Identification Number:
DI 27515 TN BASIC
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Collateral Estoppel
Type:POMS Transmittals
Program:Disability
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 275 – Reopenings, Adoptions and Refilings
Subchapter 15 – Collateral Estoppel
Transmittal No. BASIC, 07/28/2020

Audience

PSC: CA, CS, DE, DEC, DTE, IES, RECONR, SCPS, TSA, TST;
OCO-OEIO: BET, CR, ERE, FCR, FDE, RECONE;
OCO-ODO: BET, CR, DE, DEC, DS, PAS, PETE, PETL, RCOVTA, RECONE;
ODD-DDS: ADJ, DHU;

Originating Component

ODP

Effective Date

07/29/2020

Background

We are revising these Program Operations Manual System (POMS) instructions to clarify our policy that collateral estoppel only applies when the same rules for determining disability apply and there is no reason to question the correctness of the prior favorable determination or decision. In addition, these POMS incorporates the information previously provided in AM 18029-REV and EM 11034-REV.

Summary of Changes

DI 27515.001 Collateral Estoppel - Policy

We changed the title of this section.

We make plain language changes and restructured for readability.

We incorporated changes in AM-18029 REV.

We clarified when collateral estoppel does not apply. We added disabled-related list codes for when collateral estoppel does not apply, such as changes in the listings and changes in the medical vocational rules.

We added the concept of reviewing the prior favorable determination or decision based on meeting or equaling a listing or medical-vocational rules to determine whether collateral estoppel applies in no medical improvement CDR continuances.

We added the requirement to use the regulation basis code of CE and ACE for all collateral estoppel determinations. We clarified that medical consultant and psychological consultant review is not required when collateral estoppel applies except for an earlier period of disability.

 

DI 27515.005 Changes to the Listing of Impairments and Collateral Estoppel

We added this new section, which includes a table that allows the DDS to determine whether collateral estoppel applies when the prior favorable determination or decision was based on meeting or equaling.

We clarified when the DDS may apply collateral estoppel to a prior favorable determination or decision when based on medical-vocational rules.

We added a requirement to use a disability-related list code when collateral estoppel does not apply.

 

DI 27515.010 Changed Vocational Profile and Collateral Estoppel

We changed the title and subject of this section.

We added the concept of changed vocational profile now explained in EM 11034-REV.

 

DI 27515.015 Association of Prior Paper Folder in Collateral Estoppel Claims

We changed the title and the subject of this section and adjusted language for readability

 

DI 27515.020 Special Situations in Collateral Estoppel Claims

We changed the title and subject of this section.

We removed the discussion of adverse reopenings and medical improvement review standard, and the discussion of prior error and consistency of determinations or decisions.

We clarified procedures for when collateral estoppel was applied to the prior favorable determination or decision in error.

 

DI 27515.030 Applying Collateral Estoppel to a Prior Title II or Title XVI Decision of Not Disabled When a New Title II or Title XVI Claim is Being Adjudicated Within Six Months of the Notice

We are archiving this concept and section.

 

DI 27515.035 Different Determinations or Decisions for the Same Period in Separate Claims

We changed the title and subject of this section.

We added examples of conflicting determinations when collateral estoppel does not apply.

 

DI 27515.040 DWB Claim Filed - Prior Disability Has not Ceased

We are archiving this section.

 

DI 27515.045 DC Disability Established -Title II Claim Filed

We are archiving this concept and section.

 

DI 27515.050 Continuing Disability Review (CDR) Issues in Collateral Estoppel Claims

We revised language for consistency with proposed procedures regarding when collateral estoppel does or does not apply when a CDR issue is raised.

 

DI 27515.060 Collateral Estoppel -- New Regulation Basis Codes

We are archiving this section because we clarified that the DDS must use the regulation basis code of ACE and CE for all collateral determinations in DI 27515.001.

DI 27515.055 Work Incentive Status and Collateral Estoppel Claims

We changed the title and subject of this section.

We streamlined this section for readability. We clarified that the DDS does not award a closed period for substantial gainful activity (SGA). SGA cessations are FO jurisdiction. The DDS may only close a period of disability for medical improvement or exception to medical improvement.

