[Federal Register Volume 64, Number 119 (Tuesday, June 22, 1999)]
[Notices]
[Pages 33337-33341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15972]


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SOCIAL SECURITY ADMINISTRATION


Social Security Ruling, SSR 99-3p, Title XVI: Evaluation of 
Disability and Blindness in Initial Claims for Individuals Age 65 or 
Older

AGENCY: Social Security Administration.

ACTION: Notice of Social Security ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of 
Social Security gives notice of Social Security Ruling, SSR 99-3p. This 
Ruling clarifies the Social Security Administration's standards and 
procedures for the adjudication of disability and blindness

[[Page 33338]]

claims for individuals age 65 or older under title XVI, Supplemental 
Security Income for the Aged, Blind, and Disabled, of the Social 
Security Act.

EFFECTIVE DATE: June 22, 1999.

FOR FURTHER INFORMATION CONTACT: Michelle Hungerman, Office of 
Disability, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 965-2289.

SUPPLEMENTARY INFORMATION: Although we are not required to do so 
pursuant to 5 U.S.C. 552(a)(1) and (a)(2), we are publishing this 
Social Security Ruling in accordance with 20 CFR 402.35(b)(1).
    Social Security Rulings make available to the public precedential 
decisions relating to the Federal old-age, survivors, disability, 
supplemental security income, and black lung benefits programs. Social 
Security Rulings may be based on case decisions made at all 
administrative levels of adjudication, Federal court decisions, 
Commissioner's decisions, opinions of the Office of the General 
Counsel, and Agency interpretations of the law and regulations.
    Although Social Security Rulings do not have the same force and 
effect as the statute or regulations, they are binding on all 
components of the Social Security Administration, in accordance with 20 
CFR 402.35(b)(1), and are to be relied upon as precedents in 
adjudicating cases.
    If this Social Security Ruling is later superseded, modified, or 
rescinded, we will publish a notice in the Federal Register to that 
effect.

(Catalog of Federal Domestic Assistance, Program No. 96.006 
Supplemental Security Income.)

    Dated: June 14, 1999.
Kenneth S. Apfel,
Commissioner of Social Security.

Social Security Ruling

Title XVI: Evaluation of Disability and Blindness in Initial Claims for 
Individuals Age 65 or Older

    Purpose: To clarify SSA's standards and procedures for the 
adjudication of title XVI of the Social Security Act (the Act) 
disability and blindness claims for individuals age 65 or older. In 
particular, this Ruling explains that:
    In general, the regulations and procedures for determining 
disability for adults under title XVI of the Act who are under age 65 
are used when determining whether an individual age 65 or older is 
disabled.
    Adjudicators are required to consider any impairment(s) the 
individual has, including those that are often found in older 
individuals.
    If an individual age 72 or older has a medically determinable 
impairment, that impairment will be considered to be ``severe.''
    If the individual's impairment(s) prevents the performance of his 
or her past relevant work (PRW), or, if the individual does not have 
PRW, the adjudicator must consider two special medical-vocational 
profiles showing an inability to make an adjustment to other work 
before referring to appendix 2 to subpart P of 20 CFR Part 404.
    Generally, adjudicators should use the rules for individuals age 
60-64 when determining whether an individual age 65 or older can 
perform other work.
    Beginning at age 65, age is considered to be a factor that imposes 
greater limits on vocational adaptability for individuals who retain 
