[Federal Register Volume 89, Number 76 (Thursday, April 18, 2024)]
[Rules and Regulations]
[Pages 27653-27668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08150]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2023-0024]
RIN 0960-AI83


Intermediate Improvement to the Disability Adjudication Process, 
Including How We Consider Past Work

AGENCY: Social Security Administration (SSA).

ACTION: Final rule.

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SUMMARY: We are finalizing our proposed regulation to revise the time 
period that we consider when determining whether an individual's past 
work is relevant for the purposes of making disability determinations 
and decisions. We are revising the definition of past relevant work 
(PRW) by reducing the relevant work period from 15 to 5 years. 
Additionally, we will not consider past work that started and stopped 
in fewer than 30 calendar days to be PRW. These changes will reduce the 
burden on individuals applying for disability by allowing them to focus 
on the most current and relevant information about their past work. The 
changes will also better reflect the current evidence about worker 
skill decay and job responsibilities, reduce processing times, and 
improve customer service. This final rule also includes other minor 
revisions to our regulations related to PRW.

DATES: This final rule will be effective on June 8, 2024.

FOR FURTHER INFORMATION CONTACT: Mary Quatroche, Office of Disability 
Policy, Social Security Administration, 6401 Security Boulevard, 3rd 
Floor (East), Altmeyer Building, Baltimore, MD 21235-6401, (410) 966-
4794. 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 https://www.ssa.gov.

SUPPLEMENTARY INFORMATION: 

Background

    The Social Security Act (Act) defines disability as the inability 
to engage in any substantial gainful activity (SGA) by reason of any 
medically determinable physical or mental impairment which can be 
expected to result in death, or which has lasted or can be expected to 
last for a continuous period of not less than 12 months.\1\ The Act 
also states that, for adults,\2\ an individual shall be determined to 
have a disability only if their physical or mental impairment or 
impairments are of such severity that they are not only unable to do 
their previous work but cannot, considering their age, education, and 
work experience, engage in any other kind of substantial gainful work 
which exists in the national economy,\3\ regardless of whether such 
work exists in the immediate area in which they live, or whether a 
specific job vacancy exists for them, or whether they would be hired if 
they applied for work.\4\
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    \1\ 42 U.S.C. 423(d)(1)(A) and 1382c(a)(3)(A).
    \2\ The Act defines disability differently for individuals under 
the age of 18. See 42 U.S.C. 1382c(a)(3)(C).
    \3\ 42 U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B). The Act defines 
work which exists in the national economy as work which exists in 
significant numbers either in the region where such individual lives 
or in several regions of the country.
    \4\ Id.
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    We use a five-step sequential evaluation process to determine 
whether an individual who has filed an initial claim for Supplemental 
Security Income (SSI) or Old-Age, Survivors, and Disability Insurance 
(OASDI) benefits is disabled.\5\ At step one of the sequential 
evaluation process we consider whether an individual is working, and 
whether that work qualifies as SGA.\6\ At this step, if an individual 
is performing at SGA levels, they are not considered disabled.\7\ At 
step two of the sequential evaluation process, we consider whether an 
individual has any ``severe'' impairment(s), which means that the 
impairment(s) significantly limits their physical or mental ability to 
do basic work activities,\8\ and whether the impairment(s) has lasted 
or is expected to last for a continuous period of at least 12 months or 
result in death.\9\ At step three of the sequential evaluation process, 
we consider whether an individual's impairment(s) meets or

[[Page 27654]]

medically equals in severity an impairment(s) in the Listing of 
Impairments.\10\ If the individual's impairment(s) does not meet or 
medically equal in severity a listed impairment, we determine their 
residual functional capacity (RFC). RFC is the most an individual can 
do despite the limitations caused by their impairment(s).\11\ This 
final rule will not affect how we evaluate the first three steps of the 
sequential evaluation process.
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    \5\ Id. See 20 CFR 404.1520 and 416.920.
    \6\ 20 CFR 404.1520(a)(4)(i) and 416.920(a)(4)(i). We explain 
substantial gainful activity (SGA) at 20 CFR 404.1510, 404.1572, 
416.910, and 416.972. Substantial work involves doing significant 
physical or mental activities. An individual's work may be 
substantial even if it is done on a part-time basis or if the 
individual does less, gets paid less, or has less responsibility 
than when they worked before. Gainful means work for pay or profit, 
or work of a type generally performed for pay or profit.
    \7\ The monthly SGA amount changes annually. For 2024, the 
monthly SGA amount is $1,550 for non-blind individuals and $2,590 
for statutorily blind individuals.
    \8\ See 20 CFR 404.1520(a)(4)(ii), 404.1520(c), 
416.920(a)(4)(ii) and 416.920(c). We explain what we mean by an 
impairment that is not severe in 20 CFR 404.1522 and 416.922. In 
this final rule, we use the term impairment(s) to mean an impairment 
or combination of impairments.
    \9\ 20 CFR 404.1520(a)(4)(ii) and 416.920(a)(4)(ii). We explain 
the duration requirement at 20 CFR 404.1509 and 416.909. See also 
SSR 23-1p: Titles II and XVI: Duration Requirement for Disability.
    \10\ 20 CFR 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii), 
and 416.925. The Listing of Impairments is found at 20 CFR part 404, 
subpart P, appendix 1, and it applies to title XVI under 20 CFR 
416.925.
    \11\ See 20 CFR 404.1520(e), 404.1545, 416.920(e), and 416.945. 
See also SSR 96-8p: Policy Interpretation Ruling Titles II and XVI: 
Assessing Residual Functional Capacity in Initial Claims.
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    This final rule will affect how we evaluate disability claims at 
steps four and five of the sequential evaluation process because we 
consider the individual's PRW at both of these steps. At step four of 
the sequential evaluation process, we consider the individual's work 
history and whether, given their RFC, they could perform any of their 
PRW either as they actually performed it or as it is generally 
performed in the national economy.\12\ Under our prior definition, PRW 
was work an individual did within the past 15 years, that was SGA, and 
that lasted long enough for the individual to learn how to do it.\13\ 
This final rule revises the PRW definition. If the individual can 
perform any of their PRW, we will find them not disabled. If the 
individual cannot perform any of their PRW, we go to the next step.
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    \12\ 20 CFR 404.1520(a)(4)(iv), 404.1520(f), 404.1560(b)(2), 
416.920(a)(4)(iv), 416.920(f), and 416.960(b)(2).
    \13\ 20 CFR 404.1560(b)(1) and 416.960(b)(1).
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    At step five of the sequential evaluation process, we again refer 
to an individual's work history to determine whether an individual's 
impairment(s) prevents them from adjusting to other work that exists in 
significant numbers in the national economy, considering their RFC and 
the vocational factors of age, education, and work experience. To 
support a determination or decision at step five of the sequential 
evaluation process, we use the medical-vocational profiles \14\ and 
medical-vocational guidelines,\15\ commonly known as the ``grid 
rules,'' to consider whether an individual can adjust to other work. If 
the individual can adjust to other work that exists in significant 
numbers in the national economy, considering their RFC, age, education, 
and work experience, we find they are not disabled. If an individual 
cannot adjust to other work that exists in significant numbers in the 
national economy, we find that they are disabled.\16\ We are not 
changing our rules regarding RFC, age, or education in this rulemaking.
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    \14\ See 20 CFR 404.1520(g)(2), 404.1562, 416.920(g)(2), and 
416.962; see also POMS DI 25010.001 Medical-Vocational Profiles, 
available at: https://secure.ssa.gov/poms.NSF/lnx/0425010001.
    \15\ See 20 CFR 404.1560(c), 404.1562, 404.1569, 416.960(c), 
416.962, and 416.969.
    \16\ 20 CFR 404.1520(a)(4)(v) and 416.920(a)(4)(v).
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    Once an individual is found disabled and receives benefits, we may 
periodically conduct a continuing disability review (CDR) to determine 
whether the individual continues to be disabled.\17\ Although the CDR 
rules use a different sequential evaluation process, the final two 
steps of the process used for CDRs (steps seven and eight in title II 
OASDI cases and steps six and seven in adult title XVI SSI cases) 
mirror the final two steps used in the sequential evaluation process 
for initial claims (steps four and five).\18\ Under the prior rule, the 
relevant work period for CDRs included work an individual did within 15 
years prior to the date of the CDR determination or decision.\19\ This 
final rule changes the relevant work period we use for CDRs to 5 years 
to align with the changes being made to the initial disability 
sequential evaluation process.
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    \17\ 20 CFR 404.1520(a)(5), 404.1594, 416.920(a)(5), and 
416.994.
    \18\ 20 CFR 404.1594(f)(7) and (8) and 416.994(b)(5)(vi) and 
(vii). Title II benefits include disability insurance benefits, 
disabled widow(er) benefits, and child disability benefits. Title 
XVI benefits include supplemental security income.
    \19\ 20 CFR 404.1594(f)(7) and 416.994(b)(5)(vi). At the last 
two steps in the CDR sequential evaluation process, we do not 
consider work that an individual is doing or has done during a 
current period of disability entitlement to be PRW or past work 
experience; see 20 CFR 404.1594(i)(1) and 416.994(b)(8)(i).
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Proposed Rule

    On September 29, 2023, we published a notice of proposed rulemaking 
(NPRM) in the Federal Register entitled Intermediate Improvement to the 
Disability Adjudication Process: Including How We Consider Past 
Work.\20\ In the NPRM, we proposed to revise our regulatory definition 
of PRW and to make another minor revision to our regulatory text about 
the vocational factor of work experience. Specifically, we proposed to 
define PRW as work an individual has done within the past 5 years, 
which was performed at SGA level, and that lasted long enough for the 
individual to learn how to do it. Additionally, we proposed to revise 
the relevant work period for CDRs to include work an individual has 
done within 5 years prior to the date of the CDR determination or 
decision.
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    \20\ 88 FR 67135 (Sept. 29, 2023).
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    We also proposed to remove a sentence in 20 CFR 404.1565(a) and 
416.965(a) that explained that the intent of our work experience rules 
is to ``insure that remote work experience is not currently applied.'' 
The NPRM included a full discussion of how the proposal would affect 
steps four and five of the sequential evaluation process, rationale for 
the proposed revisions, and an analysis of its effects.
    In this final rule, we are adopting the NPRM's proposed revisions, 
discussion, rationale, and analysis in full, with the modifications 
described below.

