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 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.