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 (SSA).

ACTION: Final rule.

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SUMMARY: We are deleting listing 9.09, ``Obesity,'' from appendix 1,

subpart P of part 404, the ``Listing of Impairments'' (the listings).

Although many individuals with obesity are appropriately found

``disabled'' within the meaning of the Social Security Act (the Act),

we have determined that the criteria in listing 9.09 were not

appropriate indicators of listing-level severity because they did not

represent a degree of functional limitation that would prevent an

individual from engaging in any gainful activity. However, in response

to public comments, we are adding guidance about evaluating claims for

benefits involving obesity to the prefaces of the musculoskeletal,

respiratory, and cardiovascular body system listings.

DATES: These regulations will be effective on October 25, 1999.

FOR FURTHER INFORMATION CONTACT: Robert Augustine, Social Insurance

Specialist, Office of Process and Innovation Management, Social

Security Administration, 6401 Security Boulevard, Baltimore, Maryland

21235-6401, (410) 966-5121 or TTY (410) 966-5609 for information about

these rules. For information on eligibility or claiming benefits, call

our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778.

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.

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To determine whether an individual (except for an individual under

age 18 claiming SSI benefits based on disability) 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 individual engaging in substantial gainful activity? If

the individual 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 individual have an impairment or combination of

impairments that is severe? If the individual does not have a severe

impairment or combination of impairments, we find that he or she is not

disabled. If the individual has a severe impairment or combination of

impairments, we proceed to step 3 of the sequence.

3. Does the individual's impairment(s) meet or equal in severity

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

404? Sections 404.1525(a) and 416.925(a) of our regulations explain

that the listings describe, for each of the major body systems,

impairments that are considered severe enough to prevent a person from

doing any gainful activity. If an individual has an impairment(s) that

meets or is equal in severity to the criteria of a listed impairment,

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

sequence.

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

performing other work that exists in significant numbers in the

national economy, considering his or her residual functional capacity

together with the ``vocational factors'' of age, education, and work

experience? If so, we find that the individual is disabled. If not, we

find that he or she is not disabled.

Section 416.924 of our regulations provides a separate sequential

evaluation process for individuals under age 18 who claim eligibility

for SSI based on disability. As in the sequential evaluation process

for adults, we determine at step 3 of this process whether the child's

impairment(s) meets or medically equals the requirements of any

listing. At this step, we also consider whether the child's

impairment(s) ``functionally'' equals the requirements of any listing

that includes disabling functional limitations among its criteria.

Although the listings are contained only in part 404, we

incorporate them by reference in Sec. 416.925 of subpart I of part 416.

The listings are divided into part A and part B. We apply the criteria

in part A in evaluating impairments of persons age 18 or over. We may

also apply the criteria in part A in evaluating impairments in persons

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

and children. Part B contains additional criteria that we only use to

evaluate 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. If the

criteria in part B do not apply, we will use the criteria in part A

(see Secs. 404.1525 and 416.925).

When we revised and published the listing on obesity and several

other listings 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 the listings

in each of the body systems. These dates appeared in our regulations in

the introductory statement before part A of the listings. We

subsequently extended these dates in final rules published in the

Federal Register on December 6, 1993 (58 FR 64121) and again on June 5,

1997 (62 FR 30746). Most recently, we published final rules on June 3,

1999 (64 FR 29786), extending the expiration date of these listings to

July 2, 2001, for both part A, including the listings for the endocrine

system and obesity (9.00), and part B. (There was no listing for

obesity in part B.)

On March 11, 1998, we proposed to delete listing 9.09, ``Obesity,''

and related provisions in the listings, and to rename the section

``Endocrine System'' (63 FR 11854). We are now adopting the proposed

rules as final rules, with the changes discussed below. These changes

will not affect the current expiration date for the endocrine system

listings.

In these final rules, we are removing listing 9.09 because our

experience adjudicating cases under this listing indicates that the

criteria in the listing were not appropriate indicators of listing-

level severity. In our experience, the criteria in listing 9.09 did not

represent a degree of functional limitation that would prevent an

individual from engaging in any gainful activity. However, even though

we have deleted listing 9.09, we are making some changes to the

listings in response to public comments to ensure that obesity is still

addressed in our listings.

