Rescission of Social Security Acquiescence Ruling 88-1(11)

AGENCY:

Social Security Administration.

ACTION:

Notice of rescission of Social Security Acquiescence Ruling 88-1(11)—Patterson v. Bowen, 799 F.2d 1455 (11th Cir. 1986), reh'g denied, (February 12, 1987).

SUMMARY:

In accordance with 20 CFR 402.35(b)(2), 404.985(e) and 416.1485(e) the Commissioner of Social Security gives notice of the rescission of Social Security Acquiescence Ruling 88-1(11).

EFFECTIVE DATE:

The rescission of the Acquiescence Ruling will be effective May 8, 2000.

FOR FURTHER INFORMATION CONTACT:

Gary Sargent, Litigation Staff, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410) 965-1695.

SUPPLEMENTARY INFORMATION:

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 or regulations when the Government has decided not to seek further review of the case or is unsuccessful on further review.

As provided by 20 CFR 404.985(e)(4) and 416.1485(e)(4), a Social Security Acquiescence Ruling may be rescinded as obsolete if we subsequently clarify, modify or revoke the regulation or ruling that was the subject of the circuit court holding for which the Acquiescence Ruling was issued.

On January 29, 1988, we issued Acquiescence Ruling 88-1(11) to reflect the holding in Patterson v. Bowen, 799 F.2d 1455 (11th Cir. 1986), reh'g denied, (February 12, 1987), regarding the consideration of a claimant's age as a vocational factor at the last step of the sequential evaluation process for determining disability. Acquiescence Ruling 88-1(11), Social Security Rulings (Cumulative Edition 1988, p. 123). The Eleventh Circuit interpreted 20 CFR 404.1563 and 416.963 to permit a claimant to offer evidence of his or her physical or mental impairments as proof that his or her ability to adapt to other work in terms of age alone is less than the level established under the medical-vocational guidelines for claimants of that age. The court held that such evidence, which the Social Security Administration (SSA) already considers in assessing a claimant's residual functional capacity, is relevant to the question of a claimant's ability to adapt to a new work environment, and that SSA must reevaluate such evidence when considering the effect of age on a claimant's ability to adapt to a new work environment.

We indicated in the Acquiescence Ruling that we intended to clarify the regulations at issue in this case through the rulemaking process and that the Ruling would continue to apply until such clarification was made. On August 4, 1999, we published proposed rules with a notice of proposed rulemaking in the Federal Register (64 FR 42310) to clarify our regulations on the consideration of age as a vocational factor. We are now publishing final rules in this issue of the Federal Register.

We are publishing this notice of rescission of Acquiescence Ruling 88-1(11) concurrently with our publication of final rules which revise 20 CFR 404.1563 and 416.963. The final rules remove the provision contained in existing sections 404.1563(a) and 416.963(a) that states, in part, that “Age refers to how old you are * * * and the extent to which your age affects your ability to adapt to a new work situation and to do work in competition with others.” The final rules revise sections 404.1563(a) and 416.963(a) to state explicitly that “age” means a claimant's “chronological age.” In addition, sections 404.1563(a) and 416.963(a) of the final rules explain that when we determine whether an individual is disabled at the last step of the sequential evaluation, we consider the individual's chronological age in combination with his or her residual functional capacity, education, and work experience to determine whether the individual is able to adjust to other work. The final rules will go into effect May 8, 2000.

Because the final rules clarify the regulations at issue in Patterson and explain that “age” means a claimant's “chronological age,” we are rescinding Acquiescence Ruling 88-1(11) effective May 8, 2000, the date the final rules go into effect. By revising our regulations and rescinding the Acquiescence Ruling, we are restoring uniformity to our nationwide system of rules in accordance with our commitment to the goal of administering our programs through uniform national standards as discussed in the preamble to the 1998 acquiescence regulations, 63 FR 24927 (May 6, 1998).

(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.)