[Federal Register Volume 67, Number 112 (Tuesday, June 11, 2002)]
[Proposed Rules]
[Pages 39904-39915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13901]


=======================================================================
-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]
RIN 0960-AF37


Clarification of Rules Involving Residual Functional Capacity 
Assessments; Clarification of Use of Vocational Experts and Other 
Sources at Step 4 of the Sequential Evaluation Process; Incorporation 
of ``Special Profile'' into Regulations

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: For purposes of this notice, ``we,'' ``our,'' and ``SSA'' 
refer to the Social Security Administration and State agencies that 
make disability determinations for the Social Security Administration. 
``You'' and ``your'' refer to individuals who claim benefits from the 
Social Security Administration based on ``disability.''
    This document proposes to clarify our rules about the 
responsibility that you have to provide evidence and the responsibility 
that we have to develop evidence in connection with your claim of 
disability. This includes our rules about when we assess your residual 
functional capacity (RFC) and how we use this RFC assessment when we 
decide whether you can do your past relevant work or other work. These 
clarifications address issues of responsibility raised by some courts 
in recent cases.
    We also propose to clarify that we may use vocational experts, 
vocational specialists, or other resources to obtain information we 
need to determine whether your impairment(s) prevent you from doing 
your past relevant work;
    Add a special provision to our rules stating that, if you are at 
least 55 years old, and specific other circumstances are present, we 
will find that you are disabled; and
    Make a number of minor editorial changes to clarify and update the 
language of our rules, and to use simpler language in keeping with our 
goal of using plain language in our regulations.

DATES: To be sure that we consider your comments, submit them no later 
than August 12, 2002.

ADDRESSES: You may give us your comments by using: our Internet site 
facility (i.e., Social Security Online) at http://www.ssa.gov/regulations/; e-mail to [email protected]; telefax to 410-966-2830; 
or by letter to the Commissioner of Social Security, P.O. Box 17703, 
Baltimore, MD 21235-7703.
    You may also deliver them to the Office of Process and Innovation 
Management, Social Security Administration, 2109 West Low Rise 
Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 
8:00 a.m. and 4:30 p.m. on regular business days. Comments are posted 
on our Internet site, or you may inspect them during these same hours 
by making arrangements with the contact person shown in this preamble.
    Electronic Version: The electronic file of this document is 
available on the date of publication in the Federal Register on the 
Internet site for the Government Printing Office at: http://www.access.gpo.gov/su_docs/aces/aces140.html. It is also available on 
the Internet site for SSA: http://www.ssa.gov/regulations/.

FOR FURTHER INFORMATION CONTACT: Georgia E. Myers, Regulations Officer, 
Social Security Administration, 2109 West Low Rise, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, 410-965-3632 or TTY 800-966-5609 
for information about these rules. For information on eligibility or 
filing for benefits, call our national toll-free number, 800-772-1213 
or TTY 800-325-0778, or visit our Internet website, Social Security 
Online, at http://www.ssa.gov.

SUPPLEMENTARY INFORMATION:

What Programs Would These Proposed Regulations Affect?

    These proposed regulations would affect disability determinations 
and decisions we make for you under title II and title XVI of the Act. 
In addition, to the extent that Medicare and Medicaid eligibility are 
based on entitlement to benefits under title II and eligibility for 
benefits under title XVI, these proposed regulations would also affect 
the Medicare and Medicaid programs.

Who Can Get Disability Benefits?

    Under title II of the Act, we provide for the payment of disability 
benefits if you are disabled and belong to one of the following three 
groups:
     Workers insured under the Act;
     Children of insured workers; and
     Widows, widowers, and surviving divorced spouses (see 20 
CFR 404.336) of insured workers.
    Under title XVI of the Act, we provide for Supplemental Security 
Income (SSI) payments on the basis of disability if you have limited 
income and resources.

How Do We Define ``Disability''?

