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Sometimes a claim for Social Security disability benefits is denied after the date last insured (DLI) has passed. If that claimant files a subsequent claim for benefits, that subsequent claim may be denied based upon res judicata.

Res judicata, which is Latin for "the thing has been decided," is the legal principle that a final judgment is conclusive upon the parties in a subsequent litigation involving the same cause of action. 

In the context of Social Security disability, the principle of res judicata keeps Social Security from having to decide the same claim over and over again. This makes sense, because a claimant's current medical condition is irrelevant to the determination of disability if the date last insured has gone by. 

Nevertheless, res judicata has a limited application in Social Security disability claims. If there is new and material evidence, or a change in the listings, res judicata will not bar a subsequent claim. See HALLEX I-2-4-40. 

New evidence can be current evidence. It just needs to relate back to the insured period. For example, a retrospective opinion from a treating doctor that the patient had serious functional limitations prior to the date last insured would constitute new and material evidence, and a new claim would not be barred by res judicata.

Also, remember to request reopening of the prior claim.

Reconsideration is an intermediate step in the Social Security disability claim process. If DDS denies your initial claim and you appeal, the claim goes back to a different claim examiner at DDS for Reconsideration. In 5 out of 6 claims, the new examiner denies the claim again. For most claimants, Reconsideration is an unnecessary detour on the way to a hearing by an administrative law judge.

There are ten "prototype" states, however, that skip the Reconsideration step. In those states, the appeal of a denied claim proceeds directly to a hearing with an Administration Law Judge. The 10 prototype states are: Alabama, Alaska, California (Los Angeles North and West areas), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York (Brooklyn and Albany areas), and Pennsylvania. Social Security has been evaluating this streamlined disability process in these states since 1999.

The SSA is planning to reinstate the Reconsideration step in the prototype states, starting with the state of Michigan, and then Colorado. Commissioner Astrue testified before Congress on April 27th on this issue.

I handle Social Security disability cases in both Maine and New Hampshire. Maine has Reconsideration, and New Hampshire does not. So I see claims routed to a hearing both with and without the Reconsideration step. Personally, I do not think that Reconsideration adds much to the process, and it is the source of significant delays here in Maine.

Of course, about 15% of claims are allowed at Reconsideration, so the number of claims appealed to the hearing level is reduced by the Reconsideration step. But that reduction comes at the expense of an additional 4-6 month wait for the 85% of claimants whose claims are denied again at Reconsideration.

So while reinstating Reconsideration would help to reduce the backlog at the Social Security hearing offices in prototype states, it mostly just shifts the backlog from the hearing offices to the DDS state agencies. From the claimant's perspective, there is no difference. 

The SSA wants to have the same Disability Case Processing System for all the DDS agencies. Currently, each state DDS has its own unique computer software, and that has got to be a nightmare for Social Security.  Having one software system shared by all the DDS agencies pretty much requires that all the states have the same claim process, which means all the states must have the Reconsideration step. That, rather than backlog reduction, is the real reason for the switch back to Reconsideration for the prototype states.

Please take a moment and look at the sidebar of this blog, under the heading Important Topics. These are links to permanent pages on this site that address topics that are central to many claims.

A drawback of the blog format is that the most recent posts (not necessarily the most important posts) appear at the top of the site. To counterbalance this, I created the Important Topics list on the sidebar. 

The latest page added to the list is Appeal Your Denial. Obviously, this is an important topic for many Social Security disability claims. 

There is other helpful information in the Important Topics pages, and I particularly urge new visitors to this site to take a look.

The Important Topics are: 

When you receive a denial letter from Social Security, the most important thing to do is to appeal that denial within 60 days.

There are many reasons why an initial claim gets denied, and many denials have nothing to do with the merit of your disability claim. Further, the explanation provided in the denial letter is often wrong. And sometimes there is no logical reason for a denied claim.

By appealing, you will ultimately have a hearing with a U.S. Administrative Law Judge (ALJ). The hearing level is your best chance to have your claim for disability benefits granted.

A common mistake made by claimants is that, instead of appealing a denied claim, they reapply later. Then they are denied again. Do not make that mistake! Improve your chances of receiving benefits by getting some help and appealing your denied claim, rather than reapplying for benefits later.

Social Security maintains records that show the number of disability claims are decided at the various levels. The chart below shows the statistics from 2009.

There is a lesson in these statistics: many claimants do not appeal their initial denial of benefits.

The chart shows that in 2009 there were 2,686,152 initial claims, but only 582,992 Reconsideration determinations. Ten states, including New Hampshire, don’t have the intermediate Reconsideration step, so you can’t exactly compare those two sets of figures. Nevertheless, it is clear from these statistics that many Social Security disability claimants did not appeal the initial denial of their claim.

