BASIC (08-00)

DI 52705.010 How the Drummond Acquiescence Ruling (AR) Applies

A. Policy

1. General

AR 98-4(6) requires adjudicators to apply the principles in DI 52705.010A.2. when:

  • The adjudicator is deciding a subsequent disability claim with an unadjudicated period; and

  • The subsequent claim arises under the same title of the Act as a prior disability claim on which there has been a final decision by an administrative law judge (ALJ) or the Appeals Council (AC).

2. What the AR Requires

  1. When adjudicating the subsequent disability claim involving an unadjudicated period, the adjudicator must adopt certain findings, in accordance with DI 52705.010A.2.b. and DI 52705.010A.2.c., contained in the final decision by an ALJ or the AC on the prior disability claim.

  2. The requirement to adopt prior findings when adjudicating the subsequent claim applies, as appropriate, only to:

    • A finding of a claimant's RFC, or other finding required at a step in the sequential evaluation process for determining disability for title II disability claims, or for title XVI disability claims of adults (individuals age 18 or older), as described in DI 52705.010B.1.a.; or

    • A finding required at a step in the sequential evaluation process for determining disability for Title XVI disability claims for children (individuals under age 18), as described in DI 52705.010B.1.b.

  3. The adjudicator must adopt such a finding from the final decision by the ALJ or AC on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless:

    • There is new and material evidence relating to the prior finding; or

    • There has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

3. Prior File Lost or Destroyed and Decision on Prior Claim Is Not Available

If the prior file is lost or has been destroyed and the ALJ or AC decision cannot be located anywhere in SSA or by the claimant, the AR cannot be applied.

NOTE: Generally, files of denied claims are retained in the Federal Records Centers for 5 years.

B. Definitions

1. Finding Required at a Step in the Sequential Evaluation Process for Determining Disability

  1. For individuals claiming title II disability benefits and for adults (individuals age 18 or older) claiming title XVI disability benefits, the applicable sequential evaluation process is set forth in DI 22001.001. For claims of these individuals, a finding required at a step in the sequential evaluation process includes a finding of:

    Step 1

    Whether a claimant is working and, if so,

    Whether the work the claimant is doing constitutes substantial gainful activity (SGA);

    Step 2

    Whether a claimant has an impairment or a combination of impairments that is "severe;"

    Step 3

    Whether a claimant's impairment(s) meets the duration requirement,

    Whether a claimant has an impairment(s) that meets a listed impairment in the Listing of Impairments, and

    Whether a claimant's impairment(s) is medically equal in severity to a listed impairment;

    Step 4

    Whether a claimant worked in the past and, if so,

    Whether the work the claimant did in the past constitutes past relevant work and, if so,

    The claimant's residual functional capacity (RFC), and

    The physical and mental demands of the claimant's past relevant work, and Based on these findings at step 4, whether the claimant can do past relevant work;

    Step 5

    The claimant's RFC,

    The claimant's age,

    The claimant's education,

    The claimant's work experience (including, as appropriate, the skill level of a claimant's past relevant work and whether a claimant's skills are transferable), and

    In certain cases, certain other matters relevant to step 5 (e.g., whether work, having requirements that a person with particular physical and mental abilities and vocational factors can meet, exists in the national economy), and

    Based on these findings at step 5, whether the claimant can do other work.

    NOTE: A finding of whether a claimant can do past relevant work or other work made in a final decision of an ALJ or the AC on a prior disability claim will be adopted only if the adjudicator of the subsequent claim must adopt all of the other above-described findings required at step 4 or step 5, as appropriate, from the ALJ or AC decision.

  2. For children (individuals under age 18) claiming supplemental security income (SSI) benefits based on disability, the applicable sequential evaluation process for determining disability is set forth in DI 25201.005. For claims of children for SSI based on disability, a finding required at a step in the sequential evaluation process includes a finding of:

    Step 1

    Whether a claimant is working and, if so,

    Whether the work the claimant is doing constitutes SGA;

    Step 2

    Whether a claimant has an impairment or a combination of impairments that is "severe;"

    Step 3

    Whether a claimant's impairment(s) meets the duration requirement,

    Whether a claimant has an impairment(s) that meets a listed impairment in the Listing of Impairments,

    Whether a claimant's impairment(s) medically equals the severity of a listed impairment, and

    Whether a claimant's impairment(s) functionally equals the severity of a listed impairment.

