[Federal Register Volume 64, Number 20 (Monday, February 1, 1999)]
[Notices]
[Pages 4923-4924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2302]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 99-1(2)]


Florez on Behalf of Wallace v. Callahan; Supplemental Security 
Income--Deeming of Income From a Stepparent to a Child When the Natural 
Parent is Not Living in the Same Household--Title XVI of the Social 
Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 99-
1(2).

EFFECTIVE DATE: February 1, 1999.
FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401 
Security Boulevard, Baltimore, MD 21235, (410) 965-1695.

SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5 
U.S.C. 522(a)(1) and (a)(2), we are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
    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 (the Act) or regulations when the Government has 
decided not to seek further review of that decision or is unsuccessful 
on further review.
    We will apply the holding of the Court of Appeals' decision as 
explained in this Social Security Acquiescence Ruling to claims at all 
levels of administrative adjudication within the Second Circuit. This 
Social Security Acquiescence Ruling will apply to all determinations or 
decisions made on or after February 1, 1999. If we made a determination 
or decision on your application for benefits between September 29, 
1998, the date of the Court of Appeals' decision, and February 1, 1999, 
the effective date of this Social Security Acquiescence Ruling, you may 
request application of the Social Security Acquiescence Ruling to your 
claim if you first demonstrate, pursuant to 416.1485(b), that 
application of the Ruling could change our prior determination or 
decision. If you file a request for application of an Acquiescence 
Ruling within the 60-day appeal period for requesting administrative 
review and we deny that request, we shall extend the time to file an 
appeal on the merits of the claim to 60 days after the date that we 
deny the request for readjudication.
    Additionally, after we receive a precedential circuit court 
decision and determine that an Acquiescence Ruling may be required, we 
will begin to identify those claims that are pending before us within 
the circuit and that might be subject to readjudication if an 
Acquiescence Ruling is subsequently issued. When an Acquiescence Ruling 
is published, we will send a notice to those individuals whose claims 
we have identified which may be affected by the Acquiescence Ruling. It 
is not necessary for an individual to receive a notice in order to 
request application of an Acquiescence Ruling to their claim.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided for in 20 CFR 416.1485(e). If we decide to 
relitigate the issue covered by this Social Security Acquiescence 
Ruling as provided for by 20 CFR 416.1485(c), we will publish a notice 
in the Federal Register stating that we will apply our interpretation 
of the Act or regulations involved and explaining why we have decided 
to relitigate the issue.

(Catalog of Federal Domestic Assistance Programs Nos. 96.001 Social 
Security - Disability Insurance; 96.006 - Supplemental Security 
Income.)

    Dated: January 21, 1999.
Kenneth S. Apfel,
Commissioner of Social Security.

Acquiescence Ruling 99-1(2)

    Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 
1998)--Supplemental Security Income--Deeming of Income From a 
Stepparent to a Child When the Natural Parent is Not Living in the Same 
Household--Title XVI of the Social Security Act.
    Issue: Whether a stepparent is considered an ineligible parent 
whose income is subject to deeming to a child eligible for Supplemental 
Security Income (SSI) when the natural or adoptive parent is not living 
in the same household.
    Statute/Regulation/Ruling Citation: Section 1614 of the Social 
Security Act (42 U.S.C. 1382c), 20 CFR 416.1101, 416.1160, 416.1806.
    Circuit: Second (Connecticut, New York and Vermont).
    Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 
1998).
    Applicability of Ruling: This Ruling applies to all determinations, 
including all post-eligibility determinations, or decisions at all 
administrative levels (i.e., initial, reconsideration, Administrative 
Law Judge (ALJ) hearing and Appeals Council).
    Description of Case: Raul Wallace was born on October 28, 1982. His 
natural father is deceased. His natural mother is married to Jorge 
Florez, the plaintiff, but she abandoned her husband and children in 
1985. Mr. Florez later obtained full custody of Raul and an order of 
protection against Raul's mother that instructed her to stay away from 
the family residence and the plaintiff's place of business. Mr. Florez 
has unsuccessfully attempted to obtain a divorce from Raul's mother and 
remains married to her. Raul lived with

