[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3959]


[[Page Unknown]]

[Federal Register: February 23, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration

 

Rescission of Social Security Acquiescence

AGENCY: Social Security Administration, HHS.

ACTION: Notice of Rescission of Social Security Acquiescence Ruling 88-
5(1)--McCuin v. Secretary of Health and Human Services, 817 F.2d 161 
(1st Cir. 1987).

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SUMMARY: In accordance with 20 CFR 404.985(e), 416.1485(e) and 
422.406(b)(2), published January 11, 1990 (55 FR 1012), the Principal 
Deputy Commissioner of Social Security gives notice of the rescission 
of Social Security Acquiescence Ruling 88-5(1).

EFFECTIVE DATE: February 23, 1994.

FOR FURTHER INFORMATION CONTACT: Darlynda Bogle, Litigation Staff, 
Social Security Administration, 6401 Security Blvd., Baltimore, MD 
21235, (410) 965-4237.

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Security Acquiescence Ruling may be rescinded as obsolete if we 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 October 27, 1988, we issued Acquiescence Ruling (AR) 88-5(1) to 
reflect the holding in McCuin v. Secretary of Health and Human 
Services, 817 F.2d 161 (1st Cir. 1987), that, once the 60-day period 
for the Appeals Council's own-motion review had expired, the 
Secretary's reopening regulations (20 CFR 404.987, 404.988, 416.1487 
and 416.1488)1 allowed reopening of an Administrative Law Judge 
(ALJ) decision only on the claimant's motion. Accordingly, under the 
McCuin AR, where an ALJ's decision had become final, (i.e., the time 
for requesting Appeals Council review of the decision had expired and 
no request for such review had been filed by the claimant and the 
Appeals Council had not taken own-motion review within the 60-day time 
limit), the Appeals Council could not reopen and revise the decision on 
its own initiative under the Secretary's regulations on reopening. The 
AR applied to cases in which the claimant resided in Maine, 
Massachusetts, New Hampshire, Rhode Island or, for title II claims 
only, in Puerto Rico at the time of the ALJ decision.
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    \1\ The court based its decision on the reopening regulations 
applicable to title II cases. However, since the reopening 
regulations applicable to title XVI cases are similar, the AR 
extended to both title II and title XVI cases.
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    We indicated in the McCuin AR that the Social Security 
Administration (SSA) intended to clarify the reopening regulations at 
issue in the McCuin case through the rulemaking process, and that the 
AR would continue to apply until such clarification was made. On 
October 28, 1991, we published a Notice of Proposed Rulemaking and 
proposed rules (56 FR 55477) that would clarify these regulations. In 
this issue of the Federal Register we are now publishing final rules, 
which explicitly state that SSA may reopen a determination or decision 
that has become final either on its own initiative or at the request of 
an individual who was a party to the determination or decision. 
Accordingly, since the regulation that was the subject of the McCuin 
decision has now been revised, we are rescinding the McCuin AR 
concurrently with the publication of the revised regulations. 
Adjudicators of claims arising in the First Circuit (Maine, 
Massachusetts, New Hampshire, Rhode Island or Puerto Rico) will no 
longer follow the AR, but will decide cases in accordance with the 
revised regulations on reopening

.(Catalog of Federal Domestic Assistance Programs Nos. 93.802 Social 
Security--Disability Insurance; 93.803 Social Security--Retirement 
Insurance; 93.805 Social Security--Survivor's Insurance; 93.806--
Special Benefits for Disabled Coal Miners; 93.807--Supplemental 
Security Income.)

    Dated: November 4, 1993.
Shirley S. Chater,
Commissioner of Social Security.
[FR Doc. 94-3959 Filed 2-22-94; 8:45 am]
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