Modifications From NPRM

    We are adopting our original proposal with some modifications. The 
regulatory text in this final rule differs slightly from the regulatory 
text we proposed in the NPRM, due to: (1) an inadvertent error; and (2) 
public feedback submitted in response to our questions in the NPRM. We 
detail these changes below.
    In the NPRM, we proposed to remove a sentence in 20 CFR 404.1565(a) 
and 416.965(a) that explains that the intent of our work experience 
rules is to ``insure that remote work experience is not currently 
applied.'' However, the sentence inadvertently remained within the 
proposed regulatory text in 20 CFR 416.965(a). We published a 
correction document on December 1, 2023, affirmatively removing that 
sentence from the proposed regulatory text of the NPRM.\21\
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    \21\ 88 FR 83877 (Dec. 1, 2023).
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    In the NPRM we solicited feedback on whether we should revise our 
requirements so that individuals completing the work history forms do 
not need to report jobs held for a short period of time.\22\ Following 
the thoughtful feedback we received from commenters in support of a 
range of different time periods, we have decided that we will not 
consider PRW to include work an individual started and stopped in fewer 
than 30 calendar days. We are revising the language in 20 CFR 
404.1560(b)(1) and 416.960(b)(1) by removing the definition of PRW from 
paragraph (b)(1), adding the definition as a new paragraph (b)(1)(i), 
and adding the new regulatory text for the minimum threshold of 30 
calendar days for PRW in a new paragraph (b)(1)(ii). In addition, we 
revised a sentence in 20 CFR 404.1565(a) and 416.965(a) to explain how 
we will consider work that started and stopped in fewer than 30

[[Page 27655]]

calendar days. These changes are discussed in detail below.
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    \22\ 88 FR 67135 at 67144 (Sept. 29, 2023).
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     The final rule language for 20 CFR 404.1560(b)(1) and 
416.960(b)(1), now reads: ``Definition of past relevant work.''
     We are adding 20 CFR 404.1560(b)(1)(i) past relevant work 
is work that you have done within the past five years that was 
substantial gainful activity and that lasted long enough for you to 
learn to do it (see Sec.  404.1565(a)). We will not consider work to be 
past relevant work if you started and stopped it in fewer than 30 
calendar days (see Sec.  404.1560(b)(1)(ii)). We are making parallel 
revisions in 20 CFR 416.960(b)(1)(i).
     We are adding 20 CFR 404.1560(b)(1)(ii) When we state that 
we consider past relevant work and work experience (see Sec.  
404.1565), 30 calendar days means a period of 30 consecutive days, 
including weekends, starting from the first day of work. When we 
consider whether work lasted 30 calendar days, we generally do not 
consider the total number of hours or days worked during that period, 
or whether the work was full-time or part-time. The 30 calendar days 
requirement is separate from the consideration of substantial gainful 
activity or whether you worked long enough to learn how to do the work, 
although the work performed during the 30 calendar days may count 
toward the time needed for you to learn to do the work. The 30 calendar 
days requirement also applies if you were self-employed or an 
independent contractor; we will consider whether you were engaged in 
the same type of work for 30 calendar days, even if individual work 
assignments or contracts each lasted fewer than 30 calendar days. We 
are making parallel revisions in 20 CFR 416.960(b)(1)(ii).
     We are revising in 20 CFR 404.1565(a) from the prior text, 
``If you have no work experience or worked only `off and on' or for 
brief periods of time during the five-year period, we generally 
consider that these do not apply,'' to read in the final rule as, ``If 
you have no work experience or you did work that started and stopped in 
a period of fewer than 30 calendar days (see Sec.  404.1560(b)(1)(ii)) 
during the five-year period, we generally consider that these do not 
apply.'' We are making parallel revisions in 20 CFR 416.965(a).
    We are adding this minimum 30-calendar-day threshold in response to 
feedback we solicited in the NPRM. To clarify our intent with this 
addition to the rule, we are providing two examples.
    Example 1: On March 1, 2023, an individual began working a job that 
requires only a brief demonstration to learn. The individual's last day 
of work was March 30, 2023. The individual worked at the job for 30 
calendar days because they started work on March 1, 2023, and their 
last day of work was on March 30, 2023. In this situation, the job 
would qualify as PRW if it was performed at the SGA level and during 
the 5-year relevant work period.
    Example 2: On February 1, 2023, an individual began working a job 
that requires only a brief demonstration to learn. The individual's 
last day of work was February 28, 2023. Although the individual held 
the job long enough to learn to do it, the work started and stopped in 
fewer than 30 calendar days. In this situation, the job would not 
qualify as PRW, even if it was performed at the SGA level and during 
the 5-year relevant work period.

Severability

    In the event of an invalidation of any part of this rule, our 
intent is to preserve the remaining portions of the rule to the fullest 
possible extent. In particular, we intend the revision of the reduction 
of the relevant work period for PRW in 20 CFR 404.1560, 404.1565, 
416.960, and 416.965 from 15 to 5 years to be severable, as that 
revision explains our new rule and functions independently of the other 
changes reflected in this final rule. We also intend the addition of 
the sentence in 20 CFR 404.1560(1)(i) and 416.960(1)(i) that: ``We will 
not consider work to be past relevant work if you started and stopped 
it in fewer than 30 calendar days'' along with the revision of the 
sentence in 20 CFR 404.1565(a) and 416.965(a) that accounts for the new 
30 calendar day period (i.e., the sentence containing the words ``you 
did work that started and stopped in a period of fewer than 30 calendar 
days'') to be severable, as these changes explain our new rule and 
function independently of the other changes reflected in this final 
rule.
    Finally, we intend the removal of the sentence in 20 CFR 
404.1565(a) and 416.965(a) that explains the intent of our work 
experience rules is to ``insure that remote work experience is not 
currently applied'' to be severable, as that revision clarifies our 
rule and functions independently of the other changes reflected in this 
final rule.

Justification for Changes

    We have long recognized that a gradual change occurs in most jobs 
in the national economy, so that after a certain period of time it is 
not realistic to expect that skills and abilities an individual 
acquired while performing these jobs continue to apply.\23\ In this 
rule, we are changing the relevant work period to 5 years because it 
reflects the shorter collection cycles of occupational surveys and data 
programs, which establish a frame of reference for understanding 
changing occupational requirements.
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    \23\ 20 CFR 404.1565(a) and 416.965(a).
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    Changing the relevant work period from the prior 15 years to 5 
years and setting a minimum time period of 30 calendar days for 
performing work will better account for the diminishing relevance of 
work skills over time and reduce the burden on individuals applying for 
disability. This change will allow us to improve the quality of the 
information we receive by eliminating the individual's need to recall 
and consistently report detailed information about less recent work or 
work performed for less than 30 calendar days, reduce the time spent 
filling out work history forms, and reduce wait times for a 
determination or a decision. Accordingly, this change will improve 
customer service and adjudicative efficiency.
    This final rule will achieve several goals. First, this final rule 
will allow individuals to focus on the most current and relevant 
information about their past work.\24\ We largely rely on individuals' 
self-reporting for information about their past work. In our 
adjudicative experience, information tends to be less accurate and less 
complete for jobs that individuals held in the distant past. We expect 
this final rule will result in our receiving more complete work history 
forms and reduce the need for our staff to follow up for additional 
work history information. Second, this final rule will better account 
for current evidence on the diminishing relevance of work skills and 
changes in job requirements over time. Third, this final rule will 
reduce processing time and improve customer service. As we discussed in 
the NPRM, each year we adjudicate millions of claims for disability 
benefits, and our ability to make determinations and decisions more 
quickly will ultimately benefit the public we serve.\25\ Fourth, this 
final rule will lessen the information collection burden on individuals 
by reducing, on average, the number of jobs about which they must 
provide us with information.\26\
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    \24\ 20 CFR 404.1565(b) and 416.965(b). See also POMS DI 
22515.001 Overview of Vocational Evidence Development, available at: 
https://secure.ssa.gov/apps10/poms.nsf/lnx/0422515001.
    \25\ Heckler v. Campbell, 461 U.S. 458, 461, n.2 (1983).
    \26\ 88 FR 67135 at 67142-43 (Sept. 29, 2023).

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[[Page 27656]]

    In summary, by eliminating an individual's need to recall and 
report detailed information about less recent work, we anticipate this 
final rule will allow us to improve the quality of the information we 
receive; will significantly reduce burden on the individual from 
filling out work history forms; and will reduce case processing and 
waiting times. These outcomes will overall offer a better customer 
experience for individuals applying for disability and will increase 
our adjudicative efficiency. For a more detailed explanation of how we 
expect this final rule to achieve these objectives, please refer to the 
Justification for Change section in the NPRM.\27\
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    \27\ Id. at 67140-43.
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Comment Summary

    We solicited comments on the proposed rule and received 99 public 
comments on our NPRM from September 29, 2023, through November 28, 
2023. Of the total comments, 89 are available for public viewing at 
https://www.regulations.gov/document/SSA-2023-0024-0001. We excluded 
three comments that were exact duplicates, one comment that was out of 
scope, and six comments submitted by one of our employees in their 
official capacity. The publicly available comments were from:
     Individuals;
     Over 20 groups submitting comments on behalf of their 
organizations, such as (but not limited to) the Center on Budget and 
Policy Priorities, Homeless Action Center, International Association of 
Rehabilitation Professionals, National Association of Disability 
Representatives, National Council of Disability Determination 
Directors, and National Organization of Social Security Claimants' 
Representatives; and
     Ranking Congressional Members from the Subcommittee on 
Social Security and Subcommittee on Worker and Family Support.
    The vast majority of commenters supported the proposal in the NPRM. 
Some commenters agreed with the proposal but recommended changes, 
either in this final rule or in future rulemakings. Several other 
commenters disagreed with the proposal. We carefully considered these 
comments, which we summarize and respond to below. We addressed only 
issues raised by comments that were within the scope of this 
rulemaking.

Comments and Responses

Relevant Work Period

Support for the Policy Change Based on the Nature of Work, Ability To 
Accurately Recall Information About Work, and Adjudicative Efficiency

    Comment: Many commenters supported our proposal to revise the 
definition of PRW by reducing the relevant work period from 15 to 5 
years. Several commenters agreed changing the relevant work period to 5 
years would help both individuals applying for disability and our staff 
by reducing the time and effort involved in procuring and reviewing 
information about individuals' relevant work history. Some commenters 
stated that our prior use of a 15-year relevant work period can be 
needlessly burdensome for individuals who have difficulty accurately 
recalling details of jobs performed several years earlier, especially 
if those jobs were held for only a short period of time, or if an 
individual held numerous jobs during the 15-year period.
    Further, several commenters said that individuals often do not 
remember intricate details about jobs they performed 10 to 15 years 
ago, particularly information regarding the rate of pay, the number of 
months they worked, and the physical and mental demands of the job they 
performed. These commenters opined that the need to provide such 
information about work an individual performed many years earlier often 
results in their providing us with incomplete or inaccurate work 
history reports. Moreover, some commenters opined that when individuals 
have difficulty accurately recalling the physical and mental 
requirements of a past job, they are more likely to estimate the 
demands of their past work incorrectly.
    Commenters identifying themselves as disability representatives 
confirmed that in their experience, individuals often have a vague 
recollection of job information going back 15 years, making it 
necessary for these representatives to spend a great deal of time with 
their clients helping them recall, evaluate, and report job duties from 
a decade or more ago. Additional commenters stated that, as 
representatives, they commonly need to correct prior work history 
information that their clients initially provided during earlier steps 
in the adjudication process.
    Some commenters said that difficulty remembering prior work is 
exacerbated when an individual suffers from a brain injury, memory 
loss, or a cognitive or other mental health impairment. Many commenters 
agreed that allowing individuals to focus on only the most recent 5 
years of work history would increase the accuracy of information 
provided to us. Another commenter noted that adopting a 5-year relevant 
work period would make associated work history reporting forms shorter 
and easier for individuals to complete.
    Additionally, several commenters conveyed that inaccurate or 
imprecise recounting of information about work history submitted to us 
increases the work for our adjudicators, often resulting in the need 
for us to engage in lengthy development to gather accurate and precise 
information. A few commenters expressed the opinion that the mistakes 
on the work history forms, even after our efforts to correct them, may 
still result in individuals being denied benefits due to ``insufficient 
evidence'' because the individuals were unable to provide the amount of 
detail about their past work required by the Act and our rules.\28\ 
Many commenters expressed the view that reducing the relevant work 
period to 5 years would ease the burden on individuals because they 
would only have to provide more recent work history, which is likely 
easier to recall in detail. Multiple commenters suggested that 
reporting less work history would likely result in an increase in the 
quality of information submitted and would reduce the burden on our 
adjudicators who must collect and assess detailed information about an 
individual's prior work. Some commenters opined that this change would 
cut down on case processing time overall, enabling us to issue 
determinations and decisions faster.
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    \28\ See 20 CFR 404.1565 and 416.965.
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    Additional commenters said the proposal would help more vulnerable 
populations, such as those facing housing deprivation, loss of 
belongings, and other crises.
    Response: We acknowledge the support for our proposed change 
expressed in the many comments described above. We appreciate the 
commenters sharing their valuable insights on their experience with the 
disability application process, both from those with experience 
assisting others in the disability application process and those with 
personal experience applying for benefits on their own. We anticipate 
that this final rule, once implemented, will help address many of these 
issues commenters thoroughly outlined.
    Comment: Some commenters asserted that individuals now change jobs 
more frequently than in the past and that it is unrealistic to expect 
individuals to retain the ability to perform PRW last

