I-5-4-75.Implementation of the Earley Acquiescence Ruling (Sixth Circuit)

I. Purpose

This instruction provides guidance for implementing Social Security Acquiescence Ruling (AR) 24-1(6), Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018) (Interpreting Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)): Effect of Prior Disability Findings on Adjudication of a Subsequent Disability Claim—Titles II and XVI of the Social Security Act. The Commissioner of Social Security published the AR in the Federal Register on November 25, 2024, and it became effective on December 2, 2024. The Earley AR also serves as notice of rescission of AR 98-4(6) (63 FR 31266), Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997) and AR 98-3(6) (63 FR 29770), Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990).

In Earley, the Sixth Circuit clarified its intent in Drummond and interpreted the holding in Drummond to be more limited than described in AR 98-4(6). Although the Sixth Circuit's decision does not apply or discuss Dennard, the Sixth Circuit's rationale in Earley extends equally to the issues addressed in AR 98-3(6).

Under the now rescinded AR 98-3(6) and AR 98-4(6), when adjudicating a subsequent disability claim arising under the same title of the Social Security Act (Act), adjudicators generally must adopt certain findings from the final decision by an Administrative Law Judge (ALJ) or the Appeals Council (AC) on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period.

AR 24-1(6) (Earley AR) rescinded and replaced AR 98-3(6) and AR 98-4(6). Under the Earley AR, when adjudicating a subsequent disability claim arising under the same or different title of the Act, the adjudicator will now consider certain findings from the prior final decision as evidence in determining whether the claimant is disabled with respect to the unadjudicated period. The adjudicator must make clear that they considered the prior finding as evidence in light of all relevant facts and circumstances.

II. Background

Sharon Earley applied for disability benefits, claiming that she was disabled starting on June 25, 2010. An ALJ found that she was not disabled for the period from June 25, 2010 through May 15, 2012, the date of the ALJ decision. Ms. Earley applied again in July 2012, arguing that she became disabled after the May 15, 2012 decision. The same ALJ, invoking Drummond and AR 98-4(6), issued a second unfavorable decision, stating that he was bound by his earlier findings because Ms. Earley did not offer new and material evidence of a changed condition. On review, the district court reversed. The district court construed Drummond to apply only if it would lead to a favorable outcome. Since any preclusive effect of the ALJ's prior findings would make it more difficult for Ms. Earley to be found disabled, the court found that Drummond did not apply to her case.

On appeal, the Sixth Circuit examined and clarified Drummond. The court found that the key principles protected by Drummond, consistency between proceedings and finality with respect to prior adjudicated claims, apply to both individuals and the government. At the same time, these principles do not prevent the agency from giving a fresh look to a new claim containing new evidence or a new regulatory threshold that covers a new period of alleged disability. The court rejected the argument that, “[i]n reviewing a second application by the same individual . . . the administrative law judge should completely ignore earlier findings and applications.” The court explained that “[f]resh review is not blind review” and that “a later administrative law judge may consider what an earlier judge did if for no other reason than to strive for consistent decision making.” Further, the court explained that “it is fair for an administrative law judge to take the view that, absent new and additional evidence, the first administrative law judge's findings are a legitimate, albeit not binding, consideration in reviewing a second application.” While “an applicant remains free to bring a second application that introduces no new evidence or very little new evidence after a failed application,” the court cautioned that such applicants “should not have high expectations about success if the second filing mimics the first one and the individual has not reached any new age (or other) threshold to obtain benefits.”

III. Scope of the Earley AR

The Earley AR applies at the initial, reconsideration, hearings, and appeals level when the following are met (See also, Program Operations Manual System (POMS) DI 52707.010B):

• There was a decision issued by an ALJ or the AC on a prior claim and such decision has become final (20 CFR 404.987 and 416.1487);

• The prior ALJ or AC decision contains a finding of a claimant's residual functional capacity (RFC) or other finding that is required at a step in the sequential evaluation process for adjudicating disability as described in 20 CFR 404.1520, 416.920 or 416.924, as applicable;

• The adjudicator is deciding a subsequent disability claim with an unadjudicated period arising under the same title or a different title of the Act as the prior disability claim; and

• The claimant resides in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision on the subsequent claim.