A number of public commenters, including professional medical and

advocacy organizations, submitted medical literature to us in support

of their view that we should not delete listing 9.09. We carefully

reviewed these comments and the medical literature cited to us. We also

considered whether we should revise the obesity listing by clarifying

the severity criteria related to the affected body systems in listing

9.09 (i.e., the musculoskeletal, respiratory and cardiovascular

systems), or by making other changes in the listings suggested by the

commenters. However, we concluded that, because of the widely varying

effects obesity and related impairments may have on an individual's

functioning, the only way we could be confident that individuals would

be disabled under the listings would be to require the other

impairments to meet or equal the severity of their respective listings.

We also considered whether to raise the weights in the tables to the

extent that the level of obesity would ensure that the individuals

would be disabled 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.

In response to various concerns about the potential effects of

removing all reference to obesity from the listings, we are adding

guidance about the evaluation of claims for benefits involving obesity

to the prefaces of the musculoskeletal, respiratory, and cardiovascular

body system listings. Our purpose in making these changes is to ensure

that adjudicators understand that we consider obesity to be a medically

determinable impairment that can be the basis for a finding of

disability, and that obesity in combination with other impairments must

be considered when evaluating disability at the listings step and other

steps of the sequential evaluation process. We are making this change

to clarify our intent.

We also want to make clear that we are deleting listing 9.09

because we have determined that the listing is no longer an appropriate

rule and because we were unable to propose a reliable alternative.

However, we will continue to consider whether we can make improvements

in our evaluation of claims filed by individuals with obesity. We

intend to obtain information from

[[Page 46124]]

the medical community and other interested parties regarding our

adjudication of claims of individuals with obesity. We also intend to

provide guidance to our adjudicators about the evaluation of claims

involving obesity in a Social Security Ruling. Social Security Rulings

make available to the public our policy interpretations and provide

uniform, binding guidance for all components of the SSA and the State

agencies that make disability determinations for us.

The following is a detailed summary of the revisions, together with

our reasons for the changes.

Regulatory Provisions

Revisions to Part A of Appendix 1

Table of Contents

We are deleting ``and Obesity'' from section 9.00 to reflect the

deletion of listing 9.09.

1.00 Musculoskeletal System

3.00 Respiratory System

4.00 Cardiovascular System

We are adding new paragraphs 1.00F., 3.00I., and 4.00F. to the

prefaces to the listings for the body systems named above. The

paragraphs state clearly that we consider obesity to be a medically

determinable impairment and remind adjudicators to consider its effects

when evaluating disability. The provisions also remind adjudicators

that the combined effects of obesity with other impairments can be

greater than the effects of each of the impairments considered

separately. They also instruct adjudicators to consider the effects of

obesity not only under the listings but also when assessing a claim at

other steps of the sequential evaluation process, including when

assessing an individual's residual functional capacity.

9.00 Endocrine System

We are deleting ``and Obesity'' from the heading of this section of

the listings to reflect the deletion of listing 9.09. We are also

deleting the second and third paragraphs from the preface of 9.00

because they discussed aspects of the evaluation of obesity in

connection with listing 9.09.

9.01 Category of Impairments, Endocrine System

We are deleting ``and Obesity'' from the heading of this listing to

reflect the deletion of listing 9.09.

9.09 Obesity

We are deleting listing 9.09. In our experience, its criteria were

not appropriate indicators of listing-level severity because they did

not represent a degree of functional limitation that would prevent an

individual from engaging in any gainful activity. For example, listing

9.09A required 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 was not

specific. It did not indicate any degree of pain, nor did it require

current pain--only a history of pain--and did not indicate a degree of

limitation of motion. Thus, the listing could have been satisfied with

only minimal additional findings over and above the specified weight

levels, even though many individuals with those findings in conjunction

with the specified weight levels were not precluded from performing any

gainful activity.

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

Although the findings in listings 9.09B through 9.09E could be

disabling in a given individual, in our experience the findings

contained in these listings were not consistently so severe that they

would warrant a presumption that an individual is incapable of

performing any gainful activity. Indeed, only listings 9.09B and 9.09E

specified laboratory values, but those findings might or might not have

prevented an individual from performing any gainful activity.

