AR 87-2(11): Notice of rescission of Social Security Acquiescence Ruling 87-2(11) -- Butterworth v. Bowen, 796 F.2d 1379 (11th 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 87-2(11) .

EFFECTIVE DATE: 8/6/98

FOR FURTHER INFORMATION CONTACT: Gary Sargent, Litigation Staff,

Social Security Administration, 6401 Security Boulevard, Baltimore, MD

21235, (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 (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Acquiescence Ruling may be rescinded as obsolete if we subsequently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

the circuit court holding for which the Acquiescence Ruling was issued.

On May 1, 1987, we issued Acquiescence Ruling

87-2(11) to reflect the holding in Butterworth v. Bowen , 796

F.2d 1379 (11th Cir. 1986), that the Social Security Administration's

Appeals Council is authorized to initiate reopening of Administrative Law

Judge (ALJ) decisions only when the decision "is properly before it." The

court explained several methods by which an ALJ decision may be properly

before the Appeals Council including when the Council timely takes own

motion review of a decision. Furthermore, the court's holding limited the

reopening jurisdiction of the Appeals Council by specifically requiring

timely own motion review to begin within the 60-day time period provided

in 20 CFR 404.969.

." The

court explained several methods by which an ALJ decision may be properly

before the Appeals Council including when the Council timely takes own

motion review of a decision. Furthermore, the court's holding limited the

reopening jurisdiction of the Appeals Council by specifically requiring

timely own motion review to begin within the 60-day time period provided

in 20 CFR 404.969.

Concurrent with the rescission of this Ruling, we are publishing our final

rules amending sections 404.969 and 416.1469 of Social Security

Regulations Nos. 4 and 16 (20 CFR 404.969 and 416.1469), to clarify when

the Appeals Council has own motion review authority to reopen and revise

ALJ decisions in accordance with the provisions of 20 CFR 404.987,

404.988, 416.1487 and 416.1488. The final rules provide in paragraphs

404.969(d) and 416.1469(d) that if the Appeals Council is unable to decide

within the applicable 60-day period whether to review a decision or

dismissal, it may consider at a later time whether the decision or

dismissal should be reopened and revised under 20 CFR 404.987, 404.988,

416.1487 and 416.1488. Under the final rules, the Appeals Council's

authority to reopen and revise ALJ decisions is not limited by the 60-day

period provided in paragraphs 404.969(a) and 416.1469(a).

Because the final rules address the Butterworth court's concerns

and explain that the Appeals Council's authority to reopen and revise ALJ

decisions is not subject to the 60-day period provided in paragraphs

404.969(a) and 416.1469(a), we are rescinding Acquiescence Ruling 87-2(11) . 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).

vided in paragraphs

404.969(a) and 416.1469(a), we are rescinding Acquiescence Ruling 87-2(11) . 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 Program Nos. 96.001 Social

Security - Disability Insurance; 96.002 Social Security - Retirement

Insurance; 96.003 Special Benefits for Persons Aged 72 and Over; 96.004

Social Security - Survivors Insurance; 96.006 Supplemental Security

Income.)