[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