Federal Old-Age, Survivors, and Disability Insurance; Determining Disability and Blindness; Revision to Medical-Vocational Guidelines

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

RIN 0960-AE42

Federal Old-Age, Survivors, and Disability Insurance; Determining

Disability and Blindness; Revision to Medical-Vocational Guidelines

AGENCY: Social Security Administration.

ACTION: Proposed rules.

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SUMMARY: We propose to clarify Sec. 201.00(h) of the medical-vocational

guidelines in appendix 2 of subpart P of regulations part 404. This

section provides guidance for evaluating disability in individuals

under age 50 who have a severe impairment(s) that does not meet or

equal in severity the criteria of any listed impairment in appendix 1

of subpart P, but who have a residual functional capacity for no more

than the full range of sedentary work and cannot do any past relevant

work. The proposed revisions are intended only to clarify the current

rules; they are not intended to change any policies.

DATES: To be sure your comments are considered, we must receive them no

later than November 24, 1997.

ADDRESSES: Comments should be submitted in writing to the Commissioner

of Social Security, P.O. Box 1585, Baltimore, MD 21235, sent by telefax

to (410) 966-2830, sent by e-mail to ``[email protected],'' or

delivered to the Division of Regulations and Rulings, Social Security

Administration, 3-B-1 Operations Building, 6401 Security Boulevard,

Baltimore, MD 21235, between 8:00 a.m. and 4:30 p.m. on regular

business days. Comments may be inspected during these same hours by

making arrangements with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Robert Augustine, Legal Assistant,

Division of Regulations and Rulings, Social Security Administration,

6401 Security Boulevard, Baltimore, MD 21235, (410) 966-5121 for

information about these rules. For information on eligibility or

claiming benefits, call our national toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION: The Social Security Act (the Act)

provides in title II for the payment of disability benefits to

workers insured under the Act. Title II also provides, under

certain circumstances, child's insurance benefits for persons who

become disabled before age 22 and widow's and widower's insurance

benefits based on disability for widows, widowers, and surviving

divorced spouses of insured individuals. In addition, the Act

provides in title XVI for supplemental security income (SSI)

payments to persons who are disabled and have limited income and

resources.

For adults under both the title II and title XVI programs and for

persons claiming child's insurance benefits based on disability under

title II, ``disability'' is defined in the Act as the ``inability to

engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.'' Sections 223(d) and

1614(a) of the Act also state that the individual ``shall be determined

to be under a disability only if his physical or mental impairment or

impairments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education, and work

experience, engage in any other kind of substantial gainful work which

exists in the national economy, regardless of whether such work exists

in the immediate area in which he lives, or whether a specific job

vacancy exists for him, or whether he would be hired if he applied for

work.''

To implement the process for determining whether an individual is

disabled based upon this statutory definition, our longstanding

regulations at Secs. 404.1520 and 416.920 provide for a five-step

sequential evaluation process as follows:

1. Is the claimant engaging in substantial gainful activity? If the

claimant is working and the work is substantial gainful activity, we

find that he or she is not disabled. Otherwise, we proceed to step 2 of

the sequence.

2. Does the claimant have an impairment or combination of

impairments which is severe? If the claimant does not have an

impairment or combination of impairments which is severe, we find that

he or she is not disabled. If the claimant has an impairment or

combination of impairments which is severe, we proceed to step 3 of the

sequence.

[[Page 49637]]

3. Does the claimant's severe impairment(s) meet or equal in

severity the criteria of a listed impairment in appendix 1 of subpart P

of part 404? If so, and the duration requirement is met, we find that

he or she is disabled. If not, we proceed to step 4 of the sequence.

4. Does the claimant's severe impairment(s) prevent him or her from

doing his or her past relevant work, considering his or her residual

functional capacity? If not, we find that he or she is not disabled. If

so, we proceed to step 5 of the sequence.

5. Does the claimant's impairment(s) prevent him or her from

performing other work that exists in the national economy, considering

his or her residual functional capacity, age, education, and work

experience? If so, and the duration requirement is met, we find that he

or she is disabled. If not, we find that he or she is not disabled.

