I. Purpose
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now rescinded AR 94-2(4) required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.
II. Background
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.”