 

Conversion Table
Old POMS ReferenceNew POMS Reference
DI 27515.010DI 27515.015
DI 27515.030Archived
DI 27515.040Archived
DI 27515.045Archived
DI 27515.060Archived

DI 27515.001 Collateral Estoppel - Policy

A. Concept of collateral estoppel

Under the rules of collateral estoppel, we will not again decide an issue we have already decided in a prior determination or decision, unless there are reasons to believe that the prior finding on the issue was wrong. The Disability Determination Services (DDS) may adopt, in a new claim, the findings of a prior favorable determination or decision. While these adoption determinations often involve claims arising under different titles of the Social Security Act, it may be appropriate to adopt a prior determination or decision under the same title for a different type of benefit because the underlying principle of issue preclusion (whether designated collateral estoppel or res judicata) may apply in the same title context.

B. Jurisdiction of potential collateral estoppel claims

The DDS has jurisdiction for all subsequent claims when collateral estoppel potentially applies. The field office (FO) will transfer potential collateral estoppel claims to the DDS for processing and determination. For FO instructions, see DI 11011.001.

NOTE: The Program Service Center (PSC) may also make collateral estoppel determinations when the PSC receives the new claim directly. For additional PSC instructions, see DI 40120.001.

C. Examples of potential collateral estoppel situations

New Claim

Prior favorable determination or decision

Disability Insurance Benefit (DIB)

Supplemental Security Insurance (SSI) adult disability with an established onset date (EOD) prior to the DIB date last insured (DLI)

Childhood Disability Benefit (CDB)

SSI adult disability with an EOD between ages 18-22

CDB

CDB under another number holder (NH)

SSI

DIB

Disabled Widow(er) Benefit (DWB)

DIB with an EOD within the DWB prescribed period

D. Rules for applying collateral estoppel

1. Common issues

The claims must have a common issue. A common issue exists when two or more claims share an overlapping period and are/were decided under the same rules.

2. Same rules

The same rules for determining disability apply to the common issues at the time the new claim is filed.

3. Correct determination or decision

There is no reason(s) to question the correctness of the prior determination or decision.

NOTE: When the claimant has engaged in substantial gainful activity (SGA) after the prior favorable determination or decision, see DI 27515.010.

IMPORTANT: Even when collateral estoppel does not apply, the DDS may make a favorable determination based on evidence in the new claim.

E. When collateral estoppel does not apply

1. Change in rules

A prior favorable determination or decision is not adopted when the rules for determining disability applicable in the new claim are different from the rules that were applied in the prior determination or decision.

For example:

  • Blindness requirements for title II versus title XVI,

  • Childhood disability versus adult disability,

  • Change in medical-vocational rules (e.g., the removal of the inability to communicate in English as an education category), and

  • A substantial change to the Listing of Impairments.

For the basic principles and definitions of title XVI blindness or childhood disability, see DI 11055.001. For changes in the Listing of Impairments, see DI 27515.005B.

When collateral estoppel does not apply because there is no determination or decision under adult criteria and the new claim is a denial, the DDS must enter list code 585 (Adoption does not apply - no decision under adult criteria) in Item 26 of the SSA-831.

When collateral estoppel does not apply because of a substantial change to the listings and the new claim is a denial, the DDS must enter list code 586 (Adoption does not apply due to changes in the listings) in Item 26 of the SSA-831.

When collateral estoppel does not apply because of a change in medical-vocational rules and the new claim is a denial, the DDS must enter list code 588 (Adoption does not apply due to change in medical-vocational rules) in Item 26 of the SSA-831.

2. Prior favorable determination or decision clearly incorrect

A prior favorable determination or decision is not adopted when it is clearly incorrect or the error exception for continuing disability reviews (CDR) applies. For information on applying the prior error exception to medical improvement, see DI 28020.350. The DDS must not substitute judgment or arbitrarily question a prior favorable determination or decision. When the determination on the new claim is a denial, the DDS must enter list code 582 (Adoption does not apply due to error) in Item 26 of the SSA-831.

3. Prior favorable title XVI determination or decision due to conversion

A prior favorable determination or decision is not adopted when title XVI disability is due to conversion unless there has been a subsequent CDR continuance under Federal criteria. For information on title XVI conversion claims, see DI 33025.005 and DI 23525.001.

Review the SSA-831/833 for the prior title XVI determination or a Supplemental Security Income Display (SSID) query to identify these claims. In a SSID, the rollback indicator (RB) field is coded 4 when the claim was allowed or continued under Federal criteria.

