I-5-4-66.Implementation of the Albright Acquiescence Ruling (Fourth Circuit)

Table of Contents
I Purpose
II Background
III Implementing Procedures
IV Inquiries
Attachment Questions and Answers

ISSUED: December 19, 2002

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 The now rescinded AR 94-2(4) required adjudicators of subsequent claims to adopt a finding required at a step in the sequential evaluation process which was made in a final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.”

III. Implementing Procedures

The attached questions and answers provide guidance for implementing the Albright AR.

IV. Inquiries

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.

Attachment. Questions and Answers

IMPLEMENTATION OF THE ALBRIGHT ACQUIESCENCE RULING

  1. What does the Albright AR require?

    The AR requires that, when adjudicating a subsequent disability claim with an unadjudicated period arising under the same or a different title of the Act as a prior claim on which there has been a final Administrative Law Judge (ALJ) or Appeals Council (AC) decision, an adjudicator must consider a required finding made at a step in the sequential evaluation process for determining disability in the prior claim as evidence and give it appropriate weight in light of all relevant facts and circumstances.

  2. What are the prior findings that must be considered as evidence under Albright AR?

    The Albright AR applies to a finding of a claimant's RFC or other findings required at a step in the sequential evaluation process for determining disability.

  3. When does the Albright AR apply?

    The AR applies to a claim pending at the initial, reconsideration, ALJ hearing or AC level when all of the following conditions are met:

    1. The adjudicator, on or after January 12, 2000, the effective date of the AR, is deciding a subsequent disability claim that involves an unadjudicated period and that arises under the same or a different title of the Act as a prior disability claim; and

    2. There was a decision by an ALJ or the AC on the prior disability claim and this decision has become final; and

    3. The final decision by the ALJ or the AC on the prior claim contains a finding of the claimant's residual functional capacity or other finding required at a step in the sequential evaluation process; and

    4. The claimant resides 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.

    NOTE:

    The AR may also apply to interim period cases. That is, in accordance with 20 CFR §§ 404.985(b)(2) or 416.1485(b)(2), a claimant may request application of the Albright AR to a disability claim where the notice of the final determination or decision on the subsequent disability claim is dated from April 22, 1999, the date of the Albright court decision, through January 11, 2000, the day before the effective date of the Albright AR. The Albright AR can also be applied to an interim period case when it is discovered by an adjudicator in the course of development/adjudication of a current claim and the adjudicator concludes (without any request from the claimant) that application of the AR would change the final determination or decision on the prior claim. See question 15 for more guidance on this situation.

    NOTE:

    For purposes of this 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). Albright does not apply to decisions made by attorney advisors or Office of Hearings and Appeals screening units.

  4. The Albright AR indicates that the adjudicator of a subsequent disability claim with an unadjudicated period must consider certain findings made in a final decision by an ALJ or the AC on a prior disability claim as evidence. How does an adjudicator of a subsequent claim determine the weight to be given to a prior finding?

    In determining the appropriate weight to give to a prior finding, the 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 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.

    NOTE:

    In addition, the adjudicator should consider if there has been a change in the law, regulations, or rulings affecting the finding or the method for arriving at the prior finding. If so, the prior finding should be given little to no weight in the subsequent decision as the prior finding would not have much evidentiary relevance. (See question 12.)

  5. Where the prior finding was about a fact which is subject to change with the passage of time, the Albright AR indicates that an adjudicator should give greater weight to a prior finding when the period adjudicated in the prior decision is close in time to the period being adjudicated in the current claim, and less weight to a prior finding as the proximity of the period adjudicated in the prior decision becomes more remote from the period being adjudicated in the current claim. How are “close in time” and “more remote” defined?

    The longer the time between the previous and subsequent decisions, the greater the likelihood for change. An example of “close in time” is a few weeks as in Lively. An example of “more remote” is where the relevant time period exceeded three years, as in Albright. In determining the weight to be given a prior finding concerning a fact subject to change over time, an adjudicator must consider all relevant details and circumstances on a case-by-case basis.

  6. The Albright 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:

    Step 1:

    		a finding as to whether a claimant is working; 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;

    Step 3:

    		a finding concerning whether a claimant's impairment(s) meets the duration requirement and a finding whether a claimant's impairment meets or medically equals a listed impairment in Appendix 1 to Subpart P of 20 CFR Part 404;

    Step 4:

    		a finding concerning whether claimant worked in the past and that work constituted past relevant work (PRW); a finding of the physical and mental demands of the claimant's PRW; a finding on the claimant's residual functional capacity (RFC); a finding on whether the claimant can perform PRW as he or she previously performed it or as it is generally performed in the national economy;

    Step 5:

    		a finding regarding a claimant's RFC; a finding of a claimant's age; a finding of a claimant's education; a finding of a claimant's PRW, including, as appropriate, the skill level of a claimant's PRW and whether a claimant's skills are transferable; a finding regarding other matters relevant to step 5, such as whether work exists in significant numbers; and a finding whether a claimant can do other work.

