[Federal Register Volume 64, Number 163 (Tuesday, August 24, 1999)]
[Rules and Regulations]
[Pages 46122-46129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21935]
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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 (SSA).
ACTION: Final rule.
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SUMMARY: We are deleting listing 9.09, ``Obesity,'' from appendix 1,
subpart P of part 404, the ``Listing of Impairments'' (the listings).
Although many individuals with obesity are appropriately found
``disabled'' within the meaning of the Social Security Act (the Act),
we have determined that the criteria in listing 9.09 were not
appropriate indicators of listing-level severity because they did not
represent a degree of functional limitation that would prevent an
individual from engaging in any gainful activity. However, in response
to public comments, we are adding guidance about evaluating claims for
benefits involving obesity to the prefaces of the musculoskeletal,
respiratory, and cardiovascular body system listings.
DATES: These regulations will be effective on October 25, 1999.
FOR FURTHER INFORMATION CONTACT: Robert Augustine, Social Insurance
Specialist, Office of Process and Innovation Management, Social
Security Administration, 6401 Security Boulevard, Baltimore, Maryland
21235-6401, (410) 966-5121 or TTY (410) 966-5609 for information about
these rules. For information on eligibility or claiming benefits, call
our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778.
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.
[[Page 46123]]
To determine whether an individual (except for an individual under
age 18 claiming SSI benefits based on disability) 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 individual engaging in substantial gainful activity? If
the individual 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 individual have an impairment or combination of
impairments that is severe? If the individual does not have a severe
impairment or combination of impairments, we find that he or she is not
disabled. If the individual has a severe impairment or combination of
impairments, we proceed to step 3 of the sequence.
3. Does the individual's impairment(s) meet or equal in severity
the criteria of a listed impairment in appendix 1 of subpart P of part
404? Sections 404.1525(a) and 416.925(a) of our regulations explain
that the listings describe, for each of the major body systems,
impairments that are considered severe enough to prevent a person from
doing any gainful activity. If an individual has an impairment(s) that
meets or is equal in severity to the criteria of a listed impairment,
we find that he or she is disabled. If not, we proceed to step 4 of the
sequence.
4. Does the individual's 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 individual's impairment(s) prevent him or her from
performing other work that exists in significant numbers in the
national economy, considering his or her residual functional capacity
together with the ``vocational factors'' of age, education, and work
experience? If so, we find that the individual is disabled. If not, we
find that he or she is not disabled.
Section 416.924 of our regulations provides a separate sequential
evaluation process for individuals under age 18 who claim eligibility
for SSI based on disability. As in the sequential evaluation process
for adults, we determine at step 3 of this process whether the child's
impairment(s) meets or medically equals the requirements of any
listing. At this step, we also consider whether the child's
impairment(s) ``functionally'' equals the requirements of any listing
that includes disabling functional limitations among its criteria.
Although the listings are contained only in part 404, we
incorporate them by reference in Sec. 416.925 of subpart I of part 416.
The listings are divided into part A and part B. We apply the criteria
in part A in evaluating impairments of persons age 18 or over. We may
also apply the criteria in part A in evaluating impairments in persons
under age 18 if the disease processes have a similar effect on adults
and children. Part B contains additional criteria that we only use to
evaluate 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. If the
criteria in part B do not apply, we will use the criteria in part A
(see Secs. 404.1525 and 416.925).
When we revised and published the listing on obesity and several
other listings 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 the listings
in each of the body systems. These dates appeared in our regulations in
the introductory statement before part A of the listings. We
subsequently extended these dates in final rules published in the
Federal Register on December 6, 1993 (58 FR 64121) and again on June 5,
1997 (62 FR 30746). Most recently, we published final rules on June 3,
1999 (64 FR 29786), extending the expiration date of these listings to
July 2, 2001, for both part A, including the listings for the endocrine
system and obesity (9.00), and part B. (There was no listing for
obesity in part B.)
On March 11, 1998, we proposed to delete listing 9.09, ``Obesity,''
and related provisions in the listings, and to rename the section
``Endocrine System'' (63 FR 11854). We are now adopting the proposed
rules as final rules, with the changes discussed below. These changes
will not affect the current expiration date for the endocrine system
listings.