When the determination on the new claim is a denial, the DDS must enter list code 584 (Adoption does not apply - conversion case-no decision under Federal criteria) in Item 26 of the SSA-831.

4. Changed vocational profile

A prior determination or decision is not adopted when the claimant has a changed vocational profile. For information on when a changed vocational profile applies, see DI 27515.010.

When the determination on the new claim is a denial, the DDS must enter list code 581 (Adoption does not apply due to changed vocational profile) in Item 26 of the SSA-831.

5. Prior favorable determination or decision is terminated

A prior determination or decision is not adopted when the record is in terminated status. For using queries to determine current eligibility or entitlement, see DI 28030.010. When a title XVI prior favorable determination or decision is in suspense for technical reasons, see DI 27515.020A.

F. Other factors to consider

1. Prior determination or decision is a CDR continuance

A currently entitled individual may have undergone one or more CDRs before filing a new claim for a different type of benefit. The DDS must review the basis for the prior favorable determination or decision to determine whether collateral estoppel applies. For how to determine the basis for the CDR continuance using the SSA-832/833, see DI 28084.020C.

a. Prior determination or decision is a CDR continuance based on no medical improvement (MI)

Review the most recent CDR continuance based on meeting or equaling a listing or medical-vocational rules to determine whether collateral estoppel applies. When there are no CDR continuances other than for no MI, review the basis of the claimant’s initial favorable determination or decision to determine whether collateral estoppel applies. Ensure none of the restrictions in DI 27515.001E applies.

b. Prior determination is an administrative CDR continuance due to a lost folder issue.

Collateral estoppel does not apply. The DDS must complete development and make a new determination.

When the determination on the new claim is a denial, the DDS must enter list code 587 (Adoption does not apply - CDR continuance due to lost folder) in Item 26 of the SSA-831.

2. MI

Evidence obtained in the new claim may indicate medical improvement (MI) or that an exception to MI applies. MI or an exception to MI raises a CDR issue in the claimant’s existing entitlement regardless of whether collateral estoppel applies or a new determination is favorable or unfavorable. For CDR issues in collateral estoppel claims, see DI 27515.050.

G. Different determinations or decisions for the same period

The determination in a new claim may differ from the determination or decision in a prior claim when collateral estoppel does not apply. The determinations or decisions may appear to conflict with each other, however these are not considered conflicting determinations. For more information on different determinations or decisions for the same period, see DI 27515.035.

H. Review, closure, and completion of the SSA-831

When collateral estoppel applies, the DDS may, with some exceptions, make the determination without medical consultant (MC) or psychological consultant (PC) review. For additional information, see DI 24501.001B.2 and DI 24501.002A.

When the potential onset date (POD) in the new claim is earlier than the EOD in the prior favorable determination or decision, the DDS must complete development for the period not previously adjudicated to determine the established onset date (EOD). This will require adjudication in the usual manner for the earlier period, including MC or PC review and signature.

For information on medical evaluation, see DI 24501.002. Enter the regulation basis code “CE” for title II claims and “ACE” for title XVI claims in Item 22 of the SSA-831.

NOTE: Because eCAT functionality requires an MC/PC signature, the DDS may process collateral estoppel determinations that do not require an MC/PC signature outside of eCAT.

DI 27515.005 Changes to the Listing of Impairments and Collateral Estoppel

A. Changes to the Listing of Impairments

The Listing of Impairments undergoes periodic revisions that may change the rules to find that a claimant meets or equals a listing.

When the basis for the prior favorable determination or decision was meeting or equaling a listing, and that listing has not substantively changed or become more restrictive (i.e., more difficult to satisfy), collateral estoppel applies, provided none of the restrictions in DI 27515.001E applies.

When the basis for the prior favorable determination or decision was medical vocational rules, collateral estoppel applies except when:

  • The medical-vocational rules have changed (e.g., removal of inability to communicate in English as an education category), or

  • One of the restrictions in DI 27515.001E applies.

B. Changes to the Listing of Impairments - table

When the basis for the prior favorable determination or decision was meeting or equaling a listing, and that listing has substantially changed or become more restrictive (i.e., more difficult to satisfy), collateral estoppel does not apply.

The table below shows the listings that have substantially changed or become more restrictive (i.e., more difficult to satisfy) over time and the date of the last such revision. When a listing is not in the table, it has not substantively changed or become more restrictive since initially published.

