TN 1 (05-05)

DI 52715.010 How the Albright Acquiescence Ruling (AR) Applies

A. Policy

1. General

AR 00-1(4) requires adjudicators to apply the principles in DI 52715.010A.2. when:

  1. The adjudicator is deciding a subsequent disability claim with an unadjudicated period; and

  2. The subsequent claim arises under the same or a different title of the Act as a prior disability claim on which there has been a final decision by an administrative law judge (ALJ) or the Appeals Council (AC).

  3. The requirements for disability on one claim under the same or a different title are identical to the requirements for disability on the subsequent claim filed.

2. What the AR requires

  1. The adjudicator must consider certain findings contained in the final decision by an ALJ or the AC on the prior disability claim as evidence when adjudicating the subsequent disability claim involving an unadjudicated period.

  2. The requirement to consider prior findings as evidence when adjudicating the subsequent claim applies, as appropriate, 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 for title II disability claims, or for title XVI disability claims of adults (individuals age 18 or older), as described in DI 52715.010B.1.a.; or

    • A finding required at a step in the sequential evaluation process for determining disability for title XVI disability claims for children (individuals under age 18), as described in DI 52715.010B.1.b.

  3. The adjudicator must consider such a finding as evidence and give it appropriate weight in light of all relevant facts and circumstances.

  4. 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.

  5. When a prior finding was about a fact which is subject to change with the passage of time, the likelihood that such a fact has changed generally increases as the amount of time between the previously adjudicated period and the period currently 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 currently being adjudicated, 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 currently being adjudicated becomes more remote, e.g., as in Albright where the time period exceeded 3 years. 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.

3. Prior file lost or destroyed and decision on prior claim is not available

If the prior file is lost or has been destroyed and the ALJ or AC decision cannot be located anywhere in SSA or by the claimant, the AR cannot be applied.

NOTE: Generally, files of denied claims are retained in the Federal Records Centers for 5 years.

B. Definitions

1. Finding required at a step in the sequential evaluation process for determining disability

  1. For individuals claiming title II disability benefits and for adults (individuals age 18 or older) claiming title XVI disability benefits, the applicable sequential evaluation process is set forth in DI 22001.000. For claims of these individuals, a finding required at a step in the sequential evaluation process includes a finding of:

    Step 1

    • Whether a claimant is working and, if so,

    • Whether the work the claimant is doing constitutes substantial gainful activity (SGA);

    Step 2

    • Whether a claimant has an impairment or a combination of impairments that is "severe;"

    Step 3

    • Whether a claimant’s impairment(s) meets the duration requirement,

    • Whether a claimant has an impairment(s) that meets a listed impairment in the Listing of Impairments, and

    • Whether a claimant’s impairment(s) is medically equal in severity to a listed impairment;

    Step 4

    • Whether a claimant worked in the past, and, if so,

    • Whether the work the claimant did in the past constitutes past relevant work (PRW) and, if so,

    • The claimant’s RFC, and

    • The physical and mental demands of the claimant’s PRW, and

    • Based on these findings at step 4, whether the claimant can do PRW as the claimant performed it or as it is generally performed in the national economy;

    Step 5

    • The claimant’s RFC,

    • The claimant’s age,

    • The claimant’s education,

    • The claimant’s PRW (including, as appropriate, the skill level of a claimant’s PRW and whether a claimant’s skills are transferable), and

    • In certain cases, other matters relevant to step 5 (e.g., whether work exists in significant numbers), and

    • Based on these findings at step 5, whether the claimant can do other work.

    NOTE: Where a final ALJ of AC decision on a prior disability claim contains findings required at step 4 or 5, the adjudicator of the subsequent claim must consider as evidence, in accordance with the Albright AR, all of the prior findings required at that step—not just the ultimate finding at that step—in determining disability with respect to the unadjudicated period involved in the subsequent claim. Accordingly, the weight to be given to a prior finding of whether a claimant can do past relevant work or other work will depend directly on the weight the adjudicator gives to the other above-described findings required at step 4 or 5, on which the ultimate finding at such a step was based, in light of all relevant facts and circumstances.

  2. For children (individuals under age 18) claiming supplemental security income (SSI) benefits based on disability, the applicable sequential evaluation process for determining disability is set forth in DI 25201.005. For claims of children for SSI based on disability, a finding required at a step in the sequential evaluation process includes a finding of:

    Step 1

    • Whether a claimant is working and, if so,

    • Whether the work the claimant is doing constitutes SGA;

    Step 2

    Whether a claimant has an impairment or a combination of impairments that is "severe;" and if so,

    Step 3

    • Whether a claimant’s impairment(s) meets the duration requirement,

    • Whether a claimant has an impairment(s) that meets a listed impairment in the Listing of Impairments,

    • Whether a claimant’s impairment(s) medically equals the severity of a listed impairment, and

    • Whether a claimant’s impairment(s) functionally equals the severity of a listed impairment.

