John S. Whitelaw, Advocacy Director at Community Legal Aid Society, Inc. in Delaware

Introduction

Earlier this month, SSA issued a new policy regarding how it will apply Collateral Estoppel.  This new policy addresses the debacle that has existed since 2019 when, as a direct result of the 2017 changes in the Mental Impairment Listings, SSA ceased using Collateral Estoppel in a wide variety of cases. While not perfect, this new policy will significantly reduce denials for claimants who are receiving benefits under one Title or “program” who then apply for a “different” benefit. This change occurred because of a group of advocates who continually work to improve SSA policies, and we should welcome this change. This change will also, in a small way, reduce the number of cases that are referred to state DDS agencies for adjudication and once again return some decision-making authority to the field offices.

What is Collateral Estoppel and when does it apply?

In this context, Collateral Estoppel applies when a current recipient of disability benefits applies for disability benefits under a different Title or category. The issue is whether SSA will simply “adopt” the current finding of disability or conduct new de novo analysis of whether the applicant is disabled. Some examples will help put this concept into perspective:

• An SSI or T.II recipient getting benefits on their own work record becomes eligible for Disabled Widow(er)’s benefits in a higher amount after the death of their estranged spouse.  Assume that they meet the technical requirements to receive these benefits. 

• An SSI recipient since age 21 becomes entitled to Childhood Disability Benefits (CDB) on the account of a recently deceased/retired/disabled parent.

• A Disabled Adult Child (DAC) receiving CDB benefits on one parent’s account becomes entitled to a higher benefit amount on the other parent’s account.

• A concurrent SSI and T.II recipient relocates to Puerto Rico for two years. SSI is terminated and T.II continues during that time period. Upon their return to the mainland, they reapply for SSI.

What happened in 2019 and why was it so bad?

In 2019, through a series of emergency transmittals and changes to the POMS, SSA altered how it applied Collateral Estoppel in two significant ways. First, the decision on whether to apply Collateral Estoppel was switched from the field offices to DDS. The second “change” was not a real change in policy, but a massive change in how the policy played out. 

The longstanding policy was and remained that if the prior approval was based on meeting a Listing, and there had been a substantial change in the Listing since the claimant’s approval, then Collateral Estoppel would not apply and a new disability determination would be warranted. Before 2019, this was a relatively minor issue as very few Listings had changed in a significant time period. In thirty years, I personally had never encountered a single case where a current recipient had been denied on a new claim under a different title or program. That changed dramatically in 2017 when the current Mental Listings became effective. We began seeing a significant number of cases where the claimant was receiving benefits because they met the pre-2017 Mental Listings. Even though the person was receiving disability benefits at the time of the new application, their new claim was denied, often without any attempt to obtain the prior file or any of the medical evidence in it. This failure was particularly problematic in cases where the claimant had been receiving benefits for many years. (The previous relevant POMS contained a list of the affected Listings with relevant dates, the two most important being mental and musculoskeletal).

In addition, not surprisingly, DDS also made errors in applying the “new” policy and applied it in non-Listings cases where Collateral Estoppel should still have applied. The policy itself was also analytically incoherent in that Listing level cases were reevaluated de novo whereas step five cases were approved using Collateral Estoppel. 

The policy additionally created confusion and fear. Claimants and their representatives understandably thought that the new denial threatened their existing benefits. In actuality, the denial of the new claim had no direct impact on the original claim on which the person continued to receive benefits. It was not the equivalent of a CDR, but much confusion existed. And, it is certainly true that a new denial could trigger a CDR, although few if any actually occurred.

The failure to apply Collateral Estoppel also created extra and unnecessary work for already strapped state DDS agencies.

What are the recent changes?

Having seen a significant number of these cases, advocates worked together to propose to SSA that the Collateral Estoppel policy be changed to eliminate the exception for a change in the Listings.

In March 2024, the recently confirmed SSA Commissioner Martin O’Malley informed advocates that he had authorized a change in the Collateral Estoppel policy. On July 13, SSA published the new policy in the POMS.

Under the “new” policy, the field office will again have primary responsibility for deciding whether Collateral Estoppel applies.

Substantively and most importantly, Collateral Estoppel will be applied even where there has been a significant change in the Listings. This change reverses long-standing policy in a positive manner. The new policy is set forth at POMS DI 27515.001.

The biggest change is that any changes to the Listings that occur after the initial approval are no longer relevant.  This is the single most important change.

Here are the other important parts to the new policy:

1. The old and new claim must cover the same time period. This is especially important in CDB cases where disability onset must be before age 22. For example, where a person on SSI with an onset date of age 25, applies for CDB, Collateral Estoppel will not apply.  Note, it is still critical that the SSI file be obtained as it will likely have relevant evidence for showing an onset date before age 22.
2. No cessation based upon medical improvement.
3. No termination on the prior claim. For example, where an SSI recipient has been terminated even for issues unrelated to disability, Collateral Estoppel does not apply.
4. There is no reason to believe that the initial approval was made in error.

The one possible significant limitation in the new policy is that Collateral Estoppel will not apply where the claimant has engaged in SGA since the prior established onset date. This limitation has some obvious problems, but it is unclear how many folks will actually be affected by it.

The one clear example where it does not make sense to apply at all is where the claimant is currently engaging in SGA. If that is the case, the new application will be denied at step 1.

We are hopeful that this new policy will significantly reduce the number of cases where the claimant is currently receiving disability benefits, applies for a different set of disability benefits, and then is denied on the basis that they are not disabled.

Where are the “rules” for Collateral Estoppel?

The rules in the federal register are at 20 CFR 404.950(f); 416.145(f).  The text of the rule is as follows and has not changed significantly in years:

Collateral estoppel—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.

For cases at OHO, the HALLEX essentially mirrors the federal regulation. HALLEX I-2-2-30.

The federal regulation is irrelevant at the field office.  What happens at the field office is controlled by the POMS as described above in detail. 

John is the Advocacy Director at Community Legal Aid Society, Inc. in Delaware and has been representing clients before the SSA for more than 35 years.  Please feel free to contact him if you have cases involving Collateral Estoppel. JWhitelaw@declasi.org, 302-575-0663.

This is a guest column provided by a NOSSCR member. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.