If the criteria in DI 52706.020C.2.a. are met, first consider the findings described in DI 52706.010B.1. (Dennard AR) which are contained in the earliest final ALJ or AC decision with respect to
which the Dennard AR applies. Adopt a finding of the demands of a claimant's past relevant work or
a finding of a claimant's date of birth, education or work experience contained in
that ALJ or AC decision which is not superseded by new and material evidence, either
in a later ALJ or AC decision(s) or in the current claim file, 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) with respect to the current
claim that is different than such finding(s) contained in that final ALJ or AC decision,
and the next later final ALJ or AC decision on a prior claim is a decision with respect
to which the Drummond AR applies, consider whether application of the Drummond AR with respect to the current claim would require the adoption of any of the findings
described in DI 52705.010 B.1.a. (Drummond AR) that are contained in that later ALJ or AC decision. Adopt a finding described
in DI 52705.010 B.1.a. from that later ALJ or AC decision which is not superseded by new and material evidence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. See DI 52705.020 B.2. for applying the Drummond AR.
NOTE: If the application of the Dennard AR with respect to the current claim requires the adoption of a finding from a final
ALJ or AC decision on a prior claim, i.e., there is no new and material evidence in
a later ALJ or AC decision(s) or in the current claim file (and no change in the law,
regulations or rulings) to justify making a different finding, any different finding
of the demands of a claimant's past relevant work or a claimant's date of birth, education
or work experience that is contained in a later ALJ or AC decision need not be considered
for purposes of adjudicating the current claim under the Drummond and Dennard ARs.
EXAMPLE 2:
A 47-year-old claimant with a title XVI disability claim currently pending at the
initial level previously received two ALJ decisions on two prior title XVI adult disability
claims on 2/2/92 and 1/10/96. The findings made by the ALJ in the 2/92 decision included
a finding that the claimant had an RFC for no more than sedentary work and a finding
that the claimant had a high school education. The ALJ in the 1/96 decision found
that the claimant had an RFC for the full range of light work and that the claimant
had a limited education.
The adjudicator of the current claim first will consider whether the application of
the Dennard AR requires the adoption of the finding that the claimant has a high school education
(or other finding described in DI 52706.010 B.1.) that is contained in the 2/92 ALJ decision. With respect to the claimant's educational
level, the DDS adjudicator will determine whether new and material evidence was submitted
in connection with the claim decided in 1/96 or with the current claim that would
justify making a finding with respect to the current claim that is different than
the finding in the 2/92 ALJ decision that the claimant has a high school education.
If there is new and material evidence to justify making a finding different than the
2/92 finding of a high school education, the DDS adjudicator would then determine
whether there is new and material evidence submitted in connection with the current
claim to justify making a finding with respect to the current claim that is different
than the finding by the ALJ in the 1/96 decision that the claimant has a limited education.
If no new and material evidence was submitted in connection with the claim decided
in 1/96 or with the current claim to justify making a finding different than the finding
in the 2/92 ALJ decision that the claimant has a high school education, the adjudicator
will adopt such finding from the 2/92 ALJ decision for purposes of adjudicating the
current claim under the Dennard AR. The adjudicator will adopt such finding unless there has been a change in the
law, regulations or rulings affecting the finding or the method for arriving at the
finding.
The finding in the 2/92 ALJ decision that the claimant had an RFC for no more than
sedentary work is not a finding to which the Dennard AR applies. Such finding, therefore, is not considered when applying the Dennard AR in the adjudication of the current claim. In addition, because both the 2/92 and
1/96 ALJ decisions predate the Drummond court decision (i.e., were issued before 9/30/97), the requirement of the Drummond AR to adopt findings described in DI 52705.010
B.1.a. (including a finding of a claimant's RFC) from a final ALJ or AC decision on a prior
claim would apply only with respect to such findings that are contained in the 1/96
ALJ decision, i.e., the most recent pre-Drummond ALJ decision. It would not apply with respect to any such findings that are contained
in the 2/92 ALJ decision. See DI 52705.020 B.2.c.
