When does the Acquiescence Ruling (AR) apply?
The AR applies to all claims pending at the initial, reconsideration,
Administrative Law Judge (ALJ), or Appeals Council (AC) level when the
following conditions are met:
The adjudicator is deciding a subsequent disability claim with an
unadjudicated period arising under the same title of the Act as a prior
disability claim; and
There was a decision by an ALJ or the AC on the prior disability claim
that the claimant is not disabled and this decision has become final;
and
The final decision by the ALJ or AC on the prior claim that the claimant
was not disabled was based on the claimant's work activity or earnings, an
evaluation of medical evidence of the claimant's impairments, or a
consideration of both medical and vocational factors; and
The claimant resides in Alaska, Arizona, California, Guam, Hawaii, Idaho,
Montana, Nevada, the Northern Mariana Islands, Oregon, or Washington at
the time of the determination or decision on the subsequent claim at the
initial, reconsideration, ALJ, or AC level.
Note: At the AC level, this means that the AR is applicable if the claim
is active (e.g., if an appeal is pending) on or after the date the AR was
published, and the conditions in a. through d. are met. Also, if
conditions a. through d. are met, the AR is applicable to interim period
cases. These are cases where notice of the final determination or decision
on an individual's subsequent disability claim is dated April 19, 1988
(the date of the Chavez court decision) through
December 2, 1997 (the day before publication of the AR). See question 13
for more guidance with this latter situation.
The AR indicates that when adjudicating a subsequent claim involving an
unadjudicated period arising under the same title of the Act as a prior
claim on which there has been a final decision of nondisability,
adjudicators will apply a presumption of continuing nondisability and
determine that the claimant is not disabled with respect to that period,
unless the claimant rebuts the presumption. How does a claimant rebut the
presumption?
A claimant may rebut the presumption of nondisability for a subsequent
claim involving an unadjudicated period by showing changed circumstances
indicating a greater disability. Examples of changed circumstances
include: a change in the claimant's age category under
20 CFR §§
404.1563 or 416.963; an increase in the severity of the claimant's
impairment(s); the alleged existence of an impairment(s) not previously
considered; or a change in the criteria for determining disability. The AR
does not relieve an adjudicator of his or her own responsibility to
develop the record. However, the presumption of continuing nondisability
must still be first rebutted by a claimant proving changed circumstances
indicating a greater disability, before the adjudicator determines whether
the prior findings must be adopted.
Does the application of this presumption of continuing nondisability
under the AR affect the method of adjudication under the sequential
evaluation process in determining disability with respect to the
subsequent claim involving an unadjudicated period?
To the extent that the presumption must be considered before application
of the sequential evaluation process in the subsequent claim, the answer
is “yes.” Adjudicators will apply a presumption of continuing
nondisability and determine that the claimant is not disabled with respect
to the unadjudicated period, unless the claimant rebuts the presumption.
If the presumption of continuing nondisability is rebutted by the showing
of changed circumstances, the adjudicator of the subsequent claim must
give effect to certain disability findings contained in the final decision
on the prior claim, unless there is new and material evidence relating to
a finding or there has been a change in the law, regulations, or rulings
affecting a finding or the method for arriving at the finding. The AR
applies only to a finding of a claimant's residual functional capacity
(RFC), education, or work experience, or any other finding required at a
step in the sequential evaluation process. If at any step there is new and
material evidence or a change in the law, regulations, or rulings
relating to these findings, the adjudicator must make a new finding.
The AR indicates that the adjudicator must adopt a finding required at
a step in the sequential evaluation process which was made in a final
decision by an Administrative Law Judge (ALJ) or the Appeals Council (AC)
on a prior disability claim under the same title of the Act unless there
is new and material evidence relating to such finding. Does the term
“new and material” in this context have the same meaning as it
does in the “good cause for reopening” regulations
(20 CFR §§
404.989(a)(1) and
416.1489(a)(1))
and in HALLEX
I-2-9-40
C.1.?
