Identification Number:
DI 52707 TN 1
Intended Audience:See Transmittal Sheet
Originating Office:ORDP
Title:Earley Acquiescence Ruling
Type:POMS Full Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM

Part DI – Disability Insurance

Chapter 527 – Acquiescence Rulings

Subchapter 07 – Earley Acquiescence Ruling

Transmittal No. 1, 11/29/2024

Audience

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

Originating Component

ODP

Effective Date

12/02/2024

Background

As a result of the Sixth Circuit Court of Appeals ruling in the case of Earley vs. Commissioner of Social Security, SSA has created a new POMS sub-chapter and corresponding sections explaining how the agency will implement this acquiescence ruling

Summary of Changes

DI 52707.001 General Information on the Earley Acquiescence Ruling (AR)

This new section provides general information about the Earley AR.

DI 52707.005 Scope of the Earley Acquiescence Ruling (AR)

This is new section explains the scope of the Earley AR.

DI 52707.010 How the Earley Acquiescence Ruling (AR) Applies

This new section explains how the Earley AR applies.

DI 52707.025 Processing Center (PC) Responsibilities

This new section explains the PCresponsibilities regarding the Earley AR.

DI 52707.030 Exhibits-Notices for Denying Requests for Readjudication of Interim Period Cases

This new section provides guidance on denying requests for readjudication of Interim period cases.

DI 52707.001 General Information on the Earley Acquiescence Ruling (AR)

A. Introduction

This subchapter provides field office (FO), disability determination services (DDS), and processing center (PC) case processing instructions to implement AR 24-X(6) acquiescing in the Sixth Circuit Court of Appeals’ decision in Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) (Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)): Effect of Prior Disability Findings on Adjudication of a Subsequent Disability Claim—Titles II and XVI of the Act.

The Earley AR also serves as notice of rescission of AR 98-4(6) (63 FR 31266), Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997) and AR 98-3(6) (63 FR 29770), Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990).

Although the Earley decision does not apply or discuss Dennard, the Sixth Circuit's rationale in Earley extends equally to AR 98-3(6), which addresses a very similar issue. Indeed, in Drummond, which the Earley decision addresses in depth, the Sixth Circuit relied in part on Dennard. The Sixth Circuit in Earley interpreted Drummond more narrowly than the Social Security Administration (SSA) did in AR 98-4(6), and the Sixth Circuit’s explanations in Earley clarify the standard or the approach for the issues addressed in both AR 98-3(6) and AR 98-4(6). Therefore, the ARs for Dennard and Drummond are both rescinded with the publication of the Earley AR.

The Earley AR differs significantly from the requirements of the Drummond and Dennard ARs. Those ARs provided that when adjudicating a subsequent disability claim arising under the same Title of the Social Security Act as the prior claim, adjudicators must adopt certain findings from the final decision by an Administrative Law Judge (ALJ) or the Appeals Council (AC) on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there was new and material evidence relating to certain findings or there had been a change in the law, regulations, or rulings affecting the finding or the method for arriving at the finding.

B. Background

SSA published AR 24-X(6) on XX/XX/XXXX, to explain how we will apply the Earley decision by the Sixth Circuit Court of Appeals within the circuit. SSA interprets the Earley decision by the Court of Appeals to hold that where a final decision on a prior disability claim contains a finding of a claimant’s residual functional capacity (RFC) or other findings required under the applicable sequential evaluation process for determining disability (see 20 CFR 404.1520, 416.920, 416.924, and DI 52707.010B.1), SSA must consider such finding(s) as evidence in light of all relevant facts and circumstances when adjudicating a subsequent disability claim, arising under the same or different Title of the Social Security Act, involving an unadjudicated period.

C. Policy

AR 24-X(6)

Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) (Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)): Effect of Prior Disability Findings on Adjudication of a Subsequent Disability Claim—Titles II and XVI of the Act.

Issue

Whether, in making a disability determination or decision on a subsequent disability claim with respect to an unadjudicated period, SSA must consider a finding of a claimant’s residual functional capacity (RFC), or other finding required under the sequential evaluation process for determining disability, made in a final decision by an ALJ or the AC on a prior disability claim.

