[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Notices]
[Pages 67724-67725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27447]
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SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA-2012-0058]
Rescission of Social Security Acquiescence Ruling 05-1(9)
AGENCY: Social Security Administration.
[[Page 67725]]
ACTION: Notice of Rescission of Social Security Acquiescence Ruling 05-
1(9)--Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004).
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SUMMARY: In accordance with 20 CFR 402.35(b)(2), 404.985(e)(1) and
416.1485(e)(1), the Commissioner of Social Security gives notice of the
rescission of Social Security Acquiescence Ruling (AR) 05-1(9).
DATES: Effective Date: November 13, 2012.
FOR FURTHER INFORMATION CONTACT: Karen Aviles, Office of the General
Counsel, Office of Program Law, Social Security Administration, 6401
Security Boulevard, Baltimore, MD 21235-6401, (410) 965-3457, or TTY
410-966-5609, 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: 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 the case 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 September 22, 2005, we issued AR 05-1(9) to reflect the holding
of the United States Court of Appeals for the Ninth Circuit in Gillett-
Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), reh'g denied (9th
Cir. Dec. 14, 2004) (70 FR 55656). The Ninth Circuit held that an
undisputed biological child of an insured individual who was conceived
by artificial means after the insured's death is the insured's
``child'' for purposes of sections 202(d)(1) and 212(e)(1) of the Act.
The Ninth Circuit rejected our longstanding interpretation of section
216(h) of the Act, as set forth in the regulations, that state
intestacy law determines the child-parent relationship.
On January 4, 2011, in Capato v. Commissioner of Social Security,
631 F.3d 626 (3d Cir. 2011), the United States Court of Appeals for the
Third Circuit followed the decision in Gillett-Netting and held that
under sections 202(d)(1) and 216(e)(1) of the Act, a posthumously-
conceived applicant can satisfy the Act child-parent relationship
requirement by demonstrating that he or she is the undisputed
biological child of the deceased insured individual. Similar to the
Ninth Circuit, the Third Circuit found that section 216(h) requirement
to apply state intestacy law is triggered only in cases where parentage
is disputed.
The Government sought review of the Third Circuit's decision in the
Supreme Court of the United States, and on May 21, 2012, the Supreme
Court reversed the Third Circuit's decision. The Supreme Court upheld
our interpretation of section 216(h) of the Act, under which we apply
state intestacy law when we determine a child-parent relationship under
sections 202(d)(1) and 216(e)(1) of the Act. Astrue v. Capato, ----U.S.
----, 132 S. Ct. 2021 (2012).
The Supreme Court stated that, ``The SSA's interpretation of the
relevant provisions, adhered to without deviation for many decades, is
at least reasonable; the agency's reading is therefore entitled to this
Court's deference under Chevron. * * * Chevron deference is appropriate
`when it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of
that authority.' * * * Here, as already noted, the SSA's longstanding
interpretation is set forth in regulations published after notice-and-
comment rulemaking.'' 132 S. Ct. at 2033-2034 (citations omitted).
Because, in Capato, the Supreme Court rejected the holding in
Gillett-Netting by upholding our policy of applying state intestacy law
in all child-parent determinations, we are rescinding AR 05-1(9), in
accordance with 20 C.F.R. 404.985(e)(1), 416.1485(e)(1).
(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)
Dated: November 5, 2012.
Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. 2012-27447 Filed 11-9-12; 8:45 am]
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