[Federal Register Volume 65, Number 176 (Monday, September 11, 2000)]
[Notices]
[Pages 54879-54880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23217]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 00-4(2)]


Curry v. Apfel; Burden of Proving Residual Functional Capacity at 
Step Five of the Sequential Evaluation Process for Determining 
Disability--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-
4(2).

EFFECTIVE DATE: September 11, 2000.

FOR FURTHER INFORMATION CONTACT: Gary Sargent, Litigation Staff, Social 
Security Administration, 6401 Security Boulevard, Baltimore, MD 21235, 
(410) 965-1695.

SUPPLEMENTARY INFORMATION: 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 Second Circuit. This Social 
Security Acquiescence Ruling will apply to all determinations or 
decisions made on or after September 11, 2000. If we made a 
determination or decision on your application for benefits between 
April 7, 2000, the date of the Court of Appeals' decision, and 
September 11, 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 claim.
    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 claims that were pending before 
us within the circuit 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 404.985(b)(2) or 416.1485(b)(2).
    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 for 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 for 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; 96.006--
Supplemental Security Income)

    Dated: August 24, 2000.
Kenneth S. Apfel,
Commissioner of Social Security.

Acquiescence Ruling 00-4(2)

    Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000)--Burden of Proving 
Residual Functional Capacity at Step Five of the Sequential Evaluation 
Process for Determining Disability--Titles II and XVI of the Social 
Security Act.\1\
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    \1\ Although Curry was a title II case, similar principles also 
apply to title XVI. Therefore, this Ruling applies to both title II 
and title XVI disability claims.
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    Issue: Whether we have the burden of proving residual functional 
capacity (RFC) at step five of the sequential evaluation process for 
determining disability in 20 CFR 404.1520 and 416.920.
    Statute/Regulation/Ruling Citation: Sections 205(a), 223(d)(2)(A), 
223(d)(5), 702(a)(5), 1614(a)(3)(B), 1614(a)(3)(H) and 1631(d)(1) of 
the Social Security Act (42 U.S.C. 405(a), 423(d)(2)(A), 423(d)(5), 
902(a)(5), 1382c(a)(3)(B), 1382c(a)(3)(H) and 1383(d)(1)) and; 20 CFR 
404.1512, 404.1520, 404.1527, 404.1545, 404.1546, 416.912, 416.920, 
416.927, 416.945, 416.946, Social Security Rulings 96-5p and 96-8p.
    Circuit: Second (Connecticut, New York and Vermont).
    Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000).
    Applicability of Ruling: This Ruling applies to all determinations 
or decisions at all administrative levels (i.e., initial, 
reconsideration, Administrative Law Judge (ALJ) hearing, and Appeals 
Council).
    Description of Case: Cordie Curry injured his back and right knee 
on September 30, 1987, when he jumped or fell from a ladder to avoid 
hot water flowing from a pipe. Mr. Curry was referred to an orthopedic 
surgeon for lower back pain, and received physical therapy from January 
14, 1988, through June 28, 1988. The orthopedic surgeon performed 
surgery on Mr. Curry's knee on July 13, 1988, and diagnosed an internal 
derangement. In February and March 1995, Mr. Curry again saw the 
orthopedic surgeon, who diagnosed osteoarthritis in both knees and 
completed a ``medical assessment'' form.\2\ This treating physician 
concluded that Mr. Curry could sit for 2 hours continuously, stand for 
30 minutes at a time and walk for 15 minutes at a time. In his 
physician's opinion, during the course of an 8-hour day, Mr. Curry 
could sit for no more than 2-3 hours, stand for a total of 1 hour and 
walk a total of 30 minutes. The treating physician also provided an 
opinion that Mr. Curry could occasionally lift up to 20 pounds and 
occasionally carry up to 10 pounds.\3\
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    \2\ We deleted the term ``medical assessment'' from 20 CFR 
404.1513 and 416.913 on August 1, 1991, and replaced it with the 
terms ``statement about what you can still do despite your 
impairment(s)'' and ``medical source statement.'' See 56 FR 36932.
    \3\ In a second ``medical assessment'' form, another treating 
physician, Dr. Hussapibis, concurred with Dr. Hobeika's opinion.
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    On September 28, 1993, Mr. Curry filed an application for 
disability benefits claiming an inability to work since October 9, 
1990. In connection with this application, Mr. Curry was examined on 
January 24, 1994, by a consulting physician who reported that an X-ray 
of the knee showed mild

