I-5-4-33.Implementation of the Gonzalez Acquiescence Ruling
|- QUESTIONS AND ANSWERS|
ISSUED: September 22, 1993
This Temporary Instruction provides, in question and answer format, guidance to aid in implementing Social Security Acquiescence Ruling (AR) 92-7(9) based on Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990), which the Commissioner of Social Security published in the Federal Register on September 30, 1992, and which was effective on publication.
On September 12, 1990, the United States Court of Appeals for the Ninth Circuit issued a decision in Gonzalez v. Sullivan which found that the form of the notice of initial determination which Mr. Gonzalez received on his first claim for benefits violated his fifth amendment right to procedural due process when it stated that, if the claimant did not request reconsideration, he or she could still file another application at any time and did “not clearly indicate that if no request for reconsideration is made, the determination is final.” The court remanded Mr. Gonzalez' subsequent claim for further consideration and ordered that, if the Secretary concluded that the claimant was disabled, payment be based on the claimant's first application. The Secretary did not appeal and, because the court's holding is contrary to SSA policy, SSA issued AR 92-7(9).
III. Implementing Procedures
The attached questions and answers outline procedures for use by OHA in implementing this AR.
Hearing Office personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022.
IMPLEMENTATION OF THE GONZALEZ ACQUIESCENCE
Does the Gonzalez Acquiescence Ruling (AR) only apply to cases involving claimants who received an initial determination containing language like that received by Mr. Gonzalez and who did not seek reconsideration of that determination?
Yes. The AR does not apply to claimants who timely appealed their initial determinations.
How will the AR apply to claimants who have filed more than two applications?
The claimant did not appeal the initial determination (made before July 1, 1991) on his first claim.
The claimant filed a subsequent claim alleging the same date of disability onset. The claimant pursued a denial of the second claim to the reconsideration level which denied the claim on the basis of res judicata. The claimant did not appeal further.
The claimant filed a third claim alleging the same date of disability onset. This claim is now pending before an Administrative Law Judge (ALJ) on a request for hearing.
In this situation, if the other conditions for applying the Gonzalez AR are met, the ALJ must reopen the denial of the first application pursuant to Gonzalez and issue a decision allowing or denying the reopened claim.
Assume the same facts as the first example except that the claimant received a denial on the merits of his second claim at the reconsideration level, rather than a res judicata denial.
If the third claim presents no new issues or evidence, and all other conditions for a res judicata dismissal are present, the ALJ should dismiss the request for hearing with respect to the period considered in the final determination on the second claim.
Assume the same facts as the first example except that the claimant pursued the second claim to the ALJ hearing level, and that an ALJ dismissed the request for hearing with respect to the period considered in the denial of the first claim, and issued a decision on the merits for the period after the date of the initial determination on the first application.
In this situation, if the other conditions for applying the Gonzalez AR are met, the ALJ will reopen the initial determination on the first claim and issue a decision allowing or denying the reopened claim. If the conditions for res judicata dismissal are met with respect to the issues raised and decided on the merits in the second application, the ALJ should dismiss the request for hearing with respect to the period adjudicated on the merits in the ALJ's decision on the second claim.
The claimant received a denial notice like the notice Mr. Gonzalez received, but did appeal the initial determination (made before July 1, 1991) on his first claim.
The claimant filed a subsequent claim alleging the same date of disability onset and again received a notice like the notice Mr. Gonzalez received (before July 1, 1991). The claimant did not appeal the initial determination on the subsequent claim.
The claimant filed a third claim alleging the same date of disability onset. This claim is now pending before an ALJ on a request for hearing.
In this situation, if the other conditions for applying the Gonzalez AR are met, the ALJ must reopen the denial of the second application pursuant to Gonzalez and issue a decision allowing or denying the reopened claim. If no new and material evidence is presented and no new issues are raised with respect to the time period adjudicated by the final determination or decision on the first application, the ALJ may dismiss the request for hearing with respect to that time period.
