[Federal Register Volume 73, Number 210 (Wednesday, October 29, 2008)]
[Rules and Regulations]
[Pages 64195-64197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25532]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2008-0031]
RIN 0960-AG68


Technical Amendments to Definition of Persons Closely Approaching 
Retirement Age

AGENCY: Social Security Administration.

ACTION: Final rules.

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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

[[Page 64196]]

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, 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 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).

    Dated: October 20, 2008.
Michael J. Astrue,
Commissioner of Social Security.

0
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]

0
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).


0
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).
* * * * *

0
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. * * *

0
4. Amend part 404, subpart P, appendix 2, as follows:
0
a. In section 202.00, revise paragraph (f) to read as follows:
0
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 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 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--[Amended]

0
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).

0
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).
* * * * *

0
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. E8-25532 Filed 10-28-08; 8:45 am]
BILLING CODE 4191-02-P