[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.
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\33\ See POMS DI 25015.010 Education as a Vocational Factor,
available at https://secure.ssa.gov/poms.nsf/lnx/0425015010.
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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).
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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.
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\35\ 20 CFR 404.1566(e) and 416.966(e).
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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.
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\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.
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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.
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\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.
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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.
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\41\ For more information, see https://www.ssa.gov/myaccount/.
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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.
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\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'').
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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.
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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