[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