I-5-4-62.Implementation of the Dennard and Drummond Acquiescence Rulings (Sixth Circuit)

Table of Contents
I Purpose
II Background
III Implementing Procedures
IV Inquiries
Attachment

ISSUED: December 30, 1999

I. Purpose

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.

II. Background

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.

IV. Inquiries

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.

Attachment.

QUESTIONS AND ANSWERS

IMPLEMENTATION OF THE DENNARD AND DRUMMOND ACQUIESCENCE RULINGS

  1. What do the Dennard and Drummond ARs require?

    The ARs require that when adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as a prior claim on which there has been a final Administrative Law Judge (ALJ) or Appeals Council (AC) decision, an adjudicator must adopt certain findings from the ALJ or AC decision 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.

  2. What are the prior findings to which the Dennard AR applies?

    The Dennard AR applies to a finding of the demands of a claimant's past relevant work, under 20 CFR § 404.1520(e) or 20 CFR § 416.920(e), as well as 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).

  3. What are the prior findings to which the Drummond AR applies?

    The Drummond AR applies to a finding of a claimant's residual functional capacity 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.

  4. When does the Dennard Acquiescence Ruling (AR) apply?

    The AR applies to a claim pending at the initial, reconsideration, ALJ hearing or AC level when the following conditions are met:

    1. The adjudicator is deciding a subsequent disability claim of an individual on or after June 1, 1998, the effective date of the AR, that involves an unadjudicated period and that arises under the same title of the Act as a prior claim; and

    2. There was a decision by an ALJ or the AC on the prior disability claim and this decision has become final; and

    3. The final decision by the ALJ or the AC on the prior claim contains a finding of the demands of the claimant's past relevant work, or a finding of the claimant's date of birth, education, or work experience; and

    4. The claimant resides in Kentucky, Michigan, Ohio or Tennessee at the time of the determination or decision on the subsequent claim at the initial, reconsideration, ALJ hearing or AC level.

    NOTE:

    The AR is also applicable to interim period cases. In accordance with 20 CFR §§ 404.985(b)(2) or 416.1485(b)(2), a claimant may request readjudication under the Dennard AR of a disability claim in a Dennard AR-only interim period case, ie., where the notice of the final determination or decision on the subsequent disability claim is dated April 10, 1990, the date of the Dennard court decision, through September 29, 1997, the day before the date of the Drummond court decision. Also, in accordance with the aforementioned regulations, a claimant may request readjudication under both the Dennard AR and the Drummond AR of a disability claim in a Drummond AR/Dennard AR interim period case, i.e., where the notice of the final determination or decision on the 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. See question 18 for more guidance on this situation.

  5. When does the Drummond Acquiescence Ruling (AR) apply?

    The AR applies to a claim pending at the initial, reconsideration, ALJ hearing or AC level when the following conditions are met:

    1. The adjudicator is deciding a subsequent disability claim of an individual on or after June 1, 1998, the effective date of the AR that involves an unadjudicated period and that arises under the same title of the Act as a prior disability claim; and

    2. There was a decision by an ALJ or the AC on the prior disability claim and this decision has become final; and

    3. The final decision by the ALJ or the AC on the prior claim contains a finding on the claimant's residual functional capacity (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; and

    4. The claimant resides in Kentucky, Michigan, Ohio or Tennessee at the time of the determination or decision on the subsequent claim at the initial, recconsideration, ALJ hearing or AC level.

    NOTE:

    The AR is also applicable to interim period cases. In accordance with 20 CFR §§ 404.985(b)(2) or 416.1485(b)(2) a claimant may request readjudication under the Drummond AR and Dennard AR of a disability claim in a Drummond AR/Dennard AR interim period case, i.e., where the notice of the final determination or decision on the subsequent disability claim is dated September 30, 1997 (the date of the Drummond court decision) through May 31, 1998 (the day before the effective date of the AR). See question 18 for more guidance on this situation.

  6. The Dennard and Drummond ARs both indicate that the adjudicator must adopt certain findings made in a final decision by an ALJ or the AC on a prior disability claim under the same title of the Act unless there is new and material evidence relating to such finding (or there has been a change in the law, regulations, or rulings affecting the finding or the method for arriving at the finding). Does the term "new and material" in this context have the same meaning as it does in the "good cause for reopening" regulations (20 CFR §§ 404.989(a)(1) and 416.1489(a)(1)) and in HALLEX I-2-9-40 C.1.?