After applying the Dennard AR with respect to prior findings described in DI 52706.010B.1., the adjudicator next will consider whether the application of the Drummond AR requires
the adoption of the finding that the claimant had an RFC for the full range of light
work (or other finding described in DI 52705.010B.1.a.) that is contained in the 1/96 ALJ decision. (When considering other findings described
in DI 52705.010B.1.a. contained in the 1/96 ALJ decision, exclude any finding to which the Dennard AR also applies if a finding on the same factual issue (i.e., the demands of the
claimant's past relevant work or the claimant's date of birth, education or work experience)
is being adopted from the 2/92 ALJ decision based on the application of the Dennard AR. See the NOTE preceding Example 2.) With respect to the claimant's RFC, the DDS
adjudicator will determine whether there is new and material evidence submitted in
connection with the current claim to justify making a finding different than the 1/96
finding that the claimant had an RFC for the full range of light work. If there is
no new and material evidence in connection with the current claim (and there has been
no change in the law, regulations or rulings) to justify making a finding different
than the finding of the claimant's RFC in the 1/96 ALJ decision, the adjudicator will
adopt such finding from the 1/96 ALJ decision for purposes of adjudicating the current
claim.
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 Example 2, the claim decided in the 1/96 final ALJ decision is a Dennard AR-only interim period case as defined in DI 52706.010B.5. If application of the Dennard AR to the 1/10/96 ALJ decision could change that decision, the interim period case
should be referred to ODAR for consideration of possible readjudication under the
Dennard AR. See DI 52706.010C.1.
EXAMPLE 3:
Same facts as in Example 2, except that, in addition to the prior claims that were
decided in final ALJ decisions on 2/2/92 and 1/10/96, the claimant had two earlier
title XVI adult disability claims which were denied at step five of the sequential
evaluation process in final ALJ decisions on 7/7/87 and 12/15/89. Both the 7/87 and
12/89 ALJ decisions predate the Dennard court decision of 4/10/90. Therefore, only the findings from the later of these two
pre-Dennard ALJ decisions (the 12/89 ALJ decision) need be considered in adjudicating the current
claim under the Dennard AR. The requirement of the Dennard AR to adopt certain prior findings would not apply to findings contained in the 7/87
ALJ decision. This is because the findings from the 7/87 ALJ decision would not have
been binding in the adjudication of the subsequent claim that was decided by the ALJ
in 12/89 since the 12/89 decision predated the Dennard court decision.
Among other things, the ALJ in the 12/89 decision found that the claimant has a limited
education. The adjudicator of the current claim first will consider whether the application
of the Dennard AR requires the adoption of the finding that the claimant has a limited education
(or other finding described in DI 52706.010B.1.) that is contained in the 12/89 ALJ decision. With respect to the claimant's educational
level, the DDS adjudicator will determine whether new and material evidence was submitted
in connection with the claim decided in 2/92 or 1/96 or with the current claim that
would justify making a finding with respect to the current claim that is different
than the finding in the 12/89 ALJ decision that the claimant has a limited education.
If there is new and material evidence to justify making a finding different than the
12/89 finding of a limited education, the DDS adjudicator would then determine whether
there is new and material evidence submitted in connection with the claim decided
in 1/96 or with the current claim to justify making a finding with respect to the
current claim that is different than the finding by the ALJ in the 2/92 decision that
the claimant has a high school education.
If no new and material evidence was submitted in connection with the claim decided
in 2/92 or 1/96 or with the current claim to justify making a finding different than
the finding in the 12/89 ALJ decision that the claimant has a limited education, the
adjudicator will adopt such finding from the 12/89 ALJ decision for purposes of adjudicating
the current claim under the Dennard AR. The adjudicator will adopt such finding unless there has been a change in the
law, regulations or rulings affecting the finding or the method for arriving at the
finding.
Application of the Dennard AR and the Drummond AR in the adjudication of the current claim would proceed as in Example 2 above.
NOTE: In Example 3, the claim decided in the 2/2/92 final ALJ decision and the claim decided
in the 1/10/96 final ALJ decision are Dennard AR-only interim period cases as defined in DI 52706.010B.5. If application of the Dennard AR to the claim decided in the 2/2/92 final decision or the claim decided in the
1/10/96 final decision could change the decision on such claim, the interim period
case(s) should be referred to ODAR for consideration of possible readjudication under
the Dennard AR. See DI 52706.010C.1.