    A prior individualized functional assessment cannot be evaluated as evidence because there has been a change in the law and regulations eliminating the step from the sequential evaluation process for children.

    A prior finding at step 3 that was based on consideration of former listing section 112.02B2c(2) cannot be evaluated as evidence because this section has been eliminated by a change in the law and regulations.

    NOTE: This AR does not apply when the prior ALJ or AC decision was made for a supplemental security income claimant who was then under age 18, but who has since attained age 18 and must be evaluated as an adult.

2. Decision by an ALJ or AC on prior claim

For purposes of the Albright AR, a decision by an ALJ or the AC on a prior disability claim is a decision which found the claimant not disabled in connection with a prior claim (i.e., a denial, cessation, or an award of a closed period of disability) or a decision which found the claimant disabled in connection with a prior claim (e.g., where the subsequent claim was filed following termination of entitlement/eligibility for nondisability reasons). If a final ALJ or AC decision contains findings described in DI 52715.010B.1., the adjudicator must apply the AR with respect to such findings when adjudicating the subsequent claim. Albright does not apply to decisions made by attorney advisors or Office of Disability Adjudication and Review (ODAR) screening units.

3. Final ALJ or AC decision

An ALJ or AC decision becomes final as of the date of notice unless:

  • It is appealed timely (or a civil action is filed); or

  • It is appealed late but good cause for late filing of an appeal or civil suit is found; or

  • In the case of an ALJ decision, the AC takes jurisdiction on its own motion within 60 days of the date of the ALJ decision; or

  • The decision is reopened and revised.

4. Interim period cases

Interim period cases are cases where notice of the final determination or decision on an individual’s subsequent disability claim is dated 4/22/99 (the date of the Albright court decision) through 1/11/00 (the day before publication of the AR).

5. Post-Publication cases

Post-publication cases are cases where the notice of the determination or decision on a subsequent claim is dated 1/12/00, or later, including subsequent cases pending as of 1/12/00.

C. Procedure

1. Interim period case

  1. Generally, the claimant in an interim period case must request application of the AR to the subsequent claim that was adjudicated in the determination or decision in the interim period, and must demonstrate that application of the AR could change such prior determination or decision (see DI 52715.010C.1.b. for exception). A claimant may demonstrate this by submitting a statement that cites the AR or the holding or portion of the circuit court decision which could change the prior determination or decision. The determination as to whether application of the AR could change the final determination or decision on the claim will be made at the level of adjudication that made the determination or decision on the claim. If the claimant demonstrates that application of the AR could change the final determination or decision to be more favorable to the claimant, the claim must be readjudicated at the same level it was last adjudicated in accordance with the AR. (See GN 03501.015 for readjudication procedure.)

    EXAMPLE: The claimant's title II disability claim was denied in an initial determination by the disability determination services (DDS) on 5/12/99 and the claimant did not appeal the determination. An earlier title II disability claim of the individual was denied in a final decision by an ALJ on 7/24/95. The claimant may request that the 5/12/99 determination be readjudicated under the Albright Ruling because this denial did not consider the findings made by the ALJ in the 7/24/95 decision in the manner provided under the AR.

    To determine whether application of the AR could change the final determination made by the DDS on 5/12/99, the adjudicator would consider the findings described in DI 52715.010B.1. contained in the 7/24/95 ALJ decision, and would determine whether treating such prior findings as evidence to be weighed along with the evidence that was considered by the DDS in its final determination of 5/12/99, could change such determination on the claimant's subsequent claim. Under the AR, any such prior finding must be considered evidence and given appropriate weight in light of all relevant facts and circumstances in determining disability with respect to the subsequent claim. In determining the weight to be given such a prior finding by the ALJ, the adjudicator will consider the factors described in DI 52715.010A.2.d. and DI 52715.010A.2.e. and DI 52715.020B.4.

    When a request for readjudication of an interim period case must be denied, provide the claimant an explanation as to why he/she is not covered by the AR, or why application of the AR would not favorably change the prior determination. (See DI 52715.030 for notice instructions.)

  2. If an interim period case to which the AR could apply is discovered in the course of development/adjudication of a current disability claim of the individual, and it is determined that application of the AR would change the final determination or decision on the prior (i.e. interim period) claim to be fully or partially favorable, readjudicate the prior claim (or, if applicable, refer the prior claim to ODAR for consideration of possible readjudication) in accordance with the AR even if the claimant has not specifically requested application of the AR to the prior claim.

    NOTE: The determination as to whether application of the AR could change the final determination or decision on a claim in an interim period case, and any readjudication of such claim under the AR, must be made at the same level of administrative review that made the final determination or decision on the claim.

