Social Security

Retention Date: 12/22/2024

A. Purpose

This emergency message (EM) provides instructions, based on our change of position (CoP) policy, about when we will reopen a prior final determination or decision based on the Intermediate Improvement to the Disability Adjudication Process, Including How We Consider Past Work (PRW) final rule.

B. Background – CoP and Reopening

A CoP occurs when a policy or legal precedent previously used to adjudicate cases, which was correct and reasonable when made, is changed because of amendments to the Social Security Act, the regulations, the publication of Social Security Rulings, or new policy considerations. See DI 27505.020.

The Social Security Administration (SSA) may reopen and revise a determination or decision after it is final, within certain timeframes and under certain conditions, on our own initiative or at the request of a party to the prior final determination or decision. In general, we may reopen and revise a determination or decision based on a CoP only under the one-year rule (DI 27505.001A.1) and, in the disability context, only if revision would be favorable to the claimant (see DI 27505.020B.1). Reopening and revising based on a CoP is an exception to the general rule that only incorrect determinations and decisions may be reopened and revised (see DI 27505.001A). For more information about reopening and revising a determination or decision, see DI 27501.005. See also 20 CFR 404.988 and 416.1488, and Hearings, Appeals, and Litigation Law (HALLEX) manual I-2-9 and I-3-9.

C. Policy

1. PRW CoP

On June 22, 2024, we implemented a final rule 89 FR 27653 Intermediate Improvement to the Disability Adjudication Process, Including How We Consider Past Work (PRW Rule). This rule provides a new and less restrictive definition of PRW; see 20 CFR 404.1560(b)(1), 416.960(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. When adjudicators will reopen a final agency disability determination or decision based on the PRW CoP

Beginning June 22, 2024, adjudicators will reopen a prior final agency determination or decision based on the PRW CoP if the application of the PRW rule at the time of the prior determination or decision would have resulted in a more favorable determination or decision.

All of the following conditions must be met to reopen based on the PRW CoP:

· The claimant or SSA/Disability Determination Services (DDS) (or both) questioned the determination or decision in writing within one year of the date of the notice of the initial level determination on the prior claim.
· The questioning occurred after, or was pending as of, June 22, 2024.
· The prior claim was denied at step four or five.
· The denial depended on a finding that the person had PRW that was last done more than 5 years earlier, transferrable skills from PRW that was last done more than 5 years earlier (without continuity of skills to PRW within 5 years of the prior determination, see DI 25005.015C), or PRW that started and stopped in fewer than 30 calendar days.
· A revised determination or decision applying the current rules (PRW rule) would be more favorable to the claimant than the prior final determination or decision that would be reopened.

NOTE: The reopening and revision should generally be completed before the applicable time limit established in the Rules for Reopening has elapsed, see DI 27505.001B.3. This means, in the context of the one-year rule, that the reopening and revision should generally be completed within one year of the date of the notice of the initial determination associated with the final determination or decision that is reopened. For exceptions, see the diligent pursuit policy in DI 27505.005.

3. What do we mean by questioning the prior final agency determination or decision in writing?
We consider the claimant or SSA/DDS to have questioned the prior final determination or decision in writing if one or more of the following conditions exist:

· The claimant files a written request to reopen the prior final determination or decision.
· The claimant files a new claim alleging disability began in the period adjudicated in the prior final determination or decision (implied request for reopening).
· The claimant files a new claim and the adjudicator, on the adjudicator’s own initiative, finds the reopening conditions above are met.
· SSA or the DDS questions the prior final determination or decision meeting the reopening conditions above.

4. How do we determine established onset date (EOD) for a PRW CoP reopening?

If all the conditions for reopening under PRW CoP are established, the adjudicator will determine the EOD under current policy. We are not limiting retroactivity to the CoP date.

EXAMPLE: The claimant submitted a prior Title II Disability Insurance Benefits (DIB) claim that was denied on 3/17/2024 at the initial level and not appealed. The denial was based on a step four finding that the claimant could do PRW, as a warehouse worker, that they last performed in January of 2019. The potential onset date for the prior DIB claim was 2/1/2019. The claimant was born 1/1/1965 (attained age 55 on 12/31/2019), has a less than a high school education and did not perform substantial gainful activity after 1/31/2019. The claimant then filed a new DIB application on 6/28/2024, this time alleging disability from 2/1/2022.

We will reopen the prior determination dated 3/17/2024 based on the PRW CoP because:
· The PRW finding in the prior claim considered work last performed more than five years before the prior determination was issued, and
· The implied request for reopening was filed within one year of the prior initial determination, the denial is not still in the appeals process and
· The outcome considering application of the PRW rule when the prior claim was determined would be more favorable to the claimant.
We will reopen the 3/17/2024 determination finding the claimant has no PRW and meets the “no work” profile. Based on this reopening, we will establish a 12/31/2019 onset date, as this is the first date the claimant meets the “no work” profile.

D. Procedures - PRW Rule CoP Reopenings
1. DDS

Follow the guidance for reopening in DI 27501.000, DI 27530.000, DI 27536.000, and DI 27540.000, consistent with the instructions in this EM.

2. Office of Hearing Operations (OHO) and Office of Appellate Operations (OAO)

OHO and OAO adjudicators follow the guidance for reopening in HALLEX I-2-9 and I-3-9, consistent with the guidance in this EM. In particular, this CoP may be a reason to reopen a prior final determination or decision under 20 CFR 404.988(a) and 416.1488(a).

NOTE: Considering that the one-year timeframe is counted from the date of the notice of the initial determination, it will be rare for the agency to be able to reopen a prior final decision issued by an administrative law judge (ALJ) or the Appeals Council (AC) based on the PRW CoP.

Direct all program-related and technical questions to your Regional Office (RO) support staff using vHelp or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns 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 refer questions to the Executive Director’s Office.

References:
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 25015.015 Work Experience as a Vocational Factor
DI 27501.001 Reopenings and Revisions: Pertinent Definitions and Related Policy
DI 27501.005 Reopening and Revising a Determination or Decision
DI 27505.001 Conditions for Reopening a Final Determination or Decision
DI 27505.005 Late Completion of Timely Investigation: Diligent Pursuit
DI 27505.020 Change of Ruling or Legal Precedent (Change of Position)
DI 27530.000 Reopenings – Completion of Form SSA-831-U5
DI 27536.000 Simplified Reopening Rationale Procedures
DI 27540.000 Reopening Notice Instructions
HALLEX I-2-9 Reopening and Revision
HALLEX I-3-9 Reopening and Post-Adjudicative Actions
SSR 24-2p Titles II and XVI: How We Evaluate Past Relevant Work