Effective Dates: 03/24/2025 - Present Previous | Next

TN 24 (03-25)

DI 27516.010 The Principle of Res Judicata and Changes in Policy

A. Res judicata basic policy

For a definition of res judicata see DI 27516.001A.

If res judicata applies to a subsequent filing, to deny the claim without making a substantive determination the Disability Determination Services (DDS) will follow the procedures in DI 27516.005E. 

If any of the exceptions to res judicata apply, the DDS will make a new substantive determination; if a denial is appropriate follow the procedures in DI 27516.005.C.1. and if a favorable determination is appropriate follow DI 27516.005.C.2.

Because there are no potential denials after non-disability requirements for entitlement were last met for a Title XVI claim, res judicata policy will only apply to Title II claims as outlined in these instructions

  • •

    DI 27516.001 Field Office Res Judicata Development and Processing

  • •

    DI 27516.005 Disability Determination Services Res Judicata Development and Processing

  • •

    DI 27516.010 The Principle of Res Judicata and Changes in Policy

Before applying res judicata to a subsequent Title II disability claim, consider whether:

  • •

    An exception applies to res judicata listed in DI 27516.001B,

    OR

  • •

    The claimant alleges new and material evidence, and the DDS must develop or review that evidence to determine whether res judicata applies, see DI 27516.005B,

    OR

  • •

    The FO cannot locate the prior folder for the denial after the date the non-disability requirements for entitlement were last met, see DI 27516.005C,

    OR

  • •

    Since the denial after the date the non-disability requirements for entitlement were last met, there has been a change in policy that makes the requirements for establishing disability less restrictive (as outlined in this section).

B. Work relevancy changes in policy

On June 22, 2024, we implemented rules that provide a new and less restrictive definition of PRW; see 89 FR 27653 ; 20 CFR 404.1560(b)(1) and Social Security Ruling (SSR) 24-2p.

The new PRW definition is less restrictive than the prior PRW definition in two ways:

  • •

    The relevant period considers 5 years rather than 15 years of past work, and

  • •

    Work that started and stopped in fewer than 30 calendar days is not PRW.  

The FO will forward claims denied after the date non-disability requirements were last met and before 6/22/2024, the effective date of the less restrictive policy.

The FO will alert the DDS to potential res judicata determinations by adding the following message to the certified electronic folder (CEF):

“DDS jurisdiction: potential denial on basis of res judicata. DDS review necessary.”

1. Regulation basis codes for DDS consideration of res judicata

The FO will send cases that meet the following criteria to DDS for consideration of res judicata:

Disability Insurance Benefits (DIB) and Disabled Widow(er)’s Benefits (DWB) claims with regulation basis codes:  

  • •

    H2 Capacity for substantial gainful activity (SGA) - Any Relevant Past Work (earnings requirement (ER) or prescribed period (PP) last met prior to date of current decision)

    OR

    J2 Capacity for SGA - Other Than Relevant Past Work (ER or PP last met prior to date of current decision)

And Childhood Disability Beneficiary (CDB) claims with regulation basis codes:

  • •

    G1 Capacity for SGA – Vocational Considerations (CDB claim, or reentitlement CDB claim and reentitlement period (RP) last met on or after date of current decision)

    OR

    G2 Capacity for SGA - Vocational Considerations(Reentitlement CDB claim and RP last met prior to date of current decision

Since the G1 regulation basis code for CDB claims does not provide information about whether the claim was denied after age 22, the DDS must determine whether the denial was made after the date non-disability requirements were last met for CDB cases.

If the CDB claim was not denied after age 22, there is no res judicata issue. The DDS will process a subsequent filing as a standard CDB claim.

If the G1 denial was based on a reentitlement claim and the reintitlement period was last met on or after the date of the prior determination or decision, there is no res judicata issue. The DDS will process the subsequent filing as a standard CDB reintitlement claim.  

A G2 regulation basis code reflects a denial after the end of the reentitlement period. G2 denials  have a potential res judicata issue because the denial was made after the date the reintitlement non-disability requirements were last met.  

2. DDS procedures if prior determination or decision found the claimant could do PRW

If the prior CDB or DWB claim was denied with an RBC of H2, the agency determined the claimant could perform PRW.