    A prior individualized functional assessment cannot be adopted because there has been a change in the law and regulations eliminating the step from the sequential evaluation process for children. Also, a prior finding at step 3 that was based on consideration of former listings sections 112.02B2c(1) or 112.02B2c(2) cannot be adopted because these sections have been eliminated by a change in the law and regulations.

  3. This AR does not apply when the prior ALJ/AC decision was made for an SSI claimant who was then under age 18, but who has since attained age 18 and must be evaluated as an adult.

  4. Generally, findings for unfavorable and partially favorable ALJ/AC decisions are summarized near the end of the decision under a section labeled "Findings" or "Findings of Fact." However, regardless of the format of the ALJ or AC decision, a finding, as described above, must be adopted whenever the requirements for adoption are met.

2. New and Material Evidence

  1. Generally, "new" evidence is evidence that was not in the record before the ALJ or AC at the time of the prior decision. For purposes of the Drummond AR, it includes a new fact that automatically results from the passage of time; e.g., the moving forward of the 15-year period in which past work is relevant or the increase in a claimant's age. Even though such a new fact may constitute new and material evidence relating to a finding of the demands of a claimant's past relevant work at step 4, or a prior finding of a claimant's age at step 5, adjudicators still must adopt an ALJ's or the AC's other finding(s) required at step 4 or step 5 under the /Drummond AR unless there is new and material evidence relating to such other finding(s) or there has been a change in the law, regulations or rulings affecting such finding(s) or the method for arriving at such finding(s).

    NOTE 1: A finding of whether a claimant can do past relevant work made at step 4, or a finding of whether a claimant can do other work made at step 5, will be adopted only under the circumstances described in the NOTE in DI 52705.010B.1.a.

  2. New evidence is "material" if, for the purposes of adjudicating the current claim, it would result in a finding different from the finding made in the prior decision. A finding, such as an RFC assessment, would be different from the finding made in the prior decision if there is new evidence showing that any component of the prior finding has changed. For example, when new evidence shows that a claimant's ability to walk or to concentrate has increased since the prior decision, the finding regarding RFC has changed and need not be adopted.

    NOTE 2: For certain findings required at a step in the sequential evaluation process, a technical outcome is that evidence is also "material" if the basis for the prior finding would change even though the finding would not. An example of this is where new evidence establishes that the claimant no longer has the same combination of impairments that an ALJ or the AC found to be "severe" at step 2 of the sequential evaluation process (for example, because one of the impairments no longer exists), but the claimant nevertheless continues to have a "severe" impairment(s). In effect, the finding is the same as before, but the basis for the finding is different from that for the prior finding and, thus, the prior finding is not being "adopted" in the technical sense.

  3. Adjudicators must not assume that all current evidence or additional evidence acquired after the prior ALJ or AC decision is "new and material evidence" which would obviate the need to obtain the prior ALJ or AC decision and to review, and possibly adopt, the prior findings. In every case, the evidence must first be analyzed to see if it is both "new" and "material" before a conclusion can be reached that a finding need not be adopted under the Drummond AR.

    Under the Drummond AR, new evidence does not have to relate to the period adjudicated in the prior ALJ or AC decision to be "material". This is different from the rules for reopening a prior final determination or decision, under which evidence is "material" only if it relates to the period that was adjudicated in the prior final determination or decision. The new evidence may relate solely to the unadjudicated period covered by the new claim; e.g., new evidence establishes that the claimant's medical condition has worsened or improved since the date of the final decision on the prior claim. It may also relate to both the unadjudicated period and the period previously adjudicated; e.g., new evidence establishes that, beginning before the date of the prior decision and continuing to the present, the claimant's RFC was, and continues to be, more restricted than was found by the ALJ or AC.