Statute/Regulation/Ruling Citation:

Sections 205(a) and (h) and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a) and (h) and 902(a)(5)), 20 CFR 404.900(a), 404.957(c)(1), 416.1400(a), 416.1457(c)(1), AR 98-3(6) (rescinded), AR 98-4(6) (rescinded).

Circuit:

Sixth (Kentucky, Michigan, Ohio, Tennessee)

Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) (Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997))

Applicability of Ruling:

This ruling applies to determinations and decisions at all administrative levels (i.e., the initial, reconsideration, ALJ hearing, and AC levels).

The decision of the Sixth Circuit in Earley was based, in part, on the panel’s interpretation of the Sixth Circuit’s prior decision in Drummond. Drummond, in turn, relied in part on the Sixth Circuit’s earlier decision in Dennard. The following summaries of the two earlier cases are provided as background material.

Dennard v. Secretary of Health & Human Services, 907 F.2d 598 (6th Cir. 1990)

Mr. Dennard argued that because SSA found him unable to do his past relevant work on his first application for benefits, SSA was precluded from reconsidering this issue and finding in a subsequent decision, involving an unadjudicated period, that Mr. Dennard could perform the same past relevant work. The Sixth Circuit observed that it seemed clear that SSA had reconsidered the nature and extent of Mr. Dennard’s exertional level in his former job. The court stated: “We are persuaded that under the circumstances, we must remand this case to [SSA] . . . to determine whether [Mr.] Dennard is disabled in light of the prior determination that he could not return to his previous employment.”

Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)

Ms. Drummond argued that absent evidence of improvement in her condition, the ALJ’s finding in a prior claim that she was limited to sedentary work precluded SSA from finding in a subsequent claim that she could perform medium work. The Sixth Circuit stated that, “[a]bsent evidence of an improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a previous ALJ.” The court held that SSA could not reexamine issues previously decided, in the absence of new and additional evidence or changed circumstances. The court further stated that, “[j]ust as a Social Security claimant is barred from relitigating an issue that has been previously determined, so is the Commissioner.” After finding that there was not substantial evidence that Ms. Drummond’s condition had improved significantly in the time between the two ALJ decisions, the court concluded that SSA was bound by its previous finding that Ms. Drummond was limited to sedentary work.

Earley vs. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018)

Description of Case:

In 2010, Ms. Earley applied for disability benefits, claiming that she was disabled starting on June 25, 2010. In 2012, an ALJ found that she remained capable of light physical exertion and that she was not disabled for the period from June 25, 2010, through May 15, 2012. Ms. Earley applied again in July 2012, arguing that she became disabled after the decision on her last application. The same ALJ, invoking Drummond and AR 98-4(6), stated that he was bound by his earlier findings, unless Ms. Earley offered new and material evidence of a changed condition. Because the ALJ found that Ms. Earley had failed to do that, the ALJ again found her not disabled and denied her application.

On review, the district court reversed the prior SSA decision. The district court construed Drummond to apply only if it would lead to a favorable outcome for the claimant. Since any preclusive effect of the ALJ’s prior findings would make it more difficult for Ms. Earley to be found disabled, the court found that Drummond did not apply.

On appeal, the Sixth Circuit examined and clarified Drummond. The court found that the key principles protected by Drummond, consistency between proceedings and finality with respect to prior adjudicated applications, apply to both individuals and the government. At the same time, these principles do not prevent the agency from giving a fresh look to a new application containing new evidence or satisfying a new regulatory threshold that covers a new period of alleged disability while being mindful of past rulings and the record in prior proceedings.

The court rejected the argument that, “[i]n reviewing a second application by the same individual . . . the administrative law judge should completely ignore earlier findings and applications.” The court explained that “[f]resh review is not blind review” and that “a later administrative law judge may consider what an earlier judge did if for no other reason than to strive for consistent decision making.” Further, the court explained that “it is fair for an administrative law judge to take the view that, absent new and additional evidence, the first administrative law judge’s findings are a legitimate, albeit not binding, consideration in reviewing a second application” and, at the same time, that “an applicant remains free to bring a second application that introduces no new evidence or very little new evidence after a failed application.” The court cautioned, however, that a claimant “should not have high expectations about success if the second filing mimics the first one and the individual has not reached any new age (or other) threshold to obtain benefits.”

