Identification Number:
DI 11011 TN 2
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 110 – Initial Claims Processing
Subchapter 11 – Collateral Estoppel
Transmittal No. 2, 09/11/2020

Audience

PSC: CA, CS, DE, DEC, DTE, ICDS, IES, ISRA, RECONR, SCPS, TSA, TST;
OCO-OEIO: BET, CR, CTE, ERE, FCR, FDE, FDEC, RECONE, RECONR, RECOVR;
OCO-ODO: BET, BTE, CR, CST, CTE, CTE TE, DE, DEC, DS, PAS, PETE, PETL, RCOVTA, RECONE, RECOVR;
ODD-DDS: REF;
FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, DRT, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

ODP

Effective Date

Upon Receipt

Background

This is a Quick Action Transmittal. These revisions do not change or introduce new policy or procedures.

Summary of Changes

DI 11011.001 Collateral Estoppel - General

We clarified that a new application is not required in post-eligibility events and added a reference to SI 02301.201 in DI 11011.001E.1.

DI 11011.001 Collateral Estoppel - General

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 collateral estoppel claims

The DDS has jurisdiction for all potential collateral estoppel claims received in the field office (FO) and pending below the administrative law judge (ALJ) level. Although the FO has jurisdiction for work activity development in a claim, the FO will not make collateral estoppel determinations (effective 02/14/2019).

The Processing Service Center (PSC) may also make collateral estoppel determinations when the PSC receives the new claim directly. For more information, see DI 40120.001.

C. FO instructions for potential collateral estoppel claims

NOTE: The following instructions apply only to potential collateral estoppel claims. The FO will continue to develop potential res judicata claims. For FO res judicata development and processing, see DI 27516.001. For initial title II technical denials and claims not requiring a disability determination, see DI 11010.075.

When an individual currently entitled to disability benefits files a subsequent title II or title XVI application for disability benefits, complete the full front-end disability and non-disability development, including completing SSA-3368 Disability Report – Adult, SSA-827 Authorization to Disclose Information to the Social Security Administration, and an SSA-3367 Disability Report – Field Office. This includes development of any work performed after the established onset date (EOD) of the current entitlement. For initial claims processing, see DI 11000.000. For guidance on processing new initial Supplemental Security Income (SSI) claims, see DI 11055.000. For more information on documenting work activity, see DI 10501.025. Inform the claimant that a continuing disability review (CDR) may be required on his or her existing entitlement. Once FO development is complete, transfer the subsequent claim to the DDS for a determination.

IMPORTANT: The FO must inform the claimant that the new claim could result in a denial or potentially raise a CDR on the existing entitlement. During the interview, verbally explain to the claimant and add a remark to the RMKS screen or SSI application page. For example, “I understand that SSA will make a determination for this application, which could be favorable or unfavorable. I also understand that SSA may need to review continuing eligibility for my current disability benefits. SSA will notify me if they need to review my current benefits.” When it is not possible to inform the claimant verbally, the FO will issue a notice with the explanation. The FO will not initiate a CDR on the existing entitlement until requested by the DDS.

The FO will alert the DDS to consider collateral estoppel on the subsequent claim by completing the following actions:

  • Add the “Potential Collateral Estoppel Issues Apply” case flag to the Electronic Disability Collect System (EDCS). The flag does not indicate an allowance based on collateral estoppel. The flag must remain in the certified electronic folder (CEF) at all times. Do not remove the flag unless added erroneously (e.g., claimant is not currently entitled to disability benefits). When the claim is excluded from electronic processing, add the paper collateral estoppel flag:

  • Document all prior filings with a medical determination or decision, or substantial gainful activity (SGA) denial, on the SSA-3367. This includes the prior favorable determination or decision for the existing entitlement.

  • Obtain a current Master Benefit Record (MBR) or Supplemental Security Income Display (SSID) query to document the existing disability entitlement. Fax a copy of the query into the CEF using the appropriate barcode cover sheet.

