[Federal Register Volume 65, Number 86 (Wednesday, May 3, 2000)]
[Notices]
[Pages 25783-25785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10934]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 00-2(7)]


Hickman v. Apfel; Evidentiary Requirements for Determining 
Medical Equivalence to a Listed Impairment--Titles II and XVI of the 
Social Security Act.

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 00-
2 (7).

EFFECTIVE DATE: May 3, 2000.

FOR FURTHER INFORMATION CONTACT: Wanda D. Mason, Litigation Staff, 
Social Security Administration, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 966-5044.

SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5 
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
    A Social Security Acquiescence Ruling explains how we will apply a 
holding in a decision of a United States Court of Appeals that we 
determine conflicts with our interpretation of a provision of the 
Social Security Act (the Act) or regulations when the Government has 
decided not to seek further review of that decision or is unsuccessful 
on further review.
    We will apply the holding of the Court of Appeals' decision as 
explained in this Social Security Acquiescence Ruling to claims at all 
levels of administrative review within the Seventh Circuit. This Social 
Security Acquiescence Ruling will apply to all determinations or 
decisions made on or after May 3, 2000. If we made a determination or 
decision on your application for benefits between August 6, 1999, the 
date of the Court of Appeals' decision, and May 3, 2000, the effective 
date of this Social Security Acquiescence Ruling, you may request 
application of the Social Security Acquiescence Ruling to the prior 
determination or decision. You must demonstrate, pursuant to 20 CFR 
404.985(b)(2) or 416.1485(b)(2), that application of the Ruling could 
change our prior determination or decision in your case.
    Additionally, when we received this precedential Court of Appeals' 
decision and determined that a Social Security Acquiescence Ruling 
might be required, we began to identify those claims that were pending 
before us within the circuit and that might be subject to 
readjudication if an Acquiescence Ruling were subsequently issued. 
Because we determined that an Acquiescence Ruling is required and are 
publishing this Social Security Acquiescence Ruling, we will send a 
notice to those individuals whose claims we have identified which may 
be affected by this Social Security Acquiescence Ruling. The notice 
will provide information about the Acquiescence Ruling and the right to 
request readjudication under the Ruling. It is not necessary for an 
individual to receive a notice in order to request application of this 
Social Security Acquiescence Ruling to the prior determination or 
decision on his or her claim as provided in 20 CFR

[[Page 25784]]

404.985(b)(2) or 416.1485(b)(2), discussed above.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided in 20 CFR 404.985(e) or 416.1485(e). If we decide to 
relitigate the issue covered by this Social Security Acquiescence 
Ruling as provided by 20 CFR 404.985(c) or 416.1485(c), we will publish 
a notice in the Federal Register stating that we will apply our 
interpretation of the Act or regulations involved and explaining why we 
have decided to relitigate the issue.

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

    Dated: April 26, 2000
Kenneth S. Apfel,
Commissioner of Social Security.

Acquiescence Ruling 00-2 (7)

