                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2002

Kaszer v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1978




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                                                      NOT PRECEDENTIAL

                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                           No. 01-1978
                           ___________

                          ANN A. KASZER,

                                                              Appellant,

                               vs.

                      *LARRY G. MASSANARI, ACTING
                 COMMISSIONER OF SOCIAL SECURITY,

                                    *Pursuant to Fed. R. App. P. 43(c)
                           ___________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                      (D.C. No. 99-cv-01346)
         District Judge: The Honorable Gustave Diamond
                           ___________

                        SUBMITTED MAY 1, 2002

         BEFORE: NYGAARD, ROTH, and WEIS, Circuit Judges.


                     (Filed: July 19, 2002 )
                           ___________


                           ___________

                       OPINION OF THE COURT
                           ___________


NYGAARD, Circuit Judge.
         Appellant’s claim for supplemental security income and disability
insurance benefits was denied by the Social Security Administration, but was granted by
the District Court. Subsequently, the court granted Appellee’s Motion for Clarification
and amended its order to correct a clerical error involving the date Appellant’s benefits
should commence. Appellant challenges that order. We will vacate in part and remand
because we find the agency reopened Appellant’s first application.
                                I.
         Appellant, Ann A. Kaszer, has twice filed for disability insurance benefits
(SSDI) and supplemental security income (SSI) pursuant to Titles II and XVI of the
Social Security Act, respectively. She first filed on or about December 1, 1993. The
agency denied that application, and Kaszer did not request reconsideration. Kaszer filed
a second set of applications on September 6, 1995 alleging an inability to work
beginning June 9, 1992 due to obesity, diabetes mellitus, arthritis, chest pain, eye
implants, poor vision, and depression. This application was denied initially and upon
reconsideration. Kaszer requested and received a hearing before an ALJ who denied
Kaszer’s claim for benefits. She filed an appeal with the Appeals Council, but it denied
review of her claim.
         Kaszer then commenced a civil action in the District Court. The court
granted Kaszer’s motion for summary judgment reversing the ALJ and issued an order
on June 26, 2000 awarding benefits retroactive to July 2, 1992. The Commissioner
subsequently filed a Motion for Clarification arguing that the applicable statutory and
regulatory provisions do not permit the Commissioner to pay benefits to Kaszer back to
July 2, 1992 because SSDI benefits may be paid only for the twelve months prior to
filing an application and because there is no retroactivity for SSI benefits. Since
Kaszer’s second application was filed on September 6, 1995, the Commissioner
contended she could not legally pay benefits retroactive to July 2, 1992, as the District
Court had ordered. The District Court agreed. It vacated and amended its previous
order, saying that it was a "clerical error" which can be corrected under Rule 60 of the
Federal Rules of Civil Procedure. The court issued a new order on February 20, 2001
instructing the Commissioner to pay benefits to Kaszer "consistent with this opinion and
the applicable statutes and regulations." Kaszer appeals from that order.
         We review de novo the District Court’s grant of summary judgment, and
we apply the same standard of review as did the District Court; that is, we must uphold
the Commissioner’s decision if there is substantial evidence on the record supporting it.
See Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000); Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
