29770 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 / Notices

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.

a small business investment company

under Small Business Investment

Company License No. 02/02–5307

issued to ODA Capital Corporation on

January 25, 1977 and said license is

hereby declared null and void as of July

22, 1993.

Dated: May 20, 1998.

Small Business Administration.

Harry E. Haskins,

Acting Associate Administrator for

Investment.

[FR Doc. 98–14327 Filed 5–29–98; 8:45 am]

BILLING CODE 8025–01–P

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.

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

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.
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