AR 87-2(11): Butterworth v. Bowen , 796 F.2d 1379 (11th Cir. 1986) The Conditions under which the Appeals Council has the Right to Reopen and Revise Prior Decisions -- Titles II and XVI of the Social Security Act [1]

AR 87-2(11) -- Rescinded

8/6/98

EFFECTIVE DATE: 5/1/87

ISSUE:

Under what conditions does the Appeals Council have the right to reopen

and revise prior final determinations or decisions?

STATUTE/REGULATION/RULING CITATION:

Section 205 and 1631 of the Social Security Act (42 U.S.C. Sections 405

and 1383); 20 C.F.R. Sections 404.969, 404.987-404.988 and 416.1469,

416.1487-416.1488

CIRCUIT:

ELEVENTH (ALABAMA, FLORIDA, GEORGIA)

Butterworth v. Bowen , 796 F.2d 1379 (11th Cir. 1986)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE:

Joseph D. Butterworth filed an application for disability insurance

benefits on May 20, 1983. The application was denied on June 27, 1983. On

July 7, the denial was affirmed on reconsideration. Following a de

novo hearing, an Administrative Law Judge (ALJ) found that the

claimant was entitled to a period of disability, and advised the claimant

of his decision by a notice dated September 28, 1983. That notice informed

Mr. Butterworth that the Appeals Council could, under 20 C.F.R. Section

404.969 of the Social Security Regulations, on its own motion within 60

days from the date of the ALJ decision undertake a review of the decision

which could possibly change it. The notice further advised Mr. Butterworth

that, after the 60 day period the Appeals Council generally could only

reopen and revise the decision under 20 C.F.R. Section 404.988 of the

Social Security Regulations on the basis of new and material evidence, or

if a clerical error had been made as to the amount of the benefits, or if

there was an error on the face of the evidence on which the decision was

based.

sed Mr. Butterworth

that, after the 60 day period the Appeals Council generally could only

reopen and revise the decision under 20 C.F.R. Section 404.988 of the

Social Security Regulations on the basis of new and material evidence, or

if a clerical error had been made as to the amount of the benefits, or if

there was an error on the face of the evidence on which the decision was

based.

On March 1, 1984, the Appeals Council sent Mr. Butterworth a letter

stating that it was reopening the ALJ's September 28 decision. The letter

explained that under 20 C.F.R. Section 404.988 a determination may be

reopened for any reason within 1 year of the date of the initial

determination (i.e., June 27, 1983). The Appeals Council concluded that

Mr. Butterworth was not disabled under Rule 203.11 of the

medical-vocational guidelines. The letter informed Mr. Butterworth that he

or his representative could submit additional evidence or a further

written statement within 20 days from the date of the letter or could

inform the Council within that period when additional material could be

expected. It noted that it would only consider additional evidence

pertaining to Mr. Butterworth's condition as of the date of the ALJ's

decision. It informed Mr. Butterworth that within 20 days of the date of

the letter he or his representative could request, and provide the reasons

for requesting, an appearance to present oral argument to the Appeals

Council. It explained that the request would be granted if the Council

determined that there was a significant question of law or policy

presented, or that oral argument would be beneficial in rendering a proper

decision. In closing, the Appeals Council stated that if Mr. Butterworth

or his representative did not contact the Appeals Council within 20 days,

the Council would assume he did not want to submit anything further and

would then issue its decision.

determined that there was a significant question of law or policy

presented, or that oral argument would be beneficial in rendering a proper

decision. In closing, the Appeals Council stated that if Mr. Butterworth

or his representative did not contact the Appeals Council within 20 days,

the Council would assume he did not want to submit anything further and

would then issue its decision.

The Appeals Council did not receive a response from Mr. Butterworth to

this March 1 letter. On June 29, 1984, it issued a decision reversing the

ALJ decision. The Appeals Council began its decision by stating that

"[t]his case is before the Appeals Council on its own motion to review the

decision of the administrative law judge. . . ." It concluded that

although Mr. Butterworth had a severe respiratory impairment which

precluded him from returning to past relevant work, he was still capable

of performing medium work and under Rules 203.11 and 203.12 of the

medical-vocational guidelines was therefore not disabled. The cover letter

accompanying the Appeals Council decision informed Mr. Butterworth that if

he disagreed with the decision he could file suit in Federal court within

60 days.

On July 27, 1984, Mr. Butterworth wrote to the Appeals Council contending

that its review of his case was legally improper. On August 1, 1984, Mr.