The table below is distinct from the table for res judicata determinations. For res judicata determinations, see DI 27516.010F.

Impairments/Listings Involved Date of Change

Instruction

1.00 Musculoskeletal System

 

All musculoskeletal disorders

02/19/2002

When the basis of the prior favorable determination or decision was meeting or equaling a 1.00 listing before 02/19/2002, collateral estoppel does not apply and a new determination is required.

2.00 Special Senses and Speech
Complete homonymous hemianopsia (listing 2.05) 05/24/2002 When the basis for the prior favorable determination or decision was meeting or equaling listing 2.05 before 05/24/2002, collateral estoppel does not apply and a new determination is required.
3.00 Respiratory Disorders
Asthma with attacks occurring at least once every 2 months or 6 times in a year (listing 3.03B) 10/07/2016 When the basis for the prior favorable determination or decision was meeting or equaling listing 3.03B before 10/07/2016, collateral estoppel does not apply and a new determination is required.
4.00 Cardiovascular System

 

 

All cardiovascular disorders

04/13/2006

When the basis for the prior favorable determination or decision was meeting or equaling a 4.00 listing before 04/13/2006, collateral estoppel does not apply and a new determination is required.

5.00 Digestive System

 

 

All digestive disorders

07/25/2019

When the basis of the prior favorable determination or decision was meeting or equaling a 5.00 listing before 12/18/2007, collateral estoppel does not apply and a new determination is required.

7.00 Hematological Disorders

 

 

All hematological disorders

05/18/2015

When the basis of the prior favorable determination or decision was meeting or equaling a 7.00 listing before 05/18/2015, collateral estoppel does not apply and a new determination is required.

9.00 Endocrine Disorders

 

 

Obesity (listing 9.09) 10/25/1999 When the basis for the prior favorable determination or decision was meeting or equaling listing 9.09 before 10/25/1999, collateral estoppel does not apply and a new determination is required.

All endocrine disorders except listing 9.08C and 9.09

06/07/2011

When the basis for the prior favorable determination or decision was meeting or equaling a 9.00 listing other than listing 9.08C, before 06/07/2011, collateral estoppel does not apply and a new determination is required.

Listing 9.08C was evaluated under the criteria for listings 2.02, 2.03, or 2.04, which have not substantively changed or become more restrictive.

See the entry for Obesity for instructions on listing 9.09.

10.00 Congenital Disorders that Affect Multiple Body Systems (or Multiple Body Systems before 04/15/2013)

 

 

Any disorder in the Multiple Body System

07/02/1993

When the basis for the prior favorable determination or decision was meeting or equaling a 10.00 listing before 07/02/1993, collateral estoppel does not apply and a new determination is required.

11.00 Neurological Disorders

 

 

All neurological disorders except amyotrophic lateral sclerosis (ALS)

09/29/2016

When the basis for the prior favorable determination or decision was meeting or equaling an 11.00 listing, other than listing 11.10, before 09/29/2016, collateral estoppel does not apply and a new determination is required.

12.00 Mental Disorders

 

 

All mental disorders

01/17/2017

When the basis for the prior favorable determination or decision was meeting or equaling a 12.00 listing before 01/17/2017, collateral estoppel does not apply and a new determination is required.

13.00 Cancer (Malignant Neoplastic Diseases)

 

 

Uterus - carcinoma or sarcoma with total pelvic exenteration (Listing 13.25C)

12/15/2004

When the basis for the prior favorable determination or decision was meeting or equaling listing 13.25C before 12/15/2004, collateral estoppel does not apply and a new determination is required.

14.00 Immune Disorders

 

 

All immune system disorders except human immunodeficiency virus (HIV) infection

6/16/2008

When the basis for the prior favorable determination or decision was meeting or equaling a 14.00 listing, other than the HIV listing, before 06/16/2008, collateral estoppel does not apply and new determination is required.

Human immunodeficiency virus (HIV) infection (listing 14.11)

01/17/2017

When the basis for the prior favorable determination or decision was meeting or equaling listing 14.08 before 01/17/2017, collateral estoppel does not apply and a new determination is required.

C. Changes to the Listing of Impairments precludes collateral estoppel

When collateral estoppel does not apply due to a change in the listings, the Disability Determination Services (DDS) must complete development and make a new determination.

