[Federal Register Volume 65, Number 8 (Wednesday, January 12, 2000)]
[Notices]
[Pages 1936-1938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-702]
[[Page 1936]]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
[Social Security Acquiescence Ruling 00-1(4); Rescission of Social
Security Acquiescence Ruling 94-2(4)]
Albright v. Commissioner of the Social Security Administration
(Interpreting Lively v. Secretary of Health and Human Services); Effect
of Prior Disability Findings on Adjudication of a Subsequent Disability
Claim--Titles II and XVI of the Social Security Act; Rescission of
Social Security Acquiescence Ruling 94-2(4), Lively v. Secretary of
Health and Human Services
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Acquiescence Ruling and Rescission of
Social Security Acquiescence Ruling.
-----------------------------------------------------------------------
SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of
Social Security gives notice of Social Security Acquiescence Ruling 00-
1(4) and rescission of Social Security Acquiescence Ruling 94-2(4).
EFFECTIVE DATE: January 12, 2000.
FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401
Security Boulevard, Baltimore, MD 21235-6401, (410) 965-1695.
SUPPLEMENTARY INFORMATION: We are rescinding Social Security
Acquiescence Ruling 94-2(4) and publishing this Acquiescence Ruling in
accordance with 20 CFR 402.35(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 (the Act) or regulations when the Government has
decided not to seek further review of that decision or is unsuccessful
on further review.
On July 7, 1994, we issued Acquiescence Ruling 94-2(4) (59 FR
34849) to reflect the holding in Lively v. Secretary of Health and
Human Services, 820 F.2d 1391 (4th Cir. 1987). Acquiescence Ruling 94-
2(4) provided that, in making a disability determination or decision on
a subsequent disability claim with respect to an unadjudicated period,
the Social Security Administration (SSA) 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. Acquiescence Ruling
94-2(4) provided that SSA adjudicators must adopt such a finding from a
final decision on the prior claim unless there was new and material
evidence relating to that finding.
On April 22, 1999, the United States Court of Appeals for the
Fourth Circuit issued a decision in Albright v. Commissioner of the
Social Security Administration, 174 F.3d 473 (4th Cir. 1999), in which
it clarified its intent in Lively and interpreted the holding to be
more limited than that reflected in Acquiescence Ruling 94-2(4).
Furthermore, the court stated that ``SSA's treatment of later-filed
applications as separate claims is eminently logical and sensible,
reflecting the reality that the mere passage of time often has a
deleterious effect on a claimant's physical or mental condition.''
Because the Fourth Circuit's decision in Albright concluded that
Acquiescence Ruling 94-2(4) is not an accurate statement of its holding
in Lively, we are rescinding that Acquiescence Ruling and publishing
this Acquiescence Ruling to reflect the Albright court's interpretation
of the holding in Lively, and to acquiesce in that portion of the
Albright holding that conflicts with our interpretation of our
regulations. We also provide in this Acquiescence Ruling an explanation
of how SSA's adjudicators will apply the Albright holding to claims
within the Fourth Circuit.
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 January 12, 2000. If we made a
determination or decision on an application for benefits between April
22, 1999, the date of the Court of Appeals' decision in Albright v.
Commissioner of the Social Security Administration, 174 F.3d 473 (4th
Cir. 1999), and January 12, 2000, 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)(2) or 416.1485(b)(2), 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 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 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 Program Nos. 96.001 Social
Security - Disability Insurance; 96.002 Social Security - Retirement
Insurance; 96.004 Social Security - Survivors Insurance; 96.005 -
Special Benefits for Disabled Coal Miners; 96.006 - Supplemental
Security Income.)
Dated: December 1, 1999.
Kenneth S. Apfel,
Commissioner of Social Security.
Acquiescence Ruling 00-1(4)
Albright v. Commissioner of the Social Security Administration, 174
F.3d 473 (4th Cir. 1999) (Interpreting Lively v. Secretary of Health
and Human Services)--Effect of Prior Disability Findings on
Adjudication of a Subsequent Disability Claim--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,
the Social Security Administration (SSA)1 must consider a
finding of 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 (ALJ) or the Appeals Council on the prior disability claim.
---------------------------------------------------------------------------
\1\ Under the Social Security Independence and Program
Improvements Act of 1994, Pub. L. No. 103-296, effective March 31,
1995, SSA became an independent Agency in the Executive Branch of
the United States Government and was provided ultimate
responsibility for administering the Social Security and
Supplemental Security Income programs under titles II and XVI of the
Social Security Act. Prior to March 31, 1995, the Secretary of
Health and Human Services had such responsibility.
