Social Security Acquiescence Ruling 24-1(6); Rescission of Social Security Acquiescence Ruling 98-3(6) and Social Security Acquiescence Ruling 98-4(6), 92992-92995 [2024-27466]

Agencies

• Social Security Administration

[Federal Register Volume 89, Number 227 (Monday, November 25, 2024)]
[Notices]
[Pages 92992-92995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27466]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2022-0002]


Social Security Acquiescence Ruling 24-1(6); Rescission of Social 
Security Acquiescence Ruling 98-3(6) and Social Security Acquiescence 
Ruling 98-4(6)

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling (AR) and 
rescission of two Social Security ARs.

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SUMMARY: The Commissioner of Social Security is giving notice of Social 
Security Acquiescence Ruling 24-1(6) and rescission of Social Security 
Acquiescence Ruling 98-3(6) and Social Security Acquiescence Ruling 98-
4(6).

DATES: We will apply this ruling on December 2, 2024.

FOR FURTHER INFORMATION CONTACT: Mona Ahmed, Office of the General 
Counsel, Office of Program Law, Social Security Administration, 6401 
Security Boulevard, Baltimore, MD 21235-6401, (410) 965-0600, or TTY 
410-966-5609, for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, 
Social Security Online, at https://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: We are rescinding Social Security 
Acquiescence Ruling (AR) 98-3(6) and Social Security AR 98-4(6) and 
publishing this Social Security AR, in accordance with 20 CFR 
402.35(b), 404.985(a), (b), and 416.1485(a), (b), to explain how we 
will apply the holding in Earley v. Commissioner of Social Security, 
893 F.3d 929 (6th Cir. 2018), regarding the effect of prior disability 
findings on the adjudication of a subsequent disability claim.
    An AR explains how we will apply a holding in a United States Court 
of Appeals decision that we determine conflicts with our interpretation 
of a provision of the Social Security Act (Act) or regulations when the 
Government has decided not to seek further review of that decision or 
is unsuccessful on further review.
    On June 1, 1998, we issued AR 98-3(6) (63 FR 29770) and AR 98-4(6) 
(63

[[Page 92993]]

FR 29771) to explain how we would apply the holdings in Dennard v. 
Secretary of Health & Human Services, 907 F.2d 598 (6th Cir. 1990), and 
Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 
1997), respectively. Both ARs provided instructions for adjudicating a 
subsequent disability claim, with an unadjudicated period, arising 
under the same title of the Act as the prior claim, where the claimant 
resided within the Sixth Circuit. AR 98-3(6) (for Dennard) stated that 
adjudicators must adopt a finding from the final decision by an 
administrative law judge (ALJ) or the Appeals Council (AC) of the 
demands of the claimant's past relevant work, or a finding of the 
claimant's date of birth (for the purposes of ascertaining their age), 
education, or work experience 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. Similarly, AR 98-4(6) (for Drummond) stated 
that adjudicators must adopt certain findings from the final decision 
by an ALJ or the AC in determining whether the claimant is disabled 
with respect to an 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. AR 98-4(6) stated that it applied only to 
a finding of a claimant's residual functional capacity (RFC) ``or other 
finding required at a step in the sequential evaluation process for 
determining disability provided under 20 CFR 404.1520, 416.920 or 
416.924, as appropriate, which was made in a final decision by an ALJ 
or the Appeals Council on a prior disability claim.''
    On June 27, 2018, the United States Court of Appeals for the Sixth 
Circuit issued a decision in Earley v. Commissioner of Social Security, 
893 F.3d 929 (6th Cir. 2018), in which it clarified its intent in 
Drummond and interpreted the holding in Drummond to be more limited 
than described in AR 98-4(6). Whereas AR 98-3(6) and AR 98-4(6) 
required the adjudicator to adopt findings in an earlier disability 
decision unless there is new and material evidence, Earley indicates 
that it is fair for the adjudicator to consider prior findings as 
legitimate, albeit not binding, in reviewing a subsequent application. 
The court in Earley recognizes that a new application covering a new 
period deserves a new review, but prior ALJ and AC findings and the 
earlier record may have probative value in that review. The court also 
indicates that res judicata principles would apply where the new 
application covers the same dates, and no new evidence is introduced.
    Although the Earley decision does not apply or discuss Dennard, the 
court's explanations in Earley also clarify the Sixth Circuit's view on 
the issues addressed in AR 98-3(6) (for Dennard). Indeed, in Drummond, 
which the Earley decision addresses in depth, the Sixth Circuit relied 
in part on Dennard. The Sixth Circuit in Earley interpreted Drummond 
more narrowly than the Social Security Administration (SSA) did in AR 
98-4(6), and the Sixth Circuit's explanations in Earley clarify the 
standard or the approach for the issues addressed in both AR 98-3(6) 
and AR 98-4(6). Therefore, we are rescinding ARs 98-3(6) and 98-4(6) 
and publishing this single, new AR to provide instructions on the 
effect of prior disability findings on the adjudication of a subsequent 
disability claim in the Sixth Circuit.
    We will apply the holding of the Court of Appeals' decision as 
explained in this Social Security AR to claims at all levels of 
administrative adjudication within the Sixth Circuit. This Social 
Security AR will apply to all determinations and decisions made on or 
after December 2, 2024]. If we made a determination or a decision on an 
application for benefits between June 27, 2018, the date of the Court 
of Appeals' decision in Earley v. Commissioner of Social Security, 893 
F.3d 929 (6th Cir. 2018), and December 2, 2024, the effective date of 
this Social Security AR, an individual may request application of this 
Social Security AR to their claim. However, the individual must first 
demonstrate, pursuant to 20 CFR 404.985(b)(2) or 416.1485(b)(2), that 
application of the ruling could change our prior determination or 
decision.
    If we later rescind this AR as obsolete, we will publish a notice 
in the Federal Register to that effect, as provided in 20 CFR 
404.985(e) and 416.1485(e). If we decide to relitigate the issue 
covered by this AR, as provided by 20 CFR 404.985(c) and 416.1485(c), 
we will publish a notice in the Federal Register stating that we will 
apply our interpretation of the Act or regulations and explaining why 
we decided to relitigate the issue.

