64038 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Notices

1 Under the Social Security Independence and

Program Improvements Act of 1994, Pub. L. No.

103-296, effective March 31, 1995, SSA became an

independent Agency in the Executive Branch of the

United States Government and was provided

ultimate responsibility for administering the Social

Security and Supplemental Security Income

programs under titles II and XVI of the Act. Prior

to March 31, 1995, the Secretary of Health and

Human Services had such responsibility.

2 Although Chavez was a title II case, similar

principles also apply to title XVI. Therefore, this

Ruling extends to both title II and title XVI

disability claims.

SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 97-

4(9)]

Chavez v. Bowen; Effect of a Prior

Final Decision That a Claimant is Not

Disabled, And of Findings Contained

Therein, On Adjudication of a

Subsequent Disability Claim Arising

Under the Same Title of the Social

Security Act—Titles II and XVI of the

Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security

Acquiescence Ruling.

SUMMARY: In accordance with 20 CFR

402.35(b)(2), the Acting Commissioner

of Social Security gives notice of Social

Security Acquiescence Ruling 97-4(9).

EFFECTIVE DATE: December 3, 1997.

FOR FURTHER INFORMATION CONTACT:

Gary Sargent, Litigation Staff, Social

Security Administration, 6401 Security

Boulevard, Baltimore, MD 21235, (410)

965-1695.

SUPPLEMENTARY INFORMATION: Although

not required to do so pursuant to 5

U.S.C. 552(a)(1) and (a)(2), we are

publishing this Social Security

Acquiescence Ruling in accordance

with 20 CFR 402.35(b)(2).

A Social Security Acquiescence

Ruling explains how we will apply a

holding in a decision of a United States

Court of Appeals that we determine

conflicts with our interpretation of a

provision of the Social Security Act (the

Act) or regulations when the

Government has decided not to seek

further review of that decision or is

unsuccessful on further review.

We will apply the holding of the

Court of Appeals decision as explained

in this Social Security Acquiescence

Ruling to claims at all levels of

administrative adjudication within the

Ninth Circuit. This Social Security

Acquiescence Ruling will apply to all

determinations and decisions made on

or after December 3, 1997. If we made

a determination or decision on your

application for benefits between April

19, 1988, the date of the Court of

Appeals decision, and December 3,

1997, the effective date of this Social

Security Acquiescence Ruling, you may

request application of the Ruling to your

claim if you first demonstrate, pursuant

to 20 CFR 404.985(b) or 416.1485(b),

that application of the Ruling could

change our prior determination or

decision.

If this Social Security Acquiescence

Ruling is later rescinded as obsolete, we

will publish a notice in the Federal

Register to that effect as provided for in

20 CFR 404.985(e) or 416.1485(e). If we

decide to relitigate the issue covered by

this Social Security Acquiescence

Ruling as provided for by 20 CFR

404.985(c) or 416.1485(c), we will

publish a notice in the Federal Register

stating that we will apply our

interpretation of the Act or regulations

involved and explaining why we have

decided to relitigate the issue.

(Catalog of Federal Domestic Assistance

Program Nos. 96.001 Social Security -

Disability Insurance; 96.002 Social Security -

Retirement Insurance; 96.004 Social Security

- Survivors Insurance; 96.005 Special

Benefits for Disabled Coal Miners; 96.006

Supplemental Security Income.)

Dated: September 17, 1997.

John J. Callahan,

Acting Commissioner of Social Security.

Acquiescence Ruling 97-4(9)

Chavez v. Bowen, 844 F.2d 691 (9th

Cir. 1988)—Effect of a Prior Final

Decision That a Claimant is Not

Disabled, And of Findings Contained

Therein, On Adjudication of a

Subsequent Disability Claim Arising

Under the Same Title of the Social

Security Act—Titles II and XVI of the

Social Security Act.

