Rescission of Social Security Acquiescence Rulings 95-1(6), 99-2(8) and 99-3(5)

AGENCY:

Social Security Administration.

ACTION:

Notice of rescission of Social Security Acquiescence Rulings 95-1(6)—Preslar v. Secretary of Health and Human Services, 14 F.3d 1107 (6th Cir. 1994); 99-2(8)—Kerns v. Apfel, 160 F.3d 464 (8th Cir. 1998); 99-3(5)—McQueen v. Apfel, 168 F.3d 152 (5th Cir. 1999).

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 Rulings 95-1(6), 99-2(8) and 99-3(5).

EFFECTIVE DATE:

The rescission of these Acquiescence Rulings 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As provided by 20 CFR 404.985(e)(4) and 416.1485(e)(4), a Social Security Acquiescence Ruling may be rescinded as obsolete if we subsequently clarify, modify or revoke the regulation or ruling that was the subject of the circuit court holding for which the Acquiescence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 May 4, 1995, we issued Acquiescence Ruling 95-1(6) (60 FR 22091) to reflect the holding in Preslar v. Secretary of Health and Human Services, 14 F.3d 1107 (6th Cir. 1994). On March 11, 1999, we issued Acquiescence Ruling 99-2(8) (64 FR 12205) to reflect the holding in Kerns v. Apfel, 160 F.3d 464 (8th Cir. 1998). On May 27, 1999, we issued Acquiescence Ruling 99-3(5) (64 FR 28853) to reflect the holding in McQueen v. Apfel, 168 F.3d 152 (5th Cir. 1999). These circuit court holdings interpreted 20 CFR 404.1563(d) to require the Social Security Administration (SSA) to make an additional finding regarding the marketability of a claimant's skills in order to determine whether the skills of a claimant close to retirement age (age 60-64) are transferable to sedentary or light work. These courts held that in the absence of a finding by SSA that the skills of such an individual are “highly marketable,” SSA may not conclude that the claimant possesses transferable skills and is not disabled.

We indicated in each of the Acquiescence Rulings that we intended to clarify the regulations at issue in the court decisions, 20 CFR 404.1563 and 416.963, through the rulemaking process, and that we may rescind the Acquiescence Rulings once we revise the regulations. On August 4, 1999, we published proposed rules with a notice of proposed rulemaking in the Federal Register (64 FR 42310) to clarify the regulations that were the subject of the circuit court holdings. We are now publishing final rules in this issue of the Federal Register.

We are publishing this notice of rescission of the Acquiescence Rulings concurrently with our publication of final rules which revise 20 CFR 404.1563 and 416.963. The final rules remove the reference to “highly marketable” skills contained in existing sections 404.1563(d) and 416.963(d). The final rules also add new sections 404.1568(d)(4) and 416.968(d)(4) to clarify our original intent to apply the standard in sections 201.00(f) and 202.00(f) of the medical-vocational guidelines (20 CFR part 404, subpart P, appendix 2) to determine whether an individual who is age 60-64 and limited to sedentary or light work possesses transferable skills and, therefore, is able to make an adjustment to other work. The final rules will go into effect May 8, 2000.

Because the final rules eliminate the regulatory provision upon which the holdings in Preslar, Kerns and McQueen are based and clarify how we evaluate the transferability of skills for older workers, including those close to retirement age (age 60-64), we are rescinding Acquiescence Rulings 95-1(6), 99-2(8) and 99-3(5). We are rescinding these Acquiescence Rulings effective May 8, 2000, the date the final rules go into effect. By revising our regulations and rescinding these Acquiescence Rulings, 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).