BASIC (08-00)

A. Policy

1. Adjudication of current claim—general

A subsequent title II disability claim, or a subsequent title XVI adult disability claim, which is being adjudicated on or after 6/1/98 is referred to as a Drummond AR/Dennard AR post-publication case (as defined in DI 52706.010B.7.). If the claimant is a resident of the Sixth Circuit at the time of the adjudication of a claim in such a post-publication case, the adjudicator must be alert to the fact that such a current claim 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.

NOTE: If the criteria in DI 52706.005 for applying the Dennard AR to a current claim are met, then the criteria in DI 52705.005 for applying the Drummond AR also will be met. The basic requirements of the Drummond AR (see DI 52705.010A.) encompass the basic requirements of the Dennard AR (see DI 52706.010A.). the principal difference between the two ARs is that the requirement of the Drummond AR to adopt prior findings is broader in scope in that it applies to a finding of a claimant's RFC or other finding required at a step of the applicable sequential evaluation process for determining disability (see DI 52705.010A.2.b., DI 52705.010B.1.a. and DI 52705.010B.1.b.). The requirement of the Dennard AR to adopt prior findings is more limited in scope in that it applies to a finding of the demands of the claimant's past relevant work, or a finding of the claimant's date of birth (for the purpose of ascertaining the claimant's age), education or work experience (see DI 52706.010A.2.b and DI 52706.010B.1.).

1. Normal development of the current claim will be undertaken.

2. For purposes of adjudicating a current title II disability claim or a title XVI adult disability claim of an individual 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 52706.020C.2. where certain additional considerations are required under the Dennard AR.

2. If the ARs do not apply

Process the subsequent claim under regular procedures if the requirements in DI 52705.005 (Drummond AR) and DI 52706.005 (Dennard AR) are not met.

3. If the ARs apply

Adjudicate the subsequent claim under the Drummond and Dennard ARs if the requirements in DI 52705.005 and DI 52706.005 are met.

1. Follow DI 52705.020 (Drummond AR) to ensure proper application of the Drummond AR in the adjudication of the subsequent claim.

2. In the situations described in DI 52706.020C.1., an adjudicator need only consider the requirements of the Drummond AR when adjudicating the subsequent claim under the two Rulings since, in those situations, application of the requirements of the Drummond AR will satisfy the requirements of the Dennard AR.

3. There are only certain circumstances (described in DI 52706.020C.2.) 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 the subsequent claim under the two Rulings.

B. Procedure

1. Prior file activities

The prior file must be requested anytime that the Drummond and Dennard ARs apply in adjudicating a subsequent claim. See DI 20505.001 for guidance on obtaining prior files. If the prior file is not available, a copy of the ALJ or AC decision should be secured. Normal case development procedures apply.

Special Instructions for Drummond and Dennard

1. In situations where the requirements listed in DI 52705.005 and DI 52706.005 are met and there is no information in the current file regarding the prior file, ask the FO to obtain a copy of the ALJ or AC decision from the claimant and to initiate actions described in DI 20505.015 for obtaining the prior file.

2. If only the prior ALJ or AC decision is available, apply the Drummond and Dennard ARs using the decision.

   NOTE: If the AC takes an unfavorable action on a claimant's request for review, the claims file is retained in ODAR Headquarters for five months pending potential filing of a civil action. In such instances the FO will obtain a copy of the ALJ or AC decision. Apply the ARs using a copy of the ALJ or AC decision. The ALJ or AC decision generally contains a detailed discussion of the evidence and the findings of fact.

3. If the prior folder is lost or has been destroyed and the prior decision cannot be obtained, document the file to show such and take no further action with regard to the ARs.

C. Policy

1. When the application of the requirements of the Drummond AR is sufficient

1. 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 claim in a Drummond AR/Dennard AR post-publication case under the two Rulings. When adjudicating such a claim 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).

2. Follow DI 52705.020 (Drummond AR) to ensure proper application of the requirements of the Drummond AR in the adjudication of the claim in these cases.

2. When the requirements of the Dennard AR must be considered along with the requirements of the Drummond AR

1. When adjudicating a claim in 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; 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).

