[Federal Register Volume 63, Number 36 (Tuesday, February 24, 1998)]
[Notices]
[Pages 9279-9280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4704]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 98-2(8)]


Sird v. Chater; Mental Retardation--What Constitutes an 
Additional and Significant Work-Related Limitation of Function--Titles 
II and XVI of the Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 98-
2(8).

EFFECTIVE DATE: February 24, 1998.

FOR FURTHER INFORMATION CONTACT:
Gary Sargent, Litigation Staff, Social Security Administration, 6401 
Security Boulevard, Baltimore, MD 21235, (410) 965-1695.

SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5 
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
    A Social Security Acquiescence Ruling explains how we will apply a 
holding in a decision of a United States Court of Appeals that we 
determine conflicts with our interpretation of a provision of the 
Social Security Act (the Act) or regulations when the Government has 
decided not to seek further review of that decision or is unsuccessful 
on further review.
    We will apply the holding of the Court of Appeals' decision as 
explained in this Social Security Acquiescence Ruling to claims at all 
levels of administrative adjudication within the Eighth Circuit. This 
Social Security Acquiescence Ruling will apply to all determinations 
and decisions made on or after February 24, 1998. If we made a 
determination or decision on your application for benefits between 
January 27, 1997, the date of the Court of Appeals' decision, and 
February 24, 1998, the effective date of this Social Security 
Acquiescence Ruling, you may request application of the Ruling to your 
claim if you first demonstrate, pursuant to 20 CFR 404.985(b) or 
416.1485(b), that application of the Ruling could change our prior 
determination or decision.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided for in 20 CFR 404.985(e) or 416.1485(e). If we 
decide to relitigate the issue covered by this Social Security 
Acquiescence Ruling as provided for by 20 CFR 404.985(c) or 
416.1485(c), we will publish a notice in the Federal Register stating 
that we will apply our interpretation of the Act or regulations 
involved and explaining why we have decided to relitigate the issue.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social 
Security - Disability Insurance; 96.002 Social Security - Retirement 
Insurance; 96.004 Social Security - Survivors Insurance; 96.005 
Special Benefits for Disabled Coal Miners; 96.006 Supplemental 
Security Income.)

    Dated: December 29, 1997.
Kenneth S. Apfel,
Commissioner of Social Security.

Acquiescence Ruling 98-2(8)

    Sird v. Chater, 105 F.3d 401 (8th Cir. 1997)--Mental Retardation--
What Constitutes an Additional and Significant Work-Related Limitation 
of Function--Titles II and XVI of the Social Security Act.
    Issue: Whether a claimant for disability insurance benefits or 
Supplemental Security Income (SSI) benefits based on disability who has 
mental retardation or autism with a valid IQ score in the range covered 
by Listing 12.05C, and who cannot perform his or her past relevant work 
because of a physical or other mental impairment, has per se 
established the additional and significant work-related limitation of 
function requirement of Regulations 20 CFR Part 404, Subpart P, 
Appendix 1, section 12.05C.1
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    \1\ Although Sird was a title XVI case, similar principles also 
apply to title II. Therefore, this Ruling extends to both title II 
and title XVI disability claims.
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    Statute/Regulation/Ruling Citation: Sections 223(d)(1) and 
1614(a)(3) of the Social Security Act (42 U.S.C. 423(d)(1) and 
1382c(a)(3)); 20 CFR Part 404, Subpart P, Appendix 1, section 12.05C.
    Circuit: Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, 
North Dakota, South Dakota).

[[Page 9280]]

