In such cases, there must be a showing that the lack of counsel resulted in prejudice to the claimant or an unfair proceeding.  This means that cases raising this issue are also likely to involve issues about the adequacy of the record developed by the ALJ.

Rev. 3/98

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 700. Travel and Other Expenses

The Act authorizes and the regulations provide for the Agency’s payment of certain travel expenses incurred by claimants and their witnesses in responding to Agency requests to appear for interviews or examinations or in attending a benefit hearing.  Expenses incurred by the claimant, a representative, or unsubpoenaed witness in traveling to an ALJ hearing are only reimbursed if the distance exceeds 75 miles.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 800. Administrative Res Judicata

Administrative res judicata is a doctrine that accords finality to Agency decisions.  Once a claimant has filed an application and the Agency has disposed of it, the claimant cannot secure a fresh determination of the original claim by filing a new application.  The doctrine applies regardless of the level at which the claimant allowed the first decision to become final by failing to appeal an adverse decision.  Under certain circumstances, the Agency may reopen a previous final decision and revise it. If it does indeed reopen the prior determination administrative res judicata no longer applies.  Courts have sometimes found a constructive or de facto reopening in an ALJ’s  reexamination of the merits of a previous decision.  Mere consideration of evidence from a previous application is generally not sufficient to warrant such a finding.  An ALJ may, for example, legitimately evaluate evidence connected with a prior application in order to make a determination of its res judicata effect.  However, a case may be deemed reopened if the ALJ fails to invoke res judicata and grounds a new decision, in part, on the record from the prior application.

A new application can, of course, be filed raising new issues.  Thus, for example, a disability claimant can be denied benefits after filing one claim and granted benefits following a second.  The doctrine of administrative res judicata simply forces the determination on the second application to focus on disability after the time of the first final decision.  So long as the claimant still meets the insured status test and the claimant can establish that since the earlier final decision he or she became disabled the second application can lead to a fresh determination of entitlement.

In AK, AZ, CA, HI, ID, MT, NV, OR, WA, and GU an acquiescence ruling  (AR 97-4) implements the Ninth Circuit’s ruling in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988).  Chavez held that in making a disability determination on a subsequent disability claim under the same title of the Social Security Act (the Act) as a  prior claim on which there had been a final decision by an Administrative Law  Judge (ALJ) or the Appeals Council that the claimant is not disabled that prior determination has continuing force.  It gives rise to a presumption of continuing  nondisability which the claimant must rebut and certain findings required under the applicable sequential evaluation process for determining disability, made in the final decision by the ALJ or the Appeals Council on the prior disability claim must be adopted in the later proceeding.

Administrative res judicata can also be invoked against the Agency.  It has furnished the basis for court holdings that disability claimants cannot have their benefits terminated on the basis of a fresh disability determination.  The Agency is bound by its earlier final decision so that termination must be supported by evidence of a subsequent change in the claimant’s medical condition.

In MD, NC, SC,VA, and WV an acquiescence ruling (AR 00-1(4)) implements the Fourth Circuit’s decision in Albright v. Commissioner of the Social Security Administration, 174 F.3d 473 (4th Cir. 1999) (interpreting Lively v. Secretary, 820 F.2d 1391 (4th Cir. 1987)).  The decisions and ruling require the the Agency to give weight to an earlier ALJ determination of the claimant’s residual functional capacity when it deals with a subsequent application with that weight depending, in part, on the amount of intervening time.

In KY, MI, OH, and TN an acquiescence ruling (AR 98-4(6)) implements the Sixth Circuit’s decision in Drummond v.  Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997) which held that “[a]bsent evidence of an improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a previous ALJ” with the consequence that SSA cannot reexamine issues previously determined in the absence of new and additional evidence or changed circumstances.

In the same states a second acquiescence ruling (AR 98-3(6)) implements the closely related, prior Sixth Circuit decision in Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990) which held that when a final decision on a claimant’s first application for benefits included the finding that he could not perform his past relevant work, SSA was precluded by estoppel from reconsidering the issue on a subsequent application and finding that Dennard could perform this work.

Closely related to res judicata is the doctrine of collateral estoppel.  The latter applies when there has been a prior determination under another title of the Social Security Act involving the same issue and claimant.  An example would be a prior determination in connection with an SSI claim of the same issue being raised in an OASDI proceeding.  Res judicata requires that the prior determination involve the same program.  Collateral estoppel does not warrant dismissal of a hearing request, but simply permits an ALJ or other Agency decision-maker to accept the finding in the prior proceeding unless there are grounds for believing that it was erroneous.