IV. Interim Period Cases

V. Post-Effective Date Cases

VI. Subsequent Applications

In cases where there are both a final interim period determination or decision meeting the criteria for readjudication and a pending subsequent disability claim, typically the request for readjudication will be processed first unless the subsequent application requires expedited processing. See HALLEX I-2-1-40 and I-3-1-5.

When DDS has jurisdiction over the readjudication and a subsequent application is pending at the HO or OAO, DDS will notify the OHO or OAO by email of the readjudication claim. DDS will also add an ROC and message to eView to alert OHO and OAO staff that DDS is processing the readjudication and that the subsequent application should be held. When the action on the readjudication is complete, DDS will notify OHO or OAO by email and add a second ROC and message to eView (See POMS DI 52707.020).

When OHO or OAO has jurisdiction over the readjudication and a subsequent application is pending at a different level of review, OHO or designated OAO staff will notify the component responsible for the subsequent application when the request for readjudication is received; and when the final action on the readjudication has been released. To provide notification OHO or OAO staff will add an ROC to the subsequent application record, as well as a message to eView.

As part of the case screening process for all cases, OHO and OAO staff should inspect open eView records to determine if there is a readjudication requests being processed.

VII. Questions and Answers

1. What does the Earley AR require?

   The Earley AR requires that when adjudicating a subsequent claim with an unadjudicated period arising under the same or a different title of the Act as the prior claim on which there has been a final ALJ or AC decision, an adjudicator must consider a finding of a claimant's RFC or other required findings made at a step in the sequential evaluation process for determining disability in the prior claim as evidence in light of all relevant facts and circumstances.

2. The Earley AR directs the adjudicator of a subsequent disability claim to consider findings of RFC or other findings required under the sequential evaluation process made in a final ALJ or AC decision on a prior claim. What are the “other” findings to which the AR applies?

   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 a medically determinable 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 4: A finding concerning whether the claimant worked in the past and whether that work constituted past relevant work (PRW); a finding of the physical and mental demands of the claimant's PRW; a finding on whether the claimant can perform PRW as they previously performed it or as it is generally performed in the national economy;

   Step 5: A finding of a claimant's age; a finding of a claimant's education; a finding of a claimant's PRW, including, as appropriate, the skill level of a claimant's PRW and whether a claimant's skills are transferable; a finding regarding other matters relevant to step 5, such as whether a claimant meets a medical-vocational profile; and a finding whether based on the claimant's RFC and the other step 5 findings, a claimant can do other work.

   NOTE 1:

   For findings required under the evaluation process for a child applying for Title XVI benefits based on disability, see 20 CFR 416.924 and POMS DI 52707.010B.1..

   NOTE 2:

   An assessment of the claimant's symptoms is not a finding that is required at a step in the sequential evaluation process described in 20 CFR 404.1520, 416.920, or 416.924 and is not a required finding to consider under the Earley AR.

3. The Earley AR requires the adjudicator of a subsequent disability claim with an unadjudicated period to consider certain findings made in a final ALJ or AC decision on a prior disability claim as evidence. How does an adjudicator of a subsequent claim consider this evidence?

   In determining the probative value of the prior findings as evidence, the adjudicator must consider all relevant facts and circumstances on a case-by-case basis and will consider such factors as:

   1. Whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition;

   2. The likelihood of such a change, considering the amount of time between the period previously adjudicated and the period under consideration in the subsequent claim; and

   3. The extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.

   NOTE:

   In addition, the adjudicator should consider if, after the date of the final decision on the prior claim, there has been a change in the law, regulations, or rulings affecting the finding or the method for arriving at the prior finding. If so, the prior finding, considered as evidence, may be less probative.

4. The Earley AR indicates that an adjudicator generally should pay particular attention to the lapse of time between the prior claim and the subsequent claim. How does an adjudicator consider the impact of the passage of time?

   The likelihood that a fact has changed generally increases as the time between the previously adjudicated period and the subsequent period increases. In situations where minimal time has passed, and no or very little new evidence has been introduced, it is more likely that the prior finding will remain the same.

5. What are “static” and “non-static” facts and how must an adjudicator evaluate these facts from the prior ALJ or AC decisions?

   Static facts, such as the mental and physical demands of a claimant's PRW or the skill levels of the claimant's PRW, are facts not expected to change with the passage of time.