Individuals with the kinds of additional impairments previously

listed in 9.09 will still have their cases evaluated as appropriate

under the listings for the affected body systems, and can still be

found to have impairments that meet the requirements of those other

listings. They may also be found to have impairments that equal the

severity of other listings, considering the combined effect of obesity

and the other impairments. Individuals whose impairments related to, or

in combination with, obesity are not of listing-level severity will

have their cases evaluated based on their residual functional capacity,

and may be found disabled at step 5 of the sequential evaluation

process.

Other Revisions

Introductory Text

We are deleting ``and Obesity'' from item 10 of the introductory

text that precedes part A of the listings. We are also revising item 10

of the introductory text to read ``Endocrine System (9.00 and 109.00):

July 7, 1999.''

3.00 Respiratory System

We are deleting the last sentence of 3.00H, which referred to the

obesity listing. We are also deleting the reference to listing 9.09 in

listing 3.10, Sleep-related breathing disorders.

Public Comments

When we published the Notice of Proposed Rulemaking (NPRM) on March

11, 1998 (63 FR 11854), we provided the public with a 60-day comment

period. On June 10, 1998, we extended the comment period until July 13,

1998 (63 FR 31680).

We received comments from just over 500 individuals and

organizations. Almost 300 of the comment letters were form letters that

included comments on subjects unrelated to the deletion of listing

9.09; we have forwarded the comments on the unrelated issues to the

appropriate components within SSA and do not address them below. The

other comment letters included detailed comments submitted on behalf of

advocacy organizations representing individuals with obesity, medical

researchers and medical advocates for individuals with disability, and

legal advocates for individuals with obesity. We also received comments

from some State agencies that make disability determinations for us,

organizations representing disability adjudicators at the State level,

several legal services organizations, individual disability

beneficiaries and their families, attorneys, non-attorney

representatives, and SSA employees.

When we proposed these rules, we stated that we intended to delete

the obesity listing because ``[c]urrent 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'' (63 FR

11854). A number of the comments (discussed more fully below) indicated

that there may have been some misunderstanding about why we were

proposing to remove the listing. Therefore, in addition to responding

to the specific comments, we want to provide a fuller explanation of

why we are making the change.

Some commenters believed that we claimed that we had conducted

extensive research, that this research was the sole basis for our

proposal, but that we were not making this research available to the

public. This was not the

[[Page 46125]]

case, and it was not what we meant in the NPRM.

We proposed to delete listing 9.09 primarily because our program

and adjudicative experience helped to convince us that the listing was

difficult to administer, subject to misinterpretation, and required

findings of disability in some cases in which the claimants were

clearly not ``disabled'' as defined in the Act. Some of the criteria,

such as the criteria in listings 9.09A and D, were vague and overly

subjective. Some, such as the criteria in listings 9.09A and C, did not

necessarily relate to current impairment status. These concerns were

echoed by some of the comments from our adjudicators, who also noted

that the listing was problematic.

Over the years, we had received many questions from adjudicators

and others about the meaning of the criteria and how to apply them. We

also had extensive experience reviewing individual claims that

adjudicators referred to us for advice and for resolution of questions

about the correct interpretation of the criteria. This experience

convinced us that listing 9.09 was no longer appropriate.

In addition, before we published the NPRM, we reviewed a small

group of cases in which individuals were found disabled based on a

finding that their impairments met or equaled listing 9.09. Although

our reviews did not constitute a statistically valid study, they did

provide further confirmation of our program and adjudicative

experience. We found that, in the majority of the cases we studied, the

determinations would not have been affected by the deletion of listing

9.09; i.e., we would have found the individuals disabled. The majority

of individuals had impairments that met or equaled other listings, or

that we would have found disabling at step 5 of the sequential

evaluation process; most of these individuals had impairments that met

or equaled other listings. However, consistent with our experience, we

also found that, in a significant number of the cases, we would not

have found the individuals disabled under other listings or at step 5

of the sequential evaluation process.

We also reviewed medical literature to see if any generally

accepted research showed a correlation between obesity and loss of

functional capacity for work that might support retention of the

listing without change or serve as a basis for an alternative proposal.