the functional capacity to perform medium work. If illiteracy in 
English or the inability to communicate in English further limits such 
an individual's vocational scope, a finding of ``disabled'' is 
warranted unless the individual's PRW was skilled or semiskilled and 
provided the individual with transferable skills.
    Some individuals age 65 or older may not understand, or be able to 
comply with, our requests to submit evidence or attend a consultative 
examination (CE). Therefore, adjudicators must make special efforts in 
situations in which it appears that an individual age 65 or older may 
not be cooperating.
    Citations: Section 5301 of Public Law (P.L.) 105-33, sections 402 
and 431 of P.L. 104-193, as amended, sections 1614(a), 1619(b) and 
1621(f)(1) of the Act, as amended; 20 CFR Part 404, subpart P, 
appendices 1 and 2, and 20 CFR Part 416, sections 416.901-416.923, 
416.925, 416.926, 416.927-416.986, 416.988-416.994, and 416.995-
416.998.
    Background: On August 5, 1997, P.L. 105-33, the Balanced Budget Act 
of 1997, amended P.L. 104-193, the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996, as amended, and added 
additional alien eligibility criteria. Under the new criteria, 
``qualified'' aliens who were lawfully residing in the United States on 
August 22, 1996, and who are disabled or blind as defined in section 
1614(a) of the Act are eligible for benefits under title XVI provided 
all other eligibility requirements are met. Individuals can establish 
eligibility based on disability or blindness at any age, even on or 
after attaining age 65.
    In addition to qualified aliens, determinations of disability under 
title XVI also may be needed for other individuals age 65 or older to 
determine:
    State supplements in some States (section 1616 of the Act);
    Whether the work incentive provisions of section 1619(b) of the Act 
are applicable; or
    Appropriate deeming of income and resources (section 1621(f)(1) of 
the Act; 20 CFR 416.1160, 416.1161, 416.1166a, and 416.1204).
    For adults (individuals age 18 or older) section 1614(a)(3)(A) of 
the Act defines disability as the inability to do 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.
    The rules we use to determine if this definition is met are set 
forth in our regulations in subpart I of 20 CFR Part 416, and 
appendices 1 and 2 to subpart P of 20 CFR Part 404. Although these 
rules were, in general, developed for individuals who have not attained 
age 65, they do recognize that certain characteristics would result in 
greater vocational adversity as individuals age.
    Ruling:
Evaluation Issues
    In general, the regulations and procedures for determining 
disability for adults under title XVI of the Act who are under age 65 
are used when determining whether an individual age 65 or older is 
disabled, except as provided later in this Ruling.
    To determine if an adult is disabled as defined in the Act, 
adjudicators generally use the 5-step sequential evaluation process set 
out in 20 CFR 416.920.
Step 1--Is the Individual Working?
    If the individual is working, and the work is substantial gainful 
activity (see 20 CFR 416.971-416.976), we will find that the individual 
is not disabled regardless of his or her medical condition, age, 
education, or work experience.
Step 2--Does the Individual Have a Severe Impairment?
    At step 2 of the sequential evaluation process, a determination is 
made about whether an individual has a medically determinable 
impairment and whether the individual's medically determinable 
impairment--or combination of impairments--is ``severe.'' An individual 
who does not have an impairment or combination of impairments that is 
``severe'' will be found not disabled.
    An impairment(s) is considered ``severe'' if it significantly 
limits an

