TN 13 (10-09)

CITATIONS: Social Security Act, sections 205(a) and (b)(3) ; Public Law 101-508, section 5107; Regulation - 20 C.F.R. 404.957(c)(1)

A. Definition of res judicata

Res judicata is a rule in civil law and an administrative policy. We apply it at all levels of the claims process to avoid deciding an issue that we have previously decided based on the same facts, same issues, same parties, and same adjudicative period.

Reference: GN 03101.160 – Res Judicata

B. When the claimant submits a Title II claim for the same period

A subsequent Title II claim may be denied using the legal principle of res judicata when a previous determination or decision denying a prior Title II claim:

• has become final (no timely appeal); and

• denied the prior claim through the date the nondisability requirements for entitlement were last met (i.e., date last insured (DLI) for Disability Insurance Benefits (DIB); ending date of the prescribed period for Disabled Widow's or Widower's Benefits (DWB); or attainment of age 22 for Childhood Disability Benefits (CDB)); and

• considered the same facts and issues for the same period.

Ensure that all of the following conditions are met before using res judicata as the basis for denial:

• the law or regulations pertaining to the alleged disabling condition have not changed (to determine the applicability of res judicata see DI 27516.010 – Disability Determination Services (DDS) Medical Evaluation Criteria);

• the subsequent claim presents no new facts or issues which were not considered in making the prior determination or decision (such as an unadjudicated period);

• an onset of a significant new impairment during the previously adjudicated period is not alleged; and

• the claimant does not allege that he or she failed to timely appeal an adverse initial or reconsideration Title II determination because of good faith reliance on incorrect, incomplete, or misleading information given by SSA or the disability determination services (DDS) regarding the effects of reapplying instead of appealing. For additional information, see Social Security Ruling (SSR) 95-1p);

• the claimant does not allege nor does the evidence support a failure by the claimant to timely appeal the previous adverse determination, decision, or dismissal because of the claimant’s mental incapacity. For additional information, see SSR 91-5p).

  NOTE: The application of res judicata only applies to Title II claims, i.e. the current application must be Title II and the prior claim must be Title II. This procedure does not apply for Title XVI claims.

C. Processing of a res judicata denial

If all of the conditions in DI 27516.001B (in this section) are met, the claim is in the FO’s jurisdiction. When res judicata applies to the subsequent Title II claim:

1. Enter the “S1” denial code on the Benefit Continuity Factors (BECF) screen in the Modernized Claim System (MCS);

2. Enter the decision status of “03” and the listing code of “243” on the Decision Input (DECI) screen; and

3. Process via Earnings Computation (EC).

If a claim that was not in the FO’s jurisdiction returns from the DDS as a res judicata denial after a medical review, follow the instructions as outlined in the previous three steps to process the denial.

NOTE: The notice in a res judicata case informs the claimant that the decision reached on the prior application applies and the only appeal available is on the question of whether the same person, facts and issues were present in both the prior and subsequent claims for the same period.

References:

• DI 11010.075 – Title II Technical Denials, and Claims Not Requiring a Disability Determination

• DI 81010.140 – Processing Field Office (FO) Determinations

D. When res judicata does not apply to subsequent Title II claims

Section 5107 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), Public Law 101-508, provides that SSA will not deny a subsequent application or dismiss an appeal request based on res judicata for determinations made on or after July 1, 1991 if the applicant demonstrates that:

• he or she (or another person whose rights may have been adversely affected by the prior determination) failed to appeal timely an adverse initial or reconsideration determination because of misinformation relating to the consequences of reapplying for benefits in lieu of filing an appeal; and

• an officer or employee of SSA or a DDS provided the misinformation.

  NOTE: Misinformation is incorrect, incomplete, or misleading information that an SSA or DDS officer or employee gave orally, in writing, or in the form of printed material (i.e., a letter or notice) and relates to the consequences of reapplying for benefits instead of filing an appeal.