    No. “New and material evidence” has a broader meaning in the context of the Dennard and Drummond ARs than it does in the reopening context. Generally, "new" evidence of improvement is evidence that was not before the adjudicator who made the decision on the prior claim. As noted in the answer to question 2, the requirement to adopt prior findings under the Dennard AR applies to a finding of the demands of a claimant's past relevant work as well as to a finding of a claimant's date of birth, education, or work experience. As noted in the answer to question 3, the requirement to adopt prior findings under 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. For purposes of the Dennard and Drummond ARs, "new" evidence includes a new fact that automatically results from the passage of time, i.e., the increase in the claimant's age and the moving forward of the period encompassing past relevant work (20 CFR §§ 404.1565(a) and 416.965(a)). “New” evidence under the Dennard and Drummond ARs can also include testimony that was not presented in the proceedings before the prior adjudicator. If there is new and material evidence or there has been a change in the law, regulations, or rulings affecting the finding or the method for arriving at the finding, adoption of that finding is not required.

    In the reopening context, evidence is "material" only if it relates to the period that was adjudicated in the prior final determination or decision at issue. By contrast, under the Dennard and Drummond ARs, the new evidence need not relate to the period adjudicated in the final decision on the prior claim in order to be "material," that is, to provide a basis for making a different finding in the adjudication of the current claim. The new evidence may relate solely to the unadjudicated period covered by the new claim, e.g., new evidence establishes that the claimant's medical condition has worsened or has improved since the date of the final decision on the prior claim, or it may relate to both the unadjudicated period and the period previously adjudicated, e.g., new evidence establishes that, prior to the date of the final decision on the prior claim and continuing to the present time, the claimant's RFC was, and continues to be, more restrictive than that found in the prior decision. (In the latter situation, the new evidence also may provide a basis for reopening the prior decision if the conditions for reopening are otherwise met.) Under the ARs, new evidence is "material" if, for purposes of adjudicating the current claim, the evidence both differs from that presented in the prior claim and warrants a finding different than that made in the decision on the prior claim.

  7. Does the Drummond AR mean that the adjudicator who is deciding the current claim cannot find that the claimant has a more or less restrictive RFC than that established in a finding in the prior decision if there is no new and material evidence or change in the law, regulations, or rulings related to that finding?

    Yes.

  8. Do the requirements of the ARs to adopt prior findings affect the method of adjudication under the sequential evaluation process in determining disability with respect to the subsequent claim?

    To the extent that the adjudicator must first address whether there is new and material evidence, or a change in the law, regulations, or rulings with respect to each such finding made in the prior decision, the answer is "yes." The sequential evaluation order of consideration is unchanged, but the initial question at each step when applying the Drummond AR(or at the relevant step when applying the Dennard AR) is whether there is new and material evidence relating to the particular finding covered under the applicable AR, or there has been a change in the law, regulations, or rulings affecting the finding or the method for arriving at the finding. If there is no new and material evidence or a change in the law, regulations, or rulings related to the finding, the adjudicator must adopt the prior finding covered under the applicable AR. If there is new and material evidence or a change in the law, regulations, or rulings with respect to a particular finding covered under the applicable AR, the adjudicator must make a new finding based on all evidence pertinent to that finding.

  9. Do the requirements of the ARs concerning the adoption of certain findings mean the decisional rationale must reflect the above analysis?

    Yes. Decisions in cases in which one of the ARs applies must refer to the AR and include rationale indicating why any new evidence is or is not material to a particular finding. Any change in the law, regulations, or rulings related to a finding must also be reflected in the rationale. The adjudicator must clearly state which prior findings are being adopted and which are not. For each prior finding the adjudicator adopts, no further rationale is needed.

  10. The Drummond AR indicates that it applies only to disability findings (i.e., a finding regarding a claimant's RFC or other finding required at a step in the sequential evaluation process for determining disability). What are the "other finding[s]?"

