If there are two or more prior claims with final ALJ or AC decisions, adjudicate the
current claim under the Drummond AR in accordance with the instructions below. (See DI 52705.010B.5. and DI 52705.010B.6. for definitions of interim period cases and post-publication cases.)
If the most recent final ALJ or AC decision on a prior claim either predates the Drummond court decision (i.e., was issued before 9/30/97) or concerns a post-publication case
(i.e., the decision was issued on or after 6/1/98, the effective date of the Drummond AR), consider the findings described in DI 52705.010B.1.a. or DI 52705.010B.1.b., as appropriate, which are contained in that most recent ALJ or AC decision for the
purposes of applying the Drummond AR in the adjudication of the current claim. Adopt any such finding from that ALJ
or AC decision which is not superseded by new and material evidence or by a change
in the law, regulations or rulings affecting the finding or the method for arriving
at the finding. In this situation, it is only necessary to consider the findings from
the more recent final ALJ or AC decision when adjudicating the current claim under
the Drummond AR.
If the most recent final ALJ or AC decision on a prior claim concerns an interim period
case (i.e., the decision was issued during the period from 9/30/97, through 5/31/98)
and there are one or more earlier claims with a final ALJ or AC decision which predates
the Drummond court decision, adjudicate the current claim under the Drummond AR in accordance with the process below. Consider the findings from the most recent
final ALJ or AC decision that predates the Drummond court decision as well as the findings from the final ALJ or AC decision that concerned
the interim period case. If there are two or more pre-Drummond final ALJ or AC decisions, only the most recent of these pre-Drummond decisions will be considered along with the ALJ or AC decision that concerned the
interim period case. (See DI 52706.020C.2. (Dennard AR) for a description of certain circumstances in which it will be necessary to consider
not only the requirements of the Drummond AR, but also the requirements of the Dennard AR, when adjudicating the subsequent title II disability claim (or title XVI adult
disability claim) of an individual who had two or more prior title II disability claims
(or title XVI adult disability claims) with final ALJ or AC decisions which predate
the Drummond court decision.)
First consider the findings described in DI 52705.010B.1.a. or DI 52705.010B.1.b., as appropriate, which are contained in the most recent final ALJ or AC decision
which predates the Drummond court decision. From that pre-Drummond ALJ or AC decision, adopt any such finding which is not superseded by new and material
evidence, either in the ALJ or AC decision that concerned the interim period case
or in the current claim file, or by a change in 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 different than the finding contained in the
most recent pre-Drummond final ALJ or AC decision, determine whether there is new and material evidence in
the current claim file, or whether there has been a change in the law, regulations
or rulings, to justify making a finding different than the finding contained in the
ALJ or AC decision that concerned the interim period case. Adopt such a finding from
the ALJ or AC decision that concerned the interim period case unless such finding
is superseded by new and material evidence or by a change in the law, regulations
or rulings affecting the finding or the method for arriving at the finding.
EXAMPLE: A 47-year-old claimant with a title XVI disability claim currently pending at the
initial level previously received three ALJ decisions on three prior title XVI claims
on 2/2/94, 1/10/96 and 12/15/97. The most recent ALJ decision is the 12/15/97 decision
that concerns an interim period case. Both the 2/94 and 1/96 ALJ decisions predate
the Drummond court's decision of 9/30/97 and, therefore, only the findings from the later of these
two ALJ decisions need be considered in adjudicating the current claim under the Drummond AR. (However, any findings described in DI 52706.010B.1. (Dennard AR) that are contained in the 2/94 ALJ decision would need to be considered in adjudicating
the current claim under the Dennard AR (see DI 52706.020C.2.).) The ALJ in the 1/96 decision found that the claimant had an RFC for no more than
sedentary work, while the ALJ in the 12/97 decision found that the claimant had an
RFC for the full range of light work. The DDS will determine whether new and material
evidence was submitted in connection with the claim decided in 12/97, or the current
claim that would justify finding an RFC less restrictive than the 1996 sedentary RFC.
If there is new and material evidence to justify changing the 1996 sedentary RFC,
the DDS would then determine whether there is new and material evidence submitted
with the current claim to change the 1997 light RFC. The decisional rationale must
reflect this sequential consideration and, if a prior finding is adopted, the rationale
must clearly indicate the date of the decision from which the finding is being adopted.
It is important to remember that a finding will not be adopted if there has been a
change in the law, regulations or rulings affecting the finding or the method for
arriving at the finding.
NOTE: In the example above, the claim decided in the 12/97 final ALJ decision is a Drummond AR/Dennard AR interim period case as defined in DI 52706.010B.6. Therefore, if application of the Drummond and Dennard ARs to the interim period case could change the 1997 ALJ decision on the claim (see
DI 52706.010C.2.), the interim period case should be referred to ODAR for consideration of possible
readjudication under the two Rulings.