AR 98-3(6) requires adjudicators to apply the principles in DI 52706.010A.2. when:

• •

  The adjudicator is deciding a subsequent disability claim with an unadjudicated period; and

• •

  The subsequent claim arises under the same title of the Act as a prior disability claim on which there has been a final decision by an ALJ or the AC.

1. a. 

   When adjudicating the subsequent disability claim involving an unadjudicated period, the adjudicator must adopt certain findings, in accordance with DI 52706.010A.2.b. and DI 52706.010A.2.c., contained in the final decision by an ALJ or the AC on the prior disability claim.

2. b. 

   The requirement to adopt prior findings when adjudicating the subsequent claim applies to a finding of the demands of a claimant's past relevant work under 20 CFR 404.1520(e) or 416.920(e), or a finding of a claimant's date of birth (for purposes of ascertaining his or her age), education or work experience required under 20 CFR 404.1520(f)(1) or 416.920(f)(1).

3. c. 

   The adjudicator must adopt such a finding from the final decision by the ALJ or AC on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless:

   • •

     There is new and material evidence relating to the prior finding; or

   • •

     There has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

NOTE: See DI 52706.010A.4. concerning application of the Drummond AR (DI 52705.001) and the Dennard AR in cases involving subsequent disability claims of individuals residing in the Sixth Circuit.

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, the AR cannot be applied.

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

The basic requirements of the Drummond AR (see DI 52705.010A.) encompass the basic requirements of the Dennard AR that are described in DI 52706.010A.1. and DI 52706.010A.2. Therefore, for purposes of adjudicating a current title II disability claim or title XVI adult disability claim of an individual residing in the Sixth Circuit (Kentucky, Michigan, Ohio, or Tennessee), the application of the requirements of the Drummond AR (DI 52705.001) will satisfy the requirements of the Dennard AR, except in certain circumstances described in DI 52706.010C.3. and DI 52706.020 where certain additional considerations are required under the Dennard AR. See DI 52706.010C.3. and DI 52706.020 concerning the adjudication of current claims under the Drummond AR and the Dennard AR.

NOTE: See DI 52706.010C.2. for procedures for readjudicating certain interim period cases to which both the Drummond AR and Dennard AR may apply, and DI 52706.010C.1. for procedures for readjudicating certain interim period cases to which the Dennard AR alone may apply.

The requirement of the Dennard AR to adopt certain findings from a final decision by an ALJ or the AC on a prior disability claim applies only to certain specified findings (summarized in DI 52706.010A.2.b.) required at step 4 or step 5 of the sequential evaluation process for determining disability for title II claims or for title XVI claims of adults (individuals age 18 or older). Specifically, it applies to a finding of:

1. a. 

   Generally, "new" evidence is evidence that was not in the record before the ALJ or AC at the time of the prior decision. For purposes of the Dennard AR, it includes a new fact that automatically results from the passage of time, e.g., the moving forward of the 15-year period in which past work is relevant. Even though such a new fact may constitute new and material evidence relating to a prior finding of the demands of a claimant's past relevant work, adjudicators still must adopt any other finding(s) described in DI 52706.010B.1. made in the final decision by an ALJ or the AC on the prior claim unless there is new and material evidence relating to such other finding(s) or there has been a change in the law, regulations or rulings affecting such finding(s) or the method for arriving at such finding(s).

   NOTE: Under the Dennard AR, when adopting a prior finding of a claimant's date of birth, an adjudicator will use that prior finding to calculate the claimant's age with respect to the period being adjudicated for the subsequent claim. A similar result obtains (i.e., using the claimant's age applicable to the period being adjudicated for the subsequent claim) when applying the Drummond AR with respect to a prior finding of a claimant's age.

   When adjudicating a subsequent claim under the Drummond AR, an adjudicator will use the increased age of the claimant that automatically results from the passage of time since the prior finding of the claimant's age. See DI 52705.010B.2.a. and DI 52705.020B.2.f.

2. b. 

   For the purpose of the Dennard AR, new evidence that relates to a finding described in DI 52706.010B.1. is "material" if, for the purpose of adjudicating the current claim, it would result in a finding different from the finding made in the prior decision.