    Hickman v. Apfel, 187 F.3d 683 (7th Cir. 1999)--Evidentiary 
Requirements for Determining Medical Equivalence to a Listed 
Impairment--Titles II and XVI of the Social Security Act.
    Issue: Whether a determination of medical equivalence under 
regulations 20 CFR 404.1526 and 416.926 must be based solely on 
evidence from medical sources.\1\
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    \1\ Although Hickman was a childhood disability case involving 
the interpretation of the title XVI regulation, the same standard 
for determining medical equivalency applies to adults and children 
under both title II and title XVI programs.
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    Statute/Regulation/Ruling Citation: Sections 216(i), 223(d)(2)(A) 
and 1614(a)(3) of the Social Security Act (42 U.S.C. 416(i), 
423(d)(2)(A) and 1382c(a)(3)); 20 CFR 404.1526(a), 416.926(a), 
404.1526(b), and 416.926(b); 20 CFR Part 404, Subpart P, Appendix 1.
    Circuit: Seventh (Illinois, Indiana, Wisconsin).
    Hickman v. Apfel, 187 F.3d 683 (7th Cir. 1999).
    Applicability of Ruling: This Ruling applies to determinations or 
decisions at all administrative levels (i.e., initial, reconsideration, 
Administrative Law Judge (ALJ) hearing and Appeals Council).
    Description of Case: In 1985 and again in 1986, an application for 
Supplemental Security Income benefits was filed on behalf of Steven 
Hickman alleging that he had been disabled since birth. In 1985, 
Hickman was diagnosed with elephantiasis, which resulted in abnormal 
growth of his extremities. Various doctors reported that Hickman had 
difficulty with balance and gait. Otherwise, his extremities functioned 
normally and his condition was generally good. We denied each 
application and Hickman did not appeal on either occasion.
    Subsequently, Hickman's right foot began to increase in size, until 
his entire right foot and calf were gigantesque. In April and May 1992, 
he was hospitalized with chronic swelling of both legs. Support 
stockings were prescribed for the gigantism, and compression garments 
were prescribed for the swelling. Hickman's condition then improved 
somewhat, but his ability to walk remained impaired.
    In August 1992, Hickman reapplied for Supplemental Security Income 
and was informed that SSA reopened his 1985 application in order to 
reevaluate it under Sullivan v. Zebley, 493 U.S. 521 (1990). SSA denied 
the reopened application under Zebley both initially and on 
reconsideration, and Hickman requested a hearing before an ALJ. At the 
hearing in April 1994, Hickman argued that his condition met or 
medically equaled the impairment described in 20 CFR Part 404, Subpart 
P, Appendix 1, Sec. 101.03A \2\, and that he was therefore disabled. 
Hickman testified that it was hard for him to walk but that he played 
basketball and ran relay races. Hickman further testified that he 
walked short distances to the school bus and to classes in school.
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    \2\ 20 CFR Part 404, Subpart P, Appendix 1, Listing 101.03 
states in pertinent part ``Deficit of musculoskeletal function due 
to deformity or musculoskeletal disease and one of the following: A. 
Walking is markedly reduced in speed or distance despite orthotic or 
prosthetic devices.''
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    Upon receipt of additional medical evidence, a supplemental hearing 
was held in October 1994. Hickman submitted a report of a comprehensive 
evaluation done by Dr. Richard Lindseth, a pediatric orthopedist. Dr. 
Lindseth concluded that Hickman's gait was ``very slow, energy 
inefficient and would limit his walking and standing ability to a 
considerable degree, length of his stride and step were reduced to two-
thirds of normal,'' and ``maximum walking would be a block or two and 
that his standing on both legs would be limited to 15 to 20 minutes.'' 
Testimony was taken from Hickman's gym teacher, who testified that if 
he were tested ``in standardized testing, he would flunk.''
    The ALJ issued his decision and concluded that ``the evidence of 
record did not show that [Hickman's] impairments meet or equal the 
requirements of any listed impairment.'' The ALJ observed that his 
ability to walk was not ``markedly reduced in speed and distance'' and 
denied Hickman's application for benefits. In July 1996, the Appeals 
Council denied Hickman's request for review. Hickman then initiated his 
action in district court. The district court issued a decision that the 
ALJ ``properly considered both medical and testimonial evidence in 
assessing the severity of [Hickman's] impairment'' and affirmed that 
``the limitation from his impairment did not meet or equal the severity 
required by Listing 101.03A.'' Hickman appealed to the United States 
Court of Appeals for the Seventh Circuit. On appeal, Hickman argued 
that the ALJ improperly determined that his impairment did not 
medically equal Listing 101.03A. Hickman contended that the ALJ could 
not rely on lay testimony in deciding whether his impairment medically 
equaled a listing, because the regulations require that the 
determination of medical equivalence be based on medical evidence 
alone.
    Holding: The Seventh Circuit noted that the ALJ relied on 
nonmedical testimonial evidence to determine that Hickman's impairment 
did not medically equal Listing 101.03A. The court held that reliance 
on nonmedical testimonial evidence was inappropriate. The court 
observed that 20 CFR 416.926(a) states that ``[w]hen we make a finding 
regarding medical equivalence, we will consider all relevant evidence 
in your case record.'' However, the court stated that the regulation is 
quite clear that ``medical case records'' are considered the primary 
``relevant'' form of evidence. Moreover, the court cited 20 CFR 
416.926(b), which states that ``[w]e will always base our decision 
about whether your impairment(s) is medically equal to a listed 
impairment on medical evidence only.'' Hickman argued ``that the ALJ 
improperly discounted Dr. Lindseth's report in favor of evidence 
gleaned from nonmedical witnesses during the hearing.'' The Seventh 
Circuit agreed, stating that SSA's regulations require that the 
findings regarding medical equivalence must be made based on medical 
evidence alone.\3\
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    \3\ The court noted that when SSA amended the regulations in 
1997 it added a rule that explicitly eliminates any recourse to 
nonmedical evidence. The new rule, 20 CFR 416.926(b), provides that 
medical equivalence must be based on medical findings only. The 
title II regulation was not amended nor does it include similar 
language. However, in the preamble to the amended regulations, we 
stated: ``[T]his is not a substantive change, but a clearer 
statement of our longstanding policy. Although some of the text of 
20 CFR 416.926(a) will differ from the text of 20 CFR 404.1526(a), 
both sections will continue to provide the same substantive rules.'' 
62 FR 6408, February 11, 1997, at 6413.

