I-5-4-62.Implementation of the Dennard and Drummond Acquiescence Rulings (Sixth Circuit)
ISSUED: December 30, 1999
This Temporary Instruction provides, in question and answer format, guidance for implementing Social Security Acquiescence Ruling (AR) 98-3(6), Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990) and AR 98-4(6), Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997). The Commissioner of Social Security published the ARs in the Federal Register on June 1, 1998, and they became effective on publication.
As described in AR 98-3(6), the Sixth Circuit in Dennard concluded that where the final decision of SSA after a hearing on a prior disability claim contains a finding of the demands of a claimant's past relevant work, SSA may not make a different finding in adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim unless new and additional evidence or changed circumstances provide a basis for a different finding. AR 98-4(6) explains that, in Drummond, the Sixth Circuit concluded that where such a final decision by SSA on a prior disability claim contains a finding of a claimant's residual functional capacity (RFC), SSA may not make a different finding in adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim unless new and additional evidence or changed circumstances provide a basis for a different finding of the claimant's RFC.
As the holdings of the Dennard and Drummond decisions are related, and the ARs were published together, guidance for the implementation of both ARs is provided below.
Both the Dennard AR and the Drummond AR apply only in cases involving claimants who reside in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision on the subsequent claim at the initial, reconsideration, Administrative Law Judge (ALJ) hearing or Appeals Council (AC) level. In general, the ARs apply when an SSA adjudicator is deciding an individual's subsequent disability claim with an unadjudicated period arising under the same title of the Act as a prior disability claim on which there has been a final decision by an ALJ or the AC that contains findings to which either the Dennard AR or the Drummond AR applies, as described below.
The Dennard AR applies to a finding of the demands of a claimant's past relevant work under 20 CFR §§ 404.1520(e) or 416.920(e). In addition, the Ruling states that because a finding of a claimant's date of birth (for purposes of ascertaining his or her age), education or work experience, also involves a finding of fact, relating to a claimant's vocational background, which would not ordinarily be expected to change, the Ruling also shall apply to a finding of a claimant's date of birth, education, or work experience required under 20 CFR §§ 404.1520(f)(1) or 416.920(f)(1). The Dennard AR requires an adjudicator of the subsequent claim to adopt any such finding from the final decision by an ALJ or the AC on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.
The Drummond AR applies to a finding of a claimant's RFC or other finding required at a step in the sequential evaluation process for determining disability provided under 20 CFR §§ 404.1520, 416.920 or 416.924, as appropriate. The Drummond AR requires an adjudicator of the subsequent claim to adopt any such finding from the final decision by an ALJ or the AC on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.
Donald Dennard filed an application for disability insurance benefits in 1981 alleging a disability onset date of July 7, 1981. An ALJ subsequently found the claimant not disabled. The ALJ concluded that the claimant, while not capable of performing his past relevant work, retained the RFC to perform sedentary work and was not disabled. The AC denied the claimant's request for review, and the District Court affirmed the Agency's denial. The claimant filed a second application in 1985 alleging a disability onset date of September 29, 1982. An ALJ, after again determining that the claimant could not do his past relevant work, subsequently found the claimant not disabled, because he was capable of performing sedentary work and had transferrable skills to sedentary work. After the AC denied review, the claimant sought judicial review. The District Court remanded the case for a new hearing to obtain and develop the medical evidence and to obtain additional vocational testimony. At another hearing a vocational expert testified that, based on the claimant's testimony at the prior hearing, his past work as a resident care aide supervisor was semi-skilled and heavy to very heavy in terms of exertional level. However, the vocational expert further testified that, based on the job description provided by Mr. Dennard with his application for benefits, the job was semi-skilled and was sedentary to light in nature. In a subsequent decision issued on April 6, 1988, an ALJ found that Mr. Dennard was not prevented from performing his past relevant work and, therefore was not disabled. The Appeals Council denied the claimant's request for review and the District Court affirmed the Agency's decision. The claimant appealed to the Sixth Circuit, contending that because SSA had determined in its final decision on his first application for benefits that he could not perform his past relevant work, SSA was precluded by estoppel from reconsidering the issue and finding that Dennard could perform this work.