   NOTE: See DI 52705.010 B.2. for specific instructions on what constitutes “new and material evidence” for purposes of applying the Drummond AR.

3. c. 

   Adjudicators must not assume that all current evidence or additional evidence acquired after the prior ALJ or AC decision is “new and material evidence” which would obviate the need to obtain the prior ALJ or AC decision and to review, and possibly adopt, certain findings contained in the prior decision. In every case, the evidence must first be analyzed to see if it is both “new” and “material” before a conclusion can be reached that a finding described in DI 52706.010B.1. need not be adopted under the Dennard AR. If the prior file has been lost or destroyed, but a copy of the prior ALJ or AC decision is available, the adjudicator will review the description of the pertinent evidence in the ALJ or AC decision to determine the evidence on which the ALJ or AC based a prior finding described in DI 52706.010B.1. The adjudicator will compare this evidence with the evidence obtained in connection with the subsequent claim to determine if the latter evidence is new and material. In some cases, the evidence on which the ALJ or AC based a prior finding will not be clear from the ALJ or AC decision. For these cases, there may be instances where additional development (e.g., obtaining a copy of the relevant prior vocational report that was cited, but not elaborated upon, in the ALJ or AC decision) may be of assistance in determining whether the evidence obtained in connection with the subsequent claim is new and material. In other instances, the adjudicator will need to make a judgement on whether evidence obtained in connection with the subsequent claim is new and material and, thus, permits a finding different from the prior finding. In such cases, any doubt about whether such evidence is new and material should be resolved in a manner that is favorable to the claimant.

   As described in DI 52706.020C.5., adjudicators must explain in the personalized disability notice (PDN), or in the rationale, the basis for adopting or not adopting a prior finding(s).

For purposes of the Dennard AR, a decision by an ALJ or the AC on a prior disability claim includes a decision which found the claimant not disabled in connection with a prior claim (i.e., a denial, cessation, or an award of a closed period of disability) or a decision which found the claimant disabled in connection with a prior claim (e.g., where the subsequent claim was filed following termination of entitlement/eligibility for nondisability reasons). To the extent that such a final ALJ or AC decision contains findings described in DI 52706.010B.1., the adjudicator must apply the AR with respect to such findings when adjudicating the subsequent claim.

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

• •

  It is timely appealed (or a civil action is filed); or

• •

  It is appealed late but good cause for late filing of an appeal or civil suit is found; or

• •

  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

• •

  It is reopened and revised.

Dennard AR-only interim period cases are cases where notice of the final determination or decision on an individual's subsequent title II disability claim, or subsequent title XVI adult disability claim, is dated 4/10/90 (the date of the Sixth Circuit's decision in Dennard) through 9/29/97 (the day before the date of the Sixth Circuit's decision in Drummond). See DI 52706.010C.1. concerning readjudication of these cases.

Drummond AR/Dennard AR interim period cases are cases where notice of the final determination or decision on an individual's subsequent title II disability claim, or subsequent title XVI adult disability claim, is dated 9/30/97 (the date of the Sixth Circuit's decision in Drummond) through 5/31/98 (the day before publication of both the Drummond AR and the Dennard AR). See DI 52706.010C.2. concerning readjudication of these cases.

Drummond AR/Dennard AR post-publication cases are cases where the notice of the final determination or decision on an individual's subsequent title II disability claim, or subsequent title XVI adult disability claim, is dated 6/1/98, or later, including subsequent cases pending as of 6/1/98. See DI 52706.010C.3. and DI 52706.020 concerning processing of these cases.

1. a. 

   Generally, the claimant in a Dennard AR-only interim period case must request application of the Dennard AR to the prior final determination or decision dated from 4/10/90 through 9/29/97, and must demonstrate that application of the AR could change such prior determination or decision (see DI 52706.010C.1.b. for exception). A claimant may demonstrate this by submitting a statement that cites the AR or the holding or portion of the circuit court decision that could change the prior determination or decision. The determination as to whether application of the Dennard AR could change the final determination or decision on the claim will be made at the level of adjudication that made such determination or decision on the prior claim. If the claimant demonstrates that application of the AR could change the final determination or decision to be more favorable to the claimant, the claim must be readjudicated at the same level it was last adjudicated in accordance with the AR. See GN 03501.015 for readjudication procedure.