[[Page 27657]]

done close to 15 years ago. In support of this second point, commenters 
indicated that younger workers and workers performing lower-wage jobs 
tend to change jobs more frequently. One commenter specified that there 
is a particularly high rate of turnover in low-wage service 
occupations. Many commenters alleged that skills individuals acquired 
from their past work erode over time.
    Response: We appreciate commenters' perspectives that many of 
today's workers change jobs more frequently than they used to over the 
course of their careers. Additionally, the NPRM acknowledged that 
younger individuals tend to change jobs more frequently than other 
individuals. We note that a commenter cited data from the Bureau of 
Labor Statistics (BLS) indicating that workers in lower-wage 
occupations, especially those in service industries, change employers 
more frequently than other workers.\29\ This final rule will reduce the 
burden on individuals who change jobs frequently because they will need 
to recall and report details about only more recent jobs, and it will 
also help them report the most relevant information.
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    \29\ Available at: https://www.bls.gov/news.release/pdf/tenure.pdf.
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    Comment: Several commenters stated that job duties and the skills 
required to perform certain jobs have changed significantly in recent 
decades. Many commenters indicated that due to workplace changes, 
particularly due to changes in technology, jobs held 10 to 15 years ago 
may require a different skill set to perform; may require different 
experience or physical demands; or the job may no longer exist. Thus, 
jobs from 10 to 15 years ago would have a limited relevance on an 
individual's current ability to perform past work. One commenter stated 
that these considerations apply both to technology jobs, which 
constantly require new knowledge and skills due to the evolution of 
software and systems, and office jobs, which now rely heavily on 
technology, including computers, software, and scanners, in a way they 
did not 10 years ago. One commenter said that shortening the relevant 
work period would yield more realistic results because it would more 
accurately reflect an individual's capacity to work in the modern job 
market.
    Response: We appreciate the commenters' perspectives about the 
changes in occupational requirements over time. When we consider an 
individual's ability to perform the requirements of their PRW at step 
four of the sequential evaluation process,\30\ we consider whether they 
can do the work as they actually performed it or as it is generally 
performed in the national economy.\31\ While we do not consider at step 
four whether an individual's PRW still exists,\32\ our final rule 
reflects a recognition that occupational requirements with respect to 
skills and experience as well as physical and mental demands change 
over time.
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    \30\ We use a different sequential evaluation process when we 
conduct continuing disability reviews (CDR). See 20 CFR 404.1594 and 
416.994.
    \31\ See 20 CFR 404.1565 and 416.965.
    \32\ See Barnhart v. Thomas, 540 U.S. 20 (2003).
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Opposition to Our Proposal To Shorten the Relevant Work Period From 15 
to 5 Years

Commenter Preference for Change to 10 Years

    Comment: A few commenters suggested that we should instead adopt a 
10-year relevant work period. One of these commenters referred to a 
statement in the NPRM that, in recent decades, major surveys and data 
programs concerning occupational requirements have refreshed their data 
in collection cycles ranging from 5 to 10 years. The commenter asserted 
that these programs address neither the skills required for work nor 
the rate of decay of those skills and concluded that, as a result, our 
proposal to reduce the relevant work period to 5 years was without 
foundation. In addition, this commenter said that the research we cited 
at best supports a change to 10 years. Specifically, (1) the commenter 
cited certain statistics that they thought were not supportive of the 
proposal; and (2) the commenter questioned the relevance of the rate at 
which occupational requirements change and the rate at which 
individuals' skills decay.
    Response: We do not agree with the commenter's suggestion that our 
proposal is unsupported, or that a 10-year relevant work period would 
be better supported. As we acknowledged in the NPRM, information 
regarding the rate of occupational change is inexact. Nevertheless, 
major surveys and data programs concerning occupational requirements 
have data collection cycles ranging from 5 to 10 years; these 
collection cycles inform us about the rate of occupational change and 
represent a range of reasonable options. We also cited research 
indicating that unused manual skills deteriorate significantly before 
10 years. We selected 5 years (at the lower end of the reasonable 
range) because it balances our need for an accurate and relevant work 
history with the important goal of reducing burden for individuals. Use 
of a 5-year relevant work period is supported by the research we cited, 
and it will allow us to collect work history information that is more 
accurate and complete. Our use of the shorter relevant work period will 
also reduce processing time and improve customer service.

The Relevant Work Period Should Vary by Type of Work

    Comment: Some commenters expressed the opinion that the proposed 5-
year relevant work period should apply only to certain types of work. 
For example, some commenters stated that a 5-year relevant work period 
would be appropriate for work in the technology sector or medical 
field, but that it would be inappropriate for other kinds of work that 
undergo less rapid change.
    Response: We currently use one relevant work period. Introducing 
multiple standards based on type of work, industry, or field would add 
significant complexity to our adjudication process and would make our 
rules more difficult to understand for individuals, their 
representatives, and our adjudicators. This runs contrary to our goal 
of helping reduce burden on the public and our adjudicators.

5-Year Relevant Work Period Is Not Sufficient

    Comment: Several commenters expressed that a 5-year relevant work 
period does not provide enough time for us to assess whether 
individuals retain skills from past work. Another commenter stated that 
5 years is too short and likely overlooks skills which are recent and 
potentially transferable. One commenter said that analysis of an 
individual's ability to perform technical and highly skilled 
occupations required knowledge of their past work experience, 
education, and training that would be lost by reducing the relevant 
work period to 5 years. Another commenter stated that a 5-year relevant 
work period would not account for an individual's education, 
experience, or on-the-job training. They suggested that education and 
knowledge gained on the job are relevant for longer than would be 
accounted for in a 5-year relevant work period.
    Response: In response to the first three comments, we again note 
that the research we reviewed and the data we collected from our own 
survey and listening session collectively indicated that work histories 
of 5 to 10 years were most relevant and appropriate. When surveying 
individuals and their representatives, we found that it was

[[Page 27658]]

much harder for individuals to remember information from over 5 years 
ago. Survey participants said that the most accurate information they 
are able to recall is from work performed within the past 5 years. In 
addition, multiple commenters agreed that the most accurate information 
they or the individuals they represent were able to recall is from 
within the past 5 years. When factoring in the feedback from 
individuals participating in our survey and listening session and from 
multiple commenters wanting a work history requirement closer to 5 
years, and in weighing our desire to significantly reduce burden for 
the public, we selected 5 years as the most appropriate new work 
history requirement.
    We do not agree with the fourth comment regarding education and the 
relevant work period. When we consider whether recently completed 
education would permit an individual to enter directly into skilled or 
semiskilled work other than PRW, we have long stated that such 
education is only relevant for 5 years.\33\ The commenter did not 
explain how our consideration of the vocational relevance of an 
individual's education is inappropriate, and they did not provide 
supporting evidence to show our use of a 5-year relevant work period 
would be inappropriate.
---------------------------------------------------------------------------

    \33\ See POMS DI 25015.010 Education as a Vocational Factor, 
available at https://secure.ssa.gov/poms.nsf/lnx/0425015010.
---------------------------------------------------------------------------

    Comment: A few commenters indicated that the shorter relevant work 
period inappropriately minimized the utility of vocational expert 
testimony, because (1) vocational experts have the education and 
training to best determine which past work is relevant; and (2) a 15-
year relevant work period provides vocational experts with a 
substantial period of time to review to determine workers' skills both 
pre- and post-injury.
    Response: Regarding the commenters' assertions that a 15-year 
relevant work period is necessary to determine whether an individual 
has acquired skills that can be used in other work, we disagree. Based 
on the justifications and benefits that we describe in this final rule 
and earlier in the NPRM, we have concluded that the 5-year relevant 
period is sufficient for the consideration of an individual's past work 
experience. Even with the 5-year relevant work period, our expectation 
is that vocational expert testimony can still be a vital part of our 
hearing process.

Concern That the Change to PRW Will Be Adopted Outside of SSA

    Comment: A commenter expressed concern that, if we were to use a 5-
year relevant work period, ``others, including those in the forensic 
space,'' might also adopt the same time period.
    Response: This final rule is intended to apply only to our 
disability programs. We have no control over whether others might adopt 
similar policies or timeframes, and the possible adoption of the 5-year 
period outside of that context by others would not invalidate the 
rationale upon which we are basing this rule.

Elimination of PRW as a Consideration Altogether

    Comment: Two commenters said that the 15-year relevant work period 
should be eliminated altogether, alleging that it is a ``discrimination 
factor.'' The commenters suggested that no specific time frame could 
accurately capture whether an individual's work experience is relevant, 
because the rate at which skills change will vary across different 
occupations. The same commenters criticized our use of an individual's 
age in determining benefit entitlement or eligibility, and they 
suggested we eliminate consideration of age because older workers are 
capable of learning new skills and adding value to the workforce.
    Response: We did not adopt these comments. The Act requires that we 
consider an individual's work experience. In addition, as we 
acknowledged in the NPRM, information regarding the rate of 
occupational change is inexact, and the rate of skill decay may vary 
based on the type of occupational requirements at issue. However, this 
final rule reflects our conclusion that, generally, skills acquired 
from work more than 5 years in the past are of diminished relevance and 
do not provide a vocational advantage for adjustment to other work. As 
well, as noted above, adopting a variable standard depending on the 
occupational fields in which an individual previously worked would be 
impracticable to our adjudicative process due to the level of 
complexity it would add.
    Regarding the comments on age, we note that we do not consider age 
when we assess whether an individual can perform their PRW. However, 
the Act requires us to consider age, in addition to other factors, 
which we do at the final step of the sequential evaluation processes 
when we consider whether an individual can perform other work.\34\
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    \34\ 42 U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B).
---------------------------------------------------------------------------

