Attachment. Questions and Answers

QUESTIONS AND ANSWERS

IMPLEMENTATION OF THE CHAVEZ ACQUIESCENCE RULING

1. 1. 

   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:

   1. a. 

      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

   2. b. 

      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

   3. c. 

      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

   4. d. 

      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.

2. 2. 

   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 the adjudicator's 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.

3. 3. 

   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.

4. 4. 

   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 HA 01290.040 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 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.

5. 5. 

   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.

6. 6. 

   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.

7. 7. 

   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.

8. 8. 

   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.

9. 9. 

   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).

10. 10. 

    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.

    NOTE: 

    In 2016, the agency removed the term “credibility” from our policy. As described in SSR 16-3p: Titles II and XVI: Evaluation of Symptoms in Disability Claims, adjudicators must evaluate an individual's symptoms using the two step process set forth in our regulations. An assessment of the claimant's symptoms does not constitute a “required” finding at a step in the sequential evaluation process for adjudicating disability described in 20 CFR 404.1520, 416.920, or 416.924.

11. 11. 

    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.

12. 12. 

    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 1988. 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 finding a 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.

13. 13. 

    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 their 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.

    NOTE: 

    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 20 CFR 404.987 – 404.996 and 416.1487 – 416.1494 and, therefore, not subject to the time limitations for reopening in those regulations.

14. 14. 

    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).

15. 15. 

    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, the adjudicator 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.