[[Page 54880]]

degenerative joint disease. The consulting physician concluded that Mr. 
Curry had ``moderate'' impairment of lifting and carrying activities, 
and ``mild'' impairment in standing and walking, pushing and pulling, 
and sitting.
    After a hearing, an ALJ decided that Mr. Curry was not disabled 
based on a finding that he retained the RFC to perform the exertional 
requirements of at least sedentary work. The ALJ found that Mr. Curry's 
impairments prevented him from performing his past relevant work, but 
that ``the record [did] not establish that [he was] unable to sit for 
prolonged periods of time, lift and carry ten pounds and perform the 
minimal standing and walking required for sedentary work activity.''
    After the Appeals Council denied Mr. Curry's request for review, he 
sought judicial review. The district court held that our final decision 
was supported by substantial evidence. On appeal to the United States 
Court of Appeals for the Second Circuit, the court reversed and 
remanded the case for calculation of disability benefits.
    Holding: The Second Circuit held that we have the burden of proving 
at step five of the sequential evaluation process that the claimant has 
the RFC to perform other work which exists in the national economy. The 
court found that, in this case, the ALJ's conclusions about RFC 
evidenced a disregard for this procedure.

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

    Under sections 205(a), 223(d)(5), 1614(a)(3) and 1631(d)(1) of the 
Act, and 20 CFR 404.1512 and 416.912 of our regulations, the claimant 
generally bears the burden of proving disability by furnishing medical 
and other evidence we can use to reach conclusions about his or her 
impairment(s), and its effect on his or her ability to work on a 
sustained basis. Our responsibility is to make every reasonable effort 
to develop a claimant's complete medical history including to arrange 
for consultative examinations, if necessary.
    There is a shift in the burden of proof, ``only if the sequential 
evaluation process proceeds to the fifth step * * * . It is not 
unreasonable to require the claimant, who is in a better position to 
provide information about his own medical condition, to do so.'' Bowen 
v. Yuckert, 482 U.S. 137, 146 n5 (1987). However, once a claimant 
establishes that he or she is unable to do past relevant work, it would 
be unreasonable to further require him or her to produce vocational 
evidence showing that there are no jobs in the national economy that a 
person with his or her RFC can perform. Accordingly, the only burden 
shift that occurs at step five is that we are required to prove that 
there is other work that the claimant can perform, given his or her 
RFC.
    Therefore, under our interpretation of our regulations, we do not 
have the burden at step five (or step four) to prove what the 
claimant's RFC is. We assess RFC one time, after concluding that a 
claimant's impairment(s) is ``severe'' but does not meet or equal a 
listing in the Listing of Impairments in appendix 1 of subpart P of 20 
CFR part 404. Although we use this assessment at steps four and five of 
the sequential evaluation process, we make the assessment at a step in 
the process at which the claimant is responsible for proving 
disability.
    The Second Circuit has expanded our burden of proof at step five 
beyond the issue of work which exists in significant numbers to the 
assessment of RFC. The Second Circuit held that, in determining 
disability at step five, we have the burden of proving that a claimant 
retains the RFC to perform other work.

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

    This Ruling applies only to claims in which the claimant resides in 
Connecticut, New York, or Vermont 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 making a disability determination or decision at step five of 
the sequential evaluation process, we have the burden of proving with 
sufficient evidence that a claimant can perform the requirements of 
other work. To meet this burden, we will assess RFC by evaluating all 
of the relevant evidence in the case record about a claimant's 
impairment(s) according to our rules for assessing RFC, and will in our 
determinations and decisions or in the case record certify that there 
is sufficient evidence to support our findings regarding RFC at step 
five, and refer to the relevant evidence or the explanation (e.g., the 
RFC assessment form) in which the relevant evidence is cited.
    We will apply this Social Security Acquiescence Ruling to current 
and reopened claims governed by the court-approved settlement in 
Stieberger v. Sullivan, 801 F. Supp. 1079 (S.D.N.Y. 1992), but not to 
the extent it is inconsistent with that settlement.
    We intend to clarify our regulations regarding a claimant's burden 
to provide evidence of RFC, and we may rescind this Ruling once we have 
made the clarification.
[FR Doc. 00-23217 Filed 9-8-00; 8:45 am]
BILLING CODE 4191-02-F