TN 13 (10-09)

DI 27516.010 Disability Determination Services (DDS) Medical Evaluation Criteria to Determine Applicability of Res Judicata

A. Applicability of res judicata

Before applying res judicata to a subsequent Title II disability claim, consider any changes in the disability evaluation criteria resulting from the Social Security Disability Benefits Reform Act of 1984 (P.L. 98-460) and changes to the Listing of Impairments discussed throughout this section.

B. Multiple impairments are alleged

For multiple impairments (regardless of whether the prior determination was based on a not severe impairment), apply res judicata to a subsequent claim if the subsequent claim does not present any new facts and the prior determination was made through the date the nondisability requirements were last met, i.e.:

  • the date last insured (DLI),

  • the ending date of the prescribed period for a disabled widow(er) claim,

  • the attainment of age 22 for a childhood disability beneficiary (CDB).

See also:

DI 27516.005 - for completing the SSA-831-U3 (Disability Determination and Transmittal).

C. Not severe impairments

When the prior claim was denied because the impairment was not severe, apply res judicata to a subsequent claim that was filed after a prior denial made through the date the nondisability requirments were last met if the subsequent claim does not present any new facts. For additional information, see DI 27516.010B, in this section.

See also:

DI 27516.005 – Disability Determination Services (DDS) Res Judicata Development and Processing

D. Mental impairments

Use the summary table in DI 27516.010F (in this section) to determine if there has been a less restrictive change in the criteria for evaluating a mental impairment, as the listings were revised on September 20, 2000.

1. Applicable criteria less restrictive

If the listing criteria applicable to the impairment in the prior claim have become less restrictive, prepare a substantive determination on the subsequent claim. For processing instructions, see DI 27516.005D.

2. Applicable criteria not less restrictive

If the listing criteria applicable to the impairment in the prior claim have not become less restrictive, and the prior claim was denied through the date the nondisability requirements were last met, a subsequent claim may be denied based on res judicata, absent any new facts. Prior to making a determination, see the NOTE in DI 27516.010F (in this section) regarding listing criteria that have not become less restrictive.

NOTE: If a subsequent claim presents new facts not considered in the determination or decision on the prior claim, prepare a substantive determination.

REMINDER: If the claimant was unrepresented when the prior final determination was made, and the evidence reveals the presence of a mental condition, res judicata and the rules for administrative finality are not applied if the evidence shows that mental incapacity, or other good cause, prevented the claimant from timely appealing the prior determination. (See Social Security Ruling 91-5P.) The field office (FO) makes the good cause determination and, if necessary, forwards the file to the DDS for a medical/vocational determination.

E. Physical impairments

Use the summaries in this section to determine if there has been a less restrictive change in the criteria for evaluating an impairment. For changes to the listing of impairments that affect the application of res judicata, see DI 27516.010F (in this section).

1. Applicable criteria less restrictive

If the listing criteria applicable to the impairment in the prior claim have become less restrictive, prepare a substantive determination on the subsequent claim. For processing instructions, see DI 27516.005D.

2. Applicable criteria not less restrictive

If the listing criteria applicable to the impairment in the prior claim have not become less restrictive, and the prior claim was denied through the date the nondisability requirements were last met, a subsequent claim may be denied based on res judicata, absent any new facts. Prior to making a determination, see the NOTE in DI 27516.010F (in this section) regarding listing criteria that have not become less restrictive.

NOTE: If the subsequent claim presents new facts, prepare a substantive determination.

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

Subsequent claims involving the listings shown below 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 below, 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 System (1.00)

  

All musculoskeletal disorders

02/19/02

We so extensively revised the musculoskeletal listings in 2002 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 02/19/02, prepare a new determination for all subsequent claims involving a musculoskeletal impairment.

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.

Respiratory System (3.00)

  

All respiratory disorders

10/07/93

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 10/07/93, 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 System (5.00)

  

Chronic liver disease (e.g., portal, postnecrotic, or biliary cirrhosis; chronic active hepatitis; Wilson's disease)

01/06/86

We revised the listing for evaluating chronic liver disease (5.05) when there is a finding of fluid accumulation in the abdomen in the absence of liver biopsy, and substitute a requirement that fluid accumulation must be present for a longer period of time than is required when a liver biopsy has been obtained.

If the prior claim was denied before 01/06/86 and the determination or decision was made in the absence of a liver biopsy, prepare a substantive determination on a subsequent claim involving chronic liver disease.

Weight loss due to any digestive disorder

12/18/07

We revised listing 5.08 for weight loss due to any digestive disorder. While the listing is not, in general, less restrictive, we are now using body mass index (BMI) instead of weight tables.

If the prior claim was denied before 12/18/07, prepare a new substantive determination for all subsequent claims involving weight loss due to any digestive disorder.

Hematological Disorders (7.00)

  

Sickle cell disease, or one of its variants

01/06/86

We added Chronic anemia to listing 7.05 for sickle cell disease.

If the prior claim was denied before 01/06/1986, prepare a substantive determination on any subsequent claim involving sickle cell disease with findings indicative of chronic anemia if the prior claim was denied before 01/06/86.

Aplastic anemia or hematologic malignancy (excluding acute leukemia)

01/06/86

We added a listing to evaluate aplastic anemia or hematological malignancy (other than acute leukemia) whenever there has been a bone marrow transplant. It provides that a presumption of disability will apply for 12 months after a transplant. We then evaluate the degree of improvement following the transplant, including whether it is sustained. This presumption of disability for 12 months following a bone marrow transplant is less restrictive.

If the prior claim was denied before 01/06/1986, prepare a substantive determination on the subsequent claim involving a bone marrow transplant.

Skin Disorders (8.00)

  

All skin disorders

07/09/04

We revised the listings for evaluation of skin disorders. We added new listings and included a specific time requirement for most listings, which is less restrictive.

If the prior claim was denied before 07/09/04, prepare a new substantive determination for all subsequent claims involving skin disorders.

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 (11.00)

  

Multiple sclerosis

01/06/86

We updated a paragraph to provide criteria for evaluating the impairment of individuals who have no muscle weakness at rest, but do develop muscle weakness on activity resulting from fatigue.

If the prior claim was denied before 01/06/86, prepare a substantive determination on the subsequent claim involving multiple sclerosis with muscle weakness on activity because of fatigue.

Traumatic brain injury

09/20/00

We revised the evidentiary development requirements for evaluating a traumatic brain injury (TBI) under these listings. To adequately assess the severity of the TBI, we may defer adjudication of a TBI claim for up to 6 months post-injury.

If the prior claim was denied before 09/20/00, prepare a new substantive determination for all subsequent claims involving TBI.

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.

Mental Disorders (12.00)

  

Mental Disorders

08/28/85

We extensively revised the mental disorders listings. These changes included severity criteria that are less restrictive.

If the prior claim was denied before 08/28/85, prepare a new substantive determination for all subsequent claims involving a mental disorder.

Mental disorders: Organic mental disorders; schizophrenic, paranoid and other psychotic disorders; affective disorders; somatoform disorders; personality disorders

09/20/00

We revised the listings for the evaluation of these disorders. While these listings are not, in general, less restrictive, we:

  • added new paragraph C criteria for organic mental disorders (12.02) and affective disorders (12.04);

  • revised the paragraph C criteria for schizophrenic, paranoid, and other psychotic disorders (12.03); and

  • revised the paragraph B criteria for somatoform disorders (12.07) and personality disorders (12.08), changing the requirement for three “marked” limitations to two.

If the prior claim was denied after 08/28/85 but before 09/20/00, prepare a new substantive determination for all subsequent claims involving these mental disorders.

Malignant Neoplastic Diseases (13.00)

  

Malignant neoplastic disease of the lungs

01/06/86

We revised the listing for evaluating malignant lung tumors (13.13) to reflect advances in medical knowledge regarding the expected course of squamous cell carcinoma and other histologic (tissue) types of carcinoma. This change has less restrictive criteria for evaluating these tumors.

If the prior claim was denied before 01/06/86, prepare a substantive determination on any subsequent claim involving squamous cell and other histologic types of carcinoma.

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, 113.09C). 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.

Immune System Disorders (14.00)

  

Immune system disorders

07/02/93

We added a separate body system with accompanying listings for immune system disorders (14.00). We incorporated impairments that were previously contained in the multiple body system listings (10.00). Many of these listings include the use of restriction of function to indicate listing-level severity. In addition, they include a listing for human immunodeficiency virus (HIV) infection; however, the standards for documentation have been expanded to permit both definitive and clinical documentation of HIV infection and to include specific manifestations of HIV infection seen in women and children.

If the prior claim was denied before 07/02/93, prepare a substantive determination for all subsequent claims involving an immune system disorder.

Systemic lupus erythematosus (SLE)

02/19/02

We revised the musculoskelatal system listings. This change affected the listing for SLE because it includes a cross-reference to the musculoskeletal listings. While the revised musculoskeletal listings are not, in general, less restrictive, the criteria are different and include the use of functional criteria to establish listing-level severity.

If the prior claim was denied before 02/19/02, prepare a new substantive determination for all subsequent claims involving SLE with joint involvement.

Inflammatory arthritis

02/19/02

We extensively revised the listings for the evaluation of inflammatory arthritis. While the revised listings are not, in general, less restrictive, the criteria are different and include the use of functional criteria to establish listing-level severity.

If the prior claim was denied before 02/19/02, prepare a new substantive determination for all subsequent claims involving inflammatory arthritis.

All immune system disorders except human immunodeficiency virus (HIV) infection

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.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0427516010
DI 27516.010 - Disability Determination Services (DDS) Medical Evaluation Criteria to Determine Applicability of Res Judicata - 04/11/2013
Batch run: 04/11/2013
Rev:04/11/2013