Collateral estoppel? Res judicata? Those are terms many of us thought we were leaving behind in Civil Procedure class in law school. But for better or worse, those concepts play a role in the Social Security world. According to the Social Security Administration (SSA), collateral estoppel involves “issues previously decided”:
An issue at your hearing may be a fact that has already been decided in one of our previous determinations or decisions in a claim involving the same parties, but arising under a different title of the Act or under the Federal Coal Mine Health and Safety Act. If this happens, the administrative law judge will not consider the issue again, but will accept the factual finding made in the previous determination or decision unless there are reasons to believe that it was wrong.
20 C.F.R. §§ 404.950(f) & 416.1450(f).
Res judicata, on the other hand, is defined in the context of an Administrative Law Judge’s (ALJ’s) authority to dismiss a claim if SSA has made a previous determination or decision about a claimant’s rights on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action. 20 C.F.R. §§ 404. 957(c)(1) & 416.1457(c)(1).
A claimant may face res judicata, for example, as a bar to a new application if a prior denial encompassed the DLI (Date Last Insured). Claimants and advocates will more likely encounter collateral estoppel in the context of a Supplemental Security Income (SSI) recipient’s later eligibility and application for Title II benefits, or vice versa. For example, an SSI beneficiary may have become insured based on earnings or may have become entitled to Child Disability Benefits (CDB) based on the retirement, death, or disability of a parent. Under SSA’s definition of collateral estoppel, the new application should be granted based on the previous determination “unless there are reasons to believe that it was wrong.”
Makes sense from a practical standpoint, right? But in practice, at adjudication levels below the ALJ level, advocates may have faced SSA’s refusal to apply collateral estoppel. Or, more frequently, advocates may have seen the new application approved based on collateral estoppel, but then both claims subjected to a Continuing Disability Review (CDR). But in the past year, SSA has made the conundrum of collateral estoppel even more complicated.
In 2019, SSA published Administrative Message (AM) 18029 REV, which stated that Field Offices (FO) no longer have jurisdiction to make collateral estoppel decisions for any impairment as of February 14, 2019. (AMs are not available to the public.) All claims must be referred to the Disability Determination Services (DDS), which in New York is the Division of Disability Determinations (DDS). And, while DDS continues to have jurisdiction to make collateral estoppel decisions, even DDD may not apply collateral estoppel in cases where the earlier claim was based on meeting or equaling the mental impairment or HIV listings in effect prior to January 17, 2017.
The changes announced in the AM were recently codified in revised POMS. DI 11011.001 Collateral Estoppel – General spells out the various steps the FO and DDS must follow, including the FO’s obligation upon taking the new application to notify the claimant that the claim will be referred to the DDS and that in the course of processing the subsequent claim, DDS may determine that a CDR is required on the existing entitlement. The FO must also notify the claimant that the new claim could result in a denial. The FO should flag the case for DDS as to potential collateral estoppel issues but cannot decide the claim. Nor can the FO initiate a CDR, but DDS can refer the claim back to the FO for a CDR.
The POMS section also addresses the situation in which a new application is filed subsequent to a claim with a medical allowance that was denied for technical reasons. For example, a claimant was found disabled but denied SSI for financial reasons. If that claimant subsequently becomes financially eligible for SSI and reapplies, the prior medical finding is not given collateral estoppel effect. Rather, the medical claim must be treated as an initial claim and developed fully. And in yet another example of inefficiency, the POMS does not even instruct the FO to obtain the prior evidence folder: “When the claimant files a subsequent application for disability benefits, the claim must be processed in the usual manner for initial claims…The FO will document the prior filings on the SSA-3367 and transfer the claim to the DDS for a new determination. The FO will not add the ‘Potential Collateral Estoppel Issues Apply’ case flag because collateral estoppel does not apply.” POMS DI 11011.001.E.2 does acknowledge that when a Title II beneficiary subsequently files for disabled widow(er) benefits (DWB) or childhood disability benefits (CDB), collateral estoppel potentially applies, and the FO should flag the case for DDS and request the prior folder.
Also revised are POMS sections DI 27515.001 – DI 27515.055, which provide more detail on the application of collateral estoppel in a number of situations. But as noted above, collateral estoppel only potentially applies. If, for example, the beneficiary had been found disabled under the mental listings prior to 2017, collateral estoppel will not apply. See POMS DI 27515.005, which identifies those listings in addition to the mental listings that have substantially changed or become more restrictive, with their effective dates. Claims decided before the changes will not be given collateral estoppel effect on a new application. Similarly, changes to the medical-vocational rules may preclude a subsequent allowance and trigger a CDR. The example noted in POMS DI 27515.005.A specifically references the recent removal of inability to communicate in English.
As a result of these changes, all subsequent applications for Title II benefits by long-standing SSI recipients will at the very least be more cumbersome. The changes will be more dramatic for some claimants who, for example, may have been receiving SSI since prior to age 22 based on a mental impairment listing but whose CDB claims may now be denied.
The FO, however, retains responsibility for denials based on res judicata when a person is applying for benefits under the same program, time period, and evidence as previously. Res judicata questions still are to be processed, at least for now, in accordance with POMS DI 27516.001. If the FO does not deny the claim based on res judicata, DDS still can do so, but with some caveats. For example, before applying res judicata to a subsequent Title II disability claim, DDS must consider any changes in the disability evaluation criteria, such as changes to the Listing of Impairments. POMS DI 27516.005.D provides that res judicata will not apply if the disability criteria since the prior denial have become less restrictive. Despite the effect of the 2017 changes to the mental impairment listings on collateral estoppel discussed above, POMS DI 27516.010.D specifically requires a new substantive determination if a prior mental impairment claim was denied before January 2017. And if the claimant was unrepresented when the prior determination was made had a mental condition, res judicata will not be applied.
These complicated concepts of collateral estoppel and res judicata have become more complicated as a result of these changes. And the changes could have significant implications for claimants. Please let us know of cases in which, for example, long-time SSI recipients have recently been denied Title II.