THE PAST IS PROLOGUE: Obtaining Evidence from Prior Files. NOSSCR DISABLITY LAW CONFERENCE DENVER, COLORADO October 30, 2015

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1 THE PAST IS PROLOGUE: Obtaining Evidence from Prior Files NOSSCR DISABLITY LAW CONFERENCE DENVER, COLORADO October 30, 2015 Catherine M. Callery Louise M. Tarantino Empire Justice Center Evidence obtained in the course of a claimant s prior application can be highly relevant to a current determination. But frequently, the claimant or advocate does not have access to that evidence - or may not even be aware of it - unless SSA incorporates it into the current exhibit file. The issues around evidence from prior applications can arise in several contexts: Continuing Disability Reviews (CDRs) Age-18 redeterminations Applications by individuals who were previously denied benefits Applications by individuals who previously received benefits, but which were terminated for non-medical reasons A variety of provisions in the regulations, POMS, and HALLEX govern the procedures for obtaining prior files. Unfortunately, staff at Field Offices (FOs), District Office (DOs) and Hearing Offices (HOs) routinely ignores these requirements and the provisions are not comprehensive enough. SSA has issued an Administrative Message (AM-14070) on October 27, 2014, a copy of which is attached, reminding adjudicators when they must and when they may request prior folders. Per the AM, Field Offices (FOs) will request and associate a prior folder if: Prior folder is located in a FO Court case so requires (e.g., Chavez - 9 th Cir.; Drummond/Dennard - 6 th Cir.) 1 Prior decision not adopted because of significant change in disability criteria Entitlement exists in one title, claim is filed in another title, and FO cannot adopt decision Evidence in current file indicates fraud or similar fault involved in prior claim Special project involved The DDS (Disability Determination Services) or ODAR (Office of Disability Adjudication and Review) may request the prior folder if: Possible collateral estoppel exists Possible reopening Acquiescence Rulings (ARs) require consideration of prior ALJ or Appeals Council findings 1 Acquiescence Ruling (AR) 97-4(9) (Chavez v. Bowen, 844 F.2d 691 (9 th Cir. 1988)), holds that in the Ninth Circuit, a prior finding of non-disability by an ALJ or AC will create a rebuttable presumption in a subsequent determination; but if rebutted, certain findings from the prior determination as to residual functional capacity (RFC), education, and work experience should be given res judicata effect in the subsequent determination absent new and material evidence; AR 98-3(6) (Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6 th Cir. 1990)) and ARs 98-4(6) (Drummond v. Commissioner of Social Security, 126 F.3d 837 (6 th Cir, 1997)) hold that in the Sixth circuit, the Commissioner must adopt prior past relevant work and RFC findings from a prior ALJ or AC decision in a subsequent claim, absent evidence of medical improvement or new and material evidence.

2 Evidence indicates the need for longitudinal history to establish a mental impairment (Ex. Schizophrenia, Depression, and Intellectual Disability) Continuing Disability Review (CDR) with Medical Improvement Not Expected (MINE) Advocates may need to remind SSA of the importance of obtaining evidence from prior files especially in age 18 redeterminations and cases where the claimant was previously approved but lost benefits for non-medical reasons. As discussed below, the reasons why a claimant was granted SSI children s disability benefits might be very helpful to proving disability as an adult. Similarly, consultative examiner reports in a prior file might reveal impairments, especially intellectual deficits, which are not apparent in the current claim. SSA hopes some of these problems will go away when all exhibit files are electronic, but advocates report these problems continue with electronic files. 2 Here are some of the provisions that can be cited when trying to obtain evidence from a prior claim in the different scenarios. CDRs Prior files must be obtained in CDRs. See 20 C.F.R & ( If you are entitled to benefits or if a period of disability has been established for you because you are disabled, we will have your case file with the supporting medical evidence previously used to establish or continue your entitlement. ). The regulations also provide that in those situations where the file cannot be located or reconstructed, benefits will continue. 20 C.F.R (c)(3) & (c)(3) ( Prior file cannot be located ). See also POMS DI Age 18 Reviews Evidence from the childhood SSI approval can be highly relevant to the review. Young adults - or even their parents or guardians - are often unaware of the medical or psychiatric basis of their childhood claims. This is particularly true in the situation of independent young adults who are unable to convey a meaningful medical history. Without access to the medical evidence in the childhood SSI file, claimants or their representatives are severely disadvantaged. Results of intellectual testing obtained after age 16, for example, could be outcome determinative to the age 18 redetermination. If the childhood SSI file is not obtained and made part of the new exhibit file, the current adjudicator or representative might not know of this possible basis for concluding that the young adult is disabled within the meaning of the regulations. SSA s failure to include this evidence in this situation, as well in the scenarios outlined below, becomes a trap for the unwary. Similarly, a child might have been approved on the basis of a medical or psychiatric condition, such as ADHD, for which s/he is not currently in treatment often because the young adult is attempting to live independently and is unable to navigate the bureaucracies required to obtain treatment. A representative with access to the earlier medical records would be in a better position to help the claimant obtain appropriate evaluations and treatment. Furthermore, Social Security Ruling (SSR) 11-2p emphasizes the importance of school records in evaluating the severity and impact of a young adult s impairments. Significantly, the SSR also underscores the relevancy of the basis of the childhood disability claim. For example, the SSR directs that absent medical improvement or proof the prior findings were in error, a young adult found to have an extreme limitation in the ability to interact and relate with others as a child will probably continue to have those limitations. Without access to the prior file, it is usually impossible for an adjudicator or representative to know the basis for the earlier approval and thus make 2 SSA may argue the prior file is cannot be found or has not been retained. Note that SSA is required to retain paper files for ten years after the last disability payment was made. Electronic files for allowed claims are destroyed seven years after the most recently awarded claim if the claimant has attained full retirement age or a CDR is scheduled to occur after full retirement age. Paper files for which the claim was disallowed are retained for ten years (Title II) or six years (Title XVI). Electronic files for disallowed claims are retained for five years, or two years if denied for a non-medical reason. HALLEX I (D).