If the prior CDB claim was denied with an RBC of G1 or G2 and the determination was based on the ability to do PRW, follow the instructions in this section.

Review the documentation in the prior claim file. A new substantive determination is required if the prior determination or decision found:

  • •

    The claimant could perform PRW that was last performed before the 5-year relevant period reflected in the new regulatory definition (see SSR 24-2p, Question 2 describing the relevant period for claims with expired periods of entitlement),

    OR

  • •

    The claimant could perform PRW that began and ended in fewer than 30 calendar days.

If the claim was denied based on PRW within the relevant 5-year period and the PRW was performed for a period spanning at least 30 calendar days, then res judicata may be a basis for denial of the subsequent claim, provided that the usual requirements for applying res judicata are satisfied.

For instructions on how to process a denial with an RBC of S1 (res judicata), see DI 27516.005E.

If the prior claim was denied with an RBC of G2 (CBD) or J2 (DWB), the agency determined the claimant could adjust to other work in the national economy. If the prior CDB claim was denied after the date disability requirements were last met with an RBC of G1 or G2 and the determination was based on ability to adjust to other work, follow the instructions in this section.

3. DDS procedures if prior determination or decision found the claimant could adjust to other work

If the prior claim was denied with an RBC of G2 (CBD) or J2 (DWB), the agency determined the claimant could adjust to other work in the national economy. If the prior CDB claim was denied after the date disability requirements were last met with an RBC of G1 or G2 and the determination was based on ability to adjust to other work, follow the instructions in this section.

  1. a. 

    The new definition of PRW produces a change in work experience category that could be material to the determination in the subsequent claim.

    Res judicata does not apply

    IF the prior determination or decision found the individual’s work experience was:

    AND the prior claim was denied using (directed or as a framework) rule:

    AND the claimant’s work experience category under current rules is:

    Skilled or semiskilled, skills transferable

    201.03 201.07 201.11 201.15 202.03 202.07

    Skilled or semiskilled, skills not transferable

    OR

    Unskilled

    OR

    None

    Unskilled

    203.03 203.11

    None

     

     

     
  2. b. 

    In the prior claim the claimant had limited education, was age 55 or older and had work experience, but for the new claim, considering the current definition of PRW, they have no PRW.

    NOTE: Because the claimant has no PRW under current rules, they would meet the no work profile, see SSR 24-1p.

If the criteria in DI 27516.010B.2.c do not apply, the new definition of PRW would not yield an outcome different from the prior determination or decision. In that case, res judicata may be a basis for denial of the subsequent claim, provided that the usual requirements for applying res judicata are satisfied.

For instructions on how to make a new determination if res judicata does not apply, see DI 27516.005E.

C. Changes to the listing of impairments that affect the application of res judicata

Subsequent claims involving the listings shown in the table should not be denied based on res judicata if the determination or decision on the prior claim was made before the date of the listing change.

NOTE: If a listing for a particular impairment is not in the table, a less restrictive change was not made to the listing of impairments and a subsequent claim involving the impairment may be denied based on res judicata, absent new facts or issues.

Impairments/Listings Involved

Date of Change

Explanation and Action

Musculoskeletal Disorders (1.00)

 

 

All musculoskeletal disorders except amputation of both extremities at or above the wrists, hemipelvectomy, or hip disarticulation

04/02/2021

We so extensively revised the musculoskeletal listings in 2021 that while they are not, in general, less restrictive than the prior listings, the issues are different and include the use of different functional criteria to indicate listing-level severity.

If the prior claim was denied before 04/02/2021, prepare a new determination for all subsequent claims involving a musculoskeletal impairment other than amputation of both upper extremities at or above the wrists, hemipelvectomy, or hip disarticulation.

Special Senses and Speech (2.00)

 

 

All hearing impairments

08/02/10

We revised the listings for hearing impairments by removing the requirement for testing with hearing aids and replacing listings 2.08 and 102.08 with new listings 2.10 and 102.10, respectively.

If the prior claim was denied before 08/02/10, prepare a new substantive determination for all subsequent claims involving hearing loss.

Vision

04/29/13

If the prior claim was denied before 04/29/2013, prepare a new substantive determination for all subsequent claims involving vision.