2. If the criteria in DI 52706.020C.2.a. are met, there will be at least one (and perhaps more) final ALJ or AC decision with respect to which the Dennard AR alone would apply.

   EXAMPLE 1

   A claimant with a title II disability claim currently pending at the initial level received four final ALJ decisions on four prior title II disability claims on 10/10/89, 5/27/93, 8/03/95 and 1/21/98. Both the 10/89 and 5/93 ALJ decisions contain findings to which the Dennard AR would apply (i.e., the disability claims in these decisions were decided at step four or five of the sequential evaluation process).

   The requirement of the Drummond AR to adopt prior findings described in DI 52705.010 B.1.a. (Drummond AR) would apply to such findings that are contained in the 8/95 ALJ decision (the most recent pre-Drummond ALJ decision) and to such findings contained in the 1/98 ALJ decision (a Drummond AR/Dennard AR interim period case as defined in DI 52706.010B.6.). See DI 52705.020B.2.c. (Drummond AR) and the example provided there.

   The requirement of the Dennard AR to adopt certain findings as described in DI 52706.010B.1. (Dennard AR) would apply not only to such findings described in DI 52706.010B.1. that are contained in the 8/95 and 1/98 ALJ decisions, but also to such findings that are contained in the 10/89 ALJ decision and 5/93 ALJ decision. See Examples 2 and 3 in DI 52706.020C.2.d.

   NOTE: If a claimant in these circumstances has two or more prior claims with final ALJ or AC decisions which predate the Dennard court decision (i.e., were issued prior to 4/10/90), the requirement of the Dennard AR to adopt findings described in DI 52706.010B.1. would apply to such findings that are contained in the most recent pre-Dennard ALJ or AC decision on a prior claim. It would not apply to findings contained in earlier final ALJ or AC decisions. See Example 3 in DI 52706.020C.2.d.

3. With regard to the findings contained in a prior final ALJ or AC decision with respect to which the Dennard AR applies, adopt 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 the purpose of ascertaining his or her age), education or work experience required under 20 CFR 404.1520(f)(1) or 416.920(f)(1) from that final ALJ or AC decision unless there is new and material evidence to change 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. See DI 52706.010B.1. for a description of the specific prior findings to which the Dennard AR applies and DI 52706.010B.2. for an explanation of what constitutes "new and material evidence" to change a prior finding when applying the Dennard AR.

   Do not adopt prior findings that are now obsolete because of subsequent changes in the law, regulations or rulings, or where the method for arriving at the findings has been changed by law, regulations or rulings.

4. If the criteria in DI 52706.020C.2.a. are met, first consider the findings described in DI 52706.010B.1. (Dennard AR) which are contained in the earliest final ALJ or AC decision with respect to which the Dennard AR applies. Adopt a finding of the demands of a claimant's past relevant work or a finding of a claimant's date of birth, education or work experience contained in that ALJ or AC decision which is not superseded by new and material evidence, either in a later ALJ or AC decision(s) or in the current claim file, 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) with respect to the current claim that is different than such finding(s) contained in that final ALJ or AC decision, and the next later final ALJ or AC decision on a prior claim is a decision with respect to which the Drummond AR applies, consider whether application of the Drummond AR with respect to the current claim would require the adoption of any of the findings described in DI 52705.010 B.1.a. (Drummond AR) that are contained in that later ALJ or AC decision. Adopt a finding described in DI 52705.010 B.1.a. from that later ALJ or AC decision which is not superseded by new and material evidence or by a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding. See DI 52705.020 B.2. for applying the Drummond AR.

   NOTE: If the application of the Dennard AR with respect to the current claim requires the adoption of a finding from a final ALJ or AC decision on a prior claim, i.e., there is no new and material evidence in a later ALJ or AC decision(s) or in the current claim file (and no change in the law, regulations or rulings) to justify making a different finding, any different finding of the demands of a claimant's past relevant work or a claimant's date of birth, education or work experience that is contained in a later ALJ or AC decision need not be considered for purposes of adjudicating the current claim under the Drummond and Dennard ARs.