3 those comparisons. This is even more challenging in cases approved at the initial where there are no ALJ decisions upon which to rely. POMS DI B requires FOs to obtain prior files in age 18 reviews, but not to delay the claim while waiting for folder. Nor are adjudicators to attempt to reconstruct the prior folder if not available. According to the POMS, since the Medical Improvement Review Standard (MIRS) is not applicable to these cases, the prior folder is not essential as in CDRs. This is repeated in POMS DI C, governing DDS reviews. Applications by claimants who were previously denied Current claimants have frequently applied previously and were denied, but did not appeal their denials. Many of these applications are subject to reopening, but claimants representatives are often unaware of the prior claims. Unrepresented claimants may be unaware prior claims can be reopened. Practice tip: Review SSA s ecat (Electronic Claims Analysis Tool), used at the DDS level, which should indicate whether a prior application was filed. Per POMS DI , the FO must determine whether a current claimant previously filed for disability, and must document all prior filings with a medical determination or decision or SGA decision on Form SSA Again, evidence in the prior files could be highly relevant to the new claim with the caveat that sometimes the prior evidence can hurt rather than help the current claim. But in many instances, if evidence from the prior claim is not incorporated into the current exhibit file, adjudicators may not be aware of all of the claimant s impairments or limitations. Additionally, this evidence may provide a longitudinal perspective, especially regarding longstanding mental impairments. Not infrequently, a consulting examiner s report has been rejected because it is considered a snapshot, yet SSA has failed to incorporate records from an earlier application chronicling years of treatment. Particularly frustrating, for example, are claims involving intellectual disabilities. Adjudicators often refuse to accept more recent IQ scores as proof of disability before age 22. Evidence containing earlier IQ scores and proof of life-long limits in adaptive functioning might well be in the prior claim file, but not made available in the current claim. Furthermore, if not aware that relevant information was already collected in the course of a prior application, SSA and/or claimants representatives may unnecessarily collect the same evidence from treatment providers. This duplication of effort is inefficient and expensive. Finally, as underscored by the various Acquiescence Rulings cited, a prior denial may have contained a determination as to past relevant work or RFC that could be helpful to the current claim. For example, a prior finding the claimant was limited to sedentary work might be the basis for a favorable determination under the Medical-Vocational Guidelines if the claimant is now in a different age category. The POMS provide some guidance to adjudicators at the different levels of review about obtaining prior exhibit files and incorporating the evidence into the current claim file: Field Offices POMS DI , cited supra, requires the FO to determine whether a prior claim was filed, but only mandates prior files be requested and associated with the current claim in the six circumstances listed in AM Disability Determination Services