Holding:

The Sixth Circuit stated that, “[w]hen an individual seeks disability benefits for a distinct period of time, each application is entitled to review.” The court explained that if an individual files a subsequent application for the same period and “offers no cognizable explanation for revisiting the first decision, res judicata would bar the second application.” The court further explained an ALJ honors res judicata “principles by considering what an earlier judge found with respect to a later application and by considering the earlier record” and that, accordingly, “it is fair for an administrative law judge to take the view that, absent new and material evidence, the first administrative law judge’s findings are a legitimate, albeit not binding, consideration in reviewing a second application.” Ms. Earley’s new application involved a new period; therefore, the court held that res judicata did not apply. Accordingly, the court remanded the case for the ALJ to reconsider Ms. Earley’s application for benefits under the correct standard.

How Earley Differs from the Agency’s Policy

In a subsequent disability claim, SSA considers the issue of disability with respect to a period that was not adjudicated to be a new issue that requires an independent evaluation. Thus, when adjudicating a subsequent disability claim involving an unadjudicated period, SSA considers the facts and issues de novo in determining or deciding disability with respect to the unadjudicated period. SSA does not consider prior findings made in the final determination or decision on the prior claim in adjudicating disability with respect to the unadjudicated period in the subsequent claim.

In Earley, the Sixth Circuit agreed with SSA’s policy that res judicata does not apply with respect to an unadjudicated period. Yet, the Sixth Circuit disagreed with SSA’s policy that prior disability findings are not to be considered in the adjudication of disability for a previously unadjudicated period in a subsequent claim. Rather, Earley indicates that such prior findings made at the ALJ (hearing) or AC level should be considered in the adjudication of disability for an unadjudicated period in a subsequent claim, stating that “it is fair for an administrative law judge to take the view that, absent new and additional evidence, the first administrative law judge's findings are a legitimate, albeit not binding, consideration in reviewing a second application.” Earley indicates that an adjudicator honors the principles of res judicata “by considering what an earlier judge found with respect to a later application and by considering that earlier record.”

SSA interprets Earley to require that, where a final decision after a hearing on a prior disability claim contains a finding of a claimant’s RFC or other finding required under the sequential evaluation process for determining disability, SSA must consider such finding(s), described in DI 52707.010B.1, as evidence when adjudicating a subsequent disability claim, arising under the same or a different Title of the Social Security Act, involving an unadjudicated period.

How We Will Apply the Earley Decision Within the Circuit

This Ruling applies only to disability findings in cases involving claimants who reside in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision on the subsequent claim at the initial, reconsideration, ALJ hearing, or AC level. Additionally, it applies only where there is a finding of a claimant’s RFC or other finding that is required at a step in the sequential evaluation process for adjudicating disability (provided under 20 CFR 404.1520, 416.920, or 416.924, as appropriate), made in a final decision by an ALJ or the AC on a prior disability claim, regardless of whether a hearing was held.

In making a finding of a claimant’s RFC or other finding that is required at a step in the sequential evaluation process for adjudicating disability, an ALJ or the AC may have made certain subsidiary findings, such as an assessment of the claimant’s symptoms. A subsidiary finding does not constitute a finding that is required at a step in the sequential evaluation process for adjudicating disability, as provided under 20 CFR 404.1520, 416.920, or 416.924.

When an applicant seeks disability benefits for a new period, that application is entitled to review following the applicable sequential evaluation process. However, such review does not exist in a vacuum. When adjudicating a subsequent claim (arising under the same or a different title of the Act as the prior claim), an adjudicator deciding whether a claimant is disabled during an unadjudicated period must consider findings from the decision on the prior application. As the Court recognized in Earley, things change with the passage of time, such as age and physical condition. As a result, each application covering a different period should be reviewed as a new application. However, when a finding of a claimant’s RFC or other finding required under the sequential evaluation process for determining disability differs from that in the prior decision, the adjudicator must make clear that they considered the prior finding as evidence in light of all relevant facts and circumstances.

For example, an adjudicator might consider such factors as: (1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of the claimant’s medical condition; (2) the likelihood of such a change, considering the amount of time between the period adjudicated in the prior claim and the unadjudicated period in the subsequent claim; and (3) the extent to which evidence that was not considered in the final decision on the prior claim provides a basis for making a different finding for the unadjudicated period in the subsequent claim. These are only examples and not intended to create specific requirements as part of the sequential evaluation.

