Last Update: 7/22/05 (Transmittal I-2-59)
This section discusses the application of the doctrine of administrative res judicata to decisions under the Social Security Act (the Act). When a prior determination or decision with respect to the same party, facts, and issue or issues has become administratively final, the doctrine of administrative res judicata may be used either to dismiss a request for hearing entirely or to refuse to consider any one or more such issues, when a subsequent application arises out of the same title of the Act. The purpose of administrative res judicata is to prevent claimants from “relitigating” their claims before Administrative Law Judges after the matters raised have already been finally decided.
The regulations at 20 CFR 404.957(c)(1) and 416.1457(c)(1) provide that administrative res judicata is present when all three of the conditions listed below exist:
There has been a previous determination or decision under the same subpart with respect to the same party.
The previous determination or decision was based on the same facts and on the same issue(s).
The previous determination or decision has become final by either administrative or judicial action.
The regulations state that the ALJ may dismiss a request for hearing on the basis of administrative res judicata. Although this indicates that such dismissal is discretionary, when the requisite conditions are met administrative res judicata should be applied. It is possible to dismiss one or more issues on the basis of administrative res judicata, and still render a decision on other issues.
There are situations in which it is inappropriate to apply administrative res judicata. These situations arise when either there has been a change in issues (e.g., specific section in listing of impairments changed) or the prior determination is not administratively final (e.g., claimant lacked mental competency to appeal prior determination or incorrect, incomplete, or misleading information was provided to the claimant).
The following situations represent changes in issues and administrative res judicata would not be applicable:
Mental impairment cases when the prior determination or decision was issued on or before August 28, 1985 (regardless of how long ago the prior determination/decision was issued or when insured status requirements were last met).
The prior adjudicator found that the claimant had multiple not-severe impairments, and the prior determination or decision was issued on or before November 30, 1984.
The prior adjudicator found that the claimant had a non-severe impairment, and the prior determination or decision was issued before December 24, 1985.
Evaluation of any (physical) Listing which has been revised so that the current Listing is less restrictive and the prior determination or decision was issued on or before January 6, 1986.
No prior determination or decision was ever made under the medical-vocational guidelines (grid regulations) that became effective February 26, 1979, and the prior denial was based on the ability to perform other than past relevant work.
Evaluation of a claim involving a cardiovascular impairment and the prior final decision or determination was made prior to February 10, 1994.
Evaluation of a claim involving a respiratory impairment and the prior final decision or determination was made prior to October 7, 1993.
Evaluation of a claim involving an immune system impairment (e.g., human immunodeficiency virus infection, systemic lupus erythematosus, or systemic vasculitis) and the prior final decision or determination was made prior to July 2, 1993.
Evaluation of claims for widow's insurance benefits based on disability where the prior final decision or determination was made prior to May 22, 1991.
Evaluation of claims involving mental retardation and the lowest I.Q. measurement was 70 and the prior final decision or determination was made prior to December 12, 1990.
NOTE:
Additional examples of situations that represent changes in issues that affect the applicability of res judicata are contained in POMS DI 27516.010.
The following policy applies when an unrepresented claimant lacked the mental competence to pursue further administrative appeal.
Whenever an ALJ considers the application of administrative finality or administrative res judicata to a determination or decision that was made on a prior application, and there is evidence that a claimant lacked the mental capacity to timely request review of an adverse determination, decision, dismissal, or a review by a Federal district court, and the claimant had no one legally responsible for prosecuting the claim, the ALJ must address and resolve in the current decision (or dismissal) the issue of whether the claimant lacked the mental competence to pursue his appeal. If the claimant satisfies the substantive criteria, the time limits in the reopening regulations do not apply; so that, regardless of how much time has passed since the prior administrative action, the claimant can establish good cause for extending the deadline to request review of that action. If the ALJ or AAJ finds that good cause exists, he or she will extend the time for requesting review and take the action which would have been appropriate had the claimant filed a timely appeal. In that instance, administrative finality and administrative res judicata will not apply.
NOTE:
Social Security Ruling 91-5p contains a full discussion of the policy to be applied in determining whether good cause exists in claims involving mental incapacity.
NOTE:
In the Fourth Circuit, an adjudicator may not decline to find good cause to reopen a final determination or decision on a prior claim without first providing the claimant a separate on-the-record evidentiary hearing and decision on the issue of whether the claimant was mentally competent at the time of the prior determination or decision. Culbertson v. Secretary of HHS, 859 F.2d 319 (4th Cir. 1988); Young v. Bowen, 858 F.2d 951 (4th Cir. 1988). These decisions are implemented by AR 90-4(4) as follows:
If, after such hearing, the ALJ finds that the claimant was not mentally competent at the time of the final determination or decision on the prior claim, the ALJ must: 1) issue a separate decision on the mental competency issue, and 2) provide the claimant a full hearing and decision on all issues raised by the prior and current claims. The ALJ may not dismiss the request for hearing on the basis of res judicata.