4 POMS DI C specifies when the DDS must request the prior folder. The section lists four examples: 1) concurrent Title II with a prior SSI allowance (collateral estoppel); 2) current claim suggest possible reopening; 3) Acquiescence Rulings require consideration of prior findings of an ALJ or Appeals Council; 4) evidence indicates fraud or similar fault. Subsection B lists situations in which the prior file need not be requested, including if there is no possible reopening, and onset appears to be after the date last insured, or SGA was performed during the year preceding the current application. The last section notes the DDS may determine a prior folder is necessary to establish a longitudinal medical history or establish a mental impairment, but these situations should be infrequent. It does admonish adjudicators not to request duplicate medical evidence that should be in the prior folder. Hearing Offices HALLEX I B.1 requires HO staff to request prior claim files if the: Pending claim is a CDR Pending claim involves collateral estoppel Pending claim involves possible reopening and/or res judicata issue ALJ must consider prior ALJ or AC findings pursuant to an AR Prior claim may have involved fraud or similar fault Section B.2 directs HO staff to consult with the ALJ about obtaining a prior file when it may be necessary for a full adjudication. The ALJ should generally find the evidence necessary: If there is a need to establish a longitudinal medical, educational, or vocational history If the impairment is of a nature that evidence in a prior file could make a difference in establishing whether disability is present in the current claim. The HALLEX section also spells out circumstances in which the HO staff is not required to request a prior file, including if there is no possible reopening, and onset appears to be after the date last insured, or SGA was performed during the year preceding the current application. But ALJs are reminded failure to obtain and consider the evidence might be grounds for an Appeals Council remand even if the prior file is not required. HALLEX I B, on the other hand, mandates that the ALJ must associate a prior ALJ decision with a current claim, especially in those jurisdictions with ARs (AR 00-1(4), AR 98-3(6), AR 98-4(6), and AR 97-4(9)). 3 Of note, the POMS and HALLEX sections discussed above give the adjudicator discretion as to whether to obtain and/or admit evidence from a prior claim into the current record. In practice, evidence is generally admitted without a determination of relevancy or materiality. Those considerations usually arise in the context of the weight to be accorded the evidence. But these provisions underscore the extent to which adjudicators control what evidence reaches the file. HALLEX I E mandates that the any information from a prior claim upon which the ALJ relies must be made part of the record. But the ALJ is not obligated to allow the claimant an opportunity to review a prior claim file if the ALJ does not rely on information from the prior claim. The HALLEX does provide, however, that if it is available and administratively efficient to do so, the ALJ or HO staff should allow the claimant or representative to review the prior claim file. Query how these provisions jive with new regulations at 20 C.F.R & on the submission of evidence? 3 See supra n.1. AR 00-1(4) (Albright v. Commissioner of Social Security, 174 F.3d 473 (4 th Cir. 1999)), rescinded AR 94-2(4), which held in the Fourth Circuit prior ALJ or AC findings as to RFC were binding in a subsequent determination. Albright holds SSA must consider and give appropriate weight to the prior findings.

5 Applications by claimants who previously received benefits, but whose benefits were terminated for nonmedical reasons The most egregious examples of failure to obtain prior evidence files occur in those cases where a claimant was previously awarded benefits, but lost those benefits for non-medical reasons, e.g., institutionalization for more than one year. See 20 C.F.R & The claimant often continues to suffer from the very same impairments and limitations for which s/he was originally found disabled. The prior decision and the evidence associated with it, however, are frequently ignored in the current proceeding. Such prior decisions are highly relevant to subsequent applications. Again, this is particularly significant in claims involving static conditions, such as intellectual disabilities. Yet, new applications are denied in which the claimant had previously been approved on the basis of an intellectual disability, but intellectual disability is not even addressed in the subsequent claim. There is no indication in these cases of any attempt to obtain the evidence associated with the prior approval. Nor is there any acknowledgement by the ALJ in the decision of why the file was not obtained and incorporated. The provisions cited above are equally applicable to these situations, in particular the HALLEX requirement often ignored that a prior ALJ decision must be incorporated into a subsequent file. HALLEX I B. But advocacy may be necessary in many of these claims to insure the prior decision and related evidence is considered. What about the effect of the prior finding of disability? See Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9 th Cir. 2008), holding that claimant s prior receipt of disability benefits did not give rise to a presumption of disability on a subsequent application after the claimant s SSI benefits were terminated during a period of incarceration. But some courts in the Sixth Circuit have been willing to consider the extension of res judicata effect to prior favorable ALJ decisions, citing Drummond and AR 98-4(6). See, e.g., Rosebud v. Colvin, 2015 WL , at *3 (E.D. Ky. Mar. 31, 2015), remanding for court s failure to address res judicata effect of prior determination made at initial level of review; Harris v. Astrue, 2010 WL , at *2 (S.D. Ohio May 21, 2010), finding court erred in not considering whether res judicata applied to prior finding that claimant, whose benefits had been terminated following receipt of workers compensation, had previously met Listing See also Richardson v. Astrue, No WL , *12 (S.D.N.Y. Jul. 8, 2011), observing whether a claimant whose disability benefits are terminated for non-medical reasons is entitled to a presumption that his disability has continued is an open question in the Second Circuit. At the very least, such determinations should be considered relevant. See, e.g., Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) ( The existence of a prior established disability is highly relevant when the nature of that disability appears to be the very same cause of the alleged disability then under examination. ); Tellechea v. Colvin, No. 12 CV 6447 CJS, 2013 WL , at *8 (W.D.N.Y. Oct. 10, 2013) ( Although the Court cannot apply res judicata with regard to the earlier decision, in fairness, the prior decision to grant benefits, and the later decision to grant benefits, are relevant to the ALJ s determination on this application. ); Bragg v. Comm'r of Soc. Sec., No. 10-CV-12055, 2011 WL , at *6 (E.D. Mich. Mar. 22, 2011), remanding to consider evidence of consider past award for SSI; Bonner v. Astrue, 725 F.Supp.2d 898, 901 (C.D. California 2010), finding the record ambiguous because the ALJ failed to develop evidence regarding Plaintiff s previously awarded SSI benefits; Brennan v. Astrue, 501 F.Supp.2d 1303, 1310 (D. Kansas 2007), finding the medical improvement standard not applicable where the Plaintiff s benefits had been terminated due to incarceration, but remanding for the Commissioner to explain why he found the claimant not disabled when the claimant had previously been found to be disabled. 4 Title II benefits can also be terminated if suspended for non-medical reasons for more than twelve months. 20 C.F.R

