[Federal Register Volume 62, Number 184 (Tuesday, September 23, 1997)]
[Proposed Rules]
[Pages 49636-49638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25125]
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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