    If the prior file has been lost or destroyed, but a copy of the prior ALJ or AC decision is available, the disability determination services (DDS) adjudicator will review the description of the pertinent evidence in the ALJ's or AC's decision to determine the evidence on which the ALJ or AC based a prior finding(s). The adjudicator will compare this evidence with the evidence obtained in connection with the subsequent claim to determine if the latter evidence is new and material. In some cases, the evidence on which the ALJ or AC based a prior finding will not be clear from the ALJ's or AC's decision. For these cases, there may be instances where additional development (e.g., obtaining a copy of the relevant prior medical report that was cited, but not elaborated upon, in the ALJ or AC decision) may be of assistance in determining whether the evidence obtained in connection with the subsequent claim is new and material. In other instances, the adjudicator will need to make a judgment of whether evidence obtained in connection with the subsequent claim is new and material and, thus, permits a finding different from the prior finding. In such cases, any doubt about whether such evidence is new and material should be resolved in a manner that is favorable to the claimant.

    Per DI 52705.020B.3., adjudicators must explain in the personalized disability notice (PDN), or in the rationale, the basis for adopting or not adopting a prior finding(s).

EXAMPLE 1: An individual with a cardiovascular impairment was given an RFC for sedentary work in a final decision by an ALJ. In a subsequent claim, evidence shows that since the ALJ's decision the claimant had by-pass surgery. Exercise testing and functional evidence document that currently an RFC for light work would be appropriate. Evidence concerning the surgery, exercise testing, and functional documentation is new and material evidence because it was not part of the prior claim, and it demonstrates changes in the claimant's condition which makes the previous RFC for sedentary work no longer applicable.

EXAMPLE 2: An individual with a cardiovascular impairment was given an RFC for sedentary work in a final decision by an ALJ. The claimant did not have by-pass surgery or other procedures since the prior final ALJ denial. In the subsequent claim, evidence shows that recent exercise testing results were not materially different from test results in the prior claim. There is no other new evidence in the record for the subsequent claim that would provide a basis for changing any component of the ALJ's finding of the claimant's RFC. In this situation, the evidence consisting of recent exercise testing results is new but not material. When compared with the evidence before the ALJ, this new evidence does not show that any component of the ALJ's RFC assessment has changed. Therefore, assuming that there has not been any change in the law, regulations or rulings affecting the finding of a claimant's RFC or the method for arriving at such finding, the prior ALJ finding of an RFC for no more than sedentary work must be adopted. This is so even if the results of both the prior and recent exercise testing appear to support an RFC for light work.

3. Decision by an ALJ or AC on Prior claim

For purposes of the Drummond AR, a decision by an ALJ or the AC on a prior disability claim includes a decision which found the claimant not disabled in connection with a prior claim (i.e., a denial, cessation, or an award of a closed period of disability) or a decision which found the claimant disabled in connection with a prior claim (e.g., where the subsequent claim was filed following termination of entitlement/eligibility for nondisability reasons). To the extent that such a final ALJ or AC decision contains findings described in DI 52705.010B.1., the adjudicator must apply the AR with respect to such findings when adjudicating the subsequent claim.

4. Final ALJ or AC Decision

An ALJ or AC decision becomes final as of the date of notice unless:

  • It is timely appealed (or a civil action is filed); or

  • It is appealed late but good cause for late filing of an appeal or civil suit is found; or

  • In the case of an ALJ decision, the AC takes jurisdiction on its own motion within 60 days of the date of the ALJ decision; or

  • It is reopened and revised.

5. Interim Period Cases

Interim period cases are cases where notice of the final determination or decision on an individual's subsequent disability claim is dated 9/30/97 (the date of the Drummond court decision) through 5/31/98 (the day before publication of the AR).

6. Post-Publication Cases

Post-publication cases are cases where the notice of the determination or decision on a subsequent claim is dated 6/1/98, or later, including subsequent cases pending as of 6/1/98.

C. Policy

1. Interim Period Case

  1. Generally, the claimant in an interim period case must request application of the AR to the subsequent claim that was adjudicated in the determination or decision in the interim period, and must demonstrate that application of the AR could change such prior determination or decision (see DI 52705.010C.1.b. for exception). A claimant may demonstrate this by submitting a statement that cites the AR or the holding or portion of the circuit court decision which could change the prior determination or decision. The determination as to whether application of the AR could change the final determination or decision on the claim will be made at the level of adjudication that made such determination or decision on the claim. If the claimant demonstrates that application of the AR could change the final determination or decision to be more favorable to the claimant, the claim must be readjudicated at the same level it was last adjudicated in accordance with the AR. (See GN 03501.015 for readjudication procedure.)