   EXAMPLE: An individual's title II claim was denied by the DDS at the initial level on 6/15/90, and there was no appeal. An earlier title II disability claim was denied by an ALJ on 3/3/89. The individual may request that the 6/15/90 final determination be readjudicated under the Dennard Ruling because the denial did not consider the prior finding regarding the demands of the claimant's past relevant work or other findings described in DI 52706.010B.1. made by the ALJ in the 3/3/89 decision.

   If the outcome of the 6/15/90 determination would have been different had the Dennard AR been applied, the DDS must readjudicate the claim at the initial level under the Dennard AR.

   NOTE: When a request for readjudication of a Dennard AR-only interim period case must be denied, provide the claimant an explanation as to why he/she is not covered by the Dennard AR, or why application of the Dennard AR would not favorably change the prior determination. See DI 52706.030 for notice instructions.

2. b. 

   If a Dennard AR-only interim period case to which the Dennard AR could apply is discovered in the course of development/adjudication of a current disability claim of the individual, and it is determined that application of the Dennard AR would change the final determination or decision on the prior claim to be more favorable to the claimant, such prior claim should be readjudicated in accordance with the Dennard AR even if the claimant has not specifically requested application of the Ruling to the prior claim.

   NOTE: The determination as to whether application of the Dennard AR could change the final determination or decision on a claim in an interim period case, and any readjudication of such claim under the Dennard AR, must be made at the same level of administrative review that made the final determination or decision on the claim.

3. c. 

   Drug addiction and alcoholism (DAA) redeterminations under Pub. L. 104-121 are considered subsequent claims (and not continuing disability determinations) for purposes of the Dennard AR. Therefore, cases where notice of the final determination or decision on such a DAA redetermination is dated during the period from 4/10/90, through 9/29/97, are subject to readjudication under the Dennard AR in accordance with the procedures in DI 52706.010C.1.a. or DI 52706.010C.1.b.

1. a. 

   A prior claim in a Drummond AR/Dennard AR interim period case is subject to readjudication under both ARs. However, there are only certain circumstances (described in DI 52706.010C.2.d.) when it will be necessary to consider not only the requirements of the Drummond AR, but also the requirements of the Dennard AR, when determining whether application of the two rulings could change the prior determination or decision in these interim period cases. In other situations, application of the requirements of the Drummond AR will satisfy the requirements of the Dennard AR. Therefore, unless the circumstances described in DI 52706.010C.2.d. are present, an adjudicator need only consider the requirements of the Drummond AR (DI 52705.001) when determining whether a prior claim in a Drummond AR/Dennard AR interim period case should be readjudicated under the ARs.

   Readjudication of a prior claim in a Drummond AR/Dennard AR interim period case in accordance with the Rulings must be considered when:

   • •

     The claimant requests application of the Ruling(s) to the claim that was adjudicated in the final determination or decision in the interim period (see DI 52706.010C.2.b.); or

   • •

     The interim period case is discovered in the course of development/adjudication of the current disability claim of the individual (see DI 52706.010C.2.c.).

2. b. 

   Treat a request by a claimant to apply the Drummond AR or the Dennard AR to the prior determination or decision in a Drummond AR/Dennard AR interim period case as a request to apply both Rulings. Generally, a claimant must request application of one or both of the Rulings to the subsequent disability claim that was adjudicated in the final determination or decision in the interim period, and must demonstrate that application of the Ruling(s) could change such prior determination or decision (see DI 52706.010C.1.c. for exception). A claimant may demonstrate this by submitting a statement that cites the Ruling(s) or the holding or a portion of the circuit court decision(s), which could change the prior determination or decision. The determination as to whether application of the Rulings could change the final determination or decision on the claim will be made at the level of adjudication that made such determination or decision on the claim. If application of the Rulings would change the final determination or decision to be more favorable to the claimant, the claim must be readjudicated at the same level it was last adjudicated in accordance with the ARs. See GN 03501.015 for readjudication procedure.

