The Thing Judged
There are a few things I wanted to come back to follow up on last week’s double whammy Social Security situation that left me somewhat psychologically gasping for air, because they’re important to understand.
It wasn’t until yesterday that I was able to sit down and make some notes to prepare myself for the possibilities during the call. This included some time productively catastrophizing, because that was the only way I’d have a chance in hell of self-regulating should the worst happen and someone tell me that they simply have no record of any of this.
When I wrote about what eventually happened, I didn’t return to highlight this but it’s important that I do so now, because that conversation on Tuesday now is my go-to example of why I come back again and again to my belief that catastrophizing is just a form of autistic scripting, and a critical one at that.
Anticipatory control bests compensatory control when it comes to self-regulation, and that means I have to spend some time thinking about the worst that could happen. I can’t even begin to imagine how I would have been able to continue the conversation after being told what I was told had I not spent days trying to think through the possibilities in my mind beforehand.
Hilariously, while I’d considered the possibility that the agency somehow might have lost the paperwork at issue, nowhere in my catastrophizing did I even come close to the idea that they’d simply throw it away without comment.
By the time I got to Friday, while I remained flabbergasted and a bit flailing, more of my mind had set to the question of just what administrative tool was used to quietly throw me in the trash.
While I’m waiting on a response from Social Security itself to the inquiry I sent them using their online contact form, I did get one interesting suggestion over on r/SSDI, where I was pointed toward Administrative Res Judicata.
Application of Administrative Res Judicata
The regulations at 20 CFR 404.957(c)(1) and 416.1457(c)(1) provide that administrative res judicata exists when:
- There has been a previous determination or decision under the same subpart with respect to the same party;
- The previous determination or decision was based on the same facts and on the same issue(s); and
- The previous determination or decision has become final by either administrative or judicial action.
The first thing that jumps out at me here is that any previous determination with respect to me was not “based on the same facts and on the same issue(s)” because, as I’ve noted, the non-medical denial—which indeed did give that explanation—came when I’d only completed the introductory intake portion of the application. I’d not yet reached the sections where any new facts or new issues even could be included for consideration.
Administrative Res Judicata at the Initial or Reconsideration Level
If a claimant files a new application and SSA finds that administrative res judicata applies because the application involves the same law, issues, facts and person(s) as a previously adjudicated application, SSA will not issue an initial determination on the merits of the new application or provide the right to reconsideration on the merits. However, SSA will provide the claimant appeal rights (i.e., the right to request reconsideration or an ALJ hearing on the issue of whether administrative res judicata applies).
It’s important that the process I’d begun in February and March did not yet include the factual portions of the application prior to the non-medical denial because that means res judicata should have been inapplicable at that stage.
Take a look at the plainer language over on the Program Operations Manual System (POMS):
Applying Res Judicata
If a new application is filed with the same issue by the same party and no new facts or evidence, the application may be denied on the basis of res judicata.
If anything has changed (including law and regulations), we cannot apply res judicata, but must make a determination or decision based on the merits of the application.
They offer a pair of contrasting examples that seems to make it pretty clear that it was misapplied here:
EXAMPLE: Res Judicata Applies
A claimant denied on the first application and does not appeal (or appeals unsuccessfully). The claimant files a second application, alleges the same onset date, submits no new evidence, and the earnings requirement (date last insured) was last met before or as of the date of the last determination. Since the issue is the same and the claimant submits no new evidence, we would deny the claim based on res judicata.
EXAMPLE: Res Judicata Does Not Apply
Using the example above, if the claimant did submit new evidence; we would not apply res judicata but would adjudicate the second application and give the claimant the right to appeal any aspect of our determination.
In my case, SSA appears to have applied res judicata to just to introductory, intake portion of my new disability application, before they’d ever have had access to any potentially new information or lack thereof.
When I requested reconsideration of that non-medical denial, I not only included new information as attachments to that, but I also finished the actual application which itself had new information.
By a plain reading of the agency’s rules and explanations of res judicata, they appear to have misapplied it not once, but in actual fact twice.
In other words, it seems to me, given that the non-medical denial due to no new information was issued before I’d even completed any of the sections that would include new information, that the denial on that basis was premature.
Then, when I simultaneously requested reconsideration of that decision and completed the application itself—including in each of these filings new information—surely they should not have simply trashed it all without remark?
I’ve mentioned that I’m exasperated over having to start over from scratch, and that it’s al the worse because there are very specific reasons for me not trying to do an application over the phone or in person.
In a condensed depiction of events I’ve submitted to The Oregonian as a commentary piece, I write:
I filed online specifically because I could take my time and be clear and concise and complete, all without degrading my own mental health.
This is where Mandy Brown on writers and talkers very much comes into play for me.
What they didn’t realize was that among the talkers who had been gathered were several writers. The writers were on the whole befuddled and exhausted; they weren’t sure what had been decided on, and when they tried to reflect on all that talking, it was a blur. They could feel the energy of the room was such that something exciting had happened but they didn’t quite know what to think of it. They were uncertain if they had made themselves clear; they were uncertain of what they had wanted to make clear. They wondered if they were missing something, but they couldn’t articulate what it was. They too sent thanks and thumbs up emojis, but they went home with a vague sense of dread.
More:
In most orgs, talkers are overrepresented among the leadership. This is not because talking offers any advantages over writing in terms of thinking power. Rather, it’s that most of our models for leadership—meetings, town halls, presentations, interviews—privilege talkers.
I’m perfectly willing to have a conversation or two, or several, over the course of a disability application, but generally speaking I make more sense if I can convey things in writing and then talk about the writing.
My disability and employment histories are greatly complicated, potentially in the eyes of Social Security compromised, by my not having a diagnosis until midlife. That’s precisely the thing my “disability narrative” document is meant to address.
There will be no progress on the disability front, I simply don’t believe, until and unless they let me get far enough down the road for someone to have to read that document.
Those online filings were right in my wheelhouse. Now, because Social Security simply and, I now believe, improperly threw them away, I have to fight through the power imbalance of talking—and I fully expect to be judged in part based upon my inability to communicate effectively in conversation while also trying to self-regulate.
Truthfully, I do not in any way expect the upcoming telephone appointment to fare any better than my calls last week. When there’s an established track record, it’s no longer catastrophizing. It’s succumbing to reality.