    Under both the title II and title XVI programs, disability means 
the inability to ``. . . engage in any substantial gainful activity by 
reason of any medically determinable physical or mental impairment 
which can be expected to result in death or which has lasted or can be 
expected to last for a continuous period of not less than 12 months.'' 
(Sections 223(d)(1)(A) and 1614(a)(3)(A) of the Act.) This definition 
applies if you file a claim under title II or if you file a claim as an 
adult under title XVI. (There is a different definition of disability 
for children filing under title XVI. See section 1614(a)(3)(C) of the 
Act.)
    In addition, we only consider you to be disabled if your physical 
or mental impairment(s) is so severe that you are not only unable to do 
your previous work, but you cannot, considering your age, education, 
and work experience, engage in any other kind of substantial gainful 
work that exists in the national economy. This is true regardless of 
whether this kind of work exists in the immediate area in which you 
live, or whether a specific job vacancy exists for you, or whether you 
would be hired if you applied for work. (See sections 223(d)(2)(A) and 
1614(a)(3)(B) of the Act.)
    We will not consider you under a disability unless you furnish 
medical and other evidence that we need to show that you are disabled. 
(See section 223(d)(5)(A) and, by reference to section 223(d)(5), 
section 1614(a)(3)(H) of the

[[Page 39905]]

Act.) However, when we decide whether you are disabled (or whether you 
continue to be disabled), we will develop a complete medical history of 
at least the preceding twelve months for any case in which we decide 
that you are not disabled. (See sections 223(d)(5)(B) and 1614(a)(3)(H) 
of the Act.)

Who Makes the Rules, Regulations, and Procedures for Providing Evidence 
of Disability?

    Section 205(a) of the Act and, by reference to section 205(a), 
section 1631(d)(1) provide that:

    The Commissioner of Social Security shall have full power and 
authority to make rules and regulations and to establish procedures, 
not inconsistent with the provisions of this title, which are 
necessary or appropriate to carry out such provisions, and shall 
adopt reasonable and proper rules and regulations to regulate and 
provide for the nature and extent of the proofs and evidence and the 
method of taking and furnishing the same in order to establish the 
right to benefits hereunder.

How Do We Decide Whether You Are Disabled?

    To decide whether you are disabled under this statutory definition, 
we use a five-step sequential evaluation process, which we describe in 
our regulations at Secs. 404.1520 and 416.920. We follow the five steps 
in order and stop as soon as we can make a determination or decision. 
The steps are:
    1. Are you working and is the work you are doing substantial 
gainful activity? If you are working and engaging in substantial 
gainful activity, we find that you are not disabled regardless of your 
medical condition or your age, education, and work experience. If you 
are not, we go on to step 2 of the sequence.
    2. Do you have any impairment or combination of impairments which 
significantly limits your physical or mental ability to do basic work 
activities? If you do not, we find that you are not disabled. If you 
do, we go on to step 3 of the sequence.
    3. Do you have an impairment(s) that meets or equals the severity 
of an impairment listed in appendix 1 of subpart P of part 404 of our 
regulations? If you do, and the impairment(s) meets the duration 
requirement, we find you disabled. If you do not, we go on to step 4 of 
the sequence.
    4. Considering your RFC and the physical and mental demands of the 
work you have done in the past, does your impairment(s) prevent you 
from doing your past relevant work? If not, we find that you are not 
disabled. If so, we go on to step 5 of the sequence.
    5. Considering your RFC and your age, education, and past work 
experience, does your impairment(s) prevent you from doing any other 
work? If it does, and your impairment(s) meets the duration 
requirement, we find that you are disabled. If it does not, we find 
that you are not disabled.
    We use different sequential evaluation processes if we are deciding 
whether your disability continues. See Secs. 404.1594 and 416.994 of 
our regulations. However, these different processes also include steps 
that consider your RFC and past relevant work, and your ability to 
adjust to other work considering your RFC, age, education, and work 
experience.

What Revisions Are We Proposing To Make, and Why?