Concerns From Vocational Experts

    Comment: We received a few comments from vocational experts 
relating to their role in the rulemaking process for this regulation, 
and providing evidence we may consider at steps four and five of the 
sequential evaluation of disability. One commenter asserted that, 
although we consulted other outside parties, we did not directly 
solicit input from vocational rehabilitation industry experts when we 
were developing the NPRM.
    Response: As the commenter acknowledges, we consulted external 
stakeholders, including a diverse panel of legal aid groups, community 
advocacy organizations, and other claimant representative organizations 
when we formulated the proposed rule. We also consulted relevant 
studies and scholarship, as well as our employees who develop evidence 
for and make disability determinations and decisions. We appreciate the 
comments we received from the vocational rehabilitation industry 
experts during the NPRM public comment period, and we considered their 
input when formulating this final rule. Accordingly, this final rule is 
informed by a wide range of stakeholders, studies, and scholarship. Our 
regulations specify that we may use the services of vocational experts 
or other specialists when determining whether an individual's work 
skills can be used in other work and the specific occupations in which 
they can be used, or for similarly complex issues.\35\ We will continue 
to do so.
---------------------------------------------------------------------------

    \35\ 20 CFR 404.1566(e) and 416.966(e).
---------------------------------------------------------------------------

Relevant Work Period Concerns in Certain Technical Situations

    Comment: Two commenters asked us to revise how we consider the 
relevant work period in certain technical situations.\36\ In these 
technical situations, we measure the relevant work period from a date 
other than when we decide whether an individual is disabled. For 
example, when an individual's date last insured is before their 
application date, we consider the relevant work period to end on the 
date last insured. These commenters suggested we adopt a single date 
from which to calculate the relevant work period, such as the 
application date, onset date, or date of adjudication. These commenters 
alleged that adopting such a change would provide process

[[Page 27659]]

simplification and help eliminate the challenges associated with 
relying on less recent work history information, which we referenced in 
the NPRM.
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    \36\ A guide to these technical situations is found in our 
subregulatory guidance at POMS DI 25001.001 Medical and Vocational 
Quick Reference Guide, available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0425001001.
---------------------------------------------------------------------------

    Response: While we generally agree with the goal of pursuing 
process simplification where appropriate, we are not adopting this 
suggestion at this time. In most situations, we measure the relevant 
work period from the date we decide whether an individual is disabled. 
Because the relevant work period changes as a claim proceeds through 
the appeals process, ending the use of a different relevant work period 
in these technical situations could create certain situations in which 
an individual's relevant work period would include work that was first 
performed after the date on which their non-medical eligibility for 
disability benefits lapsed. In these scenarios, we might be required to 
consider work that is not relevant to whether an individual was 
disabled as of the date when their non-medical eligibility lapsed. In 
addition, such a change would prevent us from considering the past work 
that is most meaningful to the determination of whether the individual 
was disabled as of that date.

Concerns Related to COVID-19

    Comment: One commenter expressed support for our reduction of the 
relevant work period because, in the commenter's view, COVID-19 has 
significantly impacted the national economy, and it has caused 
significant and relevant workforce shifts.
    Response: We acknowledge the general support for our proposal. 
However, the commenter did not provide evidentiary support on how 
specifically the COVID-19 pandemic's impact on the work force should 
inform how we evaluate PRW now and into the foreseeable future, so we 
cannot fully address that point. Although we recognize the continuing 
effects from the pandemic, our goal is to maintain rules that are 
appropriate for all times rather than reflecting a specific and unique 
period in time.

Setting a Minimum Threshold for Work To Be Considered PRW

    Comment: In the NPRM, we asked the public whether we should revise 
our requirements so that individuals completing our forms do not need 
to report jobs held for short periods of time (e.g., 1 month). We also 
asked what threshold we should set and what evidence would support this 
threshold. Several commenters supported this change, proposing that we 
should not ask for information about or consider any work performed for 
fewer than 1 month or 30 consecutive days.
    Other commenters said we should not ask about or consider work 
performed for fewer than 3 months or 90 days. Some commenters asserted 
that a job performed for less time may constitute an unsuccessful work 
attempt. One commenter stated that employers often set a 90-day 
probationary period for new employees to assess if an individual can 
satisfactorily perform the job. Another commenter alleged that 3 months 
was the amount of time needed by the average person to learn all the 
skills required to perform a job adequately and that less time would 
not provide enough of an opportunity for an individual to learn the job 
or gain transferable skills. The commenter further asserted that making 
our adjudicators consider the relevance of such jobs is a waste of time 
and disincentivizes individuals from attempting to work.
    A few commenters said that even if we would no longer consider work 
performed for less than 1 or 3 months, we should still collect some 
information about work performed for fewer than 3 months, as it may be 
evidence showing a limitation in an individual's ability to perform 
work activities.
    Response: We appreciate the thoughtful comments we received on 
these questions. We agree with the commenters that we should further 
reduce the burden on individuals completing our forms and on our 
adjudicators by excluding work held for short periods from 
consideration as PRW. In addition, we agree that we should reduce the 
developmental burden placed on our adjudicators to develop detailed 
work history information, including the exertional and nonexertional 
requirements of an individual's past work, for jobs performed for short 
periods. Reducing this reporting and developmental burden to a shorter 
period is even more supportable when one considers that wage 
information we receive to determine whether work constitutes SGA,\37\ 
which is one part of the definition of PRW, is based on monthly wage 
reporting.
---------------------------------------------------------------------------

    \37\ The criteria for determining whether an individual has done 
SGA are set forth in our regulations at 20 CFR 404.1571 through 
404.1576 and 416.971 through 416.976.
---------------------------------------------------------------------------

    However, we disagree with the rationale offered for the suggestion 
that we should not consider any work performed for less than 3 months. 
While the commenter linked this suggestion to an unsuccessful work 
attempt, a 3-month period has no special significance under our rules 
for unsuccessful work attempts,\38\ and work performed for any period 
less than 6 months may be considered an unsuccessful work attempt. 
However, we do consider whether an individual performed the work long 
enough to learn the techniques, acquire information, and develop the 
skills needed for average performance in the job. Our rules have long 
recognized that skills may be gained in semi-skilled work performed for 
more than 1 month but less than 3 months.\39\ We concluded that a 30-
day minimum period is appropriate because it aligns better with these 
skill rules, but still accomplishes the goal of reducing burden and 
improving the accuracy of work information that we collect by not 
considering jobs held for a short period.
---------------------------------------------------------------------------

    \38\ An unsuccessful work attempt is defined in our regulations 
at 20 CFR 404.1574(c) and 416.974(c). Although we note that SSR 84-
25, Titles II and XVI: Determination of Substantial Gainful Activity 
if Substantial Work Activity is Discontinued or Reduced--
Unsuccessful Work Attempt, contains specific criterion for work 
activity ``of 3 months or less,'' this language was superseded by 
our final rules Unsuccessful Work Attempts and Expedited 
Reinstatement Eligibility published in October 2016, 81 FR 71367. 
There is no special significance for a 3-month period under our 
current rules, and the rules now dictate that work performed for any 
period less than 6 months may be considered an unsuccessful work 
attempt. We plan to rescind the outdated SSR at the earliest 
opportunity.
    \39\ See 20 CFR 404.1568 and 416.968. See also SSR 00-4p: Titles 
II and XVI: Use of Vocational Expert and Vocational Specialist 
Evidence, and Other Reliable Occupational Information in Disability 
Decisions.
---------------------------------------------------------------------------

    Therefore, in this final rule, as discussed above, we are adding 
two paragraphs to our rules in 20 CFR 404.1560(b)(1)(i) and (ii) and 
416.960(b)(1)(i) and (ii) and revising a sentence in 20 CFR 404.1565(a) 
and 416.965(a) to state that work an individual started and stopped in 
fewer than 30 calendar days is not PRW. We will consider ``30 calendar 
days'' as a period of 30 consecutive days, including weekends, starting 
from the first day of work. When we consider whether work lasted 30 
calendar days, we generally do not consider the total number of hours 
or days worked during that period, or whether the work was full-time or 
part-time. The 30 calendar days requirement is separate from the 
consideration of substantial gainful activity or whether the individual 
worked long enough to learn how to do the work, although the work 
performed during the 30 calendar days may count toward the time needed 
for the individual to learn to do the work. The 30 calendar days 
requirement also applies if the individual was self-employed or an 
independent

[[Page 27660]]

contractor; \40\ we will consider whether the individual was engaged in 
the same type of work for 30 calendar days, even if individual work 
assignments or contracts each lasted fewer than 30 calendar days.
---------------------------------------------------------------------------

    \40\ This would apply to ``gig economy'' type jobs as well, 
provided they meet the other requirements. For example, if an 
individual completed 20 different shopping trips for a grocery 
delivery service in a 30 calendar day period, we would still require 
the individual to report that work experience as a single ``gig'' 
delivery job, because the individual did the same job for the 30 
calendar days. This is true even though each individual shopping 
trip started and stopped within the 30 calendar days period.
---------------------------------------------------------------------------

    We are also revising our Forms SSA-3368-BK (Disability Report--
Adult) and SSA-3369-BK (Work History Report) to include an instruction 
that individuals should not list work information for jobs that started 
and stopped in fewer than 30 days.

Work History Forms

    Question to the Public: In the NPRM, we asked the public to 
identify potential simplifications to Form SSA-3369-BK (OMB No. 0960-
0578; Work History Report) or other aspects of the work history 
information collection process, without compromising our ability to 
collect the information required to make a fact-based disability 
determination. In response, we received several comments addressing our 
form instructions, the content of the questions we ask, the process we 
use to collect work history information, and increasing form 
accessibility. Details about these suggestions follow.

Comments on Form Instructions

    Comment: Some commenters suggested we provide additional guidance 
in our form instructions for Form SSA-3369-BK to increase the accuracy 
of information reported to us. One commenter asked us to include a 
sample page in these instructions, while others suggested we provide 
examples of the weights of common household items.
    Response: We agree with the goal of the commenters to increase the 
accuracy of information reported to us on the Form SSA-3369-BK by 
improving our form instructions. We have improved the instructions for 
completing the form by adding a list of information needed to complete 
the form and adding examples throughout, including a sample column that 
shows how individuals should complete the requested information. We 
have also updated the form's instructions by adding information about 
how individuals can contact us for help completing the form. We made 
similar revisions to the Form SSA-3368-BK (OMB No. 0960-0579; 
Disability Report-Adult). At this time, however, we have declined to 
add more detailed instructions about the weights of common household 
items because what constitutes ``common household items'' varies by 
household and over time; more importantly, the weights of many 
household items may not align with the weight categories used in our 
program rules, so including those weights could cause confusion for the 
public.

