AR
24-1(6)
Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) (Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)): Effect of Prior Disability Findings on Adjudication
of a Subsequent Disability Claim—Titles II and XVI of the Act.
Issue
Whether, in making a disability determination or decision on a subsequent disability
claim with respect to an unadjudicated period, SSA must consider a finding of a claimant’s
residual functional capacity (RFC), or other finding required under the sequential
evaluation process for determining disability, made in a final decision by an ALJ
or the AC on a prior disability claim.
Statute/Regulation/Ruling Citation:
Sections 205(a) and (h) and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a)
and (h) and 902(a)(5)), 20 CFR 404.900(a), 404.957(c)(1), 416.1400(a), 416.1457(c)(1),
AR 98-3(6) (rescinded), AR 98-4(6) (rescinded).
Circuit:
Sixth (Kentucky, Michigan, Ohio, Tennessee)
Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) (Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997))
Applicability of Ruling:
This ruling applies to determinations and decisions at all administrative levels (i.e.,
the initial, reconsideration, ALJ hearing, and AC levels).
The decision of the Sixth Circuit in Earley was based, in part, on the panel’s interpretation of the Sixth Circuit’s prior decision
in Drummond. Drummond, in turn, relied in part on the Sixth Circuit’s earlier decision in Dennard. The following summaries of the two earlier cases are provided as background material.
Dennard v. Secretary of Health & Human Services, 907 F.2d 598
(6th Cir. 1990)
Mr. Dennard argued that because SSA found him unable to do his past relevant work
on his first application for benefits, SSA was precluded from reconsidering this issue
and finding in a subsequent decision, involving an unadjudicated period, that Mr.
Dennard could perform the same past relevant work. The Sixth Circuit observed that
it seemed clear that SSA had reconsidered the nature and extent of Mr. Dennard’s exertional
level in his former job. The court stated: “We are persuaded that under the circumstances,
we must remand this case to [SSA] . . . to determine whether [Mr.] Dennard is disabled
in light of the prior determination that he could not return to his previous employment.”
Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir.
1997)
Ms. Drummond argued that absent evidence of improvement in her condition, the ALJ’s
finding in a prior claim that she was limited to sedentary work precluded SSA from
finding in a subsequent claim that she could perform medium work. The Sixth Circuit
stated that, “[a]bsent evidence of an improvement in a claimant’s condition, a subsequent
ALJ is bound by the findings of a previous ALJ.” The court held that SSA could not
reexamine issues previously decided, in the absence of new and additional evidence
or changed circumstances. The court further stated that, “[j]ust as a Social Security
claimant is barred from relitigating an issue that has been previously determined,
so is the Commissioner.” After finding that there was not substantial evidence that
Ms. Drummond’s condition had improved significantly in the time between the two ALJ
decisions, the court concluded that SSA was bound by its previous finding that Ms.
Drummond was limited to sedentary work.
Earley vs. Commissioner of Social Security, 893 F.3d 929 (6th Cir.
2018)
Description of Case:
In 2010, Ms. Earley applied for disability benefits, claiming that she was disabled
starting on June 25, 2010. In 2012, an ALJ found that she remained capable of light
physical exertion and that she was not disabled for the period from June 25, 2010,
through May 15, 2012. Ms. Earley applied again in July 2012, arguing that she became
disabled after the decision on her last application. The same ALJ, invoking Drummond and AR 98-4(6), stated that he was bound by his earlier findings, unless Ms. Earley
offered new and material evidence of a changed condition. Because the ALJ found that
Ms. Earley had failed to do that, the ALJ again found her not disabled and denied
her application.
On review, the district court reversed the prior SSA decision. The district court
construed Drummond to apply only if it would lead to a favorable outcome for the claimant. Since any
preclusive effect of the ALJ’s prior findings would make it more difficult for Ms.
Earley to be found disabled, the court found that Drummond did not apply.
On appeal, the Sixth Circuit examined and clarified Drummond. The court found that the key principles protected by Drummond, consistency between proceedings and finality with respect to prior adjudicated applications,
apply to both individuals and the government. At the same time, these principles do
not prevent the agency from giving a fresh look to a new application containing new
evidence or satisfying a new regulatory threshold that covers a new period of alleged
disability while being mindful of past rulings and the record in prior proceedings.
The court rejected the argument that, “[i]n reviewing a second application by the
same individual . . . the administrative law judge should completely ignore earlier
findings and applications.” The court explained that “[f]resh review is not blind
review” and that “a later administrative law judge may consider what an earlier judge
did if for no other reason than to strive for consistent decision making.” Further,
the court explained that “it is fair for an administrative law judge to take the view
that, absent new and additional evidence, the first administrative law judge’s findings
are a legitimate, albeit not binding, consideration in reviewing a second application”
and, at the same time, that “an applicant remains free to bring a second application
that introduces no new evidence or very little new evidence after a failed application.”
The court cautioned, however, that a claimant “should not have high expectations about
success if the second filing mimics the first one and the individual has not reached
any new age (or other) threshold to obtain benefits.”
