Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 / Notices 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 semiskilled 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

SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling

98-4(6)]

Drummond v. Commissioner of Social

Security; Effect of Prior Findings 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.

SUMMARY: In accordance with 20 CFR

402.35(b)(2), the Commissioner of Social

Security gives notice of Social Security

Acquiescence Ruling 98-4(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

September 30, 1997, the date of the

Court of Appeals’ decision, and (Insert

the Federal Register publication date),

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
29772 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 / Notices

1 Although Drummond 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.

2 Drummond v. Secretary of Health and Human

Services, No. 92-5649 (6th Cir. April 26, 1993).

3 In Lively, the Fourth Circuit held that where a

final decision of SSA after a hearing on a prior

disability claim contained a finding about a

claimant’s residual functional capacity, SSA may

not make a different finding based on the same

evidence when adjudicating a subsequent disability

claim arising under the same title of the Act and

covering a period not adjudicated in the decision

on the prior claim. 820 F.2d at 1392. On July 7,

1994, SSA published Acquiescence Ruling 94-2(4)

at 59 FR 34849 to reflect the holding in Lively.

4 Lively, 820 F.2d at 1392.

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 98-4(6)

Drummond v. Commissioner of Social

Security, 126 F.3d 837 (6th Cir. 1997)—

Effect of Prior Findings 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)

must adopt a finding of a claimant’s

residual functional capacity, or other

finding required under the applicable

sequential evaluation process for

determining disability, made in the final

decision by the ALJ or the Appeals

Council on the prior disability claim.1

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)

Drummond v. Commissioner of Social

Security, 126 F.3d 837 (6th Cir. 1997).

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: Grace Drummond

applied for disability insurance benefits

on July 6, 1987, claiming a disability

onset date of November 17, 1985. The

claim was denied initially and upon

reconsideration. A hearing was held

before an ALJ who concluded that the

claimant was not disabled and denied

her claim. The ALJ found that Ms.

Drummond was unable to perform her

past relevant work but retained the

residual functional capacity for

sedentary work.

Ms. Drummond filed a subsequent

application for disability insurance

benefits on June 21, 1989. This claim

was denied initially and again upon

reconsideration. After a hearing was

held, an ALJ found that the claimant

suffered from combined

musculoskeletal and multiple body

system impairments but retained the

residual functional capacity for medium

level work and could perform her past

relevant work as a textile machine

operator. Accordingly, the ALJ found

that Ms. Drummond was not disabled.

After the Appeals Council denied the

claimant’s request for review, she

sought judicial review. The United

States District Court for the Eastern

District of Kentucky granted summary

judgment to SSA finding that

substantial evidence supported SSA’s

denial of benefits.

On appeal to the Court of Appeals for

the Sixth Circuit, Ms. Drummond

argued that, based on principles of res

judicata, the first ALJ’s determination

that she was limited to sedentary work

must be followed by the second ALJ in

the absence of evidence of an

improvement in her condition since the

first hearing. Declining to address this

issue initially on appeal, the Sixth

Circuit reversed the judgment of the

district court and remanded the case

with instructions to remand it to SSA

for further proceedings to determine

whether res judicata is applicable

against SSA and, if so, whether there

was substantial evidence to support a

finding that the claimant’s condition

had improved since the time of her first

application.2

On remand, after oral argument was

held before the Appeals Council on

September 27, 1993, the Appeals

Council issued a decision denying Ms.

Drummond’s claim for disability

insurance benefits. The Appeals Council

found that 42 U.S.C. 405(h) could not be

applied against SSA as a bar to prevent

reconsideration of an issue because SSA

was not a party to the benefits

determination.

Ms. Drummond sought judicial

review of the Appeals Council’s

decision and the United States District

Court for the Eastern District of

Kentucky affirmed SSA’s decision

denying disability benefits. The district

court found that ‘‘administrative res

judicata does not apply to the

Commissioner when a transitory

condition such as health is involved ....’’

The claimant appealed this decision to

United States Court of Appeals for the

Sixth Circuit.

Relying on the Fourth Circuit’s

decision in Lively v. Secretary of Health

and Human Services, 820 F.2d 1391

(4th Cir. 1987), the claimant argued that

res judicata applied and that, absent

evidence of an improvement in her

condition, the first ALJ’s finding that

she had a residual functional capacity

limited to sedentary work was binding

on SSA in deciding her subsequent

claim.3 Noting the similarity between

the Lively case and the case at bar, the

Sixth Circuit observed that the court in

Lively had relied on ‘‘[p]rinciples of

finality and fundamental fairness drawn

from § 405(h)’’ to conclude that

‘‘evidence, not considered in the earlier

proceeding, would be needed as an

independent basis to sustain a finding

[of the claimant’s residual functional

capacity] contrary to the final earlier

finding.’’4

Holding: The Court of Appeals for the

Sixth Circuit found the reasoning of the

Lively court persuasive and 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

determined in the absence of new and

additional evidence or changed

circumstances. The court indicated that

to allow such a reevaluation ‘‘would

contravene the reasoning behind 42

U.S.C. § 405(h) which requires finality

in the decisions of social security

claimants.’’ The Court of Appeals

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 no

substantial evidence that Ms.