                               II.
         Kaszer challenges the District Court’s modification of its June 26, 2000
order. She argues that if any modification of the District Court’s order was appropriate,
the order should have been amended to reflect an onset date of December 1, 1992, which
is twelve months prior to the filing of Kaszer’s first application which she contends was
reopened during the administrative process.
                                A.
         The applicable statutes and regulations provide that the Commissioner may
pay SSDI benefits under Title II only for twelve months prior to the date a claimant files
an application. 42 U.S.C. 423(b); 20 C.F.R. 404.621(a)(1)(i). There is no
retroactivity provision under Title XVI for SSI benefits. 42 U.S.C. 1382(c)(7); 20
C.F.R. 416.501. Therefore, even if the filing date of Kaszer’s first application --
December 1, 1993 -- is used as the appropriate starting point, benefits could be awarded
retroactive only to twelve months before then, which is December 1, 1992. But the
District Court’s initial order awarded benefits retroactive to July 2, 1992, which is even
earlier than December 1, 1992, and thus must have been a clerical error. The District
Court committed no error by amending its earlier opinion, but whether the District
Court’s amended order itself is correct has become the issue in this case.
                                B.
         The primary dispute here is about locating the appropriate starting point for
computing Kaszer’s SSDI benefits. Is Kaszer eligible for benefits back to December 1,
1992, which is twelve months before the filing of her first application, or is she only
eligible for benefits back to September 6, 1994, which is twelve months before the filing
of her second application? It is noteworthy that the District Court did not directly answer
this question in its amended opinion. Rather than saying Kaszer is eligible for benefits as
of a certain date, the court merely ordered "the granting of benefits consistent with this
opinion and the applicable statutes and regulations." The parties have interpreted this as
meaning that benefits are to be paid with reference to the filing date of Kaszer’s second
application.
         Kaszer argues that the appropriate starting point is the filing of her first
application and that she should be awarded SSDI benefits back to December 1, 1992. If
the ALJ reopened Kaszer’s first application, either explicitly or de facto, when she
considered Kaszer’s second application, then benefits should be determined by reference
to the filing date of the first application. See Purter v. Heckler, 771 F.2d 682, 693 (3d
Cir. 1985); Coup v. Heckler, 834 F.2d 313, 317-18 (3d Cir. 1987), abrogated on other
grounds by Gisbrecht v. Barnhart, __ U.S. __, 122 S. Ct. 1817 (2002). To determine the
appropriate starting point for computing benefits, then, we must determine whether
Kaszer’s first application was reopened.
                                1.
         Before we consider Kaszer’s arguments, however, we should address the
Commissioner’s contention that Kaszer cannot raise on appeal any arguments that her
prior applications were de facto reopened or that "good cause" existed to reopen her prior
applications because Kaszer did not raise these arguments below. The Commissioner
argues that it is "abundantly clear" that Kaszer did not raise these arguments below since
the District Court’s opinion makes no mention of Kaszer’s first set of applications.
         We think Kaszer has done enough to preserve the reopening issue. In
footnote 1 of her Brief in Support of Summary Judgment, Kaszer states:
          The issue of re-opening this prior application was deferred
          since the entire claim was denied. In the event of a remand
          for payment or on the merits, we reserve the right to have this
          issue revisited for reconsideration by the Commissioner to
          establish good cause for re-opening as per 20 CFR 404.911
          and any other applicable regulations that may apply.

