[Federal Register Volume 63, Number 104 (Monday, June 1, 1998)]
[Notices]
[Pages 29770-29771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14264]
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SOCIAL SECURITY ADMINISTRATION
[Social Security Acquiescence Ruling
98-3(6)]
Dennard v. Secretary of Health and Human Services; Effect of A
Prior Finding of the Demands of Past Work on Adjudication of a
Subsequent Disability Claim Arising Under the Same Title of the Social
Security Act--Titles II and XVI of the Social Security Act
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Acquiescence Ruling.
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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of
Social Security gives notice of Social Security Acquiescence Ruling 98-
3(6).
EFFECTIVE DATE: June 1, 1998.
FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401
Security Boulevard, Baltimore, MD 21235, (410) 965-1695.
SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
A Social Security Acquiescence Ruling explains how we will apply a
holding in a decision of a United States Court of Appeals that we
determine conflicts with our interpretation of a provision of the
Social Security Act (the Act) or regulations when the Government has
decided not to seek further review of that decision or is unsuccessful
on further review.
We will apply the holding of the Court of Appeals' decision as
explained in this Social Security Acquiescence Ruling to claims at all
levels of administrative adjudication within the Sixth Circuit. This
Social Security Acquiescence Ruling will apply to all determinations
and decisions made on or after June 1, 1998. If we made a determination
or decision on your application for benefits between April 10, 1990,
the date of the Court of Appeals' decision, and June 1, 1998, the
effective date of this Social Security Acquiescence Ruling, you may
request application of the Social Security Acquiescence Ruling to your
claim if you first demonstrate, pursuant to 20 CFR 404.985(b) or
416.1485(b), that application of the Ruling could change our prior
determination or decision.
If this Social Security Acquiescence Ruling is later rescinded as
obsolete, we will publish a notice in the Federal Register to that
effect as provided for in 20 CFR 404.985(e) or 416.1485(e). If we
decide to relitigate the issue covered by this Social Security
Acquiescence Ruling as provided for by 20 CFR 404.985(c) or
416.1485(c), we will publish a notice in the Federal Register stating
that we will apply our interpretation of the Act or regulations
involved and explaining why we have decided to relitigate the issue.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security - Disability Insurance; 96.002 Social Security - Retirement
Insurance; 96.004 Social Security -Survivors Insurance; 96.005 -
Special Benefits for Disabled Coal Miners; 96.006 - Supplemental
Security Income.)
Dated: April 10, 1998.
Kenneth S. Apfel,
Commissioner of Social Security.
Acquiescence Ruling 98-3(6)
Dennard v. Secretary of Health and Human Services, 907 F.2d 598
(6th Cir. 1990)--Effect of A Prior Finding of the Demands of Past Work
on Adjudication of a Subsequent Disability Claim Arising Under the Same
Title of the Social Security Act--Titles II and XVI of the Social
Security Act.
Issue: Whether, in making a disability determination or decision on
a subsequent disability claim with respect to an unadjudicated period,
where the claim arises under the same title of the Social Security Act
(the Act) as a prior claim on which there has been a final decision by
an Administrative Law Judge (ALJ) or the Appeals Council, the Social
Security Administration (SSA)1 must adopt a finding of the
demands of a claimant's past relevant work, made in the final decision
by the ALJ or the Appeals Council on the prior disability
claim.2
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\1\ Under the Social Security Independence and Program
Improvements Act of 1994, Pub. L. No. 103-296, effective March 31,
1995, SSA became an independent Agency in the Executive Branch of
the United States Government and was provided ultimate
responsibility for administering the Social Security and
Supplemental Security Income programs under titles II and XVI of the
Act. Prior to March 31, 1995, the Secretary of Health and Human
Services had such responsibility.
\2\ Although Dennard was a title II case, similar principles
also apply to title XVI. Therefore, this Ruling extends to both
title II and title XVI disability claims.
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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, 404.957(c)(1), 416.1400, 416.1457(c)(1).
Circuit: Sixth (Kentucky, Michigan, Ohio, Tennessee)
Dennard v. Secretary of Health and Human Services, 907 F.2d 598
(6th Cir. 1990).
Applicability of Ruling: This Ruling applies to determinations or
decisions at all administrative levels (i.e., initial, reconsideration,
ALJ hearing and Appeals Council).