    We propose changing several sections in subpart P of part 404 and 
subpart I of part 416 to clarify our longstanding rules about how we 
make determinations and decisions for initial applications at steps 4 
and 5 of the sequential evaluation process. The changes we propose will 
also apply to steps 7 and 8 of the sequential evaluation processes for 
determining continuing disability in Sec. 404.1594(f), and steps 6 and 
7 in Sec. 416.994(b)(5). However, for clarity we will refer in this 
preamble only to the steps of the sequential evaluation process for 
initial applications.
    Several of the proposed revisions will clarify our longstanding 
interpretation of our rules that we assess your RFC once, after we have 
found that you have a severe impairment(s) that does not meet or equal 
a listing; i.e., after step 3 but before we consider step 4. We use 
this RFC assessment first to determine, at step 4, whether you are able 
to do any of your past relevant work. If we determine that you cannot 
perform past relevant work, or you have no past relevant work, we use 
the same RFC assessment at step 5 to determine whether you are able to 
make an adjustment to other work, given your RFC, age, education, and 
work experience.
    Under the Act and Secs. 404.1512 and 416.912 of our regulations, 
you generally have the burden of proving your disability. You must 
furnish medical and other evidence we can use to reach conclusions 
about your impairment(s) and its effect on your ability to work on a 
sustained basis. Our responsibility is to make every reasonable effort 
to develop your complete medical history. That includes arranging for 
consultative examinations, if necessary. We are responsible for helping 
you produce evidence that shows whether you are disabled.
    Our administrative process was designed to be nonadversarial. See 
Secs. 404.900(b) and 416.1400(b) of our regulations; Richardson v. 
Perales, 402 U.S. 389, 403 (1971); Sims v. Apfel, 120 S. Ct. 2080, 
2083-85, 2086 (2000). In addressing burdens of proof, it is critical to 
keep in mind that we are using a term in our nonadversarial 
administrative process that describes a process normally used in 
adversarial litigation. ``Burdens of proof'' operate differently in the 
disability determination process than in a traditional lawsuit.
    In the administrative process, the burden of proof generally 
encompasses both a burden of production of evidence and a burden of 
persuasion about what the evidence shows. Director, OWCP v. Greenwich 
Collieries, 512 U.S. 267, 273 (1994) (citing Powers v. Russell, 30 
Mass. 69, 76 (1833). You shoulder the dual burdens of production and 
persuasion through step 4 of the sequential evaluation process. See 
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
    Although you generally bear the burden of proving disability 
throughout the sequential evaluation process, there is a limited shift 
in the burden of proof to us ``only if the sequential evaluation 
process proceeds to the fifth step * * *.'' Bowen v. Yuckert, id. When 
the process proceeds to the fifth step, this means that you have 
demonstrated the existence of a severe impairment(s) resulting in an 
RFC that prevents the performance of past relevant work. When we decide 
that you are not disabled at step 5, this means that we have determined 
that there is other work that you can do. To make this finding, we must 
provide evidence that demonstrates that jobs exist in significant 
numbers in the national economy that you can do, given your RFC, age, 
education, and work experience. In legal terms, this is a burden of 
production of evidence.
    This burden shifts to us because, once you establish that you are 
unable to do any past relevant work, it would be unreasonable to 
require you to produce vocational evidence showing that there are no 
jobs in the national economy that you can perform, given your RFC. 
However, as stated by the Supreme Court, ``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, id. Thus, the only burden shift that occurs at step 5 is that 
we are required to prove that there is other work that you can do, 
given your RFC,

[[Page 39906]]

age, education, and work experience. That shift does not place on us 
the burden of proving RFC.
    When the burden of production of evidence shifts to us at step 5, 
our role is to obtain evidence to assist in impartially determining 
whether there is a significant number of jobs in the national economy 
you can do. Thus, we have a burden of proof even though our primary 
interest in the outcome of the claim is that it be decided correctly. 
As required by the Act, the ultimate burden of persuasion to prove 
disability, however, remains with you.

What Specific Changes Are We Proposing?

Sections 404.1501 and 416.901 Scope of Subpart

    The second sentence of Secs. 404.1501(g) and 416.901(j) is very 
long and it includes a number of clauses. We propose to clarify this 
sentence by numbering and listing the clauses and by revising some 
language. This includes clarifying in proposed (g)(2) that assessment 
of RFC is our responsibility (``our residual functional capacity 
assessment'') and that we use this assessment at steps 4 and 5 of the 
sequential evaluation process.

