Social Security Ruling, SSR 99-3p, Title XVI: Evaluation of Disability and Blindness in Initial Claims for Individuals Age 65 or Older

SOCIAL SECURITY ADMINISTRATION

Social Security Ruling, SSR 99-3p, Title XVI: Evaluation of

Disability and Blindness in Initial Claims for Individuals Age 65 or

Older

AGENCY: Social Security Administration.

ACTION: Notice of Social Security ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of

Social Security gives notice of Social Security Ruling, SSR 99-3p. This

Ruling clarifies the Social Security Administration's standards and

procedures for the adjudication of disability and blindness

[[Page 33338]]

claims for individuals age 65 or older under title XVI, Supplemental

Security Income for the Aged, Blind, and Disabled, of the Social

Security Act.

EFFECTIVE DATE: June 22, 1999.

FOR FURTHER INFORMATION CONTACT: Michelle Hungerman, Office of

Disability, Social Security Administration, 6401 Security Boulevard,

Baltimore, MD 21235-6401, (410) 965-2289.

SUPPLEMENTARY INFORMATION: Although we are not required to do so

pursuant to 5 U.S.C. 552(a)(1) and (a)(2), we are publishing this

Social Security Ruling in accordance with 20 CFR 402.35(b)(1).

Social Security Rulings make available to the public precedential

decisions relating to the Federal old-age, survivors, disability,

supplemental security income, and black lung benefits programs. Social

Security Rulings may be based on case decisions made at all

administrative levels of adjudication, Federal court decisions,

Commissioner's decisions, opinions of the Office of the General

Counsel, and Agency interpretations of the law and regulations.

Although Social Security Rulings do not have the same force and

effect as the statute or regulations, they are binding on all

components of the Social Security Administration, in accordance with 20

CFR 402.35(b)(1), and are to be relied upon as precedents in

adjudicating cases.

If this Social Security Ruling is later superseded, modified, or

rescinded, we will publish a notice in the Federal Register to that

effect.

(Catalog of Federal Domestic Assistance, Program No. 96.006

Supplemental Security Income.)

Dated: June 14, 1999.

Kenneth S. Apfel,

Commissioner of Social Security.

Social Security Ruling

Title XVI: Evaluation of Disability and Blindness in Initial Claims for

Individuals Age 65 or Older

Purpose: To clarify SSA's standards and procedures for the

adjudication of title XVI of the Social Security Act (the Act)

disability and blindness claims for individuals age 65 or older. In

particular, this Ruling explains that:

In general, the regulations and procedures for determining

disability for adults under title XVI of the Act who are under age 65

are used when determining whether an individual age 65 or older is

disabled.

Adjudicators are required to consider any impairment(s) the

individual has, including those that are often found in older

individuals.

If an individual age 72 or older has a medically determinable

impairment, that impairment will be considered to be ``severe.''

If the individual's impairment(s) prevents the performance of his

or her past relevant work (PRW), or, if the individual does not have

PRW, the adjudicator must consider two special medical-vocational

profiles showing an inability to make an adjustment to other work

before referring to appendix 2 to subpart P of 20 CFR Part 404.

Generally, adjudicators should use the rules for individuals age

60-64 when determining whether an individual age 65 or older can

perform other work.

Beginning at age 65, age is considered to be a factor that imposes

greater limits on vocational adaptability for individuals who retain

the functional capacity to perform medium work. If illiteracy in

English or the inability to communicate in English further limits such

an individual's vocational scope, a finding of ``disabled'' is

warranted unless the individual's PRW was skilled or semiskilled and

provided the individual with transferable skills.

Some individuals age 65 or older may not understand, or be able to

comply with, our requests to submit evidence or attend a consultative

examination (CE). Therefore, adjudicators must make special efforts in

situations in which it appears that an individual age 65 or older may

not be cooperating.

Citations: Section 5301 of Public Law (P.L.) 105-33, sections 402

and 431 of P.L. 104-193, as amended, sections 1614(a), 1619(b) and

1621(f)(1) of the Act, as amended; 20 CFR Part 404, subpart P,

appendices 1 and 2, and 20 CFR Part 416, sections 416.901-416.923,

416.925, 416.926, 416.927-416.986, 416.988-416.994, and 416.995-

416.998.

Background: On August 5, 1997, P.L. 105-33, the Balanced Budget Act

of 1997, amended P.L. 104-193, the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996, as amended, and added

additional alien eligibility criteria. Under the new criteria,

``qualified'' aliens who were lawfully residing in the United States on

August 22, 1996, and who are disabled or blind as defined in section

1614(a) of the Act are eligible for benefits under title XVI provided

all other eligibility requirements are met. Individuals can establish

eligibility based on disability or blindness at any age, even on or

after attaining age 65.

In addition to qualified aliens, determinations of disability under

title XVI also may be needed for other individuals age 65 or older to

determine:

State supplements in some States (section 1616 of the Act);

Whether the work incentive provisions of section 1619(b) of the Act

are applicable; or

Appropriate deeming of income and resources (section 1621(f)(1) of

the Act; 20 CFR 416.1160, 416.1161, 416.1166a, and 416.1204).

For adults (individuals age 18 or older) section 1614(a)(3)(A) of

the Act defines disability as the inability to do 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.

The rules we use to determine if this definition is met are set

forth in our regulations in subpart I of 20 CFR Part 416, and

appendices 1 and 2 to subpart P of 20 CFR Part 404. Although these

rules were, in general, developed for individuals who have not attained

age 65, they do recognize that certain characteristics would result in

greater vocational adversity as individuals age.

Ruling:

Evaluation Issues

In general, the regulations and procedures for determining

disability for adults under title XVI of the Act who are under age 65

are used when determining whether an individual age 65 or older is

disabled, except as provided later in this Ruling.

To determine if an adult is disabled as defined in the Act,

adjudicators generally use the 5-step sequential evaluation process set

out in 20 CFR 416.920.

Step 1--Is the Individual Working?

If the individual is working, and the work is substantial gainful

activity (see 20 CFR 416.971-416.976), we will find that the individual

is not disabled regardless of his or her medical condition, age,

education, or work experience.

Step 2--Does the Individual Have a Severe Impairment?

At step 2 of the sequential evaluation process, a determination is

made about whether an individual has a medically determinable

impairment and whether the individual's medically determinable

impairment--or combination of impairments--is ``severe.'' An individual

who does not have an impairment or combination of impairments that is

``severe'' will be found not disabled.

An impairment(s) is considered ``severe'' if it significantly

limits an

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individual's physical or mental abilities to do basic work activities.

An impairment(s) that is ``not severe'' must be a slight abnormality,

or a combination of slight abnormalities, that has no more than a

minimal effect on the ability to do basic work activities. It is

incorrect to consider an impairment to be ``not severe'' because the

impairment's effects are ``normal'' for a person of that age.

As in any claim, adjudicators must consider signs, symptoms, and

laboratory findings when determining whether an individual age 65 or

older has a medically determinable impairment (see 20 CFR 416.908 and

416.928). The likelihood of the occurrence of some impairments

increases with advancing age; e.g., osteoporosis, osteoarthritis,

certain cancers, adult-onset diabetes mellitus, impairments of memory,

hypertension, and impairments of vision or hearing. Adjudicators are

required to consider any impairment(s) the individual has, including

impairments like the ones listed above that are often found in older

individuals. It is incorrect to disregard any of an individual's

impairments because they are ``normal'' for the person's age.

When an individual has more than one medically determinable

impairment and each impairment by itself is ``not severe,''

adjudicators must still assess the impact of the combination of those

impairments on the individual's ability to function. A claim may be

denied at step 2 only if the evidence shows that the individual's

impairments, when considered in combination, are ``not severe''; i.e.,

do not have more than a minimal effect on the individual's physical or

mental ability(ies) to perform basic work activities.

Special Rule for Individuals Age 72 or Older

Generally, we use step 2 of the sequential evaluation process as a

``screen'' to deny individuals with impairments that would have no more

than a minimal effect on their ability to work even if we considered

their age, education, and work experience. However, with advancing age,

it is increasingly unlikely that individuals with medically

determinable impairments will be found to have minimal limitations in

their ability to do basic work activities. By age 72, separate

consideration of whether an individual's medically determinable

impairment(s) is ``severe'' does not serve the useful screening purpose

that it does for individuals who have not attained age 72. Therefore,

if an individual age 72 or older has a medically determinable

impairment(s), that impairment(s) will be considered to be ``severe,''

and evaluation must proceed to the next step of the sequential

evaluation process.

Step 3--Does the Individual Have an Impairment(s) That Meets or Equals

an Impairment Listed in Appendix 1?

When an individual has a severe impairment(s) that meets or

medically equals the requirements for one of the impairments in the

Listing of Impairments in appendix 1 to subpart P of 20 CFR Part 404,

and meets the duration requirement, the individual is disabled.

When Disability Cannot Be Found at Step 3--Assessing Residual

Functional Capacity

When the individual does not have an impairment(s) that meets or

equals the requirements for a listed impairment, the adjudicator is

required to assess the individual's residual functional capacity (RFC).

The RFC assessment is an adjudicator's finding about the ability of an

individual to perform both physical and mental work-related activities

despite his or her impairment(s). The assessment considers all of the

individual's medically determinable impairments, including those that

are ``not severe,'' and all limitations or restrictions caused by

symptoms, such as pain, that are related to the medically determinable

impairment(s). The assessment is based upon consideration of all

relevant evidence in the case record, including medical evidence and

relevant nonmedical evidence, such as observations of lay witnesses of

an individual's apparent symptomatology, or an individual's own

statement of what he or she is able or unable to do.

When assessing RFC in an initial claim, an adjudicator should not

find that an individual has limitations or restrictions beyond those

caused by his or her medically determinable impairment(s). Limitations

or restrictions due to factors such as age, height, or whether the

individual has ever engaged in certain activities in his or her PRW

(e.g., lifting heavy weights) are, per se, not considered in assessing

RFC. (See SSR 96-8p, ``Titles II and XVI: Assessing Residual Functional

Capacity in Initial Claims.'')

Step 4--Does the Individual Have an Impairment(s) That Prevents Him or

Her From Performing Past Relevant Work?

The RFC assessment discussed above is first used at step 4 of the

sequential evaluation process to determine whether the individual is

capable of doing PRW. The rules and procedures we use to make this

determination for individuals under age 65 are also applicable to

individuals age 65 or older. This includes consideration of whether the

individual can perform his or her PRW as he or she actually performed

it or as it is generally performed in the national economy. If the

individual's PRW was performed in a foreign economy, we will generally

only consider whether the individual can perform his or her PRW as he

or she described it. However, if the work the individual did in a

foreign economy also exists in the U.S. economy, we will consider

whether he or she can perform the work as it is generally performed in

the national economy. If the individual can perform his or her PRW, he

or she will be found not disabled.

(See SSR 82-40, ``Titles II and XVI: The Vocational Relevance of the

Past Work Performed in a Foreign Country.'')

Step 5--Can the Individual Do Other Work?

The last step of the sequential evaluation process requires us to

determine whether an individual can do other work considering his or

her RFC, age, education and work experience.

Special Medical-Vocational Profiles Showing an Inability To Make an

Adjustment to Other Work

If the individual's impairment(s) does preclude the performance of

PRW, or if the individual does not have PRW, two special medical-

vocational profiles must be considered before referring to appendix 2

to subpart P of 20 CFR Part 404. The special profiles are discussed in

SSR 82-63, ``Titles II and XVI: Medical-Vocational Profiles Showing an

Inability to Make an Adjustment to Other Work.''

The ``arduous unskilled physical labor'' profile applies when an

individual:

Is not working;

Has a history of 35 years or more of arduous unskilled physical

labor;1

Can no longer perform this past arduous work because of a severe

impairment(s); and

Has no more than a marginal education (generally 6th grade or

less).

The ``no work experience'' profile applies when an individual:

Has a severe impairment(s);

Has no past relevant work;

Is age 55 or older; and

Has no more than a limited education (generally, 11th grade or

less).

If either of these profiles applies, a finding of ``disabled'' must

be made. This finding is made without considering the criteria in

appendix 2 to subpart P of 20 CFR Part 404.

[[Page 33340]]

Applying the Criteria in Appendix 2 to Subpart P of 20 CFR part 404

If the special medical-vocational profiles are not applicable, we

use the rules in appendix 2 to subpart P of 20 CFR Part 404 to

determine whether the individual has the ability to do other work. The

highest age category used in appendix 2 is age 60-64, ``closely

approaching retirement age.'' However, we have longstanding internal

procedures that direct our adjudicators to use the rules for ages 60-64

when making determinations for individuals age 65 or older at step 5.

Under those rules, individuals age 65 or older who are limited to

``sedentary'' or ``light'' work will be found disabled unless their PRW

provided them with transferable skills or they are at least a high

school graduate and their education provides for direct entry into

skilled work. As set out in sections 201.00(f) and 202.00(f) of

appendix 2, to find transferability of skills for individuals age 65 or

older who are limited to sedentary or light work, there must be very

little, if any, vocational adjustment required in terms of tools, work

processes, work settings, or the industry.1

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\1\ However, for individuals residing in the Fifth, Sixth, and

Eighth Federal judicial circuits, see Acquiescence Rulings AR 95-

1(6), AR 99-2(8), and AR 99-3(5).

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Individuals age 65 or older who can perform the full range of

medium work are found disabled when they have no more than a marginal

education and their PRW was unskilled or they had no PRW, or when they

have no more than a limited education and no PRW. In addition, some

individuals who do not meet these criteria may also be found disabled

as set forth in the next section.

Special Rule for Determining Disability for Individuals Age 65 or Older

Who Can Perform Medium Work But Who Are Illiterate in English or Unable

To Communicate in English

Section 203.00 of appendix 2 contains rules used to make disability

determinations for individuals who retain the functional capacity to

perform medium work. The capacity to perform medium work also includes

the capacity to perform light and sedentary work, and represents the

capability to perform a substantial number of jobs. For individuals

under age 65 considered under this section, this capability represents

a substantial vocational scope even for individuals who are illiterate

in English or unable to communicate in English.

However, beginning at age 65, the individual's age is considered to

be a factor that imposes greater limits on vocational adaptability. If

illiteracy in English or the inability to communicate in English

further limits such an individual, a finding of ``disabled'' is

warranted unless the individual's PRW was skilled or semiskilled and

provided the individual with transferable skills. For a finding of

transferability of skills to medium work for an individual age 65 or

older, there must be very little, if any, vocational adjustment

required in terms of tools, work processes, work settings, or the

industry.

Duration

As indicated earlier, the likelihood of the occurrence of some

impairments, such as osteoporosis, osteoarthritis, certain cancers,

adult-onset diabetes mellitus, impairments of memory, hypertension, and

impairments of vision or hearing, increases with advancing age.

Moreover, such impairments are more likely to be chronic than acute.

Therefore, adjudicators must be especially careful before concluding

that an impairment in an individual age 65 or older will not meet the

12-month duration requirement.

Development Issues

Developing Allegations of Impairment(s)

When obtaining the medical history of an individual age 65 or

older, it is important to be alert to and address allegations of

impairments that are commonly associated with the aging process, such

as osteoporosis, arthritis, loss of vision, hearing loss, and memory

loss. Allegations may be raised in response to specific questions about

the individual's impairment(s); e.g., on Form SSA-3368-BK. However,

adjudicators must also be alert to allegations raised in other evidence

in the file. For example, questionnaires about activities of daily

living may contain statements like ``I have difficulty walking or

climbing stairs because my legs hurt,'' ``I can't clean my apartment

because my back hurts,'' or ``I don't read much anymore because I don't

see well.'' These statements constitute allegations of impairment(s).

Therefore, adjudicators must:

Review the case file thoroughly to identify all allegations or

other indications of impairment.

Be aware that the medical evidence or third party statements can

raise additional allegations.

When contacting an individual age 65 or older, be alert to

statements indicating the presence of an impairment(s) commonly

associated with the aging process.

Consider all signs or symptoms indicative of an impairment(s),

including those impairments caused by degenerative changes associated

with the aging process.

Purchasing Medical Evidence

Our regulations, at 20 CFR 416.912(f) and 416.917, indicate that we

will purchase CEs when the individual's medical sources cannot or will

not give us sufficient medical evidence about the individual's

impairment for us to determine if he or she is disabled. Section

416.919f further provides that we will purchase only the specific

examinations and tests that we need to make a determination or

decision. Due to the wide range of allegations contained in cases of

individuals age 65 or older, evidence addressing more than one body

system may need to be purchased. In these situations, it is usually

appropriate to purchase general medical examinations rather than

examinations targeted at particular body systems. This will ensure that

all allegations of impairment are evaluated, and will reduce the burden

on the individual. For example, if the individual alleges back and knee

pain, shortness of breath on exertion, and numbness and weakness in his

or her arm, a general medical examination would usually be preferable

to separate orthopedic, neurologic, and respiratory or cardiac

examinations.

Failure To Cooperate

Individuals filing for benefits based on disability or blindness

have certain responsibilities for furnishing us with, or helping us

obtain, needed evidence. Our regulations at 20 CFR 416.912(c), 416.916,

and 416.918 describe these responsibilities. However, due to factors

such as possible language barriers or limited education, some

individuals age 65 or older may not understand, or be able to comply

with, our requests to submit evidence or attend a CE.

If it appears that an individual age 65 or older is not

cooperating, adjudicators must take the following additional actions

when the individual does not have an appointed representative, or when

the appointed representative has asked us to deal directly with the

individual.

If an individual age 65 or older has not supplied evidence or taken

an action we requested and still need, the adjudicator must:

Contact the individual to determine why he or she has not complied

with our request. If it appears that the individual needs personal

assistance, including interpreter assistance, to

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complete forms, request field office assistance.

Contact a third party (i.e., someone other than the individual's

representative) if one has been identified, about assisting the

individual at the same time the adjudicator contacts the individual.

If an individual age 65 or older did not attend a CE, the

adjudicator must:

Contact the individual to determine why he or she did

not attend the CE.

Make at least two attempts at different times on

different days to contact the individual by telephone. (A busy

signal does not constitute an attempt.)

Send the claimant a call-in letter if telephone contact

is not possible or successful.

Contact a third party, if one has been identified,

about assisting the claimant at the same time contact is attempted

with the claimant.

When contact is made with the individual or the third

party, explain that the CE is for evaluation purposes only, and that

no treatment will be required.

Reschedule the CE if the individual had a good reason

for not attending the prior CE (e.g., he or she had transportation

problems or was out of the country at the time of the CE) and

indicates a willingness to attend a rescheduled CE.

Non-English-Speaking or Limited-English-Proficiency Individuals

For all the development issues discussed above, adjudicators must

remember that we are responsible for obtaining the services of a

qualified interpreter if the individual requests or needs one. This

includes providing an interpreter at a CE if the CE provider is not

sufficiently fluent in the individual's language.

EFFECTIVE DATE: This Ruling is effective on the date of its publication

in the Federal Register.

CROSS-REFERENCES: SSR 82-40, ``Titles II and XVI: The Vocational

Relevance of the Past Work Performed in a Foreign Country''; SSR 82-61,

``Titles II and XVI: Past Relevant Work--The Particular Job or the

Occupation as Generally Performed''; SSR 82-62, ``Titles II and XVI: A

Disability Claimant's Capacity To Do Past Relevant Work, In General'';

SR 82-63, ``Titles II and XVI: Medical-Vocational Profiles Showing an

Inability To Make an Adjustment to Other Work'''; SSR 85-28, ``Titles

II and XVI: Medical Impairments That Are Not Severe''; SSR 96-3p,

``Titles II and XVI: Considering Allegations of Pain and Other Symptoms

in Determining Whether a Medically Determinable Impairment Is Severe'';

SSR 96-8p, ``Titles II and XVI: Assessing Residual Functional Capacity

in Initial Claims''; AR 95-1(6), ``Preslar v. Secretary of Health and

Human Services, 14 F.3d 1107 (6th Cir. 1994)--Definition of Highly

Marketable Skills for Individuals Close to Retirement Age--Titles II

and XVI of the Social Security Act''; AR 99-2(8), ``Kerns v. Apfel, 160

F.3d 464 (8th Cir. 1998)--Definition of Highly Marketable Skills for

Individuals Close to Retirement Age--Titles II and XVI of the Social

Security Act''; AR 99-3(5), ``McQueen v. Apfel, --Definition of Highly

Marketable Skills for Individuals Close to Retirement Age--Titles II

and XVI of the Social Security Act''; and Program Operations Manual

System, sections DI 22505.015, DI 22510.018, DI 22510.019, DI

23515.010, DI 23515.025, DI 25010.001, SI 00502.142, and GN 00203.001.

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\1\ Training, or isolated, brief, or remote periods of

semiskilled or skilled work will not preclude a finding or arduous

unskilled work if such training or experience did not result in

skills that enable the individual to do other work.

[FR Doc. 99-15972 Filed 6-21-99; 8:45 am]

BILLING CODE 4190-29-P