There is significant medical literature correlating obesity with a

variety of health risks. A number of commenters cited such literature

to us; one comment letter cited many such sources. However, we reviewed

the cited sources and determined that they did not provide support for

the retention of listing 9.09 because they did not demonstrate a

significant correlation between obesity and current loss of functional

ability for work. Although the sources did show that the risk for

having another impairment goes up significantly if an individual is

severely obese, they did not provide a basis for concluding that a

given individual will currently be unable to engage in any gainful

activity.

For all the foregoing reasons, we have decided that we must delete

listing 9.09 and that it is most appropriate to evaluate disability

under the listings for the other impairments an individual with severe

obesity might have. We also concluded that we should instruct our

adjudicators that the combined effects of obesity with other

impairments may be greater than the effects of each of the impairments

considered separately, and that such evaluations should be made on an

individualized, case-by-case basis.

Summaries of the significant comments and our responses follow.

Because some of the comments were quite detailed, we had to condense,

summarize, or paraphrase them. We have, however, tried to summarize the

commenters' views accurately and have responded to all of the

significant issues raised by the commenters that are within the scope

of the proposed rules. As we discuss below in responding to the

comments, we have made revisions and additions in the final rules to

clarify our intent.

Comment: A number of commenters said that deleting listing 9.09

will result in longer, more costly, and less consistent determinations

and decisions, and will also result in increased case backlogs. They

said that the listing saved administrative resources by using objective

medical criteria to avoid a more costly case-by-case inquiry into an

individual's functional ability.

Response: Although some individual cases will require more

development and analysis than they would have under listing 9.09, in

our cost/benefit analysis, we estimate that, overall, there will be

slight administrative savings from these final rules when all future

actions are considered. For example, even though some cases will

require more initial development than under listing 9.09, there will be

fewer continuing disability reviews because we anticipate there will be

fewer people whose claims will be allowed than under the prior rules.

Moreover, obesity is the primary impairment in just under 3 percent of

all disability claims filed each year under titles II and XVI. Also, as

we have already noted, there will be no effect on many cases because

many of the individuals with severe obesity who file applications each

year and who would have met listing 9.09 will be found to have

impairments that meet or equal other listings based on the medical and

other evidence we obtain in our routine development of all cases.

With regard to the second part of the comment, and as we have noted

earlier in this preamble, we do not agree that listing 9.09 was

objective or accurate as a measure of listing-level impairment severity

in a significant number of cases.

Comment: Many commenters thought that deletion of listing 9.09

would result in the denial of benefits to disabled individuals. Many of

the commenters believed that without listing 9.09, adjudicators would

overlook or improperly evaluate a claimant's obesity. Some stated that

obesity is a disease that can affect an individual's ability to stand,

sit, walk, climb, etc., and should be treated as such. They said that

for SSA to eliminate this impairment from the listings would be to

ignore a genuine medical impairment that causes significant functional

limitations.

Some commenters thought that removing any reference to obesity from

our listings would send an implicit message to our adjudicators that we

do not want them to consider obesity. Several commenters expressed

concern that adjudicator ``bias'' would play a part in case evaluation

in the absence of the obesity listing.

Many commenters also indicated that listing 9.09 did not consider

obesity alone. They thought that adjudicators would not adequately

consider obesity, either under the listings for other body systems,

which do not provide criteria that specifically take into account the

effects of obesity, or in the assessment of an individual's residual

functional capacity.

Most of these commenters urged us to retain some reference to

obesity and its potentially disabling manifestations in our rules.

Response: We made revisions in these final rules in response to the

comments. Our proposal to delete listing 9.09 neither stated nor

implied that we would no longer consider obesity to be a medically

determinable impairment, nor did it state or imply that obesity could

not be disabling by itself or in combination with other impairments. We

agree, however, that our rules should retain some reference to obesity

and its potentially disabling manifestations.

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Obesity is a medically determinable impairment, and we expect our

adjudicators to consider it when evaluating impairment severity.

