There are certain circumstances when it will be necessary to consider the requirements
of the Dennard AR, as well as the requirements of the Drummond AR, when determining whether application of the two Rulings could change the final
determination or decision on a claim in a Drummond AR/Dennard AR interim period case. These circumstances arise when:
-
•
The claim that was adjudicated in the final determination or decision in the Drummond AR/Dennard AR interim period case was preceded by two or more earlier disability claims of the
individual under the same title of the Act with final ALJ or AC decisions that predate
the Drummond court decision (i.e., were issued prior to 9/30/97);
-
•
The final ALJ or AC decisions on the earlier claims contained findings described in
DI 52706.010B.1. (i.e., findings to which the Dennard AR would apply); and
-
•
One or more of the final ALJ or AC decisions is dated on or after 4/10/90 (the date
of the Dennard court decision).
In these circumstances, the requirement of the Drummond AR to adopt prior findings described in DI 52705.010B.1.a. would apply only to such findings that are contained in the most recent pre-Drummond final ALJ or AC decision on a prior claim (see DI 52705.020B.2.a.). However, the requirement of the Dennard AR to adopt certain findings from a final ALJ or AC decision on a prior claim would
apply not only to findings described in DI 52705.010B.1. that are contained in the most recent pre-Drummond final ALJ or AC decision, but also to findings described in DI 52706.010B.1. that are contained in previous final ALJ or AC decisions on earlier claims (including
the most recent pre-Dennard final ALJ or AC decision, if any).
EXAMPLE 1
An individual's title II disability claim was denied by the DDS at the initial level
on 1/21/98, and there was no appeal. Two previous title II disability claims of the
individual were denied in final ALJ decisions in 4/92 and 7/95. The claim denied by
the DDS in the final determination dated 1/21/98 is a Drummond AR/Dennard AR interim period case. If the individual requests readjudication of the claim as
provided in DI 52706.010C.2.b. (or if the interim period case is discovered in the course of development/adjudication
by the DDS of a current claim of the individual as provided in DI
52706.010C.2.c.), the DDS adjudicator must consider whether application of the two Rulings could
change the 1/21/98 final determination. For this purpose, the requirement of the Drummond AR to adopt prior findings described in DI 52705.010B.1.a. Would apply to such findings contained in the 7/95 ALJ decision (i.e., the most recent
pre-Drummond final ALJ decision).
Because the prior findings to which the Drummond AR applies (see DI 52705.010B.1.a.) encompass the more limited, prior findings to which the Dennard AR applies (see DI 52706.010B.1.), there is no need to consider the Dennard AR separately with respect to the prior findings contained in the 7/95 ALJ decision.
However, the requirement of the Dennard AR to adopt certain prior findings will apply, by itself, to findings described in
DI 52706.10B.1. that are contained in the 4/92 ALJ decision.
To determine whether application of the two Rulings could change the 1/21/98 final
determination on the claim in the interim period, the adjudicator first would consider
whether application of the Dennard AR with respect to such claim would require the adoption of any of the findings described
in DI 52706.010B.1. (i.e., 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) that are contained
in the 4/92 ALJ decision. For purposes of applying the Dennard AR with respect to the claim in the interim period, the adjudicator will adopt any
such finding from the 4/92 ALJ decision which is not superseded by new and material
evidence, either in the 7/95 ALJ decision or in the 1/98 determination on the claim
in the interim period, or by a change in the law, regulations or rulings affecting
the finding or the method for arriving at the finding. If there is new and material
evidence, or there has been a change in the law, regulations or rulings, to justify
making a finding(s) described in DI 52706.010B.1. with respect to the interim period claim that is different than such finding(s)
contained in the 4/92 decision, the adjudicator then would consider whether application
of the Drummond AR with respect to the interim period claim would require the adoption of any of
the findings described in DI 52705.010B.1.a. that are contained in the 7/95 ALJ decision. For purposes of applying the Drummond AR with respect to the claim in the interim period, the adjudicator would adopt any
such finding (including a finding of the claimant's RFC or other finding described
in DI 52705.010
B.1.a.) from the 7/95 ALJ decision unless such finding is superseded by new and material
evidence in the 1/98 determination or by a change in the law, regulations, or rulings
affecting the finding or the method for arriving at the finding. If the application
of the two Rulings in this manner could change the 1/98 final determination on the
claim in the interim period, such claim should be readjudicated accordingly under
the ARs.
NOTE: In the example above, the claim decided in the 7/95 final ALJ decision is a Dennard AR-only interim period case (see DI 52706.010B.5. and DI 52706.010C.1.). Therefore, if application of the Dennard AR to such claim could change the 7/95 ALJ decision on the claim, such Dennard AR-only interim period case should be referred to ODAR for consideration of possible
readjudication under the Dennard AR.
EXAMPLE 2
Same facts as in example 1, except that the individual had filed two additional, earlier
title II disability claims that were denied in final ALJ decisions in 2/87 and 11/89.
Again, the DDS adjudicator must consider whether application of the two Rulings could
change the 1/21/98 final determination on the claim in the Drummond AR/Dennard AR interim period. For this purpose, as explained in example 1, the requirement of
the Drummond AR to adopt prior findings described in DI 52705.010B.1.a. would apply to such findings (including a finding of the claimant's RFC) contained
in the 7/95 ALJ decision. The requirement of the Dennard AR to adopt certain prior findings would apply, by itself, to findings described
in DI 52706.010B.1. that are contained in the 11/89 ALJ decision (the most recent pre-Dennard ALJ decision) as well as to findings described in DI 52706.010B.1. that are contained in the 4/92 ALJ decision.
The requirement of the Dennard AR to adopt certain prior findings would not apply, however, to findings contained
in the 2/87 ALJ decision. This is because the findings from the 2/87 ALJ decision
would not have been binding in the adjudication of the subsequent claim that was decided
by the ALJ in 11/89 since the 11/89 decision predated the Dennard court decision.
To determine whether application of the two Rulings could change the 1/21/98 final
determination on the claim in the interim period, the adjudicator first would consider
whether application of the Dennard AR with respect to such claim would require the adoption of any of the findings described
in DI 52706.010B.1. that are contained in the 11/89 ALJ decision. For purposes of applying the Dennard AR with respect to the claim in the interim period, the adjudicator would adopt any
such finding from the 11/89 ALJ decision unless such finding is superseded by new
and material evidence in the 4/92 or 7/95 ALJ decision or the 1/98 DDS determination,
or by a change in the law, regulations or rulings affecting the finding or the method
for arriving at the finding. If there is new and material evidence, or there has been
a change in the law, regulations or rulings, to justify making a finding(s) described
in DI 52706.010B.1. with respect to the interim period claim that is different than such finding(s)
contained in the 11/89 ALJ decision, the adjudicator will consider whether application
of the Dennard AR with respect to the interim period claim would require the adoption of any of
the findings described in DI 52706.010B.1. that are contained in the 4/92 ALJ decision. From this point, the adjudicator
would proceed as in example 1 above, applying the Dennard AR and then the Drummond AR in the specific manner described in example 1.