Changes to the Questions on the Work History Forms

    Comment: We received several comments suggesting changes to the 
content of the questions on the Form SSA-3369-BK and the other forms we 
use to collect work history information (Form SSA-3368-BK and Form HA-
4633 (OMB No. 0960-0300, Claimant's Work Background)):
    A few commenters suggested that we reduce the burden on individuals 
completing our forms by removing some detail from the questions we ask 
on the Form SSA-3369-BK. Some other comments suggested we revise our 
forms in specific ways, such as adding space for claimants to provide 
more information, describing terms being used, and analyzing the forms 
for literacy level.
    Other commenters suggested alternative, streamlined language for 
existing questions, and several commenters proposed additional 
questions. For example, some commenters said we should ask whether an 
individual had trouble completing tasks in their jobs, or whether they 
received special accommodations to complete their past work. Another 
commenter asked us to request more narrative, detailed responses in 
several areas rather than using questions in check-box format. Several 
commenters asked us to collect more information about the mental 
demands of an individual's past work. One commenter said we should add 
questions about specific supervisory duties, such as hiring and firing, 
evaluating worker performance, and assigning work. Other commenters 
suggested we add questions to determine whether work involved modified 
job tasks, accommodations, or a supported work environment, and whether 
a job ended because of the individual's impairments.
    Response: We appreciate the specific, well-thought-out suggestions 
submitted in response to our question to the public. In response to the 
comments that we completely remove questions about detailed information 
on work demands, we are ultimately not adopting this change. We need 
this information to accurately assess an individual's ability to 
perform PRW or to adjust to other work.
    However, we are making changes to the form consistent with the 
comments that we should collect more detailed information about an 
individual's work history by revising the relevant questions 
accordingly. To collect more information about the mental demands of an 
individual's past work, we are revising questions about tasks 
performed, supervisory duties, tools and equipment used, writing, and 
social interactions in a typical workday or workweek.
    We are also adding a question to Forms SSA-3368-BK and SSA-3369-BK 
asking an individual to explain how their impairment(s) would affect 
their ability to do each job. As well, we are revising Form SSA-3369-BK 
to include an explanation and examples of how to report the number of 
hours and minutes an individual stood, walked, and performed other 
activities in a day. Similarly, we changed a question to ask 
individuals to describe what tasks they did in a typical workday 
instead of what they did ``all day.''
    On the Form SSA-3368-BK, we continue to ask individuals receiving 
Supplemental Security Income (SSI) payments whether they received 
vocational rehabilitation, work accommodations, or other support 
services to continue performance of a job. We also continue to ask 
individuals whether their most recent work ended because of their 
impairments, and whether their employer changed their work duties at 
some point before the work ended.
    We are not adding questions to Form SSA-3369-BK to determine 
whether work other than an individual's most recent work ended because 
of their impairments or involved accommodations. Adding such a question 
could inject unnecessary complexity into Form SSA-3369-BK because it 
and other forms, such as Form SSA-821 (Work Activity Report--Employee), 
collect information that routinely allows adjudicators to determine 
whether an individual received accommodations in a given job and 
whether a work attempt was unsuccessful.
    We note that more detailed information about all the changes we are 
making to the forms cited here can be found in the Information 
Collection Request documentation, which we will upload to https://www.reginfo.gov in association with this final rule.

[[Page 27661]]

Suggestions To Prepopulate the Forms With Information From SSA Records

    Comment: We received several comments addressing the process we use 
to collect work history information. Multiple commenters suggested that 
we prepopulate work history forms with employment information we may 
already have through my Social Security (mySSA) accounts,\41\ data 
matching agreements with other agencies, or other sources. Some 
commenters supported this suggestion by noting that we use earnings 
queries at administrative law judge hearings to verify past work.
---------------------------------------------------------------------------

    \41\ For more information, see https://www.ssa.gov/myaccount/.
---------------------------------------------------------------------------

    Other commenters suggested that we simplify the disability 
application process by capturing an individual's complete work history 
on Form SSA-3368-BK, ending use of Form SSA-3369-BK altogether, or by 
making Form SSA-3369-BK available to submit electronically.
    Response: While we appreciate these comments and agree with the 
general goal of simplifying the application process, we do not think 
prepopulating work history forms is feasible or advisable at this time. 
Because we now require an individual to report only 5 years of work 
history, we expect that work history forms will already be 
significantly less burdensome to complete. As well, several factors 
make this suggestion inadvisable from our perspective. Our employment 
and earnings information is subject to a variety of laws and rules that 
limit how it may be used,\42\ and it is maintained in a format that 
would not easily translate to the work history forms. Therefore, 
designing an automated process to prepopulate work history forms would 
pose complex challenges to ensure legal compliance and develop systems 
upgrades. In addition, prepopulating forms might be confusing for some 
individuals (for example, our data might use an employer name the 
individual is not familiar with, because of differences between the 
employer's legally incorporated name and the name they use with the 
public or their staff). Moreover, our employment and earnings 
information will continue to be available through mySSA for those 
individuals who think the information would help them complete work 
history forms.
---------------------------------------------------------------------------

    \42\ We may only disclose personal information as authorized by 
the Privacy Act, the Social Security Act, and other applicable 
Federal laws. See 5 U.S.C. 552a(b) and (e)(10); 42 U.S.C. 1306(a). 
Our use and disclosure of earnings and employment data is further 
restricted by the Internal Revenue Code. See 26 U.S.C. 6103. We have 
established processes by which an individual can request their 
yearly earnings totals or an itemized earnings statement (e.g., Form 
SSA-7050-F4 Request For Social Security Earnings Information).
    \42\ See SSR 82-62 (the individual ``is the primary source for 
vocational documentation''); also see 20 CFR 404.1560(6) and 
416.960(b) (``We will ask you for information about work you have 
done in the past'').
---------------------------------------------------------------------------

    We have long relied on individuals to provide information about 
their past work, and think it is appropriate to continue that 
process.\43\ Pre-filled work history forms might have unintended 
consequences. For example, individuals might assume the pre-filled 
information is correct and complete without a careful review, leaving 
the form inaccurate or incomplete. Because reports from the individual 
are most complete (we only have annual earnings from employers and not 
necessarily information about specific work performed), we may very 
well be introducing inadvertent errors and causing confusion for 
individuals, further prolonging the process. A longer process and 
creating errors for individuals to fix run contrary to the purpose of 
this regulation. Additionally, individuals might be confused by the 
pre-filled information and require more help to complete the form.
---------------------------------------------------------------------------

    \43\ Id.
---------------------------------------------------------------------------

    Pre-filling forms can reduce burden in certain circumstances, and 
some of the unintended consequences could potentially be mitigated. 
Ultimately, though, at this time we conclude that the time, 
operational, technological, and burden-to-respondent costs of 
remediating errors stemming from an incomplete or incorrect prefill 
would outweigh the benefits of a prefill approach. Given these 
concerns, we do not think prepopulating forms is possible or advisable 
at this time.
    While we do provide individuals with an advance copy of their 
records, including work history and medical information, at the 
hearings level of the disability process, this is not a parallel to the 
commenter's request for prepopulated forms. At the hearings level, the 
records we provide contain both the information that the individual 
reported to us at the initial application and reconsideration stages of 
the disability process, as well as our own historical wage reporting 
data. Thus, a large portion of those records is simply resharing 
information the individual already gave us themselves, while the wage 
data, as previously explained, is more limited, may be incomplete, may 
lag (particularly since it comes from IRS), and may include employer 
names with which the individual is unfamiliar. In contrast, the 
commenter was asking for us to pre-fill the initial work history forms 
for them, which is entirely different.
    We also disagree with the suggestion that we discontinue our use of 
Form SSA-3369-BK. Our use of Form SSA-3368-BK is intended to reduce the 
overall information collection burden for many individuals because we 
use Form SSA-3369-BK only when an individual had two or more jobs 
during the relevant work period. Revising the relevant work history 
period from 15 years to 5 years in this final rule will increase the 
likelihood that we will capture individuals' complete work histories on 
Form SSA-3368-BK, eliminating the need to complete a separate Form SSA-
3369-BK. For situations where there were two or more jobs during the 
preceding 5-year period, though, Form SSA-3369-BK will still be useful 
and appropriate.

Suggestions To Increase Form Accessibility

    Comment: We received several comments focused on increasing 
accessibility in the forms we use to collect work history information 
and in our disability process generally, including for individuals with 
limited English proficiency, sensory disabilities, illiteracy, or 
limited vision. One commenter suggested that in addition to our 
existing written instructions, we provide video instructions on how to 
complete the form with optional American Sign Language interpretation, 
which would benefit Deaf individuals. Several commenters requested that 
we translate these forms into multiple languages, as this would 
increase access among individuals for whom English is not a first 
language and minimize the need for additional assistance from 
interpreters, translators, or others. Another commenter asserted that 
we should take steps to make the forms more accessible by increasing 
the relevance and clarity of questions, analyzing the complexity of the 
language used in our forms, and engaging experts to develop questions 
that are more easily understandable.
    Response: We chose not to adopt the suggestion to create an 
instructional video. However, we agree every effort should be made to 
ensure our forms are accessible to all. Our Language Access Plan 
demonstrates our commitment to providing substantially equal and 
meaningful access to Social Security benefits and services to all 
people, regardless of their English proficiency.\44\ We have revised 
the instructions on

[[Page 27662]]

Form SSA-3368-BK to include our toll-free number in case an individual 
needs assistance. On Forms SSA-3368-BK and SSA-3369-BK, we have added 
an explanation that we provide interpreters free of charge. In 
accordance with our regulations that require us to ensure that our 
forms use plain language, we have revised our forms to improve their 
readability. We also note that our forms online are Section 508 
compliant.\45\ We also make reasonable modifications to our policies, 
practices, and procedures and take appropriate steps to ensure 
effective communication, including by providing appropriate auxiliary 
aids and services, when needed for individuals with disabilities within 
the meaning of Section 504 of the Rehabilitation Act.\46\
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    \44\ SSA Language Access Plan, available at: https://www.ssa.gov/eeo/documents/LAP2024-2026.pdf.
    \45\ Section 508 of the Rehabilitation Act of 1973, also issued 
under 29 U.S.C. 798.
    \46\ See generally 29 U.S.C. 794.
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Question Regarding the New Proposed Burden for Completion of Forms

    Comment: Our current estimate to complete Form SSA-3369-BK for a 
15-year work history is 60 minutes. In the NPRM, we asked commenters 
whether they agreed with our new time burden estimate of 40 minutes to 
complete the form, assuming implementation of the proposed 5-year work 
history requirement.
    Commenters provided a range of diverse suggestions regarding our 
prior and proposed new burdens, both for Form SSA-3369-BK (which we 
explicitly asked about) and Form SSA-3368-BK (which we did not). One 
commenter, a legal aid organization, noted that in its experience 
individuals often required far longer than our estimated average time 
burden to complete Forms SSA-3368-BK and SSA-3369-BK, even with its 
assistance. This commenter disputed our estimate that the revised Form 
SSA-3368-BK would take 80 minutes to complete, on average, and that the 
revised Form SSA-3369-BK would take 40 minutes on average, citing a 
continuing ``high information burden'' under the new final rules. One 
commenter stated the prior 60-minute estimate we used prior to this 
final rule would still remain accurate because individuals would 
respond to the shorter relevant work period by taking more time to 
provide more accurate information about their past jobs.
    In contrast, other commenters stated we had not lowered the burden 
estimate enough. These commenters offered new time burden 
approximations of 20 or 30 minutes instead of our 40-minute estimate 
for Form SSA-3369-BK. Finally, one commenter indicated that, while this 
rule change should warrant a reduction in time burden, it would be 
difficult to quantify the amount of the reduction.
    Response: We appreciate the commenters' responses to our question. 
The time burden we report is meant to represent an average (arithmetic 
mean) of the actual time burdens all individuals experience, which vary 
widely from individual to individual. The range of responses and lack 
of agreement on what the actual burden should be underscored the 
challenges involved in estimating a time burden that will apply to most 
individuals. For that reason, we will retain our 40-minute average time 
burden estimate.

