Identification Number:
DI 27515 TN 1
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. 1, 08/05/2020

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

Upon Receipt

Background

 

Summary of Changes

DI 27515.005 Changes to the Listing of Impairments and Collateral Estoppel

The 5.00 Digestive System row was corrected to show 12/18/2007 as the date of change to match the instructions column in the DI 27515.005B table.

DI 27515.010 Changed Vocational Profile and Collateral Estoppel

Hyperlinks in DI 27515.010B were fixed.

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 (i.e., removal of inability to communicate in English), 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

12/18/2007

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 11010.140.

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 27515.050B.1.

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 27515.050B.2.

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 TN 1 - Collateral Estoppel - 8/05/2020