Issue: Whether, in making a disability

determination or decision on a

subsequent disability claim with respect

to an unadjudicated period, where the

claim arises under the same title of the

Social Security Act (the Act) as a prior

claim on which there has been a final

decision by an Administrative Law

Judge (ALJ) or the Appeals Council that

the claimant is not disabled, the Social

Security Administration (SSA)1 must:

(1) apply a presumption of continuing

nondisability and, if the presumption is

not rebutted by the claimant, determine

that the claimant is not disabled; and (2)

if the presumption is rebutted, adopt

certain findings required under the

applicable sequential evaluation process

for determining disability, made in the

final decision by the ALJ or the Appeals

Council on the prior disability claim.2

Statute/Regulation/Ruling Citation:

Sections 205(a) and 702(a)(5) of the

Social Security Act (42 U.S.C. 405(a)

and 902(a)(5)), 20 CFR 404.900,

404.957(c)(1), 416.1400, 416.1457(c)(1).

Circuit: Ninth (Alaska, Arizona,

California, Guam, Hawaii, Idaho,

Montana, Nevada, Northern Mariana

Islands, Oregon, Washington)

Chavez v. Bowen, 844 F.2d 691 (9th

Cir. 1988)

Applicability of Ruling: This Ruling

applies to determinations or decisions at

all administrative levels (i.e., initial,

reconsideration, ALJ hearing and

Appeals Council).

Description of Case: Mr. Chavez first

applied for disability insurance benefits

on June 1, 1982. On March 30, 1983, an

ALJ awarded Mr. Chavez a closed

period of disability from March 3, 1981,

through May 1982. In determining that

disability had ended, the ALJ found

that, although Mr. Chavez could not

perform his past relevant work, he was

able to engage in a wide range of at least

light substantial gainful activity. Mr.

Chavez did not appeal this decision.

Therefore, it became final and binding.

On July 18, 1983, Mr. Chavez filed

another application for disability

insurance benefits. In a decision dated

May 10, 1984, an ALJ found that Mr.

Chavez could perform work-related

activities except for work involving

constant standing, walking, and lifting,

and carrying more than 20 pounds. The

ALJ then found that Mr. Chavez’s past

work as a backhoe operator did not

require excessive standing and lifting

and that his impairments therefore did

not prevent him from resuming his past

work. The decision made no reference

to the findings of the first ALJ. This

decision became the final decision of

the Secretary.

Upon appeal, the district court

granted the Secretary’s motion for

summary judgment. The district court

found that substantial evidence

supported the finding that the claimant

could perform light work and, therefore,

was not disabled. Mr. Chavez appealed

this decision to the United States Court

of Appeals for the Ninth Circuit.

Holding: The Ninth Circuit stated

that:

The principles of res judicata apply to

administrative decisions, although the

doctrine is applied less rigidly to

administrative proceedings than to

judicial proceedings. The claimant, in

order to overcome the presumption of

continuing nondisability arising from

the first administrative law judges’s

findings of nondisability, must prove

‘‘changed circumstances’’ indicating a

greater disability. (Citations omitted.)

The court then found that Mr.

Chavez’s ‘‘attainment of ‘advanced age’

constitutes a changed circumstance

precluding the application of res
Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Notices 64039

judicata to the first administrative law

judge’s ultimate finding against

disability.’’ In addition, the court

concluded that ‘‘[t]he first

administrative law judge’s findings

concerning the claimant’s residual

functional capacity, education, and

work experience are entitled to some res

judicata consideration in subsequent

proceedings.’’

Statement As To How Chavez Differs

From Social Security Policy

Under SSA policy, if a determination

or decision on a disability claim has

become final, the Agency may apply

administrative res judicata with respect

to a subsequent disability claim under

the same title of the Act if the same

parties, facts and issues are involved in

both the prior and subsequent claims.

However, if the subsequent claim

involves deciding whether the claimant

is disabled during a period that was not

adjudicated in the final determination

or decision on the prior claim, SSA

considers the issue of disability with

respect to the unadjudicated period to

be a new issue that prevents the

application of administrative res

judicata. Thus, when adjudicating a

subsequent disability claim involving an

unadjudicated period, SSA considers

the facts and issues de novo in

determining disability with respect to

the unadjudicated period. SSA does not

adopt findings from the final

determination or decision on the prior

disability claim in determining whether

the claimant is disabled with respect to

the unadjudicated period. Further,

under SSA policy, a prior final

determination or decision that a

claimant is not disabled does not give

rise to any presumption of a continuing

condition of nondisability. When a

subsequent claim involves an

unadjudicated period, the determination

or decision as to whether a claimant is

disabled with respect to that period is

made on a neutral basis, without any

inference or presumption that a

claimant remains ‘‘not disabled.’’