Respiratory Disorders (3.00)

 

 

All respiratory disorders

10/07/16

We revised the listings for respiratory disorders. While the listings are not, in general, less restrictive, we added new criteria.

If the prior claim was denied before 10/07/16, prepare a new substantive determination for any subsequent claim involving a respiratory impairment.

Cardiovascular System(4.00)

 

 

All cardiovascular disorders

02/10/94

We revised the cardiovascular listings so extensively that, while they are not, in general, less restrictive, the issues are different.

If the prior claim was denied before 02/10/94, prepare a new determination for all subsequent claims involving a cardiovascular impairment.

Cardiovascular disorders: chronic heart failure; ischemic heart disease; peripheral arterial disease

04/13/06

We revised the adult listings for chronic heart failure (4.02), ischemic heart disease (4.04), and peripheral arterial disease (4.12). While the listings are not, in general, less restrictive, we added new criteria or revised existing criteria to reflect technological improvements.

If the prior claim was denied before 04/13/06, prepare a new substantive determination for all subsequent claims involving chronic heart failure, ischemic heart disease, or peripheral arterial disease.

Digestive Disorders (5.00)

 

 

All digestive disorders

10/06/23

We so extensively revised the digestive disorders listings in 2023 that, while they are not, in general, less restrictive than the prior listings, we added new criteria or revised existing criteria to reflect technological improvements.

If the prior claim was denied before 10/06/23, prepare a new substantive determination for all subsequent claims involving any digestive disorder.

Hematological Disorders (7.00)

 

 

All hematological disorders

05/18/15

We so extensively revised the hematological disorders listings in 2015 that, while they are not, in general, less restrictive than the prior listings, the issues are different and include the use of functional criteria to indicate listing-level severity.

If the prior claim was denied before 05/18/15, prepare a new determination for all subsequent claims involving a hematological disorder impairment.

Skin Disorders (8.00)

 

 

All skin disorders except for Xeroderma Pigmentosum

10/06/23

We so extensively revised the skin disorders listings in 2023 that, while they are not, in general, less restrictive than the prior listings, the issues are different and include the use of different functional criteria to indicate listing-level severity.

If the prior claim was denied before 10/06/23, prepare a new substantive determination for all subsequent claims involving skin disorders other than Xeroderma Pigmentosum.

Congenital Disorders That Affect Multiple Body Systems (10.00)

 

 

Non-mosaic Down syndrome in an individual age 18 or older

6/19/00

We added listing 10.06 for non-mosaic Down syndrome.

If the prior claim was denied before 06/19/00, prepare a substantive determination for all subsequent claims involving an individual age 18 or older with non-mosaic Down syndrome.

Neurological Disorders (11.00)

 

 

Amyotrophic lateral sclerosis (ALS)

08/28/03

We revised the listing criteria for evaluating ALS under listing 11.10. We will find disability with medical evidence showing that the claimant has ALS.

If the prior claim was denied before 08/28/03, prepare a new substantive determination for all subsequent claims involving ALS.

All neurological disorders except for ALS

09/29/16

We comprehensively revised the listings for evaluating neurological disorders. We added new listings, removed 3 listings and included new functional criteria for most listings.

If the prior claim was denied before 09/29/16, prepare a new substantive determination for all subsequent claims involving a neurological disorder other than ALS.

Mental Disorders (12.00)

 

 

Mental Disorders

01/17/17

We extensively revised the mental disorders listings. While these listings are not, in general, less restrictive, we extensively revised the areas of mental functioning considered in the severity criteria.

If the prior claim was denied before 01/17/17, prepare a new substantive determination for all subsequent claims involving a mental disorder.

Cancer (13.00)

 

 

Malignant neoplastic disease of the esophagus

01/06/86

We revised the listing for evaluating tumors located in the lower half of the esophagus (13.16) to remove the requirement for metastatic disease.

If the prior claim was denied before 01/06/86, prepare substantive determination on subsequent claim involving a tumor located in the lower half of esophagus if the prior claim was denied before 01/06/86.

Malignant neoplastic disease of the gallbladder

01/06/86

We revised the criteria for evaluation of carcinoma of the bile ducts to require less extension of the tumors. This change is less restrictive.

If the prior claim was denied before 01/06/86, prepare a substantive determination on the subsequent claim involving carcinoma of the bile ducts if the prior claim was denied before 01/06/86.

