E8-10930. Rescission of Social Security Acquiescence Ruling 99-1(2)

AGENCY:

Social Security Administration.

ACTION:

Notice of Rescission of Social Security Acquiescence Ruling 99-1(2)—Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 1998).

SUMMARY:

In accordance with 20 CFR 402.35(b)(1), 404.985(e) and 416.1485(e), the Commissioner of Social Security gives notice of the rescission of Social Security Acquiescence Ruling 99-1(2).

DATES:

Effective Date: June 16, 2008.

FOR FURTHER INFORMATION CONTACT:

Richard Bresnick, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, [phone], for information about this notice. 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 http://www.socialsecurity.gov.

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 (the 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As provided by 20 CFR 404.985(e)(4) and 416.1485(e)(4), a Social Security Acquiescence Ruling may be rescinded as obsolete if we subsequently clarify, modify, or revoke the regulation or ruling that was the subject of a circuit court holding that we determined conflicts with our interpretation of the Act or regulations.

On February 1, 1999 we issued Acquiescence Ruling 99-1(2) to reflect the decision of the United States Court of Appeals for the Second Circuit in Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 1998), in which the court held that 20 CFR 416.1101 creates a two-part test for determining whether a spouse, who lives with a child eligible for SSI, is an ineligible parent for deeming purposes under 20 CFR 416.1160: (1) The spouse must live with the natural or adoptive parent; and (2) the relationship must be as husband or wife, as further defined in 20 CFR 416.1806.

In a final rule that we also are publishing today that will be effective on June 16, 2008, we are adopting the court's rationale and changing the SSI parent-to-child deeming rules so that we no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child's natural or adoptive parent has permanently left the household. These rules respond to the circuit court decision and establish a uniform national policy with respect to this issue.

(Catalog of Federal Domestic Assistance Programs No. 96.006, Supplemental Security Income)

Dated: May 8, 2008.

Michael J. Astrue,

Commissioner of Social Security.