[Federal Register Volume 63, Number 47 (Wednesday, March 11, 1998)]
[Proposed Rules]
[Pages 11854-11856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6212]


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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.

ACTION: Proposed rule.

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SUMMARY: We are proposing to delete ``Obesity,'' from the listing to 
adjudicate claims for disability under titles II and XVI of the Social 
Security Act (the Act) when we evaluate claims of individuals at step 3 
of our sequential evaluation process. Current 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. 
Instead, individuals with obesity would have their cases reviewed under 
the listing for an affected body system(s) or, on a case-by-case basis, 
at the remaining steps of the sequential evaluation process.

DATES: To be sure that your comments are considered, we must receive 
them no later than May 11, 1998.

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 Social Security Administration, 2109 West Low Rise 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 hours by making arrangements with the contact person shown below.
    The electronic file of this document is available on the Federal 
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the 
Federal Register. To download the file, modem dial (202) 512-1387. The 
FBB instructions will explain how to download the file and the fee. 
This file is in WordPerfect and will remain on the FBB during the 
comment period.

FOR FURTHER INFORMATION CONTACT: Robert Augustine, Legal Assistant, 
Office of Process and Innovation Management, Social Security 
Administration, 6401 Security Boulevard, Baltimore, Maryland 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: 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.
    The process for determining whether an individual (except for an 
individual under age 18 claiming SSI benefits based on disability) is 
disabled based on the statutory definition is set forth in our 
longstanding regulations at Secs. 404.1520 and 416.920. These 
regulations provide for a sequential evaluation process for evaluating 
disability. There is a separate sequential evaluation process for 
individuals under age 18 claiming SSI benefits based on disability. At 
step 3 of both sequential evaluation processes we ask the same 
question: Whether an individual, who is not engaging in substantial 
gainful activity and who has an impairment(s) that is severe, has an 
impairment(s) that meets or equals in severity the criteria of an 
impairment listed in appendix 1 of subpart P of part 404, the Listing 
of Impairments (the listings). The listings describe, for each of the 
major body systems, impairments that are considered severe enough to 
prevent a

[[Page 11855]]

person from doing any gainful activity (or in the case of a child under 
age 18 claiming SSI benefits based on disability, to cause marked and 
severe functional limitations). Although the listings are contained 
only in part 404, they are referenced by subpart I of part 416.
    The listings are divided into part A and part B. The criteria in 
part A are applied in evaluating impairments of persons age 18 or over. 
The criteria in part A may also be used to evaluate impairments in 
persons under age 18 if the disease processes have a similar effect on 
adults and children. Part B contains additional criteria for evaluating 
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 and, if the criteria in part B 
do not apply, we use the criteria in part A (see Secs. 404.1525 and 
416.925).
    When these and several other listings were revised and published 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 each of the specific 
body system listings. We subsequently extended these dates in a final 
rule published in the Federal Register on December 6, 1993 (58 FR 
64121). These dates appear in the introductory statement before part A 
and provide that the current listings in part A and part B for the 
endocrine system and obesity (9.00) and the endocrine system (109.00) 
will no longer be effective on June 6, 1997. Subsequently, we issued 
final rules on June 5, 1997 (62 FR 30746) extending the expiration date 
of these listings for both part A and part B to June 7, 1999. We are 
now proposing to delete listing 9.09, ``Obesity,'' and related 
provisions in the listings, and to rename the section ``Endocrine 
System.'' (There is no listing for obesity in part B.) These changes 
will not affect the expiration date for the endocrine system listings.
    We propose to remove 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. Associated disorders of the 
musculoskeletal, cardiovascular, peripheral vascular, and pulmonary 
systems are generally the major cause of disability at the listing 
level in obese individuals but, unless the associated disorder(s) is 
itself of listing-level severity, no reliable conclusions may be drawn 
about disability in most obese individuals. Rather, it is necessary to 
consider the effect of any disorders related to or aggravated by 
obesity on each individual, on a case-by-case basis, in order to 
determine whether the individual is disabled.
    The following is a detailed summary of the proposed revisions, 
together with our reasons for proposing these changes.

Revisions to Part A of Appendix 1

Table of Contents

    We propose to delete ``and Obesity'' from section 9.00 to reflect 
the proposed deletion of listing 9.09.

