[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Notices]
[Pages 22091-22093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10920]
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SOCIAL SECURITY ADMINISTRATION
[Social Security Acquiescence Ruling 95-1(6)]
Preslar v. Secretary of Health and Human Services; Definition of
Highly Marketable Skills for Individuals Close to Retirement Age
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Acquiescence Ruling.
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SUMMARY: In accordance with 20 CFR 422.406(b)(2), the Commissioner of
Social Security gives notice of Social Security Acquiescence Ruling 95-
1(6).
EFFECTIVE DATE: May 4, 1995.
FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401
Security Blvd., Baltimore, MD 21235, (410) 965-1695.
SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security
Acquiescence Ruling in accordance with 20 CFR 422.406(b)(2).
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 that decision or is unsuccessful
on further review.
We will apply the holding of the Court of Appeals decision as
explained in this Social Security Acquiescence Ruling to claims at all
levels of administrative adjudication within the Sixth Circuit. This
Social Security Acquiescence Ruling will apply to all determinations
and decisions made on or after May 4, 1995. If we made a determination
or decision on your application for benefits between January 21, 1994,
the date of the Court of Appeals' decision and May 4, 1995, the
effective date of this Social Security Acquiescence Ruling, you may
request application of the Social Security Acquiescence Ruling to your
claim if you first demonstrate, pursuant to 20 CFR 404.985(b) or
416.1485(b), that application of the Ruling could change our prior
determination or decision.
If this Social Security Acquiescence Ruling is later rescinded as
obsolete, we will publish a notice in the Federal Register to that
effect as provided for in 20 CFR 404.985(e) and 416.1485(e). If we
decide to relitigate the issue covered by this Social Security
Acquiescence Ruling as provided for by 20 CFR 404.985(c) and
416.1485(c), we will publish a notice in the Federal Register stating
that we will apply our interpretation of the Act or regulations
involved and explaining why we have decided to relitigate the issue.
(Catalog of Federal Domestic Assistance Programs Nos. 93.802 Social
Security--Disability Insurance; 93.803 Social Security--Retirement
Insurance; 93.805 Social Security--Survivors Insurance; 93.806--
Special Benefits for Disabled Coal Miners; 93.807--Supplemental
Security Income.)
Dated: November 14, 1994.
Shirley S. Chater,
Commissioner of Social Security.
Acquiescence Ruling 95-1(6)
Preslar v. Secretary of Health and Human Services, 14 F.3d 1107
(6th Cir. 1994)--Definition of Highly Marketable Skills for Individuals
Close to Retirement Age--Titles II and XVI of the Social Security Act.
Issue: Whether, in order to find that the skills of a claimant who
is close to retirement age (age 60-64) are ``highly marketable'' within
the meaning of the Secretary's regulations, the Social Security
Administration (SSA) must [[Page 22092]] first establish that the
claimant's skills are sufficiently specialized and coveted by employers
as to make the claimant's age irrelevant in the hiring process and
enable the claimant to obtain employment with little difficulty.
Statute/Regulation/Ruling Citation: Sections 223(d)(2)(A) and
1614(a)(3)(B) of the Social Security Act (42 U.S.C. 423(d)(2)(A) and
1382c(a)(3)(B)); 20 CFR 404.1520(f)(1), 404.1563(d), 404.1566(c),
416.920(f)(1), 416.963(d), 416.966(c); 20 CFR Part 404, Subpart P,
Appendix 2, sections 201.00(f) and 202.00(f); Social Security Ruling
82-41.
Circuit: Sixth (Kentucky, Michigan, Ohio, Tennessee)
Preslar v. Secretary of Health and Human Services, 14 F.3d 1107
(6th Cir. 1994).
Applicability of Ruling: This Ruling applies to determinations or
decisions at all administrative levels (i.e., initial, reconsideration,
Administrative Law Judge (ALJ) hearing or Appeals Council).
Description of Case: In April 1989, the plaintiff, Walter Preslar,
who was 61 years of age and had an eleventh grade education, applied
for Social Security disability insurance benefits and Supplemental
Security Income benefits based on disability. Mr. Preslar alleged that
he was disabled due to pain resulting from hip and back injuries,
osteoarthritis and the late effects of musculoskeletal and connective
tissue injuries. Following denial of his claims at both the initial and
reconsideration levels of the administrative review process, the
plaintiff requested and received a hearing before an ALJ. The evidence
provided at the hearing included the testimony of a vocational expert
who testified that Mr. Preslar could not perform any of his past
relevant work, which included food truck driving, custodial work, and
bartending. The vocational expert also testified, however, that Mr.