    Findings that are "required" at a step in the sequential evaluation process provided under 20 CFR §§ 404.1520 or 416.920 include:

    Step 1: a finding as to whether a claimant's work activity constitutes substantial gainful activity (SGA)

    Step 2: a finding concerning whether a claimant has an impairment or combination of impairments that is severe and whether the impairment or combination of impairments meets the duration requirement;

    Step 3: a finding concerning whether a claimant's impairment(s) meets or equals a listed impairment in Appendix 1 to Subpart P of 20 CFR Part 404 (step three);

    Step 4: a finding of a claimant's RFC and a finding of the physical and mental demands of the claimant's past relevant work;

    Step 5: a finding of a claimant's age, education or work experience for purposes of determining if claimant can do other work.

    Other sections of the regulations require additional findings in certain cases, e.g., the skill level of a claimant's past relevant work and whether a claimant has transferable skills (20 CFR §§ 404.1568 and 416.968). For findings required under the evaluation process or for determining disability for a child applying for title XVI benefits based on disability, see 20 CFR § 416.924.

  11. Is a finding regarding credibility considered to be a finding required at a step in the sequential evaluation process for the purposes of the Drummond AR?

    No. In making certain "required" findings, such as RFC or other findings required to be made at a step in the sequential evaluation process, adjudicators may make "subordinate" findings. For example, in making a "required" finding of a claimant's RFC, an adjudicator may make a "subordinate" finding concerning the credibility of a claimant's testimony or statements. A subordinate finding does not constitute a finding that is required at a step in the sequential evaluation process. Pursuant to the Drummond AR, an adjudicator reviewing a subsequent claim must adopt a prior finding of the claimant's RFC or other "required" finding (i.e., a finding required at a step of the sequential evaluation as provided under 20 C.F.R. §§ 404.1520, 416.920 or 416.924, as appropriate) unless there is new and material evidence relating to that 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 question of making a "subordinate" finding regarding credibility only arises when there is such new and material evidence or changes in legal requirements.

  12. When is evidence in a subsequent claim considered new and material such that it would provide a basis for not adopting the finding of the claimant's RFC from a prior final decision under the Drummond AR?

    Example 1:

    An individual with a cardiovascular impairment was given an RFC for sedentary work in a final decision by an ALJ. In a subsequent claim, evidence shows that since the ALJ's decision the claimant had bypass surgery. Exercise testing and functional evidence document that currently an RFC for light work would be appropriate. Evidence concerning the surgery, exercise testing, and functional documentation is new and material evidence because it was not part of the prior claim, and it demonstrates changes in the claimant's condition which makes the previous RFC for sedentary work no longer applicable.

    Example 2:

    An individual with a cardiovascular impairment was given an RFC for sedentary work in a final decision by an ALJ. The claimant did not have bypass surgery or other procedures since the prior final ALJ denial. In the subsequent claim, evidence shows that recent exercise testing results were not materially different from test results in the prior claim. There is no other new evidence in the record for the subsequent claim that would provide a basis for changing any component of the ALJ's finding of the claimant's RFC. In this situation, the evidence consisting of recent exercise testing results is new but not material. When compared with the evidence before the ALJ, this new evidence does not show that any component of the ALJ's RFC assessment has changed. Therefore, assuming that there has not been any change in the law, regulations or rulings affecting the finding of the claimant's RFC or the method for arriving at such finding, the prior ALJ finding of an RFC for no more than sedentary work must be adopted. This is so even if the results of both the prior and recent exercise testing appear to support an RFC for light work.

  13. Do the ARs apply if the prior ALJ or AC final decision was issued for a Title XVI claimant who was then under age 18 and that claimant has since attained the age of 18 and has a subsequent claim, with an unadjudicated period, arising under the same title of the Act as the prior claim?

    No. The Drummond AR does not apply when the requirements for disability on one claim under the same title (e.g., a prior title XVI child disability claim) are not identical to the requirements for disability on a subsequent claim (e.g., a current title XVI adult disability claim). The Dennard AR would not apply because that AR is limited to certain prior findings at steps four and five of the adult sequential evaluation process.

  14. Must an adjudicator, under the ARs, adopt a prior finding, in the absence of new and material evidence, if it was made based on a now obsolete standard, e.g., the previous cardiovascular listings that were revised on February 10, 1994?