---------------------------------------------------------------------------
Statute/Regulation/Ruling Citation: Sections 205(a) and (h) and
702(a)(5) of the Social Security Act (42 U.S.C. 405(a) and (h) and
902(a)(5)), 20 CFR 404.900(a), 404.957(c)(1), 416.1400(a),
416.1457(c)(1), Acquiescence Ruling (AR) 94-2(4) (rescinded).
Circuit: Fourth (Maryland, North Carolina, South Carolina,
Virginia, West Virginia).
Albright v. Commissioner of the Social Security Administration, 174
F.3d 473 (4th Cir. 1999) (Interpreting Lively v. Secretary of Health
and Human Services, 820 F.2d 1391 (4th Cir. 1987)).
Applicability of Ruling: This Ruling applies to determinations or
decisions at
[[Page 1937]]
all levels of the administrative review process (i.e., initial,
reconsideration, ALJ hearing and Appeals Council).
Lively2
---------------------------------------------------------------------------
\2\ The decision of the Fourth Circuit in Albright (the subject
of this AR) was based, in part, upon the panel's interpretation of
the Fourth Circuit's prior decision in Lively. Accordingly, the
following discussion of that earlier case is provided as background
material.
---------------------------------------------------------------------------
Description of Case: In a decision dated October 19, 1981, an ALJ
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 ALJ 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 SSA 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 ALJ
concluded that the plaintiff was not entitled to disability insurance
benefits. The ALJ determined that Mr. Lively retained the functional
capacity for the performance of work activity at any exertional level
on and prior to December 31, 1981, the date his insured status expired.
The ALJ did not discuss in his decision the 1981 finding by another ALJ
that the plaintiff had the residual functional capacity to do only
light work. This decision became the final decision of SSA and was
appealed to the district court. The case was referred to a United
States Magistrate who found that the evidence before the ALJ on the
plaintiff's 1983 application was sufficient to sustain SSA'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 reversed and remanded the decision of
the district court. The court stated that:
Congress has clearly provided by statute that res judicata
prevents reappraisal of both [SSA]'s findings and * * * 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 * * *
[SSA] 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 ALJ, 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 * * * [SSA] 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.
Albright
Description of Case: William Albright applied for disability
insurance benefits and Supplemental Security Income on April 17, 1991,
alleging that he had been unable to work since March 31, 1990, because
of neck and back injuries. The claims were denied initially and upon
reconsideration. In a decision issued on May 28, 1992, that denied
benefits, an ALJ determined Mr. Albright's testimony about the
intensity of his pain was not credible and found that his impairment
had been ``not severe''3 since at least January 3, 1991. Mr.
Albright did not appeal this decision.
---------------------------------------------------------------------------
\3\ 20 CFR 404.1520 and 416.920 provide a sequential evaluation
process for evaluating disability. These regulations provide at step
two that if an individual does not have any impairment or
combination of impairments that is ``severe,'' the individual is not
disabled.
---------------------------------------------------------------------------
In November and December 1992, Mr. Albright filed subsequent
applications for disability insurance benefits and Supplemental
Security Income. These claims were denied initially and again upon
reconsideration. On October 26, 1994, an ALJ found that Mr. Albright's
prior claims had been denied at the second step of the sequential
evaluation process and that there was an absence of new and material
evidence regarding the severity of his impairment. Accordingly, the ALJ
applied AR 94-2(4) which was published on July 7, 1994, and found that
Mr. Albright was not disabled.4
---------------------------------------------------------------------------
\4\ In an action that was uncontested on appeal and later termed
``entirely proper'' by the Fourth Circuit in Albright, the ALJ
dismissed Mr. Albright's claims insofar as they related to the
period up to and including May 28, 1992, the date of the prior ALJ's
decision on Mr. Albright's earlier claims.
---------------------------------------------------------------------------
After the Appeals Council denied the claimant's request for review,
he sought judicial review. The district court referred the case to a
magistrate judge who found that SSA had interpreted the holding in
Lively too broadly in promulgating AR 94-2(4). The district court
adopted the magistrate judge's findings and conclusions, and remanded
Mr. Albright's claims for de novo consideration by SSA. After the
district court's denial of SSA's motion to alter or amend the judgment,
SSA appealed to the United States Court of Appeals for the Fourth
Circuit.
Holding: The Fourth Circuit affirmed the district court's decision
and held that AR 94-2(4) was not an accurate statement of the holding
in Lively. The court further stated that Lively was a ``rare case''
involving ``a finding that initially disqualified the claimant from an
award of benefits [which later] convincingly demonstrated his
entitlement thereto as of two weeks hence.'' The court then stated that
``[u]nlike the [Acquiescence] Ruling at issue in * * * [Albright's]
case, however, the prior adjudication in Lively -- though highly
probative -- was not conclusive.'' The court further held that:
We therefore disagree with the Commissioner that Lively
abrogated the established law of preclusion * * * . At its essence,
Lively really has very little to do with preclusion. Although we
discussed the doctrine of res judicata generally, and more
particularly its incorporation into the Social Security Act through
42 U.S.C. 405(h), Lively is not directly predicated on the statute,
but on ``[p]rinciples of finality and fundamental fairness drawn
from Sec. 405(h).'' [Lively, 820 F.2d at 1392] (emphasis added). The
distinction is subtle, but important.