Sections 404.1505 Basic Definition of Disability, and 416.905 Basic 
Definition of Disability for Adults

    In paragraph (a), we propose to revise the second sentence, to 
delete the third sentence, and to add four new sentences. The revisions 
in the second sentence will clarify our longstanding policy that, when 
we consider your ``previous work,'' we consider only work that was 
``past relevant work.'' Past relevant work is work that you performed 
within the past 15 years, that was substantial gainful activity, and 
that lasted long enough for you to learn how to do it. See SSR 82-62, 
``Titles II and XVI: A Disability Claimant's Capacity To Do Past 
Relevant Work, In General,'' Social Security Rulings, Cumulative 
Edition, 1982, p. 158.
    The current third sentence explains that we consider your RFC, age, 
education, and work experience when we determine whether you can do 
other work; i.e., at step 5 of the sequential evaluation process. We 
propose to replace this sentence with four new sentences that will 
provide more detail about this policy, including cross-references to 
our rules on the sequential evaluation process and RFC. They will also 
clarify that we assess RFC once, and that we use this assessment at 
both step four and step five of the sequential evaluation process.

Proposed Sections 404.1512 and 416.912 Evidence

    We propose several revisions in these sections to clarify both your 
responsibility and our responsibility. We propose to change the heading 
of these sections from ``Evidence of your impairment'' to ``Evidence'' 
because, as we discuss below, we propose to add a provision that is not 
about evidence of your impairment; i.e., a provision that is about our 
responsibility, at step 5 of the sequential evaluation process, to 
provide evidence of the existence of jobs.
    We propose to make two changes in paragraph (c) to make it clearer. 
These are not substantive changes. First, we propose to add a new 
second sentence to paragraph (c) to clarify, consistent with the 
remainder of the current paragraph, that we may ask for non-medical 
information about functioning or about other non-medical issues in 
addition to medical information. Second, we propose to make a slight 
modification to the current second sentence (which will become the new 
third sentence) to make it clearer.
    We also propose to add a new paragraph (g), ``Other work'' to 
explain our burden at step 5. It will explain that, in order to 
determine that you can make an adjustment to other work, we must 
provide evidence of the existence of work in the national economy that 
you can do, given your RFC and vocational factors. The new paragraph 
will include cross-references to regulations that explain how we 
evaluate your ability to do other work (Secs. 404.1560 through 
404.1569a and 416.960 through 416.969a, as appropriate).
    The new paragraph will also clarify our longstanding interpretation 
of the statutory requirement that we consider your age, education, and 
work experience as well as your impairment(s) when we determine the 
ability to do other work at step 5.
    Our use of the phrase ``make an adjustment to other work'' is not 
new. We used the phrase when we originally published proposed rules on 
the medical/vocational guidelines in appendix 2, subpart P of 
regulations part 404 (the grid rules) in 1978:

    If an individual cannot perform his or her past relevant work 
but the individual's physical and mental capacities are consistent 
with his or her meeting the demands of a significant number of jobs 
in the national economy and the individual has the vocational 
capabilities (considering his or her age, education, and past work 
experience) to make an adjustment to work different from that which 
the individual has performed, it will be determined that such an 
individual is not under a disability. However, if such an 
individual's physical and mental capacities in conjunction with his 
or her vocational capabilities (considering his or her age, 
education, and work experience) are not consistent with making an 
adjustment to work differing from that which the individual has 
performed in the past, it will be determined that such an individual 
is under a disability.

    See 43 FR 9284, 9288 (March 7, 1978). We used the same language in 
the preamble when we published the final rules for the medical/
vocational guidelines (see 43 FR 55349, 55352 (November 28, 1979)) and 
have used similar language in our Policy Interpretation Rulings (see, 
e.g., SSR 83-11, ``Titles II and XVI Capability To Do Other Work--The 
Exertionally Based Medical-Vocational Rules Met,'' Social Security 
Rulings, Cumulative Edition, 1983, p. 184). More recently, we have used 
the same or similar language in publications that we use to help the 
public better understand whether they may qualify for disability 
benefits under the Act and our regulations. Therefore, we are proposing 
to use this language in our regulations.