The Act excludes from operation of administrative res judicata any decision on initial determination or reconsideration that was not appealed because of inadequate notice about the consequences of a failure to appeal.  The provision requires that the Agency furnish clear notice of the difference between appealing and reapplying.

Rev. 9/98

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 910. Claimant Request That Agency Reopen Prior Decision

Within limits laid down by the regulations, the Agency can reopen a past final decision at the request of the claimant.  Its decision whether or not to reopen is discretionary.  Except under the most exceptional circumstances, an Agency decision not to reopen a prior decision is not subject to judicial review.

In general the request to reopen should be directed to the level within the Agency at which a decision became final.  That would be the ALJ, for example, in a case where no timely appeal had been taken to the Appeals Council, but the Appeals Council in a case where one had.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 920. Agency Decision to Reopen on Its Own Initiative

The regulations authorize the Agency to reopen a case on its own initiative under a variety of circumstances.  The grounds for such a reopening grow progressively narrower as it occurs within the first 12 months (any ground), within 4 years (good cause), or more (certain types of errors plus a variety of new situation cases, such as another person claiming on the same account).

The relationship between a reopening initiated by the Agency and review by the Appeals Council following an administrative law judge (ALJ) decision has been the subject of considerable litigation.  The issue arises when the Appeals Council does not provide notice that it will accept review of an ALJ decision within the period provided by the regulation but later asserts the right to reopen the decision.

Rev. 5/00

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 950. Appeals Council Review

Appeals Council review lies between decisions rendered by an administrative law judge (ALJ) and a claimant’s right to seek judicial review.  The claimant must request review within 60 days of receiving notice of the ALJ decision or dismissal.  The Appeals Council only accepts a limited number of cases for review.

The Appeals Council also has authority to review an ALJ decision favorable to the claimant or to expand the scope of the review sought by a claimant.  If it does so it must give notice to the claimant.

The Appeals Council will receive new evidence bearing on the issues that were before the ALJ but its review is limited to the record supplemented by any such new evidence.  The circuits are split over whether new evidence submitted to and considered by the Appeals Council, before it ultimately denies review, should be considered as part of the record when a court subsequently reviews the ALJ’s decision against the substantial evidence standard.

When the Appeals Council reverses ALJ determinations favorable to the claimant and the claimant subsequently seeks judicial review of the Agency determination, the treatment of the substantial evidence test and deference to credibility determinations can become significantly more complicated.

As part of a broader exploration of possible changes in the disability claims process, the Agency has issued proposed regulations that substitute a new reviewing body with a narrower role for the Appeals Council.  See 71 Fed. Reg. 61218 (Oct. 29, 2007).

Rev. 11/07

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ E 960. General Issues of Burden of Proof and Evidence

A claimant must establish entitlement to benefits under the Act.  However, there are many situations where the claimant can shift the burden of coming forward with evidence on a particular issue to the Agency by establishing a proposition falling short of the ultimate question on which entitlement rests.  There are also issues on which the Act provides more particular direction on the nature and sufficiency of evidence that a claimant must present.

In seeking to establish entitlement before the Agency the claimant is not restricted to the formal rules of evidence that would apply to a court procedure.

A court will not upset an Agency determination involving a factual determination so long as it is supported by “substantial evidence.”  On the other hand, the Agency, usually through the administrative law judge (ALJ) following a hearing, must make findings on the critical facts.  And the ALJ’s decision must relate those findings to the evidence in the record.  On issues where findings depend heavily on the claimant’s credibility the Agency has especially broad leeway, but must still make findings.

When the ALJ makes a determination that is subsequently reversed or modified by the Appeals Council, application of the substantial evidence test becomes more complicated, doubly so if the ALJ’s decision involved a credibility component.  Since the Appeals Council will have had no opportunity to observe the claimant, the ALJ’s finding on such questions may carry greater weight with a reviewing court.

On issues where the Act incorporates state law as state courts would apply it, the Act can be seen as, in effect, incorporating state law on burden of proof or presumptions.  That can convert these elements of an Agency decision into legal rather than “substantial evidence” questions for a reviewing court.

In Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court ruled that evidence that would be inadmissible in a court proceeding could, nonetheless, constitute “substantial evidence” supporting a Social Security determination.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]