As discussed in Sec. 404.1569, at step 5 of the sequential

evaluation process we provide medical-vocational rules in appendix 2 of

subpart P of part 404. (By reference, Sec. 416.969 of the regulations

provides that appendix 2 is also applicable to adults claiming SSI

payments based on disability.) These rules take administrative notice

of the existence of numerous unskilled occupations at exertional levels

defined in the regulations, such as ``sedentary,'' ``light,'' and

``medium,'' and, based upon a consideration of the individual's

residual functional capacity, age, education, and work experience,

either direct decisions or are used as a framework for making decisions

at step 5.

The revisions we are proposing would clarify one paragraph in

appendix 2, section 201.00(h), which discusses the evaluation of the

claims of ``younger individuals'' (i.e., individuals who have not

attained age 50) who have a residual functional capacity limited to the

full range of sedentary work administratively noticed by the rules in

table No. 1 of appendix 2 or who can perform some sedentary work but

not the full range of such work.

Summary of Proposed Changes

We propose to clarify section 201.00(h) in appendix 2. This section

discusses the evaluation of disability claims of ``younger

individuals'' (i.e., individuals who have not attained age 50) who have

a severe impairment(s) that does not meet or equal in severity the

criteria of any listing but who have a residual functional capacity for

no more than the full range of sedentary work. The proposed changes are

intended only as clarifications. None of these proposed revisions is

intended to change the meaning of the current rules.

Specifically, we propose to clarify the second sentence of section

201.00(h) in appendix 2, which states that for workers who are age 45-

49, ``age is a less positive factor'' than for individuals who are

younger than age 45. The proposed clarification would more clearly

explain that, for workers who are age 45-49, age is a ``less

advantageous factor for making an adjustment to other work than for

those who are age 18-44.'' This is consistent with our longstanding

policy that, at step 5 of the sequential evaluation process, the issue

is whether the individual is able to make an adjustment to work other

than any past relevant work considering his or her residual functional

capacity, age, education, and work experience, and would only clarify

what we mean by the phrase ``a less positive factor.''

In the third sentence, clause (3), we propose to change the phrases

``relevant past work'' and ``vocationally relevant past work,'' to

``past relevant work'' to clarify our intended meaning and for

consistency in our terminology. We also propose to clarify clause (4)

of the same sentence to better explain that the term ``illiterate''

means that the individual is illiterate in English. This will make

clearer our original intent that the fourth clause describes

individuals who are either 1) unable to communicate in English (and, by

definition, illiterate in English) or 2) able to speak and understand

English but illiterate in English.

We propose to revise the fourth sentence to be consistent with the

foregoing proposed revisions. We propose to revise the statement ``age

is a more positive factor for those who are under age 45'' to ``for

those who are under age 45, age is a more advantageous factor for

making an adjustment to other work'' to correspond to the proposed

changes in the second sentence. Likewise, we propose to clarify that

``illiterate'' means illiterate in English as in the proposed changes

to the third sentence.

We propose to add four new sentences after the fifth sentence to

explain the impact of a maximum sustained work capacity for no more

than the full range of sedentary work on an individual's ability to do

other work. The intent is twofold: 1) to make clear that such capacity

reflects a very serious functional limitation and must be appropriately

documented by the evidence in the record; and 2) to make clear that a

finding that an individual is limited to less than the full range of

sedentary work does not necessarily equate with a finding of

disability. If an individual is unable to perform past relevant work

and has a maximum sustained work capacity for less than the full range

of sedentary work (and the medical-vocational rules would not direct a

decision of disabled if the individual was limited to the full range of

sedentary work), consideration must still be given to whether there is

other work in the national economy that the individual is able to do.

We also propose to add language to the fifth sentence to make it

explicitly clear that a finding of ``disabled'' is also not precluded

for individuals age 45-49 who do not meet all of the criteria of a

specific rule and who do not have the ability to perform a full range

of sedentary work.

We also propose to delete without replacement the two case examples

from section 201.00(h). The intent of these examples is merely to

reinforce a concept already reflected in this paragraph; i.e., that,

using the rules as a framework for decisionmaking, a conclusion of

``disabled'' may be, but is not necessarily, warranted for individuals

under age 45 who do not satisfy all of the criteria of a specific rule

and who do not have the residual functional capacity to do a full range

of sedentary work.