When the determination on the new claim is a denial, the DDS must enter list code 586 (Adoption does not apply due to changes in the listings) in Item 26 of the SSA-831. For disability related list codes, see DI 33530.005.

DI 27515.010 Changed Vocational Profile and Collateral Estoppel

A. Policy

When the basis of the prior favorable determination or decision was medical-vocational rules and the claimant has performed substantial gainful activity (SGA) since the date of the prior favorable determination or decision, he or she may have a changed vocational profile. When the claimant has a changed vocational profile, collateral estoppel does not apply and a new determination is required.

B. Procedure

When the claimant has performed SGA since the date of the prior favorable determination or decision, the Disability Determination Services (DDS) must determine whether the claimant’s work activity is vocationally relevant.

1. Determine whether work activity is vocationally relevant

When the claimant’s work activity since the prior determination or decision meets all relevancy requirements in DI 25005.015, the work is vocationally relevant and the DDS must consider the work at steps 4 and 5 of the sequential evaluation process.

The following work factors apply:

  • The work activity may meet the requirements of an unsuccessful work attempt (UWA), or

  • Subsidy or impairment related work expenses (IRWE) may reduce the earnings below the SGA level, or

  • Averaging of the wages may apply and reduce the earnings to below the SGA level.

For more information, see:

NOTE: The FO completes work activity development prior to transferring the new claim to the DDS for a determination. For information on FO and DDS responsibilities for work development, see DI 11011.140A.

2. Work activity is vocationally relevant

When the claimant’s work activity since the prior favorable determination or decision is vocationally relevant, the DDS must consider the basis for the prior favorable determination or decision as follows:

  1. a. 

    Meets or equals a listing

When the basis of the prior favorable determination or decision was meeting or equaling a listing, the claimant does not have a changed vocational profile regardless of work activity. Collateral estoppel applies when the listing has not substantially changed or become more restrictive in accordance with DI 27515.005B. However, evidence of work activity may indicate medical improvement (MI). When a CDR is required, see DI 27515.050B1.

b. Medical-vocational rules

When the basis of the prior favorable determination or decision was medical-vocational rules and the work activity since the prior determination or decision meets all relevancy requirements in DI 25005.015, the claimant has a changed vocational profile. Collateral estoppel does not apply and a new determination is required. In addition, evidence of work activity may indicate MI. When a CDR is required, see DI 27515.050B2.

c. CDR continuance

When the most recent favorable determination or decision was a CDR and the work activity since that determination or decision meets all relevancy requirements in DI 25005.015, the DDS must determine the basis for the CDR continuance:

  • When the basis for the CDR continuance was meeting or equaling a listing, see DI 27515.010B2a.

  • When the basis for the CDR continuance was medical-vocational rules, see DI 27515.010B2b.

  • When the basis for the CDR continuance was no MI, the DDS must continue to review earlier determinations or decisions to find the most recent favorable determination or decision based on meeting or equaling a listing or medical-vocational rules and follow the procedures described above in DI 27515.010B2a or DI 27515.010B2b.

d. Basis unknown

When it is not possible to determine the basis of the prior favorable determination or decision, collateral estoppel does not apply and a new determination is required.

C. Changed vocational profile precludes collateral estoppel

When collateral estoppel does not apply due to a changed vocational profile, the DDS must complete development and make a new determination.

When the determination on the new claim is a denial, the DDS must enter list code 581 (Adoption does not apply due to changed vocational profile) in Item 26 of the SSA-831. For disability related list codes, see DI 33530.005.

DI 27515.015 Association of Prior Paper Folder in Collateral Estoppel Claims

When the prior favorable determination or decision is not in the certified electronic folder (CEF), follow the procedures below for requesting and associating the prior paper folder.

A. Field Office (FO) responsibilities

The FO will request the prior paper folder in accordance with DI 11005.085B before transferring the new claim to the Disability Determination Services (DDS) for determination.

Complete Item 7 on the SSA-3367 to document the prior paper folder request.

Do not delay transferring the new claim to the DDS while obtaining the prior paper folder. Once received, route the prior paper folder to the DDS to associate with the pending claim.

When the prior paper folder cannot be located, include a copy of the prior SSA-831 and SSA-832/833 when available.

