2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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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"Kaszer v. Comm Social Security" (2002). 2002 Decisions. Paper 421.

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 NOT PRECEDENTIAL 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