decisions made by the commissioner of the social security administration we recognize that this court deals with social security cases on a fairly regular basis but if there's one thing that mish want and the commissioner can agree on on in this case is that it's of unusual case but while the commissioner has tried to argue that the manner in which this case has progressed and was decided by the commissioner was nothing out of the ordinary which should be apparent is that in the commissioner's efforts to deal with  mistake she made at the very outset she has been willing to employ a scorched earth policy a policy in which she's been willing to violate her own rules and regulations has been willing to argue for broadly expansive powers of post h rationalization so broad in fact that it would in fact carve out an exception to the chen or a doctrine for the commissioner in the social security administration a doctrine that has been the law for seventy five years and finally she has been willing to attempt to spin and cover up for the agency's own mistake and negligence by stating things that are simply not true if a private insurance company had done what the commissioner has done over the course of this claiming that a geisha and we would surely be talking about bad faith and we should not forget that we are talking about here is an insurance policy one that is operated by the commissioner shoshu want purchased her insurance in the title to disability insurance program each day and every week that she was working and paying her fica taxes she was purchasing this insurance sure all she want was found disabled by the social security administration on july five two thousand and twelve the social security administration found want was disabled as of january one two thousand and twelve but when the notice of a word was issued rather than stating that schwantz disability began on january one two thousand and twelve the document which is the payment explanation for all benefits have been calculated said january one two thousand and one the mistake did not result in she wanted her dependents being paid eleven years of additional benefits because the social security rules limit the amount of the back  ard to at most twelve months prior to the application for title to benefits but it did result in she wanted her youngest two sons receiving a year's worth of benefits not justified by the july five two thousand and twelve decision i would like to report that when the commissioner discovered her error she sent a detailed letter diminish want and her sons confessing the agency's they're a letter simply saying hey we made a mistake you know we have a system sydney in sydney and is very good at transcribing things but on this one day sydney made a mistake and sydney said january one two thousand and one instead of january one two thousand and twelve we are so sorry about this because we sent you a bunch of money you shouldn't have gotten and you know we'd like to have you pay this back that's not what happened instead social security began sending notices to she wanted her son's demanding immediate repayment no explanation of how this would come to be just a demand it is helpful had been bad manners but why did she get to the legal problems that you say ok there are a number of legal problems we start with the fact that she is relying on the claims representative who don't only person that she's had contact with when she filed her initial claim which resulted in her getting found disabled as of january one two thousand and twelve she was dealing with claims representative a joke this was the one that she dealt with she got it on the first initial decision so then she begins receiving these notices that she must repay this amount and she doesn't know what's going on her head spinning and so she goes to the only person she's been working with the claims rep and she asked her what's going on here why are they saying i've got this extra money and the joke asst has tells or i'm going to this and she does work on this she develops additional evidence indicating that for the prior year they may have overlooked the fact that she had in fact been receiving a subsidy and so that's when the joke is does is she begins to develop evidence this is social security's employee begins to develop evidence that in fact the onset date should have probably been earlier because the dental office reports that yes there was a substantial subsidy so no joke has developed as a defense for cheryl she want on this claim that there is a overpayment the fact that it may not be an overpayment at all but is in fact now we recognize payment for a period of time when she was subsidizing me very well have been disabled now she is denied on that the defense she with kitna joke  help sheep a search this defense initially in the pond reconsideration and she loses and she then requests a hearing she does the requests for hearing on her own when she finally retains legal counsel legal counsel is informed by the administrative law judge that the issue of waiver of the overpayment is not before her and that the only thing that's before her is whether or not she's ever been  counsel i wrote to the administrative law judge saying really what's at issue here is whether or not we have a defense to this overpayment that occurred what the judge is saying with the administrative law judge is saying is now we're going to look at everything including a decision that had been rescheduled a kata for over a year ok so the first you're we they did not properly reopen the prior decision there's no notice of it that they were reopening it they just simply said this is our authority we're going to do this ok the administrative law judge does not even say that she's reopening there's a little mention of a reopening by adlard which is the first person to review the the request for a waiver