No. “New and material evidence” has a somewhat broader
meaning in the context of the Chavez AR than it
does in the reopening context. Generally, “new” evidence is
evidence that was not before the adjudicator who made the decision on the
prior claim. For purposes of the Chavez AR, it
includes a new fact that automatically results from the passage of time,
i.e., the increase in the claimant's age and the moving forward of the
15-year period encompassing past relevant work
(20 CFR §§
404.1565(a) and
416.965(a)).
“New” evidence under Chavez can also
include testimony that was not considered by the prior adjudicator. Also,
if there has been a change in the law, regulations, or rulings affecting a
finding or the method for arriving at a finding, adoption of the finding
is precluded.
In the reopening context, evidence is “material” only if it
relates to the period that was adjudicated in the prior final
determination or decision at issue. By contrast, under the
Chavez AR, the new evidence need not relate to
the period adjudicated in the final decision on the prior claim in order
to be “material,” that is, to provide a basis for making a
different finding in the adjudication of the current claim. The new
evidence may relate solely to the unadjudicated period covered by the new
claim, e.g., new evidence establishes that the claimant's medical
condition has worsened or has improved since the date of the final
decision on the prior claim, or it may relate to both the unadjudicated
period and the period previously adjudicated, e.g., new evidence
establishes that, prior to the date of the final decision on the prior
claim and continuing to the present time, the claimant's RFC was, and
continues to be, more restrictive than that found in the prior decision.
(In the latter situation, the new evidence also may provide a basis for
reopening the prior decision if the conditions for reopening are otherwise
met.) Under the AR, new evidence is “material” if, for
purposes of adjudicating the current claim, the evidence warrants a
finding on residual functional capacity, education, work experience or
other finding required at a step in the sequential evaluation process
different than that made in the decision on the prior claim.
Must an adjudicator adopt a prior finding, in the absence of new and
material evidence, if it was made based on a now obsolete standard, e.g.,
the previous cardiovascular listings that were revised on February 10,
1994?
No. If the new criteria are clearly different from those in effect at the
time of the previous decision, a new standard is involved. Therefore, the
adjudicator must make a new finding in the current decision using the
current standard, regardless of whether the current standard is more, or
less, favorable to the claimant. Any change in statute, regulation, ruling
or legal precedent that would bar application of res
judicata would also bar application of the AR.
Does this AR mean that the adjudicator who is deciding the current
claim cannot find that the claimant has a more restrictive RFC than that
established in a finding in the prior decision if there is no new and
material evidence or no change in the law, regulations, or rulings related
to that finding?
Yes.
Does the AR requirement to adopt prior findings affect the method of
adjudication under the sequential evaluation process in determining
disability with respect to the subsequent claim?
To the extent that the adjudicator must first address whether there is new
and material evidence, or a change in the law, regulations or rulings
with respect to each such finding made in the prior decision, the answer
is “yes.” The order of the steps in the sequential evaluation
remains unchanged, but the initial question at each step is whether there
is new and material evidence. If there is no new and
material evidence or a change in the law, regulations, or rulings related
to the finding, the adjudicator must adopt the prior finding. If there
is new and material evidence or a change in the law, regulations
or rulings with respect to a particular finding, the adjudicator must
make a new finding based on all evidence pertinent to that finding.
Do the AR requirements concerning the presumption of continuing
nondisability and the adoption of certain findings mean the decisional
rationale must reflect the above analysis?
Yes. Decisions in cases in which the AR applies must refer to the AR and
include rationale indicating whether the presumption of continuing
nondisability has been rebutted, and rationale indicating why any new
evidence is or is not material to a particular finding. Any change in the
law, regulations, or rulings related to a finding must also be reflected
in the rationale. The adjudicator must clearly state which prior findings
are being adopted and which are not. For each finding the adjudicator
adopts, no further rationale is needed.
