|- QUESTIONS AND ANSWERS|
IMPLEMENTATION OF THE LIVELY ACQUIESCENCE RULING
ISSUED: September 25, 1995
This Temporary Instruction provides, in question and answer format, guidance for implementing Social Security Acquiescence Ruling (AR) 94-2(4), Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th Cir. 1987), which the Commissioner of Social Security published in the Federal Register on July 7, 1994, and which was effective on publication.
On June 29, 1987, the United States Court of Appeals for the Fourth Circuit issued a decision in Lively, which involved a finding by an Administrative Law Judge (ALJ) on a 1983 application that the claimant had the residual functional capacity to perform work activity at any exertional level through December 31, 1981, the date that the claimant was last insured. Noting that another ALJ had found on an earlier application for disability insurance benefits that the claimant was limited to light work activity through the date of that ALJ's October 19, 1981 decision, the court found that the Secretary had a burden to demonstrate that the claimant's condition had improved sufficiently to indicate that he could perform at a greater exertional level, i.e., medium work, with respect to the period ending December 31, 1981. The Secretary did not appeal and, because the court's holding is contrary to SSA policy, SSA issued AR 94-2(4).
The attached questions and answers provide guidance for implementing the Lively 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) 305-0022. Headquarters personnel should contact the Division of Litigation Analysis and Implementation in the Office of Policy, Planning and Evaluation at 305-0708.
The Acquiescence Ruling (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 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 Lively 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 Lively 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)).
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 Lively 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 residual functional capacity (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 different than that made in the decision on the prior claim.
Does this 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?
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 with respect to each such finding made in the prior decision, the answer is “yes.” The sequential evaluation order of consideration is unchanged, but the initial question at each step is whether there is new and material evidence. If there is no new and material evidence, the adjudicator must adopt the prior finding. If there is new and material evidence with respect to a particular finding, the adjudicator must make a new finding based on all evidence pertinent to that finding.
Does this 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 why any new evidence is or is not material to a particular finding. 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.
Does this also mean that the notice of hearing must be tailored accordingly?
Yes. The notice of hearing and the ALJ's conduct of the hearing must reflect that, pursuant to the Lively AR, the threshold issue is whether there is new and material evidence that would change any finding required at a step in the applicable sequential evaluation process, which was made in the previous decision.
The AR indicates that it applies only to disability findings (i.e., a finding regarding a claimant's RFC 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: a finding as to whether a claimant's work activity constitutes substantial gainful activity (SGA) (step one); a finding concerning whether a claimant has an impairment or combination of impairments that is severe (step two); 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 three); findings regarding a claimant's RFC and the physical or mental demands of the claimant's past relevant work (step four); and findings regarding RFC, age, education and work experience (step five). 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 Lively AR, an adjudicator reviewing a subsequent claim must adopt a prior finding regarding RFC or other “required” finding unless there is new and material evidence relating to that finding. Absent such new and material evidence, 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, 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 statue, regulation, ruling or legal precedent that would bar application of res judicata would also bar application of the AR.
Must an adjudicator adopt a prior finding, in the absence of new and material evidence, 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 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?
The adjudicator must adopt each of the findings (with respect to which there is no new and material evidence) from the earliest final decision issued on or after June 29, 1987, the date of the court's decision in Lively. If there is more than one ALJ or Appeals Council decision issued before June 29, 1987, the adjudicator must adopt the findings of the most recent ALJ or Appeals Council decision that predates the Lively decision, absent new and material evidence relating to any such finding.
Assume that a claimant with a claim currently pending received ALJ decisions in 1988 and 1989 on two prior claims. The RFC found by the first ALJ was light, and medium by the second ALJ. 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.
Assume the same facts as example 1 and assume that the claimant had also filed two earlier claims that were denied by ALJs in 1985 and 1986. The ALJ who issued the 1985 decision found that the claimant was limited to light work and the ALJ who issued the 1986 decision found that the claimant was limited to sedentary work.
The 1985 and 1986 decisions predate the court's 1987 decision in Lively. Therefore, the findings from the 1985 decision were not binding on the 1986 proceedings because the Lively court had not issued its decision at the time the 1986 decision was issued. Therefore, the adjudicator of the current claim must first consider whether there was new and material evidence at the time of the 1988 decision that warranted finding a different RFC than the sedentary RFC found in the 1986 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 (June 29, 1987) and the AR publication date (July 7, 1994) 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.
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.
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 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, he or she 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.