Suggestions To Update the Occupational Information We Currently Use

    Comment: Several commenters said that we should update our 
vocational rules and use more current sources of occupational 
information, with many stating that the occupational information in the 
Dictionary of Occupational Titles (DOT) is no longer current. A few 
commenters encouraged us to stop use of the DOT and begin use of the 
Occupational Requirements Survey (ORS),\47\ which some representatives 
say they already reference when questioning vocational experts during 
hearings. One commenter questioned our future plans for more global 
medical-vocational rule reforms, specifically referencing other 
rulemakings we might publish in this area. Another commenter asserted 
that we should update the medical-vocational rules (commonly known as 
the ``grid rules'') and our age categories.
---------------------------------------------------------------------------

    \47\ See the ORS Home Page: U.S. Bureau of Labor Statistics, 
available at: https://www.bls.gov/ors/#production.
---------------------------------------------------------------------------

    Response: We appreciate the comments regarding updating our 
medical-vocational rules and our sources of occupational information. 
These comments are outside of the scope of this final rule. This final 
rule is narrowly focused on revisions to the relevant work period and 
the related information collection burdens when considering PRW.
    Comment: One commenter stated that we should not pursue a final 
rule because of its ``intermediate'' nature, and because we have not 
described our forthcoming efforts in other disability-related areas.
    Response: We use the word ``intermediate'' in the title to indicate 
that we are making the changes in the context of reviewing all our 
disability rules. However, given that any other disability rule changes 
would be made in separate future rulemakings, there is no reason to 
delay proceeding with this final rule. The change in relevant work 
period rules stands alone and does not depend on other, potential 
future rule changes.

Suggestions Regarding the Medical-Vocational Profiles

    Comment: We received several comments in support of our proposal to 
use the 5-year relevant work period in the no work medical-vocational 
profile. One commenter said that this change would yield more realistic 
results for individuals over the age of 50 with adverse vocational 
profiles, without creating inaccuracy in disability analysis for 
individuals under the age of 50. Other commenters suggested that we 
make additional revisions to the other two current medical-vocational 
profiles (the arduous unskilled and lifetime commitment profiles) in 
this rulemaking or future rulemakings. Examples of these suggestions 
included lowering the minimum age category required by the lifetime 
commitment profile, raising the minimum education category required by 
the medical-vocational profiles (profiles), and reducing the arduous 
unskilled profile's work history requirement. One of these commenters 
indicated that adopting their suggestion would make it easier for an 
individual to meet the criteria of these profiles. Others indicated 
that adopting their suggestions would improve the vocational relevance 
of the profiles, thereby improving their accuracy.
    A few commenters opposed the proposal to use the 5-year relevant 
work period in the no work profile. One commenter said the rationale in 
the NPRM would better support revising all of the profiles so that they 
all consider no more than 5 years of work history, while another 
commenter said we should continue to consider 15 years of work history 
for the no work profile. A few commenters asked that we no longer 
consider the profiles at all, while another commenter supported keeping 
the profiles because they provide additional avenues for claimants to 
be allowed disability benefits. One commenter opined that the proposed 
new no work profile was unsupported, because information from the BLS' 
ORS and Occupational Employment Statistics (OES) shows there are 
millions of jobs in the national economy that an individual with no 
work experience and no high school education could do.
    Response: We agree with the commenters supporting the proposal to 
use the 5-year relevant work period in the no work profile. We agree 
that

[[Page 27663]]

aligning the no work profile with the 5-year relevant work period helps 
keep our rules consistent and reflects the vocational disadvantage of 
remaining out of the workforce for an extended period of time due to 
the effects of a severe medically determinable impairment(s).
    We also appreciate the comments that suggested additional changes 
to the current profiles. Although we are not adopting these suggestions 
in this final rule, we may consider further revisions to the profiles 
in a future rulemaking.
    We disagree with the comments stating that we should no longer use 
the arduous unskilled work and lifetime commitment profiles because 
they require consideration of work performed for more than 5 years. The 
high exertional and nonexertional demands of work considered under 
these profiles are likely to remain consistent throughout the period 
considered, including for work performed during the relevant work 
period. The information we have in these claims is therefore current, 
more likely to be accurate, and unlikely to require additional 
development. We may, however, consider further revisions to these 
profiles in a future rulemaking proceeding.
    We also disagree with the comments stating that we should retain 
consideration of 15 years of work history for the no work profile, and 
that we should no longer consider the no work profile at all. Although 
one commenter asserted that information from BLS showed there were 
millions of jobs in the national economy that an individual with no 
work experience and no high school education could do, we do not find 
this comment persuasive. The purpose of the no work profile is to 
reflect the vocational disadvantage of remaining out of the workforce 
for an extended period of time due to the effects of a severe medically 
determinable impairment(s) together with the combination of being of 
older age and not completing high school. The BLS data cited by the 
commenter opposing the no work profile does not reflect information 
about all the vocational factors included in the no work profile. The 
commenter's data also do not address how being out of the work force 
for an extended period of time affects the ability to work.

Concerns Regarding the Medical-Vocational Guidelines

    Comment: One commenter stated that they could not support the 
proposed change because we had not discussed how the proposed policy 
affects the evaluation of disability under the medical-vocational 
guidelines.\48\ They also opined that we should have provided an 
explanation or analysis of how the step five factors were reconsidered 
or why they were not reconsidered in light of the new policy. The 
commenter alleged that such a discussion is necessary because, in some 
circumstances, an individual's work experience will direct a finding of 
``disabled'' or ``not disabled'' under some rules in the medical-
vocational guidelines.
---------------------------------------------------------------------------

    \48\ 20 CFR part 404, subpart P, appendix 2.
---------------------------------------------------------------------------

    Response: The commenter incorrectly assumes that changing the 
definition of the relevant work period will affect the evaluation of 
disability under the medical-vocational guidelines. The regulation will 
affect some of the criteria present in the medical-vocational 
guidelines, but it will not alter how we use those rules. For example, 
while the medical-vocational guidelines consider the existence of an 
individual's transferable skills, the time period during which those 
skills were acquired does not affect how the medical-vocational 
guidelines operate.
    We acknowledge that several rules in the medical-vocational 
guidelines direct outcomes based on an individual's work experience. 
Specifically, some rules direct an outcome of ``not disabled'' where an 
individual has acquired skills from their PRW that will transfer to 
other work.\49\ These rules reflect our conclusion that individuals 
with transferable skills have a vocational advantage in their ability 
to adjust to other work when compared to individuals who do not have 
such skills.
---------------------------------------------------------------------------

    \49\ See, e.g., 20 CFR part 404, subpart P, appendix 2, sections 
201.03, 201.07, 202.03, and 202.07.
---------------------------------------------------------------------------

    However, although the Act requires us to consider an individual's 
work experience,\50\ it is within our regulatory authority to define 
the time period for relevant work experience that provides a vocational 
advantage. This changed definition does not affect the validity of the 
medical-vocational guidelines, even though it may change decisional 
outcomes for some individuals.
---------------------------------------------------------------------------

    \50\ 42 U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B).
---------------------------------------------------------------------------

Other Suggested Changes to Our Adjudication Process

    Comment: Several commenters offered additional suggestions about 
how we could change our adjudication process. For example, one 
commenter suggested that we should strive to make the adjudication 
process easier for individuals to navigate without professional 
assistance, and that we should hire independent navigators to assist 
people applying for benefits. The commenter also suggested we should 
add more flexibility and expand the ``timelines of processes.'' Another 
commenter said that the proposed change should be amended to add more 
discretion to our adjudication process, such as being more flexible on 
evaluating SGA and allowing disabled persons to work and gain more 
income while receiving benefits.
    Response: We acknowledge the suggestions about our adjudication 
process, but suggestions unrelated to the consideration of PRW are 
outside the scope of this final rule. However, we note that individuals 
may visit a field office for in-person assistance, contact us by 
telephone or mail, or may visit our website at https://www.ssa.gov for 
assistance in applying for benefits. Furthermore, we want to clarify 
that the Act and our rules allow disabled individuals to work and earn 
up to certain amounts while still receiving benefits. For more 
information, see Publication No. 05-10060 Incentives to Help You Return 
to Work.\51\
---------------------------------------------------------------------------

    \51\ Available at: https://www.ssa.gov/pubs/EN-05-10060.pdf.
---------------------------------------------------------------------------

Concerns About Financial Impact of the Regulation

    Comment: A few commenters opposed our proposal because it would 
increase the allowance rate, requiring new General Fund and Trust Fund 
expenditures that the commenters characterized as ``unfair to 
taxpayers.'' One commenter asserted it is likely that the NPRM 
significantly understated the negative impact of increased allowances 
on work and employment and payroll taxes. To support this assertion, 
the commenter cited a 2022 study,\52\ which focused on change in the 
Austrian disability program and found a nearly one-for-one relationship 
between the number of claimants denied disability benefits at older 
ages and continued employment. In other words, this study found that if 
individuals were denied benefits at older ages, they would continue to 
work (and thus contribute to employment and payroll taxes) in Austria. 
Another commenter stated the policy would give disability benefits to 
too many people. This commenter also said the proposed 5-year relevant 
work period was contradicted by an existing subregulatory instruction 
(specifically

[[Page 27664]]

our Program Operations Manual System (POMS)) referencing a 7-year 
period.\53\
---------------------------------------------------------------------------

    \52\ Ahammer, Alexander and Packham, Analisa. Disability 
Insurance Screening and Workers' Health and Labor Market Outcomes 
(2022). W.E. Upjohn Institute for Employment Research. https://research.upjohn.org/cgi/viewcontent.cgi?article=1326&context=empl_research.
    \53\ See POMS DI 28015.310, available at https://secure.ssa.gov/poms.nsf/lnx/0428015310.
---------------------------------------------------------------------------

    Response: While this final rule is projected to increase General 
and Trust Funds expenditures, a fact we disclosed in the NPRM, we 
disagree this increase is ``unfair to taxpayers.'' The projected 
increase in allowances represents a small percentage of yearly 
allowances and of the total number of individuals served by our 
disability programs. For example, we stated in our NPRM that Social 
Security Disability Insurance (SSDI) allowances are projected to 
increase by approximately 20,000 individuals per year due to 
implementation of this final rule. Considering that the SSDI program 
added at least 640,000 new recipients each year between 2008 and 2020 
and added at least 540,000 new recipients in subsequent years,\54\ the 
inclusion of 20,000 new recipients per year for fiscal years 2025 
through 2033 represents a relatively small increase of approximately 4 
percent.
---------------------------------------------------------------------------

    \54\ See https://www.ssa.gov/OACT/STATS/dibStat.html.
---------------------------------------------------------------------------

    In addition, our Office of the Chief Actuary (OCACT) projected that 
this final rule will produce a net reduction in scheduled Old-Age and 
Survivors Insurance (OASI) benefits of approximately $6.3 billion over 
fiscal years 2024 through 2033, which will reduce the financial stress 
on another important Federal insurance program (although, per the 
information provided in the ``Anticipated Transfers to Our Program,'' 
overall this regulation does result in significant net costs to the 
Trust Funds. Please see this section in the preamble of this final rule 
for complete transfer figures relating to the regulation).
    We similarly disagree that the Austrian study cited by the 
commenter provides evidence that we have understated the potentially 
depressing effect of the rule on payroll taxes. By citing this 
particular study, the commenter assumes that if we did not implement 
this final rule and increase the number of allowances, many of the 
affected individuals would return to work (``nearly one for one''), and 
would thus contribute more taxes. However, this assumption cannot be 
made based on the evidence provided. The Austrian disability program's 
criteria do not align with ours, and the jobs available in the United 
States national economy may not match Austria's either. For example, 
even the strictest Austrian disability rule allowed applicants with up 
to 50 percent capacity to receive benefits, while the United States 
does not grant disability benefits to individuals who demonstrate such 
high work capacity. Given these differences in disability criteria and 
the type of work available in the national economy, it is not 
appropriate to extrapolate the results of the Austrian study to 
potential outcomes for us. Indeed, the article's authors themselves 
state that their findings may not be most relevant for other countries 
such as the United States.
    For the above reasons, and because of the long-established, 
meticulous, and well-supported nature of OCACT's work, we are confident 
that OCACT's projections on the financial effects of this final rule 
are reasonable and of the correct magnitude.
    In response to the commenter who cited the subregulatory 
instruction (POMS), we note this comment appears to reflect a 
misunderstanding. The subregulatory instruction the commenter cited 
relates to a topic that is different from the relevant work period.
    Ultimately, when weighing the above considerations and the 
anticipated advantages this final rule will offer to disability 
applicants, such as better reflecting the diminishing relevance of 
unused work skills over time, improving customer service, and making 
our adjudication process more efficient, we find the cost of this rule 
is justified by the overall benefits to the public.