Kaszer probably expected that if she won at summary judgment, the District Court would
remand her case back to the Commissioner, and there she would argue that her first
application had been reopened. That is not the course her case took, as her win at
summary judgment resulted in an award of benefits by the District Court rather than a
remand. Then, however, the District Court amended its order, and she brought this
appeal before us. In any event, it is clear that Kaszer intended to reserve her right to
argue reopening at some point.
                                2.
         Kaszer argues that her first application was reopened during the
administrative process. A short review of the law surrounding reopening of Social
Security claims is warranted to help understand her position.
         When a claimant files successive applications, res judicata may be invoked
by the agency to avoid entertaining each subsequent request based on the same issues.
See Purter v. Heckler, 771 F.2d 682, 691 (3d Cir. 1985). Res judicata applies if the
agency has "made a previous determination or decision under this subpart about your
rights on the same facts and on the same issue or issues, and this previous determination
or decision has become final by either administrative or judicial action." 20 C.F.R.
404.957. However, the ALJ is not required to apply res judicata, and there are
circumstances when a final determination may be reopened either upon the claimant’s
request or the agency’s own initiative. See 20 C.F.R. 404.988.
         Additionally, it is not necessary for the claimant to make a formal petition
for reopening to occur. Purter, 771 F.2d at 695. For example, we have found that a
reopening occurred where the claimant called his petition a "third application" rather
than a "petition to reopen." Id.
         Finally, a decision by the agency not to reopen a claim is not judicially
reviewable. See Califano v. Sanders, 430 U.S. 99 (1977); Coup, 834 F.2d at 317. But
"we will examine the record to determine whether or not a reopening has occurred."
Coup, 834 F.2d at 317. We will find a reopening, and thus a waiver of res judicata,
"where the administrative process does not address an earlier decision, but instead
reviews the entire record in the new proceeding and reaches a decision on the merits."
Kane v. Heckler, 776 F.2d 1130 (3d Cir. 1985). We may find after looking at the
administrative record than the reopening has been either explicit or de facto. Coup, 834
F.2d at 317.
                                3.
         Kaszer argues there was a de facto reopening in her case which supports
the District Court’s initial award of benefits back to July 2, 1992, or, alternatively,
supports an award back to December 1, 1992. Kaszer contends we can find a reopening
by either of two paths:
         First, she suggests a reopening under 20 C.F.R. 404.988(a). That
regulation provides that a determination may be reopened "[w]ithin 12 months of the
date of the notice of the initial determination, for any reason." Unfortunately for Kaszer,
this path is not available to her. Kaszer says that her second application "was filed
within one year of receipt of the initial denial." (emphasis added). But the applicable
regulation states that it is the "date of the notice," not the date of receipt, which is
relevant. The denial of Kaszer’s first claim is dated September 1, 1994. Her second
application is dated September 6, 1995. Clearly, it was not filed "[w]ithin 12 months of
the date of the notice of the initial determination," so this avenue has been foreclosed.
         Kaszer offers no authority, nor have we found any, suggesting that we
should not read the regulation for what it says on its face. That is, the regulation allows
reopening without cause "within 12 months of the date of the notice." It does not say,
"within 12 months of receipt of the notice." In addition to there being no textual support
nor case authority for Kaszer’s position, reading the regulation as making the relevant
date the notice date rather than the receipt date makes sense because this regulation is
also a limitation upon the ability of the Secretary to reopen a determination without
cause. The Secretary may reopen a decision within twelve months "for any reason." If
the twelve month period began tolling on the date that the claimant received notice of the
determination, the Secretary could not possibly know precisely when the twelve month
period actually began to run. The more reasonable interpretation is that the twelve month
period began to run when the notice was dated, a date which is easily discernable to both
parties. Therefore, we find that Kaszer’s first application cannot be reopened under 20
C.F.R. 404.988(a).
         The second way Kaszer suggests we can find that her initial determination
has been reopened is via 20 C.F.R. 404.988(b). That section allows a determination to
be reopened within four years of the date of the notice for "good cause." "Good cause"
is defined in 20 C.F.R. 404.989 and includes "New and material evidence is
furnished." Kaszer’s second application was filed within four years of the date of the
notice of the initial determination, and she alleges the "good cause" requirement has been
met in that she submitted "new material information that was not part of the December 1,
1993 application."
         There is some ambiguity in our caselaw over whether we must find there
was "good cause" to reopen an application before we can find a de facto reopening
occurred. The agency may reopen a prior application only for "good cause," yet we have
no jurisdiction to review an agency decision not to reopen. See Califano v. Sanders, 430
U.S. 99 (1977); Coup, 834 F.2d at 317. In a typical case where we find that a de facto
reopening has occurred, the agency made no mention of the prior application, so it made
no decision on whether or not to reopen it. We then look at the whole record and
conclude that, even though the agency did not discuss the prior application, it essentially
reconsidered the prior application in its consideration of the new application. The
unanswered question is, do we have to find that the agency would have been able to
reopen the application if it wanted to? That is, do we have to find that the agency had
"good cause" to reopen the application even though the agency ignored the reopening
issue?
         One of our cases suggests that the answer to that question is "yes." In
Purter v. Heckler, 771 F.2d 682 (3d Cir. 1985), a case where we found the Secretary had
de facto reopened the claimant’s prior applications, one of our findings was that "we find
that there was ’good cause’ for reopening his earlier claims." Id. at 695. In stating our
holding, we said,
          Since the Secretary reconsidered Purter’s claims on the merits
          and because there was "good cause" for reopening the earlier
          claims, we find that there was a de facto reopening of Purter’s
          prior claims.