The Sixth Circuit observed that it seemed clear that SSA had reconsidered the nature and extent of Mr. Dennard's exertional level in his former job as a resident care supervisor. The court stated: "We are persuaded that under the circumstances, we must remand this case to [SSA]...to determine whether [Mr.] Dennard is disabled in light of the prior determination that he could not return to his previous employment."
On July 6, 1987, Grace Drummond filed an application for title II disability benefits and alleged an onset date of November 17, 1985. The claimant later requested a hearing, and, on July 28, 1988, an ALJ issued a decision finding that Ms. Drummond was unable to perform her past relevant work but retained the RFC for sedentary work and was not disabled. The AC denied the claimant's request for review. On June 21, 1989, the claimant filed a subsequent application for disability benefits. The claimant later requested an ALJ hearing. On August 2, 1990, an ALJ determined that the claimant was not disabled because she could perform her past relevant work as a textile machine operator. Her past relevant work was found to be at the medium exertional level. On March 22, 1991, the AC denied her request for review. On March 13, 1992, the district court granted the Agency's motion for summary judgment. The claimant appealed to the Sixth Circuit which reversed the District Court decision and remanded the case with instructions to remand it to SSA to determine, in part, whether "res judicata is applicable against SSA." After the AC denied claimant's case and found that 42 USC 405(h) could not be applied against SSA as a bar to prevent reconsideration of an issue, the claimant again sought judicial review. The District Court found that "administrative res judicata does not apply to the Commissioner when a transitory condition such as health is involved...," and the claimant again appealed to the circuit court.
On September 30, 1997, the Court of Appeals for the Sixth Circuit issued a decision and reversed the district court's grant of summary judgment to the Commissioner and remanded the case to the district court with instructions for it to remand the case to the Commissioner for an award of benefits. The court determined that "[a]bsent evidence of improvement in a claimant's condition, a subsequent ALJ is bound by the findings of a previous ALJ." In addition to relying on the holding in Dennard, the Sixth Circuit made reference in its opinion to Lively v. Secretary of Health & Human Services, 820 F.2d 1391 (4th Cir. 1987). The Sixth Circuit observed that the court in Lively had relied on "[p]rinciples of finality and fundamental fairness drawn from § 405(h)" to conclude that "evidence, not considered in the earlier proceeding, would be needed as an independent basis to sustain a finding [of the claimant's residual functional capacity] contrary to the final earlier finding." The Sixth Circuit held that SSA could not reexamine issues previously determined in the absence of new and additional evidence or changed circumstances. The court indicated that to allow such a reevaluation "would contravene the reasoning behind 42 U.S.C. § 405(h) which requires finality in the decisions of social security claimants." The Court of Appeals further stated that "[j]ust as a social security claimant is barred from relitigating an issue that has been previously determined, so is the Commissioner." After finding that there was no substantial evidence that Ms. Drummond's condition had improved significantly during the time period between the two ALJ hearings, the court concluded that SSA was bound by its previous finding that the claimant was limited to sedentary work.
SSA did not appeal the Sixth Circuit decision in Dennard or Drummond and, because the court's holdings conflict with our interpretation of the Act or the regulations, SSA issued AR 98-3(6) for Dennard, and AR 98-4(6) for Drummond. The Dennard AR requirements will apply to Dennard AR-only interim period cases where notice of the final determination or decision on a subsequent claim is dated April 10, 1990, the date of the Dennard decision, through September 29, 1997, the day before the date the Drummond decision was issued. The Dennard and Drummond ARs apply to all administrative determinations or decisions made on or after June 1, 1998, the effective date of both ARs. When the notice of a final determination or decision on an individual's subsequent disability claim is dated September 30, 1997 (the date of the Drummond decision) through May 31, 1998, the day before the effective date of the ARs, individuals may request readjudication under both the Dennard AR and the Drummond AR.
III. Implementing Procedures
The attached questions and answers provide guidance for implementing the Dennard and Drummond ARs.
Hearing office personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 605-8530. Headquarters personnel should contact the Special Counsel Staff at 605-7108.