   As explained in DI 52706.010C.2.a., an adjudicator generally need only consider the requirements of the Drummond AR (DI 52705.001) when determining whether application of the two Rulings could change the prior determination or decision on a claim in a Drummond AR/Dennard AR interim period case. See the example in DI 52705.010C.1.a. for an illustration of such a case. If the circumstances described in DI 52706.010C.2.d. are present, however, the adjudicator must consider the requirements of the Dennard AR, as well as the requirements of the Drummond AR, when determining whether application of the Rulings could change the determination or decision on such prior claim. See the examples in DI 52706.010C.2.d. for illustrations of Drummond AR/Dennard AR interim period cases where the requirements of both ARs must be considered when determining whether the prior claim should be readjudicated.

   NOTE: When a request for readjudication of a Drummond AR/Dennard AR interim period case must be denied, provide the claimant an explanation as to why he/she is not covered by the Ruling(s), or why application of a Ruling(s) would not favorably change the prior determination. See DI 52705.030 and DI 52706.030 for notice instructions.

3. c. 

   If a Drummond AR/Dennard AR interim period case to which the Rulings could apply is discovered in the course of development/adjudication of a current disability claim of the individual, and it is determined that application of the Rulings would change the final determination or decision on the prior claim to be more favorable to the claimant, such prior claim should be readjudicated in accordance with the ARs, even if the claimant has not specifically requested application of the Ruling(s) to the prior claim. The determination as to whether application of the Rulings could change the final determination or decision on the prior claim, and any readjudication of such claim under the ARs, must be made at the same level of administrative review that made the final determination or decision on such prior claim.

   As explained in DI 52706.010C.2.a., an adjudicator generally need only consider the requirements of the Drummond AR (DI 52705.001) when determining whether application of the two Rulings could change the prior determination or decision on a claim in a Drummond AR/Dennard AR interim period case. See the example in DI 52705.010C.1.b. for an illustration of such a case. If the circumstances described in DI 52706.010C.1.d. are present, however, the adjudicator must consider the requirements of the Dennard AR, as well as the requirements of the Drummond AR, when determining whether application of the Rulings could change the determination or decision on such prior claim. See the examples in DI 52706.010C.2.d. for illustrations of Drummond AR/Dennard AR interim period cases where the requirements of both ARs must be considered when determining whether the prior claim should be readjudicated.

4. d. 

   There are certain circumstances when it will be necessary to consider the requirements of the Dennard AR, as well as the requirements of the Drummond AR, when determining whether application of the two Rulings could change the final determination or decision on a claim in a Drummond AR/Dennard AR interim period case. These circumstances arise when:

   • •

     The claim that was adjudicated in the final determination or decision in the Drummond AR/Dennard AR interim period case was preceded by two or more earlier disability claims of the individual under the same title of the Act with final ALJ or AC decisions that predate the Drummond court decision (i.e., were issued prior to 9/30/97);

   • •

     The final ALJ or AC decisions on the earlier claims contained findings described in DI 52706.010B.1. (i.e., findings to which the Dennard AR would apply); and

   • •

     One or more of the final ALJ or AC decisions is dated on or after 4/10/90 (the date of the Dennard court decision).

   In these circumstances, the requirement of the Drummond AR to adopt prior findings described in DI 52705.010B.1.a. would apply only to such findings that are contained in the most recent pre-Drummond final ALJ or AC decision on a prior claim (see DI 52705.020B.2.a.). However, the requirement of the Dennard AR to adopt certain findings from a final ALJ or AC decision on a prior claim would apply not only to findings described in DI 52705.010B.1. that are contained in the most recent pre-Drummond final ALJ or AC decision, but also to findings described in DI 52706.010B.1. that are contained in previous final ALJ or AC decisions on earlier claims (including the most recent pre-Dennard final ALJ or AC decision, if any).

