Technical Amendments to Definition of Persons Closely Approaching Retirement Age

AGENCY:

Social Security Administration.

ACTION:

Final rules.

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 “60-64” 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 have any effect on how we determine your eligibility for benefits.

DATES:

These rules are effective October 29, 2008.

FOR FURTHER INFORMATION CONTACT:

Helen Droddy, Social Insurance Specialist, 922 Altmeyer Building, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-1483, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov .

SUPPLEMENTARY 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, § 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 § 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 §§ 404.1563(e), 404.1568(d)(4), part 404, subpart P, appendix 2, §§ 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 60-day 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 30-day 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 Security—Disability Insurance; 96.006, Supplemental Security Income.)

List of Subjects

20 CFR Part 404

• Administrative practice and procedure; Blind; Disability benefits; Old-Age
• 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)

For the reasons set out in the preamble, 20 CFR parts 404 and 416 are amended as follows:

PART 404—FEDERAL OLD-AGE, 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. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

2. Amend § 404.1563 to revise paragraph (e) to read as follows:

3. Amend § 404.1568 to revise the heading and the fifth sentence of paragraph (d)(4) to read as follows:

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 404—Medical-Vocational 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 § 404.1562(a) in this subpart and § 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 416—SUPPLEMENTAL 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. 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, and 1382h note).

6. Amend § 416.963 to revise paragraph (e) to read as follows:

7. Amend § 416.968 to revise the heading and the fifth sentence of paragraph (d)(4) to read as follows: