Retention Date: 12/12/2024
A. Purpose
This emergency message (EM) announces the agency’s change of position (CoP) on the use of collateral estoppel to adopt prior disability determinations and decisions. It provides guidance on how this new policy will be applied to potential collateral estoppel claims currently pending at the field office (FO), the Disability Determination Services (DDS), the Office of Quality Review (OQR), the Office of Hearing Operations (OHO), and the Office of Appellate Operations (OAO). It also provides guidance on how this new policy will be applied with respect to certain administratively final determinations and decisions questioned in writing within one year of the initial determination.
B. Background
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.
A CoP is generally applicable as of its effective date. For all pending initial, reconsideration, hearing, and Appeals Council (AC) review cases where the appeal request was timely filed or the time for filing has been extended, and for cases remanded by the courts, this means the agency will generally apply the revised criteria to the pending claim as of the CoP date.
In general, we may reopen and revise a prior final determination or decision based on a CoP only under the one-year rule (DI 27505.020B.1) and, in the disability context, only if the result is favorable to the claimant. For more information about reopening and revising a determination or decision, see DI 27501.005. See also 20 CFR 404.988(a), 416.1488(a), and Hearings, Appeals, and Litigation Law (HALLEX) manual I-2-9 and I-3-9.
This CoP, effective 7/13/2024, expands our use of administrative collateral estoppel to adopt a prior favorable disability determination or decision in a subsequent claim for a different disability benefit or Supplemental Security Income (SSI) payments. In certain cases, we will not decide the issue of disability again if, based on our prior final determination or decision, we have already decided that the individual is disabled for the period in question, and we have not determined that their disability ceased. The new policy will apply not only to subsequent claims and appeals filed on or after the CoP effective date, but also to claims pending at all administrative adjudication levels as of the CoP effective date as well as certain previously adjudicated claims in which (1) we or the claimant questioned the final determination or decision in writing within one year of the date of the notice of the initial determination, and (2) the questioning occurred after, or was not resolved as of the CoP effective date (see DI 27505.020).
C. Collateral Estoppel Policy CoP
Beginning 7/13/2024, we will adopt our prior favorable finding of disability in a subsequent claim by the same individual for a different disability benefit or SSI payments if, in our prior final determination or decision, we have already decided that the individual is disabled for the period in question and all of the following criteria are met:
1. Both the prior determination or decision and new claim require application of the same statutory definition of disability.
2. We have not made an intervening medical determination or decision finding that the individual’s disability ceased.
3. The individual has not engaged in substantial gainful activity since the prior established onset date (EOD).
4. The EOD in the prior claim is on or before the date when the nonmedical requirements for entitlement are last met in the new claim.
5. The record with the prior favorable disability determination or decision is not in terminated status.
6. We do not have reason to believe that the prior disability determination or decision was wrong.
Consult DI 11011.001 for instructions on how to analyze each of these criteria.
D. Claim Identification
This new policy applies not only to subsequent claims and appeals filed on or after the CoP effective date, but also to claims we refer to as CoP claims.
For collateral estoppel, we will proactively identify and process CoP claims. CoP claims are:
1. Initial claims and appeals pending as of the CoP effective date.
2. Closed claims in which we or the claimant questioned the agency’s prior final determination or decision in writing within one year of the date of the notice of the initial determination.
Questioning the determination or decision in writing:
· The claimant files a subsequent claim for the same benefit alleging an onset date within the period adjudicated by the prior determination or decision; or
· The claimant otherwise indicates in writing that they disagree with the determination or decision.
· The Agency indicates in writing that it is considering reopening and revising the determination or decision.
One-Year Requirement: To meet the one-year requirement:
· A subsequent application, other written request for reopening (express or implied), or other written expression of disagreement with the prior determination or decision must be made within one year of the date of the notice of the initial determination; and
· The questioning must either occur after or be pending a response from us as of the CoP effective date.
See DI 27505.020 for more information on the one-year requirement.
Note on Implied Requests to Reopen: A subsequent claim for a previously denied benefit is considered an implied request to reopen the prior determination or decision when the claimant alleges an onset date of disability within the previously adjudicated period. In such cases, the subsequent claim satisfies the second CoP claim criterion if filed within one year of the date of the notice of the initial determination associated with the prior final determination or decision.
Example of an Implied Request to Reopen: An SSI recipient filed a disability insurance benefit (DIB) claim with an AOD of August 1, 2022. The claim was denied in an initial determination with a notice date of October 1, 2023. The SSI recipient did not appeal the determination, which therefore became the final determination of the agency on that DIB claim.
The claimant files a new DIB claim on August 27, 2024, with an AOD of November 15, 2022. This AOD falls within the period adjudicated in the final determination on the prior DIB claim: August 1, 2022, through October 1, 2023. Therefore, this DIB claim is an implied request to reopen the final determination on the prior DIB claim.
In this example, the subsequent claim was filed after the CoP effective date and within one year of the date of the notice of the initial determination. Therefore, the implied request to reopen meets the one-year requirement. Accordingly, if the criteria in section C of this EM are met, we will reopen the final determination on the prior DIB claim and apply collateral estoppel based on the individual’s ongoing eligibility for SSI. We will apply payment retroactivity based on the filing date of the original DIB claim.
IMPORTANT: In general in the disability context, and for purposes of this CoP, we may reopen under the one-year rule, based on the CoP, only where revision would be favorable to the claimant (see DI 27505.020B.1).
E. Field office (FO) procedures for CoP claims
1. Initial or reconsideration claim pending at the FO
If an initial claim or reconsideration appeal is pending at the FO on or after the CoP effective date and collateral estoppel may apply, the FO will ensure that all the criteria in section C of this EM are met.
· If collateral estoppel applies to the entire period in question, the FO will adjudicate the claim following DI 11011.001E. If the claim is pending in EDCS, close the EDCS claim as an FO Determination and select “Disability established/pending same issue” as the reason.
· If collateral estoppel applies but an alleged onset date (AOD) earlier than the prior determination EOD could provide for additional entitlement, the FO will determine the potential onset date (POD) on the subsequent claim and, if the POD predates the prior determination or decision EOD, follow the instructions in DI 11011.001F and transfer the claim to the DDS.
· If collateral estoppel does not apply, the FO will not add the collateral estoppel flag and will handle the claim under its normal procedures.
2. Pending initial or reconsideration claim returned from the Disability Determination Services (DDS)
The FO will review claims returned from the DDS to determine whether all the criteria in section C of this EM are met.
· If collateral estoppel applies to the entire period in question, the FO will adjudicate the claim following DI 11011.001 and close the EDCS claim as an FO Determination and select “Disability established/pending same issue” as the reason.
· If collateral estoppel applies but an AOD earlier than the prior determination EOD could provide for additional entitlement, the FO will determine the POD on the subsequent claim and transfer the claim back to the DDS following the instructions in DI 11011.001F.
If collateral estoppel does not apply, the FO will:
· Remove the “Potential Collateral Estoppel Issues Apply” flag;
· Update the POD;
· Add a Report of Contact (RoC) stating “Collateral estoppel flag removed, disability determination needed” and providing the reason why collateral estoppel does not apply;
o Example RoC language: “Collateral estoppel flag removed; disability determination needed. Collateral estoppel does not apply because the record with the prior favorable disability determination or decision is in terminated status.”
· Add the following subject line to the RoC: “Disability Determination Needed”; and
· Transfer the claim back to the DDS.
3. Claims in which a prior final determination or decision is questioned in writing within one year of the date of the notice of the initial determination (hereinafter, “one-year claims”)
If the section C criteria are met, the FO will determine which component made the final determination or decision on the prior claim.
· If the prior claim was finally adjudicated at the FO or DDS level, the FO will reopen and revise the prior determination following the procedures set out in this EM for pending initial or reconsideration claims.
· If the prior claim was finally decided at the Hearing or Appeals Council level, the FO will add the “Potential Collateral Estoppel Issues Apply” flag to the file and alert the component that made the prior final decision.
FO Reopening Authority: For collateral estoppel CoP, the FO has the authority to reopen determinations made below the hearing level when collateral estoppel applies. See DI 27501.005B.3.d.
Payment Retroactivity: For determinations made at the FO or DDS level that can be reopened and revised under the one-year CoP requirement and where all the criteria are met to apply collateral estoppel, the FO will apply payment retroactivity based on the filing date of the claim with the reopened determination.
4. Claims in which a prior final determination or decision is questioned in writing more than one year from the date of the notice of the initial determination
We may apply collateral estoppel in a subsequent claim even when we cannot reopen the prior determination under CoP policy because the date of the notice of the initial determination is more than one year before the protective filing date of the subsequent application.
Procedure and Payment Retroactivity: Do not reopen the prior determination but, if all the criteria in C of this EM are met, process the subsequent claim as a collateral estoppel determination and use its filing date—rather than the filing date of the claim associated with the prior final determination—to determine appropriate retroactive entitlement.
Onset of Disability Within a Previously Adjudicated Period: When we cannot reopen a prior determination or decision but the disability criteria have since changed and provide a basis for establishing disability on a new Title II application, onset of disability on the subsequent claim may be established within the period adjudicated in the prior determination or decision, if supported by all evidence (see DI 25501.250A.5 and DI 27505.020B.3).
F. DDS Procedures for CoP Claims Pending at the Initial and Reconsideration Levels
1. Batch transfer of pending claims
From July 20, 2024, through July 21, 2024, the Office of Disability Information Systems (ODIS) will initiate an automatic transfer (No Determination) of pending electronic claims from the DDS to the FO. Claims transferred will consist of all initial claims and reconsideration appeals with the “Potential Collateral Estoppel Issues Apply” flag where the claimant is in current or suspended payment status on another title or benefit type. Claims flagged as potential collateral estoppel and where the individual is not in current or suspended payment status will remain in the DDS’ jurisdiction.
FO technicians will be able to identify the batch transfer claims via:
· The “Potential Collateral Estoppel Issues Apply” flag;
· The ND date of July 20, 2024, or July 21, 2024; and
· The "FO Determination Requested” ND reason in the Workload Action Center.
The DDS will be responsible for reviewing the remaining claims to determine if the claim is incorrectly flagged or if it should be manually transferred to the FO for a collateral estoppel determination. If the claim is incorrectly flagged, remove the flag, and continue development following usual procedures.
IMPORTANT: Do NOT manually transfer any collateral estoppel claims to the FO until after the automatic transfer is complete.
2. Claims excluded from batch transfer - unsuccessful closures
Closure will occur automatically for most claims included in the automatic transfer of pending electronic claims from the DDS to the FO, but certain claims may fail to close automatically (e.g., outstanding items remain, such as a scheduled CE). When a claim fails to close automatically, it may not be automatically transferred to the FO. ODIS will send each DDS a list of unsuccessful transfers.
Each DDS shall resolve unsuccessful transfers within their jurisdiction by:
· Resolving any outstanding items that are preventing closure;
· Adding the following message to eView:
Claim returned to FO due to 7/13/2024 Collateral Estoppel Change of Position;
· Making a “No Determination” (ND) determination with the reason “FO Determination Requested” and include the Reason Detail “Collateral Estoppel Change of Position”; and
· Manually transferring the claim to the FO.
3. Unflagged CoP claims
If DDS finds a potential collateral estoppel CoP issue in a pending claim that does not have the “Potential Collateral Estoppel Issues Apply” flag, do not transfer it manually to the FO until after the automatic transfer has taken place. Once the automatic transfer has occurred, the DDS will add the “Potential Collateral Estoppel Issues Apply” flag to the file and follow the steps in F.2 to ND and return the claim to the FO.
4. Office of Quality Review (OQR) returns
Each claim with the “Potential Collateral Estoppel Issues Apply” flag returned by OQR to the DDS will require review by the DDS to determine if it must be manually returned to the FO for a collateral estoppel determination.
The DDS will follow the steps in F.2. to ND and return the claim to the FO.
G. Office of Hearings Operations (OHO) Procedures for Pending CoP claims
1. Identification, Routing, and Administrative Processing
OHO regional offices (RO) will identify pending CoP claims which are identified with the “Potential Collateral Estoppel Issues Apply” flag in eView. Each OHO RO will provide any pertinent hearing office (HO) within their region with a list of pending CoP claims with the “Potential Collateral Estoppel Issues” flag in eView. HO management or their designee will add the “Potential Collateral Estoppel Issues” (PCEI) case characteristic to the claims in OHO’s case processing systems (HACPS and/or CPMS).
Each HO will be responsible for identifying CoP paper claims pending within the office and designating them as such.
2. Evaluation Process
HO management will assign each claim to a Senior Attorney Advisor or Decision Writer to review and provide a recommendation to the administrative law judge (ALJ) on whether the claim meets the criteria in section C of this EM, using either the Case Notes section of HACPS case processing with a HACPS referral to the ALJ, or the Remarks in CPMS with a CPMS to-do to the ALJ, as appropriate.
If the ALJ agrees that the claim meets the criteria in section C of this EM, the ALJ will issue a decision adopting the disability finding from the prior determination or decision.
If the ALJ decides that collateral estoppel does not apply, the ALJ will proceed with adjudicating the claim. HO staff will add an eView message explaining why the collateral estoppel criteria in section C of the EM are not met.