    No. If the new criteria are clearly different from those in effect at the time of the previous decision, a new standard is involved. Therefore, the adjudicator must make a new finding in the current decision using the current standard, regardless of whether the current standard is more, or less, favorable to the claimant. Any change in statute, regulation, ruling or legal precedent that would bar application of res judicata would also bar application of the ARs with respect to the particular, prior finding affected by the change.

  15. Must an adjudicator, under the ARs, adopt a prior finding, in the absence of new and material evidence or a change in the law, regulations or rulings if it was based on an error on the face of the evidence?

    The prior finding need not be adopted if the prior decision is reopened and revised under the usual rules of administrative finality applicable to an error on the face of the evidence and a new finding is made. See 20 CFR § 404.989(a)(3). If the prior decision cannot be reopened and revised under the usual rules (See 20 CFR §§ 404.988(b) & (c)(8) and 416.1488(b)) (i.e., more than 2 years have elapsed since the date of the notice of the initial determination in a title XVI case, or more than four years have elapsed since the date of such notice in a title II case and good cause is found, and, for a title II case only, if at any time when the prior decision was wholly or partially unfavorable to the claimant), then the prior finding must be adopted.

  16. How do the ARs apply if there is more than one prior claim with an ALJ or Appeals Council decision?

    If there is more than one prior final ALJ or AC decision, the adjudicator in applying the Dennard AR must adopt each of the findings (with respect to which there is no new and material evidence or change in the law, regulations or rulings) related to the demands of past relevant work, date of birth, education or work experience from the most recent final ALJ or AC decision that predates the Dennard court decision, which was issued on April 10, 1990. The most recent final decision by the ALJ or AC that predates the Dennard court decision is the starting point in the sequential consideration that must be followed by adjudicators when determining whether to adopt a finding covered by the Dennard AR. Relevant findings from ALJ or AC decisions that are dated on or after the Dennard court decision are also considered, but only after the relevant findings from the most recent final ALJ or AC decision that predates the Dennard court decision are considered. The relevant findings from the final ALJ or AC decisions that are dated on or after the date of the Dennard decision are looked at via sequential consideration from the earliest final decision dated after the Dennard court decision.

    If there is more than one prior final ALJ or AC decision, the adjudicator in applying the Drummond AR must adopt each of the findings (with respect to which there is no new and material evidence or change in the law, regulations or rulings) related to RFC or other findings required at a step in the sequential evaluation from the most recent final ALJ or AC decision that predates the Drummond court decision, which was issued on September 30, 1997. The most recent final decision by the ALJ or AC that predates the Drummond court decision is the starting point in the sequential consideration that must be followed by adjudicators when determining whether to adopt a finding covered by the Drummond AR. Relevant findings from final ALJ or AC decisions that are dated on or after the Drummond court decision are also considered but only after the relevant findings from the most recent final ALJ or AC decision that predates the Drummond court decision are considered. The relevant findings from the final ALJ or AC decisions that are dated on or after the date of the Drummond court decision are looked at via sequential consideration from the earliest final decision dated after the Drummond court decision.

    EXAMPLE 1:

    Assume that a claimant with a claim currently pending in the Sixth Circuit received final ALJ decisions in 1991 and 1992 on two prior claims. The ALJ in the first claim found based upon the testimony of a vocational expert that the demands of the claimant's past relevant work were light in their physical exertional level, while the ALJ in the second claim found based upon the testimony of a vocational expert that the demands of the claimant's past relevant work were heavy in their physical exertional level.

    The adjudicator of the third claim (the current claim) must first determine under the Dennard AR whether new and material evidence was submitted in connection with the second claim (the most recent prior final decision), or if there was a change in the law, regulations, or rulings affecting the finding of the demands of past relevant work, that would justify making a different finding (heavy) concerning the exertional demands of the past relevant work than that found (light) in the decision on the first claim (the earliest final decision dated after the Dennard court decision). If the adjudicator determines that such new and material evidence was submitted with the second claim, the finding regarding the exertional demands of the past relevant work in the decision on the second claim would be binding unless there is new and material evidence submitted with the current claim or a change in the law, regulations, or rulings affecting the findings. If the adjudicator determines that no such new and material evidence was submitted with the second claim, the finding from the decision on the first claim would be binding unless there is new and material evidence submitted with the current claim. The decisional rationale must reflect this sequential consideration and, if the adjudicator adopts a prior finding, the decision must clearly indicate the date of the decision from which the finding is being adopted.