Malignant neoplastic disease of the penis

01/06/86

We added new listings to provide standards for tumors of the penis and vulva. (The listing for tumors of the penis was 13.29 from 01/06/86 to 07/08/04. It was renumbered to 13.26 beginning 07/09/04.)

If the prior claim was denied before 01/06/86, prepare a substantive determination on the subsequent claim involving tumors of the penis.

  • •

    Malignant neoplastic disease of: soft tissue of the head and neck; skin; breast; skeletal system; lungs; small intestine; kidneys, adrenals, or ureters; female genital tract

  • •

    Malignant neoplastic disease treated by bone marrow or stem cell transplantation

  • •

    Leukemia

  • •

    Multiple myeloma

  • •

    Primary site unknown after appropriate search

12/15/04

We revised the listings for these disorders (13.02C, 13.02E, 13.03A, 13.03B2, 13.06, 13.07, 13.10A, 13.11D, 13.14A, 13.17A, 13.21A, 13.23, 13.27, and 13.28). While these listings are not, in general, less restrictive, we added criteria to recognize the length and debilitating effects of treatment for some malignancies. We also:

  • •

    added criteria for other types of tumors that have a similar prognosis as those already in the listings;

  • •

    revised the criteria for multiple myeloma to clarify that this listing includes all listing-level manifestations of the disease; and

  • •

    added criteria for tumors for which the site of origin cannot be determined.

If the prior claim was denied before 12/15/04, prepare a new substantive determination for all subsequent claims involving these malignant neoplastic diseases.

Malignant neoplastic diseases of: skin; thyroid gland; breast; lungs; female genital tract

11/5/09

We have revised the listings for these disorders (13.03B, 13.09C, 13.10B, 13.14C, 13.23C). While these listings may not, in general, be less restrictive, we added criteria to recognize the length and debilitating effects of treatment for some malignancies. We also added criteria for evaluating malignant neoplastic diseases of the skin, thyroid gland, and breast.

If the prior claim was denied before 11/5/09, prepare a new substantive determination for all subsequent claims involving these malignant neoplastic diseases.

Cancer

07/20/15

We have revised the listings and added some new listings for these disorders (13.02, 13.03, 13.05, 13.06, 13.10, 13.12, 13.13, 13.15, 13.16, 13.17, 13.18, 13.20, 13.22, 13.23, 13.24, 13.29). While these listings may not, in general, be less restrictive, we added criteria to recognize the unfavorable prognoses and length and debilitating effects of treatment for some malignancies.

If the prior claim was denied before07/20/15, prepare a new substantive determination for all subsequent claims involving these malignant neoplastic diseases.

Immune System Disorders (14.00)

 

 

All immune system disorders except human immunodeficiency virus (HIV) infection, systemic sclerosis, polymyositis and dermatomysitis, and inflamatory arthritis

06/16/08

We revised the listings for these disorders by either making them less restrictive or making major changes that result in the listing criteria being significantly different. For example, in some listings, we added functional criteria to indicate listing-level severity.

If the prior claim was denied before 06/16/08, prepare a new substantive determination for all subsequent claims involving these immune system disorders listings.

Human immunodeficiency virus (HIV) Infection

 

 

 

 

 

 

Systemic sclerosis, polymyositis and dermatomyositis, and inflammatory arthritis

01/17/17

 

 

 

 

 

 

 

04/02/2021

We revised the listing used to evaluate human immunodeficiency virus (HIV) infection. While the new listing is not, in general, less restrictive, we have made a number of significant changes. We have removed many criteria and added new criteria to reflect medical advances and changes in expected outcomes for individuals with HIV infection.

If the prior claim was denied before 01/17/17, prepare a substantive determination for all subsequent claims involving symptomatic HIV infection.

We replaced the musculoskeletal functional criteria used to indicate listing-level severity in these listings. While they are not, in general,less restrictive, the issues are different.

If the prior claim was denied before 04/02/21, prepare a new determination for all subsequent claims involving systemic sclerosis, polymyositis and dermatomyositis, and inflammatory arthritis
To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0427516010
DI 27516.010 - The Principle of Res Judicata and Changes in Policy - 03/24/2025
Batch run: 03/24/2025
Rev:03/24/2025