Social Security

Retention Date: 12/22/2024

A. Purpose

This Emergency Message (EM) provides supplemental instructions for res judicata policy application, considering the June 22, 2024 change in the regulatory definition of past relevant work (PRW).

B. Background

1. New regulatory definition of PRW effective June 22, 2024

On June 22, 2024, we implemented final regulations 89 FR 27653 Intermediate Improvement to the Disability Adjudication Process Including How We Consider Past Work (PRW Rule). The PRW rule provides a new and less restrictive definition of PRW, see 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 within 30 calendar days is not PRW.

2. Res Judicata

Our administrative res judicata policy provides that once an issue is decided it does not need to be decided again. We apply res judicata at all levels of the adjudication process to avoid deciding an issue that we have previously decided based on the same facts, same issues, same parties, and same adjudicative period (DI 27516.001).

Res judicata is applicable only with respect to the period covered by the prior final determination or decision. The end of this date period will generally correspond to the date of the prior final determination or decision, except when the date the claimant last met the non-disability requirements for entitlement expired prior to the date of the final determination or decision.

For additional information about using administrative res judicata for disability claims, see DI 27516.000 and GN 03101.160.

C. Policy

We will not apply res judicata to bar readjudication of a previously adjudicated period when the prior final determination or decision finding the claimant not disabled is dated prior to June 22, 2024, if the prior adverse determination or decision found the individual could do:

1. PRW at step four of the sequential evaluation process (SEP) and the PRW cited is not PRW under the PRW rule; OR

2. Other work at step five of the SEP, work experience was material to the decision, and the individual’s work experience is different under the PRW rule.
When these criteria are met, we will not apply res judicata to deny a subsequent claim or dismiss a request for hearing on that claim.

D. Procedures

1. Field Office (FO) Instructions

Do not apply res judicata if a subsequent Title II claim is pending on or filed after June 22, 2024, and we previously made an administratively final determination or decision denying disability through the last day the claim met the non-disability requirements, and the regulation basis code (RBC) for the prior denial is:

a. Disability Insurance Benefits (DIB) and Disabled Widow(er)’s Benefits (DWB) Claims
- 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)
b. Childhood Disability Beneficiary (CDB) Claims

- 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)

Send the claim to the Disability Determination Services (DDS) for a determination. Follow the instructions in DI 27516.001. Alert the DDS to potential res judicata determinations and add the following message to the certified electronic folder (CEF):

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

NOTE: In addition, do not apply res judicata if any of the additional requirements in DI 27516.001B are not met or the exception in DI 27516.001E (new and material evidence) applies.

2. DDS Instructions

a. Initial review of claims in which res judicata potentially applies

The DDS will assume jurisdiction to review cases identified by the FO as potential res judicata determinations, with the following message to the certified electronic folder (CEF):

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

If any of the requirements in DI 27516.001B are not met, make a substantive determination on the claim as explained in DI 27516.005D. Res judicata does not apply.

If one of the RBCs from sections D.1.a. or D.1.b. in this EM applies and the prior determination or decision was before June 22, 2024, review the claim to determine if res judicata applies. Follow the instructions in sections D.2.b. and D.2.c in this EM.

b. Prior determination or decision found the claimant could do PRW

If the prior claim was denied with an RBC of H2, G1, or G2, the agency may have determined the claimant could perform PRW.

Review the documentation in the prior claim file.

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,

THEN a new substantive determination is required.

IF the claimant 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.

See DI 27516.001B for the other conditions required for applying res judicata.

See DI 27516.005B for instructions to process a denial with an RBC of S1 (res judicata).


c. Prior determination or decision found the claimant could adjust to other work

If the prior claim was denied with an RBC of J2, G1, or G2, the agency may have determined the claimant could adjust to other work in the national economy.

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

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

2. 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 D.2.c.1 and D.2.c.2 in this EM do not apply, THEN the new definition of PRW would not yield an outcome different from the prior determination or decision, such that res judicata may be a basis for denial of the subsequent claim, provided that the usual requirements for applying res judicata are satisfied.

See DI 27516.005D for instructions on how to make a new determination if res judicata does not apply.

3. Office of Hearing Operations (OHO) and Office of Appellate Operations (OAO) Instructions

The change in PRW rules effective June 22, 2024, is a change in statute, regulation, or policy interpretation. Accordingly, an administrative law judge (ALJ) generally may not use res judicata as the basis for dismissing a request for hearing on the subsequent application.

OHO will continue to follow instructions in the Hearings, Appeals, and Litigation Law (HALLEX) manual I-2-4-40 consistent with the supplemental guidance in this EM.

OAO will continue to follow instructions in HALLEX I-3-3-9 and the supplemental guidance in this EM.

Direct all program-related and technical questions to your Regional Office (RO) support staff using vHelp or Processing Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions or problems to their Central Office contacts.

Office of Quality Review personnel should direct questions to their local management.

OHO personnel should direct questions to local management. OHO managers may seek guidance from the RO. RO managers may refer questions or unresolved issues to the Division of Field Procedures in the Office of the Chief Administrative Law Judge.

OAO personnel should direct questions through their management chain. OAO managers may seek guidance from the Executive Director’s Office.

References:

DI 22001.001 Sequential Evaluation of Title II and Title XVI Adult Disability Claims
DI 25005.001 Determination of Capacity for Past Relevant Work (PRW) – Basics of Step 4 of the Sequential Evaluation Process
DI 25005.015 Determination of Capacity for Past Work – Relevance Issues
DI 25005.020 Past Relevant Work (PRW) as the Claimant Performed It
DI 25005.025 Past Relevant Work (PRW) as Generally Performed in the National Economy
DI 25005.050 Making the Past Relevant Work (PRW) Determination
DI 25015.000 Ability to Perform Other Work – Table of Contents
DI 26510.045 Completing Item 22 (Regulation Basis Code) on the SSA-831
DI 27516.001 Field Office Res Judicata Development and Processing
DI 27516.005 Disability Determination Services (DDS) Res Judicata Development and Processing
GN 03101.160 Res Judicata
HALLEX I-2-4-40 Administrative Res Judicata
HALLEX I-3-3-9 Administrative Res Judicata
SSR 24-1p Titles II and XVI: How We Apply the Medical-Vocational Profiles
SSR 24-2p Titles II and XVI: How We Evaluate Past Relevant Work