    The adjudicator of the third claim (the current claim) must then determine under the Drummond AR whether new and material evidence was submitted in connection with the current claim, or if there was a change in the law, regulations, or rulings that would justify making a different finding concerning RFC or another finding required at a step in the sequential evaluation from the findings made in the most recent final ALJ decision (1992) that predates the 1997 Drummond court decision.

    EXAMPLE 2:

    Assume the same facts as example 1 and assume that the claimant had also filed two earlier claims that were denied by ALJs in 1988 and 1989. Assume that the ALJ found in the 1988 final decision that the physical demands of the claimant's past relevant work were medium in exertional level, and that the ALJ in the 1989 final decision found that the physical demands of the claimant's past relevant work were sedentary in their exertional level.

    The 1988 and 1989 decisions predate the court's 1990 decision in Dennard. Therefore, the findings from the 1988 decision were not binding on the 1989 proceedings because the Sixth Circuit court had not issued its decision in Dennard at the time the 1989 decision was issued. Thus, the adjudicator of the current claim must first consider whether there was new and material evidence at the time of the 1991 decision that warranted making a different finding on the exertional demands of the past relevant work from that of the finding made concerning the exertional demands of the past relevant work in the 1989 decision, the most recent final decision that predates the 1990 Dennard court decision. The adjudicator would then proceed with the same sequential consideration as described in Example 1. The 1988 and 1989 decisions also predate the court's 1997 decision in Drummond. But since the 1992 decision is the most recent final decision that predates the Drummond court decision, the requirements of the Drummond AR would not apply with respect to prior findings from either the 1988 or 1989 ALJ decisions.

    Example 3:

    Assume that a claimant with a claim currently pending received ALJ decisions in May 1997 and May 1998 on two prior claims. The ALJ in the first claim found the claimant had a light RFC, while the ALJ in the second claim found the claimant had a medium RFC. The claimant was a younger individual at the time of the first decision and was closely approaching advanced age at the time of the second decision. Also, the medical-vocational guidelines would have directed a finding of "disabled" if the second ALJ had found the claimant's RFC was light.

    The adjudicator of the third claim (the current claim) must first determine under Drummond whether new and material evidence was submitted in connection with the second claim (the most recent prior final decision that predates the Drummond court decision), that would justify finding an RFC greater than the light RFC found in the decision on the first claim. If the adjudicator determines that such new and material evidence was submitted with the second claim, the finding regarding RFC in the decision on the second claim would be binding unless there is new and material evidence submitted with the current claim or a change in the law, regulations, or rulings affecting the findings. If the adjudicator determines that no such new and material evidence was submitted with the second claim, the finding from the decision on the first claim would be binding unless there is new and material evidence submitted with the current claim. The decisional rationale must reflect this sequential consideration and, if the adjudicator adopts a prior finding, the decision must clearly indicate the date of the decision from which the finding is being adopted.

    EXAMPLE 4:

    Assume the same facts as example 3 and assume that the claimant had also filed two earlier claims that were denied by ALJs in 1995 and 1996. The ALJ who issued the 1995 decision found that the claimant was limited to light work and the ALJ who issued the 1996 decision found that the claimant was limited to sedentary work. The 1995 and 1996 decisions predate the court's September 1997 decision in Drummond. But since the May 1997 decision is the most recent final decision that predates the Drummond court decision, the requirements of the Drummond AR would not apply with respect to prior findings from either the 1995 or 1996 ALJ decisions. The adjudicator would then proceed with the same sequential consideration as described in Example 3.

  17. Application of the requirements of the Drummond AR generally will satisfy the requirements of the Dennard AR. However, there are certain circumstances where this is not true. What is a such a circumstance?

    Assume there's an individual with a disability claim currently pending before SSA who has filed four prior disability claims resulting in final ALJ decisions in 1988, 1989, 1995, and 1996. Under the Dennard AR, the adjudicator must consider whether to adopt findings contained in the ALJ decisions of 1989, 1995 and 1996. The Dennard AR would not apply to findings contained in the 1988 ALJ decision since such findings would not have been binding for purposes of the 1989 ALJ decision which is the most recent final decision that predated the Dennard court decision. Under this example, the requirements of the Drummond AR concerning a finding of a claimant's RFC, however, would apply only to such findings that are contained in the 1996 ALJ decision. The Drummond AR would not apply to findings contained in any of the earlier ALJ decisions because findings from those decisions would not have been binding for purposes of the 1996 ALJ decision which is the most recent final decision that predated the Drummond court decision.