   EXAMPLE 2:

   A 47-year-old claimant with a title XVI disability claim currently pending at the initial level previously received two ALJ decisions on two prior title XVI adult disability claims on 2/2/92 and 1/10/96. The findings made by the ALJ in the 2/92 decision included a finding that the claimant had an RFC for no more than sedentary work and a finding that the claimant had a high school education. The ALJ in the 1/96 decision found that the claimant had an RFC for the full range of light work and that the claimant had a limited education.

   The adjudicator of the current claim first will consider whether the application of the Dennard AR requires the adoption of the finding that the claimant has a high school education (or other finding described in DI 52706.010 B.1.) that is contained in the 2/92 ALJ decision. With respect to the claimant's educational level, the DDS adjudicator will determine whether new and material evidence was submitted in connection with the claim decided in 1/96 or with the current claim that would justify making a finding with respect to the current claim that is different than the finding in the 2/92 ALJ decision that the claimant has a high school education. If there is new and material evidence to justify making a finding different than the 2/92 finding of a high school education, the DDS adjudicator would then determine whether there is new and material evidence submitted in connection with the current claim to justify making a finding with respect to the current claim that is different than the finding by the ALJ in the 1/96 decision that the claimant has a limited education.

   If no new and material evidence was submitted in connection with the claim decided in 1/96 or with the current claim to justify making a finding different than the finding in the 2/92 ALJ decision that the claimant has a high school education, the adjudicator will adopt such finding from the 2/92 ALJ decision for purposes of adjudicating the current claim under the Dennard AR. The adjudicator will adopt such finding unless there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

   The finding in the 2/92 ALJ decision that the claimant had an RFC for no more than sedentary work is not a finding to which the Dennard AR applies. Such finding, therefore, is not considered when applying the Dennard AR in the adjudication of the current claim. In addition, because both the 2/92 and 1/96 ALJ decisions predate the Drummond court decision (i.e., were issued before 9/30/97), the requirement of the Drummond AR to adopt findings described in DI 52705.010 B.1.a. (including a finding of a claimant's RFC) from a final ALJ or AC decision on a prior claim would apply only with respect to such findings that are contained in the 1/96 ALJ decision, i.e., the most recent pre-Drummond ALJ decision. It would not apply with respect to any such findings that are contained in the 2/92 ALJ decision. See DI 52705.020 B.2.c.

   After applying the Dennard AR with respect to prior findings described in DI 52706.010B.1., the adjudicator next will consider whether the application of the Drummond AR requires the adoption of the finding that the claimant had an RFC for the full range of light work (or other finding described in DI 52705.010B.1.a.) that is contained in the 1/96 ALJ decision. (When considering other findings described in DI 52705.010B.1.a. contained in the 1/96 ALJ decision, exclude any finding to which the Dennard AR also applies if a finding on the same factual issue (i.e., the demands of the claimant's past relevant work or the claimant's date of birth, education or work experience) is being adopted from the 2/92 ALJ decision based on the application of the Dennard AR. See the NOTE preceding Example 2.) With respect to the claimant's RFC, the DDS adjudicator will determine whether there is new and material evidence submitted in connection with the current claim to justify making a finding different than the 1/96 finding that the claimant had an RFC for the full range of light work. If there is no new and material evidence in connection with the current claim (and there has been no change in the law, regulations or rulings) to justify making a finding different than the finding of the claimant's RFC in the 1/96 ALJ decision, the adjudicator will adopt such finding from the 1/96 ALJ decision for purposes of adjudicating the current claim.

   The decisional rationale must reflect this sequential consideration and, if a prior finding is adopted, the rationale must clearly indicate the date of the decision from which the finding is being adopted. It is important to remember that a finding will not be adopted if there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

   NOTE: In Example 2, the claim decided in the 1/96 final ALJ decision is a Dennard AR-only interim period case as defined in DI 52706.010B.5. If application of the Dennard AR to the 1/10/96 ALJ decision could change that decision, the interim period case should be referred to ODAR for consideration of possible readjudication under the Dennard AR. See DI 52706.010C.1.

