[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)<SUP>1</SUP> 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.<SUP>2</SUP>
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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