Id. at 696. This language makes it sound like we need to find two things to find a de
facto reopening: (1) reconsideration of the claims on the merits, and (2) "good cause" for
reopening. There is no further discussion in Purter about whether a finding of "good
cause" was a necessary condition for us to find a de facto reopening, but our language
seems to imply it.
         In contrast, our decision in Coup v. Heckler indicates that a finding of
"good cause" is not necessary. There we said,
          A reopening, and thus a waiver of any claim of administrative
          res judicata, will be found "where the administrative process
          does not address an earlier decision, but instead reviews the
          entire record in the new proceeding and reaches a decision on
          the merits..." Kane v. Heckler, 776 F.2d 1130, 1132 (3d Cir.
          1985). See also Purter v. Heckler, 771 F.2d 682 (3d Cir.
          1985). It is not our role to determine whether the Secretary
          had good cause for reopening, for in that respect his decision
          is not judicially reviewable. Rather, we look at the
          administrative record to determine whether an explicit or a de
          facto reopening has occurred.

Coup, 834 F.2d at 317 (emphasis added). This language implies that we do not have to
find "good cause" as a condition of finding a de facto reopening. We think the language
in Coup is clearer and more directly on point than our language in Purter, and we will
follow Coup for purposes of this appeal. We do not have to find that the Secretary had
"good cause" before we can consider whether the Secretary de facto reopened Kaszer’s
prior application.
                                4.
         The final question is whether a reopening of Kaszer’s first application
occurred at the administrative level. In conducting our analysis,
          we will examine the record to determine whether or not a
          reopening has occurred. A reopening, and thus a wavier of
          any claim of administrative res judicata, will be found "where
          the administrative process does not address an earlier
          decision, but instead reviews the entire record in the new
          proceeding and reaches a decision on the merits . . ."

Coup, 834 F.2d at 317 (quoting Kane v. Heckler, 776 F.2d 1130, 1132 (3d Cir. 1985)).
Even if a prior determination was not explicitly reopened, we may find that a de facto
reopening has occurred. Id.
         There is an initial question here of whether we have jurisdiction to find a
de facto reopening. The ALJ’s opinion notes that Kaszer had previously filed
applications for SSI and SSDI in 1993 and that they were both denied. But the ALJ
found that "[i]t is not necessary to consider the question of whether the unfavorable
decision made with respect to the prior claim should be reopened and revised."   If the
ALJ had explicitly decided not to reopen Kaszer’s first application, and Kaszer argued on
appeal that the ALJ’s decision was wrong, then we would not have jurisdiction because
we cannot review the propriety of the ALJ’s decision. Califano v. Sanders, 430 U.S. 99
(1977); Coup, 834 F.2d at 317. But Kaszer is not contesting the propriety of the ALJ’s
reopening decision on appeal. Instead, she is arguing that the ALJ actually reopened her
prior application, despite any statements by the ALJ to the contrary. We do have
jurisdiction to consider this claim because if the ALJ did in fact reopen the prior
application and reach a decision on merits, then she made precisely the sort of agency
decision which we may review pursuant to 205(h) of the Social Security Act, 42 U.S.C.
 405(h).
         This finding of jurisdiction is supported by our decision in Coup v. Heckler
where we said:
          A decision of the Secretary declining to reopen a claim is not
          judicially reviewable. Califano v. Sanders, 430 U.S. 99, 97
          S.Ct. 980, 51 L.Ed.2d 192 (1977). This court has held,
          however, that we will examine the record to determine
          whether or not a reopening has occurred.