Adjudicators must also incorporate any functional limitations resulting

from obesity into the assessment of disability. We are confident that

our adjudicators will continue to do so, even in the absence of listing

9.09. We also have a quality assurance review process that helps us

ensure that decisions are supported by the evidence and that multiple

impairments, including obesity, are properly considered.

Nevertheless, we agree with the commenters that there could have

been a potential for misinterpretation of our intent if we simply

deleted references to obesity in the listings without anything more.

Therefore, in response to the comments, we have added paragraphs to the

prefaces of the musculoskeletal, respiratory, and cardiovascular body

systems (the same body systems that were referenced in listings 9.09 A

through E), to indicate that we consider obesity to be a medically

determinable impairment, that obesity is often associated with

disturbances of these body systems, and that disturbances of these body

systems can be a major cause of disability in individuals with obesity.

We also provide that the combined effects of obesity with impairments

in these body systems can be greater than the effects of each of the

impairments considered separately. Finally, we provide that, when

determining whether an individual with obesity has a listing-level

impairment or combination of impairments, and when assessing residual

functional capacity, adjudicators must consider any additional and

cumulative effects of obesity. In addition, as noted above, we intend

to provide additional guidance to our adjudicators about the evaluation

of claims involving obesity in a Social Security Ruling.

Comment: Many commenters stated that listing 9.09 was a carefully

drafted regulation that recognized the impact of obesity on certain

musculoskeletal, respiratory, and cardiovascular disorders. They said

the listing correctly reflected that severe obesity, in conjunction

with any of the conditions set forth in listings 9.09 A through E,

would result in functional limitations so severe that the individual

would not be able to meet the performance or attendance requirements of

any employer. They asked that we keep the listing without change.

Response: The listing criteria for obesity we first promulgated on

March 27, 1979 (44 FR 18170), represented our attempt to devise

criteria that would ``take into account the contributing complication

of obesity . . .'' (44 FR 18175). However, for the reasons previously

discussed, we believe that the listing did not easily or accurately

distinguish between individuals who could be presumed to be unable to

engage in any gainful activity and those for whom such a presumption

was inappropriate.

Comment: Many commenters urged us to revise, rather than delete,

the obesity listing, and some offered to assist us in developing new

listing criteria. Some recommended specific revisions to the current

listing, such as revising the requirements in sections A through E of

the listing or converting the listing to a ``reference'' listing; that

is, one that merely cross-refers to other listings. Others suggested

that we incorporate specific criteria for obesity in appropriate

listings in other body systems (e.g., musculoskeletal, respiratory,

cardiovascular, mental) so that adjudicators would not overlook it in

determining the severity of an individual's impairments.

Response: We added paragraphs to the prefaces to other body system

listings that we believe address the concerns of many of the commenters

who encouraged us, in one way or another, to retain reference to

obesity in the listings. However, we did not adopt the commenters'

suggestions for alternative criteria based either on a specific level

of obesity alone or on a level of obesity in conjunction with another

impairment that is itself of less than listing-level severity. None of

the alternative criteria proposed by commenters appeared to describe a

level of impairment severity that would allow us reasonably to conclude

that an individual who met the alternative criteria would be unable to

perform any gainful activity.

Comment: Several commenters were concerned that the proposal to

eliminate listing 9.09 was based on assumptions concerning functional

capacity. They said that functional capacity has never been a

consideration in determining whether an adult claimant meets the

listings.

Response: Functioning is an explicit criterion in many of our

listings. Moreover, even though we do not assess functional limitations

in some listings, Secs. 404.1525 and 416.925 of our regulations provide

that the listings describe impairments that are considered severe

enough to prevent a person from doing any gainful activity.

Comment: A few commenters objected to our statement that some

individuals who met listing 9.09 might be able to perform substantial

gainful activity. They did not believe that the listing differed from

any of the other listings in that regard, pointing out that individuals

with impairments that would meet listings often work. They contended

that individuals with the level of obesity and the additional

impairment required by the listing were as disabled as anyone who met

or equaled any other listing.

Response: Our listings are intended to readily identify individuals

who would ultimately be found disabled if they were not already

working, and if we considered their residual functional capacity, age,

education, and work experience. We know that there are individuals who

work despite impairments of the severity reflected in our listings, but

we believe that in general the listings are a useful tool for

identifying many people who should qualify under our rules. However,

based on our program and adjudicative experience, we do not agree with

the commenters that listing 9.09 was as accurate an indicator of

disability as other listings.