   EXAMPLE 1

   An individual's title II disability claim was denied by the DDS at the initial level on 1/21/98, and there was no appeal. Two previous title II disability claims of the individual were denied in final ALJ decisions in 4/92 and 7/95. The claim denied by the DDS in the final determination dated 1/21/98 is a Drummond AR/Dennard AR interim period case. If the individual requests readjudication of the claim as provided in DI 52706.010C.2.b. (or if the interim period case is discovered in the course of development/adjudication by the DDS of a current claim of the individual as provided in DI 52706.010C.2.c.), the DDS adjudicator must consider whether application of the two Rulings could change the 1/21/98 final determination. For this purpose, the requirement of the Drummond AR to adopt prior findings described in DI 52705.010B.1.a. Would apply to such findings contained in the 7/95 ALJ decision (i.e., the most recent pre-Drummond final ALJ decision).

   Because the prior findings to which the Drummond AR applies (see DI 52705.010B.1.a.) encompass the more limited, prior findings to which the Dennard AR applies (see DI 52706.010B.1.), there is no need to consider the Dennard AR separately with respect to the prior findings contained in the 7/95 ALJ decision. However, the requirement of the Dennard AR to adopt certain prior findings will apply, by itself, to findings described in DI 52706.10B.1. that are contained in the 4/92 ALJ decision.

   To determine whether application of the two Rulings could change the 1/21/98 final determination on the claim in the interim period, the adjudicator first would consider whether application of the Dennard AR with respect to such claim would require the adoption of any of the findings described in DI 52706.010B.1. (i.e., a finding of the demands of the claimant's past relevant work, or a finding of the claimant's date of birth, education, or work experience) that are contained in the 4/92 ALJ decision. For purposes of applying the Dennard AR with respect to the claim in the interim period, the adjudicator will adopt any such finding from the 4/92 ALJ decision which is not superseded by new and material evidence, either in the 7/95 ALJ decision or in the 1/98 determination on the claim in the interim period, or by a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding. If there is new and material evidence, or there has been a change in the law, regulations or rulings, to justify making a finding(s) described in DI 52706.010B.1. with respect to the interim period claim that is different than such finding(s) contained in the 4/92 decision, the adjudicator then would consider whether application of the Drummond AR with respect to the interim period claim would require the adoption of any of the findings described in DI 52705.010B.1.a. that are contained in the 7/95 ALJ decision. For purposes of applying the Drummond AR with respect to the claim in the interim period, the adjudicator would adopt any such finding (including a finding of the claimant's RFC or other finding described in DI 52705.010 B.1.a.) from the 7/95 ALJ decision unless such finding is superseded by new and material evidence in the 1/98 determination or by a change in the law, regulations, or rulings affecting the finding or the method for arriving at the finding. If the application of the two Rulings in this manner could change the 1/98 final determination on the claim in the interim period, such claim should be readjudicated accordingly under the ARs.

   NOTE: In the example above, the claim decided in the 7/95 final ALJ decision is a Dennard AR-only interim period case (see DI 52706.010B.5. and DI 52706.010C.1.). Therefore, if application of the Dennard AR to such claim could change the 7/95 ALJ decision on the claim, such Dennard AR-only interim period case should be referred to ODAR for consideration of possible readjudication under the Dennard AR.

   EXAMPLE 2

   Same facts as in example 1, except that the individual had filed two additional, earlier title II disability claims that were denied in final ALJ decisions in 2/87 and 11/89. Again, the DDS adjudicator must consider whether application of the two Rulings could change the 1/21/98 final determination on the claim in the Drummond AR/Dennard AR interim period. For this purpose, as explained in example 1, the requirement of the Drummond AR to adopt prior findings described in DI 52705.010B.1.a. would apply to such findings (including a finding of the claimant's RFC) contained in the 7/95 ALJ decision. The requirement of the Dennard AR to adopt certain prior findings would apply, by itself, to findings described in DI 52706.010B.1. that are contained in the 11/89 ALJ decision (the most recent pre-Dennard ALJ decision) as well as to findings described in DI 52706.010B.1. that are contained in the 4/92 ALJ decision.

