Rescission of Social Security Acquiescence Ruling 05-1(9), 67724-67725 [2012-27447]

Agencies

• Social Security Administration

[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Notices]
[Pages 67724-67725]
From the Federal Register Online via the Government Printing 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 https://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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