   EXAMPLE 3:

   Same facts as in Example 2, except that, in addition to the prior claims that were decided in final ALJ decisions on 2/2/92 and 1/10/96, the claimant had two earlier title XVI adult disability claims which were denied at step five of the sequential evaluation process in final ALJ decisions on 7/7/87 and 12/15/89. Both the 7/87 and 12/89 ALJ decisions predate the Dennard court decision of 4/10/90. Therefore, only the findings from the later of these two pre-Dennard ALJ decisions (the 12/89 ALJ decision) need be considered in adjudicating the current claim under the Dennard AR. The requirement of the Dennard AR to adopt certain prior findings would not apply to findings contained in the 7/87 ALJ decision. This is because the findings from the 7/87 ALJ decision would not have been binding in the adjudication of the subsequent claim that was decided by the ALJ in 12/89 since the 12/89 decision predated the Dennard court decision.

   Among other things, the ALJ in the 12/89 decision found that the claimant has a limited education. The adjudicator of the current claim first will consider whether the application of the Dennard AR requires the adoption of the finding that the claimant has a limited education (or other finding described in DI 52706.010B.1.) that is contained in the 12/89 ALJ decision. With respect to the claimant's educational level, the DDS adjudicator will determine whether new and material evidence was submitted in connection with the claim decided in 2/92 or 1/96 or with the current claim that would justify making a finding with respect to the current claim that is different than the finding in the 12/89 ALJ decision that the claimant has a limited education. If there is new and material evidence to justify making a finding different than the 12/89 finding of a limited education, the DDS adjudicator would then determine whether there is new and material evidence submitted in connection with the claim decided in 1/96 or with the current claim to justify making a finding with respect to the current claim that is different than the finding by the ALJ in the 2/92 decision that the claimant has a high school education.

   If no new and material evidence was submitted in connection with the claim decided in 2/92 or 1/96 or with the current claim to justify making a finding different than the finding in the 12/89 ALJ decision that the claimant has a limited education, the adjudicator will adopt such finding from the 12/89 ALJ decision for purposes of adjudicating the current claim under the Dennard AR. The adjudicator will adopt such finding unless there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

   Application of the Dennard AR and the Drummond AR in the adjudication of the current claim would proceed as in Example 2 above.

   NOTE: In Example 3, the claim decided in the 2/2/92 final ALJ decision and the claim decided in the 1/10/96 final ALJ decision are Dennard AR-only interim period cases as defined in DI 52706.010B.5. If application of the Dennard AR to the claim decided in the 2/2/92 final decision or the claim decided in the 1/10/96 final decision could change the decision on such claim, the interim period case(s) should be referred to ODAR for consideration of possible readjudication under the Dennard AR. See DI 52706.010C.1.

3. Dennard AR-only interim period cases

1. See DI 52706.010B.5. for what constitutes a Dennard AR-only interim period case.

2. Follow the instructions in DI 52706.010C.1. on readjudication of a claim under the Dennard AR in a Dennard AR-only interim period case.

3. The readjudication of a claim under an AR is distinct from the rules for reopening and revising final determinations or decisions. A subsequent title II disability claim, or a subsequent title XVI adult disability claim, on which there was a final determination or decision in the Dennard AR-only interim period described in DI 52706.010B.5. may be readjudicated under the Dennard AR even though the 4-year rule (title II) or 2-year rule (title XVI) for reopening does not apply.

   The claim in a Dennard AR-only interim period case will be readjudicated under the Dennard AR where:

   • The individual requests application of the AR and demonstrates that application of the Ruling could change the final determination or decision on the claim (see DI 52706.010C.1.a.); or

   • The interim period case is discovered in the course of development/adjudication of a current claim of the individual and it is concluded that application of the AR would change the final determination or decision on the prior claim (see DI 52706.010C.1.b.).

4. Drummond AR/Dennard AR interim period cases

See DI 52706.010B.6. for what constitutes a Drummond AR/Dennard AR interim period case. Follow the instructions in DI 52706.010C.2. on readjudication of a claim under the two Rulings in these cases.

5. Preparing the determination

When the Drummond and Dennard ARs are applied, explain in the PDN or in the rationale the basis for the findings on the current claim. For example, if you are adopting an ALJ finding for a history of unskilled past relevant work, the rationale should indicate that the finding was adopted from a previous ALJ decision and indicate the date of such decision. If you are making a finding different than a previous ALJ finding, the rationale must indicate the circumstances that permit a different finding (e.g., new and material evidence received).