In these final rules, we are removing listing 9.09 because our
experience adjudicating cases under this listing indicates that the
criteria in the listing were not appropriate indicators of listing-
level severity. In our experience, the criteria in listing 9.09 did not
represent a degree of functional limitation that would prevent an
individual from engaging in any gainful activity. However, even though
we have deleted listing 9.09, we are making some changes to the
listings in response to public comments to ensure that obesity is still
addressed in our listings.
A number of public commenters, including professional medical and
advocacy organizations, submitted medical literature to us in support
of their view that we should not delete listing 9.09. We carefully
reviewed these comments and the medical literature cited to us. We also
considered whether we should revise the obesity listing by clarifying
the severity criteria related to the affected body systems in listing
9.09 (i.e., the musculoskeletal, respiratory and cardiovascular
systems), or by making other changes in the listings suggested by the
commenters. However, we concluded that, because of the widely varying
effects obesity and related impairments may have on an individual's
functioning, the only way we could be confident that individuals would
be disabled under the listings would be to require the other
impairments to meet or equal the severity of their respective listings.
We also considered whether to raise the weights in the tables to the
extent that the level of obesity would ensure that the individuals
would be disabled 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.
In response to various concerns about the potential effects of
removing all reference to obesity from the listings, we are adding
guidance about the evaluation of claims for benefits involving obesity
to the prefaces of the musculoskeletal, respiratory, and cardiovascular
body system listings. Our purpose in making these changes is to ensure
that adjudicators understand that we consider obesity to be a medically
determinable impairment that can be the basis for a finding of
disability, and that obesity in combination with other impairments must
be considered when evaluating disability at the listings step and other
steps of the sequential evaluation process. We are making this change
to clarify our intent.
We also want to make clear that we are deleting listing 9.09
because we have determined that the listing is no longer an appropriate
rule and because we were unable to propose a reliable alternative.
However, we will continue to consider whether we can make improvements
in our evaluation of claims filed by individuals with obesity. We
intend to obtain information from
[[Page 46124]]
the medical community and other interested parties regarding our
adjudication of claims of individuals with obesity. We also intend to
provide guidance to our adjudicators about the evaluation of claims
involving obesity in a Social Security Ruling. Social Security Rulings
make available to the public our policy interpretations and provide
uniform, binding guidance for all components of the SSA and the State
agencies that make disability determinations for us.
The following is a detailed summary of the revisions, together with
our reasons for the changes.
Regulatory Provisions
Revisions to Part A of Appendix 1
Table of Contents
We are deleting ``and Obesity'' from section 9.00 to reflect the
deletion of listing 9.09.
1.00 Musculoskeletal System
3.00 Respiratory System
4.00 Cardiovascular System
We are adding new paragraphs 1.00F., 3.00I., and 4.00F. to the
prefaces to the listings for the body systems named above. The
paragraphs state clearly that we consider obesity to be a medically
determinable impairment and remind adjudicators to consider its effects
when evaluating disability. The provisions also remind adjudicators
that the combined effects of obesity with other impairments can be
greater than the effects of each of the impairments considered
separately. They also instruct adjudicators to consider the effects of
obesity not only under the listings but also when assessing a claim at
other steps of the sequential evaluation process, including when
assessing an individual's residual functional capacity.
9.00 Endocrine System
We are deleting ``and Obesity'' from the heading of this section of
the listings to reflect the deletion of listing 9.09. We are also
deleting the second and third paragraphs from the preface of 9.00
because they discussed aspects of the evaluation of obesity in
connection with listing 9.09.
9.01 Category of Impairments, Endocrine System
We are deleting ``and Obesity'' from the heading of this listing to
reflect the deletion of listing 9.09.
9.09 Obesity
We are deleting listing 9.09. In our experience, its criteria were
not appropriate indicators of listing-level severity because they did
not represent a degree of functional limitation that would prevent an
individual from engaging in any gainful activity. For example, listing
9.09A required 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 was not
specific. It did not indicate any degree of pain, nor did it require
current pain--only a history of pain--and did not indicate a degree of
limitation of motion. Thus, the listing could have been satisfied with
only minimal additional findings over and above the specified weight
levels, even though many individuals with those findings in conjunction
with the specified weight levels were not precluded from performing any
gainful activity.
