[Federal Register Volume 59, Number 129 (Thursday, July 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16418]


[[Page Unknown]]

[Federal Register: July 7, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration

 

Social Security Acquiescence Ruling 94-2(4)--Lively v. Secretary 
of Health and Human Services, 820 F.2d 1391 (4th Cir. 1987)--Effect of 
Prior Disability Findings on Adjudication of a Subsequent Disability 
Claim Arising Under the Same Title of the Social Security Act--Titles 
II and XVI of the Social Security Act

AGENCY: Social Security Administration, HHS.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 422.406(b)(2) published January 11, 
1990 (55 FR 1012), the Commissioner of Social Security gives notice of 
Social Security Acquiescence Rule 94-2(4).

EFFECTIVE DATE: July 7, 1994.

FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401 
Security Blvd., Baltimore, MD 21235, (410) 965-1695.

SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5 
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 422.406(b)(2).
    A Social Security Acquiescence Ruling explains how we will apply a 
holding in a decision of a United States Court of Appeals that we 
determine conflicts with our interpretation of a provision of the 
Social Security Act or regulations when the Government has decided not 
to seek further review of that decision or is unsuccessful on further 
review.
    We will apply the holding of the Court of Appeals decision as 
explained in this Social Security Acquiescence Ruling to claims at all 
levels of administrative adjudication within the Fourth Circuit. This 
Social Security Acquiescence Ruling will apply to all determinations 
and decisions made on or after July 7, 1994. If we made a determination 
or decision on your application for benefits between June 29, 1987, the 
date of the Court of Appeals' decision and July 7, 1994, the effective 
date of this Social Security Acquiescence Ruling, you may request 
application of the Social Security Acquiescence Ruling to your claim if 
you first demonstrate, pursuant to 20 CFR 404.985(b) or 416.1485(b), 
that application of the Ruling could change our prior determination or 
decision.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided for in 20 CFR 404.985(e) or 416.1485(e). If we 
decide to relitigate the issue covered by this Social Security 
Acquiescence Ruling as provided for by 20 CFR 404.985(c) or 
416.1485(c), we will publish a notice in the Federal Register stating 
that we will apply our interpretation of the Act or regulations 
involved and explaining why we have decided to relitigate the issue.

(Catalog of Federal Domestic Assistance Programs Nos. 93.802 Social 
Security-Disability Insurance; 93.803 Social Security-Retirement 
Insurance; 93.805 Social Security-Survivors Insurance; 93.806-
Special Benefits for Disabled Coal Miners; 93.807-Supplemental 
Security Income.)

    Dated: May 11, 1994.
Shirley S. Chater,
Commissioner of Social Security.

Acquiescence Ruling 94-2(4)

    Lively v. Secretary of Health and Human Services, 820 F.2d 1391 
(4th Cir. 1987)--Effect of Prior Disability Findings on Adjudication of 
a Subsequent Disability Claim Arising Under the Same Title of the 
Social Security Act--Titles II and XVI of the Social Security Act.

Issue

    Whether, in making a disability determination or decision on a 
subsequent disability claim with respect to an unadjudicated period, an 
adjudicator must adopt a finding regarding a claimant's residual 
functional capacity, or other finding required under the applicable 
sequential evaluation process for determining disability, made in a 
final decision by an Administrative Law Judge or the Appeals Council on 
a prior disability claim arising under the same title of the Social 
Security Act.*
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    *Although Lively was a title II case, similar principles also 
apply to title XVI. Therefore, this Ruling extends to both title II 
and title XVI disability claims.
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Statute/Regulation/Ruling Citation

    Section 205(a) and (h) and 1102 of the Social Security Act (42 
U.S.C. 405(a) and (h) and 1302), 20 CFR 404.955, 404.957(c)(1), 
404.981, 416.1455, 416.1457(c)(1), 416.1481.

Circuit

    Fourth (Maryland, North Carolina, South Carolina, Virginia, West 
Virginia) Lively v. Secretary of Health and Human Services, 820 F.2d 
1391 (4th Cir. 1987).

Applicability of Ruling

    The Ruling applies to determinations or decisions at all levels of 
the administrative review process (i.e., initial, reconsideration, 
Administrative Law Judge hearing and Appeals Council).

