Retention Date: 3/30/2025
A. Purpose
This emergency message (EM) provides instructions on reopening and revising under the one-year rule, based on the agency’s July 13, 2024, change of position (CoP) on collateral estoppel in disability claims.
B. Background
1. COP and Reopening
A CoP occurs when a policy or legal precedent previously used to adjudicate claims, 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.
2. Changes to the Administrative Criteria for Applying Collateral Estoppel in Disability Claims
Beginning 7/13/2024, we will not again decide the issue of disability if, in our prior final agency determination or decision (and any subsequent continuance determination or decision), we have already decided that the individual is disabled for the period covered by the new application 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.
C. Claim Identification
The agency is proactively identifying claims where the Disability Determination Services (DDS) denied a current disability beneficiary or Supplemental Security Income (SSI) recipient’s subsequent disability claim between 7/12/2023 and 7/13/2024 after determining that collateral estoppel did not apply.
The Field Office (FO) will receive a list of previously adjudicated disability claims meeting the following criteria:
1. The Electronic Disability Collect System (EDCS) case contains the “potential collateral estoppel case” flag or a disability denial list code of 586, 587, or 588 is present on the SSA-831 (Disability Determination Transmittal),
2. DDS issued an initial denial determination made between 7/12/2023 and 7/13/2024, and
3. The claimant was receiving Social Security benefits or SSI payments (generally indicated by the LAF or PSY field code beginning with C) based on disability as of 7/13/2024.
NOTE 1: Many of these cases have recent determinations and the claimant may have requested an appeal. If you encounter a case with a pending appeal, do not reopen the determination. The office of jurisdiction with the pending appeal will follow instructions in EM-24033 to process the appeal.
NOTE 2: The claimant may have questioned the prior final determination in writing. If the writing was not previously addressed by the FO and no appeal record exists, determine whether the closed claim is covered under the COP one-year reopening rule (see DI 27505.020B.2.), and, if so, whether collateral estoppel will now apply under the COP. If these criteria are met, reopen the claim and apply collateral estoppel in a revised determination following the instructions in DI 11011.001 (Reminder: the FO cannot reopen a decision made at the hearing or Appeals Council (AC) level. Only the hearing or AC office can reopen and revise their decision.).
D. Diligent Pursuit
Diligent pursuit policy allows us to revise a determination “when an investigation begins within the applicable time limit, but the time limit subsequently lapses before the revision is completed.” DI 27505.005C. We will presume that the Agency diligently pursued its investigation if the investigation and any revision are completed within six months from the date the investigation began. Id.
We should attempt to complete reopening and revision of claims under this CoP within one year of the notice date, or within six months of the affirmative action in writing (see below). However, we may issue favorable revisions at any time, assuming that the investigation began within the applicable time limit.
E. Payment Retroactivity
For determinations reopened and revised under the one-year rule due to the administrative change in collateral estoppel criteria, do not limit payment retroactivity to the date of the CoP. When a prior determination is reopened per the instructions in this EM, the revised determination may apply to the entire period at issue in the claim being adjudicated.
F. Processing Instructions
Each FO will be sent a list of closed claims to review and evaluate for reopening based on the collateral estoppel CoP criteria.
1. Affirmative Action in Writing
As soon as possible upon receipt of a list of closed claims to review and evaluate for reopening, the receiving office will examine each claim file and add a Report of Contact (ROC) with the following language:
On [the date the list was received], we noted that the final determination on this claim may require revision due to the Agency’s change of position on collateral estoppel. This serves as an affirmative action in writing questioning the prior determination.
2. Claim Review
Review the closed claim and determine whether collateral estoppel would apply under the new criteria (see DI 11011.001A) and whether 12 months passed between the date of the notice of the initial determination on that claim and the date of the affirmative action in writing.
IMPORTANT: The FO cannot reopen a decision made at the hearing or Appeals Council (AC) level. Only the hearing or AC office can reopen and revise their decision.
3. Claim Processing
Reopening the claim denial requires the technician to create a new record using information from the prior claim. Use the same protective filing date from the denied prior claim. To determine if the claimant’s payment or contact information has been updated since the prior claim filing date, review the information on the Master Beneficiary Record (MBR) or SSI Display (SSID) query from the active record with the prior favorable determination.
Add the following remarks to the new record on the report of contact screen: “Reopened and revised determination based on collateral estoppel CoP one-year rule.”
NOTE: Do not transfer a claim back to the DDS for an established onset date (EOD) determination. If all the conditions for reopening under the collateral estoppel CoP are satisfied, the FO will determine the new claim EOD based on the table in DI 11011.001E.2. Retroactivity is not limited to the CoP date. However, under the CoP, we will not revise the disability determination for any period not covered by collateral estoppel.
4. Model Added Language for Notice of Award
Add the below paragraph to the Explanation of Decision section of the Notice of Award in the Document Processing System (DPS):
Due to a change in SSA rules, we reviewed your prior disability claim. After completing review of your claim using the new rules, we revised our prior determination made on XX/XX/XXXX.
Note: For dictated paragraphs and systems generated notices in Title II awards, see NL 00725.003. For preparing the SSA-L8025 (SSI Notice of Award), see NL 00802.010. For generating a manual notice, see NL 00702.136.
G. When claimant contact is required
When the FO determines that collateral estoppel will now apply to the prior disability claim covered under the CoP, but there is not sufficient non-medical information in the file to effectuate the new award (e.g., when a pre-effectuation review is necessary per instructions in SI 00603.031), schedule an appointment for a telephone or in-office interview with the claimant.
Aim at completing all necessary documentation during the interview. When the necessary documentation is not obtainable during the interview, provide the claimant with a list of the additional documents required (e.g., attestation cover notice with proof request) and explain the importance of returning forms or evidence promptly. For filing for other program benefits requirements in SSI claims, see SI 00510.001.
When closing out a collateral estoppel CoP claim due to missed pre-effectuation appointments or missing essential evidence, add a special message with the remarks “Collateral estoppel CoP closeout. Missing essential evidence or information necessary to allow claim.” to the applicable Master Beneficiary Record (MBR) or SSI Display (SSID). For closeout procedures due to failure to submit essential evidence, see GN 01010.410 and SI 00601.110.
Contacts:
Direct all program-related and technical questions to your Regional Office (RO) channels. RO staff refer questions, concerns, or problems to their Central Office contacts.
References:
20 CFR 404.988 and 416.1488 Conditions for Reopening
DI 11011.001 Applying Collateral Estoppel in Disability Claims
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 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
GN 01010.410 Failure to Submit Essential Evidence
NL 00725.003 MCS - Notice Documentation
NL 00802.010 Initial Award Notice — SSA-L8025, SSI Notice of Award
SI 00510.001 Overview of the Filing for Other Program Benefits Requirement
SI 00601.110 Final Request - Failure to Cooperate (N18) - Initial Claims
SI 00603.031 When a Preeffectuation Review Contact (PERC) Is Required
EM-24033 Disability Collateral Estoppel Policy – Change of Position – One-Time-Only Instructions
HALLEX I-2-9 Reopening and Revision
HALLEX I-3-9