The same holds true for the other criteria in listing 9.09.
Although the findings in listings 9.09B through 9.09E could be
disabling in a given individual, in our experience the findings
contained in these listings were not consistently so severe that they
would warrant a presumption that an individual is incapable of
performing any gainful activity. Indeed, only listings 9.09B and 9.09E
specified laboratory values, but those findings might or might not have
prevented an individual from performing any gainful activity.
Individuals with the kinds of additional impairments previously
listed in 9.09 will still have their cases evaluated as appropriate
under the listings for the affected body systems, and can still be
found to have impairments that meet the requirements of those other
listings. They may also be found to have impairments that equal the
severity of other listings, considering the combined effect of obesity
and the other impairments. Individuals whose impairments related to, or
in combination with, obesity are not of listing-level severity will
have their cases evaluated based on their residual functional capacity,
and may be found disabled at step 5 of the sequential evaluation
process.
Other Revisions
Introductory Text
We are deleting ``and Obesity'' from item 10 of the introductory
text that precedes part A of the listings. We are also revising item 10
of the introductory text to read ``Endocrine System (9.00 and 109.00):
July 7, 1999.''
3.00 Respiratory System
We are deleting the last sentence of 3.00H, which referred to the
obesity listing. We are also deleting the reference to listing 9.09 in
listing 3.10, Sleep-related breathing disorders.
Public Comments
When we published the Notice of Proposed Rulemaking (NPRM) on March
11, 1998 (63 FR 11854), we provided the public with a 60-day comment
period. On June 10, 1998, we extended the comment period until July 13,
1998 (63 FR 31680).
We received comments from just over 500 individuals and
organizations. Almost 300 of the comment letters were form letters that
included comments on subjects unrelated to the deletion of listing
9.09; we have forwarded the comments on the unrelated issues to the
appropriate components within SSA and do not address them below. The
other comment letters included detailed comments submitted on behalf of
advocacy organizations representing individuals with obesity, medical
researchers and medical advocates for individuals with disability, and
legal advocates for individuals with obesity. We also received comments
from some State agencies that make disability determinations for us,
organizations representing disability adjudicators at the State level,
several legal services organizations, individual disability
beneficiaries and their families, attorneys, non-attorney
representatives, and SSA employees.
When we proposed these rules, we stated that we intended to delete
the obesity listing because ``[c]urrent 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'' (63 FR
11854). A number of the comments (discussed more fully below) indicated
that there may have been some misunderstanding about why we were
proposing to remove the listing. Therefore, in addition to responding
to the specific comments, we want to provide a fuller explanation of
why we are making the change.
Some commenters believed that we claimed that we had conducted
extensive research, that this research was the sole basis for our
proposal, but that we were not making this research available to the
public. This was not the
[[Page 46125]]
case, and it was not what we meant in the NPRM.
We proposed to delete listing 9.09 primarily because our program
and adjudicative experience helped to convince us that the listing was
difficult to administer, subject to misinterpretation, and required
findings of disability in some cases in which the claimants were
clearly not ``disabled'' as defined in the Act. Some of the criteria,
such as the criteria in listings 9.09A and D, were vague and overly
subjective. Some, such as the criteria in listings 9.09A and C, did not
necessarily relate to current impairment status. These concerns were
echoed by some of the comments from our adjudicators, who also noted
that the listing was problematic.
Over the years, we had received many questions from adjudicators
and others about the meaning of the criteria and how to apply them. We
also had extensive experience reviewing individual claims that
adjudicators referred to us for advice and for resolution of questions
about the correct interpretation of the criteria. This experience
convinced us that listing 9.09 was no longer appropriate.
In addition, before we published the NPRM, we reviewed a small
group of cases in which individuals were found disabled based on a
finding that their impairments met or equaled listing 9.09. Although
our reviews did not constitute a statistically valid study, they did
provide further confirmation of our program and adjudicative
experience. We found that, in the majority of the cases we studied, the
determinations would not have been affected by the deletion of listing
9.09; i.e., we would have found the individuals disabled. The majority
of individuals had impairments that met or equaled other listings, or
that we would have found disabling at step 5 of the sequential
evaluation process; most of these individuals had impairments that met
or equaled other listings. However, consistent with our experience, we
also found that, in a significant number of the cases, we would not
have found the individuals disabled under other listings or at step 5
of the sequential evaluation process.