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[[Page 25785]]

    The Seventh Circuit concluded that Hickman had a medical condition 
that was medically equivalent to the impairment set forth in Listing 
101.03. The Seventh Circuit reversed the judgment of the district court 
and remanded the case with instructions to enter judgment in Hickman's 
favor.

Statement as to How Hickman Differs From SSA's Interpretation of the 
Regulations

    The Seventh Circuit based its findings on 20 CFR 416.926(b), which 
states, ``[w]e will always base our decision about whether your 
impairment(s) is medically equal to a listed impairment on medical 
evidence only.'' However, we intended the phrase ``medical evidence 
only'' in this context only to exclude consideration of the vocational 
factors of age, education, and work experience. Other than such 
vocational factors, however, in accordance with 20 CFR 416.926(a), SSA 
considers all relevant evidence in the case record when it makes a 
finding on medical equivalence.\4\
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    \4\ In accordance with 20 CFR 416.926(a), SSA considers all 
relevant evidence in the case record when it makes a finding on 
medical equivalence. Although the companion regulation for title II, 
20 CFR 404.1526(a), does not contain this language, SSA applies the 
same equivalency policy under both titles.
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    The Seventh Circuit decision differs from SSA's national rule by 
requiring it to consider only a narrow definition of medical evidence, 
that is, evidence from medical sources, in determining medical 
equivalence and not permitting the use of other relevant evidence. The 
agency, on the other hand, interprets ``medical evidence'' broadly so 
as to include not just objective test results or other findings 
reported by medical sources, but other information about a claimant's 
medical conditions and their effects, including the claimant's own 
description of his or her impairments. Thus, the court's decision that 
medical equivalence is decided based solely on evidence from medical 
sources interprets the ``medical evidence only'' language of the 
regulation more narrowly than we intend.

Explanation of How SSA Will Apply The Hickman Decision Within the 
Circuit

    This Ruling applies only to cases in which the claimant resides in 
Illinois, Indiana or Wisconsin at the time of the determination or 
decision at any level of administrative review; i.e., initial, 
reconsideration, ALJ hearing or Appeals Council review.
    In determining medical equivalence, we will use only information 
obtained from health care professionals. We will not use any evidence 
from a source other than a health care professional in determining 
medical equivalence.
    We intend to clarify the language at issue in this case at 20 CFR 
404.1526 and 416.926 through the issuance of a regulatory change, and 
we may rescind this Ruling once we have clarified the regulations.

[FR Doc. 00-10934 Filed 5-3-00; 8:45am]
Billing Code 4191-02-F