Butterworth filed a complaint in Federal district court claiming inter

alia, that in utilizing 20 C.F.R. Section 404.988(a) to reopen the ALJ's

decision, the Appeals Council did not properly and legally apply the

specific Regulation which permits Appeals Council review. The case was

referred to a magistrate for review and recommendation. The magistrate

recommended that the Appeals Council's decision be reversed.

aint in Federal district court claiming inter

alia, that in utilizing 20 C.F.R. Section 404.988(a) to reopen the ALJ's

decision, the Appeals Council did not properly and legally apply the

specific Regulation which permits Appeals Council review. The case was

referred to a magistrate for review and recommendation. The magistrate

recommended that the Appeals Council's decision be reversed.

On July 23, 1985, the district court entered an order reversing the

decision of the Appeals Council, and ordering remand of the case for the

reinstatement of disability benefits. The district court concluded that

the reopening authority of 20 C.F.R. Section 404.987 is limited to

claimants and therefore the Appeals Council's initiation of the reopening

and revising process was improper. The court reasoned that the language of

20 C.F.R. Sections 404.987 and 404.988 clearly indicates that they are

meant for exclusive use by the claimant. The Secretary appealed from that

order to the United States Court of Appeals for the Eleventh Circuit.

HOLDING:

The Court of Appeals for the Eleventh Circuit held that the Secretary as

well as the claimant is authorized to initiate reopening of an

administrative determination. The court of appeals went on to hold that

while the Secretary is not precluded from initiating the reopening and

revising of cases, he may initiate such action only when the case is

properly before the component level proposing to take the action. Thus,

the court went on to specify that the Appeals Council cannot reopen an ALJ

decision which is not properly before it.

The court explained the several methods by which a decision may be

properly before the Appeals Council. They are:

Since Mr. Butterworth had not requested Appeals Council review, the court

concluded that the ALJ decision could properly have been before the

Appeals Council on review only under the terms of 20 C.F.R. Section

404.969. The court concluded that:

hich is not properly before it.

The court explained the several methods by which a decision may be

properly before the Appeals Council. They are:

Since Mr. Butterworth had not requested Appeals Council review, the court

concluded that the ALJ decision could properly have been before the

Appeals Council on review only under the terms of 20 C.F.R. Section

404.969. The court concluded that:

STATEMENT AS TO HOW BUTTERWORTH DIFFERS FROM SOCIAL SECURITY

POLICY:

20 C.F.R. Sections 404.987-404.995 and Sections 416.1487-416.1494 set out

the rules for reopening and revising final determinations and decisions.

These rules use the word "we" to signify SSA components, including the

Appeals Council, and thus vest the authority to reopen and revise in the

Appeals Council as well as in other SSA

components. [2] Therefore, under

SSA policy, the Appeals Council may reopen and revise any ALJ or Appeals

Council decision if the procedures and conditions set forth in 20 C.F.R.

Sections 404.987 and 404.988 or 416.1487 and 416.1488 are met. Such

actions are subject only to the time limits found in those provisions and

not the time limits of any other regulations.

The holding in Butterworth prohibits reopening and revising

determinations or decisions by the Appeals Council unless the

determination or decision is properly before it. "Properly before it" is

defined in Butterworth to cover only the four circumstances set

forth above under HOLDING. This is contrary to SSA policy.

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:

This ruling applies only to cases in which the claimant resides in

Alabama, Florida or Georgia at the time of the Appeals Council's

review.

n or decision is properly before it. "Properly before it" is

defined in Butterworth to cover only the four circumstances set

forth above under HOLDING. This is contrary to SSA policy.

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:

This ruling applies only to cases in which the claimant resides in

Alabama, Florida or Georgia at the time of the Appeals Council's

review.

Where an ALJ's decision has become final (i.e., the 60-day time limit for

appealing to the Appeals Council has expired, and the claimant has not

appealed and the Appeals Council has not initiated own motion review

within the 60-day time limit), the Appeals Council may not reopen and

revise the ALJ's decision since the ALJ's decision is not considered to be

properly before the Appeals Council.

EFFECTIVE DATE:

(Date of Publication) 5/1/87

[1] Although Butterworth was a title II case, the Appeals Council's reopening and revising

procedures involved in Butterworth are identical in title XVI

claims. Therefore, this Ruling extends to both title II and title XVI

claims.

[2] SSA has long held that only

an ALJ or the Appeals Council can reopen and revise a prior decision by an

ALJ, and only the Appeals Council can reopen and revise a prior decision

by the Appeals Council.