We also reviewed medical literature to see if any generally
accepted research showed a correlation between obesity and loss of
functional capacity for work that might support retention of the
listing without change or serve as a basis for an alternative proposal.
There is significant medical literature correlating obesity with a
variety of health risks. A number of commenters cited such literature
to us; one comment letter cited many such sources. However, we reviewed
the cited sources and determined that they did not provide support for
the retention of listing 9.09 because they did not demonstrate a
significant correlation between obesity and current loss of functional
ability for work. Although the sources did show that the risk for
having another impairment goes up significantly if an individual is
severely obese, they did not provide a basis for concluding that a
given individual will currently be unable to engage in any gainful
activity.
For all the foregoing reasons, we have decided that we must delete
listing 9.09 and that it is most appropriate to evaluate disability
under the listings for the other impairments an individual with severe
obesity might have. We also concluded that we should instruct our
adjudicators that the combined effects of obesity with other
impairments may be greater than the effects of each of the impairments
considered separately, and that such evaluations should be made on an
individualized, case-by-case basis.
Summaries of the significant comments and our responses follow.
Because some of the comments were quite detailed, we had to condense,
summarize, or paraphrase them. We have, however, tried to summarize the
commenters' views accurately and have responded to all of the
significant issues raised by the commenters that are within the scope
of the proposed rules. As we discuss below in responding to the
comments, we have made revisions and additions in the final rules to
clarify our intent.
Comment: A number of commenters said that deleting listing 9.09
will result in longer, more costly, and less consistent determinations
and decisions, and will also result in increased case backlogs. They
said that the listing saved administrative resources by using objective
medical criteria to avoid a more costly case-by-case inquiry into an
individual's functional ability.
Response: Although some individual cases will require more
development and analysis than they would have under listing 9.09, in
our cost/benefit analysis, we estimate that, overall, there will be
slight administrative savings from these final rules when all future
actions are considered. For example, even though some cases will
require more initial development than under listing 9.09, there will be
fewer continuing disability reviews because we anticipate there will be
fewer people whose claims will be allowed than under the prior rules.
Moreover, obesity is the primary impairment in just under 3 percent of
all disability claims filed each year under titles II and XVI. Also, as
we have already noted, there will be no effect on many cases because
many of the individuals with severe obesity who file applications each
year and who would have met listing 9.09 will be found to have
impairments that meet or equal other listings based on the medical and
other evidence we obtain in our routine development of all cases.
With regard to the second part of the comment, and as we have noted
earlier in this preamble, we do not agree that listing 9.09 was
objective or accurate as a measure of listing-level impairment severity
in a significant number of cases.
Comment: Many commenters thought that deletion of listing 9.09
would result in the denial of benefits to disabled individuals. Many of
the commenters believed that without listing 9.09, adjudicators would
overlook or improperly evaluate a claimant's obesity. Some stated that
obesity is a disease that can affect an individual's ability to stand,
sit, walk, climb, etc., and should be treated as such. They said that
for SSA to eliminate this impairment from the listings would be to
ignore a genuine medical impairment that causes significant functional
limitations.
Some commenters thought that removing any reference to obesity from
our listings would send an implicit message to our adjudicators that we
do not want them to consider obesity. Several commenters expressed
concern that adjudicator ``bias'' would play a part in case evaluation
in the absence of the obesity listing.
Many commenters also indicated that listing 9.09 did not consider
obesity alone. They thought that adjudicators would not adequately
consider obesity, either under the listings for other body systems,
which do not provide criteria that specifically take into account the
effects of obesity, or in the assessment of an individual's residual
functional capacity.
Most of these commenters urged us to retain some reference to
obesity and its potentially disabling manifestations in our rules.
Response: We made revisions in these final rules in response to the
comments. Our proposal to delete listing 9.09 neither stated nor
implied that we would no longer consider obesity to be a medically
determinable impairment, nor did it state or imply that obesity could
not be disabling by itself or in combination with other impairments. We
agree, however, that our rules should retain some reference to obesity
and its potentially disabling manifestations.
[[Page 46126]]
Obesity is a medically determinable impairment, and we expect our
adjudicators to consider it when evaluating impairment severity.
