[Federal Register Volume 63, Number 104 (Monday, June 1, 1998)]
[Notices]
[Pages 29771-29773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14265]
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SOCIAL SECURITY ADMINISTRATION
[Social Security Acquiescence Ruling
98-4(6)]
Drummond v. Commissioner of Social Security; Effect of Prior
Findings on Adjudication of a Subsequent Disability Claim Arising Under
the Same Title of the Social Security Act--Titles II and XVI of the
Social Security Act
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Acquiescence Ruling.
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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of
Social Security gives notice of Social Security Acquiescence Ruling 98-
4(6).
EFFECTIVE DATE: June 1, 1998.
FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401
Security Boulevard, Baltimore, MD 21235, (410) 965-1695.
SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
A Social Security Acquiescence Ruling explains how we will apply a
holding in a decision of a United States Court of Appeals that we
determine conflicts with our interpretation of a provision of the
Social Security Act (the Act) or regulations when the Government has
decided not to seek further review of that decision or is unsuccessful
on further review.
We will apply the holding of the Court of Appeals' decision as
explained in this Social Security Acquiescence Ruling to claims at all
levels of administrative adjudication within the Sixth Circuit. This
Social Security Acquiescence Ruling will apply to all determinations
and decisions made on or after June 1, 1998. If we made a determination
or decision on your application for benefits between September 30,
1997, the date of the Court of Appeals' decision, and (Insert the
Federal Register publication date), the effective date of this Social
Security Acquiescence Ruling, you may request application of the Social
Security Acquiescence Ruling to your claim if you first demonstrate,
pursuant to 20 CFR 404.985(b) or 416.1485(b), that application of the
Ruling could change our prior determination or decision.
If this Social Security Acquiescence Ruling is later rescinded as
obsolete, we will publish a notice in the Federal Register to that
effect as provided for in
[[Page 29772]]
20 CFR 404.985(e) or 416.1485(e). If we decide to relitigate the issue
covered by this Social Security Acquiescence Ruling as provided for by
20 CFR 404.985(c) or 416.1485(c), we will publish a notice in the
Federal Register stating that we will apply our interpretation of the
Act or regulations involved and explaining why we have decided to
relitigate the issue.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security - Disability Insurance; 96.002 Social Security - Retirement
Insurance; 96.004 Social Security -Survivors Insurance; 96.005 -
Special Benefits for Disabled Coal Miners; 96.006 - Supplemental
Security Income.)
Dated: April 10, 1998.
Kenneth S. Apfel,
Commissioner of Social Security.
Acquiescence Ruling 98-4(6)
Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir.
1997)--Effect of Prior Findings on Adjudication of a Subsequent
Disability Claim Arising Under the Same Title of the Social Security
Act--Titles II and XVI of the Social Security Act.
Issue: Whether, in making a disability determination or decision on
a subsequent disability claim with respect to an unadjudicated period,
where the claim arises under the same title of the Social Security Act
(the Act) as a prior claim on which there has been a final decision by
an Administrative Law Judge (ALJ) or the Appeals Council, the Social
Security Administration (SSA) must adopt a finding of a claimant's
residual functional capacity, or other finding required under the
applicable sequential evaluation process for determining disability,
made in the final decision by the ALJ or the Appeals Council on the
prior disability claim.1
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\1\ Although Drummond was a title II case, similar principles
also apply to title XVI. Therefore, this Ruling extends to both
title II and title XVI disability claims.
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Statute/Regulation/Ruling Citation: Sections 205(a) and (h) and
702(a)(5) of the Social Security Act (42 U.S.C. 405 (a) and (h) and
902(a)(5)), 20 CFR 404.900, 404.957(c)(1), 416.1400, 416.1457(c)(1).
Circuit: Sixth (Kentucky, Michigan, Ohio, Tennessee)
Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir.
1997).
Applicability of Ruling: This Ruling applies to determinations or
decisions at all administrative levels (i.e., initial, reconsideration,
ALJ hearing and Appeals Council).
Description of Case: Grace Drummond applied for disability
insurance benefits on July 6, 1987, claiming a disability onset date of
November 17, 1985. The claim was denied initially and upon
reconsideration. A hearing was held before an ALJ who concluded that
the claimant was not disabled and denied her claim. The ALJ found that
Ms. Drummond was unable to perform her past relevant work but retained
the residual functional capacity for sedentary work.
Ms. Drummond filed a subsequent application for disability
insurance benefits on June 21, 1989. This claim was denied initially
and again upon reconsideration. After a hearing was held, an ALJ found
that the claimant suffered from combined musculoskeletal and multiple
body system impairments but retained the residual functional capacity
for medium level work and could perform her past relevant work as a
textile machine operator. Accordingly, the ALJ found that Ms. Drummond
was not disabled. After the Appeals Council denied the claimant's
request for review, she sought judicial review. The United States
District Court for the Eastern District of Kentucky granted summary
judgment to SSA finding that substantial evidence supported SSA's
denial of benefits.
