Federal Register: October 29, 2008 (Volume 73, Number 210)
DOCID: fr29oc08-5 FR Doc E8-25532
SOCIAL SECURITY ADMINISTRATION
Social Security Administration
CFR Citation: 20 CFR Parts 404 and 416
Docket ID: [Docket No. SSA-2008-0031]
RIN ID: RIN 0960-AG68
NOTICE: RULES
DOCID: fr29oc08-5
DOCUMENT ACTION: Final rules.
SUBJECT CATEGORY:
Technical Amendments to Definition of Persons Closely Approaching Retirement Age
DATES: These rules are effective October 29, 2008.
DOCUMENT SUMMARY:
We are modifying the rules we use to determine disability
under titles II and XVI of the Social Security Act (``Act'') to revise
the definition of persons ``closely approaching retirement age'' from
``6064'' to ``60 or older.'' These changes acknowledge that we make
disability determinations for persons over age 64. We are also making minor technical changes that will not
[[Page 64196]]
have any effect on how we determine your eligibility for benefits.
SUMMARY:
Technical Amendments to Definition of Persons Closely Approaching Retirement Age,
SUPPLEMENTAL INFORMATION
Electronic Version
The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/ index.html.
Background
We are finalizing, without change, the rules we proposed in the
Notice of Proposed Rulemaking (NPRM) published in the Federal Register
on June 20, 2008 (73 FR 35100). Additionally, we are amending
paragraphs (c) and (d) of part 404, subpart P, appendix 2, Sec. 203.00
to replace the words ``individual'' or ``individuals'' with ``person''
or ``persons,'' and to remove the term ``he or she.'' The sole purpose
of these changes is to provide linguistic consistency between Sec.
203.00 and other relevant sections. These changes are technical and
will not have any substantive effect on how we determine your eligibility for benefits.
Change to Definition of Persons ``Closely Approaching Retirement Age''
We regularly review our regulations to eliminate or modify any rules affected by legislative or policy changes. Legislative changes to the age at which persons reach full retirement age require that we process disability claims for persons who are over age 64. Therefore, we are modifying our rules at Sec. Sec. 404.1563(e), 404.1568(d)(4), part 404, subpart P, appendix 2, Sec. Sec. 202.00(f), and 203.00(c), 416.963(e), and 416.968(d)(4) to include persons over age 64 in the subcategory of those ``closely approaching retirement age'' for benefits based on disability under titles II and XVI of the Act. This modification will make the definition consistent with our definition of ``full retirement age'' and acknowledge that we make disability determinations for persons over age 64 under title XVI as well. The changes will not have any substantive effect on how we determine your eligibility for benefits.
When will we start to use these final rules?
We will implement these final rules upon publication. We will apply these rules to new applications filed on or after the effective date of these rules and to claims pending before us. We will also apply these final rules in those claims remanded to us from a Federal court. With respect to claims currently pending in Federal court, we expect that the court will review the Commissioner's final decision in accordance with the rules in effect at the time of that decision. If a court reverses the Commissioner's final decision and remands the case for further administrative proceedings after the publication of these final rules, we will apply the provisions of these final rules to the entire period at issue in the claim in our new decision.
Public Comments
In the NPRM we published in the Federal Register on June 20, 2008, we provided the public with a 60day comment period that ended on August 19, 2008. 73 FR 35100. We received one comment on the NPRM via the Federal eRulemaking portal at http://www.regulations.gov. We carefully considered the written comment and determined that it was outside the scope of the NPRM. Therefore, we did not adopt the comment nor publish a response.
Regulatory Procedures
We find good cause for dispensing with the 30day delay in the effective date of a substantive rule provided by 5 U.S.C. 553(d)(3). As explained above, these final rules only make technical corrections that help explain how we determine disability for persons who are over the age of 64. They have no substantive effect on how we determine your eligibility for benefits. However, without these changes, our rules will not reflect current law or our operating policy and procedures and, thus, may mislead the public. Accordingly, we believe that it is in the public interest to make these final rules effective on the date of publication.
Executive Order 12866, as Amended
We have consulted with the Office of Management and Budget (``OMB'') and determined that these rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Thus, they are not subject to OMB review.
Regulatory Flexibility Act
We certify that these final rules will not have a significant economic impact on a substantial number of small entities as they affect persons only. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
Paperwork Reduction Act
These rules do not impose any public reporting requirements subject to the Paperwork Reduction Act.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
SecurityDisability Insurance; 96.006, Supplemental Security Income.)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind; Disability benefits; OldAge, Survivors, and Disability Insurance; Reporting and recordkeeping requirements; Social security.
20 CFR Part 416
Administrative practice and procedure; Aged: Blind; Disability
benefits; Public assistance programs; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).