If, however, the ALJ finds that the claimant was mentally competent at the time of the final determination or decision on the prior claim, the ALJ must 1) issue a separate decision on the mental competency issue, and 2) and proceed with action on the request for hearing in the usual manner. The ALJ may dismiss the request for hearing on the basis of res judicata if the conditions for res judicata are met.
Under the amendments of the Act made by Section 5107 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), if SSA makes an initial or reconsidered determination on an application for Title II or Title XVI benefits which is wholly or partially unfavorable to an individual and which becomes final, and the individual subsequently applies for benefits under the same title of the Act, SSA may not use the previous determination as a basis for denial of the subsequent application, even though the requirements for applying the doctrine of administrative res judicata would otherwise be met, if the conditions described below are met. Accordingly, under such circumstances the previous determination may not serve as a basis for dismissing a request for an ALJ hearing under 20 CFR 404.957(c)(1), 416.1457(c)(1), either in whole (dismissing the request entirely) or in part (refusing to consider one or more issues present in the case), if the effect of such dismissal would be to deny the subsequent application for benefits.
The above exception applies if:
SSA issued the previous initial or reconsideration determination before July 1, 1991, and this notice did not explain that filing a new application instead of requesting review could result in a loss of benefits; or
SSA made the previous determination on or after July 1, 1991; and
The determination became final because the claimant (i.e., the individual who files the subsequent application), or another person who either was a party to the determination or could have been a party by showing in writing that his or her rights would have been adversely affected by the determination, failed to timely request review of the determination; and
The claimant demonstrates that he or she, or such other person, failed to so request review acting in good faith reliance upon incorrect, incomplete, or misleading information, relating to the consequences of choosing to reapply for benefits instead of requesting review of the determination, provided by —
The above notice issued prior to July 1, 1991; or
An officer or employee of SSA; or
An officer or employee of a State agency performing the disability and blindness determination function under 20 CFR 404.1503(a) or 416.903(a).
NOTE:
SSR 95-1p contains an additional discussion of the policy to be applied in determining whether the above exceptions apply. See also DI 27516.010, Guides for Determining the Applicability of Res Judicata.
If a claimant files a new application and SSA finds that res judicata applies because the application involves the same law, issues, facts and person(s) as a previously adjudicated application, SSA will not issue an initial determination on the merits of the new application or provide the right to reconsideration on the merits. However, SSA will provide the claimant appeal rights (i.e., the right to request reconsideration or an ALJ hearing on the issue of whether res judicata applies).
If, at the initial or reconsideration levels, the adjudicator determines that res judicata does not apply, the adjudicator will make or issue an initial determination on the merits of the new application and provide full appeal rights.
The ALJ may dismiss an RH with respect to one or more issues on the basis of res judicata and still make or issue a decision on remaining issues. In such a case, the ALJ should issue a decision which also dismisses the request for hearing with respect to the previously adjudicated issues.
For res judicata to apply, the claim must involve the rights of the same party. Generally, when a subsequent application is filed, it is filed by the same individual that filed the original application. However, when the original party dies and there is a substitute party, problems may arise in determining whether res judicata applies.
If the substitute party is filing to receive an underpayment (all or part of the benefits the original party would have received had the claim been allowed), the rights of the same party are involved and the ALJ should dismiss the RH in its entirety.
If another individual has a claim for benefits on his or her own right regardless of whether he or she is a substitute party, res judicata would be applicable with regard to an issue decided with respect to the original party.
Example: A wage earner filed a claim for retirement insurance benefits. The claim was denied because the wage earner did not meet the earnings requirements of the Act at or after the time he reached retirement age. No reconsideration was requested and the initial determination became final and binding. Subsequently, the wage earner died and the surviving widow filed a claim for widow's insurance benefits alleging that her deceased husband did meet the earnings requirements and that he was entitled to benefits. However, because the widow did not furnish any new and material evidence on the issue of her deceased husband's insured status, res judicata should be applied to that issue. Thus, the widow would be entitled to a decision on the merits regarding her own claim, but in the decision, the ALJ should state that the issue of her husband's insured status is dismissed on the basis of res judicata.
For res judicata to apply to any particular issue, the same material facts must be involved; i.e., the prior claim represented the same material facts pertinent to the particular issue. The term “same material facts” means, in effect, that no “new and material” evidence has been submitted since the last adjudication on the prior claim. If the claimant submits new and material evidence in connection with the current claim the facts are not the same and res judicata would not apply.
NOTE:
In order to document whether new and material evidence has been submitted, the ALJ should know what evidence was used to make the prior decision. Accordingly, the ALJ may wish to obtain the prior claim file in order to review that evidence.
In Title II disability cases, the issue of disability is res judicata when:
the claimant's insured status expired before the date of the final determination or decision on the prior application; and
the claimant has submitted no new and material evidence relating to the previously adjudicated period.
In Title II cases, if the claimant continues to have insured status after the end of the previously adjudicated period, the unadjudicated period presents a new issue, and the claimant is entitled to a hearing on that new issue.