The United States Court of Appeals

for the Ninth Circuit held that a final

decision by an ALJ that a claimant is not

disabled gives rise to a presumption that

the claimant continues to be not

disabled after the period adjudicated,

and that this presumption of continuing

nondisability applies when adjudicating

a subsequent disability claim with an

unadjudicated period arising under the

same title of the Act as the prior claim.

In order to rebut the presumption of

continuing nondisability, a claimant

must prove ‘‘‘changed circumstances’

indicating a greater disability.’’ In

addition, the court indicated that where

the claimant rebuts the presumption by

proving a ‘‘changed circumstance,’’

principles of res judicata require that

certain findings contained in the final

decision by the ALJ on the prior claim

be given some res judicata consideration

in determining whether the claimant is

disabled with respect to the

unadjudicated period involved in the

subsequent claim. The court concluded

that where the final decision by the ALJ

on the prior claim, which found the

claimant not disabled, contained

findings of the claimant’s residual

functional capacity, education, and

work experience, SSA may not make

different findings in adjudicating the

subsequent disability claim unless there

is new and material evidence relating to

the claimant’s residual functional

capacity, education or work experience.

Explanation of How SSA Will Apply

The Chavez Decision Within The Circuit

This Ruling applies only to disability

cases involving claimants who reside in

Alaska, Arizona, California, Guam,

Hawaii, Idaho, Montana, Nevada,

Northern Mariana Islands, Oregon or

Washington at the time of the

determination or decision on the

subsequent claim at the initial,

reconsideration, ALJ hearing or Appeals

Council level. It applies only to cases

involving a subsequent disability claim

with an unadjudicated period arising

under the same title of the Act as a prior

claim on which there has been a final

decision by an ALJ or the Appeals

Council that the claimant is not

disabled.

When adjudicating the subsequent

claim involving an unadjudicated

period, 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. A claimant may rebut

the presumption by showing a ‘‘changed

circumstance’’ affecting the issue of

disability with respect to the

unadjudicated period, e.g., 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.

If the claimant rebuts the

presumption, adjudicators then must

give effect to certain findings, as

explained below, contained in the final

decision by an ALJ or the Appeals

Council on the prior claim, when

adjudicating the subsequent claim. For

this purpose, this Ruling applies only to

a finding of a claimant’s residual

functional capacity, education, or work

experience, 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, or a finding

required under the evaluation process

for determining disability provided

under 20 CFR 404.1578, as appropriate,

which was made in the final decision on

the prior disability claim. Adjudicators

must adopt such a finding from the final

decision on the prior claim in

determining whether the claimant is

disabled with respect to the

unadjudicated period unless there is

new and material evidence relating to

such a finding or there has been a

change in the law, regulations or rulings

affecting the finding or the method for

arriving at the finding.

[FR Doc. 97–31591 Filed 12–2–97; 8:45am]

BILLING CODE 4190–29–F

OFFICE OF THE UNITED STATES

TRADE REPRESENTATIVE

[Docket No. 301–116]

Cancellation of Public Hearing in

Section 302 Investigation: Honduran

Protection of Intellectual Property

Rights

AGENCY: Office of the United States

Trade Representative.

ACTION: Notice.

SUMMARY: On October 31, 1997, the

United States Trade Representative

(USTR) initiated an investigation under

section 302(b) of the Trade Act of 1974

with regard to acts, policies, and

practices of the Government of

Honduras with respect to the protection

of intellectual property rights, and

proposed to determine that these acts,

policies and practices are actionable

under section 301(b) and that the

appropriate response is a partial

suspension of tariff preference benefits

accorded to Honduras under the

Generalized System of Preferences

(GSP) and Caribbean Basin Initiative

(CBI) programs (62 FR 60299 of

November 7, 1997). The annex to that

notice set forth a list of articles of

Honduras which could be subject to the

suspension of tariff preference benefits.

The USTR also invited interested

persons to submit written comments

and to participate in a public hearing on

December 4, 1997, concerning the

proposed determinations and action.

Due to a lack of response, the December

4, 1997 hearing is hereby canceled.

Written comments are still due by

December 10, 1997.