Holding:
The Sixth Circuit stated that, “[w]hen an individual seeks disability benefits for
a distinct period of time, each application is entitled to review.” The court explained
that if an individual files a subsequent application for the same period and “offers
no cognizable explanation for revisiting the first decision, res judicata would bar
the second application.” The court further explained an ALJ honors res judicata “principles
by considering what an earlier judge found with respect to a later application and
by considering the earlier record” and that, accordingly, “it is fair for an administrative
law judge to take the view that, absent new and material evidence, the first administrative
law judge’s findings are a legitimate, albeit not binding, consideration in reviewing
a second application.” Ms. Earley’s new application involved a new period; therefore,
the court held that res judicata did not apply. Accordingly, the court remanded the
case for the ALJ to reconsider Ms. Earley’s application for benefits under the correct
standard.
How Earley Differs from the Agency’s Policy
In a subsequent disability claim, SSA considers the issue of disability with respect
to a period that was not adjudicated to be a new issue that requires an independent
evaluation. Thus, when adjudicating a subsequent disability claim involving an unadjudicated
period, SSA considers the facts and issues de novo in determining or deciding disability
with respect to the unadjudicated period. SSA does not consider prior findings made
in the final determination or decision on the prior claim in adjudicating disability
with respect to the unadjudicated period in the subsequent claim.
In Earley, the Sixth Circuit agreed with SSA’s policy that res judicata does not apply with
respect to an unadjudicated period. Yet, the Sixth Circuit disagreed with SSA’s policy
that prior disability findings are not to be considered in the adjudication of disability
for a previously unadjudicated period in a subsequent claim. Rather, Earley indicates that such prior findings made at the ALJ (hearing) or AC level should be
considered in the adjudication of disability for an unadjudicated period in a subsequent
claim, stating that “it is fair for an administrative law judge to take the view that,
absent new and additional evidence, the first administrative law judge's findings
are a legitimate, albeit not binding, consideration in reviewing a second application.”
Earley indicates that an adjudicator honors the principles of res judicata “by considering
what an earlier judge found with respect to a later application and by considering
that earlier record.”
SSA interprets Earley to require that, where a final decision after a hearing on a prior disability claim
contains a finding of a claimant’s RFC or other finding required under the sequential
evaluation process for determining disability, SSA must consider such finding(s),
described in DI 52707.010B.1, as evidence when adjudicating a subsequent disability claim, arising under the same
or a different Title of the Social Security Act, involving an unadjudicated period.
How We Will Apply the Earley Decision Within the
Circuit
This Ruling applies only to disability findings in cases involving claimants who reside
in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision
on the subsequent claim at the initial, reconsideration, ALJ hearing, or AC level.
Additionally, it applies only where there is a finding of a claimant’s RFC or other
finding that is required at a step in the sequential evaluation process for adjudicating
disability (provided under 20 CFR 404.1520, 416.920, or 416.924, as appropriate),
made in a final decision by an ALJ or the AC on a prior disability claim, regardless
of whether a hearing was held.
In making a finding of a claimant’s RFC or other finding that is required at a step
in the sequential evaluation process for adjudicating disability, an ALJ or the AC
may have made certain subsidiary findings, such as an assessment of the claimant’s
symptoms. A subsidiary finding does not constitute a finding that is required at a
step in the sequential evaluation process for adjudicating disability, as provided
under 20 CFR 404.1520, 416.920, or 416.924.
When an applicant seeks disability benefits for a new period, that application is
entitled to review following the applicable sequential evaluation process. However,
such review does not exist in a vacuum. When adjudicating a subsequent claim (arising
under the same or a different title of the Act as the prior claim), an adjudicator
deciding whether a claimant is disabled during an unadjudicated period must consider
findings from the decision on the prior application. As the Court recognized in Earley, things change with the passage of time, such as age and physical condition. As a
result, each application covering a different period should be reviewed as a new application.
However, when a finding of a claimant’s RFC or other finding required under the sequential
evaluation process for determining disability differs from that in the prior decision,
the adjudicator must make clear that they considered the prior finding as evidence
in light of all relevant facts and circumstances.
For example, an adjudicator might consider such factors as: (1) whether the fact on
which the prior finding was based is subject to change with the passage of time, such
as a fact relating to the severity of the claimant’s medical condition; (2) the likelihood
of such a change, considering the amount of time between the period adjudicated in
the prior claim and the unadjudicated period in the subsequent claim; and (3) the
extent to which evidence that was not considered in the final decision on the prior
claim provides a basis for making a different finding for the unadjudicated period
in the subsequent claim. These are only examples and not intended to create specific
requirements as part of the sequential evaluation.
Where the prior finding was about a fact that is subject to change with the passage
of time, such as a claimant’s RFC or the severity of an impairment(s), the likelihood
that the fact has changed generally increases as the time between the previously adjudicated
period and the subsequent period increases. An adjudicator generally should pay particular
attention to the lapse of time between the earlier claim and the subsequent claim
and the impact of the passage of time on the claim. In situations where minimal time
has passed, and no or very little new evidence has been introduced, it is more likely
that the prior finding will remain highly probative. But the adjudicator must consider
all relevant facts and circumstances on a case-by-case basis. Additionally, a change
in the law, regulations, or rulings affecting a relevant finding or the method for
arriving at the finding may be a reason why the prior finding is less probative.