I-5-4-66.Implementation of the Albright Acquiescence Ruling (Fourth Circuit)
|Questions and Answers|
ISSUED: December 19, 2002
This Temporary Instruction provides, in question and answer format, guidance for implementing Social Security Acquiescence Ruling (AR) 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. The Commissioner of Social Security published the AR in the Federal Register on January 12, 2000, and it became effective on publication. The Albright AR also serves as notice of rescission of AR 94-2(4) (59 FR 34849), Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th Cir. 1987). In Albright the Fourth Circuit's decision concluded that AR 94-2(4) was not an accurate statement of the Court's holding in Lively.
As described in AR 00-1(4), the Fourth Circuit in Albright clarified its intent in Lively and interpreted that earlier holding to be more limited than that reflected in AR 94-2(4). The now rescinded AR 94-2(4) required adjudicators of subsequent claims to adopt a finding required at a step in the sequential evaluation process which was made in a final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 unless there was new and material evidence relating to the finding. The Social Security Administration (SSA) interprets the decision by the Court of Appeals in Albright to hold that where a final decision by an ALJ or the Appeals Council 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. In determining the appropriate weight to give a prior finding, an adjudicator should consider factors such 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 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.
The Albright AR applies only to findings in disability 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 AC level. The AR applies only to a finding of a claimant's residual functional capacity (RFC) 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. The Albright AR applies only with respect to required findings made in a final decision by an ALJ or the Appeals Council on a prior disability claim. Where the prior finding is about a fact which is subject to change with the passage of time, the likelihood that such fact has changed generally increases as the interval of time between the previously adjudicated period and the period under consideration 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.
Case history and guidance for the implementation of this AR is provided below.
William Albright filed an application for disability insurance benefits and Supplemental Security Income on April 17, 1991, alleging a disability onset date of March 31, 1990, because of neck and back injuries. The claims were denied at the initial level and upon reconsideration. In a decision issued on May 28, 1992, that denied benefits, an ALJ determined that Mr. Albright's testimony about the intensity of his pain was not credible and found that his impairment had been “not severe” since at least January 3, 1991. Mr. Albright did not appeal this ALJ decision.
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 again denied Mr. Albright's claims. Applying AR 94-2(4), which had stated SSA's interpretation of Lively, the ALJ found that denial of the subsequent claim was required because Mr. Albright's prior claims had been denied at the second step of the sequential evaluation, and there was an absence of new and material evidence regarding the second step finding concerning the severity of Mr. Albright's impairment.
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 on December 15, 1997, it entered an order granting summary judgment to Mr. Albright and remanding his claim to SSA for de novo consideration. SSA appealed the decision to the United States Court of Appeals for the Fourth Circuit.
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 circuit 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 “unlike 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 § 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 RFC 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 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.”
III. Implementing Procedures
The attached questions and answers provide guidance for implementing the Albright AR.
Hearing office personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 605-8530. Headquarters personnel should contact the Special Counsel Staff at 605-8250.