Where the prior finding was about a fact that is subject to change with the passage of time, such as a claimant’s RFC or the severity of an impairment(s), the likelihood that the fact has changed generally increases as the time between the previously adjudicated period and the subsequent period increases. An adjudicator generally should pay particular attention to the lapse of time between the earlier claim and the subsequent claim and the impact of the passage of time on the claim. In situations where minimal time has passed, and no or very little new evidence has been introduced, it is more likely that the prior finding will remain highly probative. But the adjudicator must consider all relevant facts and circumstances on a case-by-case basis. Additionally, a change in the law, regulations, or rulings affecting a relevant finding or the method for arriving at the finding may be a reason why the prior finding is less probative.

DI 52707.005 Scope of the Earley Acquiescence Ruling (AR)

A. Policy

The AR applies at the initial, reconsideration, administrative law judge (ALJ) hearing, or Appeals Council (AC) level when the following are met:

  • There was a decision by an ALJ or the AC on the prior claim and such decision has become final (See DI 52707.010B.3); and

  • The adjudicator is deciding a subsequent disability claim with an unadjudicated period arising under the same Title or a different Title of the Act as a prior disability claim; and

  • The ALJ or AC decision contains findings described in DI 52707.010B.1.a, or DI 52707.010B.1.b, as applicable; and

  • The claimant resides in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision on the subsequent claim at the initial, reconsideration, ALJ hearing, or AC level.

NOTE: The AR does not apply when the requirements for disability on one claim under the same or a different Title (for example, a prior Title XVI child disability claim on which there was a final decision by an ALJ) are not identical to the requirements for disability on the other claim (for example, a current Title XVI adult disability claim).

DI 52707.010 How the Earley Acquiescence Ruling (AR) Applies

A. Policy

1. General

AR 24-X(6) requires adjudicators to apply the principles in DI 52707.010A.2 when:

  1. a. 

    The adjudicator is deciding a subsequent disability claim on or after XX/XX/XXXX (effective date of the AR) with an unadjudicated period.

  2. b. 

    The subsequent claim arises under the same or a different Title of the Act as the prior disability claim on which there has been a final decision by an administrative law judge (ALJ) or the Appeals Council (AC).

  3. c. 

    The requirements for disability on the current claim are identical to the requirements for disability on the prior claim; and

  4. d. 

    The claimant resides in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision on the subsequent claim at the initial, reconsideration, ALJ hearing, or AC level.

2. What the AR requires

  1. a. 

    The adjudicator must consider certain findings from a final decision by an ALJ or the AC on the prior disability claim as evidence when adjudicating the subsequent disability claim involving an unadjudicated period.

  2. b. 

    The requirement to consider prior findings as evidence when adjudicating the subsequent claim applies, as appropriate, only to:

    • A finding of a claimant’s residual functional capacity (RFC), or other finding required at a step in the sequential evaluation process for determining disability for Title II disability claims, or for Title XVI disability claims of adults (individuals aged 18 or older), as described in DI 52707.010B.1.a.; or

    • A finding required at a step in the sequential evaluation process for determining disability for Title XVI disability claims for children (individuals under age 18), as described in DI 52707.010B.1.b.

      NOTE: In making a finding of a claimant’s RFC or other finding that is required at a step in the sequential evaluation process for adjudicating disability, an ALJ or the AC may have made certain subsidiary findings, such as an assessment of the claimant’s symptoms. A subsidiary finding is not a finding that is required at a step in the sequential evaluation process described in 20 CFR 404.1520, 416.920, or 416.924. The Earley AR does not require consideration of past subsidiary findings.

  3. c. 

    The adjudicator must consider the prior findings as evidence in light of all relevant facts and circumstances.

  4. d. 

    In determining the probative value of the prior findings as evidence, an adjudicator might consider such factors as:

    • Whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition.

    • The likelihood of such a change, considering the amount of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim; and

    • The extent to which evidence not considered in the final decision on the prior claim provides a basis for making a different finding for the period being adjudicated in the subsequent claim.

  5. e. 