Adjudicators must also incorporate any functional limitations resulting
from obesity into the assessment of disability. We are confident that
our adjudicators will continue to do so, even in the absence of listing
9.09. We also have a quality assurance review process that helps us
ensure that decisions are supported by the evidence and that multiple
impairments, including obesity, are properly considered.
Nevertheless, we agree with the commenters that there could have
been a potential for misinterpretation of our intent if we simply
deleted references to obesity in the listings without anything more.
Therefore, in response to the comments, we have added paragraphs to the
prefaces of the musculoskeletal, respiratory, and cardiovascular body
systems (the same body systems that were referenced in listings 9.09 A
through E), to indicate that we consider obesity to be a medically
determinable impairment, that obesity is often associated with
disturbances of these body systems, and that disturbances of these body
systems can be a major cause of disability in individuals with obesity.
We also provide that the combined effects of obesity with impairments
in these body systems can be greater than the effects of each of the
impairments considered separately. Finally, we provide that, when
determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing residual
functional capacity, adjudicators must consider any additional and
cumulative effects of obesity. In addition, as noted above, we intend
to provide additional guidance to our adjudicators about the evaluation
of claims involving obesity in a Social Security Ruling.
Comment: Many commenters stated that listing 9.09 was a carefully
drafted regulation that recognized the impact of obesity on certain
musculoskeletal, respiratory, and cardiovascular disorders. They said
the listing correctly reflected that severe obesity, in conjunction
with any of the conditions set forth in listings 9.09 A through E,
would result in functional limitations so severe that the individual
would not be able to meet the performance or attendance requirements of
any employer. They asked that we keep the listing without change.
Response: The listing criteria for obesity we first promulgated on
March 27, 1979 (44 FR 18170), represented our attempt to devise
criteria that would ``take into account the contributing complication
of obesity . . .'' (44 FR 18175). However, for the reasons previously
discussed, we believe that the listing did not easily or accurately
distinguish between individuals who could be presumed to be unable to
engage in any gainful activity and those for whom such a presumption
was inappropriate.
Comment: Many commenters urged us to revise, rather than delete,
the obesity listing, and some offered to assist us in developing new
listing criteria. Some recommended specific revisions to the current
listing, such as revising the requirements in sections A through E of
the listing or converting the listing to a ``reference'' listing; that
is, one that merely cross-refers to other listings. Others suggested
that we incorporate specific criteria for obesity in appropriate
listings in other body systems (e.g., musculoskeletal, respiratory,
cardiovascular, mental) so that adjudicators would not overlook it in
determining the severity of an individual's impairments.
Response: We added paragraphs to the prefaces to other body system
listings that we believe address the concerns of many of the commenters
who encouraged us, in one way or another, to retain reference to
obesity in the listings. However, we did not adopt the commenters'
suggestions for alternative criteria based either on a specific level
of obesity alone or on a level of obesity in conjunction with another
impairment that is itself of less than listing-level severity. None of
the alternative criteria proposed by commenters appeared to describe a
level of impairment severity that would allow us reasonably to conclude
that an individual who met the alternative criteria would be unable to
perform any gainful activity.
Comment: Several commenters were concerned that the proposal to
eliminate listing 9.09 was based on assumptions concerning functional
capacity. They said that functional capacity has never been a
consideration in determining whether an adult claimant meets the
listings.
Response: Functioning is an explicit criterion in many of our
listings. Moreover, even though we do not assess functional limitations
in some listings, Secs. 404.1525 and 416.925 of our regulations provide
that the listings describe impairments that are considered severe
enough to prevent a person from doing any gainful activity.
Comment: A few commenters objected to our statement that some
individuals who met listing 9.09 might be able to perform substantial
gainful activity. They did not believe that the listing differed from
any of the other listings in that regard, pointing out that individuals
with impairments that would meet listings often work. They contended
that individuals with the level of obesity and the additional
impairment required by the listing were as disabled as anyone who met
or equaled any other listing.
Response: Our listings are intended to readily identify individuals
who would ultimately be found disabled if they were not already
working, and if we considered their residual functional capacity, age,
education, and work experience. We know that there are individuals who
work despite impairments of the severity reflected in our listings, but
we believe that in general the listings are a useful tool for
identifying many people who should qualify under our rules. However,
based on our program and adjudicative experience, we do not agree with
the commenters that listing 9.09 was as accurate an indicator of
disability as other listings.