3. Effect of Evaluation on Hearing
If collateral estoppel applies to the entire period at issue in the current appeal, the ALJ will decide the claim on the record and not conduct an oral hearing (See 20 CFR § 404.948 and 416.1448).
If collateral estoppel applies only to part of the period at issue in the current appeal, the ALJ will adopt the prior determination or decision only for that portion of the period at issue and then proceed with adjudicating the remainder of the claim.
Example: A subsequent Title II claim features a POD that is earlier than the EOD for the prior favorable determination or decision. Collateral estoppel cannot apply to the period between the current claim’s POD and the prior determination or decision’s EOD.
4. Processing One-Year Claims
The Office of the Chief Administrative Law Judge will obtain a list of claims pending at OHO with the “Potential Collateral Estoppel Issues Apply” flag in which an ALJ issued the prior final decision.
An ALJ will determine whether the prior decision may be reopened due to the CoP, and if so, will issue a new decision applying the new collateral estoppel criteria.
H. OAO procedures for pending CoP claims
Designated staff in OAO’s Executive Director’s Office (EDO) is responsible for identifying cases with the “Potential Collateral Estoppel Issues Apply” flag in eView. For cases containing the “Potential Collateral Estoppel Issues Apply” flag, designated staff will ensure the Appeals Review Processing System (ARPS) also shows the “Potential Collateral Estoppel Issues” (PCEI) case characteristic or add the PCEI case characteristic in ARPS.
For all cases containing the “Potential Collateral Estoppel Issues Apply” flag and PCEI case characteristic, the designated OAO analysts include in the analysis a recommendation for the AC on whether the pending claim meets the criteria in section C of this EM and DI 11011.001A for collateral estoppel to apply.
· If the AC finds collateral estoppel should apply to the entire period at issue, the AC will issue a recommendation for a fully favorable decision adopting the finding of disability from the prior final determination or decision.
· If the AC finds collateral estoppel should apply to only a portion of the period at issue in the pending claim, the AC will evaluate the hearing decision with respect to the remaining portion under normal case processing procedures and, as appropriate, issue a partially favorable decision using collateral estoppel to adopt the prior determination or decision for the applicable portion of the period at issue.
· If the AC finds collateral estoppel does not apply, the AC will evaluate the case under normal case processing procedures. Designated OAO staff will add an eView message notating why the collateral estoppel criteria in section C of this EM are not met.
The EDO will obtain a list of claims pending at OAO with the “Potential Collateral Estoppel Issues Apply” flag in which the AC issued the prior final decision. Designated OAO staff will evaluate whether the prior claim may be reopened due to the collateral estoppel CoP.
I. OQR procedures for pending CoP claims
For cases with a transmittal date prior to 7/13/2024, the OQR will complete the quality review for any CoP claim(s) pending at the OQR beginning 7/13/2024.
· If a fully favorable determination is supported on the new claim(s), the OQR will approve the favorable determination and close the case to the FO for effectuation.
· If a fully favorable determination cannot be made on the new claim(s) with a “Potential Collateral Estoppel Issues Apply” flag, the OQR will prepare an administrative return to the adjudicating component.
Cases with a transmittal date of 7/13/2024 and later will be reviewed for consistency with the new policies.
Note: These OQR procedures only implicate adjudicating components below the OHO level.
Questions:
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 Hearings Operations personnel should direct questions through their office’s management chain. Regional staff may direct questions about this matter to the Division of Field Procedures in the Office of the Chief Administrative Law Judge.
Office of Appellate Operations personnel should direct questions through their management chain. Managers may direct further questions to the Executive Director’s Office.
References:
DI 11011.001 Applying Collateral Estoppel in Disability Claims
DI 12045.025 Different Determinations or Decisions for the Same Period in Separate Claims
DI 25501.250 Establishing an Established Onset Date by Reopening Prior Disability Filings and Previously Adjudicated Periods
DI 27501.005 Reopening and Revising a Determination or Decision
DI 27505.020 Change of Ruling or Legal Precedent (Change of Position)
DI 27515.001 Collateral Estoppel Issues and Title II Claims Involving Possible Earlier Onset
DI 27540.000 Reopening Notice Instructions
DI 33530.005 Disability-Related List Codes
20 CFR § 404.948 Deciding a case without an oral hearing before an administrative law judge.
20 CFR § 416.1448 Deciding a case without an oral hearing before an administrative law judge.