B. DDS responsibilities

1. Prior paper folder not received

The DDS will request the prior paper folder per DI 20505.015 when it is not received through the FO request and the prior paper folder is needed to:

  • Determine whether collateral estoppel applies when sufficient evidence is not available by query or from the SSA-831/832/833,

  • Resolve a continuing disability review (CDR) issue, or

  • Assist in determining onset of disability.

2. Prior paper folder not available or destroyed

When the prior paper folder is not associated or available despite attempts to obtain it and none of the restrictions in DI 27515.001E apply, adopt the prior favorable determination or decision based on:

  • The prior SSA-831/832/833, or

  • The Disability Determination Services Query (DDSQ).

NOTE: When the DDS adopts a prior favorable determination or decision using the DDSQ or SSA-831/832/833, ensure these documents are included in the CEF.

DI 27515.020 Special Situations in Collateral Estoppel Claims

A. New title II claim - title XVI disability previously established

  • Prepare a title II determination adopting the prior title XVI determination or decision under Federal criteria when none of the exceptions in DI 27515.001E applies.

  • Adopt the prior title XVI determination or decision even when in suspense for technical issues. Collateral estoppel does not apply when the prior favorable determination or decision is in terminated status. For using queries to determine current title XVI eligibility, see DI 28030.010.

  • Review the prior favorable determination or decision when needed to determine the established onset date (EOD) in accordance with guidelines in the table below. For requesting a prior paper folder, see DI 20505.015.

When the EOD in the prior favorable title XVI determination or decision is…

Then...
The date of filing and evidence supports an earlier EOD

Establish the earlier EOD in the title II determination as warranted by the evidence.

A conversion case which has been continued under Federal criteria

Establish the title II EOD as the continuance under Federal criteria unless the evidence warrants an earlier EOD.

NOTE: When collateral estoppel applies, the Disability Determination Services (DDS) may establish a title II EOD later than the date set by a prior title XVI determination or decision because of the performance of substantial gainful activity (SGA) after the title XVI EOD or because the date first insured is later than the title XVI EOD.

B. New title XVI claim – title XVI claim previously denied for technical reasons

The DDS may have made a favorable determination on an initial title XVI claim for Supplemental Security Income (SSI) based on disability or blindness, but the FO technically denied the claim (e.g., excess income) before issuing any benefit payment.

When the claimant files a new application, collateral estoppel does not apply and a new determination is required.

DI 27515.035 Different Determinations or Decisions for the Same Period in Separate Claims

A. Different determinations or decisions that are policy-compliant

Generally, the determination or decision for claims under different titles and benefit types should agree. However, different determinations or decisions may be appropriate because the rules for determining disability differ or because eligibility factors are not satisfied.

Examples  include:

  • Collateral estoppel does not apply due to changes in the listings and the evidence in the new claim results in a denial using the current rules.

  • Collateral estoppel does not apply due to a changed vocational profile and the evidence in the new claim results in a denial at steps 4 or 5 of the sequential evaluation process.

For information on when collateral estoppel does not apply, see DI 27515.001E.

B. Different determinations or decisions that are not policy-compliant

1. Collateral estoppel not applied in prior determination and decision

When the Disability Determination Services (DDS) determines that collateral estoppel should have applied in a prior determination or decision but was not applied, reopen the determination or decision to correct the error in accordance with DI 27501.005. For conditions and time limits to reopening a prior determination or decision, see DI 27501.001.

2. Collateral estoppel applied in a prior determination or decision

When the DDS determines that collateral estoppel was applied in a prior favorable determination or decision, but should not have been applied, collateral estoppel does not apply to the new claim. The DDS must complete development to make a new determination and raise a CDR on the current entitlement. For CDR issues when collateral estoppel does not apply, see DI 27515.050B2.

a. Evidence supports a CDR continuance

When the DDS determines that the evidence obtained in conjunction with the erroneously adopted claim supports an allowance, issue a continuing disability review (CDR) continuance. The DDS must annotate "Collateral estoppel erroneously applied - evidence supports a favorable determination” in Item 24 of the SSA-832/833.

b. Evidence supports a CDR cessation

When the DDS determines that the evidence obtained in conjunction with the erroneously adopted claim does not support an allowance, issue a CDR cessation based on the error exception. The DDS must annotate "Collateral estoppel erroneously applied - evidence does not support a favorable determination” in Item 24 of the SSA-832/833.

DI 27515.050 Continuing Disability Review (CDR) Issues in Collateral Estoppel Claims

A. When to raise a CDR issue

When evidence in the new claim raises a CDR issue (either potential medical improvement (MI) or a potential exception to MI), a CDR is required whether or not a common issue exists between the two claims and regardless of when the periodic review is scheduled. For information on MI in CDRs, see DI 28010.000. For information on exceptions to MI, see DI 28020.000.

NOTE: Neither the filing of a new claim nor an overdue diary is an event that raises a CDR issue. For events that may initiate a CDR, see DI 13001.005.

For more information on CDRs, see:

  • DI 13010.012 Protection from Medical Review Based on Work Activity.

  • DI 13010.135 Title II Continuing Disability Considerations in Blindness Cases.

  • DI 55025.010 Processing the Medical Continuing Disability Review (CDR) for Beneficiaries with Tickets.

B. Procedure

1. Collateral estoppel applies

Process the new claim in accordance with DI 27515.001H.

When evidence in the new claim raises a CDR issue, the Disability Determination Services (DDS) must apply collateral estoppel and adopt the prior favorable determination or decision in the new claim. The DDS will then transfer the claim to the field office (FO) to initiate a concurrent CDR.

The DDS must annotate “CDR is required” in Item 34 of the SSA-831 and add a message in eView to ask the FO to initiate the CDR.

2. Collateral estoppel does not apply

When collateral estoppel does not apply, the DDS must complete development and make a new determination.

When evidence indicates MI or an exception to MI, a CDR is required regardless of when the periodic review is scheduled. The DDS must resolve the issue prior to making a determination on the new claim.

The DDS will send an assistance request (AR) for the FO to initiate a CDR and notify the beneficiary of the CDR on the existing entitlement. The DDS must adjudicate the new claim and the CDR on the existing entitlement at the same time to ensure that, in the event of a cessation, both claims will move through the appeals process together. Follow regional guidance for AR follow up time-frames.

In this situation, the official folder will be paper because the FO will add the CDR as an Electronic Disability Collect System (EDCS) exclusion. For more information on processing multiple claims when at least one of the claims is an EDCS exclusion, see DI 81010.030C.

When the prior favorable determination or decision is not in the certified electronic folder (CEF), the DDS will make an effort to obtain the prior paper folder for the CDR when not received.

DI 27515.055 Work Incentive Status and Collateral Estoppel Claims

A. Introduction

The Social Security Act provides certain work incentives to assist and encourage disabled individuals who attempt to return to work. Accordingly, a beneficiary or recipient may file a new disability claim under another title (or for another type of benefit under the same title) when there is/was intervening work activity covered under a work incentive provision.

B. Resolve work issue first

The field office (FO) must resolve the work issue prior to the Disability Determination Services (DDS) making a determination. For information on FO and DDS responsibilities for work development, see DI 11010.140.

When the claimant alleges a visual impairment and is currently engaging in substantial gainful activity (SGA), the DDS must make a statutory blindness determination as explained in DI 11005.070D. In order to meet the duration requirement for disability, the claimant must meet the disability requirements and not have performed SGA for 12 months, except in cases of statutory blindness under title XVI or when the statutorily blind claimant is age 55 or older and work comparability provisions apply. For additional information on the duration requirement, see DI 25505.000.

When the claimant meets all requirements, including duration, adopt the prior favorable determination or decision when none of the restrictions in DI 27515.001E applies. Do not close the period for SGA. The FO is responsible for placing the new claim in the applicable work incentive status. When the prior favorable determination or decision is medically ceased, see DI 27515.055D.

When collateral estoppel does not apply due to not meeting the duration requirement and the new claim is a denial, the DDS must enter list code 583 (Adoption does not apply - claimant does not meet duration) in Item 26 of the SSA-831.

C. Medical issues

When a medical improvement (MI) issue or an error exception to MI issue needs resolution on the existing entitlement, see DI 27515.050.

D. Vocational rehabilitation section 301 Cases

When disability is medically ceased, a claimant may continue to receive benefits because of participation in an approved VR program (section 301 payments). Collateral estoppel does not apply. The DDS must complete development and make a new determination when the prior claim is in section 301 payment status. For more information on 301 cases, see DI 28060.001.


DI 27515 TN BASIC - Collateral Estoppel - 7/29/2020