Over on the Connect board, JOA posted this outline which I reproduce here in an editted version, including links to the relevant POMS and HALLEX provisions s/he cites. With some minor editting, everything that follows is JOA’s stuff:
“Subsequent application” is a phrase used to refer to an application filed while an administrative action or civil action is pending on a prior claim. Prior to December 1999, subsequent applications filed while a request for review was pending were to be associated with the file for the prior application at the AC. Only if the AC denied review (or dismissed) was this subsequent application returned to the local office for processing.
This changed on 12/20/99, the date of instructions in an Emergency Message (EM-99147). Since then other instructions have been published in POMS and HALLEX. HALLEX instructions about subsequent applications are found at TI I-5-3-17 and I-4-2-101. Within OHA, especially in OAO, these have been supplemented with a series of procedural memos.
The alert reader will recognize that the information below does not cover all possible scenarios. Some scenarios have been omitted because the procedures involved would not be of great interest to the representative. For example, the procedures for when the AC issues a fully favorable decision after a subsequent allowance would be, from the representative’s point of view, largely about housekeeping matters. Other scenarios are not addressed because HALLEX and related instructions do not expressly cover them and thus require interpretation and interpolation that is beyond the scope of this post.
Stripped to the essentials, existing procedures are thus as follows:
I. At the Disability Determination Service (DDS)
The Disability Determination Service is to process the application as a new initial claim. If the determination is favorable, the onset date cannot be any earlier than the day after the date of the prior unfavorable hearing decision. If the AC remands the prior case to the hearing office, the DDS is to stop processing. (See POMS DI 20101.025.)
II. At the Office of Appellate Operations (OAO)
All RR’s are to be screened for subsequent applications that have resulted in an allowance. If there has been a subsequent allowance, a judgment is required (based on the available information) whether the subsequent allowance folder is likely to contain new and material evidence.
A. Subsequent folder not needed
If the subsequent allowance folder is unlikely to contain new and material evidence, OAO will process the RR without it.
B. Subsequent folder needed
If the subsequent allowance folder is likely to contain new and material evidence, OAO must request it.
1. Subsequent folder not found
If a request and a set number of follow-ups do not produce the subsequent allowance folder, the case is to be remanded under the new and material evidence provision of the regulations. Suggested remand order language calls for the ALJ to request a formal search or reconstruction of the subsequent allowance folder. The ALJ is to otherwise apply the provisions of HALLEX I-5-3-17.
2. Subsequent folder found
a) No basis exists for granting RR
If the subsequent allowance folder is secured, and if there is no basis for vacating the decision on the prior application, the AC will deny review. The denial notice is to address the subsequent allowance. The suggested language for the denial notice is that the subsequent allowance did not warrant a change in the ALJ’s decision.
b) Basis exists for granting review and remanding
If there is a basis for vacating the hearing decision and issuing an order of remand, the AC will determine whether it agrees with the subsequent allowance.
(1) AC agrees with subsequent allowance
If it agrees, it will affirm the subsequent allowance in its remand order and restrict the period at issue.
(2) AC does not agree with subsequent allowance
If the AC does not agree, it will consider whether the conditions for reopening the subsequent allowance exist. If these conditions exist, the AC will give notice of its intent to reopen and remand.
III. At the Hearing Office
A. Requests for a hearing on subsequent applications.
If there is a request for a hearing on the subsequent allowance, the HO is not to set a date for a hearing while the RR on the prior application is pending with the AC. If the AC denies the RR, the HO may set the hearing.
B. AC remands with affirming or reopening a subsequent allowance
If the AC remands without discussion of a subsequent allowance, the Administrative Law Judge is to decide whether reopening of the subsequent allowance is required, under the same guidelines applicable for the AC.
IV. Reopening
Whether or not the AC will actually reopen any particular subsequent allowance is far too fact-specific a question to be usefully addressed other than in terms of generalities. There are two such generalities worth mentioning.
A. Outcomes cannot coexist or cannot be reconciled
Both HALLEX I-5-317 and I-2-4-101 speak of the importance of determining whether an unfavorable hearing decision and a subsequent allowance can be reconciled or can coexist. It is thus reasonable to expect that the answer to this question will be important to whether the AC will look further into reopening.
B. Limitation of reopening for new and material evidence
Under 20 CFR 404.989 and 416.1489, new and material evidence provides good cause for reopening. At footnote 5, HALLEX I-5-317 places an important restriction on what will meet the requirement for good cause: “evidence already in the record on which the Administrative Law Judge decision is based in not ‘new’ and would not satisfy this requirement.”