6 Conclusion Many advocates are experiencing increased difficulty in obtaining medical records and medical source statements. Files of prior cases may contain some of that critical medical evidence. Before going back to a medical provider reluctant to provide more evidence or reports, it may be worthwhile to explore if there have been prior applications and what evidence is contained in those case files. Additionally, earlier evidence of a deteriorating or worsening condition may provide the corroboration necessary to establish an appropriate onset date. Before looking forward to determine what evidence may need to be developed, look to past files to see what testing and treatment the claimant may have undergone. What s past may indeed be prologue. An earlier version of this article by Catherine M. Callery, Louise Tarantino, and John Whitelaw appeared in the January 2014 NOSSCR Forum.

7 AM-14070: Prior Folder Reminder Released on 10/27/14 A. Purpose This Administrative Message (AM) reminds Field Office (FO) staff to alert downstream components of prior claims activity. Additionally, this AM reminds Disability Determination Services (DDS) and Office of Disability Adjudication and Review (ODAR) staff when to request a prior folder. B. Background We consider all evidence in a claimant s case record when making a disability determination. Evidence from a previously processed case may have adjudicative significance to the evaluation and determination of a current case. It is critical for the FO, DDS, and ODAR to be aware of prior claims activity to ensure a claimant is not disadvantaged. C. FO responsibilities The FO must determine whether an individual, currently filing a claim or appeal, has previously filed for any type of benefit or payment administered by SSA. The FO will request and associate a prior folder when: A subsequent claim is filed and the prior file is located in a FO. The FO with the current claim will request the folder(s) from the FO with the prior file by phone or , to be routed directly to the DDS or ODAR. The FO should document on the SSA-408 Route Slip to associate prior paper folder with current claim. A court case requires the prior file (e.g. Chavez in the Ninth Circuit or Drummond/Dennard in the Sixth Circuit). The FO is not adopting a decision because there has been a significant change in the disability evaluation criteria. (See DI A.2). A disability claim is filed on one title, disability entitlement exists on the other title, the FO cannot adopt the decision, and the claim must be sent to the DDS for possible DDS adoption or a new determination. (See DI ). Evidence in the current file indicates fraud or similar fault may be involved in the current or prior claim(s). (See DI ). In situations where material from a prior folder is needed, such as a special project. D. FO actions when a prior folder exists Prior folder is paper Use the Processing Center Action Control System (PCACS) to request Title II folders. Use the Modernized SSI Control System (MSSICS) to request Title XVI folders. Requesting FO will send prior folder to DDS or ODAR when the FO receives the prior folder. Annotate prior claims activity on the SSA-3367 Disability Report, with the following information: Claim type(s); SSN(s) of prior claim(s); Date of last decision (MM/DD/YYYY); Level of last decision (initial, reconsideration, etc.); Outcome of last decision (allowance or denial); Date of prior termination (if applicable); Location of prior folder; and Prior folder requested; yes (date requested) or no.