Comment: Some commenters indicated confusion about our statement in

the NPRM that obesity in and of itself is not necessarily determinative

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

other, similar statements. The commenters pointed out that listing 9.09

did not consider obesity in and of itself; rather, it provided criteria

for obesity associated with other impairments.

Response: We agree that listing 9.09 did not consider obesity

alone. We intended this statement only to help explain why we did not

propose other alternatives to deleting listing 9.09, including a

listing for obesity alone.

Comment: Several commenters questioned whether we were targeting

impairments with a ``volitional'' aspect for removal from the listings,

citing the removal of drug addiction and alcoholism as a basis for

disability.

Response: We are not targeting specific kinds of impairments for

review or exclusion from the listings, nor do we believe that obesity

and other medical impairments are ``volitional.'' In December 1985,

when we last published final rules containing comprehensive revisions

to the listings, we stated that medical advancements in disability

evaluation and treatment and program experience would require that the

listings be periodically reviewed and updated. These final rules are

consistent with our longstanding responsibility to monitor the

effectiveness of the listings, so that we can ensure they remain an

appropriate and efficient tool to evaluate claims for disability.

[[Page 46127]]

The changes to our rules on the evaluation of drug addiction and

alcoholism were required by law.

Comment: We received a number of comments on the many causes of

obesity and the general ineffectiveness of current treatments. Many

commenters cited the increased risk for developing musculoskeletal,

respiratory, and cardiovascular problems, and for premature death. They

pointed out that when we published revised listings in 1985, we

explained that medical advances in treatment and program experience

would require periodic evaluation and revision of the listings. They

asked what advances in medicine or program experience justified

eliminating the obesity listing.

Response: We do not dispute the commenters' statements about the

causes of obesity and the general ineffectiveness of current

treatments. As noted previously, the changes we are making are not the

result of advances in medical evaluation or treatment but the result of

program and adjudicative experience.

We also do not dispute the comments that individuals with severe

obesity have increased morbidity and mortality risks. However, under

the Act and our regulations we must consider whether an individual is

currently disabled. We do not consider whether an individual is at risk

for disability sometime in the future. The changes we are making in

these final rules will enable us to assess disability based on the

actual effects (as opposed to potential future effects) of the

impairment.

Comment: Some commenters were concerned that many individuals would

lose their benefits and have no means of assistance if we were to

delete listing 9.09. One commenter recommended that we review all prior

allowances based on listing 9.09 under the new rules.

Response: No individual will be removed from the rolls solely

because we have deleted listing 9.09, as some commenters suggested. We

will not review prior allowances based on listing 9.09 under the new

rules.

These final rules have only a prospective effect. Unless otherwise

required to do so (for example, by statute), we do not readjudicate

previously decided cases when we revise our listings.

We do conduct periodic ``continuing disability reviews'' of

individuals on our rolls to determine whether they are still disabled.

However, when we conduct continuing disability reviews, we do not find

that disability has ended based on a change in a listing. In most

cases, we must show that an individual's impairment(s) has medically

improved and that any medical improvement is ``related to the ability

to work.'' If an individual's impairment(s) has not medically improved,

we will generally find that the individual is still disabled. Even if

the impairment(s) has medically improved, our regulations provide that

the improvement is not ``related to the ability to work,'' if the

impairment(s) continues to meet or equal the ``same listing section

used to make our most recent favorable decision.'' This is true even

if, as in these final rules, we have deleted the listing section that

we used to make the most recent favorable decision. See

Secs. 404.1594(c)(3)(i) and 416.994(b)(2)(iv)(A) of our regulations. (A

similar provision for continuing disability reviews for children

eligible for SSI based on disability appears in Sec. 416.994a(b)(2)).

In a case where we find that medical improvement is not related to the

ability to work (or the impairment still meets or equals the prior

listing, in the case of an individual under age 18), we will find that

disability continues, unless an exception to medical improvement

applies.