[[Page 33339]]

individual's physical or mental abilities to do basic work activities. 
An impairment(s) that is ``not severe'' must be a slight abnormality, 
or a combination of slight abnormalities, that has no more than a 
minimal effect on the ability to do basic work activities. It is 
incorrect to consider an impairment to be ``not severe'' because the 
impairment's effects are ``normal'' for a person of that age.
    As in any claim, adjudicators must consider signs, symptoms, and 
laboratory findings when determining whether an individual age 65 or 
older has a medically determinable impairment (see 20 CFR 416.908 and 
416.928). The likelihood of the occurrence of some impairments 
increases with advancing age; e.g., osteoporosis, osteoarthritis, 
certain cancers, adult-onset diabetes mellitus, impairments of memory, 
hypertension, and impairments of vision or hearing. Adjudicators are 
required to consider any impairment(s) the individual has, including 
impairments like the ones listed above that are often found in older 
individuals. It is incorrect to disregard any of an individual's 
impairments because they are ``normal'' for the person's age.
    When an individual has more than one medically determinable 
impairment and each impairment by itself is ``not severe,'' 
adjudicators must still assess the impact of the combination of those 
impairments on the individual's ability to function. A claim may be 
denied at step 2 only if the evidence shows that the individual's 
impairments, when considered in combination, are ``not severe''; i.e., 
do not have more than a minimal effect on the individual's physical or 
mental ability(ies) to perform basic work activities.
Special Rule for Individuals Age 72 or Older
    Generally, we use step 2 of the sequential evaluation process as a 
``screen'' to deny individuals with impairments that would have no more 
than a minimal effect on their ability to work even if we considered 
their age, education, and work experience. However, with advancing age, 
it is increasingly unlikely that individuals with medically 
determinable impairments will be found to have minimal limitations in 
their ability to do basic work activities. By age 72, separate 
consideration of whether an individual's medically determinable 
impairment(s) is ``severe'' does not serve the useful screening purpose 
that it does for individuals who have not attained age 72. Therefore, 
if an individual age 72 or older has a medically determinable 
impairment(s), that impairment(s) will be considered to be ``severe,'' 
and evaluation must proceed to the next step of the sequential 
evaluation process.
Step 3--Does the Individual Have an Impairment(s) That Meets or Equals 
an Impairment Listed in Appendix 1?
    When an individual has a severe impairment(s) that meets or 
medically equals the requirements for one of the impairments in the 
Listing of Impairments in appendix 1 to subpart P of 20 CFR Part 404, 
and meets the duration requirement, the individual is disabled.
When Disability Cannot Be Found at Step 3--Assessing Residual 
Functional Capacity
    When the individual does not have an impairment(s) that meets or 
equals the requirements for a listed impairment, the adjudicator is 
required to assess the individual's residual functional capacity (RFC). 
The RFC assessment is an adjudicator's finding about the ability of an 
individual to perform both physical and mental work-related activities 
despite his or her impairment(s). The assessment considers all of the 
individual's medically determinable impairments, including those that 
are ``not severe,'' and all limitations or restrictions caused by 
symptoms, such as pain, that are related to the medically determinable 
impairment(s). The assessment is based upon consideration of all 
relevant evidence in the case record, including medical evidence and 
relevant nonmedical evidence, such as observations of lay witnesses of 
an individual's apparent symptomatology, or an individual's own 
statement of what he or she is able or unable to do.
    When assessing RFC in an initial claim, an adjudicator should not 
find that an individual has limitations or restrictions beyond those 
caused by his or her medically determinable impairment(s). Limitations 
or restrictions due to factors such as age, height, or whether the 
individual has ever engaged in certain activities in his or her PRW 
(e.g., lifting heavy weights) are, per se, not considered in assessing 
RFC. (See SSR 96-8p, ``Titles II and XVI: Assessing Residual Functional 
Capacity in Initial Claims.'')
Step 4--Does the Individual Have an Impairment(s) That Prevents Him or 
Her From Performing Past Relevant Work?
    The RFC assessment discussed above is first used at step 4 of the 
sequential evaluation process to determine whether the individual is 
capable of doing PRW. The rules and procedures we use to make this 
determination for individuals under age 65 are also applicable to 
individuals age 65 or older. This includes consideration of whether the 
individual can perform his or her PRW as he or she actually performed 
it or as it is generally performed in the national economy. If the 
individual's PRW was performed in a foreign economy, we will generally 
only consider whether the individual can perform his or her PRW as he 
or she described it. However, if the work the individual did in a 
foreign economy also exists in the U.S. economy, we will consider 
whether he or she can perform the work as it is generally performed in 
the national economy. If the individual can perform his or her PRW, he 
or she will be found not disabled.

(See SSR 82-40, ``Titles II and XVI: The Vocational Relevance of the 
Past Work Performed in a Foreign Country.'')
Step 5--Can the Individual Do Other Work?
    The last step of the sequential evaluation process requires us to 
determine whether an individual can do other work considering his or 
her RFC, age, education and work experience.
Special Medical-Vocational Profiles Showing an Inability To Make an 
Adjustment to Other Work
    If the individual's impairment(s) does preclude the performance of 
PRW, or if the individual does not have PRW, two special medical-
vocational profiles must be considered before referring to appendix 2 
to subpart P of 20 CFR Part 404. The special profiles are discussed in 
SSR 82-63, ``Titles II and XVI: Medical-Vocational Profiles Showing an 
Inability to Make an Adjustment to Other Work.''
    The ``arduous unskilled physical labor'' profile applies when an 
individual:
    Is not working;
    Has a history of 35 years or more of arduous unskilled physical 
labor;1
    Can no longer perform this past arduous work because of a severe 
impairment(s); and
    Has no more than a marginal education (generally 6th grade or 
less).
    The ``no work experience'' profile applies when an individual:
    Has a severe impairment(s);
    Has no past relevant work;
    Is age 55 or older; and
    Has no more than a limited education (generally, 11th grade or 
less).
    If either of these profiles applies, a finding of ``disabled'' must 
be made. This finding is made without considering the criteria in 
appendix 2 to subpart P of 20 CFR Part 404.