Rather than signaling a sea change in the law of preclusion, the
result in Lively is instead best understood as a practical
illustration of the substantial evidence rule. In other words, we
determined that the finding of a qualified and disinterested
tribunal that Lively was capable of performing only light work as of
a certain date was such an important and probative fact as to render
the subsequent finding to the contrary [relating to a period that
began two weeks later] unsupported by substantial evidence. To have
held otherwise would have thwarted the legitimate expectations of
claimants * * * that final agency adjudications should carry
considerable weight. [Footnotes omitted.]
The court observed that the prior residual functional capacity
finding in Lively was ``highly probative'' of the claimant's residual
functional capacity for the period that began two weeks after the
previously adjudicated period because, absent evidence to the contrary,
``a claimant's condition very likely remains unchanged within a
discrete two-week period.'' The court
[[Page 1938]]
indicated that the probative value of a prior finding relating to a
claimant's medical condition will likely diminish ``as the timeframe
expands,'' and that ``[t]he logic so evident in Lively * * * applies
with nowhere near the force in Albright's situation'' where ``the
relevant period exceeds three years.''
The court also stated that SSA's ``treatment of later-filed
applications as separate claims is eminently logical and sensible,
reflecting the reality that the mere passage of time often has a
deleterious effect on a claimant's physical or mental condition.''
Statement as to How Albright Differs From SSA's Interpretation of the
Regulations
In a subsequent disability claim, SSA considers the issue of
disability with respect to a period of time that was not adjudicated in
the final determination or decision on the prior claim to be a new
issue that requires an independent evaluation from that made in the
prior adjudication. 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. SSA does not consider prior findings made in the
final determination or decision on the prior claim as evidence in
determining disability with respect to the unadjudicated period
involved in the subsequent claim.
SSA interprets the decision by the United States Court of Appeals
for the Fourth Circuit in Albright to hold that where a final decision
of SSA after a hearing on a prior disability claim contains a finding
required at a step in the sequential evaluation process for determining
disability, SSA must consider such finding as evidence and give it
appropriate weight in light of all relevant facts and circumstances
when adjudicating a subsequent disability claim involving an
unadjudicated period.
Explanation of How SSA Will Apply The Albright 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, ALJ hearing or
Appeals Council level. It applies only to a finding of 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, as appropriate, which was made in
a final decision by an ALJ or the Appeals Council on a prior disability
claim.5
---------------------------------------------------------------------------
\5\ In making a finding of a claimant's residual functional
capacity or other finding required to be made at a step in the
applicable sequential evaluation process for determining disability
provided under the specific sections of the regulations described
above, an ALJ or the Appeals Council may have made certain
subsidiary findings, such as a finding concerning the credibility of
a claimant's testimony or statements. A subsidiary finding does not
constitute a finding that is required at a step in the sequential
evaluation process for determining disability provided under 20 CFR
404.1520, 416.920 or 416.924.
---------------------------------------------------------------------------
When adjudicating a subsequent disability claim arising under the
same or a different title of the Act as the prior claim, an adjudicator
determining whether a claimant is disabled during a previously
unadjudicated period must consider such a prior finding as evidence and
give it appropriate weight in light of all relevant facts and
circumstances. In determining the weight to be given such a prior
finding, an adjudicator 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 length of time
that has elapsed between the period previously adjudicated and the
period being adjudicated 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.
Where the prior finding was about a fact which is subject to change
with the passage of time, such as a claimant's residual functional
capacity, or that a claimant does or does not have an impairment(s)
which is severe, the likelihood that such fact has changed generally
increases as the interval of time between the previously adjudicated
period and the period being adjudicated increases. An adjudicator
should give greater weight to such a prior finding when the previously
adjudicated period is close in time to the period being adjudicated in
the subsequent claim, e.g., a few weeks as in Lively. An adjudicator
generally should give less weight to such a prior finding as the
proximity of the period previously adjudicated to the period being
adjudicated in the subsequent claim becomes more remote, e.g., where
the relevant time period exceeds three years as in Albright. In
determining the weight to be given such a prior finding, an adjudicator
must consider all relevant facts and circumstances on a case-by-case
basis.
[FR Doc. 00-702 Filed 1-11-00; 8:45 am]
BILLING CODE 4191-02-F