    When a prior finding was about a fact which is subject to change with the passage of time, the likelihood that such a fact has changed generally increases as the amount of time between the previously adjudicated period and the subsequent period increases. An adjudicator generally should pay particular attention to the lapse of time between the earlier claim and the subsequent claim and the impact of the passage of time on the claim. The adjudicator must consider all relevant facts and circumstances on a case-by-case basis. Additionally, a change in the law, regulations, or rulings affecting a relevant finding or the method for arriving at the finding may be a reason why the prior finding, considered as evidence, is properly departed from in the current determination or decision.

3. Prior file lost or destroyed and decision on prior claim is not available

If the prior file is lost or has been destroyed and the ALJ or AC decision cannot be located anywhere in SSA or by the claimant or claimant's representative, the AR cannot be applied.

NOTE: Generally, files of denied claims are retained in the National Records Center for 5 years.

B. Definitions

1. Finding required at a step in the sequential evaluation process for determining disability

  1. a. 

    For individuals claiming Title II disability benefits and for adults (individuals age 18 or older) claiming Title XVI disability benefits, the applicable sequential evaluation process is set forth in DI 22001.001. For claims of these individuals, findings required at a step in the sequential evaluation process include findings of:

    Step

    Finding

    Step 1

    Whether a claimant is working and, if so,

    Whether the work a claimant is doing constitutes substantial gainful activity (SGA),

    Step 2

    Whether a claimant has a medically determinable impairment or a combination of impairments that is "severe" and

    Whether a claimant’s impairment(s) meets the duration requirement

    Step 3

    Whether a claimant has an impairment(s) that meets a listed impairment in the Listing of Impairments, or

    Whether a claimant’s impairment(s) is medically equal in severity to a listed impairment,

    Residual Functional Capacity (RFC)

     

    Step 4

    Whether a claimant worked in the past, and, if so,

    Whether the work a claimant did in the past constitutes past relevant work (PRW) and,

    The physical and mental demands of a claimant's PRW, and

    Based on a claimant’s RFC and these findings at step 4, whether a claimant can do PRW as the claimant performed it or as it is generally performed in the national economy,

    Step 5

    The claimant's age,

    The claimant’s education,

    The claimant’s work experience (including, as appropriate, the skill level of a claimant’s PRW and whether a claimant’s skills are transferable), and

    In certain cases, other matters relevant to step 5 (e.g., whether the claimant meets a medical-vocational profile), and

    Based on a claimant’s RFC and these findings at step 5, whether a claimant can do other work.

    NOTE: Under the Earley AR where a final ALJ or AC decision on a prior disability claim contains findings required at step 4 or 5, the adjudicator of the subsequent claim must consider all of the prior findings required at that step as evidence —not just the ultimate finding at that step—in determining disability with respect to the unadjudicated period involved in the subsequent claim.

  2. b. 

    For children (individuals under age 18) claiming supplemental security income (SSI) benefits based on disability, the applicable sequential evaluation process for determining disability is set forth in DI 25201.005. For claims of children for SSI based on disability, a finding required at a step in the sequential evaluation process includes a finding of:

    Step

    Finding

    Step 1

    Whether a claimant is working and, if so,

    Whether the work a claimant is doing constitutes SGA,

    Step 2

    Whether a claimant has a medically determinable impairment or a combination of impairments that is "severe" and if so,

    Whether a claimant's impairment(s) meets the duration requirement,

    Step 3

    Whether a claimant has an impairment(s) that meets a listed impairment in the Listing of Impairments, or

    Whether a claimant's impairment(s) medically equals the severity of a listed impairment, or

    Whether a claimant's impairment(s) functionally equals the severity of a listed impairment.

    NOTE: This AR does not apply when the prior ALJ or AC decision was made for an individual under age 18 claiming SSI, but who has since attained age 18 and must be evaluated as an adult. This is because the requirements for disability under the prior claim are not identical to the requirements for disability on the subsequent claim.

2. Decision by an ALJ or the AC on prior claim

For purposes of the Earley AR, a decision by an ALJ or the AC on a prior disability claim is a decision which found the claimant not disabled (i.e., a denial, cessation, or an award of a closed period of disability) or a decision which found the claimant disabled (e.g., where the subsequent claim was filed following termination of entitlement/eligibility for non-disability reasons). If a final ALJ or AC decision contains findings described in DI 52707.010B.1., the adjudicator must apply the AR with respect to such findings when adjudicating the subsequent claim. The Earley AR does not apply when an attorney advisor issued a fully favorable decision on the prior claim.