The AR indicates that if all the conditions for applying it are met, SSA will issue a new determination based on the merits of the prior claim. Does this mean that cases first identified as Gonzalez cases at the OHA level must be returned to the DDS for a revised initial determination?
No, not if a subsequent claim is properly pending before an ALJ or the Appeals Council. An ALJ or the Appeals Council has jurisdiction to reopen and revise an initial determination on the prior application in these circumstances. (See Question and Answer No. 4 for additional information regarding claim processing when the AR is applicable to a pending claim.)
An ALJ or the Appeals Council may receive a request to apply the Gonzalez AR to a prior claim after the ALJ or Appeals Council has completed action on the subsequent claim. (See 20 CFR § 404.985(b) and § 416.1485(b).)
the subsequent claim is no longer pending in OHA,
the claimant meets all of the requirements for application of the Gonzalez AR to an initial determination on an earlier claim, and
the ALJ or Appeals Council had previously dismissed the claimant's request for hearing on the basis of res judicata,
then the ALJ or Appeals Council should forward the request for reopening (and any claim files in OHA's possession) to the DDS for a revised initial determination on the prior claim. The ALJ or Appeals Council will also inform the claimant that the DDS will notify him or her of its revised determination.
If the claimant does not meet the requirements for applying the AR, the ALJ or Appeals Council will so notify the claimant. No appeal rights attach to an administrative denial of a request to readjudicate a claim pursuant to an AR.
If the ALJ or Appeals Council conducted a merits review of the claimant's subsequent claim and the claimant meets all of the requirements for application of the Gonzalez AR, the ALJ or Appeals Council, as appropriate, has jurisdiction to reopen and revise the initial determination on the prior claim. The DDS will forward any such claims which it identifies to OHA for action.
The AR indicates that SSA must send a notice of the determination made pursuant to Gonzalez to the claimant in accordance with 20 CFR § 404.992 or 416.1492 [entitled “Notice of revised determination or decision”]. How does this apply to OHA adjudicators?
The cited regulations provide that if an ALJ or the Appeals Council proposes to revise a decision (for Gonzalez cases, it would actually be an initial determination that is being reopened and revised), the ALJ or Appeals Council will notify the parties, in writing, of the proposed action and of the right to request a hearing.
If the claimant already has a hearing request pending, the ALJ need not send the parties a notice of proposed action. However, the ALJ should make clear to the claimant, in the notice of hearing, at the hearing and in the decision, that the prior initial determination is being reopened and revised. The notice of hearing should advise the claimant that the hearing will involve the application being reopened pursuant to the AR and that the claimant should be prepared to prove he or she was under a disability since the onset date alleged in the reopened claim. If the notice of hearing does not contain this information, the ALJ should give advance notice of the new issue as required by 20 CFR § 404.946(b) and § 416.1446(b) or obtain a waiver of advance notice from the claimant (see HALLEX I-2-3-25).
The ALJ's or Appeals Council's decision will be considered to be a revised decision even though the ultimate conclusion may be the same as that reached in the initial determination, e.g., that the claimant is not disabled. The decision must state the basis for the revision, i.e., the Gonzalez AR, and the effect of the revised decision, i.e., it replaces the initial determination on the claimant's prior application as the final decision of the Secretary if it is not timely appealed. The decisional paragraph should refer to both the claimant's current claim and the claim being reopened pursuant to Gonzalez. The notice of the decision must also inform the parties of the right to further review.
The AR indicates that it applies if the claimant “received an adverse initial determination made prior to July 1, 1991” because claimants who receive notices of initial determinations made on or after that date are protected by § 5107 of the Omnibus Budget Reconciliation Act of 1990. However, the AR also indicates that the claimant must have “received a notice like that received by Mr. Gonzalez.” Is it the date or the content of the notice that determines whether Gonzalez applies?