Preslar possessed truck driving skills and that there were a
significant number of skilled light trucking jobs in the regional
economy that he could perform with no significant vocational
adjustment.
The ALJ found that Mr. Preslar could not perform his past relevant
work, but that he retained the capacity to do a full range of light
work with only minor limitations. The ALJ also found, based upon
testimony by the vocational expert, that Mr. Preslar had ``highly
marketable work skills,'' including truck driving, the ability to use
hand and power tools, and the ability to use a cash register. Based on
these findings, the ALJ concluded that Mr. Preslar was not disabled.
The Appeals Council denied Mr. Preslar's request for review, and the
ALJ's decision became the final decision of the Secretary. This
decision was reviewed by a district court which upheld the Secretary's
denial of disability benefits, and the plaintiff appealed to the Court
of Appeals for the Sixth Circuit.
Holding: The Sixth Circuit reversed the decision of the district
court. The court of appeals noted that at the fourth and fifth steps of
the five-step sequential evaluation process for determining disability
prescribed in the Secretary's regulations, once a claimant establishes
that he or she can no longer perform his or her past relevant work
because of a severe impairment (step four), the burden shifts to the
Secretary to show whether the claimant can perform other work which
exists in the national economy, considering the claimant's residual
functional capacity, age, education and work experience (step five).
The court observed that for purposes of step five, a claimant's age is
to be evaluated under the four-tiered structure of section 404.1563 of
the Secretary's regulations.1 Among other things, section
404.1563(d) provides that if a claimant is of advanced age (55 or
over), has a severe impairment, and cannot do medium work, such
claimant may not be able to work unless he or she has skills that can
be transferred to less demanding jobs which exist in significant
numbers in the national economy. The court noted that, in addition,
section 404.1563(d) states that, ``[i]f you are close to retirement age
(60-64) and have a severe impairment, we will not consider you able to
adjust to sedentary or light work unless you have skills which are
highly marketable.''
\1\ Although the court of appeals only cited the title II
regulation concerning the evaluation of age, section 404.1563, the
corresponding title XVI regulation, section 416.963, also was
relevant in Mr. Preslar's case. These sections, entitled ``Your age
as a vocational factor,'' are virtually identical. Sections
404.1563(b)-(d) and 416.963 (b)-(d) specify three age categories:
``Younger person'' (under age 50); ``Person approaching advanced
age'' (age 50-54); and ``Person of advanced age'' (age 55 or over).
The latter includes a subcategory--a person close to retirement age
(age 60-64).
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The Sixth Circuit observed that the term ``highly marketable''
skills was not expressly defined in the statutes, regulations or case
law. The court stated, however, that it was evident from the
regulations that ``highly marketable'' skills denoted something more
than ``transferable'' skills. Specifically, the court noted that, under
section 404.1563(d) of the regulations, claimants age 55 or over,
including those close to retirement age, must possess skills easily
transferable to other occupations; the ``highly marketable''
requirement, on the other hand, only applies to those age 60-64. In
addition, the court indicated that section 404.1563(a) of the
regulations also sheds light on how the Secretary is required to
evaluate a claimant's age, noting that the section states, in part:
Age refers to how old you are (your chronological age) and the
extent to which your age affects your ability to adapt to a new work
situation and to do work in competition with others.
Although the Sixth Circuit noted that, under section 223(d)(2)(A)
of the Act (42 U.S.C. 423(d)(2)(A)), vocational factors usually are to
be viewed in terms of their effect on the ability to perform jobs
rather than obtain them, the court nevertheless found that section
404.1563 of the regulations ``recognizes a direct relationship between
age and the likelihood of employment'' and that, as age increases, the
four-tiered structure of the regulation places an increasingly heavy
burden on the Secretary to demonstrate that a claimant is ``easily
employable.'' The court concluded that the regulations and other
judicial interpretations of ``highly marketable'' skills imply that
such skills are those ``which are sufficiently coveted by employers and
sufficiently specialized or unique so as to offset the disadvantage of
advancing age'' and enable a claimant to obtain employment with little
difficulty. The court indicated that the possession of such skills may
be shown by establishing that a claimant's skills were acquired through
specialized or extensive education, training or experience and that
they give the claimant a significant advantage or edge over other,
younger, potential employees competing for jobs requiring the skills,
giving consideration to the number of such jobs available and the
number of individuals competing for such jobs.