3. Final ALJ or AC decision

An ALJ or AC decision is final as of the date of the decision notice unless:

  • It is appealed timely (or a civil action is timely filed).

  • It is appealed late but good cause for late filing of an appeal or civil action is found.

  • In the case of an ALJ decision, the AC takes jurisdiction on its own motion within 60 days of the date of the ALJ decision; or

  • The decision is reopened and revised.

4. Interim period cases

Interim period cases are cases where notice of the final determination or decision on an individual’s subsequent disability claim is dated June 27, 2018 (the date of the Earley court decision) through XX/XX/XXXX (the day before publication of the AR).

5. Post-publication cases

Post-publication cases are cases where the notice of the determination or decision on a subsequent claim is dated on or after XX/XX/XXXX, the date of publication of the AR.

C. Procedure

1. Interim period case

  1. a. 

    Generally, the claimant in an interim period case must request application of the AR to the subsequent claim that was determined or decided in the interim period, and the claimant must demonstrate that application of the AR could change that prior determination or decision. A claimant may demonstrate this by submitting a statement that cites the AR, or the holding, or portion of the circuit court decision which could change the prior determination or decision. The claim must typically be readjudicated at the same level it was last adjudicated. (See DI 52707.015 and DI 52707.020 for readjudication procedures and information about readjudication of an interim period determination or decision when the claim to be readjudicated is pending on appeal or when a subsequent claim is pending.)

  2. b. 

    If an interim period case is discovered during development/adjudication of a current disability claim of the individual, refer the claim to the same level it was last adjudicated. That level will readjudicate the claim to determine whether application of the AR would change the final determination or decision on the (interim period) case to be more favorable to the claimant, and, if so, issue a revised determination or decision in accordance with the AR even if the claimant has not specifically requested application of the AR . (See DI 52707.015 and DI 52707.020 for readjudication procedures and information about readjudication of an interim period determination or decision when the claim to be readjudicated is pending on appeal or when a subsequent claim is pending). If application of the AR would not change the final determination or decision on the interim period claim to be more favorable to the claimant, no action will be taken on the interim period case.

    NOTE: 

    The readjudication of a claim under the Earley AR in an interim period case is distinct from the rules of reopening and revising final determinations or decisions. A claim on which there was a final determination or decision in the interim period described in DI 52707.010C.1 may be readjudicated under the AR even though the 4-year rule (Title II) or 2-year rule (Title XVI) for reopening does not apply.

2. Post-publication cases

Determine if the AR applies. If it does, adjudicate the claim in accordance with the AR.

Examples of application of the AR when there are multiple prior ALJ or AC decisions are found in DI 52707.020B.2.d. If there are two or more prior claims with final ALJ or AC decisions, adjudicate the subsequent claim under the Earley AR as provided in DI 52707.020B.2.d. Interim period cases have different instructions that are covered above.

3. Application of the Earley AR to drug addiction and alcoholism (DAA) cases and claims of children for SSI based on disability

  1. a. 

    When a claimant with DAA (including a child under SSI) is found disabled considering the effects of DAA, a determination must then be made excluding the effects of DAA to determine whether DAA is material to the finding of disability. See DI 90070.050 and sections 20 CFR 404.1535 and 416.935 of the regulations. Adjudicators must use a two-part process. First, they must follow the sequential evaluation process, considering all of a claimant’s impairments, including DAA, to determine whether the claimant is disabled. Second, if the claimant is found disabled under the first part of the process, adjudicators must again follow sequential evaluation process, but without considering the effects of DAA, to determine whether the claimant would be found disabled if the claimant was no longer using drugs or alcohol. If the claimant would not be found disabled under the second part of the process, DAA is material to the determination of disability. If the claimant would be found disabled, DAA is not material. Thus, when there is a prior final decision in which:

    • An ALJ or the AC made findings required at steps in the sequential evaluation process and found that a claimant with DAA is disabled, considering the effects of DAA, and

    • The ALJ or AC made separate findings following the steps in the sequential evaluation process by considering the claimant’s condition without the effects of DAA to decide whether DAA was material to the determination of disability,

      The adjudicator(s) must consider the findings from both parts of the two-part DAA process when adjudicating a DAA case (applying the same two-part process) under the requirements of AR 24-X(6).

