Federal Register / Vol. 65, No. 133 / Tuesday, July 11, 2000 / Notices 42793

SOCIAL SECURITY ADMINISTRATION

Rescission of Social Security

Acquiescence Ruling 93–2(2); Conley

v. Bowen

AGENCY: Social Security Administration.

ACTION: Notice of rescission of Social

Security Acquiescence Ruling 93–2(2)—

Conley v. Bowen, 859 F.2d 261 (2d Cir.

1988).

SUMMARY: In accordance with 20 CFR

404.985(e) and 402.35(b)(2), the

Commissioner of Social Security gives

notice of the rescission of Social

Security Acquiescence Ruling 93–2(2).

EFFECTIVE DATE: August 10, 2000.

FOR FURTHER INFORMATION CONTACT: Gary

Sargent, Litigation Staff, Social Security

Administration, 6401 Security

Boulevard, Baltimore, MD 21235–6401,

(410) 965–1695.

SUPPLEMENTARY INFORMATION: A Social

Security Acquiescence Ruling 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 or regulations

when the Government has decided not

to seek further review of the case or is

unsuccessful on further review.

As provided by 20 CFR 404.985(e)(4),

a Social Security Acquiescence Ruling

may be rescinded as obsolete if we

subsequently clarify, modify or revoke

the regulation or ruling that was the

subject of the circuit court holding for

which the Acquiescence Ruling was

issued.

On May 17, 1993, we published

Acquiescence Ruling 93–2(2) to reflect

the holding in Conley v. Bowen, 859

F.2d 261 (2d Cir. 1988), that 20 CFR

404.1592a does not apply to work

activity performed by a disabled

individual after a reentitlement period

when determining whether that

individual has engaged in substantial

gainful activity. The court held that SSA

must evaluate such work activity under

20 CFR 404.1571 through 404.1576, and

consider an average of work and

earnings performed over a period of

months rather than work and earnings

performed in a single month.

Concurrent with the rescission of this

Ruling, we are publishing our final rules

amending section 404.1592a of Social

Security Regulations No. 4 (20 CFR

404.1592a). These amendments will

clarify that earnings averaging does

apply to work and earnings performed

during and after a reentitlement period

when determining whether an

individual’s disability has ceased

because of the performance of

substantial gainful activity. However,

we have also clarified this regulation to

explain that, after an individual’s

disability has already been determined

to have ceased, earnings averaging does

not apply when determining whether an

individual has engaged in substantial

gainful activity for any month during or

after a reentitlement period because of

the performance of substantial gainful

activity for purposes of determining

whether benefits shall be paid for that

month.

Because the changes in the

regulations address the Conley court’s

concerns and explain specifically when

the rules for averaging work and

earnings over a period of months apply,

we are rescinding Acquiescence Ruling

93–2(2). The final rules and this

rescission restore uniformity to our

nationwide system of rules in

accordance with our commitment to the

goal of administering our programs

through uniform national standards as

discussed in the preamble to the 1998

acquiescence regulations, 63 FR 24927

(May 6, 1998).

(Catalog of Federal Domestic Assistance

Programs Nos. 96.001 Social Security—

Disability Insurance; 96.002 Social

Security—Retirement Insurance; 96.004

Social Security—Survivors Insurance; 96.005

Special Benefits for Disabled Coal Miners)

Dated: March 17, 2000.

Kenneth S. Apfel,

Commissioner of Social Security.

[FR Doc. 00–17139 Filed 7–10–00; 8:45 am]

BILLING CODE 4191–02–U

SOCIAL SECURITY ADMINISTRATION

Rescission of Social Security

Acquiescence Ruling 87–4(8); Iamarino

v. Heckler

AGENCY: Social Security Administration.

ACTION: Notice of rescission of Social

Security Acquiescence Ruling 87–4(8)—

Iamarino v. Heckler, 795 F.2d 59 (8th

Cir. 1986).

SUMMARY: In accordance with 20 CFR

404.985(e), 416.1485(e) and

402.35(b)(2), the Commissioner of Social

Security gives notice of the rescission of

Social Security Acquiescence Ruling

87–4(8).

EFFECTIVE DATE: August 10, 2000.

FOR FURTHER INFORMATION CONTACT: Gary

Sargent, Litigation Staff, Social Security

Administration, 6401 Security

Boulevard, Baltimore, MD 21235–6401,

(410) 965–1695.

SUPPLEMENTARY INFORMATION: A Social

Security Acquiescence Ruling 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 or regulations

when the Government has decided not

to seek further review of the case or is

unsuccessful on further review.

As provided by 20 CFR 404.985(e)(4)

and 416.1485(e)(4), a Social Security

Acquiescence Ruling may be rescinded

as obsolete if we subsequently clarify,

modify or revoke the regulation or

ruling that was the subject of the circuit

court holding for which the

Acquiescence Ruling was issued.

On August 31, 1987, we issued

Acquiescence Ruling 87–4(8) to reflect

the holding in Iamarino v. Heckler, 795

F.2d 59 (8th Cir. 1986), that 20 CFR

404.1574 and 416.974 provide a

‘‘middle ground,’’ where no positive or

negative presumption of substantial

gainful activity applies, for evaluating

sheltered workshop earnings at the first

step of the sequential evaluation process

for determining disability. The court

noted that because SSA’s regulations for

evaluating earnings from competitive

employment (i.e., nonsheltered

workshop earnings) provided a ‘‘middle

ground’’ where no presumption applies,

between the upper and lower earnings

limits specified in the regulations, the

same regulations must also provide a

‘‘middle ground’’ where no presumption

applies for sheltered workshop earnings.

Accordingly, the court found that

sheltered workshop earnings that

exceed the upper substantial gainful

activity threshold amount in these

regulations fall in a ‘‘middle ground’’

where no presumption applies that an

individual is engaging in substantial

gainful activity.

Concurrent with the rescission of this

Ruling, we are publishing our final rules

amending sections 404.1574 and

416.974 of Social Security Regulations

Nos. 4 and 16 (20 CFR 404.1574 and

416.974) to clarify that the ‘‘middle

ground’’ where no positive or negative

presumption of substantial gainful

activity applies because it lies below the

upper threshold amount for substantial

gainful activity in paragraphs

404.1574(b)(2) and 416.974(b)(2), and

above the lower threshold amount in

paragraphs 404.1574(b)(3) and

416.974(b)(2), relates only to earnings

from competitive employment. We also

have clarified these regulations to

provide that sheltered workshop

earnings that do not exceed the upper

threshold amount listed in paragraphs

404.1574(b)(2) and 416.974(b)(2), are

presumed not to be substantial gainful

activity even when the earnings fall

within the ‘‘middle ground’’ range for

individuals engaged in competitive

employment.