The chart also demonstrates that the likelihood of receiving benefits increases if you appeal your claim.

The top row shows that 37% of the disability and SSI initial applications were granted nationwide. 63% were denied. These are national statistics, but the allowance rate in Maine is almost identical.

The second row shows that, of the denied claims that were appealed, 86% were denied again at the Reconsideration level.

But look at what happens at the hearing level (row 3). 63% of the claims are allowed. So if you appeal your denied claim to the hearing level, your chances of approval rise dramatically. The statistics prove it.

Here is the complete 2009 Waterfall Chart, showing the Appeals Council and federal court decisions, too.

I have a hearing today with one of the new judges in Manchester, New Hampshire for a claim involving work under special conditions. 

Social Security’s regulations discuss work activity in 20 C.F.R. 404.1573, and work under “special conditions” is covered in 404.1573(c):

If your work is done under special conditions, we may find that it does not show that you have the ability to do substantial gainful activity. Also, if you are forced to stop or reduce your work because of the removal of special conditions that were related to your impairment and essential to your work, we may find that your work does not show that you are able to do substantial gainful activity. However, work done under special conditions may show that you have the necessary skills and ability to work at the substantial gainful activity level. Examples of the special conditions that may relate to your impairment include, but are not limited to, situations in which—

(1) You required and received special assistance from other employees in performing your work;

(2) You were allowed to work irregular hours or take frequent rest periods;

(3) You were provided with special equipment or were assigned work especially suited to your impairment;

(4) You were able to work only because of specially arranged circumstances, for example, other persons helped you prepare for or get to and from your work;

(5) You were permitted to work at a lower standard of productivity or efficiency than other employees; or

(6) You were given the opportunity to work despite your impairment because of family relationship, past association with your employer, or your employer’s concern for your welfare.

My hearing today involves section 404.1573(c)(4). In this particular claim, a 20-year old young man with Asberger’s syndrome is working as a dishwasher in a local hospital kitchen. However, this work is possible because his mother is making sure he gets to and from work each day. The claimant lives at home. To maintain even a part-time work schedule, the mother must remind the claimant to go to bed at a reasonable hour on the night before a work day, she wakes him up on work days, and drives him to and from work. Without the mother keeping track of the schedule and making sure that he gets to work each day on time, he would not be able to sustain the employment.

Now, in this case the work is part-time and not substantial gainful activity (SGA) based on the wages. However, even the wages were above the SGA level, I would argue that it would not be SGA due to the special conditions.

At the hearing I will try to persuade the judge that these special conditions enable the part-time employment, and that the claimant could not sustain any employment in the absence of the special conditions. As a result, a finding a “disabled” at step 5 of the sequential evaluation is appropriate.

{update: the judge agreed. The claim was granted.}

Here is a selection of recent notable articles from the Social Security disability blogs:

I publish a disability blog roundup every other Friday. An archive, with links to the last 6 months of disability roundup posts, can be found on the sidebar.

I have been remiss by not writing about the four – count 'em, four – new administrative law judges at the Manchester, New Hampshire hearing office. This brings the total number of judges in Manchester to eight.

The new judges are:

  • Debra Boudreau
  • Paul Martin
  • Thomas Merrill
  • Dory Sutker

Each judge has an interesting background. For example, Paul Martin was the hearing office director at the Manchester office. He has returned as an ALJ in the same hearing office. That is remarkable. 

These four judges have been in place for a while, and early disposition data is available.

Two years. 300 posts. 100,000 page views. Each of these three milestones will be passed this week.

This blog is two years old. It seems like it has been much longer than that. I can hardly remember practicing Social Security disability law without this blog to guide me. The process of writing blog posts sharpens your thinking as a lawyer, and I am a better disability lawyer today because of this blog. 

Much has changed online in two years. There were just a handful of Social Security disability blogs back then. Today, I subscribe to over 40 in my RSS feed, and there are enough posts written for a biweekly blog roundup.  And we are starting to get the discussion among blogs that marks a healthy and mature legal blogging community. 

Three hundred posts. The pace has been steady since the beginning. I have considered writing posts less frequently, but something interesting always seems to come up. The topics of my posts are the issues and events of my practice as a Social Security disability lawyer. There is always something to write about.

100,000 page views. I know that is not a lot, but it started at zero two years ago, and the number grows each month. What is important to me is that the blog is being found by those looking for information regarding Social Security disability, a surprisingly complex area of law. 

Thanks for reading.


Since the last Social Security disability blog roundup two weeks ago, my wife Joanna and I had our first child, Bridget Kathleen. She is shown above on her way home from the hospital last week. Both mother and daughter are thriving.

Here are the notable articles from the Social Security disability blogs: