Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

RIN 0960-AE65

Revised Medical Criteria for Determination of Disability,

Endocrine System and Related Criteria

AGENCY: Social Security Administration.

ACTION: Proposed rule.

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SUMMARY: We are proposing to delete ``Obesity,'' from the listing to

adjudicate claims for disability under titles II and XVI of the Social

Security Act (the Act) when we evaluate claims of individuals at step 3

of our sequential evaluation process. Current medical and vocational

research demonstrates that, while many individuals with obesity are

disabled, obesity, in and of itself, is not necessarily determinative

of an individual's inability to engage in any gainful activity.

Instead, individuals with obesity would have their cases reviewed under

the listing for an affected body system(s) or, on a case-by-case basis,

at the remaining steps of the sequential evaluation process.

DATES: To be sure that your comments are considered, we must receive

them no later than May 11, 1998.

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 Social Security Administration, 2109 West Low Rise 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 hours by making arrangements with the contact person shown below.

The electronic file of this document is available on the Federal

Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the

Federal Register. To download the file, modem dial (202) 512-1387. The

FBB instructions will explain how to download the file and the fee.

This file is in WordPerfect and will remain on the FBB during the

comment period.

FOR FURTHER INFORMATION CONTACT: Robert Augustine, Legal Assistant,

Office of Process and Innovation Management, Social Security

Administration, 6401 Security Boulevard, Baltimore, Maryland 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: Title II of the Act provides for the payment

of disability insurance benefits to workers insured under the Act.

Title II also provides, under certain circumstances, for the payment of

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, title XVI of the Act provides for

supplemental security income (SSI) payments to persons who are aged,

blind, or disabled and who 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

the title II program, ``disability'' means that an impairment(s)

results in an inability to engage in any substantial gainful activity.

For an individual under age 18 claiming SSI benefits based on

disability, ``disability'' means that an impairment(s) results in

``marked and severe functional limitations.'' Under both title II and

title XVI, disability must be the result of any medically determinable

physical or mental impairment(s) that can be expected to result in

death or that has lasted or can be expected to last for a continuous

period of at least 12 months.

The process for determining whether an individual (except for an

individual under age 18 claiming SSI benefits based on disability) is

disabled based on the statutory definition is set forth in our

longstanding regulations at Secs. 404.1520 and 416.920. These

regulations provide for a sequential evaluation process for evaluating

disability. There is a separate sequential evaluation process for

individuals under age 18 claiming SSI benefits based on disability. At

step 3 of both sequential evaluation processes we ask the same

question: Whether an individual, who is not engaging in substantial

gainful activity and who has an impairment(s) that is severe, has an

impairment(s) that meets or equals in severity the criteria of an

impairment listed in appendix 1 of subpart P of part 404, the Listing

of Impairments (the listings). The listings describe, for each of the

major body systems, impairments that are considered severe enough to

prevent a

[[Page 11855]]

person from doing any gainful activity (or in the case of a child under

age 18 claiming SSI benefits based on disability, to cause marked and

severe functional limitations). Although the listings are contained

only in part 404, they are referenced by subpart I of part 416.

The listings are divided into part A and part B. The criteria in

part A are applied in evaluating impairments of persons age 18 or over.

The criteria in part A may also be used to evaluate impairments in

persons under age 18 if the disease processes have a similar effect on

adults and children. Part B contains additional criteria for evaluating

impairments of children under age 18 when the criteria in part A do not

give appropriate consideration to the particular effects of the disease

processes in childhood. In evaluating disability for a person under age

18, we first use the criteria in part B and, if the criteria in part B

do not apply, we use the criteria in part A (see Secs. 404.1525 and

416.925).

When these and several other listings were revised and published in

the Federal Register on December 6, 1985 (50 FR 50068), we indicated

that medical advances in disability evaluation and treatment and

program experience would require that we periodically review and update

the medical criteria in the listings. Accordingly, we published

expiration dates ranging from 3 to 8 years for each of the specific

body system listings. We subsequently extended these dates in a final

rule published in the Federal Register on December 6, 1993 (58 FR

64121). These dates appear in the introductory statement before part A

and provide that the current listings in part A and part B for the

endocrine system and obesity (9.00) and the endocrine system (109.00)

will no longer be effective on June 6, 1997. Subsequently, we issued

final rules on June 5, 1997 (62 FR 30746) extending the expiration date

of these listings for both part A and part B to June 7, 1999. We are

now proposing to delete listing 9.09, ``Obesity,'' and related

provisions in the listings, and to rename the section ``Endocrine

System.'' (There is no listing for obesity in part B.) These changes

will not affect the expiration date for the endocrine system listings.

We propose to remove listing 9.09 to recognize that there is no

generally accepted current medical and vocational knowledge which

establishes that even massive obesity, per se, has a defined adverse

effect on an individual's ability to work; i.e., even long-term,

massive obesity at the level specified in the listing does not

necessarily cause limitations that would prevent an individual from

engaging in any gainful activity. Associated disorders of the

musculoskeletal, cardiovascular, peripheral vascular, and pulmonary

systems are generally the major cause of disability at the listing

level in obese individuals but, unless the associated disorder(s) is

itself of listing-level severity, no reliable conclusions may be drawn

about disability in most obese individuals. Rather, it is necessary to

consider the effect of any disorders related to or aggravated by

obesity on each individual, on a case-by-case basis, in order to

determine whether the individual is disabled.

The following is a detailed summary of the proposed revisions,

together with our reasons for proposing these changes.

Revisions to Part A of Appendix 1

Table of Contents

We propose to delete ``and Obesity'' from section 9.00 to reflect

the proposed deletion of listing 9.09.

9.00 Endocrine System and Obesity

We propose to delete ``and Obesity'' from the heading in this

listing to reflect the proposed deletion of listing 9.09. We also

propose to delete the second and third paragraphs from the preface of

9.00 because they discuss aspects of the evaluation of obesity. This

discussion would no longer be needed under this proposal.

9.01 Category of Impairments, Endocrine System and Obesity

We propose to delete ``and Obesity'' from the heading of this

listing to reflect the proposed deletion of listing 9.09.

9.09 Obesity

We propose to delete this listing in its entirety. Current medical

and vocational research demonstrates that the listing is not

necessarily reflective of an inability to engage in any gainful

activity or even of an inability to engage in substantial gainful

activity. For example, listing 9.09A requires a ``[h]istory of pain and

limitation of motion in any weight-bearing joint or the lumbosacral

spine (on physical examination) associated with findings on medically

acceptable imaging techniques of arthritis in the affected joint or

lumbosacral spine.'' While such findings certainly could be a cause of

disability depending on their impact on a particular individual's

functioning, the listing is not specific: It does not indicate the

degree of pain, does not require current pain, only a history of pain,

and does not indicate a degree of limitation of motion, or any

functional effects resulting from the impairment. Thus, the current

listing can be satisfied with only minimal additional findings over and

above the weight levels, even though some individuals might have

sufficient residual functional capacities to work.

The same holds true for the other criteria in current listing 9.09.

Even though the findings in listings 9.09B through 9.09E could be

disabling if they were to cause significant limitations of functioning

in a given individual, they could also include individuals who are not

prevented from working. Indeed, only listings 9.09B and 9.09E specify

laboratory values, but those findings may or may not be associated with

significantly limited functioning, depending on the individual.

For this reason, we believe that individuals with the kinds of

additional impairments currently listed in 9.09 must have their cases

reviewed under the listing for the affected body system or, on a case-

by-case basis, at the remaining steps of the sequential evaluation

process. Individuals whose severe impairments related to obesity are

not of listing-level severity may establish that they are disabled,

given their residual functional capacities, together with their age,

education, and work experience.

We considered revising the obesity listing by clarifying the

severity criteria for the various listed body systems that could be

affected (musculoskeletal, cardiovascular, peripheral vascular and

respiratory). However, because the effects of obesity and related

impairments on an individual's functioning vary so widely, we concluded

that the only way we could be certain that individuals would be

disabled would be by requiring the other impairments to meet or equal

the severity of their respective listings. If another body system

listing is met or equaled, the individual's weight would become

immaterial to the finding of disability. We also considered raising the

weights in the tables to the extent that the exacerbated effect of the

obesity would ensure that the individuals would be disabled under the

listing based on weight alone. We chose not to revise the listing in

this way because we would have had to raise the weights in the tables

to such high levels that we would rarely use the listing.

Other Revisions

Introductory Text

We propose to delete ``and Obesity'' from item 10 of the

introductory text that precedes part A of the Listing of Impairments.

We also propose to revise item 10 of the introductory text to read

``Endocrine System (9.00 and 109.00):

[[Page 11856]]

June 7, 1999.'' to conform with the style of this section.

3.00 Respiratory System

We propose to delete the cross-reference to the obesity listing in

the last sentence of 3.00H and in listing 3.10, Sleep-related breathing

disorders. Since we propose to delete the obesity listing, the cross-

reference would no longer be appropriate.

Regulatory Procedures

Executive Order 12866

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

and determined that these proposed regulations meet the criteria for a

significant regulatory action under Executive Order (E.O.) 12866.

Therefore, we prepared and submitted to OMB an assessment of the

potential costs and benefits of this regulatory action. This assessment

also contains an analysis of alternative policies we considered and

chose not to adopt. It is available for review by members of the public

by contacting the person shown above.

Regulatory Flexibility Act

We certify that these proposed rules will not have a significant

economic impact on a substantial number of small entities because they

affect only individuals. Thus, a regulatory flexibility analysis as

provided in the Regulatory Flexibility Act, as amended, 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, Disability benefits,

Old-age, Survivors and Disability Insurance, Reporting and

recordkeeping requirements, Social security.

Dated: December 19, 1997.

Kenneth S. Apfel,

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.

Appendix 1 to Subpart P--[Amended]

2. Appendix 1 to Subpart P is amended as follows:

a. Item 10 of the introductory text before Part A of appendix 1 is

revised.

b. The Table of Contents for Part A of appendix 1 is amended by

removing ``and Obesity'' from section 9.00.

c. Listing 3.00 in part A of appendix 1 is amended by removing the

last sentence of paragraph H.

d. Listing 3.10 in Part A of appendix 1 is revised.

e. Listing 9.00 in part A of appendix 1 is amended by removing

``and Obesity'' from the title and removing the last two paragraphs

from the preface.

f. Listing 9.01 in part A of appendix 1 is amended by removing

``and Obesity'' from the title.

g. Listing 9.09 in part A of appendix 1 is removed.

The revised text is set forth as follows:

Appendix 1 to Subpart P--Listing of Impairments

* * * * *

10. Endocrine System (9.00 and 109.00): June 7, 1999.

* * * * *

Part A

* * * * *

3.10 Sleep-related breathing disorders. Evaluate under 3.09

(Chronic cor pulmonale) or 12.02 (Organic mental disorders).

* * * * * *

[FR Doc. 98-6212 Filed 3-10-98; 8:45 am]

BILLING CODE 4190-29-P