Advocates know all too well the importance of proving disability for Title II purposes before the expiration of the claimant’s insured status.  If a claimant is unable to demonstrate she became disabled prior to her date last insured, or DLI, she will not be entitled to any Social Security Disability Insurance (SSDI) benefits.  There is, of course, no insured status requirement for Supplemental Security Income (SSI), but SSDI benefits can often be higher and more valuable than SSI.

The DLI challenge can be compounded when an ALJ has already denied a claim that encompasses the DLI. Even if you can make what might seem like a great claim for disability before the DLI, your argument will be precluded by the concept of res judicata.  That legal doctrine, which either eluded or fascinated some of us in Civil Procedure class in law school, means in essence the issue has already been decided. In other words, you are out of luck.

There are several complex and creative ways to avoid the application of res judicata.  For example, you might be able to show different facts or present new medical evidence.  See POMS DI 27516.005, 27516.010.  Or you might argue the disability standards have become less restrictive than those used in the prior denial.  See POMS DI 27516.010, which among other considerations, lists changes to the listings that affect the application of res judicata.

Of particular note is POMS DI 27516.010.D, which instructs adjudicators to make a new substantive determination if a prior mental impairment claim was denied before January 17, 2017, the date the most recent mental impairment listings went into effect. According to POMS DI 27516.010(F):

We extensively revised the mental disorders listings. While these listings are not, in general, less restrictive, we extensively revised the areas of mental functioning considered in the severity criteria. If the prior claim was denied before 01/17/17, prepare a new substantive determination for all subsequent claims involving a mental disorder.

This POMS provision can give any number of claimants a second opportunity to prove disability before the DLI and obtain SSDI benefits.  The provision will apply even if you are not arguing the claimant now meets the new mental impairment listing.  In reviewing cases with prior denials or new applications, make sure SSA is applying this provision and issuing a new Title II decision.