    NOTE:

    For findings required under the evaluation process for determining disability for a child applying for title XVI benefits based on disability, see 20 CFR § 416.924.

    NOTE:

    Where a final decision on a prior disability claim contains findings required at step 4 or 5, the adjudicator of the subsequent claim must consider as evidence all of the prior findings required at that step, not just the ultimate finding at that step. Accordingly, the weight to be given to a prior finding of whether a claimant can do PRW or other work will depend directly on the weight the adjudicator gives to the other findings described above required at step 4 or 5, on which the ultimate finding at such step was based, in light of all relevant facts and circumstances.

    NOTE:

    At step 2 SSR 96-3p, “Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment Is Severe” must be followed. However, the underlying subsidiary credibility determination regarding the symptoms alleged is not considered a required finding. See question 10.

  7. What are “non-static facts” and “static facts” and how must findings regarding such facts in prior ALJ or AC decisions be evaluated?

    Non-static facts are those that are subject to change with the passage of time (e.g., a fact relating to the severity of the claimant's medical condition or the findings of a claimant's RFC). Static facts, such as the mental and physical demands of a claimant's PRW or the skill level of the claimant's PRW, do not change with the passage of time. In general, give prior findings based upon static facts controlling weight in a subsequent disability claim unless evidence not considered in the prior decision provides a basis for making a different finding on the same issue of fact. In general, give more weight to prior findings on non-static facts when the previously adjudicated period is closer in time to the period currently being adjudicated. Give less weight to prior findings on non-static facts when the previously adjudicated period is distant in time to the period currently being adjudicated. The required sequential evaluation findings in prior ALJ or AC decisions are treated as evidence to be weighed along with the other evidence in the subsequent claim. Any evidence regarding facts that was not available at the time of the prior final decision by the ALJ or AC should be considered, as this new evidence could result in a different finding with respect to the period being adjudicated in the subsequent claim. In determining the weight to be given a prior finding, an adjudicator must consider all relevant facts and circumstances on a case-by-case basis.

  8. Does the requirement of the AR to consider prior findings as evidence affect the method of adjudication under the sequential evaluation process in determining disability with respect to the subsequent claim?

    Yes—to the extent that the adjudicator of the subsequent claim must first consider at each step a prior finding as evidence and give it appropriate weight. The sequential evaluation order of consideration is unchanged, but the initial question at each step when applying the Albright AR is how much evidentiary weight should be given to a prior finding that must be considered.

  9. Do the requirements of the AR concerning the consideration 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 what weight is being given a prior finding in light of all the relevant facts and circumstances. Decisions should discuss the type of fact (static or non-static) on which the prior finding was based. For a finding on a non-static fact, the time interval between the previously adjudicated period and the period currently being adjudicated and the likelihood of change in the non-static fact due to the time interval must be discussed. The extent to which evidence not considered in the prior decision provides a basis for making a different finding with respect to the period currently being adjudicated must be articulated.

  10. Is a finding regarding credibility considered to be a finding required at a step in the sequential evaluation process for the purposes of the Albright AR? How should prior credibility findings be treated?

    A finding regarding credibility is not considered to be a finding required at a step in the sequential evaluation process for the purposes of the Albright AR. According to footnote 5 of the Albright AR, in making certain “required” findings, such as RFC or other findings required to be made at a step in the sequential evaluation process, adjudicators may make “subsidiary” findings. The distinction made by the AR between “required” and “subsidiary” is subtle. For example, in making a “required” finding of a claimant's RFC, an adjudicator may make a “subsidiary” finding concerning the credibility of a claimant's testimony or statements. But since a subsidiary finding does not constitute a finding that is required at a step in the sequential evaluation process, the Albright AR does not apply. Adjudicators should note that SSR 96-3p requires that allegations of pain and other symptoms be considered in making the required finding of whether a medically determinable impairment is severe. However, the underlying subsidiary credibility determination regarding the allegations is not considered a “required” finding.

  11. Does the AR apply if the prior ALJ or AC final decision was issued for a Title XVI claimant who was then under age 18 and that claimant has since attained the age of 18 and has a subsequent claim as an adult, arising under the same title of the Act as the prior claim?

    No. The Albright 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) are not identical to the requirements for disability on a subsequent claim (e.g., a current title XVI adult disability claim).