    EXAMPLE: An individual's title II claim was denied by the DDS at the initial level on 3/3/98, and there was no appeal. An earlier title II disability claim was denied by an ALJ on 1/29/96. The individual may request that the 3/3/98 final determination be readjudicated under the Drummond Ruling because the denial did not consider the RFC and other findings made by the ALJ in the 1/29/96 decision.

    If the outcome of the 3/3/98 determination would have been different had the AR been applied, the DDS must readjudicate the claim at the initial level.

    NOTE: When a request for readjudication of an interim period case must be denied, provide the claimant an explanation as to why he/she is not covered by the AR, or why application of the AR would not favorably change the prior determination. (See DI 52705.030 for notice instructions.)

  2. If an interim period case to which the AR could apply is discovered in the course of development/adjudication of a current disability claim of the individual, and it is determined that application of the AR would change the final determination or decision on the prior claim, such prior claim should be readjudicated in accordance with the AR even if the claimant has not specifically requested application of the AR to the prior claim.

    EXAMPLE: The claimant, who is a resident of a State in the Sixth Circuit, files an application for disability insurance benefits on 8/5/98. Information obtained in connection with the adjudication of this current claim shows that the claimant filed two prior claims for disability insurance benefits, the first of which was denied in a final decision by an ALJ on 12/8/92, and the second of which was denied in an initial determination on 11/15/97 which was not appealed. Although the claimant has not specifically requested application of the AR to the 11/15/97 determination on his second claim, the DDS adjudicating the current claim should consider whether application of the Ruling would change the 11/15/97 determination and, if so, should readjudicate the second claim in accordance with the AR. If the application of the AR would not change the 11/15/97 determination, the DDS will not readjudicate the second claim, but will apply the AR in adjudicating the current claim (see DI 52705.010C.2.).

    NOTE: The determination as to whether application of the AR could change the final determination or decision on a claim in an interim period case, and any readjudication of such claim under the AR, must be made at the same level of administrative review that made the final determination or decision on the claim.

2. Post-Publication Cases

While adjudicating a post-publication case, it is the adjudicator's responsibility to determine if the AR applies and, if it does apply, adjudicate the claim in accordance with the AR.

3. Certain Cases Affected by the Dennard AR

See DI 52706.001 ff. for instructions for implementing AR 98-3(6) for Dennard v. Secretary of Health and Human Services, which applies in adjudicating subsequent disability claims of individuals residing in the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee).

4. Application Of The Drummond AR To Drug Addiction And Alcoholism (DAA) Cases And Claims Of Children For SSI Based On Disability

  1. AR 98-4(6) must be considered when an adjudicator is deciding a subsequent disability claim with an unadjudicated period arising under the same title of the Act as a prior disability claim and there was a decision by an ALJ or the AC on the prior disability claim that has become final. DAA redeterminations under Public Law (P.L.) 104-121 and SSI childhood disability redeterminations under P.L. 104-193 are considered subsequent claims (and not continuing disability determinations) for purposes of AR 98-4(6).

  2. See DI 52705.010B.1.b. for a description of the findings to which the requirements for adopting findings applies under the AR in adjudicating subsequent SSI childhood disability claims, including SSI childhood disability redeterminations under P.L. 104-193.

  3. Under AR 98-4(6), the same rules and procedures apply to DAA cases as to any other cases. However, when it is determined that an individual with DAA (including a child under supplemental security income (SSI)) is disabled considering the effects of DAA, a second determination must be made whether DAA is material to the finding of disability. (See DI 90070.050 and 20 CFR 404.1535 and 416.935 of the regulations.)

    Adjudicators must use a two-part process:

    First, they must follow the sequential evaluation process, considering all of a claimant's impairments, including DAA, to determine whether the claimant is disabled.

    Second, if the claimant is found disabled under the first part of the process, adjudicators must again follow the sequential evaluation process, but without considering the effects of the DAA, to determine whether the claimant would be found disabled if he/she were no longer using drugs or alcohol.