Comment: Some commenters supported our proposal, but had questions

about how claims for benefits involving obesity would be adjudicated

after the deletion.

Response: We believe that the new paragraphs we have added to the

prefaces of the musculoskeletal, respiratory, and cardiovascular body

system listings in the final rules provide guidance for our

adjudicators in the proper handling of claims involving obesity. In

addition, as we have noted above, we intend to provide additional

guidance to our adjudicators regarding the evaluation of claims

involving obesity, by issuing a Social Security Ruling.

Comment: Several commenters stated that the proposed change would

have a disproportionate impact on particular groups of individuals,

such as women, minorities and individuals at lower socioeconomic

levels. They thought the proposed rule discriminatory. Some commenters

thought the rules reflected societal prejudice against individuals with

obesity. Some said, without explanation, that deleting the obesity

listing would violate the Americans with Disabilities Act (ADA), 42

U.S.C. 12101 et seq., or the Rehabilitation Act of 1973, 29 U.S.C. 794.

Response: SSA is committed to providing fair treatment for all

individuals who seek or receive benefits. The deletion of listing 9.09

means only that individuals with severe impairments who seek benefits

based in whole or in part on obesity will have their claims evaluated

in accordance with the appropriate body system in the listings, or at

later steps of the sequential evaluation process, as we explained in

the proposed rules (63 FR 11854, 11855) and above. Our actions in these

final rules in no way violate the ADA or the Rehabilitation Act; they

are intended to help us ensure that only those individuals who meet the

statutory definition of disability are found disabled.

These final rules do not discriminate against any individual or

group of individuals based on their impairments. Rather, they ensure

that our listings remain an efficient and legally appropriate method

for determining that individuals who meet the statutory definition of

disability are found disabled, and that individuals who do not meet the

statutory definition are not inappropriately found disabled. In our

experience, listing 9.09 did not always meet that goal. Consequently,

we believe that the best course of action is to delete the listing.

This does not mean that these final rules reflect prejudice against

individuals with obesity, or that they are intended to result in

discriminatory treatment of any individuals. However, to ensure that

adjudicators understand our intent, we have added guidance to the

musculoskeletal, respiratory, and cardiovascular body system listings

as described above. We believe the changes we have made to the listings

will ensure that disability claims based on obesity are evaluated

appropriately.

Comment: One commenter said that the proposed rule violated the

Administrative Procedure Act (APA) because the agency did not disclose

any scientific and technical studies or data in the NPRM. This

commenter asserted that the APA requires the agency to disclose

scientific material that the agency believes supports its rule to

interested parties for comment. Another commenter expressed similar

views and asserted that the NPRM violated the APA because the commenter

believed it relied on inadequate data.

Response: In the Supplementary Information section of the preamble

to the NPRM, we noted that ``[c]urrent 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'' (63 FR 11854, 11855). We made

a similar comment in the Summary section of the preamble of the NPRM

(63 FR 11854). We also noted that we were proposing to remove

[[Page 46128]]

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'' (63

FR 11855).

We regret that these statements may have caused some confusion. As

we discussed earlier in this preamble, we did not mean to imply that we

were relying on any specific research to justify our decision to

propose the removal of listing 9.09. Rather, we intended these

statements to mean only 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.

In response to these statements in the preamble to the proposed

rule, a number of commenters provided us with citations to medical

research and other medical literature (e.g., medical manuals and

textbooks). The commenters believed the research they cited supported

their position that obesity has a specific adverse impact on an

individual's functional abilities, such that it results in disability.

We have reviewed the medical research and other documents that have

been brought to our attention by the commenters, and believe that they

are consistent with our experience in adjudicating cases under listing

9.09 or otherwise did not provide a basis for retaining the listing.

None of the sources that have been brought to our attention by the

commenters, or that we reviewed in the course of developing these final

rules, support the conclusion that obesity at the level specified in

listing 9.09, taken in conjunction with the findings related to any

associated musculoskeletal, respiratory, or cardiovascular impairments

set out in listings 9.09A through E, would necessarily have such an

adverse impact on an individual's functional abilities that it should

be considered to preclude the performance of any gainful activity, in

the absence of a case-by-case determination of the effects of the

obesity and associated impairments on a particular individual.

