What do the Dennard and
Drummond ARs require?
The ARs require that when adjudicating a subsequent disability claim with
an unadjudicated period arising under the same title of the Act as a prior
claim on which there has been a final Administrative Law Judge (ALJ) or
Appeals Council (AC) decision, an adjudicator must adopt certain findings
from the ALJ or AC decision in determining whether the claimant is
disabled with respect to the 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.
What are the prior findings to which the
Dennard AR applies?
The Dennard AR applies to a finding of the
demands of a claimant's past relevant work, under
20 CFR §
404.1520(e) or
20 CFR §
416.920(e), as well as to a finding of a claimant's date of birth,
education, or work experience required under
20 CFR §§
404.1520(f)(1) or 416.920(f)(1).
What are the prior findings to which the
Drummond AR applies?
The Drummond AR applies to a finding of a
claimant's residual functional capacity 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.
When does the Dennard Acquiescence Ruling (AR)
apply?
The AR applies to a claim pending at the initial, reconsideration, ALJ
hearing or AC level when the following conditions are met:
The adjudicator is deciding a subsequent disability claim of an individual
on or after June 1, 1998, the effective date of the AR, that involves an
unadjudicated period and that arises under the same title of the Act as a
prior claim; and
There was a decision by an ALJ or the AC on the prior disability claim and
this decision has become final; and
The final decision by the ALJ or the AC on the prior claim contains a
finding of the demands of the claimant's past relevant work, or a finding
of the claimant's date of birth, education, or work experience;
and
The claimant resides 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.
The AR is also applicable to interim period cases. In accordance with
20 CFR §§
404.985(b)(2) or 416.1485(b)(2), a claimant may request
readjudication under the Dennard AR of a
disability claim in a Dennard AR-only interim
period case, ie., where the notice of the final determination or decision
on the subsequent disability claim is dated April 10, 1990, the date of
the Dennard court decision, through September
29, 1997, the day before the date of the
Drummond court decision. Also, in accordance
with the aforementioned regulations, a claimant may request
readjudication under both the Dennard AR and the
Drummond AR of a disability claim in a
Drummond AR/Dennard AR
interim period case, i.e., where the notice of the final determination or
decision on the subsequent disability claim is dated September 30, 1997,
the date of the Drummond decision, through May
31, 1998, the day before the effective date of the ARs. See question 18
for more guidance on this situation.
When does the Drummond Acquiescence Ruling
(AR) apply?
The AR applies to a claim pending at the initial, reconsideration, ALJ
hearing or AC level when the following conditions are met:
The adjudicator is deciding a subsequent disability claim of an individual
on or after June 1, 1998, the effective date of the AR that involves an
unadjudicated period and that arises under the same title of the Act as a
prior disability claim; and
There was a decision by an ALJ or the AC on the prior disability claim and
this decision has become final; and
The final decision by the ALJ or the AC on the prior claim contains a
finding on the 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; and
The claimant resides in Kentucky, Michigan, Ohio or Tennessee at the time
of the determination or decision on the subsequent claim at the initial,
recconsideration, ALJ hearing or AC level.
The AR is also applicable to interim period cases. In accordance with
20 CFR §§
404.985(b)(2) or 416.1485(b)(2) a claimant may request readjudication
under the Drummond AR and
Dennard AR of a disability claim in a
Drummond AR/Dennard AR
interim period case, i.e., where the notice of the final determination or
decision on the subsequent disability claim is dated September 30, 1997
(the date of the Drummond court decision) through
May 31, 1998 (the day before the effective date of the AR). See question
18 for more guidance on this situation.
The Dennard and
Drummond ARs both indicate that the adjudicator
must adopt certain findings made in a final decision by an ALJ or the AC
on a prior disability claim under the same title of the Act unless there
is new and material evidence relating to 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). Does the term "new and
material" in this context have the same meaning as it does in the
"good cause for reopening" regulations
(20 CFR §§
404.989(a)(1) and
416.1489(a)(1))
and in HALLEX
I-2-9-40
C.1.?
No. "New and material evidence" has a broader meaning in the
context of the Dennard and
Drummond ARs than it does in the reopening
context. Generally, "new" evidence of improvement is evidence
that was not before the adjudicator who made the decision on the prior
claim. As noted in the answer to question 2, the requirement to adopt
prior findings under the Dennard AR applies to a
finding of the demands of a claimant's past relevant work as well as to a
finding of a claimant's date of birth, education, or work experience. As
noted in the answer to question 3, the requirement to adopt prior
findings under the Drummond AR applies to a
finding of a claimant's RFC or other finding required at a step in the
sequential evaluation process for determining disability. For purposes of
the Dennard and
Drummond ARs, "new" evidence includes a
new fact that automatically results from the passage of time, i.e., the
increase in the claimant's age and the moving forward of the 15-year
period encompassing past relevant work
(20 CFR §§
404.1565(a) and
416.965(a)).
"New" evidence under the Dennard and
Drummond ARs can also include testimony that was
not presented in the proceedings before the prior adjudicator. If there is
new and material evidence or there has been a change in the law,
regulations, or rulings affecting the finding or the method for arriving
at the finding, adoption of that finding is not required.
In the reopening context, evidence is "material" only if it
relates to the period that was adjudicated in the prior final
determination or decision at issue. By contrast, under the
Dennard and Drummond
ARs, the new evidence need not relate to the period adjudicated in the
final decision on the prior claim in order to be "material," that
is, to provide a basis for making a different finding in the adjudication
of the current claim. The new evidence may relate solely to the
unadjudicated period covered by the new claim, e.g., new evidence
establishes that the claimant's medical condition has worsened or has
improved since the date of the final decision on the prior claim, or it
may relate to both the unadjudicated period and the period previously
adjudicated, e.g., new evidence establishes that, prior to the date of
the final decision on the prior claim and continuing to the present time,
the claimant's RFC was, and continues to be, more restrictive than that
found in the prior decision. (In the latter situation, the new evidence
also may provide a basis for reopening the prior decision if the
conditions for reopening are otherwise met.) Under the ARs, new evidence
is "material" if, for purposes of adjudicating the current claim,
the evidence both differs from that presented in the prior claim and
warrants a finding different than that made in the decision on the prior
claim.
Does the Drummond AR mean that the adjudicator
who is deciding the current claim cannot find that the claimant has a more
or less restrictive RFC than that established in a finding in the prior
decision if there is no new and material evidence or change in the law,
regulations, or rulings related to that finding?
Yes.
Do the requirements of the ARs to adopt prior findings affect the
method of adjudication under the sequential evaluation process in
determining disability with respect to the subsequent claim?
To the extent that the adjudicator must first address whether there is new
and material evidence, or a change in the law, regulations, or rulings
with respect to each such finding made in the prior decision, the answer
is "yes." The sequential evaluation order of consideration is
unchanged, but the initial question at each step when applying the
Drummond AR(or at the relevant step when applying
the Dennard AR) is whether there is new and
material evidence relating to the particular finding covered under the
applicable AR, or there has been a change in the law, regulations, or
rulings affecting the finding or the method for arriving at the finding.
If there is no new and material evidence or a change in the law,
regulations, or rulings related to the finding, the adjudicator must
adopt the prior finding covered under the applicable AR. If there is new
and material evidence or a change in the law, regulations, or rulings
with respect to a particular finding covered under the applicable AR, the
adjudicator must make a new finding based on all evidence pertinent to
that finding.
Do the requirements of the ARs concerning the adoption of certain
findings mean the decisional rationale must reflect the above
analysis?
Yes. Decisions in cases in which one of the ARs applies must refer to the
AR and include rationale indicating why any new evidence is or is not
material to a particular finding. Any change in the law, regulations, or
rulings related to a finding must also be reflected in the rationale. The
adjudicator must clearly state which prior findings are being adopted and
which are not. For each prior finding the adjudicator adopts, no further
rationale is needed.
The Drummond AR indicates that it applies only
to disability findings (i.e., a finding regarding a claimant's RFC or
other finding required at a step in the sequential evaluation process for
determining disability). What are the "other
finding[s]?"
Findings that are "required" at a step in the sequential
evaluation process provided under
20 CFR §§
404.1520 or 416.920 include:
Step 1: a finding as to whether a claimant's work activity constitutes
substantial gainful activity (SGA)
Step 2: a finding concerning whether a claimant has an impairment or
combination of impairments that is severe and whether the impairment or
combination of impairments meets the duration requirement;
Step 3: a finding concerning whether a claimant's impairment(s) meets or
equals a listed impairment in Appendix 1 to Subpart P of 20 CFR Part 404
(step three);
Step 4: a finding of a claimant's RFC and a finding of the physical and
mental demands of the claimant's past relevant work;
Step 5: a finding of a claimant's age, education or work experience for
purposes of determining if claimant can do other work.
Other sections of the regulations require additional findings in certain
cases, e.g., the skill level of a claimant's past relevant work and
whether a claimant has transferable skills
(20 CFR §§
404.1568 and
416.968). For
findings required under the evaluation process or for determining
disability for a child applying for title XVI benefits based on
disability, see 20
CFR § 416.924.
Is a finding regarding credibility considered to be a finding required
at a step in the sequential evaluation process for the purposes of the
Drummond AR?
No. In making certain "required" findings, such as RFC or other
findings required to be made at a step in the sequential evaluation
process, adjudicators may make "subordinate" findings. For
example, in making a "required" finding of a claimant's RFC, an
adjudicator may make a "subordinate" finding concerning the
credibility of a claimant's testimony or statements. A subordinate finding
does not constitute a finding that is required at a step in the
sequential evaluation process. Pursuant to the
Drummond AR, an adjudicator reviewing a
subsequent claim must adopt a prior finding of the claimant's RFC or
other "required" finding (i.e., a finding required at a step of
the sequential evaluation as provided under
20 C.F.R.
§§ 404.1520,
416.920 or
416.924, as appropriate) unless there is new and material evidence
relating to that 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 question of making a "subordinate" finding
regarding credibility only arises when there is such new and material
evidence or changes in legal requirements.
When is evidence in a subsequent claim considered new and material such
that it would provide a basis for not adopting the finding of the
claimant's RFC from a prior final decision under the
Drummond AR?
Example 1:
An individual with a cardiovascular impairment was given an RFC for
sedentary work in a final decision by an ALJ. In a subsequent claim,
evidence shows that since the ALJ's decision the claimant had bypass
surgery. Exercise testing and functional evidence document that currently
an RFC for light work would be appropriate. Evidence concerning the
surgery, exercise testing, and functional documentation is new and
material evidence because it was not part of the prior claim, and it
demonstrates changes in the claimant's condition which makes the previous
RFC for sedentary work no longer applicable.
Example 2:
An individual with a cardiovascular impairment was given an RFC for
sedentary work in a final decision by an ALJ. The claimant did not have
bypass surgery or other procedures since the prior final ALJ denial. In
the subsequent claim, evidence shows that recent exercise testing results
were not materially different from test results in the prior claim. There
is no other new evidence in the record for the subsequent claim that would
provide a basis for changing any component of the ALJ's finding of the
claimant's RFC. In this situation, the evidence consisting of recent
exercise testing results is new but not material. When compared with the
evidence before the ALJ, this new evidence does not show that any
component of the ALJ's RFC assessment has changed. Therefore, assuming
that there has not been any change in the law, regulations or rulings
affecting the finding of the claimant's RFC or the method for arriving at
such finding, the prior ALJ finding of an RFC for no more than sedentary
work must be adopted. This is so even if the results of both the prior and
recent exercise testing appear to support an RFC for light work.
Do the ARs apply if the prior ALJ or AC final decision was issued for a
Title XVI claimant who was then under age 18 and that claimant has since
attained the age of 18 and has a subsequent claim, with an unadjudicated
period, arising under the same title of the Act as the prior claim?
No. The Drummond AR does not apply when the
requirements for disability on one claim under the same title (e.g., a
prior title XVI child disability claim) are not identical to the
requirements for disability on a subsequent claim (e.g., a current title
XVI adult disability claim). The Dennard AR would
not apply because that AR is limited to certain prior findings at steps
four and five of the adult sequential evaluation process.
Must an adjudicator, under the ARs, adopt a prior finding, in the
absence of new and material evidence, if it was made based on a now
obsolete standard, e.g., the previous cardiovascular listings that were
revised on February 10, 1994?
No. If the new criteria are clearly different from those in effect at the
time of the previous decision, a new standard is involved. Therefore, the
adjudicator must make a new finding in the current decision using the
current standard, regardless of whether the current standard is more, or
less, favorable to the claimant. Any change in statute, regulation, ruling
or legal precedent that would bar application of res
judicata would also bar application of the ARs with respect to the
particular, prior finding affected by the change.
Must an adjudicator, under the ARs, adopt a prior finding, in the
absence of new and material evidence or a change in the law, regulations
or rulings if it was based on an error on the face of the evidence?
The prior finding need not be adopted if the prior decision is reopened
and revised under the usual rules of administrative finality applicable to
an error on the face of the evidence and a new finding is made. See
20 CFR §
404.989(a)(3). If the prior decision cannot be reopened and revised
under the usual rules (See
20 CFR §§
404.988(b) & (c)(8) and 416.1488(b)) (i.e., more than 2 years
have elapsed since the date of the notice of the initial determination in
a title XVI case, or more than four years have elapsed since the date of
such notice in a title II case and good cause is found, and, for a title
II case only, if at any time when the prior decision was wholly or
partially unfavorable to the claimant), then the prior finding must be
adopted.
How do the ARs apply if there is more than one prior claim with an ALJ
or Appeals Council decision?
If there is more than one prior final ALJ or AC decision, the adjudicator
in applying the Dennard AR must adopt each of the
findings (with respect to which there is no new and material evidence or
change in the law, regulations or rulings) related to the demands of past
relevant work, date of birth, education or work experience from the most
recent final ALJ or AC decision that predates the
Dennard court decision, which was issued on April
10, 1990. The most recent final decision by the ALJ or AC that predates
the Dennard court decision is the starting point
in the sequential consideration that must be followed by adjudicators
when determining whether to adopt a finding covered by the
Dennard AR. Relevant findings from ALJ or AC
decisions that are dated on or after the Dennard
court decision are also considered, but only after the relevant findings
from the most recent final ALJ or AC decision that predates the
Dennard court decision are considered. The
relevant findings from the final ALJ or AC decisions that are dated on or
after the date of the Dennard decision are
looked at via sequential consideration from the earliest final decision
dated after the Dennard court decision.
If there is more than one prior final ALJ or AC decision, the adjudicator
in applying the Drummond AR must adopt each of
the findings (with respect to which there is no new and material evidence
or change in the law, regulations or rulings) related to RFC or other
findings required at a step in the sequential evaluation from the most
recent final ALJ or AC decision that predates the
Drummond court decision, which was issued on
September 30, 1997. The most recent final decision by the ALJ or AC that
predates the Drummond court decision is the
starting point in the sequential consideration that must be followed by
adjudicators when determining whether to adopt a finding covered by the
Drummond AR. Relevant findings from final ALJ or
AC decisions that are dated on or after the
Drummond court decision are also considered but
only after the relevant findings from the most recent final ALJ or AC
decision that predates the Drummond court
decision are considered. The relevant findings from the final ALJ or AC
decisions that are dated on or after the date of the
Drummond court decision are looked at via
sequential consideration from the earliest final decision dated after the
Drummond court decision.
EXAMPLE 1:
Assume that a claimant with a claim currently pending in the Sixth Circuit
received final ALJ decisions in 1991 and 1992 on two prior claims. The
ALJ in the first claim found based upon the testimony of a vocational
expert that the demands of the claimant's past relevant work were light
in their physical exertional level, while the ALJ in the second claim
found based upon the testimony of a vocational expert that the demands of
the claimant's past relevant work were heavy in their physical exertional
level.
The adjudicator of the third claim (the current claim) must first
determine under the Dennard AR whether new and
material evidence was submitted in connection with the second
claim (the most recent prior final decision), or if there was a change in
the law, regulations, or rulings affecting the finding of the demands of
past relevant work, that would justify making a different finding (heavy)
concerning the exertional demands of the past relevant work than that
found (light) in the decision on the first claim (the earliest final
decision dated after the Dennard court
decision). If the adjudicator determines that such new and material
evidence was submitted with the second claim, the finding regarding the
exertional demands of the past relevant work in the decision on the
second claim would be binding unless there is new and material evidence
submitted with the current claim or a change in the law, regulations, or
rulings affecting the findings. If the adjudicator determines that
no such new and material evidence was submitted with the second
claim, the finding from the decision on the first claim would be binding
unless there is new and material evidence submitted with the current
claim. The decisional rationale must reflect this sequential
consideration and, if the adjudicator adopts a prior finding, the
decision must clearly indicate the date of the decision from which the
finding is being adopted.
The adjudicator of the third claim (the current claim) must then determine
under the Drummond AR whether new and material
evidence was submitted in connection with the current claim, or if there
was a change in the law, regulations, or rulings that would justify making
a different finding concerning RFC or another finding required at a step
in the sequential evaluation from the findings made in the most recent
final ALJ decision (1992) that predates the 1997
Drummond court decision.
EXAMPLE 2:
Assume the same facts as example 1 and assume that the claimant had also
filed two earlier claims that were denied by ALJs in 1988 and 1989. Assume
that the ALJ found in the 1988 final decision that the physical demands
of the claimant's past relevant work were medium in exertional level, and
that the ALJ in the 1989 final decision found that the physical demands
of the claimant's past relevant work were sedentary in their exertional
level.
The 1988 and 1989 decisions predate the court's 1990 decision in
Dennard. Therefore, the findings from the 1988
decision were not binding on the 1989 proceedings because the Sixth
Circuit court had not issued its decision in
Dennard at the time the 1989 decision was issued.
Thus, the adjudicator of the current claim must first consider whether
there was new and material evidence at the time of the 1991 decision that
warranted making a different finding on the exertional demands of the past
relevant work from that of the finding made concerning the exertional
demands of the past relevant work in the 1989 decision, the most recent
final decision that predates the 1990 Dennard
court decision. The adjudicator would then proceed with the same
sequential consideration as described in Example 1. The 1988 and 1989
decisions also predate the court's 1997 decision in
Drummond. But since the 1992 decision is the
most recent final decision that predates the
Drummond court decision, the requirements of the
Drummond AR would not apply with respect to
prior findings from either the 1988 or 1989 ALJ decisions.
Example 3:
Assume that a claimant with a claim currently pending received ALJ
decisions in May 1997 and May 1998 on two prior claims. The ALJ in the
first claim found the claimant had a light RFC, while the ALJ in the
second claim found the claimant had a medium RFC. The claimant was a
younger individual at the time of the first decision and was closely
approaching advanced age at the time of the second decision. Also, the
medical-vocational guidelines would have directed a finding of
"disabled" if the second ALJ had found the claimant's RFC was
light.
The adjudicator of the third claim (the current claim) must first
determine under Drummond whether new and material
evidence was submitted in connection with the second claim (the most
recent prior final decision that predates the
Drummond court decision), that would justify
finding an RFC greater than the light RFC found in the decision on the
first claim. If the adjudicator determines that such new and material
evidence was submitted with the second claim, the finding
regarding RFC in the decision on the second claim would be binding unless
there is new and material evidence submitted with the current claim or a
change in the law, regulations, or rulings affecting the findings. If the
adjudicator determines that no such new and material evidence was
submitted with the second claim, the finding from the decision on the
first claim would be binding unless there is new and material evidence
submitted with the current claim. The decisional rationale must reflect
this sequential consideration and, if the adjudicator adopts a prior
finding, the decision must clearly indicate the date of the decision from
which the finding is being adopted.
EXAMPLE 4:
Assume the same facts as example 3 and assume that the claimant had also
filed two earlier claims that were denied by ALJs in 1995 and 1996. The
ALJ who issued the 1995 decision found that the claimant was limited to
light work and the ALJ who issued the 1996 decision found that the
claimant was limited to sedentary work. The 1995 and 1996 decisions
predate the court's September 1997 decision in
Drummond. But since the May 1997 decision is the
most recent final decision that predates the
Drummond court decision, the requirements of the
Drummond AR would not apply with respect to prior
findings from either the 1995 or 1996 ALJ decisions. The adjudicator
would then proceed with the same sequential consideration as described in
Example 3.
Application of the requirements of the
Drummond AR generally will satisfy the
requirements of the Dennard AR. However, there
are certain circumstances where this is not true. What is a such a
circumstance?
Assume there's an individual with a disability claim currently pending
before SSA who has filed four prior disability claims resulting in final
ALJ decisions in 1988, 1989, 1995, and 1996. Under the
Dennard AR, the adjudicator must consider whether
to adopt findings contained in the ALJ decisions of 1989, 1995 and 1996.