Coup, 834 F.2d at 317. The key word here is "however." We recognized in Coup that
we cannot review the propriety of the Secretary’s decision not to reopen a claim, but in
the next sentence we said "however"   meaning "notwithstanding that fact"   we still
have jurisdiction to consider whether a reopening has actually occurred. Thus, we may
consider whether the ALJ de facto reopened Kaszer’s first application.
         We are aware that in a series of unpublished and per curiam opinions, the
Court of Appeals for the Tenth Circuit has said that an "express refusal to reopen
normally precludes a claim of de facto reopening by the administrative law judge and is
also not reviewable by this court," Cook v. Chater, No. 95-7095, 85 F.3d 640 (table),
1996 WL 223711 (10th Cir. May 3, 1996), at *2 n.2, but we do not find these opinions
persuasive. See also Gilbert v. Chater, No. 96-1405, 110 F.3d 73 (table), 1997 WL
158139 (10th Cir. Apr. 2, 1997); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990)
(per curiam). All of these cases rely upon a footnote in Taylor v. Heckler, 738 F.2d
1112, 1115 n.6 (10th Cir. 1984), as well as the Supreme Court’s decision in Califano v.
Sanders, 430 U.S. 99, 107-08 (1977), for support. The footnote in Taylor says, "When
the Social Security Administration refuses to reopen a claim for benefits, that decision is
unreviewable." Taylor, 738 F.2d at 1115 n.6 (emphasis supplied). This is merely a
restatement of the Supreme Court’s holding in Califano that when the agency refuses to
reopen a claim, federal courts do not have jurisdiction to consider the propriety of that
decision. It is an entirely different thing to say, as does Cook, that an explicit refusal to
reopen precludes a federal court from possibly finding that a de facto reopening has
occurred. Neither Califano nor Taylor supports this latter proposition, and we think the
statements to the contrary in the unpublished opinions cited above are incorrect.
         Finally we get to the question of whether or not a de facto reopening
actually occurred in this case. In one formulation of our test for a de facto reopening, we
said:
          A reopening, and thus a waiver of any claim of administrative
          res judicata, will be found "where the administrative process
          does not address an earlier decision, but instead reviews the
          entire record in the new proceeding and reaches a decision on
          the merits . . ."

Coup, 834 F.2d at 317 (quoting Kane v. Heckler, 776 F.2d 1130, 1132 (3d Cir. 1985)).
The first question, then, is whether the ALJ "addressed" the earlier decision. It is true
that the ALJ mentioned the earlier decision, but we are not convinced that mere
mentioning is what we had in mind in Coup. The ALJ said:
          It is not necessary to consider the question of whether the
          unfavorable decision made with respect to the prior claim
          should be reopened and revised.

[Tr. 13]. The ALJ did not say that she was using the prior adjudication for its res
judicata effects or that she was only considering the second application for the time
period following the first decision. We think that Coup requires that the ALJ "address"
the earlier decision vis-a-vis res judicata. The agency must address whether the prior
adjudication will be used for its preclusive effect or whether it will be reopened. No
such expression was made here, so we move on to the second part of the Coup test to see
if the ALJ "review[ed] the entire record in the new proceeding and reache[d] a decision
on the merits."
         In the section of her opinion entitled "Evaluation of the Evidence," the ALJ
went through Kaszer’s medical evaluations and other evidence and concluded that she
was not entitled to benefits. Some of the evidence she considered was relevant to
Kaszer’s first application which was filed in December 1993. For example, she found:
          The objective medical evidence establishes that the claimant
          was diagnosed with insulin dependent diabetes mellitus in
          June 1993. She had been controlling her diabetic condition
          with oral medical prior to June 1993 (Exhibit 23).

[Tr. 15].    Similarly, she found:
            Ms. Kaszer complained of being severely depressed in
            October 1993, but was unwilling to begin anti-depression
            treatment (Exhibit 31, page 23).

Among the exhibits listed in the administrative record as "Exhibits in Connection with
Current Application" are
          Exhibit 23: Hospital Records for admission on June 4, 1993
          through discharge on June 10, 1993, from Medical Center of
          Beaver County.

            Exhibit 24: Medical Reports dated August 10, 1993, by Dr.
            Gary Harvanich, M.D.

            Exhibit 26: Emergency Room Records dated September 7,
            1993 and November 24, 1995, from The Medical Center of
         Beaver County.

         Exhibit 27: Medical Reports dated July 26, 1994 and June 7,
         1996, by Dr. George R. Zambelli, Jr., M.D., for services
         provided November 30, 1992 to December 13, 1995.