but the judge the administrative law judge does not say anything about reopening so the problem here is your honor they're not following their own rules we have regulations that say if you're going to reopen not keep in mind this is a decision that they made in over a year has passed and no one has appealed from  k and they have definite regulations that they're supposed to follow and this is a twenty c f r four zero four nine eight seven nine eight what you have to do if you're going to reopen a a prior decision they reopened in initiative on your own initiative right agencies right that's what we didn't know they were doing that doesn't that there's no notice that they're going to reopen and in fact she doesn't reopen in  administrative law judge decision she says i'm basing my ability to look at this and determine whether or not that july five two thousand and twelve decision was decided correctly because of  substitute for it does not reverse your requirements to go through the reopening process that's under twenty c f r for all four nine eight seven did your client have a pretty strong or didn't you have a sister on hand  in your that the attorney threw out the act tobar letter from the day says that the relevant period of time that the l t a would consider was december thirty first two thousand and nine through the president and then you have the earlier one that's a little less direct but it seems that there's at least some notice there that there are look at the whole the whole thing that's right and the response of that point is why what i mean we're trying to figure out what is her authority to do that we mistake but because you're doing now i'm going to look at everything that's and that goes back to jets college it's on our own initiative right so they are doing it on their own initiative which they're allowed to do under the regulation and maybe they didn't really you know that it used the word reopen they probably should have but they say we're looking at everything you know that this entire time period i'm still not seeing where they went wrong well because if they had if they had followed what they were you know i guess their argument is you know we  listed a number of procedural defects in this and i guess their argument is what you raise they gave notice so doesn't that cure and that's kind of their argument that cures everything we don't have to follow we don't have to follow the reopening own initiative they reopened on their own initiative that's fine we don't we don't know that your honor though until the district who are briefs because the administrative law judge never says that beforehand doesn't say that she's reopening and she doesn't say it in the decision revisited the whole question it's obvious she was reopening it but if we don't know what authority she's using and if if she is  well then your honor then you're allowing them to say that ex post facto we can reopen and then we get into the cases that were cited in my brief three cases where this idea that you can you can read in the fact that something has been reopened ex post facto constructively i will note specifically that the three cases that i cited only relate to a plaintiff an appellant a claimant asking for constructive or allow it if there's good so you might argue there's a good cause but i don't hear you arguing and that's the point your honor if we don't know that she's reopening if she does not say this is the reason this is the reason why i think i'm going to look at something and retroactively terminate benefits that were awarded over a year ago if she would have said here's my authority i'm reopening in here is the new and material that i see as a basis that gives us a possibility of saying ok what is the problem and can we address this problem you'll note that there wasn't really any explanation of what she found as new and material evidence that she could reopen what she basically had was kind of an being upset with the fact that somebody didn't simply pay over the money once they knew that it was an overpayment i have a factual question for you the waiver th report sent though the waiver argument that you say wasn't considered back today l j what's the status of that right now is that that was a favorable part of the decision write history judge it was remanded back to the commissioner it has not been scheduled tha ok i'll reserve the rest of the time your honor with your permission for rebuttal you may thank you for your argument this war money was well money we'll hear from you know the commissioner for the acting commissioner whatever  good morning in may it please the court my name is tracy were monny and i represent nancy a berryhill the acting commissioner of social security or your honour's if you just heard the main issue here is whether the agency properly reopened  the two thousand and twelve determination that found michelin disabled beginning on january first two thousand and twelve and now mr arts council has urged this court to believe that this is a complicated issue due to the link the procedural history however the court the question that this court must answer today is actually quite simple on this court need only determine whether the agency complied with the regulations in the reopening  get there one of the things that struck me about the facts here and this may be the basis for why we're hearing the case is boy that the agency whoever was handling this at the lower levels before the appeal before the l j all over the board i mean this is covered that's cover to wait a second we made a mistake let's go back and do this here's a here's the wrong date i mean it really was sort of a comedy of errors does this happen pretty often and is already of legal significance to that sure i mean as you know the agency is a is a huge agency so the only issue here is now did the agency reopen under the red on