The importance of evidence from prior folders is discussed on page 7 of the October 2021 newsletter. Its importance is even further illustrated by a recent Administrative Law Judge (ALJ) decision that Attorney Betsy Lombardi of the Legal Aid Society of Mid-New York in Syracuse obtained. Betsy’s case involved old evidence, potential collateral estoppel, and much hard work and creative advocacy.
Betsy’s client was born in 1980 and had been found eligible for Supplemental Security Income (SSI) in 1992 based on his intellectual disability and ADHD. In 1998, he underwent an Age 18 Review, and his SSI benefits were continued. In 2013, the claimant was found eligible for Title II – Social Security Disability Insurance benefits – based on his own earnings record. His earnings were significant enough to qualify for Title II coverage but below the relevant Substantial Gainful Activity (SGA) levels.
Meanwhile, in 2011, the claimant’s father had filed his own Title II claim and had named his son as a potential auxiliary beneficiary. As the claimant was disabled before age 22, he would be eligible for Child Disability Benefits (CDB – formerly known as Disabled Adult Child Benefits or DAC) based on his father’s earnings record. His father’s 2011 application constituted a protective filing for the CDB claim. Monthly benefits under the father’s account would be higher than those under the claimant’s own account. This is not unusual in claims like this. And prior to recent changes in SSA’s collateral estoppel rules, the transition from the benefits under the claimant’s account to that of his father should have been fairly smooth.
In 2019, however, the Social Security Administration (SSA) amended its policies governing collateral estoppel. See the October 2020 edition of this newsletter for more on collateral estoppel and changes to SSA’s POMS. In short, SSA decreed that a prior favorable disability finding such as the one obtained by Betsy’s client way back when will not be given collateral estoppel effect on a new application if the earlier claim was based on meeting or equaling a mental impairment listing in effect prior to January 17, 2017 – the date the mental listings underwent a revision.
In fact, Betsy’s client had been found disabled under Listing 12.05 for intellectual disorders then in effect back in 1992, and again when his SSI benefits were continued in 1998. But because of the changes to the collateral estoppel provisions, instead of the transition being automatic, Betsy had to demonstrate that the client is currently disabled and has been disabled since before age 22 in 1998. As the ALJ noted in his decision, “This period is extremely remote, and, unfortunately, most contemporaneous educational, treatment, and Agency records are no longer available. Nevertheless, the existing evidence establishes that the claimant’s intellectual disorder met the criteria of listing 12.05 during this period.”
In 2020, Betsy argued that a fully favorable decision was warranted as the claimant met listing 12.05(B) under the current listings. Further, she highlighted evidence that the claimant was disabled prior to age 22 by emphasizing the report of the state agency consultant who reviewed the claimant’s case at the time of the Age 18 Review in 1998, which referenced teacher reports and included a consultative examiner’s IQ test reports revealing scores below 70.
Finally, Betsy requested that if the ALJ could not issue a fully favorable decision on the record, SSA should locate and enter into the record all documents found pertaining to the claimant’s disability. She pointed out that since the claimant had been receiving benefits since 1992, SSA should have medical and school records on file from the 1992 application and 1998 review. Since the claimant’s school records had been destroyed by the district, the only copies available would be any records SSA had on file previously.
The ALJ refused to find the claimant disabled on the record and scheduled a hearing. Due to the COVID-19 pandemic, however, the claimant was offered a phone hearing, which he refused. The case was postponed until 2021. In the meantime, Betsy made two additional requests that the ALJ ensure that SSA had all the records on file for the claimant. Documents from the claimant’s SSA file were added for the period of 2013 through 2018, but nothing prior to the claimant reaching age 22.
At the video hearing, Betsy emphasized to the ALJ that SSA had failed to provide any records from the claimant’s case prior to 2013. The ALJ stated during the hearing that he would make another request to the field office for these records. The ALJ, however, did not add any additional records from the claimant’s previous SSA files. Instead, the ALJ relied on the evidence from the 1998 review, along with a third-party function report from a brother-in-law who has known the claimant for 24 years, to find that the claimant’s impairments meet the new, post 2017 “B criteria” for Listing 12.05. Accordingly, he found the claimant met the criteria for Listing 12.05(B) between the date in 1998 when he turned 18 and before he turned 22 in 2002.
The ALJ acknowledged that evidence postdating the claimant’s 22nd birthday rarely if ever mentioned his intellectual impairment. Nor were there more recent IQ scores. But the ALJ, at Betsy’s urging, extrapolated limitations from mental health treatment notes to fit the B criteria of Listing 12.05B. He also relied on POMS DI 24583.055 to find that IQ scores obtained at age 16 or older should be considered reliable, as the 1998 scores were consistent with current functioning. The ALJ thus concluded that the claimant met the criteria of the listing throughout the relevant period. The ALJ went on to find that based on a limited residual functional capacity, there was no other work the claimant could perform, and was thus disabled.
A great decision for Betsy’s client, who is now eligible for higher monthly Title II benefits on his father’s account retroactive to his father’s protective filing date in 2011. But what a lot of work and aggravation for both Betsy and ALJ to reach a result that should be obvious. Isn’t that what collateral estoppel is supposed to avoid?