We believe our actions in proposing the deletion of listing 9.09

are fully consistent with the APA and have provided the public with a

meaningful opportunity to comment on the proposed rule. In fact, we

extended the comment period to provide additional time for comment.

Moreover, the supplemental data contained in the studies that were

brought to our attention by various commenters did not provide a basis

for changing the proposal. We do not believe, therefore, that the APA

requires us to withdraw the proposed rule and initiate additional

rulemaking, as some commenters suggested.

Comment: Some commenters said that SSA used an unfair and cursory

approach in proposing to delete the obesity listing and that we could

use the same approach and rationale to delete any listing. They said

that SSA's professional image and reputation for commitment to

individual equity and due process would be threatened if we proceeded

with the proposed deletion.

Response: We have long recognized that medical advances in

disability evaluation and treatment and program experience require that

we periodically review and update the medical criteria in the listings.

On an ongoing basis, we review medical literature and our program and

adjudicative experience to monitor the medical criteria in the

listings. We do not recommend changes without careful consideration. We

do not believe our approach in this case was unfair or cursory.

Accordingly, for the reasons set out above, we are publishing the

proposed rules as final rules with the revisions noted.

Regulatory Procedures

Executive Order 12866

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

and determined that these final 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 final 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 final 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: April 7, 1999.

Kenneth S. Apfel,

Commissioner of Social Security.

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

Chapter III of Title 20, Code of Federal Regulations, is 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 of Part 404--Listing of Impairments

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

revised to read as follows:

* * * * *

10. Endocrine System (9.00 and 109.00): July 2, 2001.

* * * * *

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

removing ``and Obesity'' from section 9.00.

4. Listing 1.00 in part A of appendix 1 is amended by adding new

paragraph F. to read as follows:

1.00 Musculoskeletal System

* * * * *

F. Effects of obesity. Obesity is a medically determinable

impairment that is often associated with disturbance of the

musculoskeletal system, and disturbance of this system can be a major

cause of disability in individuals with obesity. The combined effects

of obesity with musculoskeletal impairments can be greater than the

effects of each of the impairments considered separately. Therefore,

when determining whether an individual with obesity has a listing-level

impairment or combination of impairments, and when assessing a claim at

other steps of the sequential evaluation process, including when

assessing an individual's residual functional capacity, adjudicators

must

[[Page 46129]]

consider any additional and cumulative effects of obesity.

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

last sentence of paragraph H and adding new paragraph I. to read as

follows:

3.00 Respiratory System

* * * * *

I. Effects of obesity. Obesity is a medically determinable

impairment that is often associated with disturbance of the

respiratory system, and disturbance of this system can be a major

cause of disability in individuals with obesity. The combined

effects of obesity with respiratory impairments can be greater than

the effects of each of the impairments considered separately.

Therefore, when determining whether an individual with obesity has a

listing-level impairment or combination of impairments, and when

assessing a claim at other steps of the sequential evaluation

process, including when assessing an individual's residual

functional capacity, adjudicators must consider any additional and

cumulative effects of obesity.

6. Listing 3.10 in Part A of appendix 1 is revised to read as

follows:

3.10 Sleep-related breathing disorders. Evaluate under 3.09

(chronic cor pulmonale) or 12.02 (organic mental disorders).

7. Listing 4.00 in Part A of appendix 1 is amended by adding new

paragraph F. to read as follows:

4.00 Cardiovascular System

* * * * *

F. Effects of obesity. Obesity is a medically determinable

impairment that is often associated with disturbance of the

cardiovascular system, and disturbance of this system can be a major

cause of disability in individuals with obesity. The combined

effects of obesity with cardiovascular impairments can be greater

than the effects of each of the impairments considered separately.

Therefore, when determining whether an individual with obesity has a

listing-level impairment or combination of impairments, and when

assessing a claim at other steps of the sequential evaluation

process, including when assessing an individual's residual

functional capacity, adjudicators must consider any additional and

cumulative effects of obesity.

8. 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.

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

``and Obesity'' from the title.

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

[FR Doc. 99-21935 Filed 8-23-99; 8:45 am]

BILLING CODE 4190-29-P