The AR indicates that when a claimant rebuts the presumption of
nondisability, adjudicators must give effect only to disability findings
(i.e., a finding regarding a claimant's RFC, education, or work
experience, or other finding required at a step in the sequential
evaluation process for determining disability). What are the “other
finding[s]?”
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 an impairment or
combination of impairments that is severe and whether the impairment or
combination of impairments meets the durational 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: findings regarding a claimant's RFC and the physical or mental
demands of the claimant's past relevant work;
Step 5: findings regarding RFC, age, education and work experience to see
if claimant can do other work.
Other sections of the regulations require additional findings in certain
cases, e.g., the skill level of a claimant's past relevant work and
whether a claimant has transferable skills
(20 CFR §§
404.1568 and
416.968).
For findings required under the evaluation process for determining
disability for an applicant for title II widow(er)'s insurance benefits
based on disability for months prior to January 1991, or for determining
disability for a child applying for title XVI benefits based on
disability, see 20
CFR §§ 404.1578 and
416.924,
respectively. The AR does not apply when the requirements for disability
on one claim (e.g., a prior title XVI child disability claim) are not
identical to the requirements for disability on another claim under the
same title (e.g., a current title XVI adult disability claim).
Is a finding regarding credibility considered to be a finding
required at a step in the sequential evaluation process?
No. In order to make certain “required” findings,
adjudicators may make “subordinate” findings. For example, in
making a “required” finding regarding RFC, an adjudicator may
make a “subordinate” finding concerning credibility. Pursuant
to the Chavez AR, an adjudicator reviewing a
subsequent claim must adopt a prior finding regarding RFC or any other
“required” finding unless there is new and material evidence
relating to that finding, or there has been a change in the law,
regulations, or rulings affecting a finding or the method for arriving at
the finding. Absent such new and material evidence or changes in legal
requirements, the question of making a “subordinate” finding
regarding credibility does not arise.
Must an adjudicator adopt a prior finding, in the absence of new and
material evidence or a change in the law, regulations, or rulings relating
to that finding, if it was based on an error on the face of the
evidence?
The prior finding need not be adopted if the prior decision is reopened
and revised under the usual rules of administrative finality applicable to
an error on the face of the evidence and a new finding is made. If the
prior finding cannot be reopened and revised under the usual rules (i.e.,
more than 2 years have elapsed from the initial determination in a title
XVI claim or more than four years have elapsed in a title II claim and the
prior finding is favorable to the claimant), then the prior finding must
be adopted.
How does the AR apply if there is more than one prior claim with an ALJ
or Appeals Council decision?
If there is more than one prior final ALJ or AC decision, the adjudicator
must adopt each of the findings (with respect to which there is no new and
material evidence or change in the law, regulations, or rulings) from the
earliest final decision issued on or after April 19, 1988, the date of
the court's decision in Chavez. If there is more
than one ALJ or AC decision issued before April 19, 1988, and there are
no ALJ or AC final decisions issued on or after April 19, 1988, the
adjudicator must adopt the findings of the most recent ALJ or AC decision
that predates the Chavez decision, absent new
and material evidence, or any change in the law, regulations, or rulings
relating to any such finding. If there are multiple decisions issued both
before and after April 19, 1988, the adjudicator must first consider
whether there was new and material evidence or a change in the law,
regulations, or rulings at the time of the most recent final decision
dated on or after April 19, 1988 that warrants finding a different RFC
than that found in the decision issued previous to it.
EXAMPLE 1:
Assume that a claimant with a claim currently pending received ALJ
decisions in 1989 and 1990 on two prior claims. The RFC found by the first
ALJ was light, and the RFC found by the second ALJ was medium. The
claimant was a younger individual at the time of the first decision and
was closely approaching advanced age at the time of the second decision.
The medical-vocational guidelines would have directed a decision of
“disabled” if the second ALJ had found that the claimant's
RFC was light.