Comment: Some commenters indicated confusion about our statement in
the NPRM that obesity in and of itself is not necessarily determinative
of an individual's inability to engage in any gainful activity, and
other, similar statements. The commenters pointed out that listing 9.09
did not consider obesity in and of itself; rather, it provided criteria
for obesity associated with other impairments.
Response: We agree that listing 9.09 did not consider obesity
alone. We intended this statement only to help explain why we did not
propose other alternatives to deleting listing 9.09, including a
listing for obesity alone.
Comment: Several commenters questioned whether we were targeting
impairments with a ``volitional'' aspect for removal from the listings,
citing the removal of drug addiction and alcoholism as a basis for
disability.
Response: We are not targeting specific kinds of impairments for
review or exclusion from the listings, nor do we believe that obesity
and other medical impairments are ``volitional.'' In December 1985,
when we last published final rules containing comprehensive revisions
to the listings, we stated that medical advancements in disability
evaluation and treatment and program experience would require that the
listings be periodically reviewed and updated. These final rules are
consistent with our longstanding responsibility to monitor the
effectiveness of the listings, so that we can ensure they remain an
appropriate and efficient tool to evaluate claims for disability.
[[Page 46127]]
The changes to our rules on the evaluation of drug addiction and
alcoholism were required by law.
Comment: We received a number of comments on the many causes of
obesity and the general ineffectiveness of current treatments. Many
commenters cited the increased risk for developing musculoskeletal,
respiratory, and cardiovascular problems, and for premature death. They
pointed out that when we published revised listings in 1985, we
explained that medical advances in treatment and program experience
would require periodic evaluation and revision of the listings. They
asked what advances in medicine or program experience justified
eliminating the obesity listing.
Response: We do not dispute the commenters' statements about the
causes of obesity and the general ineffectiveness of current
treatments. As noted previously, the changes we are making are not the
result of advances in medical evaluation or treatment but the result of
program and adjudicative experience.
We also do not dispute the comments that individuals with severe
obesity have increased morbidity and mortality risks. However, under
the Act and our regulations we must consider whether an individual is
currently disabled. We do not consider whether an individual is at risk
for disability sometime in the future. The changes we are making in
these final rules will enable us to assess disability based on the
actual effects (as opposed to potential future effects) of the
impairment.
Comment: Some commenters were concerned that many individuals would
lose their benefits and have no means of assistance if we were to
delete listing 9.09. One commenter recommended that we review all prior
allowances based on listing 9.09 under the new rules.
Response: No individual will be removed from the rolls solely
because we have deleted listing 9.09, as some commenters suggested. We
will not review prior allowances based on listing 9.09 under the new
rules.
These final rules have only a prospective effect. Unless otherwise
required to do so (for example, by statute), we do not readjudicate
previously decided cases when we revise our listings.
We do conduct periodic ``continuing disability reviews'' of
individuals on our rolls to determine whether they are still disabled.
However, when we conduct continuing disability reviews, we do not find
that disability has ended based on a change in a listing. In most
cases, we must show that an individual's impairment(s) has medically
improved and that any medical improvement is ``related to the ability
to work.'' If an individual's impairment(s) has not medically improved,
we will generally find that the individual is still disabled. Even if
the impairment(s) has medically improved, our regulations provide that
the improvement is not ``related to the ability to work,'' if the
impairment(s) continues to meet or equal the ``same listing section
used to make our most recent favorable decision.'' This is true even
if, as in these final rules, we have deleted the listing section that
we used to make the most recent favorable decision. See
Secs. 404.1594(c)(3)(i) and 416.994(b)(2)(iv)(A) of our regulations. (A
similar provision for continuing disability reviews for children
eligible for SSI based on disability appears in Sec. 416.994a(b)(2)).
In a case where we find that medical improvement is not related to the
ability to work (or the impairment still meets or equals the prior
listing, in the case of an individual under age 18), we will find that
disability continues, unless an exception to medical improvement
applies.
Comment: Some commenters supported our proposal, but had questions
about how claims for benefits involving obesity would be adjudicated
after the deletion.