The court applied its interpretation of ``highly marketable''
skills to Mr. Preslar's case and concluded that the Secretary had not
assessed whether Mr. Preslar's skills were in some way specialized or
coveted by employers; had not determined the amount of training,
education or experience required of the plaintiff to attain his skills;
and had not assessed whether the plaintiff enjoyed a competitive edge
over younger, potential employees with whom he would compete for truck
driving jobs. Accordingly, the court remanded the case to the Secretary
for reevaluation of whether the plaintiff possessed ``highly
marketable'' skills in accordance with the court's interpretation of
that term in section 404.1563(d) of the regulations. [[Page 22093]]
Statement as to How Preslar Differs From Social Security Policy
At step five of the sequential evaluation, SSA considers a
claimant's chronological age in conjunction with residual functional
capacity, education and work experience to determine whether a claimant
can do work other than past relevant work. SSA weighs the effect of
increasing age by the extent it erodes a claimant's ability to adapt to
new work situations and to work in competition with others.
To this end, SSA's regulations provide that in order to find that a
claimant whose sustained work capability is limited to light work or
less and who is close to retirement age (60-64) possesses skills that
can be used in (transferred to) other work, ``there must be very
little, if any, vocational adjustment required in terms of tools, work
processes, work settings, or the industry.'' 20 CFR Part 404, Subpart
P, Appendix 2, section 202.00(f). SSA's regulations provide the same
rule for a claimant whose sustained work capability is limited to
sedentary work and who is of advanced age (55 or over). 20 CFR Part
404, Subpart P, Appendix 2, section 201.00(f). If the claimant's skills
are transferable to other work under this standard, SSA will consider
such skills ``highly marketable'' under 20 CFR 404.1563(d) and
416.963(d).
SSA's regulations do not require a finding that a claimant's skills
are specialized and coveted so as to offset the disadvantage that
advancing age may present in obtaining employment. Instead, SSA's
regulations require that a claimant (of any age) be found not disabled
if his or her residual functional capacity and vocational abilities
enable him or her to work, but he or she remains unemployed because of
the hiring practices of employers. The evaluation of disability is
based on the ability to perform jobs in the national economy and not
the ability to obtain them, 20 CFR 404.1566(c) and 416.966(c).
The Sixth Circuit's interpretation of ``highly marketable'' imposes
requirements in contravention of the Secretary's regulations regarding
the vocational relevance of a claimant's age. Specifically, the court
has interpreted ``highly marketable'' skills in 20 CFR 404.1563(d) to
mean those skills which are sufficiently specialized and coveted by
employers so as to make a claimant's age irrelevant in the hiring
process and enable the claimant to obtain employment with little
difficulty.
Explanation of How SSA Will Apply The Preslar Decision Within the
Circuit
This ruling applies only where the claimant resides in Kentucky,
Michigan, Ohio or Tennessee at the time of the determination or
decision at any level of administrative review, i.e., initial,
reconsideration, ALJ hearing or Appeals Council review.
In the case of a claimant whose sustained work capability is
limited to sedentary or light work as a result of a severe impairment,
who is closely approaching retirement age (age 60-64), and who has
skills, an adjudicator will consider the claimant's skills to be
``highly marketable'' only if the skills are sufficiently specialized
and coveted by employers as to make the claimant's age irrelevant in
the hiring process and enable the claimant to obtain employment with
little difficulty. In determining whether a claimant's skills meet this
definition of ``highly marketable,'' an adjudicator will consider:
(1) whether the skills were acquired through specialized or
extensive education, training or experience; and
(2) whether the skills give the claimant a competitive edge over
other, younger, potential employees with whom the claimant would
compete for jobs requiring those skills, giving consideration to the
number of such jobs available and the number of individuals competing
for such jobs.
SSA intends to clarify the regulations at issue in this case, 20
CFR 404.1563 and 416.963, through the rule making process and may
rescind this Ruling once such clarification is made.
[FR Doc. 95-10920 Filed 5-3-95; 8:45 am]
BILLING CODE 4190-29-F