(Federal Assistance Listings, Program Nos. 96.001 Social Security 
Disability Insurance; 96.002 Social Security Retirement Insurance; 
96.004 Social Security Survivors Insurance; 96.006 Supplemental 
Security Income)

    The Commissioner of Social Security, Martin O'Malley, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Erik Hansen, a Federal Register 
Liaison for the Social Security Administration, for purposes of 
publication in the Federal Register.

Erik Hansen,
Associate Commissioner for Legislative Development and Operations, 
Social Security Administration.

Acquiescence Ruling 24-1(6)

Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) 
(Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 
(6th Cir. 1997)): Effect of Prior Disability Findings on Adjudication 
of a Subsequent Disability Claim--Titles II and XVI of the Act

Issue
    Whether, in making a disability determination or decision on a 
subsequent disability claim with respect to an unadjudicated period, 
the Social Security Administration (SSA) must consider a finding of a 
claimant's residual functional capacity (RFC) or other finding required 
under the applicable sequential evaluation process for determining 
disability, made in a final decision by an administrative law judge 
(ALJ) or the Appeals Council (AC) on a prior disability claim.
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(a), 
404.957(c)(1), 416.1400(a), 416.1457(c)(1), AR 98-3(6) (rescinded), AR 
98-4(6) (rescinded).
Circuit
    Sixth (Kentucky, Michigan, Ohio, Tennessee).

Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) 
(Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 
(6th Cir. 1997))

Applicability of Ruling
    This ruling applies to determinations and decisions at all 
administrative levels (i.e., the initial, reconsideration, ALJ hearing, 
and AC levels).
    The decision of the Sixth Circuit in Earley was based, in part, on 
the panel's interpretation of the Sixth Circuit's prior decision in 
Drummond. Drummond, in turn, relied in part on the Sixth Circuit's 
earlier decision in Dennard. The following summaries of the two earlier

[[Page 92994]]

cases are provided as background material.

Dennard v. Secretary of Health & Human Services, 907 F.2d 598 (6th Cir. 
1990)

    Mr. Dennard argued that because SSA found him unable to do his past 
relevant work on his first application for benefits, SSA was precluded 
from reconsidering this issue and finding in a subsequent decision, 
involving an unadjudicated period, that Mr. Dennard could perform the 
same past relevant 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. The court 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.''

Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 
1997)

    Ms. Drummond argued that, absent evidence of improvement in her 
condition, the ALJ's finding in a prior claim that she was limited to 
sedentary work precluded SSA from finding in a subsequent claim that 
she could perform medium work. The Sixth Circuit stated that, 
``[a]bsent evidence of an improvement in a claimant's condition, a 
subsequent ALJ is bound by the findings of a previous ALJ.'' The court 
held that SSA could not reexamine issues previously decided, in the 
absence of new and additional evidence or changed circumstances. The 
court further stated that, ``[j]ust as a Social Security claimant is 
barred from relitigating an issue that has been previously determined, 
so is the Commissioner.'' After finding that there was not substantial 
evidence that Ms. Drummond's condition had improved significantly in 
the time between the two ALJ decisions, the court concluded that SSA 
was bound by its previous finding that Ms. Drummond was limited to 
sedentary work.

Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018)

Description of Case
    In 2010, Ms. Earley applied for disability benefits, claiming that 
she was disabled starting on June 25, 2010. In 2012, an ALJ found that 
she remained capable of light physical exertion and that she was not 
disabled for the period from June 25, 2010, through May 15, 2012. Ms. 
Earley applied again in July 2012, arguing that she became disabled 
after the decision on her last claim. The same ALJ, invoking Drummond 
and AR 98-4(6), stated that he was bound by his earlier findings, 
unless Ms. Earley offered new and material evidence of a changed 
condition. Because the ALJ found that Ms. Earley had failed to do that, 
the ALJ again found her not disabled and denied her claim.
    On review, the district court reversed. The district court 
construed Drummond to apply only if it would lead to a favorable 
outcome for the claimant. Since any preclusive effect of the ALJ's 
prior findings would make it more difficult for Ms. Earley to be found 
disabled, the court found that Drummond did not apply.
    On appeal, the Sixth Circuit examined and clarified Drummond. The 
court found that the key principles protected by Drummond, consistency 
between proceedings and finality with respect to prior adjudicated 
claims, apply to both individuals and the government. At the same time, 
these principles do not prevent the agency from giving a fresh look to 
a new claim containing new evidence or satisfying a new regulatory 
threshold that covers a new period of alleged disability while being 
mindful of past rulings and the record in prior proceedings.
    The court rejected the argument that, ``[i]n reviewing a second 
application by the same individual . . . the administrative law judge 
should completely ignore earlier findings and applications.'' The court 
explained that ``[f]resh review is not blind review'' and that ``a 
later administrative law judge may consider what an earlier judge did 
if for no other reason than to strive for consistent decision making.'' 
Further, the court explained that ``it is fair for an administrative 
law judge to take the view that, absent new and additional evidence, 
the first administrative law judge's findings are a legitimate, albeit 
not binding, consideration in reviewing a second application'' and, at 
the same time, that ``an applicant remains free to bring a second 
application that introduces no new evidence or very little new evidence 
after a failed application.'' The court cautioned, however, that a 
claimant ``should not have high expectations about success if the 
second filing mimics the first one and the individual has not reached 
any new age (or other) threshold to obtain benefits.''
Holding
    The Sixth Circuit stated that, ``[w]hen an individual seeks 
disability benefits for a distinct period of time, each application is 
entitled to review.'' The court explained that if an individual files a 
subsequent application for the same period and ``offers no cognizable 
explanation for revisiting the first decision, res judicata would bar 
the second application.'' The court further explained that an ALJ 
honors res judicata ``principles by considering what an earlier judge 
found with respect to a later application and by considering the 
earlier record'' and that, accordingly, ``it is fair for an 
administrative law judge to take the view that, absent new and 
additional evidence, the first administrative law judge's findings are 
a legitimate, albeit not binding, consideration in reviewing a second 
application.'' Ms. Earley's new claim involved a new period; therefore, 
the court held that res judicata did not apply. Accordingly, the court 
remanded the case for the ALJ to reconsider Ms. Earley's claim for 
benefits under the correct standard.
Statement as to How Earley Differs From The Agency's Policy
    In a subsequent disability claim, SSA considers the issue of 
disability with respect to a period that was not adjudicated to be a 
new issue that requires an independent evaluation. Thus, when 
adjudicating a subsequent disability claim involving an unadjudicated 
period, SSA considers the facts and issues de novo in determining or 
deciding disability with respect to the unadjudicated period. SSA does 
not consider prior findings made in the final determination or decision 
on the prior claim as evidence in adjudicating disability with respect 
to the unadjudicated period in the subsequent claim.
    In Earley, the Sixth Circuit agreed with SSA's policy that res 
judicata does not apply with respect to an unadjudicated period. Yet, 
the Sixth Circuit disagreed with SSA's policy that prior disability 
findings are not to be considered in the adjudication of disability for 
a previously unadjudicated period in a subsequent claim. Rather, Earley 
indicates that such prior findings made at the ALJ hearing or AC level 
should be considered in the adjudication of disability for an 
unadjudicated period in a subsequent claim, stating that ``it is fair 
for an administrative law judge to take the view that, absent new and 
additional evidence, the first administrative law judge's findings are 
a legitimate, albeit not binding, consideration in reviewing a second 
application.'' Earley indicates that an adjudicator honors the 
principles of res judicata ``by considering what an earlier judge found 
with respect to a later application and by considering that earlier 
record.''

