**LAW OFFICE OF**

**IVAN M. KATZ**

**57 TRUMBULL STREET**

**NEW HAVEN, CONNECTICUT 06510-1004**

**TELEPHONE (203) 777-5737**

**FACSIMILE (203) 777-2791**

9 November 2005

Hon. Joanne Barnhart, Commissioner of Social Security Post Office Box
17703 Baltimore, MD 21235-7703

Re: Proposed Regulatory Changes, Published November 4, 2005 Dear
Commissioner Barnhart:

I have before me your proposed revisions in the definitions of age
categories as published in the *Federal Register under *date of November
4, 2005. This letter shall serve as my comment thereon for inclusion in
the public record.

You have proposed that:

• a \"younger individual\" be defined as a person under the age of
fifty-two\
(current: age 18 to 49);

• a \"younger individual illiterate or unable to communicate in English
be\
defined as a person forty seven to fifty one years of age (current: age
49 to\
49);

• a person \"closely approaching advanced age\" be defined as a person
fifty\
two to fifty six years of age (current: 50 to 54);

• a person of \"advanced age\" be defined as a person fifty seven years
of age\
or older (current: 55 to sixty four); and

• a person \"closely approaching retirement age\" be defined as a person
sixty\
two years of age or older (current: 60-64)

In my view, for the reasons set forth below these changes are unwise,
unwarranted, and will have a significant, detrimental impact on the
disabled population.

The Office of Management and Budget and the Office of the Chief Actuary
have estimated that these changes will result in \"savings\" of just
under \$2,000,000,000 between 2006 and 2010 and just under
\$6,000,000,000 from 2006 to 2015. Let us be clear here: \"Savings\"
means \"benefits that would otherwise be paid to the disabled that will
not be paid under this proposal.\"

Page Two

It is unquestioned that Americans are living longer and that many of
them are living \"healthier\". These facts, so often repeated in the
prefatory remarks to your proposed regulatory changes, have no bearing
whatsoever on the changes you have proposed. They relate to changes that
the Retirement and Medicare systems will need to deal with, to be sure,
but increased life expectancy and improved general health are wholly
besides the point at issue here.

Your proposal states by way of partial justification that:

*\"Among adults over age 50, significant and consistent improvements
have been reported with respect to functional limitations - defined as
difficulty seeing words and letters in ordinary newsprint, lifting and
carrying 10 \[pounds\], climbing a flight of stairs, and walking a
quarter of a mile.\"*

In support of these \"facts\" you cite to a now seven year old article -
and nothing more. One would assume that \"significant and consistent
improvements\" would have been documented to a far greater extent - if
they in fact exist.

Your proposal also states by way of partial justification that:

*\"Reports indicate that the percentage of workers in physically
demanding jobs has dropped from about twenty percent in 1950 to less
than eight percent in 1996.\"*

In support of these \"facts\" you cite a now six year old report. The
difficulty here is that the \"start date\" and \"end date\" are too
early. The American economy in 1950 was based largely on steel and other
\"heavy industry.\" The American economy in 1996 barely resembles the
American economy in 2005. Of course, the entire issue is irredeemably
muddied by the failure to define \"physically demanding jobs.\" What I
suppose you are trying to say (that the \"average exertional level of
the American worker has dropped markedly since the post-World War II
boom\") is probably true, but it fails to take into account the
oft-noted shift to a service economy, which has accelerated since 1996.
Many elements of the service economy require work at the sedentary
level. But many, especially in the direct customer service area, still
remain at the light level and above.

Page Three

Of significance is the fact that you state:

***\"It appears ****that there are many jobs that individuals, despite
their age, are capable of performing and adjusting to, even though they
have not done those jobs previously. It is appropriate that our rules be
adjusted to reflect these changing conditions.\"*

This would be quite true if there *were in fact *\"changing
conditions.\" You propose a change with *six billion dollars of
consequences *based - by your own admission - on nothing more than
appearance, not documented facts. With respect, this is not rule making,
it is necromancy.

You then go on to state:

*\"While relevant, age has become less of a factor in determining
whether individuals can make an adjustment to other work. Therefore, in
addition to increasing our age categories by two years, we are proposing
to revise the definition in our regulations for the category of
\'advanced age\' to include individuals who are 65 or older.\"*

You had previously noted that the Bureau of Labor Statistics
\"\...projects that job growth will occur in nonphysically intensive
occupations such as computer operators or service providers.\"

The above-mentioned two assertions are patently at odds with one
another. Although computer operation is assuredly less physically
demanding than, say, operating a Bessemer Furnace, it requires keen
manual dexterity to operate a keyboard for hours on end under
competitive work pressures, and basic computer knowledge.

The current age categories do reflect - with a far greater degree of
accuracy than your November 4, 2005 proposals - the \"reality on the
ground.\" They acknowledge *sub silentio *the reality that older
individuals forced to make an adjustment to \"other work\" as a result
of physical or mental impairment are manifestly discriminated against in
the work force. Their ability to find a job in a wholly different career
field is significantly less at age 45 then it is at age 35. Claimants in
the over fofty-five

Page Four

years of age range need greater training and they more often than not
require additional time to \"ramp up\" their skills to competitive
levels - and many are wholly unable to ever achieve that level. And they
need to do so, presumably, with documented physical or mental
impairments that raise by definition a colorable question of disability.
The current regulatory scheme \"adjusts\" for these realities to a far
greater - and better - degree than the November 4, 2005 proposals do.

Let us be candid here in terms of what the current and proposed
regulations in fact do: The current age categories tell adjudicators
that when confronted with a close case involving a person over the age
of forty-five, the benefit of the doubt goes to the Claimant. Greater
benefit goes to those fifty to fifty-five and still more benefit goes to
those over age fifty-five. *In no event do these \"benefits\" turn a
case that is not even close into a grant of benefits. *The rules apply
exclusively to the close cases. They acknowledge the difficulty - often
the insurmountable difficulty - faced by a claimant likely to face age
discrimination and discrimination on account of their physical and
mental impairments in making a radical career change late in his or her
work life. Those realities, so accurately reflected in the current age
categories, are proposed to be skewed in such a way as to mandate
denials in close cases involving the over-forty-five population.

One supposes that had the workplace in general become more enlightened
and less discriminatory since the age categories were originally enacted
in 1978 your point might be well taken. However, the workplace has
manifestly not become more enlightened and, in fact, has become nastier,
more brutish, and less tolerant of the impaired older worker. Your
proposal will only exacerbate that deplorable trend.

You are, thus, urged to recall these proposed regulations and to
continue the existing age categories as they presently exist.

•-.: \_\-\--\"\' \' Ivan M.

IMK/fdr/1-4

Very truly yours,