[[Page 4924]]

his stepfather until July 31, 1991, when Raul voluntarily began 
inpatient psychiatric treatments on a weekly basis from Monday 
afternoon through Friday morning. During the weekends he lived at the 
Florez apartment.
    Mr. Florez filed an application, on behalf of Raul, for SSI based 
on disability on March 24, 1992. The Social Security Administration 
(SSA) determined that Raul satisfied the disability requirements of the 
Social Security Act (the Act) retroactive to August 1, 1989, based on 
an earlier application. SSA also determined that Raul was not eligible 
for any payments for the 16-month period between August 1989 and 
December 1990 because Mr. Florez' income was too high. Mr. Florez 
requested reconsideration of the benefit amount, which was denied on 
the grounds that his income as a stepparent was deemable to Raul. The 
plaintiff requested and received a hearing before an ALJ who found that 
SSA had correctly calculated the SSI benefits. After the Appeals 
Council denied the claimant's request for review, he sought judicial 
review but the district court affirmed SSA's application of the 
regulations providing for deeming a stepparent's income. Mr. Florez 
appealed this decision to the United States Court of Appeals for the 
Second Circuit.
    Holding: The Second Circuit reversed in part the judgment of the 
district court and remanded the case with instructions to recalculate 
Raul's SSI benefits excluding the income earned by his stepfather. 
After reviewing SSA's regulations governing deeming of income and 
defining who is the spouse of a natural or adoptive parent, the court 
held that 20 CFR 416.1101 creates a two-part test for determining 
whether a spouse, who lives with a child eligible for SSI, is an 
ineligible parent for deeming purposes under 20 CFR 416.1160:
    (1) the spouse must live with the natural or adoptive parent; and
    (2) the relationship must be as husband or wife, as further defined 
in 20 CFR 416.1806.
    Under the Second Circuit's construction of this regulation, it 
found that Mr. Florez's marriage to Raul's mother ended, for all 
intents and purposes, when she abandoned the family home. Although the 
court recognized SSA's concern about holding a natural parent 
financially responsible for contributing to the care of a child 
eligible for SSI, the court believed that SSA should not discourage a 
stepparent from voluntarily accepting such financial responsibility, 
when the natural parent has abandoned the child, by reducing the 
stepchild's SSI benefits. The court concluded that the plain language 
of the regulations (20 CFR 416.1101 and 416.1806), supported by the 
legislative history of the Act, required SSA to exclude a stepparent's 
income from the calculations used to determine the amount of a child's 
SSI benefits when the natural parent no longer lives in the family 
home.

Statement as to How Florez Differs From SSA's Interpretation of the 
Regulations

    Section 1614(f) of the Act, as implemented by the regulations, 
provides that, when determining SSI eligibility and the benefit amount 
of a child under age 18, the child's income shall be deemed to include 
the income of a parent (or the spouse of such parent) who is ineligible 
for SSI benefits and is living in the same household as the child. 
Under SSA's regulations, 20 CFR 416.1160 defines an ineligible parent 
as ``a natural or adoptive parent, or the spouse (as defined in 
Sec. 416.1101) of a natural or adoptive parent, who lives with [the 
child] and is not eligible for SSI benefits.'' Spouse is defined in 20 
CFR 416.1101 as ``someone who lives with another person as that 
person's husband or wife. (See Sec. 416.1806)'' Under 20 CFR 
416.1806(a)(1), SSA considers someone to be a person's spouse for SSI 
purposes if they are legally married under State law.
    SSA considers 20 CFR 416.1806 to be the controlling regulation for 
determining who is a person's spouse for SSI purposes and for deeming 
of income. Accordingly, SSA deems the income of a stepparent to a child 
eligible for SSI benefits living in the same household when the 
stepparent is legally married under State law to that child's natural 
or adoptive parent, even if the natural or adoptive parent is not 
living in the same household.
    The Second Circuit held that 20 CFR 416.1101 is the controlling 
regulation for the purpose of determining who is a person's spouse 
under the deeming regulations. The court concluded that, under the two-
part test created by this regulation, a stepparent is not an ineligible 
spouse and deeming of income does not apply when the natural parent no 
longer lives in the family home.

Explanation of How SSA Will Apply The Florez Decision Within the 
Circuit

    This Ruling applies only where the SSI claimant is an eligible 
child who resides in Connecticut, New York or Vermont at the time of 
the determination (including all post-eligibility determinations) or 
decision at any administrative level of review, i.e., initial, 
reconsideration, ALJ hearing or Appeals Council.
    When deeming income from an ineligible parent who is a stepparent 
to reduce a child's SSI benefit, adjudicators must exclude the income 
of the stepparent from the deeming calculation if the natural or 
adoptive parent is not living in the same household with that child and 
stepparent. Adjudicators will continue to apply SSA's other rules for 
applying and calculating deeming of income, including the rules 
regarding temporary absences.
[FR Doc. 99-2302 Filed 1-29-99; 8:45 am]
BILLING CODE 4190-29-F