    If the individual would not be found disabled under the second part of the process, DAA is material to the determination of disability. If the individual would be found disabled, DAA is not material. Thus, when there is a prior final decision in which:

    • The ALJ or the AC made findings required at steps in the sequential evaluation process and found that an individual with DAA is disabled, considering the effects of the DAA, and

    • The ALJ or the AC made separate findings following the steps of sequential evaluation by considering the individual's condition without considering the effects of the DAA to decide whether DAA was material to the determination of disability,

    Then adjudicators must consider the findings from both parts of the two-part DAA process when adjudicating a DAA case (applying the same two-part process) under the requirements of AR 98-4(6).

A conclusion that DAA "is material" or "is not material" is not a finding that is required at a step in the sequential evaluation process provided under 20 CFR 404.1520, 416.920 or 416.924 for purposes of AR 98-4(6). Rather, it is a conclusion that results from the two-part process described above. When an ALJ or the AC has stated a conclusion in the prior decision that DAA was material, or that DAA was not material to the determination of disability, but has not set out findings showing how this conclusion was reached under the second part of the process, there will be no findings that are relevant to the decision whether an individual's DAA is material to the determination of disability. However, adjudicators must still consider whether to adopt findings from the ALJ's or AC's determination about whether the individual is disabled under the first part of the DAA process.

EXAMPLE 1: A claimant with alcohol dependence and a back condition was found disabled by an ALJ in the prior decision. The ALJ found that the claimant was not working and had a combination of impairments that was "severe", but that no impairment(s) met or equaled any listing. Based on an RFC assessment and a finding about the demands of the claimant's past relevant work, the ALJ found that the claimant could not do past relevant work. The ALJ found that the claimant was disabled at step 5 of the sequential evaluation process based on the finding of RFC and on the ALJ's findings about the claimant's age, education, and work experience. The ALJ then applied the second part of the DAA process and made a finding that, if the claimant were no longer using alcohol, the only impairment would be the back impairment, which would be "not severe" at step 2 of sequential evaluation. Therefore, the ALJ decided that DAA was material to the determination of disability.

If there is no new and material evidence, the DDS must adopt the findings required at steps 1 through 5 of the sequential evaluation process which were made by the ALJ, and which resulted in the ALJ's prior decision that the claimant was disabled considering both the DAA and the back impairment. The ALJ also made a finding required at a step in the sequential evaluation process (step 2 of sequential evaluation) that the claimant would not have a "severe" impairment if the effects of alcohol dependence were not considered. If, assuming that there is no new and material evidence about that finding, the DDS must also adopt it. The conclusion resulting from the finding--that DAA was material to the determination of disability--is not a finding required at a step in the sequential evaluation process and the DDS is not required to adopt it, although in this case the DDS will conclude that DAA is material based on the findings it is required to adopt.

EXAMPLE 2: Given the same facts as in Example 1, an ALJ made the same findings at steps 1 through 5 of the sequential evaluation process that resulted in the conclusion by the ALJ that the claimant was disabled considering the DAA and the back impairment. However, instead of making additional findings about the claimant's impairment if the effects of DAA were not considered, the ALJ stated only "DAA material" in the decision.

In this case, and assuming that there is no new and material evidence, the DDS must still adopt the findings required at steps 1 through 5 of the sequential evaluation process that were made by the ALJ and that resulted in the ALJ's prior decision that the claimant was disabled considering both the DAA and the back impairment. However, the ALJ's decision did not include findings for the determination whether DAA was material in the second part of the DAA process. Therefore, there are no findings for the DDS to adopt regarding the second part of the DAA process. Again, the conclusion that DAA was material to the determination of disability is not a finding required at a step in the sequential evaluation process provided under 20 CFR 404.1520, 416.920 or 416.924, and the DDS is not required to adopt it.

NOTE: In the examples above, it is important to remember that a finding described in DI 52705.010B.1.a. or DI 52705.010B.1.b, as appropriate, which is contained in a final ALJ or AC decision on a prior claim will not be adopted if either: (1) there is new and material evidence relating to the finding; or (2) there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.


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