Untangling “Operation Common Sense”: Reopening and Review of Social Security Administration Disability Claims

Part I of the Note outlines how the SSA processes a disability claim and illustrates the ambiguity in the language of the reopening regulations that has caused the split in the courts. Part II examines the four interpretations of the reopening regulations created by courts. Part II begins with the Secretary’s interpretation and concludes that this interpretation is plainly inconsistent with the language of the regulations. Thus, courts need not defer, as they normally would, to an agency’s interpretation of its own regulation. This Part next examines the alternative interpretations of these regulations advanced by various courts, and describes how each interpretation fails to reconcile the language of these regulations. Barring the possibility of interpreting the regulations in a way that completely reconciles the language, the various goals of the SSA should be considered in choosing the best interpretation. Part III demonstrates that allowing sua sponte reopening in limited circumstances – under the portion of the regulations that allows reopening forever for, inter alia, fraud and similar fault – best effectuates the goals of the SSA. Absent fraud or similar fault, however, the Appeals Council should not initiate reopening, and should use other procedures to fulfill the policy goals of the SSA.