BASIC (08-00)

A. Policy

The prior file must be requested anytime that the Drummond Acquiescence Ruling (AR) applies in adjudicating a subsequent claim. If the prior file is not available, a copy of the administrative law judge (ALJ) or Appeals Council (AC) decision should be secured. Normal case development procedures apply.

B. Procedures

1. Prior file activities

a. Regular procedures

See DI 20505.000 for guidance on obtaining prior files.

b. Special instructions for Drummond

• Process the subsequent claim under regular procedures if any one of the requirements in DI 52705.005 is not met.

• In situations where the requirements listed in DI 52705.005 are met and there is no information in the current file regarding the prior file, ask the field office (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.

• If only the prior ALJ or AC decision is available, apply the Drummond AR using the decision.

NOTE: If the AC takes an unfavorable action on a claimant's request for review, the claim file is retained in the Office of Disability Adjudication and Review (ODAR) Headquarters for 5 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 AR 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.

• If the prior folder is lost or has been destroyed and the prior decision cannot be obtained, document the file to show this and take no further action with regard to the AR (see DI 52705.010A.3.).

2. Medical/Vocational development and evaluation for Drummond

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

2. Adopt a finding of the claimant's residual functional capacity (RFC), education, or work experience, or other finding described in DI 52705.010B.1.a. or DI 52705.010B.1.b., as appropriate, from the 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 52705.010B.1. for further information on when not to adopt certain findings and DI 52705.010B.2. for an explanation of what constitutes "new and material evidence" to change a prior finding.)

   NOTE: A DDS medical consultant or the enhanced disability adjudicator (in prototype and single decisionmaker (SDM) States) must sign an RFC assessment, which is adopted pursuant to the AR. The DDS medical consultant or examiner should record any appropriate comments or explanation on the RFC or medical residual functional capacity (MRFC) forms.

3. If there are two or more prior claims with final ALJ or AC decisions, adjudicate the current claim under the Drummond AR in accordance with the instructions below. (See DI 52705.010B.5. and DI 52705.010B.6. for definitions of interim period cases and post-publication cases.)

   If the most recent final ALJ or AC decision on a prior claim either predates the Drummond court decision (i.e., was issued before 9/30/97) or concerns a post-publication case (i.e., the decision was issued on or after 6/1/98, the effective date of the Drummond AR), consider the findings described in DI 52705.010B.1.a. or DI 52705.010B.1.b., as appropriate, which are contained in that most recent ALJ or AC decision for the purposes of applying the Drummond AR in the adjudication of the current claim. Adopt any such finding from that 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. In this situation, it is only necessary to consider the findings from the more recent final ALJ or AC decision when adjudicating the current claim under the Drummond AR.

   If the most recent final ALJ or AC decision on a prior claim concerns an interim period case (i.e., the decision was issued during the period from 9/30/97, through 5/31/98) and there are one or more earlier claims with a final ALJ or AC decision which predates the Drummond court decision, adjudicate the current claim under the Drummond AR in accordance with the process below. Consider the findings from the most recent final ALJ or AC decision that predates the Drummond court decision as well as the findings from the final ALJ or AC decision that concerned the interim period case. If there are two or more pre-Drummond final ALJ or AC decisions, only the most recent of these pre-Drummond decisions will be considered along with the ALJ or AC decision that concerned the interim period case. (See DI 52706.020C.2. (Dennard AR) for a description of certain circumstances in which 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 title II disability claim (or title XVI adult disability claim) of an individual who had two or more prior title II disability claims (or title XVI adult disability claims) with final ALJ or AC decisions which predate the Drummond court decision.)

   First consider the findings described in DI 52705.010B.1.a. or DI 52705.010B.1.b., as appropriate, which are contained in the most recent final ALJ or AC decision which predates the Drummond court decision. From that pre-Drummond ALJ or AC decision, adopt any such finding which is not superseded by new and material evidence, either in the ALJ or AC decision that concerned the interim period case or in the current claim file, or by a change in 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 different than the finding contained in the most recent pre-Drummond final ALJ or AC decision, determine whether there is new and material evidence in the current claim file, or whether there has been a change in the law, regulations or rulings, to justify making a finding different than the finding contained in the ALJ or AC decision that concerned the interim period case. Adopt such a finding from the ALJ or AC decision that concerned the interim period case unless such finding is 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.

