Is SSA Obligated to Obtain Prior Files?

Empire Justice December 23, 2013

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 – or may not even be aware of – that evidence 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. SSA claims that these problems will go away when all exhibit files are electronic, but advocates report they continue even with electronic files.

Advocates should remind SSA of its obligations to obtain the evidence – 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 Childhood 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.

Here are some of the provisions that can be cited when trying to obtain evidence from a prior claim.

Prior files must be obtained in CDRs.  See 20 C.F.R. §§ 404.1593 & 416.993 (“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. §§404.1579(c)(3) & 416.979(c)(3) (“Prior file cannot be located”).

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 that 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 those comparisons.

POMS DI 11070.010.B requires that Field Offices obtain or reconstruct the prior file in both childhood CDRs and age 18 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 are unaware prior claims can be reopened.  Again, evidence in the prior files could be highly relevant to the new claim.  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.

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.

The POMS provide some guidance to adjudicators in terms of obtaining prior exhibit files and incorporating the evidence into the current claim file. POMS DI 20505.010C, for example, specifies when 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.

HALLEX I-2-1-10.C, however, only suggests the HO staff “consider whether the evidence in any prior CF(s) is material to the current claim before initiating action to obtain it.” Section D lists examples of when an ALJ may not need the prior claim, one of which relieves the FO of obtaining prior files if more than four years has elapsed since the date of the initial denial on the prior application.  This provision encompasses prior claims that could potentially be subject to reopening.

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.

HALLEX I-2-6-58.A, on the other hand, mandates that the ALJ must obtain records, at least in those cases in which there was a prior hearing and decision. HALLEX I-2-6-58.A requires that records must be added to the current list of exhibits.  It is up to the ALJ to determine whether the records are relevant enough to the current claim to admitted into evidence.  If, however, the ALJ decides not to obtain the prior records or not to admit them into the current case, “he or she must explain in the decision why they are not being admitted.”

Of note, both 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 degree the weight accorded to the evidence.

Applications by claimants who previously received benefits, but whose benefits were terminated for non-medical 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. §§416.1325 & 416.1335.  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.  This is particularly troubling where the prior claim was approved on the basis of an intellectual disability (ID).  We have seen numerous examples in which ID was not even addressed in the subsequent claim.

Such prior decisions are highly relevant to subsequent applications. 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.”) Again, this is particularly true in claims involving static conditions, such as intellectual disabilities.  Yet, we repeatedly see new applications denied in which we learn that the claimant had previously been approved on the basis of an intellectual disability.  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.

Advocates are encouraged to use these citations to obtain prior evidence files.  And please keep us informed of your own strategies and successes.