   Non-static facts, such as the severity of the claimant's medical condition, the claimant's RFC, or whether a claimant performed a job recently enough for it to qualify as PRW, are facts that may be subject to change with the passage of time.

   The adjudicator must consider all relevant facts and circumstances on a case-by-case basis, while keeping in mind that new evidence presented in the current claim could change how to evaluate static and non-static facts from a prior ALJ or AC decision.

6. Does the Earley AR requirement to consider prior findings as evidence affect the method of adjudication under the sequential evaluation process with respect to the subsequent claim?

   Yes—to the extent that the adjudicator of the subsequent claim must first consider each step in a prior finding as evidence. The sequential evaluation order of consideration is unchanged, but a question at each step when applying the Earley AR is how much evidentiary value should be given to a “required” prior finding in that step (see subsection VII Q&A 3).

7. What decision rationale is necessary to comply with the Earley AR?

   Decisions in cases in which the Earley AR applies must refer to the Earley AR, and the adjudicator must make clear that the adjudicator considered the prior finding as evidence in light of all relevant facts and circumstances.

   While the adjudicator must acknowledge consideration of the ALJ or AC findings in the prior disability decision and provide an explanation as to any deviation from those findings; it is not necessary for the adjudicator to document consideration of the prior findings at each step of the sequential evaluation process.

8. Does the Earley AR apply if the prior ALJ or AC final decision was issued for a Title XVI claimant who was under age 18 and that claimant has since attained the age of 18 and has a subsequent claim, with an unadjudicated period?

   No. The Earley AR does not apply when the requirements for disability on one claim under the same or a different 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 II or Title XVI adult disability claim).

9. Under the Earley AR, how should an adjudicator consider a prior finding if it was made based on a now obsolete standard?

   If the new criteria are different from those in effect at the time of the prior decision, a new standard is involved. The difference in standards is a reason why the prior finding, considered as evidence, may be less probative. The adjudicator must make a new finding in the current decision using the current standard.

10. Under the Earley AR, how should an adjudicator consider a prior finding that was based on an error?

    If the criteria for reopening are met, an adjudicator may reopen the prior decision (20 CFR 404.989 and 416.1489). If the decision on the prior application is reopened and revised and the revised decision renders the subsequent application moot, then the prior findings need not be considered as evidence.

    If the prior decision cannot be reopened and revised (See 20 CFR 404.988 and 416.1488) then the prior finding(s) must be considered as evidence. However, an error in the prior decision or new and material evidence are reasons why a prior finding, considered as evidence, may be less probative.

11. How does the Earley AR apply if there is more than one prior claim with an ALJ or AC decision?

    The answer depends on when the final ALJ or AC decisions on the prior claims were issued. See the below table for guidance and POMS DI 52707.020B.2.d.

    Prior Claim Scenarios	Earley Application
    If the most recent ALJ or AC decision was issued before 6/27/18 (the date of the Earley court decision).	Consider relevant findings only from the most recent ALJ or AC decision.
    If the most recent ALJ or AC decision was issued on or after 12/2/2024 (effective date of the Earley AR).	Consider relevant findings only from the most recent ALJ or AC decision.
    If the most recent ALJ or AC decision was issued during the period from 6/27/18 – 12/1/2024 (an interim period case) and there is another pre-Earley ALJ or AC decision (i.e., issued before 6/27/18).	Consider relevant findings from both decisions.
    If the most recent ALJ or AC decision was issued during the period from 6/27/18 – 12/1/2024 (an interim period case) and there are two or more pre-Earley ALJ or AC decisions.	Consider relevant findings from the interim period case and the most recent pre-Earley ALJ or AC decision.

12. When will the Earley AR be applied to a claim in an interim period case (from June 27, 2018 through December 1, 2024)?

    The Earley AR will be applied to interim period case claims under two scenarios:

    • An individual requests application of the Earley AR to the interim period claim pursuant to POMS DI 52707.010C.1. and POMS DI 52707.015; or

    • The interim period case is discovered by an adjudicator in the course of development/adjudication of a current claim and the adjudicator concludes (without any request from the claimant) that application of the Earley AR would change the final determination or decision on the prior claim to be more favorable to the claimant.