   The requirement of the Dennard AR to adopt certain prior findings would not apply, however, to findings contained in the 2/87 ALJ decision. This is because the findings from the 2/87 ALJ decision would not have been binding in the adjudication of the subsequent claim that was decided by the ALJ in 11/89 since the 11/89 decision predated the Dennard court decision.

   To determine whether application of the two Rulings could change the 1/21/98 final determination on the claim in the interim period, the adjudicator first would consider whether application of the Dennard AR with respect to such claim would require the adoption of any of the findings described in DI 52706.010B.1. that are contained in the 11/89 ALJ decision. For purposes of applying the Dennard AR with respect to the claim in the interim period, the adjudicator would adopt any such finding from the 11/89 ALJ decision unless such finding is superseded by new and material evidence in the 4/92 or 7/95 ALJ decision or the 1/98 DDS determination, or by a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding. If there is new and material evidence, or there has been a change in the law, regulations or rulings, to justify making a finding(s) described in DI 52706.010B.1. with respect to the interim period claim that is different than such finding(s) contained in the 11/89 ALJ decision, the adjudicator will consider whether application of the Dennard AR with respect to the interim period claim would require the adoption of any of the findings described in DI 52706.010B.1. that are contained in the 4/92 ALJ decision. From this point, the adjudicator would proceed as in example 1 above, applying the Dennard AR and then the Drummond AR in the specific manner described in example 1.

1. a. 

   A Drummond AR/Dennard AR post-publication case (as defined in DI 52706.010B.7.) is subject to both the Drummond AR and the Dennard AR. While adjudicating a Drummond AR/Dennard AR post-publication case, it is the adjudicator's responsibility to determine if the Rulings apply and, if they do apply, to adjudicate the claim in accordance with the ARs.

   In the situations described in DI 52706.010C.3.b., an adjudicator need only consider the requirements of the Drummond AR when adjudicating such a post-publication case under the Rulings since, in those situations, application of the requirements of the Drummond AR will satisfy the requirements of the Dennard AR. There are only certain circumstances (described in DI 52706.010C.3.c.) when it will be necessary to consider not only the requirements of the Drummond AR, but also the requirements of the Dennard AR, when adjudicating a Drummond AR/Dennard AR post-publication case under the two Rulings. See DI 52706.020 concerning adjudication of Drummond AR/Dennard AR post-publication cases.

2. b. 

   In the following situations, application of the requirements of the Drummond AR (DI 52705.001 will satisfy the requirements of the Dennard AR for purposes of adjudication of a Drummond AR/ennard AR post-publication case under the two Rulings. When adjudicating such a post-publication case under the two Rulings, an adjudicator need only consider the requirements of the Drummond AR if:

   • •

     There is only one prior disability claim of the individual with a final ALJ or AC decision (regardless of whether the individual had other prior disability claims that did not result in a final ALJ or AC decision); or

   • •

     There are two or more prior disability claims of the individual with final ALJ or AC decisions, and no more than one of such ALJ or AC decisions predates the Drummond court decision (i.e., was issued prior to 9/30/97); or

   • •

     There are two or more prior disability claims of the individual with final ALJ or AC decisions, and the most recent one of these final ALJ or AC decisions either concerns a post-publication case (i.e., was issued on or after 6/1/98) or predates the Dennard court decision (i.e., was issued prior to 4/10/90).

3. c. 

   When adjudicating a Drummond AR/Dennard AR post-publication case under the two Rulings, an adjudicator will need to consider not only the requirements of the Drummond AR, but also the requirements of the Dennard AR, if:

   • •

     The individual had two or more prior disability claims with final ALJ or AC decisions, none of which concerned a post-publication case (see DI 52706.010C.3.b.); and

   • •

     Two or more of such final ALJ or AC decisions on prior claims predate the Drummond court decision (i.e., were issued prior to 9/30/97); and

   • •

     At least one of such final ALJ or AC decisions is dated on or after 4/10/90 (i.e., the date of the Dennard court decision; and

   • •

     The final ALJ or AC decisions on the prior claims contain findings described in DI 52706.010B.1. (i.e., findings to which the Dennard AR would apply).

   See DI 52706.020 concerning the adjudication of Drummond AR/Dennard AR post-publication cases in these circumstances.