Response: We believe that the new paragraphs we have added to the
prefaces of the musculoskeletal, respiratory, and cardiovascular body
system listings in the final rules provide guidance for our
adjudicators in the proper handling of claims involving obesity. In
addition, as we have noted above, we intend to provide additional
guidance to our adjudicators regarding the evaluation of claims
involving obesity, by issuing a Social Security Ruling.
Comment: Several commenters stated that the proposed change would
have a disproportionate impact on particular groups of individuals,
such as women, minorities and individuals at lower socioeconomic
levels. They thought the proposed rule discriminatory. Some commenters
thought the rules reflected societal prejudice against individuals with
obesity. Some said, without explanation, that deleting the obesity
listing would violate the Americans with Disabilities Act (ADA), 42
U.S.C. 12101 et seq., or the Rehabilitation Act of 1973, 29 U.S.C. 794.
Response: SSA is committed to providing fair treatment for all
individuals who seek or receive benefits. The deletion of listing 9.09
means only that individuals with severe impairments who seek benefits
based in whole or in part on obesity will have their claims evaluated
in accordance with the appropriate body system in the listings, or at
later steps of the sequential evaluation process, as we explained in
the proposed rules (63 FR 11854, 11855) and above. Our actions in these
final rules in no way violate the ADA or the Rehabilitation Act; they
are intended to help us ensure that only those individuals who meet the
statutory definition of disability are found disabled.
These final rules do not discriminate against any individual or
group of individuals based on their impairments. Rather, they ensure
that our listings remain an efficient and legally appropriate method
for determining that individuals who meet the statutory definition of
disability are found disabled, and that individuals who do not meet the
statutory definition are not inappropriately found disabled. In our
experience, listing 9.09 did not always meet that goal. Consequently,
we believe that the best course of action is to delete the listing.
This does not mean that these final rules reflect prejudice against
individuals with obesity, or that they are intended to result in
discriminatory treatment of any individuals. However, to ensure that
adjudicators understand our intent, we have added guidance to the
musculoskeletal, respiratory, and cardiovascular body system listings
as described above. We believe the changes we have made to the listings
will ensure that disability claims based on obesity are evaluated
appropriately.
Comment: One commenter said that the proposed rule violated the
Administrative Procedure Act (APA) because the agency did not disclose
any scientific and technical studies or data in the NPRM. This
commenter asserted that the APA requires the agency to disclose
scientific material that the agency believes supports its rule to
interested parties for comment. Another commenter expressed similar
views and asserted that the NPRM violated the APA because the commenter
believed it relied on inadequate data.
Response: In the Supplementary Information section of the preamble
to the NPRM, we noted that ``[c]urrent 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'' (63 FR 11854, 11855). We made
a similar comment in the Summary section of the preamble of the NPRM
(63 FR 11854). We also noted that we were proposing to remove
[[Page 46128]]
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'' (63
FR 11855).
We regret that these statements may have caused some confusion. As
we discussed earlier in this preamble, we did not mean to imply that we
were relying on any specific research to justify our decision to
propose the removal of listing 9.09. Rather, we intended these
statements to mean only 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.
In response to these statements in the preamble to the proposed
rule, a number of commenters provided us with citations to medical
research and other medical literature (e.g., medical manuals and
textbooks). The commenters believed the research they cited supported
their position that obesity has a specific adverse impact on an
individual's functional abilities, such that it results in disability.
We have reviewed the medical research and other documents that have
been brought to our attention by the commenters, and believe that they
are consistent with our experience in adjudicating cases under listing
9.09 or otherwise did not provide a basis for retaining the listing.
None of the sources that have been brought to our attention by the
commenters, or that we reviewed in the course of developing these final
rules, support the conclusion that obesity at the level specified in
listing 9.09, taken in conjunction with the findings related to any
associated musculoskeletal, respiratory, or cardiovascular impairments
set out in listings 9.09A through E, would necessarily have such an
adverse impact on an individual's functional abilities that it should
be considered to preclude the performance of any gainful activity, in
the absence of a case-by-case determination of the effects of the
obesity and associated impairments on a particular individual.
We believe our actions in proposing the deletion of listing 9.09
are fully consistent with the APA and have provided the public with a
meaningful opportunity to comment on the proposed rule. In fact, we
extended the comment period to provide additional time for comment.