We propose to delete the examples because they are no longer needed

and our adjudicative experience has shown that they can be unclear. For

example, we have received questions about whether example 2 applies

only to cases involving mental impairments or whether it could apply to

other types of impairments. Although our intent has always been that

the case examples are applicable to all types of impairments, their

removal will avoid possible confusion and help ensure consistency in

decisionmaking.

In addition, over the past several years we have been following a

practice of not using case examples in our disability regulations

unless they serve some necessary purpose, such as when the rules

present a new and complex policy where we believe that an example or

examples would be helpful for understanding the new policy. We believe

the examples in the current rules no longer serve such a purpose and

that it is better to delete them. Again, this is not intended as a

change in policy.

Finally, we are also making minor editorial changes, to improve the

consistency of terminology in appendix 2.

[[Page 49638]]

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB)

and determined that these proposed rules meet the criteria for a

significant regulatory action under Executive Order 12866. Thus, they

were subject to OMB review. There are no program or administrative

costs or savings associated with these proposed rules. Therefore, no

assessment of costs and benefits is required.

Regulatory Flexibility Act

We certify that these proposed regulations will not have a

significant economic impact on a substantial number of small entities

because they affect only individuals. Therefore, a regulatory

flexibility analysis, as provided in Public Law 96-354, the Regulatory

Flexibility Act, is not required.

Paperwork Reduction Act

These proposed regulations will impose no new reporting or

recordkeeping requirements requiring OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social

Security Disability Insurance; 96.006, Supplemental Security Income)

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Blind, Death benefits,

Disability benefits, Old-Age, Survivors and Disability Insurance,

Reporting and recordkeeping requirements, Social Security.

Dated: June 16, 1997.

John J. Callahan,

Acting Commissioner of Social Security.

For the reasons set out in the preamble, part 404, subpart P,

Chapter III of Title 20, Code of Federal Regulations, is proposed to be

amended as set forth below.

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950- )

1. The authority citation for subpart P continues to read as

follows:

Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)

and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act

(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),

422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110

Stat. 2105, 2189.

2. Section 201.00(h), appendix 2, subpart P, is revised to read as

follows:

APPENDIX 2 TO SUBPART P--MEDICAL-VOCATIONAL GUIDELINES

* * * * *

201.00 Maximum sustained work capability limited to sedentary work

as a result of severe medically determinable impairment(s).

* * * * *

(h) The term younger individual is used to denote an individual

age 18 through 49. For individuals who are age 45-49, age is a less

advantageous factor for making an adjustment to other work than for

those who are age 18-44. Accordingly, for such individuals who: (1)

are restricted to sedentary work, (2) are unskilled or have no

transferable skills, (3) have no past relevant work or who can no

longer perform past relevant work, and (4) are unable to communicate

in English, or are able to speak and understand English but are

illiterate in English, a finding of ``disabled'' is warranted. For

individuals who are under age 45, age is a more advantageous factor

for making an adjustment to other work and is usually not a

significant factor in limiting such individuals' ability to make an

adjustment to other work, even an adjustment to unskilled sedentary

work, and even when the individuals are unable to communicate in

English or are illiterate in English. A finding of ``disabled'' is

not precluded for those individuals under age 45 (and those age 45-

49 for whom rule 201.17 does not direct a decision of disabled) who

do not meet all of the criteria of a specific rule and who do not

have the ability to perform a full range of sedentary work. However,

the inability to perform the full range of sedentary work does not

necessarily equate with a finding of ``disabled.'' In deciding

whether an individual who is limited to a partial range of sedentary

work is able to make an adjustment to work other than any past

relevant work, the adjudicator is required to make an individualized

determination considering the individual's remaining occupational

base, age, education, and work experience. Further, ``sedentary

work'' represents a significantly restricted range of work, and

individuals with a maximum sustained work capability limited to

sedentary work have very serious functional limitations. Therefore,

a finding that an individual is limited to less than the full range

of sedentary work will be based on a careful consideration of the

evidence of an individual's medical impairment(s) and the

limitations and restrictions attributable thereto. Such evidence

must support the finding that an individual's residual functional

capacity is limited to less than the full range of sedentary work.

* * * * *

[FR Doc. 97-25125 Filed 9-22-97; 8:45 am]

BILLING CODE 4190-29-P