  12. How should an adjudicator weigh a prior finding if it was based on a now obsolete standard?

    Give it little to no weight. Any change in statute, regulation, ruling or legal precedent that would prevent use of res judicata to dictate a result would also bar application of the AR with respect to the particular, prior finding affected by the change. Under the AR, if there has been a change in the legal standard, the prior finding would have little value as evidence in adjudicating the subsequent claim. If the new criteria are different from those in effect at the time of the previous decision, a new standard is involved. Therefore, the adjudicator will give little to no weight to the prior finding when making a finding with respect to the unadjudicated period involved in the subsequent claim. This is true, regardless of whether the current standard is more, or less, favorable to the claimant than the now obsolete standard.

  13. How does the AR apply if there is more than one prior claim with a final ALJ or Appeals Council decision?

    The answer depends on when the final ALJ or AC decisions on the prior claims were issued.

    • IF the most recent ALJ or AC decision was issued before 4/22/99 (the date of the Albright court decision), THEN consider sequential evaluation findings only from the most recent ALJ or AC decision.

    • IF the most recent ALJ or AC decision was issued on or after 1/12/00 (effective date of the Albright AR), THEN consider sequential evaluation findings only from the most recent ALJ or AC decision.

    • IF the most recent ALJ or AC decision was issued during the period from 4/22/99-1/11/00 (an interim period case) and there is another pre-Albright ALJ or AC decision (i.e., issued before 4/22/99), THEN consider sequential evaluation findings from both decisions.

    • IF the most recent ALJ or AC decision was issued during the period from 4/22/99-1/11/00 (an interim period case) and there are two or more pre-Albright ALJ or AC decisions, THEN consider sequential evaluation findings from the interim period case and the most recent pre-Albright ALJ or AC decision.

  14. How should a subsequent concurrent claim be adjudicated if there is a previous ALJ or AC decision made in connection with a single claim under one title?

    First adjudicate the new claim that is under the same title of the Act as the claim decided in the ALJ or AC decision in conformity with the AR. If the AR applies, consider as evidence any of the required sequential evaluation findings from the ALJ or AC decision in determining disability on the new claim under the same title as the prior claim and give any such finding appropriate weight in light of all relevant facts and circumstances. The determination on the issue of disability on this new claim then may be adopted for the same period for the concurrent claim under the other title, provided that the same rules for determining disability apply.

  15. When will the Albright AR be applied to a claim in an interim period case (from 4/22/99 through 1/11/00)?

    The Albright AR will be applied to interim period case claims under two scenarios:

    • An individual requests application of the AR to the interim period claim and demonstrates that application of the ruling could change the final determination or decision on the claim; or

    • The interim period case is discovered by an adjudicator in the course of development/adjudication of a current claim of the individual and the adjudicator concludes (without any request from the claimant) that application of the AR would change the final determination or decision on the prior claim. Although 20 CFR §§ 404.985(b) and 416.1485(b) provide for application of the AR based on a request by the claimant, these regulations do not preclude SSA from taking such action on its own initiative.

    Note that the application of the AR to a claim under the Albright AR in an interim period case is different from the rules for reopening and revising final determinations or decisions. A claim on which there was a final determination or decision in the interim period may be readjudicated under the AR even though the 4-year rule (title II) or 2-year rule (title XVI) for reopening does not apply.

  16. Are Drug Addiction and Alcoholism (DAA) redeterminations under Pub. L. No. 104-121 considered subsequent claims for purposes of the Albright AR? Is a conclusion that DAA “is material” or “is not material” a finding that is required at a step in the sequential evaluation process for purposes of the Albright AR?

    DAA redeterminations are considered subsequent claims for the purposes of the Albright AR. When an individual with DAA 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. 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 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.

    When there is a prior decision in which an ALJ or the AC has set out findings showing how the conclusions were reached for both of these steps in the sequential evaluation process, then the adjudicator of a subsequent claim must consider the findings from both parts of this two-part process when adjudicating a DAA case under the requirements of the Albright AR. If there is a prior decision in which an ALJ or the AC has stated a conclusion 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, then there will be no findings that are relevant to the decision of whether an individual's DAA is material to the determination of disability.

    In adjudicating the subsequent claim, consider and give appropriate weight to the prior required findings from the ALJ's or the AC's decision about whether the individual is disabled, 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 the prior required findings under the second part of the DAA process and treat such 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.

  17. 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 final ALJ or AC decision on the prior claim. Therefore, the adjudicator should attempt to obtain a copy of the prior ALJ or AC decision from the claimant, the representative, or the ALJ or AC files. Generally, findings for unfavorable and partially favorable ALJ and AC decisions are summarized within the narrative of the decision. These findings must be considered as evidence and given appropriate weight, as set forth in the Albright AR. Adjudicators must explain in the personalized disability notice, or in the rationale, the basis for the weight given to the relevant finding(s).

    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.