   EXAMPLE: A 47-year-old claimant with a title XVI disability claim currently pending at the initial level previously received three ALJ decisions on three prior title XVI claims on 2/2/94, 1/10/96 and 12/15/97. The most recent ALJ decision is the 12/15/97 decision that concerns an interim period case. Both the 2/94 and 1/96 ALJ decisions predate the Drummond court's decision of 9/30/97 and, therefore, only the findings from the later of these two ALJ decisions need be considered in adjudicating the current claim under the Drummond AR. (However, any findings described in DI 52706.010B.1. (Dennard AR) that are contained in the 2/94 ALJ decision would need to be considered in adjudicating the current claim under the Dennard AR (see DI 52706.020C.2.).) The ALJ in the 1/96 decision found that the claimant had an RFC for no more than sedentary work, while the ALJ in the 12/97 decision found that the claimant had an RFC for the full range of light work. The DDS will determine whether new and material evidence was submitted in connection with the claim decided in 12/97, or the current claim that would justify finding an RFC less restrictive than the 1996 sedentary RFC. If there is new and material evidence to justify changing the 1996 sedentary RFC, the DDS would then determine whether there is new and material evidence submitted with the current claim to change the 1997 light RFC. 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 the example above, the claim decided in the 12/97 final ALJ decision is a Drummond AR/Dennard AR interim period case as defined in DI 52706.010B.6. Therefore, if application of the Drummond and Dennard ARs to the interim period case could change the 1997 ALJ decision on the claim (see DI 52706.010C.2.), the interim period case should be referred to ODAR for consideration of possible readjudication under the two Rulings.

4. The readjudication of a claim under the Drummond AR in an interim period case is distinct from the rules for reopening and revising final determinations or decisions. A claim on which there was a final determination or decision in the interim period described in DI 52705.010B.5. may be readjudicated under the AR even though the 4-year rule (title II) or 2-year rule (title XVI) for reopening does not apply.

   The claim in an interim period case will be readjudicated under the Drummond 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 52705.010C.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 52705.010C.1.b.).

   NOTE: See DI 52706.010C. for instructions on readjudication of certain disability claims of residents of the Sixth Circuit under the Dennard AR alone (AR 98-3(6)) for the Sixth Circuit Court of Appeals' decision in Dennard v. Secretary of Health and Human Services (see DI 52706.010C.1.), or under both the Drummond and Dennard ARs (see DI 52706.010C.2.).

5. If concurrent title II/title XVI claims are filed subsequent to a final decision which is made by an ALJ or the AC in connection with a single claim of the individual under one title, adjudicate the new claim that is under the same title of the Act as the claim decided in the ALJ or AC decision in conformity with the AR. If the AR applies, adopt any of the findings described in DI 52705.010B.1. from the ALJ or AC decision in determining disability on the new claim under the same title as the prior claim, unless there is new and material evidence to change such finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding. The determination on the issue of disability on this new claim then may be adopted for the same period for the concurrent claim under the other title, provided that the same rules for determining disability apply (see DI 27515.001).

6. The AR permits use of a higher (more favorable to the claimant) age category in subsequent claims based solely on the passage of time. For example, if no new and material evidence exists to change a prior ALJ finding of an RFC for light work, in adjudicating the current claim the subsequent adjudicator is required to use the RFC for light work. However, when using the medical-vocational guidelines, the adjudicator will use the appropriate grid rule applicable to the claimant's current age.

7. Do not adopt prior findings, which 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.

3. Preparing the determination

When the AR is 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 light RFC, the rationale should indicate that the RFC finding was adopted from the previous ALJ decision. If you are making a finding different than the previous ALJ finding, the rationale must indicate the circumstances that permit a different finding (e.g., new and material evidence received).