Rescission of Social Security Acquiescence Rulings 88-3(7), 92-6(10), 98-1(8), and 00-5(6)

AGENCY:

Social Security Administration.

ACTION:

Notice of Rescission of Social Security Acquiescence Rulings (ARs) 88-3(7)—McDonald v. Bowen, 800 F.2d 153 (7th Cir. 1986), amended on reh’g, 818 F.2d 559 (7th Cir. 1987); 92-6(10)—Walker v. Secretary of Health and Human Services, 943 F.2d 1257 (10th Cir. 1991); 98-1(8)—Newton v. Chater, 92 F.3d 688 (8th Cir. 1996) and 00-5(6)—Salamalekis v. Apfel, 221 F.3d 828 (6th Cir. 2000).

SUMMARY:

In accordance with 20 CFR 402.35(b)(2), 404.985(e), and 416.1485(e), the Commissioner of Social Security gives notice of the rescission of Social Security ARs 88-3(7), 92-6(10), 98-1(8), and 00-5(6).

EFFECTIVE DATE:

June 10, 2002.

FOR FURTHER INFORMATION CONTACT:

Gary Sargent, Litigation Staff, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-1695.

SUPPLEMENTARY INFORMATION:

An AR explains how we will apply a holding in a decision of a United States Court of Appeals that we determine conflicts with our interpretation of a provision of the Social Security Act (the Act) or regulations when the Government has decided not to seek further review of that decision or is unsuccessful on further review.

As provided by 20 CFR 404.985(e)(1) and 416.1485(e)(1), we may rescind an AR as obsolete and apply our interpretation of the Act or regulations if the Supreme Court overrules or limits a circuit court holding that was the basis of an AR.

On March 1, 1988, we issued AR 88-3(7) (see 55 FR 28302) to reflect the holding in McDonald v. Bowen, 800 F.2d 153 (7th Cir. 1986), amended on reh’g, 818 F.2d 559 (7th Cir. 1987). On September 17, 1992, we published AR 92-6(10) (57 FR 43007) to reflect the holding in Walker v. Secretary of Health and Human Services, 943 F.2d 1257 (10th Cir. 1991). On February 23, 1998, we published AR 98-1(8) (63 FR 9037) to reflect the holding in Newton v. Chater, 92 F.3d 688 (8th Cir. 1996). On November 15, 2000, we published AR 00-5(6) (65 FR 69116) to reflect the holding in Salamalekis v. Apfel, 221 F.3d 828 (6th Cir. 2000). These circuit courts interpreted sections 222 and 223 of the Act to require the Social Security Administration (SSA) to allow a finding of disability and entitlement to a trial work period when a claimant returned to substantial gainful activity within 12 months of the alleged onset date of his or her disability and prior to an award of benefits. Accordingly, these four circuit courts held that Social Security Ruling 82-52,¹ which explains how SSA applies the 12-month statutory duration requirement when a claimant returns to work within 12 months of the alleged disability onset date,² was inconsistent with the meaning of those sections of the Act.

On December 18, 2000, the United States Court of Appeals for the Fourth Circuit issued a decision in Walton v. Apfel, 235 F.3d 184 (4th Cir. 2000), joining these four other circuits by holding, among other things, that the claimant who returned to work within 12 months of the alleged date of disability onset and prior to adjudication of his claim was entitled to disability benefits and a 9-month trial work period under the clear language of the governing statute.

On March 27, 2002, the United States Supreme Court reversed the Fourth Circuit’s decision, and held that SSA’s trial work period regulation and its interpretation of the 12-month duration requirement was lawful under the Act. Barnhart v. Walton, _ U.S. _, 122 S. Ct. 1265 (2002). The Court stated that “the Agency’s regulation seems a reasonable, hence permissible, interpretation of the statute. * * * The statute’s complexity, the vast number of claims it engenders, and the consequent need for agency expertise and administrative experience lead us to read the statute as delegating to the Agency considerable authority to fill in, through interpretation, matters of detail related to its administration. The interpretation at issue here is such a matter. The statute’s language is ambiguous. And the Agency’s interpretation is reasonable. We conclude that the Agency’s regulation is lawful.” Id. at 1273-1274 (citation omitted).

Because, in Walton, the Supreme Court also overruled the circuit court holdings in McDonald, Walker, Newton, and Salamalekis by upholding SSA’s regulations clarifying and explaining the policy interpretation that was the subject of the holdings in those cases, we are rescinding ARs 88-3(7), 92-6(10), 98-1(8) and 00-5(6).

(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social Security—Disability Insurance; 96.002 Social Security—Retirement Insurance; 96.004 Social Security—Survivors Insurance; 96.006—Supplemental Security Income.)