8 The FO should not delay sending the current claim to DDS or ODAR while obtaining the prior paper folder. If the FO does not send the prior paper folder to the DDS or ODAR, the FO should document the current folder by completing item 7 on the SSA-3367 (Disability Report-Field Office), with the following information: Summary of all prior claims activity (i.e., the type of prior claim(s), or a statement that there was no prior claim); SSN of prior claim; Date and level of last decision; Location code of prior folder; Date FO requested the prior folder and If unable to locate prior folder, steps taken to try to locate Prior folder is a certified electronic folder (CEF) Document prior filings in the Electronic Disability Collect System (EDCS) on the 3367 Miscellaneous, DWB and Prior Filing Information page, with the following information: Protective filing date; Date Last Insured (DLI); Prescribed period and controlling date for a Disabled Widow(er) Beneficiary (DWB); and Prior filings FO can key prior filing information for multiple prior filings in EDCS by selecting the Add Prior Filing button at the bottom of 3367 Miscellaneous, DWB and Prior Filing Information page. On the Prior Filing Information Entry page, choose the type of claim and enter the following information: Claim Type(s) SSN of Prior Claim; Date of last decision (MM/DD/YYYY); Level of last decision; Last decision (allowance or denial); Location of prior folder; Whether or not the prior folder was requested NOTE: If the prior folder is fully electronic, complete the location of prior folder as EF. This will alert the DDS or ODAR to the presence of a prior electronic folder. E. DDS responsibilities If the DDS needs the prior folder in order to adjudicate a current claim, and the FO has not requested it, the DDS must request the prior folder. If the FO requested a prior folder and the DDS does not receive it, the DDS should follow up with the FO or the component housing the prior folder. DDS should not initiate requests for duplicate medical evidence that should be in the prior folder unless the prior folder is lost or the FO and DDS are unable to locate it. DDS may request the prior folder for any of the following situations, not excluding situations that result in case by case issues:

9 Possible collateral estoppel applies (current Title II claim/prior Title XVI allowance), (see DI ) Evidence in the current claim suggests a possible reopening (See DI ) Acquiescence Rulings require consideration of prior Administrative Law Judge (ALJ) or Appeals Council (AC) findings when making a determination under the same or different title of the Social Security Act (see DI ) Evidence indicates fraud or similar fault may be involved in the current or prior claim (see DI ) Evidence indicates the need for longitudinal history to establish a mental impairment (Ex. Schizophrenia, Depression, and Intellectual Disability) or a medically determinable impairment (MDI). Continuing Disability Reviews (CDR) cases with Medical Improvement Not Expected (MINE) diaries F. ODAR responsibilities If ODAR needs the prior folder in order to adjudicate a current claim, and the FO has not requested it, ODAR must request the prior folder. If the FO requested a prior folder and ODAR does not receive it, ODAR should follow up with the FO or the component housing the prior folder. ODAR should not initiate requests for duplicate medical evidence that should be in the prior folder unless the prior folder is lost or the FO and ODAR are unable to locate it. ODAR may request the prior folder for any of the following situations, including other situations that may arise: If ODAR needs the prior folder in order to adjudicate a current claim, and the FO has not requested it, ODAR must request the prior folder. If the FO requested a prior folder and ODAR does not receive it, ODAR should follow up with the FO or the component housing the prior folder. ODAR should not initiate requests for duplicate medical evidence that should be in the prior folder unless the prior folder is lost or the FO and ODAR are unable to locate it. ODAR may request the prior folder for any of the following situations, not excluding situations that result in case by-case issues: Possible collateral estoppel applies (current Title II claim/prior Title XVI allowance), (see HALLEX I and DI ) Evidence in the current claim suggests a possible reopening of a prior claim (See HALLEX I and DI ) Acquiescence Rulings require consideration of prior ALJ or AC findings when making a determination under the same or different title of the Social Security Act (see HALLEX I and DI ) Evidence indicates fraud or similar fault may be involved in the current or prior claim (see HALLEX I and DI ) Evidence indicates the need for longitudinal history to establish a mental impairment (Ex. Schizophrenia, Depression, and Intellectual Disability) or a medically determinable impairment (MDI). Continuing Disability Review (CDR) cases with Medical Improvement Not Expected (MINE) diaries.

10 Direct all program related and technical questions to your Regional Office (RO) support staff or Program Service Center (PSC) Office Automation (OA) staff. RO support staff or PSC OA staff may refer questions or problems to their Central Office contacts.