[[Page 33340]]

Applying the Criteria in Appendix 2 to Subpart P of 20 CFR part 404
    If the special medical-vocational profiles are not applicable, we 
use the rules in appendix 2 to subpart P of 20 CFR Part 404 to 
determine whether the individual has the ability to do other work. The 
highest age category used in appendix 2 is age 60-64, ``closely 
approaching retirement age.'' However, we have longstanding internal 
procedures that direct our adjudicators to use the rules for ages 60-64 
when making determinations for individuals age 65 or older at step 5.
    Under those rules, individuals age 65 or older who are limited to 
``sedentary'' or ``light'' work will be found disabled unless their PRW 
provided them with transferable skills or they are at least a high 
school graduate and their education provides for direct entry into 
skilled work. As set out in sections 201.00(f) and 202.00(f) of 
appendix 2, to find transferability of skills for individuals age 65 or 
older who are limited to sedentary or light work, there must be very 
little, if any, vocational adjustment required in terms of tools, work 
processes, work settings, or the industry.1
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    \1\ However, for individuals residing in the Fifth, Sixth, and 
Eighth Federal judicial circuits, see Acquiescence Rulings AR 95-
1(6), AR 99-2(8), and AR 99-3(5).
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    Individuals age 65 or older who can perform the full range of 
medium work are found disabled when they have no more than a marginal 
education and their PRW was unskilled or they had no PRW, or when they 
have no more than a limited education and no PRW. In addition, some 
individuals who do not meet these criteria may also be found disabled 
as set forth in the next section.
Special Rule for Determining Disability for Individuals Age 65 or Older 
Who Can Perform Medium Work But Who Are Illiterate in English or Unable 
To Communicate in English
    Section 203.00 of appendix 2 contains rules used to make disability 
determinations for individuals who retain the functional capacity to 
perform medium work. The capacity to perform medium work also includes 
the capacity to perform light and sedentary work, and represents the 
capability to perform a substantial number of jobs. For individuals 
under age 65 considered under this section, this capability represents 
a substantial vocational scope even for individuals who are illiterate 
in English or unable to communicate in English.
    However, beginning at age 65, the individual's age is considered to 
be a factor that imposes greater limits on vocational adaptability. If 
illiteracy in English or the inability to communicate in English 
further limits such an individual, a finding of ``disabled'' is 
warranted unless the individual's PRW was skilled or semiskilled and 
provided the individual with transferable skills. For a finding of 
transferability of skills to medium work for an individual age 65 or 
older, there must be very little, if any, vocational adjustment 
required in terms of tools, work processes, work settings, or the 
industry.
    Duration
    As indicated earlier, the likelihood of the occurrence of some 
impairments, such as osteoporosis, osteoarthritis, certain cancers, 
adult-onset diabetes mellitus, impairments of memory, hypertension, and 
impairments of vision or hearing, increases with advancing age. 
Moreover, such impairments are more likely to be chronic than acute. 
Therefore, adjudicators must be especially careful before concluding 
that an impairment in an individual age 65 or older will not meet the 
12-month duration requirement.

Development Issues

Developing Allegations of Impairment(s)

    When obtaining the medical history of an individual age 65 or 
older, it is important to be alert to and address allegations of 
impairments that are commonly associated with the aging process, such 
as osteoporosis, arthritis, loss of vision, hearing loss, and memory 
loss. Allegations may be raised in response to specific questions about 
the individual's impairment(s); e.g., on Form SSA-3368-BK. However, 
adjudicators must also be alert to allegations raised in other evidence 
in the file. For example, questionnaires about activities of daily 
living may contain statements like ``I have difficulty walking or 
climbing stairs because my legs hurt,'' ``I can't clean my apartment 
because my back hurts,'' or ``I don't read much anymore because I don't 
see well.'' These statements constitute allegations of impairment(s). 
Therefore, adjudicators must:
    Review the case file thoroughly to identify all allegations or 
other indications of impairment.
    Be aware that the medical evidence or third party statements can 
raise additional allegations.
    When contacting an individual age 65 or older, be alert to 
statements indicating the presence of an impairment(s) commonly 
associated with the aging process.
    Consider all signs or symptoms indicative of an impairment(s), 
including those impairments caused by degenerative changes associated 
with the aging process.

Purchasing Medical Evidence

    Our regulations, at 20 CFR 416.912(f) and 416.917, indicate that we 
will purchase CEs when the individual's medical sources cannot or will 
not give us sufficient medical evidence about the individual's 
impairment for us to determine if he or she is disabled. Section 
416.919f further provides that we will purchase only the specific 
examinations and tests that we need to make a determination or 
decision. Due to the wide range of allegations contained in cases of 
individuals age 65 or older, evidence addressing more than one body 
system may need to be purchased. In these situations, it is usually 
appropriate to purchase general medical examinations rather than 
examinations targeted at particular body systems. This will ensure that 
all allegations of impairment are evaluated, and will reduce the burden 
on the individual. For example, if the individual alleges back and knee 
pain, shortness of breath on exertion, and numbness and weakness in his 
or her arm, a general medical examination would usually be preferable 
to separate orthopedic, neurologic, and respiratory or cardiac 
examinations.