[[Page 92995]]

    SSA interprets Earley to require that, where a final decision after 
a hearing on a prior disability claim contains a finding of a 
claimant's RFC or other finding required under the applicable 
sequential evaluation process for determining disability, SSA must 
consider such finding(s) as evidence when adjudicating a subsequent 
disability claim, arising under the same or a different title of the 
Act, involving an unadjudicated period.
Explanation of How We Will Apply The Earley 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 AC level. Additionally, it 
applies only to a finding of a claimant's RFC or other finding that is 
required at a step in the sequential evaluation process for 
adjudicating disability (provided under 20 CFR 404.1520, 416.920, or 
416.924, as appropriate), made in a final decision (favorable or 
unfavorable) by an ALJ or the AC on a prior disability claim.\1\
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    \1\ In making a finding of a claimant's RFC or other finding 
that is required at a step in the sequential evaluation process for 
adjudicating disability, an ALJ or the AC may have made certain 
subsidiary findings, such as an assessment of the claimant's 
symptoms. A subsidiary finding does not constitute a finding that is 
required at a step in the sequential evaluation process for 
adjudicating disability, as provided under 20 CFR 404.1520, 416.920, 
or 416.924.
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    When a claimant seeks disability benefits for a new period in a 
subsequent claim, that subsequent claim is entitled to review following 
the applicable sequential evaluation process. However, such review does 
not exist in a vacuum. When adjudicating a subsequent claim (arising 
under the same or a different title of the Act as the prior claim), an 
adjudicator deciding whether a claimant is disabled during a previously 
unadjudicated period must consider findings from the decision on the 
prior claim. As the Court recognized in Earley, things change with the 
passage of time, such as age and physical condition. As a result, each 
claim covering a different period should be reviewed as a new claim. 
However, when a finding of a claimant's RFC or other finding required 
under the sequential evaluation process for determining disability 
differs from that in the prior decision, the adjudicator must make 
clear that they considered the prior finding as evidence in light of 
all relevant facts and circumstances.\2\
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    \2\ For example, an adjudicator might consider such factors as: 
(1) whether the fact on which the prior finding was based is subject 
to change with the passage of time, such as a fact relating to the 
severity of the claimant's medical condition; (2) the likelihood of 
such a change, considering the amount of time between the period 
adjudicated in the prior claim and the unadjudicated period in the 
subsequent claim; and (3) the extent to which evidence that was not 
considered in the final decision on the prior claim provides a basis 
for making a different finding for the unadjudicated period in the 
subsequent claim. These are only examples and not intended to create 
specific requirements as part of the sequential evaluation.
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    Where the prior finding was about a fact that is subject to change 
with the passage of time, such as a claimant's RFC or the severity of 
an impairment(s), the likelihood that the fact has changed generally 
increases as the time between the previously adjudicated period and the 
subsequent period increases. An adjudicator generally should pay 
particular attention to the lapse of time between the earlier claim and 
the later claim and the impact of the passage of time on the claim. In 
situations where minimal time has passed, and no or very little new 
evidence has been introduced, it is more likely that the prior finding 
will remain the same. But the adjudicator must consider all relevant 
facts and circumstances on a case-by-case basis. Additionally, a change 
in the law, regulations, or rulings affecting a relevant finding or the 
method for arriving at the finding may be a reason why the prior 
finding, considered as evidence, is properly departed from in the 
current determination or decision.

[FR Doc. 2024-27466 Filed 11-22-24; 8:45 am]
BILLING CODE 4191-02-P