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 Therefore, the ARs for Dennard and Drummond are both rescinded with the publication of the Earley AR.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.

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.

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.

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

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  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

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  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

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  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.

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.

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.

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  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.

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  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.

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.

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.

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.