  18. If all conditions for applying the Drummond AR are otherwise met, must an adjudicator apply the AR to readjudicate a previously decided claim if the claim was denied between the date of the court's decision (September 30, 1997) and the AR publication date (June 1, 1998) and the claimant has not requested application of the AR to his or her prior claim? If all conditions for applying the Dennard AR are otherwise met, must an adjudicator apply he AR to readjudicate a previously decided claim if the claim was denied between the date of the court's decision (April 10, 1990) and the AR publication date (June 1, 1998) and the claimant has not requested application of the AR to his or her prior claim?

    Yes, under both Dennard and Drummond. Although 20 CFR §§ 404.985(b) and 416.1485(b) provide for readjudication based on a request by the claimant, these regulations do not preclude SSA from taking such action on its own initiative when, in adjudicating a subsequent claim for example, an adjudicator becomes aware of the prior determination or decision and concludes that application of the ruling could change that determination or decision.

  19. Are Drug Addiction and Alcoholism (DAA) redeterminations under Pub. L. No. 104-121 considered subsequent claims for purposes of the Dennard and Drummond ARs? Is a conclusion that DAA "is material" or "is not material" a finding that is required at a step in the sequential evaluation process for purposes of the Drummond AR?

    DAA redeterminations are considered subsequent claims for the purpose of the Dennard and Drummond ARs. A DAA redetermination involves two phases--the first phase involving application of the sequential evaluation process considering all impairments, and the second phase involving application of the sequential evaluation process considering all impairments but DAA. Accordingly, the Dennard AR applies to a finding of the demands of the claimant's past relevant work, and the claimant's date of birth, education, and work experience. The Drummond AR applies to the finding of the claimant's RFC or other finding required at a step in the sequential evaluation process. Thus, in applying the Drummond AR, the effects of DAA and all other impairments are considered in determining the RFC. If a finding of disability is made, however, the ARs do not apply to the further step at which the adjudicator makes a finding determining whether DAA "is material" or "is not material" to that finding of disability, that is, whether the claimant would still be found disabled if he or she stopped using drugs or alcohol. The ARs do not apply to the materiality finding because it is not a finding that is required at a step of the sequential evaluation process.

  20. What if the prior file has been lost or destroyed?

    It may be possible to apply the ARs if the adjudicator can obtain a copy of the final ALJ or AC decision on the prior claim. Therefore, the adjudicator should attempt to obtain a copy of the prior ALJ or AC decision from the claimant, the representative, or the ALJ or appeals files. If a copy of the prior ALJ or AC decision is available, the DDS adjudicator will review the description of the pertinent evidence in the ALJ's or AC's decision to determine the evidence on which the ALJ or AC based a prior finding(s). The adjudicator will compare this evidence with the evidence obtained in connection with the subsequent claim to determine if the latter evidence is new and material. In some cases, the evidence on which the ALJ or AC based a prior finding will not be clear from the ALJ's or AC's decision. For these cases, there may be instances where additional development (e.g., obtaining a copy of the relevant prior medical report that was cited, but not elaborated upon, in the ALJ or AC decision) may be of assistance in determining whether the evidence obtained in connection with the subsequent claim is new and material. In other instances, the adjudicator will need to make a judgment of whether evidence obtained in connection with the subsequent claim is new and material and, thus, permits a finding different from the prior finding. In such cases, any doubt about whether such evidence is new and material should be resolved in a manner that is favorable to the claimant. Adjudicators must explain in the personalized disability notice, or in the rationale, the basis for adopting or not adopting a prior finding(s).

    If the adjudicator cannot obtain a copy of the prior decision, he or she cannot apply the ARs because there is no way of knowing what the prior findings were. If the prior file has been lost or destroyed and the adjudicator cannot obtain a copy of the prior decision, he or she should: admit all documentation of this into the record; ensure that the current record is fully developed; and issue a decision based on the available evidence of record.