9.00  Endocrine System and Obesity

    We propose to delete ``and Obesity'' from the heading in this 
listing to reflect the proposed deletion of listing 9.09. We also 
propose to delete the second and third paragraphs from the preface of 
9.00 because they discuss aspects of the evaluation of obesity. This 
discussion would no longer be needed under this proposal.

9.01  Category of Impairments, Endocrine System and Obesity

    We propose to delete ``and Obesity'' from the heading of this 
listing to reflect the proposed deletion of listing 9.09.

9.09  Obesity

    We propose to delete this listing in its entirety. Current 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. For example, listing 9.09A requires 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 is not specific: It does not indicate the 
degree of pain, does not require current pain, only a history of pain, 
and does not indicate a degree of limitation of motion, or any 
functional effects resulting from the impairment. Thus, the current 
listing can be satisfied with only minimal additional findings over and 
above the weight levels, even though some individuals might have 
sufficient residual functional capacities to work.
    The same holds true for the other criteria in current listing 9.09. 
Even though the findings in listings 9.09B through 9.09E could be 
disabling if they were to cause significant limitations of functioning 
in a given individual, they could also include individuals who are not 
prevented from working. Indeed, only listings 9.09B and 9.09E specify 
laboratory values, but those findings may or may not be associated with 
significantly limited functioning, depending on the individual.
    For this reason, we believe that individuals with the kinds of 
additional impairments currently listed in 9.09 must have their cases 
reviewed under the listing for the affected body system or, on a case-
by-case basis, at the remaining steps of the sequential evaluation 
process. Individuals whose severe impairments related to obesity are 
not of listing-level severity may establish that they are disabled, 
given their residual functional capacities, together with their age, 
education, and work experience.
    We considered revising the obesity listing by clarifying the 
severity criteria for the various listed body systems that could be 
affected (musculoskeletal, cardiovascular, peripheral vascular and 
respiratory). However, because the effects of obesity and related 
impairments on an individual's functioning vary so widely, we concluded 
that the only way we could be certain that individuals would be 
disabled would be by requiring the other impairments to meet or equal 
the severity of their respective listings. If another body system 
listing is met or equaled, the individual's weight would become 
immaterial to the finding of disability. We also considered raising the 
weights in the tables to the extent that the exacerbated effect of the 
obesity would ensure that the individuals would be disabled under the 
listing 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.

Other Revisions

Introductory Text

    We propose to delete ``and Obesity'' from item 10 of the 
introductory text that precedes part A of the Listing of Impairments. 
We also propose to revise item 10 of the introductory text to read 
``Endocrine System (9.00 and 109.00):

[[Page 11856]]

June 7, 1999.'' to conform with the style of this section.

3.00  Respiratory System

    We propose to delete the cross-reference to the obesity listing in 
the last sentence of 3.00H and in listing 3.10, Sleep-related breathing 
disorders. Since we propose to delete the obesity listing, the cross-
reference would no longer be appropriate.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed 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 proposed 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 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, Disability benefits, 
Old-age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social security.

    Dated: December 19, 1997.
Kenneth S. Apfel,
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.

Appendix 1 to Subpart P--[Amended]

    2. Appendix 1 to Subpart P is amended as follows:
    a. Item 10 of the introductory text before Part A of appendix 1 is 
revised.
    b. The Table of Contents for Part A of appendix 1 is amended by 
removing ``and Obesity'' from section 9.00.
    c. Listing 3.00 in part A of appendix 1 is amended by removing the 
last sentence of paragraph H.
    d. Listing 3.10 in Part A of appendix 1 is revised.
    e. 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.
    f. Listing 9.01 in part A of appendix 1 is amended by removing 
``and Obesity'' from the title.
    g. Listing 9.09 in part A of appendix 1 is removed.
    The revised text is set forth as follows:

Appendix 1 to Subpart P--Listing of Impairments

* * * * *
    10. Endocrine System (9.00 and 109.00): June 7, 1999.
* * * * *

Part A

* * * * *
    3.10  Sleep-related breathing disorders. Evaluate under 3.09 
(Chronic cor pulmonale) or 12.02 (Organic mental disorders).
* * * * * *
[FR Doc. 98-6212 Filed 3-10-98; 8:45 am]
BILLING CODE 4190-29-P