  Reference: GN 00204.008 – Misinformation - Applications

E. Processing and developing an allegation of misinformation under OBRA 1990 legislation

1. When misinformation is alleged

The FO takes one of the following actions to process a misinformation allegation:

• If the claimant alleges he or she failed to appeal an adverse determination because of good faith reliance on incorrect, incomplete, or misleading information given by SSA or DDS relating to the consequences of reapplying instead of appealing, then the FO develops evidence per GN 03101.120C.; or

• If the adverse determination was made on or after July 1, 1991, the FO makes a determination concerning the alleged misinformation; or

• If the adverse determination was made prior to July 1, 1991, the FO determines if a reopening of the prior determination is possible or if good cause for extending the time to appeal exists. If reopening the prior determination is possible, forward the case to the DDS to consider the reopening issue.

References:

• DI 27505.001 – Conditions for Reopening a Final Determination or Decision

• GN 03101.020 – Good Cause for Extending Time Limit

2. When misinformation is alleged but not found

If the FO determines that misinformation does not exist:

• deny the subsequent claim on the basis of res judicata, or forward the claim to the DDS if the DDS has jurisdiction; and

• send the claimant a notice with appeal rights only on the correctness of applying res judicata. Also provide an explanation of why misinformation does not exist.

3. When an allegation of misinformation is substantiated

If the FO determines that the claimant received misinformation, the FO forwards the case to the DDS for a substantive determination on the subsequent claim, providing further administrative and judicial appeal rights.

The DDS adjudicator will make a disability determination on the subsequent claim and complete an SSA-831 (Disability Determination and Transmittal) in the usual manner.

NOTE: Since the claimant received misinformation, the effect of adjudicating the subsequent application is that the period adjudicated in the determination on the prior claim must be adjudicated again with full appeal rights. Adjudicate the previously adjudicated period as if the claimant had filed a timely appeal request, although the subsequent application is not an appeal request. Any award of benefits would be based on the subsequent application.

4. When misinformation is not alleged

If the claimant files a subsequent application and does not allege misinformation, then the FO processes the subsequent application in the usual manner.

5. When misinformation is found after the subsequent application is denied

If SSA has already denied a subsequent application or dismissed an appeal request because of res judicata and then determines that misinformation was given, vacate the denial or dismissal, then:

• SSA or the DDS, as appropriate, will issue a determination or decision based on the merits of the subsequent application (see GN 03101.120C.6.).

• The level of the administrative review process that first denied or dismissed the claim because of res judicata makes the merits determination or decision.

NOTE: To vacate means to set aside the previous action. A res judicata denial may be vacated at any time.

F. Preparing a subsequent Title II claim for DDS review

To transfer electronic cases to DDS for a determination follow instructions in DI 81010.085 – Transferring Cases in Electronic Disability Collect System (EDCS).

To ensure that the subsequent claim is readily identifiable by the DDS:

• Annotate the prior filing section of the SSA-3367 Disability Report – Field Office, with the pertinent facts regarding the prior filing.

• Add a message (without an expiration date) to the certified electronic folder (CEF) stating: “DDS jurisdiction of potential denial on basis of res judicata. DDS review necessary.” For instruction on posting messages to the CEF, see DI 81020.090 – Certified Electronic Folder (CEF) Messages.

• Obtain the prior claim folder(s) if the prior filing is an official paper folder housed in a Modular Disability Folder (MDF).

• Document the claims folder to show any SSI (Supplemental Security Income) involvement, including the location of the SSI folder.

  NOTE: For additional information on documenting prior claims activity, see DI 11005.085. If the prior title II folder cannot be located, do not reconstruct the folder per DI 20502.030 – Folder Reconstruction.

When the prior claim is pending at the Appeals Council (AC), and the subsequent claim needs a DDS medical determination because one of the criterion in DI 27516.001B. (in this section) is not met, add the “subsequent claim” flag to the case prior to transferring to the DDS.