2. Post-Publication cases

Determine if the AR applies. If it does, adjudicate the claim in accordance with the AR. Examples of application of the AR when there are multiple prior ALJ or AC decisions are found in DI 52715.020B.2.d. If there are two or more prior claims with final ALJ or AC decisions, adjudicate the current claim under the Albright AR as provided in DI 52715.020B.2.d. The most recent ALJ or AC decision is usually considered when applying the Albright AR. Interim period cases have different instructions that are covered above.

3. Application of the Albright AR to drug addiction and alcoholism (DAA) cases and claims of children for SSI based on disability

  1. Consider AR 00-1(4) in deciding a subsequent disability claim with an unadjudicated period arising under the same or different title of the Act as a prior disability claim on which there was a decision by an ALJ or the AC that has become final. DAA redeterminations under Pub. L. 104-121 and SSI childhood disability redeterminations under Pub. L. 104-193 are considered subsequent claims (and not continuing disability determinations) for purposes of AR 00-1(4).

  2. See DI 52715.010 B.1.b for a description of the findings to be considered under the AR in adjudicating subsequent SSI childhood disability claims and SSI childhood disability redeterminations under Pub. L. 104-193.

  3. When an individual with DAA (including a child under SSI) is found disabled considering the effects of DAA, a determination must then be made excluding the effects of DAA to determine whether DAA is material to the finding of disability. See DI 90070.050 and sections 404.1535 and 416.935 of the regulations. Adjudicators must use a two-part process. First, they must follow the sequential evaluation process, considering all of a claimant’s impairments, including DAA, to determine whether the claimant is disabled. Second, if the claimant is found disabled under the first part of the process, adjudicators must again follow the sequential evaluation process, but without considering the effects of the DAA, to determine whether the claimant would be found disabled if he/she were no longer using drugs or alcohol. If the individual would not be found disabled under the second part of the process, DAA is material to the determination of disability. If the individual would be found disabled, DAA is not material. Thus, when there is a prior final decision in which:

    • An ALJ or the AC made findings required at steps in the sequential evaluation process and found that an individual with DAA is disabled, considering the effects of DAA, and

    • · The ALJ or AC made separate findings following the steps in the sequential evaluation process by considering the individual’s condition without the effects of DAA to decide whether DAA was material to the determination of disability,

    THEN the adjudicator(s) must consider the findings from both parts of the two-part DAA process when adjudicating a DAA case (applying the same two-part process) under the requirements of AR 00-1(4).

  4. If the ALJ or AC has stated a conclusion in the prior decision that DAA was material, or that DAA was not material, to the determination of disability, but has not set out findings showing how this conclusion was reached under the second part of the process, there will be no findings that are relevant to the decision whether an individual’s DAA is material to the determination of disability.

  5. In adjudicating the subsequent claim, consider the prior findings described in DI 52715.010B.1. from the ALJ’s or AC’s determination about whether the individual is disabled under the first part of the DAA process, and treat such prior findings as evidence to be weighed along with the other evidence in the subsequent claim in determining disability under the first part of the DAA process. If the claimant is determined to be disabled under the first part of the DAA process, consider prior findings described in DI 52715.010B.1. from the ALJ's or AC's determination about whether the individual is disabled under the second part of the DAA process and treat such prior findings as evidence to be weighed along with the other evidence in the subsequent claim in determining disability under the second part of the DAA process.

    EXAMPLE: The claimant alleged disability due to a heart condition and alcohol dependence and was found disabled in a final decision by an ALJ. The ALJ first considered all of the claimant's impairments, including his alcoholism, under the 5-step sequential evaluation process. The ALJ found the claimant's impairments to be severe but not listing level. The ALJ found that the claimant was unable to do any past relevant work and that based on his age, education, work experience and RFC, the claimant was disabled at step 5 of the sequential evaluation process. The ALJ then applied the second part of the DAA process and made findings under the sequential evaluation process considering the claimant's heart condition, but not his alcohol dependence. The ALJ determined that in the absence of the claimant's alcoholism, his heart condition was by itself not disabling. Therefore, DAA was material to the determination of disability.

    In adjudicating the subsequent claim, the adjudicator will consider the findings described in DI 52715.010B.1. which were made by the ALJ in the decision regarding disability under the first part of the DAA process, and will treat such a prior finding as evidence to be weighed along with the other evidence in the subsequent claim in making a determination regarding disability under the first part of the DAA process. If the claimant is determined disabled under the first part of the DAA process, the adjudicator will consider the findings described in DI 52715.010B.1. from the ALJ's disability decision under the second part of the DAA process, and will treat such a prior finding as evidence to be weighed along with other evidence in the subsequent claim in making the disability determination under the second part of the DAA process. Under the AR, any prior finding described in DI 52715.010B.1.a. or DI 52715.010B.1.b., as applicable, must be considered evidence and given appropriate weight in light of all relevant