The adjudicator of the third claim (the current claim)must first determine
whether new and material evidence was submitted in connection with the
second claim that would justify finding an RFC greater than the light RFC
found in the decision on the first claim. If the adjudicator determines
that such new and material evidence was submitted with the second
claim, the finding regarding RFC in the decision on the second claim
would be binding unless there is new and material evidence submitted with
the current claim. If the adjudicator determines that no such new
and material evidence was submitted with the second claim, the finding
from the decision on the first claim would be binding unless there is new
and material evidence submitted with the current claim. The decisional
rationale must reflect this sequential consideration and, if the
adjudicator adopts a prior finding, the decision must clearly indicate
the date of the decision from which the finding is being adopted.
EXAMPLE 2:
Assume the same facts as example 1 and assume that the claimant had also
filed two earlier claims that were denied by ALJs in 1986 and 1987. The
ALJ who issued the 1986 decision found that the claimant was limited to
light work and the ALJ who issued the 1987 decision found that the
claimant was limited to sedentary work.
The 1986 and 1987 decisions predate the court's 1988 decision in
Chavez. Therefore, the findings from the 1986
decision were not binding on the 1987 proceedings because the
Chavez court had not issued its decision at the
time the 1987 decision was issued. Thus, the adjudicator of the current
claim must first consider whether there was new and material evidence at
the time of the 1989 decision that warranted findinga different RFC than
the sedentary RFC found in the 1987 decision. The adjudicator would then
proceed with the same sequential consideration as described in Example 1.
If all conditions for applying the AR are otherwise met, must an
adjudicator apply the AR to readjudicate a previously decided claim if the
claim was denied between the date of the court's decision (April 19, 1988)
and the AR publication date (December 3, 1997) and the claimant has not
requested application of the AR to his or her prior claim?
Yes. Although 20 CFR
§§ 404.985(b) and
416.1485(b)
provide for readjudication based on a request by the claimant, these
regulations do not preclude SSA from taking such action on its own
initiative when, in adjudicating a subsequent claim for example, an
adjudicator becomes aware of the prior determination or decision and
concludes that application of the ruling could change that determination
or decision.
EXAMPLE 3:
Using the same facts as example 1 above, assume that the claimant
consistently alleged a disability onset date of June 1985 in all three
claims. Unless there is new and material evidence to warrant a finding
different from the light RFC found by the first ALJ, the adjudicator would
readjudicate the application decided in the 1989 decision pursuant to the
AR and establish entitlement based on the second application, with an
onset based on the claimant's attainment of the age category of closely
approaching advanced age.
The action readjudicating and establishing entitlement based on the
application decided in the 1989 decision would be taken pursuant to the
acquiescence regulations
(20 CFR §§
404.985 and
416.1485). It
would not be a reopening and revision pursuant to the reopening and
revision regulations in §§ 404.987 ff. and 416.1487 ff. and,
therefore, not subject to the time limitations for reopening in those
regulations.
Does the AR apply if the prior ALJ or AC final decision was issued for
a claimant who was then under age 18 and that claimant has since attained
the age of 18 and has a subsequent claim, with an unadjudicated period,
arising under the same title of the Act as the prior claim?
No. The AR does not apply when the requirements for disability on one
claim under the same title(e.g., a prior title XVI child disability claim
decision) are not identical to the requirements for disability on a
subsequent claim on which there has been a final decision (e.g., a current
title XVI adult disability claim).
What if the prior file has been lost or destroyed?
It may be possible to apply the AR if the adjudicator can obtain a copy of
the ALJ or AC decision. Therefore, the adjudicator should attempt to
obtain a copy of the prior ALJ or Appeals Council decision from the
claimant, the representative, or the ALJ or appeals files. If the
adjudicator cannot obtain a copy of the prior decision, he or she cannot
apply the AR because there is no way of knowing what the prior findings
were. If the prior file has been lost or destroyed and the adjudicator
cannot obtain a copy of the prior decision the AR cannot be applied. The
adjudicator of a subsequent claim then should: admit all documentation of
this into the record; ensure that the current record is fully developed;
and issue a decision based on the available evidence of record.