Reopening a Prior Claim Reminder

Reopening a prior claim is one of the neatest things you can do as a Social Security disabiity lawyer. From the "posted one year ago today" file, here is a reminder to check for prior claims. Reopening a prior claim can add substantially to the retroactive benefits payable to the claimant.

Reopening is governed by 20 C.F.R. 404.988 for disability claims and 20 C.F.R. 416.1488 for SSI claims. 

A prior claim may be reopened within 12 months for any reason. The 12 month period runs from the date of the initial denial of the prior claim to the filing date of the subsequent claim.

A prior Social Security disability claim can be reopened within 4 years if there is good cause. An SSI claim can be reopened within 2 years for good cause. In most cases, "new and material" evidence is the basis for a finding of good cause. The 2-year and 4-year time periods run from the date of the initial determination of the prior claim.

Social Security disability law is unusual in its ability to reopen claims. Reopening runs contrary to the notions of res judicata and issue preclusion that we all learned in law school. But it makes a great deal of practical sense in the context of Social Security disability, because many deserving claims are not appealed after an initial denial.

Please be sure to always check for prior claims that may be subject to reopening.

Comments

[kev law]

res judicata can be avoided even if there is an ALJ decision?

[Gordon]

Thanks for your comment. I was discussing reopening of prior claims at the DDS level that were not appealed. DDS is where you get the "initial determination" which begins the time period for reopening under the regulations I cited. Sorry if that wasn't clear.

Nevertheless, a subsequent claim for the same period of time is not necessarily barred by res judicata even if there is a prior ALJ decision, so long as there is new evidence, or a change in the listings. See HALLEX I-2-4-40.

Also, that prior ALJ determination is subject to reopening at the hearing for the subsequent claim. See HALLEX chapter I-2-9.