TN 1 (11-02)

A. Policy

For purposes of escalation and consolidation, a common issue is present when two or more claims, in any combination, share any overlapping period of time, and all have the same medical or substantial gainful activity (SGA) issue.

When a claim for benefits based on disability under title II or title XVI is pending at the initial, reconsideration, or hearing level of review and a subsequent claim under the other title is filed, the field office (FO) should establish whether the claims share a common issue so that the subsequent claim can be considered at the same level as the prior claim. Both claims will not be considered at the hearing level if the Administrative Law Judge (ALJ) does not agree that there is a common issue or that the claim should be joined, or if the claimant objects to joining the claims.

1. Common Issue At Reconsideration Or Hearing Level

Following are medical and SGA situations in which a common issue is present:

a. Title II Disability Insurance Benefits (DIB) and Title XVI Disability /Blindness Claims

Title II insured status is met in or after the month of filing for title XVI eligibility or payments, and both claims involve a medical or SGA issue of disability (either claim pending at the initial or reconsideration level, and the other claim pending at the reconsideration or hearing level);

b. Title II Disabled Widow/Widower Benefits (DWB) and Title XVI Disability/Blindness claims.

Title II prescribed period requirement is last met in or after the month of filing for title XVI payments, and both claims involve a medical or SGA issue of disability. A common issue is present if:

• either claim is pending at the initial level and the other claim is pending at the reconsideration or hearing level;

• The DWB claim is pending at the initial or reconsideration level and the title XVI claim is pending at the hearing level, as the medical issue in the DWB claim is also an issue in the title XVI claim.

c. Title II Childhood Disability Benefits (CDB) Claim and Title XVI Disability /Blindness claim and Both Claims Involve A Medical or SGA Issue of Disability.

A common issue is present if either claim is:

• Pending at the initial level and the other claim is pending at the reconsideration level.

• Pending at the initial or reconsideration level and the other claim is pending at the hearing level if the title XVI application was filed by the claimant prior to age 22.

d. Title II Disability Claim And Title XVI Disability/Blindness Claim (Continuing Disability) and Both Claims Involve A Medical or SGA issue.

A common issue is present if:

• A disability/blindness claim is pending at the initial or reconsideration level under one title, and continuing disability is at issue under the other title at the initial or reconsideration level.

• A disability or blindness cessation is pending at the hearing level under one title and a disability or blindness claim has been denied at the initial or reconsideration level under the other title.

NOTE: Common issue policy may be applied to CDB/Age-18 redetermination situations.

2. Onset date

In considering whether a subsequent application or case may be escalated for consolidation with a pending case, it is not necessary that the onset dates coincide. Onset dates may be different, either as alleged by the claimant or determined at the reconsideration or higher level. It is only necessary that a common period of disability be involved. See DI 12045.005B. for definition of common issue.

B. Procedure

1. Document prior claims on SSA-3367

Indicate any pending action or prior determination on the claim on the SSA-3367. Annotate any information about prior claims in item #7 of the SSA-3367. Appropriate remark entries might include “title II reconsideration pending,” or “title II appeal at ALJ level,” or “title XVI disability ceased,” or “new title XVI claimant has claim under (SSN) pending at ALJ level,” etc.

2. Claims Under Different Titles – Common Issue At The Reconsideration Level

a. Medical Issue

Forward the subsequent claim to the DDS for association with the pending reconsideration request. Alert the DDS to the common issue.

b. SGA Issue

If the common issue is SGA, process as follows:

• Determination

  Prepare a separate determination for each claim. Incorporate the rationale for the title II determination into the title XVI determination.

• Notice

  For any initial claim escalated to the reconsideration level, use a notice of reconsideration determination to issue a combined initial and reconsideration notice under that title. Release notices simultaneously for each title.

c. Late Filing Under One Title

If a reconsideration request under one title is timely, but a request under the other title was late and good cause cannot be established, take the following action:

• Protective Filing

• Secure a subsequent application on the late-filed reconsideration request to protect the filing date, in the event the previous claim cannot be reopened.

• Consolidation

  Escalate the subsequent claim to the reconsideration level, to be joined with the claim under the other title. If the determination is favorable, consideration should be given to reopening the prior claim.