Dated: October 20, 2008.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the preamble, 20 CFR parts 404 and 416 are amended as follows:
PART 404FEDERAL OLDAGE, SURVIVORS AND DISABILITY INSURANCE (1950)
Subpart P[Amended]
1. The authority citation for subpart P of part 404 continues to read as follows:
Authority: Secs. 202, 205(a), (b), and (d)(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a), (b), and (d)(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108203, 118 Stat. 509 (42 U.S.C. 902 note).
2. Amend Sec. 404.1563 to revise paragraph (e) to read as follows: Sec. 404.1563 Your age as a vocational factor.
* * * * *
(e) Person of advanced age. We consider that at advanced age (age
55 or older), age significantly affects a person's ability to adjust to
other work. We have special rules for persons of advanced age and for persons in this category who are closely approaching
[[Page 64197]]
retirement age (age 60 or older). See Sec. 404.1568(d)(4). * * * * *
3. Amend Sec. 404.1568 to revise the heading and the fifth sentence of paragraph (d)(4) to read as follows:
Sec. 404.1568 Skill requirements.
* * * * *
(d) Skills that can be used in other work (transferability). * * *
(4) Transferability of skills for persons of advanced age. * * * If
you are closely approaching retirement age (age 60 or older) and you
have a severe impairment(s) that limits you to no more than light work,
we will find that you have skills that are transferable to skilled or
semiskilled light work only if the light work is so similar to your
previous work that you would need to make very little, if any,
vocational adjustment in terms of tools, work processes, work settings, or the industry. * * *
4. Amend part 404, subpart P, appendix 2, as follows:
a. In section 202.00, revise paragraph (f) to read as follows:
b. In section 203.00, revise paragraphs (b) and (c) to read as follows:
Appendix 2 to Subpart P of Part 404MedicalVocational Guidelines * * * * *
202.00 Maximum sustained work capability limited to light work
as a result of severe medically determinable impairment(s). * * * * *
(f) For a finding of transferability of skills to light work for
persons of advanced age who are closely approaching retirement age
(age 60 or older), there must be very little, if any, vocational
adjustment required in terms of tools, work processes, work settings, or the industry.
* * * * *
* * * * *
203.00 Maximum sustained work capability limited to medium work
as a result of severe medically determinable impairment(s). * * * * *
(b) The functional capacity to perform medium work represents
such substantial work capability at even the unskilled level that a
finding of disabled is ordinarily not warranted in cases where a
severely impaired person retains the functional capacity to perform
medium work. Even the adversity of advanced age (55 or over) and a
work history of unskilled work may be offset by the substantial work
capability represented by the functional capacity to perform medium
work. However, we will find that a person who (1) has a marginal
education, (2) has work experience of 35 years or more doing only
arduous unskilled physical labor, (3) is not working, and (4) is no longer able to do this kind of work because of a severe
impairment(s) is disabled, even though the person is able to do
medium work. (See Sec. 404.1562(a) in this subpart and Sec. 416.962(a) in subpart I of part 416.)
(c) However, the absence of any relevant work experience becomes
a more significant adversity for persons of advanced age (55 and
over). Accordingly, this factor, in combination with a limited
education or less, militates against making a vocational adjustment
to even this substantial range of work and a finding of disabled is
appropriate. Further, for persons closely approaching retirement age
(60 or older) with a work history of unskilled work and with
marginal education or less, a finding of disabled is appropriate.
PART 416SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED
Subpart I[Amended]
5. The authority citation for subpart I of part 416 continues to read as follows:
Authority: Secs. 221(m), 702 (a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383(b); secs. 4(c) and 5, 6(c)(e), 14(a), and 15, Pub. L.
98460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, and 1382h note).
6. Amend Sec. 416.963 to revise paragraph (e) to read as follows: Sec. 416.963 Your age as a vocational factor.
* * * * *
(e) Person of advanced age. We consider that at advanced age (age
55 or older), age significantly affects a person's ability to adjust to
other work. We have special rules for persons of advanced age and for
persons in this category who are closely approaching retirement age (age 60 or older). See Sec. 416.968(d)(4).
* * * * *
7. Amend Sec. 416.968 to revise the heading and the fifth sentence of paragraph (d)(4) to read as follows:
Sec. 416.968 Skill requirements.
* * * * *
(d) Skills that can be used in other work (transferability). * * *
(4) Transferability of skills for persons of advanced age. * * * If
you are closely approaching retirement age (age 60 or older) and you
have a severe impairment(s) that limits you to no more than light work,
we will find that you have skills that are transferable to skilled or
semiskilled light work only if the light work is so similar to your
previous work that you would need to make very little, if any,
vocational adjustment in terms of tools, work processes, work settings, or the industry. * * *
[FR Doc. E825532 Filed 102808; 8:45 am]
BILLING CODE 419102P
FOR FURTHER INFORMATION CONTACT
Helen Droddy, Social Insurance Specialist, 922 Altmeyer Building, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 212356401, (410) 9651483, for information about this notice. For information on eligibility or filing for benefits, call our national tollfree number, 18007721213 or TTY 18003250778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.