Description of Case

    In a decision dated October 19, 1981, an Administrative Law Judge 
found that the plaintiff, Mr. Lively, was not disabled under Rule 
202.10 of the medical-vocational guidelines, 20 CFR Part 404, Subpart 
P, Appendix 2, and denied his application for disability insurance 
benefits. In applying Rule 202.10, the Administrative Law Judge found 
that Mr. Lively had the residual functional capacity for light work. 
The decision that Mr. Lively was not entitled to disability insurance 
benefits became the final decision of the Secretary and was affirmed by 
the district court.
    The plaintiff filed a second application for disability insurance 
benefits on December 14, 1983. After holding a hearing, an 
Administrative Law Judge concluded that the plaintiff was not entitled 
to disability insurance benefits. The Administrative Law Judge 
determined that Mr. Lively retained the functional capacity for the 
performance of work activity of any exertional level on and prior to 
December 31, 1981, the date his insured status expired. The 
Administrative Law Judge did not discuss in his decision the 1981 
finding by another Administrative Law Judge that the plaintiff had the 
residual functional capacity to do only light work. This decision 
became the final decision of the Secretary and was appealed to the 
district court. The case was referred to a United States Magistrate who 
found that the evidence before the Administrative Law Judge on the 
plaintiff's 1983 application was sufficient to sustain the Secretary's 
decision that the plaintiff was not disabled as of December 31, 1981. 
The district court adopted the Magistrate's Report and Recommendation. 
Mr. Lively then appealed to the United States Court of Appeals for the 
Fourth Circuit.

Holding

    The Fourth Circuit stated that:

    Congress has clearly provided by statute that res judicata 
prevents reappraisal of both the Secretary's findings and his 
decision in Social Security cases that have become final, 42 U.S.C. 
Sec. 405(h), and the courts have readily applied res judicata to 
prevent the Secretary from reaching an inconsistent result in a 
second proceeding based on evidence that has already been weighed in 
a claimant's favor in an earlier proceeding.

The court noted that the plaintiff became 55 years of age two weeks 
after the Administrative Law Judge, in connection with the first 
application for benefits, found that Mr. Lively was limited to light 
work. The court further noted that a person with the plaintiff's 
education and vocational background who is 55 years of age or older and 
limited to light work would be considered disabled under Rule 202.02 of 
the medical-vocational guidelines, 20 CFR Part 404, Subpart P, Appendix 
2. The court found it inconceivable that Mr. Lively's condition had 
improved so much in two weeks as to enable him to perform medium work. 
Accordingly the court held:

    Principles of finality and fundamental fairness * * * indicate 
that the Secretary must shoulder the burden of demonstrating that 
the claimant's condition had improved sufficiently to indicate that 
the claimant was capable of performing medium work. * * * 
[E]vidence, not considered in the earlier proceeding, would be 
needed as an independent basis to sustain a finding contrary to the 
final earlier finding.

Statement as to How Lively Differs From SSA Policy

    Under SSA policy, if a determination or decision on a disability 
claim has become final, the Agency may apply administrative res 
judicata with respect to a subsequent disability claim under the same 
title of the Act if the same parties, facts and issues are involved in 
both the prior and subsequent claims. However, if the subsequent claim 
involves deciding whether the claimant is disabled during a period that 
was not adjudicated in the final determination or decision on the prior 
claim, SSA considers the issue of disability with respect to the 
unadjudicated period to be a new issue that prevents the application of 
administrative res judicata. Thus, when adjudicating a subsequent 
disability claim involving an unadjudicated period, SSA considers the 
facts and issues de novo in determining disability with respect to the 
unadjudicated period.
    The United States Court of Appeals for the Fourth Circuit concluded 
that where a final decision of the Secretary after a hearing on a prior 
disability claim contained a finding about a claimant's residual 
functional capacity, the Secretary may not make a different finding in 
adjudicating a subsequent disability claim with an unadjudicated period 
arising under the same title of the Act as the prior claim unless there 
is new and material evidence relating to the claimant's residual 
functional capacity.

Explanation of How SSA Will Apply the Decision Within the Circuit

    This Ruling applies only to disability findings in cases involving 
claimants who reside in Maryland, North Carolina, South Carolina, 
Virginia, or West Virginia at the time of the determination or decision 
on the subsequent claim at the initial, reconsideration, Administrative 
Law Judge hearing or Appeals Council level. It applies only to a 
finding regarding a claimant's residual functional capacity or other 
finding required at a step in the sequential evaluation process for 
determining disability provided under 20 CFR 404.1520, 416.920 or 
416.924, or a finding required under the evaluation process for 
determining disability provided under 20 CFR 404.1578, as appropriate, 
which was made in a final decision by an Administrative Law Judge or 
the Appeals Council on a prior disability claim. When adjudicating a 
subsequent disability claim with an unadjudicated period arising under 
the same title of the Act as the prior claim, adjudicators must adopt 
such a finding from the final decision by an Administrative Law Judge 
or the Appeals Council on the prior claim in determining whether the 
claimant is disabled with respect to the unadjudicated period unless 
there is new and material evidence relating to such a finding.

[FR Doc. 94-16418 Filed 7-6-94; 8:45 am]
BILLING CODE 4190-29-M