The Dennard AR would not apply to findings
contained in the 1988 ALJ decision since such findings would not have been
binding for purposes of the 1989 ALJ decision which is the most recent
final decision that predated the Dennard court
decision. Under this example, the requirements of the
Drummond AR concerning a finding of a claimant's
RFC, however, would apply only to such findings that are contained in the
1996 ALJ decision. The Drummond AR would not
apply to findings contained in any of the earlier ALJ decisions because
findings from those decisions would not have been binding for purposes of
the 1996 ALJ decision which is the most recent final decision that
predated the Drummond court decision.
If all conditions for applying the Drummond AR
are otherwise met, must an adjudicator apply the AR to readjudicate a
previously decided claim if the claim was denied between the date of the
court's decision (September 30, 1997) and the AR publication date (June 1,
1998) and the claimant has not requested application of the AR to his or
her prior claim? If all conditions for applying the
Dennard AR are otherwise met, must an adjudicator
apply he AR to readjudicate a previously decided claim if the claim was
denied between the date of the court's decision (April 10, 1990) and the
AR publication date (June 1, 1998) and the claimant has not requested
application of the AR to his or her prior claim?
Yes, under both Dennard and
Drummond. Although
20 CFR §§
404.985(b) and
416.1485(b)
provide for readjudication based on a request by the claimant, these
regulations do not preclude SSA from taking such action on its own
initiative when, in adjudicating a subsequent claim for example, an
adjudicator becomes aware of the prior determination or decision and
concludes that application of the ruling could change that determination
or decision.
Are Drug Addiction and Alcoholism (DAA) redeterminations under Pub. L.
No. 104-121 considered subsequent claims for purposes of the
Dennard and Drummond
ARs? Is a conclusion that DAA "is material" or "is not
material" a finding that is required at a step in the sequential
evaluation process for purposes of the Drummond
AR?
DAA redeterminations are considered subsequent claims for the purpose of
the Dennard and Drummond
ARs. A DAA redetermination involves two phases--the first phase involving
application of the sequential evaluation process considering all
impairments, and the second phase involving application of the sequential
evaluation process considering all impairments but DAA. Accordingly, the
Dennard AR applies to a finding of the demands of
the claimant's past relevant work, and the claimant's date of birth,
education, and work experience. The Drummond AR
applies to the finding of the claimant's RFC or other finding required at
a step in the sequential evaluation process. Thus, in applying the
Drummond AR, the effects of DAA and all other
impairments are considered in determining the RFC. If a finding of
disability is made, however, the ARs do not apply to the further step at
which the adjudicator makes a finding determining whether DAA "is
material" or "is not material" to that finding of disability,
that is, whether the claimant would still be found disabled if he or she
stopped using drugs or alcohol. The ARs do not apply to the materiality
finding because it is not a finding that is required at a step of the
sequential evaluation process.
What if the prior file has been lost or destroyed?
It may be possible to apply the ARs if the adjudicator can obtain a copy
of the final ALJ or AC decision on the prior claim. Therefore, the
adjudicator should attempt to obtain a copy of the prior ALJ or AC
decision from the claimant, the representative, or the ALJ or appeals
files. If a copy of the prior ALJ or AC decision is available, the DDS
adjudicator will review the description of the pertinent evidence in the
ALJ's or AC's decision to determine the evidence on which the ALJ or AC
based a prior finding(s). The adjudicator will compare this evidence with
the evidence obtained in connection with the subsequent claim to determine
if the latter evidence is new and material. In some cases, the evidence
on which the ALJ or AC based a prior finding will not be clear from the
ALJ's or AC's decision. For these cases, there may be instances where
additional development (e.g., obtaining a copy of the relevant prior
medical report that was cited, but not elaborated upon, in the ALJ or AC
decision) may be of assistance in determining whether the evidence
obtained in connection with the subsequent claim is new and material. In
other instances, the adjudicator will need to make a judgment of whether
evidence obtained in connection with the subsequent claim is new and
material and, thus, permits a finding different from the prior finding.
In such cases, any doubt about whether such evidence is new and material
should be resolved in a manner that is favorable to the claimant.
Adjudicators must explain in the personalized disability notice, or in
the rationale, the basis for adopting or not adopting a prior
finding(s).
If the adjudicator cannot obtain a copy of the prior decision, he or she
cannot apply the ARs because there is no way of knowing what the prior
findings were. If the prior file has been lost or destroyed and the
adjudicator cannot obtain a copy of the prior decision, he or she should:
admit all documentation of this into the record; ensure that the current
record is fully developed; and issue a decision based on the available
evidence of record.