  2. b. 

    If the ALJ or AC has stated a conclusion in the prior decision that DAA was material, or that DAA was not material, to the determination of disability, but has not set out findings showing how this conclusion was reached under the second part of the process, there will be no findings that are relevant to the decision whether a claimant’s DAA is material to the determination of disability.

  3. c. 

    In adjudicating the subsequent claim, consider the prior findings described in DI 52707.010B.1. from the ALJ’s or AC’s decision about whether the claimant is disabled under the first part of the DAA process. Treat such prior findings as evidence to be considered along with the other evidence in the subsequent claim in determining disability under the first part of the DAA process. If the claimant is determined to be disabled under the first part of the DAA process, consider prior findings described in DI 52707.010B.1. from the ALJ's or AC's decision about whether the claimant is disabled under the second part of the DAA process. Treat such prior findings as evidence to be considered along with the other evidence in the subsequent claim in determining disability under the second part of the DAA process.

    EXAMPLE: The claimant alleged disability due to a heart condition and alcohol dependence and was found disabled in a final decision by an ALJ. The ALJ first considered all of the claimant's impairments, including his alcoholism, under the 5-step sequential evaluation process. The ALJ found the claimant's impairments to be severe but not listing level. The ALJ found that the claimant was unable to do any PRW and that based on his age, education, work experience and RFC, the claimant was disabled at step 5 of the sequential evaluation process. The ALJ then applied the second part of the DAA process and made findings under the sequential evaluation process considering the claimant's heart condition, but not his alcohol dependence. The ALJ determined that in the absence of the claimant's alcoholism, his heart condition was by itself not disabling. Therefore, DAA was material to the determination of disability.

    When adjudicating the subsequent claim, the adjudicator will consider the findings described in DI 52707.010B.1. which were made by the ALJ in the decision regarding disability under the first part of the DAA process. Treat such a prior finding as evidence to be considered along with the other evidence in the subsequent claim in making a determination regarding disability under the first part of the DAA process. If the claimant is determined disabled under the first part of the DAA process, the adjudicator will consider the findings described in DI 52707.010B.1. from the ALJ's disability decision under the second part of the DAA process. Treat such a prior finding as evidence to be considered along with other evidence in the subsequent claim in making the disability determination under the second part of the DAA process. Under the AR, any prior finding described in DI 52707.010B.1.a., or DI 52707.010B.1.b., as applicable, must be considered as evidence in light of all relevant facts and circumstances in determining disability with respect to the subsequent claim. In determining the probative value of such a prior finding by the ALJ as evidence, the adjudicator will consider the factors described in DI 52707.010A.2.d., DI 52707.010A.2.e., and DI 52707.020B.4.

DI 52707.025 Processing Center (PC) Responsibilities

A. Procedures

Comply with requests from field offices (FOs) and disability determination services (DDSs) for prior folders as expeditiously as possible.

Follow usual procedures when effectuating subsequent claims decided by the DDS, an Administrative Law Judge, or the Appeals Council.

DI 52707.030 Exhibits-Notices for Interim Period Cases

 

A. Notice when Earley acquiescence ruling (AR) does not apply

If the individual does not meet the criteria shown at DI 52707.015B.1, the field office will use Form SSA-L951-U2 for Title II and Form SSA-L8052-U2 for Title XVI. Do not include appeal rights.

Include the following language, selecting the appropriate reason(s) why the Earley AR does not apply:

We are writing to tell you that we received your request to have your claim(s) for Social Security Disability Insurance benefits and/or Supplemental Security Income payments of (date of prior decision) reviewed under Acquiescence Ruling 24-X(6), Earley v. Commissioner of Social Security.

We have looked at your case and decided that application of the Ruling could not change the prior decision. The Ruling does not apply to your claim because (insert here the relevant explanation(s) of why the AR could not change the prior determination or decision, listed below). The earlier decision remains in effect.

