The Continuing Presumption of Non-Disability in the Post-Conn Era

AR 94-2(4): Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th Cir. 1987) (Rescinded 1/12/2000)

AR 00-1(4): Albright v. Commissioner of the Social Security Administration, 174 F.3d 473 (4th Cir. 1999) (Interpreting Lively v. Secretary of Health and Human Services)

AR 98-3(6): Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990)

AR 98-4(6): Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)

AR 97-4 (9): Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988)

Those are the five cases that pain the landscape of the continuing presumption of non-disability.  They are inconsistent with agency policy and understanding of the Social Security Act and the Commissioner's regulations:

if the subsequent claim involves deciding whether the claimant is disabled during a period that was not adjudicated in the final determination or decision on the prior claim, SSA considers the issue of disability with respect to the unadjudicated period to be a new issue that prevents the application of administrative res judicata. Thus, when adjudicating a subsequent disability claim involving an unadjudicated period, SSA considers the facts and issues de novo in determining disability with respect to the unadjudicated period. SSA does not adopt findings from the final determination or decision on the prior disability claim in determining whether the claimant is disabled with respect to the unadjudicated period.

or 

In a subsequent disability claim, SSA considers the issue of disability with respect to a period of time that was not adjudicated in the final determination or decision on the prior claim to be a new issue that requires an independent evaluation from that made in the prior adjudication. Thus, when adjudicating a subsequent disability claim involving an unadjudicated period, SSA considers the facts and issues de novo in determining disability with respect to the unadjudicated period. SSA does not consider prior findings made in the final determination or decision on the prior claim as evidence in determining disability with respect to the unadjudicated period involved in the subsequent claim.

In three of the 11 circuits, the agency does not follow this national policy but instead forces claimants to come forward with evidence that something has changed since the last decision by an ALJ.  The continuing presumption of non-disability applies not just to the period adjudicated but flows forward in time to effectively bar claims in the future -- until something changes.  A change in the regulation that plainly states what the Commissioner has already stated in the rulings would wipe the continuing presumption off the face of the legal landscape under the doctrine of Brand X deference. 

For the agency, the continuing presumption makes quick work of cases that have already suffered an ALJ unfavorable decision.  The claimant loses without a material change in medical condition, past work falling off the relevant time-frame, crossing into an age category that requires application of a favorable grid rule, or some other factor.  That administrative application to boost the productivity of the ALJ corps of a judicially-made rule, that the Commissioner says is wrong, should strike the casual observer as both odd and wrong. 

But it comes at a price.  A title II claimant with a piece of insured status left or an SSI claimant that just wants to start over -- they cannot.  Those people must take the prior claim to federal court to prevent finality from attaching while filing a subsequent claim.  Those claimants must tread water in court just to keep hope alive on that subsequent claim whether the court filing has a 1% or a 100% chance of obtaining a favorable disposition. 

Which brings us back to the title of this blog.  In the post-Conn era, allowance rates dropped nationwide by the ALJs and the Appeals Council has loosened its sieve on the review of those unfavorable decisions.  That equates to about 50,000 cases a year.  For claimants in the fourth, sixth, and ninth circuits, they would have gotten benefits BCE (before Conn era).  Some of those suffer attrition of giving up, some of the claimants expire, and some just retire.  But a large chunk of those cases in the three affected circuits end up in court burdening an already burdened court system, the agency legal staff at the Office of General Counsel, the claimants' bar, and most importantly the claimants themselves. 

It is time for the courts or the agency to bring the national program into singular national focus.  Administrative res judicata is supposed to be loosely applied.  But here it applies in ways that would not hold in civil or criminal proceedings.  It applies to effectively bar claims for periods of time not considered.  Kill  the beast that is the continuing presumption of non-disability.  The few cases where the shield has turned into the claimant's sword are not worth the carnage of further stressing the administrative and judicial review processes.