On appeal to the Court of Appeals for the Sixth Circuit, Ms.
Drummond argued that, based on principles of res judicata, the first
ALJ's determination that she was limited to sedentary work must be
followed by the second ALJ in the absence of evidence of an improvement
in her condition since the first hearing. Declining to address this
issue initially on appeal, the Sixth Circuit reversed the judgment of
the district court and remanded the case with instructions to remand it
to SSA for further proceedings to determine whether res judicata is
applicable against SSA and, if so, whether there was substantial
evidence to support a finding that the claimant's condition had
improved since the time of her first application.2
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\2\ Drummond v. Secretary of Health and Human Services, No. 92-
5649 (6th Cir. April 26, 1993).
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On remand, after oral argument was held before the Appeals Council
on September 27, 1993, the Appeals Council issued a decision denying
Ms. Drummond's claim for disability insurance benefits. The Appeals
Council found that 42 U.S.C. 405(h) could not be applied against SSA as
a bar to prevent reconsideration of an issue because SSA was not a
party to the benefits determination.
Ms. Drummond sought judicial review of the Appeals Council's
decision and the United States District Court for the Eastern District
of Kentucky affirmed SSA's decision denying disability benefits. The
district court found that ``administrative res judicata does not apply
to the Commissioner when a transitory condition such as health is
involved ....'' The claimant appealed this decision to United States
Court of Appeals for the Sixth Circuit.
Relying on the Fourth Circuit's decision in Lively v. Secretary of
Health and Human Services, 820 F.2d 1391 (4th Cir. 1987), the claimant
argued that res judicata applied and that, absent evidence of an
improvement in her condition, the first ALJ's finding that she had a
residual functional capacity limited to sedentary work was binding on
SSA in deciding her subsequent claim.3 Noting the similarity
between the Lively case and the case at bar, the Sixth Circuit observed
that the court in Lively had relied on ``[p]rinciples of finality and
fundamental fairness drawn from Sec. 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.''4
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\3\ In Lively, the Fourth Circuit held that where a final
decision of SSA after a hearing on a prior disability claim
contained a finding about a claimant's residual functional capacity,
SSA may not make a different finding based on the same evidence when
adjudicating a subsequent disability claim arising under the same
title of the Act and covering a period not adjudicated in the
decision on the prior claim. 820 F.2d at 1392. On July 7, 1994, SSA
published Acquiescence Ruling 94-2(4) at 59 FR 34849 to reflect the
holding in Lively.
\4\ Lively, 820 F.2d at 1392.
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Holding: The Court of Appeals for the Sixth Circuit found the
reasoning of the Lively court persuasive and stated that ``[a]bsent
evidence of an improvement in a claimant's condition, a subsequent ALJ
is bound by the findings of a previous ALJ.'' The court 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. Sec. 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
[[Page 29773]]
concluded that SSA was bound by its previous finding that the claimant
was limited to sedentary work. The Court of Appeals thereupon reversed
the judgment of the district court and remanded with instructions for
the district court to remand the case to SSA for an award of benefits.
Statement as to How Drummond Differs From SSA Policy
Under SSA policy, if a determination or decision on a disability
claim has become final, the Agency may apply administrative res
judicata with respect to a subsequent disability claim under the same
title of the Act if the same parties, facts and issues are involved in
both the prior and subsequent claims. However, if the subsequent claim
involves deciding whether the claimant is disabled during a period that
was not adjudicated in the final determination or decision on the prior
claim, SSA considers the issue of disability with respect to the
unadjudicated period to be a new issue that prevents the application of
administrative res judicata. Thus, when adjudicating a subsequent
disability claim involving an unadjudicated period, SSA considers the
facts and issues de novo in determining disability with respect to the
unadjudicated period.
The Sixth Circuit concluded that where a final decision of SSA
after a hearing on a prior disability claim contains a finding of a
claimant's residual functional capacity, 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 residual
functional capacity.
Explanation of How SSA Will Apply The Drummond Decision Within The
Circuit
This Ruling applies only to disability findings 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, ALJ hearing or Appeals Council level. It
applies only 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, which was made in a final decision
by an ALJ or the Appeals Council on a prior disability
claim.5
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\5\ In making a finding of a claimant's residual functional
capacity or other finding required to be made at a step in the
applicable sequential evaluation process for determining disability
provided under the specific sections of the regulations described
above, an ALJ or the Appeals Council may have made certain
subsidiary findings, such as a finding concerning the credibility of
a claimant's testimony or statements. A subsidiary finding does not
constitute a finding that is required at a step in the sequential
evaluation process for determining disability provided under 20 CFR
404.1520, 416.920 or 416.924.
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When adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the Act as the
prior claim, adjudicators must adopt such a finding from the final
decision by an ALJ or the Appeals Council 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.
[FR Doc. 98-14265 Filed 5-29-98; 8:45 am]
BILLING CODE 4190-29-F