Moreover, the supplemental data contained in the studies that were
brought to our attention by various commenters did not provide a basis
for changing the proposal. We do not believe, therefore, that the APA
requires us to withdraw the proposed rule and initiate additional
rulemaking, as some commenters suggested.
Comment: Some commenters said that SSA used an unfair and cursory
approach in proposing to delete the obesity listing and that we could
use the same approach and rationale to delete any listing. They said
that SSA's professional image and reputation for commitment to
individual equity and due process would be threatened if we proceeded
with the proposed deletion.
Response: We have long recognized that medical advances in
disability evaluation and treatment and program experience require that
we periodically review and update the medical criteria in the listings.
On an ongoing basis, we review medical literature and our program and
adjudicative experience to monitor the medical criteria in the
listings. We do not recommend changes without careful consideration. We
do not believe our approach in this case was unfair or cursory.
Accordingly, for the reasons set out above, we are publishing the
proposed rules as final rules with the revisions noted.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these final 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 final 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 final 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: April 7, 1999.
Kenneth S. Apfel,
Commissioner of Social Security.
For the reasons set forth in the preamble, part 404, subpart P,
Chapter III of Title 20, Code of Federal Regulations, is 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 of Part 404--Listing of Impairments
2. Item 10 of the introductory text before Part A of appendix 1 is
revised to read as follows:
* * * * *
10. Endocrine System (9.00 and 109.00): July 2, 2001.
* * * * *
3. The Table of Contents for Part A of appendix 1 is amended by
removing ``and Obesity'' from section 9.00.
4. Listing 1.00 in part A of appendix 1 is amended by adding new
paragraph F. to read as follows:
1.00 Musculoskeletal System
* * * * *
F. Effects of obesity. Obesity is a medically determinable
impairment that is often associated with disturbance of the
musculoskeletal system, and disturbance of this system can be a major
cause of disability in individuals with obesity. The combined effects
of obesity with musculoskeletal impairments can be greater than the
effects of each of the impairments considered separately. Therefore,
when determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing a claim at
other steps of the sequential evaluation process, including when
assessing an individual's residual functional capacity, adjudicators
must
[[Page 46129]]
consider any additional and cumulative effects of obesity.
5. Listing 3.00 in part A of appendix 1 is amended by removing the
last sentence of paragraph H and adding new paragraph I. to read as
follows:
3.00 Respiratory System
* * * * *
I. Effects of obesity. Obesity is a medically determinable
impairment that is often associated with disturbance of the
respiratory system, and disturbance of this system can be a major
cause of disability in individuals with obesity. The combined
effects of obesity with respiratory impairments can be greater than
the effects of each of the impairments considered separately.
Therefore, when determining whether an individual with obesity has a
listing-level impairment or combination of impairments, and when
assessing a claim at other steps of the sequential evaluation
process, including when assessing an individual's residual
functional capacity, adjudicators must consider any additional and
cumulative effects of obesity.
6. Listing 3.10 in Part A of appendix 1 is revised to read as
follows:
3.10 Sleep-related breathing disorders. Evaluate under 3.09
(chronic cor pulmonale) or 12.02 (organic mental disorders).
7. Listing 4.00 in Part A of appendix 1 is amended by adding new
paragraph F. to read as follows:
4.00 Cardiovascular System
* * * * *
F. Effects of obesity. Obesity is a medically determinable
impairment that is often associated with disturbance of the
cardiovascular system, and disturbance of this system can be a major
cause of disability in individuals with obesity. The combined
effects of obesity with cardiovascular impairments can be greater
than the effects of each of the impairments considered separately.
Therefore, when determining whether an individual with obesity has a
listing-level impairment or combination of impairments, and when
assessing a claim at other steps of the sequential evaluation
process, including when assessing an individual's residual
functional capacity, adjudicators must consider any additional and
cumulative effects of obesity.
8. 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.
9. Listing 9.01 in part A of appendix 1 is amended by removing
``and Obesity'' from the title.
10. Listing 9.09 in part A of appendix 1 is removed.
[FR Doc. 99-21935 Filed 8-23-99; 8:45 am]
BILLING CODE 4190-29-P