    Note that the application of the Earley AR to an interim period case is different from the rules for reopening and revising final determinations or decisions. A claim on which there was a final determination or decision in the interim period may be readjudicated under the procedures in subsection IV at any time, even if the case could not be reopened under 20 CFR 404.988 and 416.1488.

13. When an interim period case is readjudicated what law applies?

    The period covered by a readjudication is the same period that was covered by the prior decision being readjudicated.

    The adjudicator will apply the rules in 20 CFR 404 Subpart P (20 CFR 404.1501-1599) and 20 CFR 416 Subpart I (20 CFR 416.901-416.999d) used to determine whether an individual was disabled or blind that were in effect at the time of the final interim period decision. See the Code of Federal Regulations (Annual Edition) for prior rules. For example:

    • The adjudicator will apply the listings that were in effect at the time of the final interim period decision. For a comprehensive list of obsolete listings, see POMS DI 34100.000.

    • The adjudicator will consider an individual's residual functional capacity and vocational background using the rules that were in effect at the time of the final interim period decision.

14. Are Drug Addiction and Alcoholism (DAA) redeterminations under Pub. L. No. 104-121 subsequent claims for purposes of the Earley AR? 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 Earley AR?

    DAA redeterminations are considered subsequent claims for the purposes of the Earley AR. When an individual with DAA is found disabled considering the effects of DAA, a determination must then be made excluding the effects of DAA to determine whether DAA is material to the finding of disability. Adjudicators must use a two-part process. First, they must follow the sequential evaluation process, considering all of a claimant's impairments, including DAA, to determine whether the claimant is disabled. Second, if the claimant is found disabled under the first part of the process, adjudicators must again follow the sequential evaluation process, but without considering the effects of DAA, to determine whether the claimant would be found disabled if they were no longer using drugs or alcohol. If the individual would not be found disabled under the second part of the process, DAA is material to the determination of disability. If the individual would be found disabled, DAA is not material.

    When there is a prior decision in which an ALJ or the AC has set out findings showing how the conclusions were reached for both of these steps in the sequential evaluation process, the adjudicator of a subsequent claim must consider the findings from both parts of this two-step process when adjudicating a DAA case under the requirements of the Earley AR. If there is a prior decision in which an ALJ or the AC found that DAA was material or not material but without providing support for the materiality conclusion, then there will be no findings that are relevant to the decision of whether an individual's DAA is material to the determination of disability.

    In adjudicating the subsequent claim, the adjudicator must consider the prior required findings from the ALJ's or AC's decision about whether the individual is disabled under the first part of the DAA process. If the claimant is determined to be disabled under the first part of the DAA process, consider such findings as evidence to be evaluated along with the other evidence in the subsequent claim in determining disability under the second part of the DAA process.

15. What if the prior file has been lost or destroyed?

    Generally, files of denied claims are retained in the National Records Center for up to 5 years.

    If the prior file is lost or destroyed, it may still be possible to apply the Earley AR 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 any available ALJ or AC files. If a copy of the prior ALJ or AC decision is available, the adjudicator will review the decision to determine the relevant facts and circumstances on which the ALJ or AC based their prior finding(s).

    If the adjudicator cannot obtain a copy of the prior ALJ or AC decision, they cannot apply the Earley AR because there is no way of knowing what the prior findings were. Accordingly, if the prior file is lost or has been destroyed and the ALJ or AC decision cannot be located anywhere in SSA or by the claimant or claimant's representative, the AR cannot be applied.

    For an interim period case, if the prior file has been lost or destroyed and the adjudicator cannot obtain a copy of the prior decision, the interim case cannot be readjudicated.

    For a post-effective date case, if the prior file has been lost or destroyed and the adjudicator cannot obtain a copy of the prior decision, they should: admit all documentation into the record; ensure that the current record is fully developed; and issue a decision based on the available evidence of record.

VIII. Inquiries

Hearing office personnel should direct any questions to their Regional Office. Regional Office personnel should email the Division of Field Procedures in the Office of the Chief Administrative Law Judge at |||OHO OCALJ DFP. OAO personnel should direct any questions through their management chain and Division Chief AAJ. Management may refer questions to the Executive Director's Office at ^DCARO OAO.