         Exhibit 31: Medical Records covering the period December
         1, 1992 to November 8, 1996, from The Family Practic [sic]
         Center.

[Tr. 2]. We assume the ALJ utilized these exhibits in reaching her decision because she
says she made her conclusions "[a]fter careful consideration of all the evidence." [Tr.
13].
         It is apparent that the ALJ considered evidence that was relevant to
Kaszer’s first application and based its decision on all of the evidence. The second
application was filed on September 6, 1995, so benefits could only be awarded back to
September 6, 1994. Yet the ALJ considered evidence of Kaszer’s condition back in
1992 and 1993, a period for which Kaszer would not be entitled benefits under her
second application. This is consistent with reconsidering Kaszer’s first application,
which was filed on December 1, 1993 and could award benefits back to December 1,
1992. The ALJ did not narrow the time period under consideration by using the decision
on Kaszer’s first application for its res judicata effects. Instead, the ALJ "review[ed] the
entire record in the new proceeding and reach[ed] a decision on the merits," which is
what we said in Coup would constitute a de facto reopening. 834 F.2d at 317.
         We are aware that some courts of appeals have held that a "review of [a
claimant’s] medical history does not amount to the reconsideration ’on the merits’
necessary to constitute a de facto reopening of the earlier application" because such a
review is often necessary to determine whether the claimant was disabled within the
twelve months prior to filing the second application. Rohrich v. Bowen, 796 F.2d 1030,
1031 (8th Cir. 1986); Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 193
(1st Cir. 1987) (per curiam); Moore v. Chater, No. 95-35764, 97 F.3d 1460 (table), 1996
WL 498916 (9th Cir. Aug. 8, 1996) (unpublished); Boone v. Apfel, No. 98-7176, 189
F.3d 477 (table), 1999 WL 668253 (10th Cir. Aug. 26, 1999) (unpublished). We, too,
have indicated in dicta that "where the agency explicitly considered such earlier evidence
[of a claimant’s medical history] solely for the purpose of determining whether the
claimant was disabled within the twelve months preceding the most recent application"
we will not on that basis alone find a de facto reopening. Coup, 834 F.2d at 318.
         There is, admittedly, a fine line between considering a claimant’s medical
history solely for the purpose of establishing whether the claimant was disabled and
actually reconsidering that evidence. The Commissioner argues that the agency made a
proper inquiry into the additional evidence without reopening Kaszer’s prior application.
That same argument was advanced in Young v. Bowen, 858 F.2d 951, 955-56 (4th Cir.
1988), but there the court found that
          despite the protestations on appeal that the medical evidence
          was reviewed simply to determine whether there was "good
          cause" to reopen appellant’s previous applications, a careful
          reading of the decision reveals an implicit analysis of the
          nature of Young’s disability in 1979 and 1980. Since the
          Secretary has attempted to support his decision in some part
          by weighing the full range of medical evidence, we are thus
          free to determine whether that decision is supported by
          substantial evidence.

Id. Similarly, the ALJ here analyzed Kaszer’s medical history and supported her decision
by "careful consideration of all the evidence", [Tr. 13], such that her actions were
sufficient to reopen Kaszer’s first application de facto. See also Crady v. Sec’y of Health
& Human Servs., 835 F.2d 617, 620 (6th Cir. 1987) (finding a reopening where "[t]he
ALJ made an extensive analysis of the claimant’s medical condition . . . [for] a period as
to which no benefits could have been awarded absent a reopening"); Lewis v. Apfel, 236
F.3d 503 (9th Cir. 2001) ("Res judicata does not apply when an ALJ later considers ’on
the merits’ whether the claimant was disabled during an already-adjudicated period.").
                               III.
         Accordingly, for the above reasons, we find the ALJ reopened Kaszer’s
first application de facto. We will vacate in part and remand to the District Court for a
determination of the appropriate date for Kaszer’s benefits to commence in light of this
reopening.
_________________________

TO THE CLERK:

         Please file the foregoing opinion.



                               /s/ Richard L. Nygaard
                               Circuit Judge