Drummond’s condition had improved

significantly during the time period

between the two ALJ hearings, the court
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 / Notices 29773

5 In making a finding of a claimant’s residual

functional capacity or other finding required to be

made at a step in the applicable sequential

evaluation process for determining disability

provided under the specific sections of the

regulations described above, an ALJ or the Appeals

Council may have made certain subsidiary findings,

such as a finding concerning the credibility of a

claimant’s testimony or statements. A subsidiary

finding does not constitute a finding that is required

at a step in the sequential evaluation process for

determining disability provided under 20 CFR

404.1520, 416.920 or 416.924.

concluded that SSA was bound by its

previous finding that the claimant was

limited to sedentary work. The Court of

Appeals thereupon reversed the

judgment of the district court and

remanded with instructions for the

district court to remand the case to SSA

for an award of benefits.

Statement as to How Drummond 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 concluded that

where a final decision of SSA after a

hearing on a prior disability claim

contains a finding of a claimant’s

residual functional capacity, 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 of the claimant’s

residual functional capacity.

Explanation of How SSA Will Apply

The Drummond 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 only to a

finding of a claimant’s residual

functional capacity or other finding

required at a step in the sequential

evaluation process for determining

disability provided under 20 CFR

404.1520, 416.920 or 416.924, as

appropriate, which was made in a final

decision by an ALJ or the Appeals

Council on a prior disability claim.5

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. 98–14265 Filed 5–29–98; 8:45 am]

BILLING CODE 4190–29–F

DEPARTMENT OF STATE

[Public Notice 2827]

Statutory Debarment Under the

International Traffic in Arms

Regulations

AGENCY: Office of Defense Trade

Controls, State.

ACTION: Notice.

SUMMARY: Notice is hereby given that

the Department of State has imposed

statutory debarment pursuant to Section

127.7(c) of the International Traffic in

Arms Regulations (ITAR) (22 CFR Parts

120–130) on persons convicted of

violating or conspiring to violate

Section 38 of the Arms Export Control

Act (AECA) (22 U.S.C. § 2778).

EFFECTIVE DATE: Date of conviction as

specified for each person.

FOR FURTHER INFORMATION CONTACT:

Philip S. Rhoads, Chief, Compliance

and Enforcement Branch, Office of

Defense Trade Controls, Department of

State (703–875–6644).

SUPPLEMENTARY INFORMATION: Section

38(g)(4) of the AECA prohibits licenses

and other approvals for the export of

defense articles and the furnishing of

defense services to be issued to a

person, or any party to the export,

convicted of violating or conspiring to

violate the AECA. Pursuant to Section

127.7(c) of the ITAR, statutory

debarment is imposed upon persons

convicted of violating or conspiring to

violate the AECA. Statutory debarment

is based solely upon a conviction in a

criminal proceeding, conducted by a

United States court, and as such the

administrative proceedings outlined in

Part 128 of the ITAR are not applicable.

This notice is provided in order to

make the public aware that the persons

listed below are prohibited from

participating directly or indirectly in

any brokering activities and in any

export from or temporary import into

the United States of defense articles,

related technical data, or defense

services in all situations covered by the

ITAR:

1. Mohammad Iqbal Badat, 11025

Maidencane Court, Houston, TX

77086. Conviction date: March 13,

1996, 18 U.S.C. § 371 (conspiracy to

violate the AECA), U.S. v.

Mohammad Iqbal Badat, U.S. District

Court for the Western District of

Louisiana, 6:93CR60013–002

2. Sanford B. Groetzinger, 82 Dennison

Street, Gloucester, MA 01930, 22

U.S.C. § 2778 (violation of the AECA).

Conviction date: June 13, 1997, U.S. v.

Sanford B. Groetzinger, U.S. District

Court for the District of

Massachusetts, 1:96CR10326–001

3. Alfred Peter Harms, Merkurstr. 32,

76461 Muggensturm, Germany.

Conviction date: October 25, 1996, 18

U.S.C. § 371 (conspiracy to violate the

AECA), U.S. v. Alfred Peter Harms,

U.S. District Court for the Northern

District of Texas, 3:96–CR–280–R(1)

4. James Lee, 410 Auburn Way, No. 34,

San Jose, CA 95129. Conviction date:

June 18, 1997, 22 U.S.C. § 2778

(violation of the AECA), U.S. v. James

Lee, U.S. District Court for the

Northern District of California,

5:95CR20142–002

5. Thomas McGuinn, Cloommull

Drumcliffe, County Sligo, Republic of

Ireland. Conviction date: April 19,

1996, 22 U.S.C. § 2778 (violation of

AECA), U.S. v. Thomas McGuinn,

U.S. District Court for the Southern

District of Florida, 94–170–CR–

UNGARO–BENAGES

6. Penny Ray, 7100 Rainbow Drive #30,

San Jose, CA 95129. Conviction date:

June 18, 1997, 22 U.S.C. § 2778

(violation of AECA), U.S. v. Penny

Ray, U.S. District Court for the

Northern District of California,

5:95CR20142–001

7. Salvador Romavi-Orue, 15400 S.W.

75 Circle Lane, Apt. 104, Miami, FL

33193. Conviction date: February 16,

1996, 22 U.S.C. § 2778 (violation of

AECA) U.S. v. Salvador Romavi-Orue,

U.S. District Court for the Southern