Sections 404.1520  Evaluation of Disability in General, and 416.920 
Evaluation of Disability of Adults, in General

    We propose to revise the language in paragraph (a) of these 
sections to make it clearer. We propose to divide it into five separate 
paragraphs. We also propose to modify the current language to explain 
more clearly what the five steps of the sequential evaluation process 
are, and to reflect the provisions of proposed new paragraph (e), which 
we discuss below.
    We propose to add a new paragraph (e) to this section to explain 
that, after we decide that you are not working and have a severe 
impairment(s) that does not meet or equal any listing, we will assess 
your RFC. We then use this RFC assessment at step 4 to determine 
whether you are able to do any past relevant work and, if we make a 
determination at step 5, we use the same RFC assessment in determining 
whether you can do any other work.
    Because we propose to add a new paragraph (e), we also propose to 
redesignate current paragraphs (e) and (f) as paragraphs (f) and (g). 
We also propose to revise these paragraphs to make changes consistent 
with proposed changes in other rules already described. For example, 
they will refer to ``our residual functional capacity assessment,'' to 
``past relevant work'' (instead of ``work you have done in the past'' 
or ``past work experience''), and to making ``an adjustment to other 
work.''

[[Page 39907]]

Likewise, proposed paragraph (g) (current paragraph (f)) will clarify 
that, at step 5, we consider ``the same residual functional capacity 
assessment'' we used at step 4. In current paragraph (e) (proposed 
paragraph (f)), we also propose to change the phrase, ``[i]f we cannot 
make a decision based on your current work activity or on medical facts 
alone,'' to ``[i]f we cannot make a determination or decision at the 
first three steps of the sequential evaluation process,'' in order to 
make it clear that this language has always referred to determinations 
or decisions at steps 1, 2 and 3 of the sequential evaluation process. 
We also propose to make a comparable conforming change to 
Secs. 404.1560(a) and 416.960(a).
    We propose to revise current paragraph (f)(2) (proposed paragraph 
(g)(2)) to reflect that we are adding a second special medical-
vocational profile under which we may find you disabled without 
referring to our grid rules. When we discuss changes we are proposing 
to Secs. 404.1562 and 416.962 later in this notice, we explain the 
second profile and our reasons for proposing to include it. We also 
propose to modify the language that is in current paragraph (f)(2) 
(proposed paragraph (g)(2)) to delete the partial description of the 
first special medical-vocational profile that is currently in our 
regulations because it is duplicative of information already contained 
in Secs. 404.1562 and 416.962.
    Finally, we are proposing a number of minor editorial changes in 
current paragraphs (e) and (f) (proposed paragraphs (f) and (g)).