Both. The claimant must have received an adverse initial determination made before July 1, 1991, and that initial determination must have been communicated in a “notice like that received by Mr. Gonzalez.”
Which notices are “like that received by Mr. Gonzalez?”
The notice received by Mr. Gonzalez stated:
If you do not request reconsideration of your case within the prescribed time period, you still have the right to file another application at any time.
In 1984, an additional sentence was added to the standard language to this effect:
A new application is not the same as an appeal of this determination.
A notice as described above, but with the 1984 language change will still be considered to be a notice “like that received by Mr. Gonzalez” because it does not meet the court's requirement that the notice “clearly indicate that if no request for reconsideration is made, the determination is final.”
As indicated in the AR, SSA revised the denial notice language
“in 1989 to explain more clearly the difference between appealing a determination, which prevents the determination from becoming final, and filing a new application. SSA completed implementation of the 1989 notice language change in February 1990.”
The language implemented by the end of February 1990 reads as follows:
You have the right to file a new application at any time, but filing a new application is not the same as appealing this decision. You might lose some benefits if you file a new application instead of filing an appeal. Therefore, if you think this decision is wrong, you should ask for an appeal within 60 days.
The February 1990 notice language is not considered to be a notice “like that received by Mr. Gonzalez.” Because the use of the revised language was phased in over a period of time, decision makers must review the content of the notice itself, rather than rely on the date of the notice, to determine whether the Gonzalez AR applies.
Before February 1990, the standardized notices in Supplemental Security Income (SSI) disability claims differed from the title II disability notice language. Most notices used in SSI claims before February 1990 contained the following language:
If at any time in the future you think you qualify for payment, please contact us right away about filing a new application. This is important to you because we cannot pay you for any day before the day in which you file an application or the day you meet all the requirements, whichever is later.
The SSI language quoted above is considered not to be a “notice like that received by Mr. Gonzalez.” Therefore, the AR does not apply to title XVI claimants who received notices with the above-quoted language.
In concurrent title II and XVI claims, if a claimant received the above-quoted notice language on his or her title XVI claim and received a title II notice like the notice Mr. Gonzalez received, the Gonzalez AR will apply to the title II portion of the concurrent claim, but not the title XVI portion.
Regarding notice language in title II non-disability claims, i.e., retirement or survivors insurance claims, SSA does not and has not used language “like that received by Mr. Gonzalez.”
What assumptions, if any, can be made concerning notices of initial determination which are not in file?
Title II disability notices issued beginning September 1, 1977, through February 28, 1990, that are not in file and that cannot be reconstructed should be assumed to be “like that received by Mr. Gonzalez.” Title II disability notices issued after February 28, 1990, all title II non-disability notices and all title XVI notices should be assumed to be not “like that received by Mr. Gonzalez” unless the claimant furnishes a copy of a notice which shows that the Gonzalez language was used in his or her case.
The AR indicates that SSA will reopen pursuant to Gonzalez if “the claimant either requests reopening of the prior initial determination or requests some or all of the benefits claimed in the prior application.” What type of request is sufficient to meet this requirement?
An explicit request for reopening is not required. As in the examples in answer 2 above, merely alleging the same onset date in a subsequent application is sufficient. Further, an allegation of disability onset that is later than the date alleged in an earlier claim would be considered a request for reopening if the new alleged onset date falls within the previously considered period. To be considered a request for some or all of the benefits claimed in the prior application, an allegation of disability onset within a previously considered period need not be made in the subsequent application, but may be contained in hearing testimony, an appeal or any other document being considered in connection with the subsequent application.
As with any AR, a claimant may request application of the AR to a claim decided between the date of the court's decision and publication of the AR. For these cases, the claimant need not specifically cite Gonzalez, as long as he or she indicates that he or she understands there is a court case or ruling requiring reopening because of a defective notice. A statement that indicates the claimant would have appealed instead of refiling if he or she had understood the difference can also serve as a request for application of the AR.