When Is An Application Subsequent and Not Duplicate?

March 1, 2008

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Every advocate’s worse nightmare is to get a remand from the Appeals Council that reopens a subsequent favorable decision. Katie Courtney of the Empire Justice Center in Rochester, however, was recently able to undo such a nightmare.

Katie’s client had filed an appeal pro se after her Childhood SSI benefits were terminated when she turned 19 years old.  The appeal languished for so long at the Appeals Council that the claimant forgot about it.  Eight years later, in 2005, she filed a new application, which was approved.  She came to Katie in 2007, confused because she had been contacted by ODAR notifying her that a hearing was to be scheduled in her case.  What case, she asked?  It turns out that in November of 2007, the Appeals Council finally got around to reviewing and remanding the original appeal of her termination.

In the process of remanding the old claim, however, the Appeals Council determined that the claimant’s subsequent application was a “duplicate” application.  What is a duplicate application, you may ask?  A “duplicate application” is one that is filed for the same benefit or same period of disability for which a previous claim has already been filed. See POMS GN 00204.028. It is the Field Office’s duty to determine whether or not the second application is a duplicate.  According to the language in POMS, only Title II claims can be a duplicate.  SSI applications can only be subsequent claims, since any SSI application by definition can relate back only to the date of the application.

Katie justifiably feared that the Appeals Council’s Order meant that the new, favorable determination was subject to review by the ALJ in conjunction with the remand.  She wisely contacted the Appeals Council for clarification, arguing that the claimant’s subsequent   application was not a “duplicate.”  As Katie pointed out to the Appeals Council, her client’s new – or subsequent – application was for SSI only.  She was only awarded benefits as of the date of application in 2005.  The decision in no way invaded the period ruled on by the ALJ in the pending appeal.  She argued that the Appeals Council was without authority to disturb the subsequent allowance. The Appeals Council agreed.  It amended its order, finding that it had no basis to reopen the “subsequent” claim for SSI filed in 2005, and therefore affirmed it.

As Katie reminded the Appeals Council, it is now well established that an individual may file a new disability application after an ALJ’s unfavorable decision. POMS GN 03106.090. HALLEX provisions, however, specifically limit a favorable determination on the subsequent claim made while the request for review of the hearing decision in the prior claim is pending to the period beginning the day after the date of the ALJ’s decision on the prior claim. HALLEX I-5-3-17 §I.A. HALLEX I-5-3-17 provides a step-by-step process for the Appeals Council to follow when dealing with subsequent determinations, favorable and unfavorable, when an appeal is pending.  Note, however, that this section specifically does not apply to “duplicate” claims.  See HALLEX I-5-3-17 §I.A (“These instructions do not apply to subsequent claims that are duplicate to prior claims that have previously been adjudicated (e.g., a claim for Title II disability benefits in which the date last insured expired before the Administrative Law Judge’s (ALJ’s) decision on the prior application for the same benefits)”).  Just to confuse things even more, see HALLEX I-5-3-17 §III.B.2, which provides that the effect of the Appeals Council’s action in adopting a subsequent allowance may render the subsequent application duplicate!

In terms of reviewing subsequent – but not duplicate – applications, HALLEX provides that the Appeals Council is bound by the reopening regulations at 20 CFR §§404.987-989 and 416.1487-1489.  The most common situation in which the Appeals Council will review and reopen a subsequent, favorable determination is if it is within 12 months of the date of the notice of the initial determination on the subsequent claim. In such situations, the Appeals Council can consider if there is any new and material evidence relating to the prior claim.  The danger is that it can also decide that the subsequent favorable decision was incorrect.

In all other situations, the Appeals Council review of the subsequent application is limited to the time limits and good cause requirements of 20 CFR §§404.988 and 416.1488.  If there is no basis for reopening, the subsequent allowance may be referenced but may not be disturbed by the Appeals Council. HALLEX (TI) I-5-3-17. If the AC remand order is silent on the subsequent allowance, then the ALJ may determine if the subsequent allowance should be reopened in accordance with the applicable regulations. HALLEX (TI) I-5-1-3-17 Section III, B.2.

The bottom line?  Don’t be afraid to ask the Appeals Council to clarify its order if you believe a subsequent decision was improperly reopened. Congratulations to Katie for doing exactly that in her case.  And thanks to Katie for elucidating us on the subtle differences between subsequent and duplicate applications!