and the regulations give the agency authority to on its own initiative reopen and revise otherwise final determinations i'm including a general principle it does however here we have a reopening under the regulation so it's an exception that it's basic in the regulations thank you on now contrary to what mr want has argued it is irrelevant how the agency comes to receive the and twelve may have been subject to a subsidy of the us they may not have been substantial gainful work and that called into question whether the january first two thousand and twelve onset date in the prior determination was correct mission however has argued that this was post talk rationalization from agency counsel that was not heard presented in til federal court however that is unsupported by the record which shows that the agency's reasoning for reopening this claim has been clear and consistent throughout we have a july two thousand and thirteen statement in the record from an agency employee explaining that she was requesting a reopening of claim due to new material didn't concerning subsidy then we have a second statement dated september twenty third from another agency employee explaining that this was in fact a reopening of the claim based on again new and material evidence the language in the regulation concerning income in our twenty fifteen decision the a l j also articulated to the good cause that warranted a reopening of the claim our she discussed the subsidies and then pointed to increased earnings in tw first two thousand and twelve and she explained that the new evidence concerning income and work out to be was in fact material to a disability determination that's the agency's reasoning for reopening has been clear and consistent throughout this is any authority to stand for that proposition but again your honour's we have the agency employees using the term new and material i didn't and then the a l j again discussed the new evidence and specifically described it as to the hearing she fully informed that her decision would cover the entire scope of the real claim on now that is the exact notice that is required under the regulations when an l j reconsiders issues that were claimant sufficient notice of the issue she intends to consider and that is precisely what happened in this case the l j as outlined in our brief issued to hearing notices stating i'm not going to consider the overpayment issue but i'm going to consider postpone the hearing here just to ensure that there is no misunderstanding and that michelin had ample opportunity to prepare for her disability hearing the l g final hearing notice again stated that the relevant period was from december thirty first two thousand and nine through the president did not use the term reopen or she did clearly inform that she was reopening the entire claim both the unfavorable and the favorable portion that found her disabled beginning in two thousand and twelve i would also point out that at the very beginning of the hearing the a l j told me that going forward potentially i could find you disabled at an earlier date out a later date or not at all was represented by counsel she stated that her counsel explained this to her that she understood the risk of her seating elected to move forward with the hearing that's the algae in this case provided mi want with not only adequate but repeated notice of the issues that she intended to consider again that is the notice that is required under the regulations when an l j considers issues previously decided in a claimants favor that is also the adequate notice required according to principles of due process are here had ample opportunity to prepare for her disability hearing and therefore sufficient notice was given and no due process violation has occurred if there are no questions i'll conclude your honour's the mariners again the agency reopen miche want to claim within four years on that for good cause under the regulations no more boats were prior to reopen her claim and is just explained the l j provided mish want with adequate notice of the issues that she intended to consider on therefore the commissioner would respectfully request that this court uphold fitz you may speak in rebuttal again when the commissioner your honour's i refer to reopening it is clear that they did not reopen they did not say they were going to reopen and in fact when the air a decision comes out she alludes to the fact that there was a real reopening apparently but that's not what she relies on she relies on halleck's now this is important because the reason that we are going in front of the administrative law judge is to present a defense and has its briefed that is the reason that we were asking for a waiver the defense allows you to say well maybe that the fans to getting this overpayment is maybe cheryl was disabled in that period of time that does not trigger the reopening by itself and as far as all cases being constructive reopening i would disagree with that your honor the cases are clear that unless reopening is requested and actually made a part of the case you cannot if there's been no case that cited that the government can say or we we after the fact i guess we did reopen that it was obvious we reopening you know you have to say that you are reopening in the you should set forth the reasons that you're reopening so this comes down to the due process claim and i think the case there is the blodgett case same situation where the notice there's a notice that we're going to do this but there's no explanation of what the authority are is or what the person's rights are and so we would ask that you reverse the decision of the district court in this in this matter and allow the decision of july five two thousand and twelve and not be retroactively changed by the commissioner in this case thank you well thank you to both counsel for the arguments t