In the Notice of Hearing, include a statement to explain that in the absence of new and material evidence relating to the previously adjudicated period, res judicata applies and the determination or decision on the prior application is final and binding on the issue of disability during the previously adjudicated period.
If there is no basis for reopening the final determination or decision on the prior application, the ALJ should issue a decision regarding the unadjudicated period, based on the current application, and include in the decision the following (or similar) findings which, in effect, dismiss the request for hearing regarding the previously adjudicated period:
There is no new and material evidence or other basis for reopening the prior determination or decision.
The prior determination or decision is final and binding on the issue of disability during the previously adjudicated period.
The request for hearing on the issue of disability during the previously adjudicated period is dismissed.
In a Title XVI case involving disability, income or resources, the ALJ cannot dismiss a subsequent request for hearing in its entirety because there is always an unadjudicated period. The ALJ should:
dismiss the RH with respect to the issue of disability for any previously adjudicated period, and
issue a decision on the merits for the unadjudicated period.
The ALJ may not use res judicata as the basis for dismissing an RH based on a current application when there has been a change in a statute, regulation, ruling or legal precedent which was applied in reaching the final determination or decision on the prior application. A new adjudicative standard exists and the issues cannot be considered the same as the issues in the prior case. The ALJ must issue a decision.
Example 1:
On August 21, 2000, SSA published regulations which became effective on September 20, 2000 and established new medical criteria (listings) for adjudicating cases involving mental impairments. These regulations represented a change in how we determine the issue of whether or not the claimant is under a disability when a mental impairment is present. Therefore, the ALJ cannot apply the doctrine of res judicata in a Title II case involving a mental impairment on which a prior final determination or decision was issued before September 20, 2000, even if no new facts are presented and even if insured status expired before the date of the prior final determination or decision. The ALJ must apply the new regulations (i.e., the regulations effective September 20, 2000) and issue a decision on the merits of the case.
Example 2:
On November 19, 2001, SSA amended the musculoskeletal listings at sections 1.00 and 101.00 of the Listing of Impairments. These changes became effective February 19, 2002. These regulations represented a change in how certain musculoskeletal impairments are evaluated. Therefore, the ALJ cannot apply the doctrine of res judicata in a Title II case involving a musculoskeletal impairment on which a prior final determination or decision was issued before February 19, 2001, even if no new facts are presented and even if insured status expired before the date of the prior final determination or decision. The ALJ must apply the new regulations (i.e., the regulations published on November 19, 2001) and issue a decision on the merits of the case.
NOTE 1:
Although a change in the regulations precludes an ALJ from dismissing a request for hearing on the basis of res judicata, it does not change the rules on administrative finality. Payment of the claim would be based on the current application alone, unless the conditions for reopening an earlier claim are met.
NOTE 2:
When there has been a change in the regulations, ALJs must apply the new regulations as if they always existed unless the new regulation specifically states otherwise. For example, the new regulations may state that they apply only to claims filed after a certain date.
NOTE 3:
Refer to DI 27516.010 for dates of the current versions of the medical listings.
When dismissing the RH in its entirety on the basis of res judicata, the ALJ must include in the Order of Dismissal the following:
The history of the prior application(s) and actions taken, including specific reference to the determination or decision that became final.
A paragraph stating that a determination or decision that has become final and binding may be reopened if:
new and material evidence is furnished,
there is a clerical error, or
there is error on the face of the evidence on which such determination or decision was based.
A list and description of any new evidence submitted in connection with the current application.
A paragraph which includes:
a statement as to why any new evidence is not material and does not warrant revision of the final determination or decision made on the prior application (i.e., the new evidence essentially duplicates prior evidence, refers to an impairment which did not exist at the time the claimant was last insured, or is merely cumulative, etc.),
a statement that there was no clerical error or error on the face of the evidence supporting the prior determination or decision, and
a statement concluding that, in view of the above, the final determination or decision made on the application of (provide date) may not be reopened.
A paragraph stating that an ALJ may dismiss a request for hearing if all three of the following conditions exist:
there has been a previous determination or decision by the Secretary with respect to the rights of the same party,
the previous determination or decision was based on the same facts pertinent to the same issue or issues, and
the previous determination or decision has become final by either administrative or judicial action.
The ALJ may schedule a limited hearing if there is indication that testimony from the claimant, the treating physician, or some other witness might constitute new and material evidence:
Include the following in the Notice of Hearing:
a reference to the prior application.
a statement that a hearing will be held to ascertain whether additional testimony will warrant revision of the prior determination or decision.
a statement that if the additional testimony does not warrant revision of the prior determination or decision, the current request for hearing will be dismissed on the basis of res judicata.
If, after the hearing, the ALJ finds that there is no new and material evidence or other basis for reopening the prior determination or decision, the ALJ should dismiss the request for a hearing and include in the dismissal order a discussion of the testimony at the hearing and the ALJ's rationale.