Failure To Cooperate

    Individuals filing for benefits based on disability or blindness 
have certain responsibilities for furnishing us with, or helping us 
obtain, needed evidence. Our regulations at 20 CFR 416.912(c), 416.916, 
and 416.918 describe these responsibilities. However, due to factors 
such as possible language barriers or limited education, some 
individuals age 65 or older may not understand, or be able to comply 
with, our requests to submit evidence or attend a CE.
    If it appears that an individual age 65 or older is not 
cooperating, adjudicators must take the following additional actions 
when the individual does not have an appointed representative, or when 
the appointed representative has asked us to deal directly with the 
individual.
    If an individual age 65 or older has not supplied evidence or taken 
an action we requested and still need, the adjudicator must:
    Contact the individual to determine why he or she has not complied 
with our request. If it appears that the individual needs personal 
assistance, including interpreter assistance, to

[[Page 33341]]

complete forms, request field office assistance.
    Contact a third party (i.e., someone other than the individual's 
representative) if one has been identified, about assisting the 
individual at the same time the adjudicator contacts the individual.
    If an individual age 65 or older did not attend a CE, the 
adjudicator must:

     Contact the individual to determine why he or she did 
not attend the CE.
     Make at least two attempts at different times on 
different days to contact the individual by telephone. (A busy 
signal does not constitute an attempt.)
     Send the claimant a call-in letter if telephone contact 
is not possible or successful.
     Contact a third party, if one has been identified, 
about assisting the claimant at the same time contact is attempted 
with the claimant.
     When contact is made with the individual or the third 
party, explain that the CE is for evaluation purposes only, and that 
no treatment will be required.
     Reschedule the CE if the individual had a good reason 
for not attending the prior CE (e.g., he or she had transportation 
problems or was out of the country at the time of the CE) and 
indicates a willingness to attend a rescheduled CE.

Non-English-Speaking or Limited-English-Proficiency Individuals

    For all the development issues discussed above, adjudicators must 
remember that we are responsible for obtaining the services of a 
qualified interpreter if the individual requests or needs one. This 
includes providing an interpreter at a CE if the CE provider is not 
sufficiently fluent in the individual's language.

EFFECTIVE DATE: This Ruling is effective on the date of its publication 
in the Federal Register.

CROSS-REFERENCES: SSR 82-40, ``Titles II and XVI: The Vocational 
Relevance of the Past Work Performed in a Foreign Country''; SSR 82-61, 
``Titles II and XVI: Past Relevant Work--The Particular Job or the 
Occupation as Generally Performed''; SSR 82-62, ``Titles II and XVI: A 
Disability Claimant's Capacity To Do Past Relevant Work, In General''; 
SR 82-63, ``Titles II and XVI: Medical-Vocational Profiles Showing an 
Inability To Make an Adjustment to Other Work'''; SSR 85-28, ``Titles 
II and XVI: Medical Impairments That Are Not Severe''; SSR 96-3p, 
``Titles II and XVI: Considering Allegations of Pain and Other Symptoms 
in Determining Whether a Medically Determinable Impairment Is Severe''; 
SSR 96-8p, ``Titles II and XVI: Assessing Residual Functional Capacity 
in Initial Claims''; AR 95-1(6), ``Preslar v. Secretary of Health and 
Human Services, 14 F.3d 1107 (6th Cir. 1994)--Definition of Highly 
Marketable Skills for Individuals Close to Retirement Age--Titles II 
and XVI of the Social Security Act''; AR 99-2(8), ``Kerns v. Apfel, 160 
F.3d 464 (8th Cir. 1998)--Definition of Highly Marketable Skills for 
Individuals Close to Retirement Age--Titles II and XVI of the Social 
Security Act''; AR 99-3(5), ``McQueen v. Apfel, --Definition of Highly 
Marketable Skills for Individuals Close to Retirement Age--Titles II 
and XVI of the Social Security Act''; and Program Operations Manual 
System, sections DI 22505.015, DI 22510.018, DI 22510.019, DI 
23515.010, DI 23515.025, DI 25010.001, SI 00502.142, and GN 00203.001.

________________

    \1\ Training, or isolated, brief, or remote periods of 
semiskilled or skilled work will not preclude a finding or arduous 
unskilled work if such training or experience did not result in 
skills that enable the individual to do other work.

[FR Doc. 99-15972 Filed 6-21-99; 8:45 am]
BILLING CODE 4190-29-P