Technical Concerns

    Comment: One commenter stated that we should not pursue a final 
rule because the NPRM does not conform to Title III of the Fiscal 
Responsibility Act of 2023.
    Response: This rule complies with the cited provisions of the 
Fiscal Responsibility Act of 2023, known as the Administrative Pay-As-
You-Go Act of 2023. That Act does not impose requirements at the NPRM 
stage. The Director of OMB has waived the requirements of section 263 
of the Fiscal Responsibility Act of 2023 (Pub. L. 118-5) pursuant to 
section 265(a)(2) of that Act.
    Comment: One commenter stated that we should not pursue a final 
rule because we have not completed a Regulatory Impact Analysis (RIA) 
or a federalism analysis.
    Response: Regulations that have an annual effect on the economy of 
$200 million or more are deemed economically significant and have 
additional analytical requirements under Executive Order (E.O.) 12866, 
such as requiring an RIA. As we reported in the NPRM, our OCACT 
estimated this rule will technically meet this threshold. For the 
period of FY 2024 through FY 2033, OCACT estimated an increase in 
scheduled SSDI benefits of $22.2 billion, a net reduction in scheduled 
OASI benefits of $6.3 billion, and an increase in Federal SSI payments 
of $3.8 billion in total. OCACT also estimated that the increase in the 
number of individuals who would be receiving disability benefits 
attributable to implementation of this rule would reduce OASDI payroll 
tax revenue over the next 10 years by a total between $200 million and 
$300 million.
    These figures indicate the commenter was correct in their assertion 
about the need for an RIA, but we disagree with the commenter's 
characterization that we did not conduct the necessary RIA analyses at 
the NPRM stage. While we did not provide a separate RIA document, our 
NPRM included the elements of an RIA that were relevant to our 
proposal, such as our reporting of the OCACT estimated costs, our 
analysis of transfer impacts and administrative costs, our explanation 
of the assumptions underlying the NPRM, and our touching on 
alternatives to our proposal. While not a separate RIA document, these 
analyses from the NPRM fulfill our obligations to review the direct 
effects of the rulemaking. Nevertheless, for ease of readers, we are 
consolidating these RIA elements into a separate document and 
publishing them in the Federal Register. We are also providing it as a 
supplemental document in the supporting materials section on https://www.regulations.gov under Docket No. SSA-2023-0024.
    Regarding any federalism issues, the NPRM included our 
determination that the proposed rule would not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment, and thus further analysis in this area is not required. 
This final rule includes that same determination.

Regulatory Procedures

E.O. 12866, as Supplemented by E.O. 13563 and Amended by E.O. 14094

    We consulted with the Office of Management and Budget (OMB), and 
OMB determined that this final rule meets the criteria for a section 
(3)(f)(1) significant regulatory action under E.O. 12866, as 
supplemented by E.O. 13563 and amended by E.O. 14094, and is subject to 
OMB review.

Anticipated Transfers to Our Program

    OCACT estimates that implementation of this final rule will result 
in an increase in scheduled SSDI benefits of $22.2 billion, a net 
reduction

[[Page 27665]]

in scheduled OASI benefits of $6.3 billion, and an increase in Federal 
SSI payments of $3.8 billion in total over fiscal years 2024 through 
2033, assuming implementation for all decisions made on or after the 
effective date. OCACT also estimates that the increase in the number of 
individuals who would be receiving disability benefits attributable to 
implementation of this rule would reduce OASDI payroll tax revenue over 
the next 10 years by a total between $200 million and $300 million, due 
to the diminished need to make extraordinary efforts to maintain even a 
small amount of earnings at a fraction of their earnings level prior to 
becoming disabled. We refer the reader to the NPRM for a more detailed 
analysis.

Anticipated Net Administrative Savings to SSA

    The Office of Budget, Finance, and Management estimates that this 
final rule will result in net administrative savings of $1 billion for 
the 10-year period from FY 2024 to FY 2033. The administrative savings 
are primarily driven by time savings from evaluating work over a 
shorter period for initial claims, reconsideration requests, and 
hearings processed in our field offices, State disability determination 
services, and hearings offices. In addition, due to a shorter PRW 
period, we expect fewer disability reconsiderations, and hearings 
requests over the 10-year period, leading to sizeable administrative 
savings. Savings are offset by administrative costs stemming from 
systems updates and training costs upon implementation, and post-
eligibility actions for additional beneficiaries and non-disabled 
dependents thereafter.

Anticipated Time-Savings and Other Qualitative Benefits to the Public

    This final rule will reduce the obstacles that individuals with 
significant physical or mental impairments face in their efforts to 
obtain the crucial benefits our disability programs provide. Our 
experience indicates that individuals often find it difficult to gather 
and provide accurate information about their work histories, and that 
those difficulties tend to increase when they are asked to provide 
detailed information about work performed in the more distant past. 
Reducing individuals' need to gather and report information about work 
performed beyond a 5-year relevant period will increase the likelihood 
we will have a complete and accurate work history report. As discussed 
in the Paperwork Reduction Act section below, we estimate a minimum of 
938,735 hours of time savings in direct paperwork burden experienced by 
claimants as well as additional time-savings associated with the 
overall process of completing the relevant forms. In addition, we 
estimate opportunity costs of this time-savings to be at least 
$62,049,205 annually.

Anticipated Costs to the Public

    As discussed in the preamble, our process for determining if an 
individual is disabled includes evaluating whether the individual, 
given their RFC, can perform their PRW. If an individual can perform 
their past work, then we will determine they are not disabled. By 
reducing the relevant work period to 5 years, there are likely, on the 
margins, individuals who held jobs longer than 5 years in the past who 
may still be able to perform those jobs today. Under the prior rules 
the individual would be found not disabled; however, under this final 
rule change the individual would be allowed. A subset of these 
individuals who would have previously been found not disabled could 
have worked in the absence of benefits. This reduction in labor force 
participation imposes some social costs to the public (OCACT estimates 
$1.5-$2.5 billion in reduced earned income by wage earners over the 
next 10 years). However, as discussed in the preamble, the projected 
increase in allowances represents only a relatively small percentage 
and the potential social cost of reduced employment generated by this 
final rule is likely to be quite low.\55\
---------------------------------------------------------------------------

    \55\ Maestas, Nicole, Kathleen J. Mullen, and Alexander Strand. 
2013. ``Does Disability Insurance Receipt Discourage Work? Using 
Examiner Assignment to Estimate Causal Effects of SSDI Receipt.'' 
American Economic Review, 103 (5): 1797-1829. French, Eric, and Jae 
Song. 2014. ``The Effect of Disability Insurance Receipt on Labor 
Supply.'' American Economic Journal: Economic Policy 6(2): 291-337.
---------------------------------------------------------------------------

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as a ``major rule,'' as defined by 5 U.S.C. 804(2).\56\
---------------------------------------------------------------------------

    \56\ A ``major rule'' means any rule that the Administrator of 
the Office of Information and Regulatory Affairs at OMB finds has 
resulted in or is likely to result in: (a) an annual effect on the 
economy of $100 million or more; (b) a major increase in costs or 
prices for consumers, individual industries, Federal agencies, State 
agencies, local government agencies, or geographic regions; or (c) 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic 
and export markets (5 U.S.C. 804(2)).
---------------------------------------------------------------------------

Compliance With Section 263 of the Fiscal Responsibility Act of 2023 
(Pub. L. 118-5)

    The Director of OMB has waived the requirements of section 263 of 
the Fiscal Responsibility Act of 2023 (Pub. L. 118-5) pursuant to 
section 265(a)(2) of that Act.

E.O. 13132 (Federalism)

    We analyzed this final rule in accordance with the principles and 
criteria established by E.O. 13132 and determined that this final rule 
will not have sufficient federalism implications to warrant the 
preparation of a federalism assessment. We also determined that this 
final rule will not preempt any State law or State regulation or affect 
the States' abilities to discharge traditional State governmental 
functions.

Regulatory Flexibility Act

    We certify that this final rule will not have a significant 
economic impact on a substantial number of small entities, as it 
affects individuals only. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    SSA already has existing OMB PRA-approved information collection 
tools relating to this final rule: Claimant's Work Background (HA-4633, 
OMB No. 0960-0300); Work History Report SSA-3369, OMB No. 0960-0578); 
and Disability Report--Adult (SSA-3368, OMB No. 0960-0579). This final 
rule provides for a shorter work history requirement than we previously 
required; therefore, we expect this rule will significantly reduce 
public reporting burdens associated with these forms. The sections 
below report our current public reporting burdens for these existing 
OMB-approved forms and project the anticipated burden reduction and new 
burden figures after implementation at the final rule stage. We will 
obtain OMB approval for the revisions to the collection instruments 
concurrently with the effective date of this final rule.
    The following chart shows the time burden information associated 
with this final rule:

[[Page 27666]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               Anticipated
                                                                                     Current      Current      Anticipated      estimated
                                                          Number of    Frequency     average     estimated   new burden per   total burden    Estimated
              OMB #; form #; CFR citations               respondents  of response   burden per     total     response under       under         burden
                                                                                     response      burden      regulation      regulation      savings
                                                                                    (minutes)     (hours)       (minutes)        (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
0960-0300 HA-4633 (Paper Form) 410.1560; 416.960.......       32,300            1           30       16,150              20          10,767        5,383
0960-0300 HA-4633 (ERE) 410.1560; 416.960..............      157,700            1           30       78,850              20          52,567       26,283
0960-0578 SSA-3369 (Paper Form) 410.1560; 416.960......    1,553,900            1           60    1,553,900              40       1,035,933      517,967
0960-0578 SSA-3369 (EDCS Screens) 410.1560; 416.960....       38,049            1           60       38,049              40          25,366       12,683
0960-0579 SSA-3368 (Paper Form) 410.1560; 416.960......        6,045            1           90        9,068              80           8,060        1,008
0960-0579 SSA-3368 (EDCS Screens) 410.1560; 416.960....    1,263,104            1           90    1,894,656              80       1,684,139      210,517
0960-0579 i3368 (Internet Screens) 410.1560; 416.960...      989,361            1           90    1,484,042              80       1,319,148      164,894
                                                        ------------------------------------------------------------------------------------------------
    Totals.............................................    4,040,459  ...........  ...........    5,074,715  ..............       4,135,980      938,735
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The following chart shows the theoretical cost burdens associated 
with this final rule:

----------------------------------------------------------------------------------------------------------------
                                                 Anticipated
                                                  estimated        Average      Average wait
                                                total burden     theoretical    time in field     Total annual
  OMB #; form #; CFR citations     Number of        under        hourly cost      office or     opportunity cost
                                  respondents    regulation        amount        teleservice     (dollars) ***
                                                 from chart      (dollars) *       centers
                                                above (hours)                   (minutes) **
----------------------------------------------------------------------------------------------------------------
0960-0300 HA-4633 (Paper Form)         32,300          10,767        * $13.30  ..............       *** $143,201
 410.1560; 416.960..............
0960-0300 HA-4633 (ERE)               157,700          52,567         * 31.48  ..............      *** 1,654,809
 410.1560; 416.960..............
0960-0578 SSA-3369 (Paper Form)     1,553,900       1,035,933         * 13.30  ..............     *** 13,777,909
 410.1560; 416.960..............
0960-0578 SSA-3369 (EDCS               38,049          25,366         * 13.30           ** 21        *** 514,484
 Screens) 410.1560; 416.960.....
0960-0579 SSA-3368 (Paper Form)         6,045           8,060         * 13.30           ** 21        *** 135,341
 410.1560; 416.960..............
0960-0579 SSA-3368 (EDCS            1,263,104       1,684,139         * 13.30           ** 21     *** 28,278,793
 Screens) 410.1560; 416.960.....
0960-0579 i3368 (Internet             989,361       1,319,148         * 13.30  ..............     *** 17,544,668
 Screens) 410.1560; 416.960.....
                                 -------------------------------------------------------------------------------
    Totals......................    4,040,459       4,135,980  ..............  ..............     *** 62,049,205
----------------------------------------------------------------------------------------------------------------
* We based this figure on the average DI payments based on SSA's current FY 2024 (this is the most current
  figures we have for the DI payments) data (https://www.ssa.gov/legislation/2024FactSheet.pdf); on the average
  U.S. citizen's hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/oes_nat.htm).
** We based this figure on the average FY 2024 wait times for field offices and hearings office, as well as by
  averaging both the average FY 2024 wait times for field offices and teleservice centers, based on SSA's
  current management information data.
*** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments
  to complete this application; rather, these are theoretical opportunity costs for the additional time
  respondents will spend to complete the application. There is no actual charge to respondents to complete the
  application.

    SSA submitted a single new Information Collection Request which 
encompasses the revisions to all three information collections 
(currently under OMB Numbers 0960-0300, 0960-0578, and 0960-0579) to 
OMB for the approval of the changes due to this final rule. After 
approval at the final rule stage, we will adjust the figures associated 
with the current OMB numbers for these forms to reflect the new burden. 
We are soliciting comments on the burden estimate; the need for the 
information; its practical utility; ways to enhance its quality, 
utility, and clarity; and ways to minimize the burden on respondents, 
including the use of automated techniques or other forms of information 
technology. If you would like to submit comments, please send them to 
the following locations:
    Office of Management and Budget, Attn: Desk Officer for SSA, Fax 
Number: 202-395-6974, Email address: [email protected].
    Social Security Administration, OLCA, Attn: Reports Clearance 
Director, Mail Stop 3253 Altmeyer, 6401 Security Blvd., Baltimore MD 
21235, Fax: 410-966-2830, Email address: [email protected].
    You can submit comments until May 20, 2024, which is 30 days after 
the publication of this notice. However, your comments will be most 
useful if you send them to SSA by May 20, 2024, which is 30 days after 
publication. To receive a copy of the OMB clearance package, contact 
the SSA Reports Clearance Officer using any of the above contact 
methods. We prefer to receive comments by email or fax.

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, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

    The Commissioner of Social Security, Martin O'Malley, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Faye I. Lipsky, who is the primary 
Federal Register Liaison for SSA, for purposes of publication in the 
Federal Register.

Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional 
Affairs, Social Security Administration.

    For the reasons set out in the preamble, we amend 20 CFR parts 404 
and 416 as set out below:

[[Page 27667]]

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-)

Subpart P--Determining Disability and Blindness

0
1. The authority citation for subpart P of part 404 continues to read 
as follows:

    Authority: 42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a) 
and (h)-(j), 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.  404.1560 by revising paragraph (b)(1) to read as 
follows:


Sec.  404.1560  When we will consider your vocational background.

* * * * *
    (b) * * *
    (1) Definition of past relevant work--(i) What is past relevant 
work. Past relevant work is work that you have done within the past 
five years that was substantial gainful activity and that lasted long 
enough for you to learn to do it (see Sec.  404.1565(a)). We will not 
consider work to be past relevant work if you started and stopped it in 
fewer than 30 calendar days (see paragraph (b)(1)(ii) of this section).
    (ii) 30 calendar days. When we consider past relevant work and work 
experience (see Sec.  404.1565), 30 calendar days means a period of 30 
consecutive days, including weekends, starting from the first day of 
work. When we consider whether work lasted 30 calendar days, we 
generally do not consider the total number of hours or days worked 
during that period, or whether the work was full-time or part-time. The 
30 calendar days requirement is separate from the consideration of 
substantial gainful activity or whether you worked long enough to learn 
how to do the work, although the work performed during the 30 calendar 
days may count toward the time needed for you to learn to do the work. 
The 30 calendar days requirement also applies if you were self-employed 
or an independent contractor; we will consider whether you were engaged 
in the same type of work for 30 calendar days, even if individual work 
assignments or contracts each lasted fewer than 30 calendar days.
* * * * *

0
3. Revise Sec.  404.1565 to read as follows:


Sec.  404.1565  Your work experience as a vocational factor.

    (a) General. Work experience means skills and abilities you have 
acquired through work you have done which show the type of work you may 
be expected to do. Work you have already been able to do shows the kind 
of work that you may be expected to do. We consider that your work 
experience applies when it was done within the last five years, lasted 
long enough for you to learn to do it, and was substantial gainful 
activity. We do not usually consider that work you did more than five 
years before the time we are deciding whether you are disabled (or when 
the disability insured status requirement was last met, if earlier) 
applies. A gradual change occurs in most jobs so that after five years 
it is no longer realistic to expect that skills and abilities acquired 
in a job done then continue to apply. If you have no work experience or 
you did work that started and stopped in a period of fewer than 30 
calendar days (see Sec.  404.1560(b)(1)(ii)) during the five-year 
period, we generally consider that these do not apply. If you have 
acquired skills through your past work, we consider you to have these 
work skills unless you cannot use them in other skilled or semi-skilled 
work that you can now do. If you cannot use your skills in other 
skilled or semi-skilled work, we will consider your work background the 
same as unskilled. However, even if you have no work experience, we may 
consider that you are able to do unskilled work because it requires 
little or no judgment and can be learned in a short period of time.
    (b) Information about your work. Under certain circumstances, we 
will ask you about the work you have done in the past. If you cannot 
give us all of the information we need, we may try, with your 
permission, to get it from your employer or other person who knows 
about your work, such as a member of your family or a co-worker. When 
we need to consider your work experience to decide whether you are able 
to do work that is different from what you have done in the past, we 
will ask you to tell us about all of the jobs you have had in the last 
five years. You must tell us the dates you worked, all of the duties 
you did, and any tools, machinery, and equipment you used. We will need 
to know about the amount of walking, standing, sitting, lifting and 
carrying you did during the workday, as well as any other physical or 
mental duties of your job. If all of your work in the past five years 
has been arduous and unskilled, and you have very little education, we 
will ask you to tell us about all of your work from the time you first 
began working. This information could help you to get disability 
benefits.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--Determining Disability and Blindness

0
4. 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 1383b); 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
5. Amend Sec.  416.960 by revising paragraph (b)(1) to read as follows:


Sec.  416.960  When we will consider your vocational background.

* * * * *
    (b) * * *
    (1) Definition of past relevant work--(i) What is past relevant 
work. Past relevant work is work that you have done within the past 
five years that was substantial gainful activity and that lasted long 
enough for you to learn to do it (see Sec.  416.965(a)). We will not 
consider work to be past relevant work if you started and stopped it in 
fewer than 30 calendar days (see paragraph (b)(1)(ii) of this section).
    (ii) 30 calendar days. When we consider past relevant work and work 
experience (see Sec.  416.965), 30 calendar days means a period of 30 
consecutive days, including weekends, starting from the first day of 
work. When we consider whether work lasted 30 calendar days, we 
generally do not consider the total number of hours or days worked 
during that period, or whether the work was full-time or part-time. The 
30 calendar days requirement is separate from the consideration of 
substantial gainful activity or whether you worked long enough to learn 
how to do the work, although the work performed during the 30 calendar 
days may count toward the time needed for you to learn to do the work. 
The 30 calendar days requirement also applies if you were self-employed 
or an independent contractor; we will consider whether you were engaged 
in the same type of work for 30 calendar days, even if individual work 
assignments or contracts each lasted fewer than 30 calendar days.
* * * * *

0
6. Revise Sec.  416.965 to read as follows:


Sec.  416.965  Your work experience as a vocational factor.

    (a) General. Work experience means skills and abilities you have 
acquired through work you have done which

[[Page 27668]]

show the type of work you may be expected to do. Work you have already 
been able to do shows the kind of work that you may be expected to do. 
We consider that your work experience applies when it was done within 
the last five years, lasted long enough for you to learn to do it, and 
was substantial gainful activity. We do not usually consider that work 
you did more than five years before the time we are deciding whether 
you are disabled applies. A gradual change occurs in most jobs so that 
after five years it is no longer realistic to expect that skills and 
abilities acquired in a job done then continue to apply. If you have no 
work experience or you did work that started and stopped in a period of 
fewer than 30 calendar days (see Sec.  416.960(b)(1)(ii)) during the 
five-year period, we generally consider that these do not apply. If you 
have acquired skills through your past work, we consider you to have 
these work skills unless you cannot use them in other skilled or semi-
skilled work that you can now do. If you cannot use your skills in 
other skilled or semi-skilled work, we will consider your work 
background the same as unskilled. However, even if you have no work 
experience, we may consider that you are able to do unskilled work 
because it requires little or no judgment and can be learned in a short 
period of time.
    (b) Information about your work. Under certain circumstances, we 
will ask you about the work you have done in the past. If you cannot 
give us all of the information we need, we may try, with your 
permission, to get it from your employer or other person who knows 
about your work, such as a member of your family or a co-worker. When 
we need to consider your work experience to decide whether you are able 
to do work that is different from what you have done in the past, we 
will ask you to tell us about all of the jobs you have had in the last 
five years. You must tell us the dates you worked, all of the duties 
you did, and any tools, machinery, and equipment you used. We will need 
to know about the amount of walking, standing, sitting, lifting and 
carrying you did during the workday, as well as any other physical or 
mental duties of your job. If all of your work in the past five years 
has been arduous and unskilled, and you have very little education, we 
will ask you to tell us about all of your work from the time you first 
began working. This information could help you to get disability 
benefits.

[FR Doc. 2024-08150 Filed 4-17-24; 8:45 am]
BILLING CODE 4191-02-P