  • Transfer the subsequent claim to the DDS for adoption or a new determination, depending on the facts of the case.

When the prior favorable determination or decision is not in the CEF, the FO will request the paper folder under established procedures. For more information, see DI 11005.085B and DI 27515.015. The FO will not delay transferring the subsequent claim to the DDS while obtaining the prior file. Complete Item 7 on the SSA-3367 to document the prior paper folder request. Once received, route the paper folder to the DDS to associate with the pending claim.

D. CDR required on the existing entitlement

During the course of processing the subsequent claim, DDS may determine that a CDR is required on the existing entitlement. The DDS will notify the FO when to initiate a CDR following instructions in DI 27515.050. The FO will not initiate a CDR on the existing entitlement unless requested by the DDS.

Below are two scenarios when a CDR may be required:

1. Collateral estoppel applies

a. The DDS will complete the following actions:

  • Apply collateral estoppel on the subsequent claim, and

  • Create a message in eView for the FO to initiate and transfer to the DDS a concurrent CDR.

b. The FO will complete the following actions:

  • Process the subsequent claim determination to completion,

  • Notify the claimant that we will conduct a CDR on all disability entitlements,

  • Initiate a concurrent medical CDR in the Disability Control File (DCF),

  • Establish the CDR in EDCS,

  • Select “Paper” as the type of SSA-454 on the EDCS Form(s) Selection page,

  • Select "Miscellaneous" as the CDR Type on the EDCS CDR Information page,

  • Print the SSA-3368 and SSA-827 from the initial claim and fax them into the CEF, and

  • Transfer the CDR to the DDS.

NOTE: The FO only needs to notify the beneficiary that we will conduct a review. Initiate the CDR in the DCF and create the EDCS case using the disability forms from the initial claim (e.g., SSA-3368 and SSA-827). There is no need for an SSA-454.

2. Collateral estoppel does not apply

a. The DDS will complete the following actions:

  • Hold the subsequent claim, and

  • Create an Assistance Request (AR) in eView for the FO to initiate a CDR on the existing entitlement and transfer to the DDS.

b. The FO will complete the following actions:

  • Notify the claimant that we will conduct a CDR on the existing entitlement,

  • Initiate a medical CDR on the existing entitlement, and

  • Due to systems limitations, convert the CDR to a paper folder and ensure that the paper folder includes all relevant evidence/documentation before transferring to the DDS.

NOTE: Under this scenario, DDS may reach different determinations in the two claims (e.g., denial in the subsequent claim, but continuance in the CDR) because these claims are adjudicated under different review standards.

E. Special situations

1. New application after a claim with a medical allowance is denied by the FO for technical issues

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

When the claimant files a subsequent application for disability benefits, the claim must be processed in the usual manner for initial claims, including the full front-end development (e.g., SSA-3368, SSA-827, and SSA-3367). The FO will document the prior filings on the SSA-3367 and transfer the claim to the DDS for a new determination. The FO will not add the “Potential Collateral Estoppel Issues Apply” case flag because collateral estoppel does not apply.

NOTE: In SSI posteligibility (PE) events, a reinstatement is a resumption of benefits for an existing entitlement. A new application is not required. For more information, see SI 02301.201.

Additional documentation

Be sure to ask the claimant about:

  • Work activity, and

  • Possible medical improvement (MI) issues since the EOD of the previous medical allowance.

2. New application for disability insurance benefits (DIB), disabled widow(er) benefits (DWB), or childhood disability benefits (CDB)

When an individual with an existing entitlement to title II disability benefits files a subsequent application for DIB, DWB, or CDB, collateral estoppel potentially applies. When technical requirements are met, the FO will request the prior folder when not in the CEF, and transfer to the DDS for a determination. The FO will add the “Potential Collateral Estoppel Issues Apply” case flag.


DI 11011 TN 2 - Collateral Estoppel - 9/11/2020