TN 2 (10-91)
DI 22001.040 Evaluating DWB Claims Under Public Law 101-508 (Monthly Benefits for Months After December 1990)
Section 5103 of the Omnibus Budget Reconciliation Act (OBRA) of 1990 (P.L. 101-508) changed the definition of disability for DWB claims to conform with the definition for all other title II and title XVI adult disability claimants. Prior to this change the DWB could be found disabled only if his or her impairment(s) met or equaled the severity of the listings.
The change is effective for entitlement to monthly insurance benefits (and Medicare-only cases) for months after December 1990 based on applications filed January 1, 1991, or later, or pending on that date. Pending claims include all initial and continuing disability (CDR) cases (see DI 28005.005 through DI 28005.110) at all levels of appeal in which a determination or decision has not been made at that level (or if made, is being reopened).
B. Policy - evaluation
No one can receive DWB benefits under the expanded definition of disability for any month earlier than January 1991. (See DI 22001.045 for evaluating DWB claims for months prior to January 1991.) Use the same concepts (not severe, residual functional capacity (RFC) assessments, application of vocational grid rules, etc.) and the same sequential evaluation process (see DI 22001.001 through DI 22001.030) as in any other title II case. Development should proceed as usual using the controlling date as a guide.
If the DWB's impairment(s) meets or equals the severity in the listings, an allowance with a month of entitlement (MOE) prior to January 1991 can be established. (An onset of July 2, 1990, or later will generally result in an MOE January 1991 or later.) If the allowance can only be made based on the application of vocational factors (i.e., inability to do past relevant work or other work), any onset supported by the medical evidence can be established but the month of entitlement (MOE) can be no earlier than January 1991. The onset established by the evidence should be shown on the SSA-831-U5. Do not establish a “fictitious” onset (e.g. July 2, 1990, or August 1, 1990, in order to have a MOE of January 1991 result as this could affect the computation of the DWB's monthly benefits).
Other references for processing DWB claims under the provision of Public Law 101-508 include:
DI 27515.001 and DI 40120.001 regarding adopting medical vocational allowances to DWB claims for MOEs after December 1990.
DI 26510.045 for regulation basis codes to be used in completion of the SSA-831-U5.
DI 26510.095 for special remarks on the SSA-831-U5 where the MOE is restricted to January 1991.
DI 26530.015 and DI 26530.020 for personalized disability notice instructions where the MOE is restricted to January 1991.
C. Policy - deemed disability
Section 5103 also provides for deeming DWB claimants to be disabled if they are eligible for title XVI benefits in the month that all nondisability requirements for DWB are met. The earliest MOE under this provision is January 1991. The provision is also subject to the duration requirement and restrictions against entitlement where the claimant is engaging in SGA. The collateral estoppel provisions in DI 27515.000 and DI 40120.001 will be used in every situation where the deemed disability provision of the law applies.