    Sird v. Chater, 105 F.3d 401 (8th Cir. 1997).
    Applicability of Ruling: This Ruling applies to determinations or 
decisions at all administrative levels (i.e., initial, reconsideration, 
Administrative Law Judge (ALJ) hearing or Appeals Council).
    Description of Case: Donald Sird applied for SSI benefits based on 
disability on September 27, 1991. In a decision dated January 27, 1995, 
an ALJ found that Mr. Sird had borderline intellectual capacity, a 
history of alcoholism, a history of chronic obstructive pulmonary 
disease and a history of urinary tract infection. The ALJ also found 
that Mr. Sird had an IQ score within the range required by Listing 
12.05C but did not have ``a physical or other mental impairment 
imposing additional and significant work-related limitation of 
function.'' The ALJ further found that the combination of Mr. Sird's 
impairments imposed several environmental restrictions and also 
functional limitations. Relying on the vocational expert's opinion that 
an individual with Mr. Sird's characteristics could perform light or 
sedentary work, the ALJ concluded that, although the claimant could not 
perform his past relevant work, he was not disabled. After the Appeals 
Council denied the claimant's request for review, he sought judicial 
review but the district court upheld the Social Security 
Administration's (SSA's) decision. Mr. Sird appealed this decision to 
the United States Court of Appeals for the Eighth Circuit.
    Holding: The Eighth Circuit vacated the judgment of the district 
court and remanded the case to SSA with directions to award benefits. 
After reviewing Eighth Circuit case law that defined the other 
impairment requirement of Listing 12.05C as requiring ``a physical or 
additional mental impairment that has a `more than slight or minimal' 
effect on ability to work''2 and the Fourth Circuit's 
holding in Branham v. Heckler, 775 F.2d 1271 (4th Cir. 
1985)3 that established the rule that an inability to do 
past relevant work meets the requirement of the Listing that the other 
impairment cause an additional and significant work-related limitation 
of function, the court held that the Branham court's conclusion was 
``ineluctable.''
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    \2\  Warren v. Shalala, 29 F.3d 1287 (8th Cir. 1994) and Cook v. 
Bowen, 797 F.2d 687 (8th Cir. 1986). The Court of Appeals made an 
alternative holding in the case, and found that, under the 
circumstances present in the case, the outcome would be the same 
under the interpretation of the regulations set out in Warren and 
Cook. See 105 F.3d at 403. The court's alternative holding in the 
case, relying on the interpretation of Listing 12.05C made in Warren 
and Cook, is not inconsistent with SSA's interpretation of the 
Listing.
    \3\ On March 10, 1992, SSA published Acquiescence Ruling (AR) AR 
92-3(4) at 57 FR 8463 to reflect the holding in Branham. On April 
29, 1993, the AR was revised and republished as AR 93-1(4) at 58 FR 
25996 to incorporate a regulatory change regarding the IQ range 
included in Listing 12.05C and to make several technical 
corrections.
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    The Eighth Circuit observed that the ALJ's finding of Mr. Sird's 
inability to perform his past relevant work, assuming no change 
occurred in his mental impairments after he stopped working, was 
inconsistent with the ALJ's other finding that Mr. Sird did not satisfy 
the other impairment requirement of Listing 12.05C because he did not 
have an additional impairment that significantly limited his ability to 
work. The court was not convinced that, in this particular case, there 
was a difference in application between the Eighth Circuit's case law 
in Warren and Cook, and the Branham court's holding. The court 
concluded that under either test the claimant was disabled.

Statement As To How Sird Differs From SSA's Interpretation of the 
Regulations

    At issue in Sird is the meaning of the term ``additional and 
significant work-related limitation of function'' in Listing 12.05C. 
What constitutes an ``additional and significant work-related 
limitation of function'' is not defined in SSA's regulations. SSA's 
interpretation of the Listing is that, if an individual has:
    (1) mental retardation, i.e., significantly subaverage general 
intellectual functioning with deficits in adaptive behavior initially 
manifested during the developmental period, or autism, i.e., a 
pervasive developmental disorder characterized by social and 
significant communication deficits originating in the developmental 
period;
    (2) a valid verbal, performance or full scale IQ in the range 
specified by Listing 12.05C; and
    (3) a physical or other mental impairment that is severe within the 
meaning of 20 CFR 404.1520(c) or 416.920(c), the individual's 
impairments meet Listing 12.05C.4 That is, to satisfy the 
criteria of Listing 12.05C, the additional physical or other mental 
impairment must result in more than minimal limitations in the 
individual's ability to do basic work activities. The inability to 
perform past work does not per se satisfy this standard.
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    \4\ For title XVI, an individual under age 18 shall be 
considered to have an impairment that meets Listing 112.05D if he or 
she has mental retardation, as defined above, with a valid verbal, 
performance or full scale I.Q. of 60 through 70 and a physical or 
other mental impairment that is severe within the meaning of 20 CFR 
416.924(c).
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    The Sird court held that an impairment that prevents a claimant 
from performing his or her past relevant work constitutes a significant 
work-related limitation of function that is more than slight or 
minimal, and per se meets the other impairment requirement of Listing 
12.05C.5
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    \5\ As noted above, the Court of Appeals alternative holding, 
relying on the decisions in Warren v. Shalala, 29 F.3d 1287 (8th 
Cir. 1994) and Cook v. Bowen, 797 F.2d 687 (8th Cir. 1986) is not 
inconsistent with SSA's interpretation of the Listing, as explained 
above.
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Explanation of How SSA Will Apply The Sird Decision Within The Circuit

    This Ruling applies only where the claimant resides in Arkansas, 
Iowa, Minnesota, Missouri, Nebraska, North Dakota or South Dakota at 
the time of the determination or decision at any administrative level 
of review, i.e., initial, reconsideration, ALJ hearing or Appeals 
Council.
    A claimant who has:
    (1) mental retardation, i.e., significantly subaverage general 
intellectual functioning with deficits in adaptive behavior initially 
manifested during the developmental period, or autism, i.e., a 
pervasive developmental disorder characterized by social and 
significant communication deficits originating in the developmental 
period;
    (2) a valid verbal, performance or full scale IQ in the range 
specified by Listing 12.05C; and
    (3) a physical or other mental impairment that prevents him or her 
from performing past relevant work, will be considered to have a 
physical or other mental impairment that results in more than minimal 
limitations in the ability to do basic work activities and to have 
satisfied the requirements of Listing 12.05C.
[FR Doc. 98-4704 Filed 2-23-98; 8:45 am]
BILLING CODE 4190-29-F