This Ruling does not apply to your prior claim because:

  • The date of the notice of the decision on your claim is not within the period from June 27, 2018 (the date of the court decision) through XX/XX/XXXX (the day before publication of the Ruling) or that decision is not final.

  • You did not reside within the Sixth Circuit (Kentucky, Michigan, Ohio, or Tennessee) at the time of the final decision on your claim that you asked us to readjudicate.

  • The decision that you asked us to readjudicate did not involve deciding whether you were disabled during a period different than the period covered by a decision on an earlier disability claim.

  • There was no final decision by an Administrative Law Judge or the Appeals Council on an earlier disability claim under the same or different Title of the Social Security Act that evaluated the medical or other evidence and decided whether you are disabled.

NOTE: 

Do not provide appeal rights if you deny the request for readjudication because the individual does not meet the criteria shown at DI 52707.015B.1 to allow a request for readjudication to be granted for a person whose time to appeal the prior determination lapsed prior to the time of the individual's request for readjudication under the Earley AR. The denial of a request for readjudication to have an AR applied is not an initial determination subject to appeal.

B. Notice when Earley AR does not change the determination on the prior claim or does not change the determination to an outcome more favorable to the claimant.

If the prior determination remains unchanged as a result of readjudication or does not result in an outcome more favorable to the claimant, the Disability Determination Services (DDS) will use Form SSA-L951-U2 for Title II and Form SSA-L8052-U2 for Title XVI and include the following language and include the standard language for appeal rights:

We are writing to tell you that we received your request to have your claim(s) for Social Security Disability Insurance benefits and/or Supplemental Security Income payments (date of prior decision) reviewed under Acquiescence Ruling 24-X(6), Earley v. Commissioner of Social Security.

We have looked at your case and decided that application of the Ruling does not change the prior decision on your claim or does not change it to an outcome more favorable to you. The Ruling explains that we must consider certain findings from past disability decisions but are not bound by those findings when making a decision about a new time period. When we considered the findings from your past disability decision as evidence in making a decision about the new time period, this evidence did not change the prior decision to a more favorable one regarding your eligibility or entitlement to disability benefits.

We Did Not Decide If You Are Currently Disabled

It is important for you to know that we did not make a decision about whether you are currently disabled. We only decided whether your prior claim is covered by this Ruling and, if so, whether application of the Ruling will change the decision on your prior claim. If you think you are disabled now, you should file a new application at any Social Security Office.

C. Notice when the Earley AR changes the determination on the prior claim to an outcome more favorable to the claimant, but not fully favorable.

When a claimant requests readjudication and the readjudication changes the prior determination, but it results in an award of some, but not all benefits requested in the application, the DDS will use Form SSA-L951-U2 for Title II and Form SSA-L8052-U2 for Title XVI and include the following language as well as appeal rights:

We are writing to tell you that we received your request to have your claim(s) for Social Security Disability Insurance benefits and/or Supplemental Security Income payments of (insert date of prior decision) reviewed under Acquiescence Ruling 24-X(6), Earley v. Commissioner of Social Security.

We have looked at your case and decided that application of the Ruling does change the prior decision on your claim, but we cannot grant all benefits you requested in your application. The Ruling explains that we must consider certain findings from past disability decisions but are not bound by those findings when making a decision about a new time period. When we considered the findings from your past disability decision as evidence in making a decision about the new time period, this evidence resulted in a more favorable decision regarding your eligibility or entitlement to disability benefits than our earlier decision.

D. Notice when the Earley AR changes the determination on the prior claim to a fully favorable outcome.

When a claimant requests readjudication and the readjudication changes the prior decision or determination resulting in a granting of all benefits requested in the application, the DDS will use Form SSA-L951-U2 for Title II and Form SSA-L8052-U2 for Title XVI and include the following language:

We are writing to tell you that we received your request to have your claim(s) for Social Security Disability Insurance benefits and/or Supplemental Security Income payments of (date of prior decision) reviewed under Acquiescence Ruling 24-X(6), Earley v. Commissioner of Social Security.

We have looked at your case and decided that application of the Ruling does change the prior decision on your claim, and we will grant all benefits you requested in your application.



DI 52707 TN 1 - Earley Acquiescence Ruling - 12/02/2024