Description of Case: Donald Dennard filed an application for Social
Security disability insurance benefits in 1981, claiming a disability
which began on July 7, 1981. The application was denied initially and
upon reconsideration. After a hearing held on September 28, 1982, an
ALJ decided that Mr. Dennard was capable of performing sedentary work,
that he had transferable skills, and that he was not disabled. This
decision became the final decision of SSA and was affirmed by the
district court.
Mr. Dennard filed a subsequent application on March 25, 1985,
alleging an onset of disability of September 29, 1982. This application
was also denied initially and upon reconsideration. At a hearing a
vocational expert testified that Mr. Dennard's past relevant work as a
resident care aide supervisor was light and semi-skilled, which
provided him with skills transferable to other jobs in the supervisory
field. The ALJ found that, despite his impairments, Mr. Dennard could
``perform the requirements of work except for prolonged standing or
walking, manipulation of more than 10 pounds, heavy or extensive
bending, or prolonged sitting that would not allow him an opportunity
to stand occasionally to alleviate perceptions of discomfort ....''
While the ALJ determined that the claimant was unable to perform his
past relevant work, he did determine that Mr. Dennard could perform
sedentary work and, thereupon, found that he was not disabled. The
Appeals Council denied review, and the claimant then appealed to
district court. The case was remanded for a new hearing to obtain and
develop the medical evidence and to obtain additional vocational
testimony.
[[Page 29771]]
In a subsequent decision issued on April 6, 1988, an ALJ found that
Mr. Dennard was not prevented from performing his past relevant work
and, therefore, was not disabled. A vocational expert had testified
that, based on the claimant's testimony at the prior hearing, his past
work as a resident care aide supervisor was semi-skilled and heavy to
very heavy in terms of exertional level. However, the vocational expert
further testified that, based on the job description provided by Mr.
Dennard with his application for benefits, the job was semi-skilled and
was sedentary to light in nature, because there was no direct patient
contact. The Appeals Council denied the claimant's request for review.
Upon appeal to the district court, a United States Magistrate
recommended that Mr. Dennard be found disabled, because he believed
that the claimant's testimony that his former job was heavy in exertion
was controlling. The district court did not adopt the magistrate's
recommendation. Instead it found that SSA's decision denying benefits
was supported by substantial evidence. From that adverse decision, the
claimant appealed to the United States Court of Appeals for the Sixth
Circuit.
Holding: On appeal Mr. Dennard argued that because SSA had
determined in its final decision on his first application for benefits
that he could not perform his past relevant work, SSA was precluded by
estoppel from reconsidering the issue and finding that Dennard could
perform this 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 as a resident care aide supervisor. The United
States Court of Appeals for the Sixth Circuit 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.''
Statement as to How Dennard Differs From SSA Policy
Under SSA policy, if a determination or decision on a disability
claim has become final, the Agency may apply administrative res
judicata with respect to a subsequent disability claim under the same
title of the Act if the same parties, facts and issues are involved in
both the prior and subsequent claims. However, if the subsequent claim
involves deciding whether the claimant is disabled during a period that
was not adjudicated in the final determination or decision on the prior
claim, SSA considers the issue of disability with respect to the
unadjudicated period to be a new issue that prevents the application of
administrative res judicata. Thus, when adjudicating a subsequent
disability claim involving an unadjudicated period, SSA considers the
facts and issues de novo in determining disability with respect to the
unadjudicated period.
The Sixth Circuit held that, where the final decision of SSA after
a hearing on a prior disability claim contains a finding of the demands
of a claimant's past relevant work, SSA may not make a different
finding in adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the Act as the
prior claim unless new and additional evidence or changed circumstances
provide a basis for a different finding.
Explanation of How SSA Will Apply The Dennard 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 Appeals Council level. It
applies to a finding of the demands of a claimant's past relevant work,
under 20 CFR 404.1520(e) or 416.920(e), which was made in a final
decision by an ALJ or the Appeals Council on a prior disability claim.
In addition, because a finding of a claimant's date of birth (for
purposes of ascertaining a claimant's age), education or work
experience, also involves a finding of fact, relating to a claimant's
vocational background, which would not ordinarily be expected to
change, this Ruling also shall apply to a finding of a claimant's date
of birth, education or work experience required under 20 CFR
404.1520(f)(1) or 416.920(f)(1).
When adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the Act as the
prior claim, adjudicators must adopt such a finding from the final
decision by an ALJ or the Appeals Council 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 such a finding or there has been a change in the law, regulations or
rulings affecting the finding or the method for arriving at the
finding.
[FR Doc. 98-14264 Filed 5-29-98; 8:45 am]
BILLING CODE 4190-29-F