Sections 404.1545 and 416.945  Your Residual Functional Capacity

    To make current paragraph (a) easier to understand, we propose to 
revise the paragraph by breaking it into five numbered subparagraphs 
with headings. We also propose to reorganize and clarify some of the 
text.
    In proposed paragraph (a)(3), ``Evidence we use to assess your 
residual functional capacity,'' we propose to include references to 
Secs. 404.1512 and 416.912, which explain your burden to provide 
evidence of the existence and severity of your impairment(s) and how it 
affects your functioning, and our responsibility to develop a complete 
medical history and to arrange for a consultative examination(s) if 
necessary.
    In paragraph (a)(5), ``How we will use our residual functional 
capacity assessment,'' we propose to explain that we first use our RFC 
assessment to decide if you can do past relevant work and to explain 
that, if you cannot do past relevant work, or do not have any past 
relevant work, we use the same assessment to decide, at step 5, if you 
can make an adjustment to other work.
    In addition, we propose other changes in this section to clarify 
our rules. In paragraph (a)(1), ``Residual functional capacity 
assessment,'' we propose to add a sentence to explain that RFC is the 
most you can do despite your limitations. This will incorporate into 
our regulations a clarification that we currently provide in SSR 96-8p, 
``Titles II and XVI: Assessing Residual Functional Capacity in Initial 
Claims,'' 61 FR 34474 (July 2, 1996). We also propose to incorporate 
another clarification provided in that SSR by explaining in paragraph 
(a)(2), ``If you have more than one impairment,'' that, when we assess 
RFC, we will consider all medically determinable impairments of which 
we are aware, including impairments that are not ``severe.''
    Proposed paragraph (a)(3) will clarify the fifth, sixth, and 
seventh sentences of current paragraph (a), which discusses the 
evidence we consider when assessing RFC. Our intent is to clarify three 
points about how we consider evidence of pain and other symptoms in our 
RFC assessments. First, we will make clear that the phrase 
``observations by your treating and examining physicians or 
psychologists,'' in the current rule, includes ``statements about what 
you can still do,'' as discussed in Secs. 404.1513 and 416.913. Second, 
we will clarify that we consider descriptions and observations of your 
impairment-related limitations from both medical and non-medical 
sources. Third, by removing the phrase ``that are important in the 
diagnosis and treatment of your medical condition'' from the fifth 
sentence of current section (a), we will make clear that we consider 
all limitations that result from your medically determinable 
impairments, not just those that are important in the diagnosis and 
treatment of a medical condition. We also propose to delete the entire 
eighth sentence, which could be misinterpreted to mean that we may or 
may not consider evidence that we already have. Because that is not our 
intent, and because these proposed rules make clear that we consider 
all relevant medical and nonmedical evidence in the case record, we 
believe this language is unnecessary.
    We propose to revise the last sentence of current paragraph (a) 
(which will become the last sentence of proposed (a)(5)(ii)) to remove 
the language that discusses our rules on RFC assessment in deciding 
whether your disability continues or ends. Those rules are already 
discussed in Secs. 404.1594 and 416.994, and the revised language will 
simply direct you to those sections.
    We propose a number of other editorial changes to the current rule. 
These changes are intended only to clarify the current language and to 
reorganize the provisions into a more logical order.

Proposed Sections 404.1546 and 416.946  Responsibility for Assessing 
Your Residual Functional Capacity

    We propose to revise the heading of these sections, which are 
currently titled ``Responsibility for assessing and determining 
residual functional capacity.'' The two words ``and determining'' are 
superfluous. Our assessment is our determination about RFC.
    The other changes we propose in this section are editorial. To make 
the section easier to understand, we propose to break up the current 
single paragraph into three paragraphs that address the 
responsibilities of:
     State agency medical and psychological consultants 
(proposed paragraph (a));
    State agency disability hearing officers (proposed 
paragraph (b)); and
     Administrative law judges and Appeals Council 
administrative appeals judges (proposed paragraph (c)).

Proposed Sections 404.1560 and 416.960 When We Will Consider your 
Vocational Background

    We propose to change the heading, putting it into active voice, to 
make the meaning clearer. We propose to make changes in paragraphs (b), 
``Past relevant work,'' and (c), ``Other work,'' consistent with the 
changes we are proposing in other sections, already noted above.
    For clarity, we propose to revise paragraph (b) by dividing it into 
three subparagraphs, designated (b)(1) through (b)(3). We propose to 
add a new sentence in proposed paragraph (b)(1), ``Definition of past 
relevant work,'' defining ``past relevant work'' as work you have done 
within the past 15 years, that was substantial gainful activity, and 
that lasted long enough for you to learn how to do it. This definition 
is based on our longstanding interpretation in SSR 82-62, already noted 
above. We also propose to add a cross-reference to Sec. 404.1565(a) or 
416.965(a), as appropriate, because these paragraphs explain how we 
determine the 15-year period.
    We propose to add new language in paragraph (b)(2), ``Determining 
whether you can do your past relevant work,'' to

[[Page 39908]]

explain how we obtain information that we need to determine, at step 4 
of the sequential evaluation process, whether your impairment(s) 
prevents you from doing your past relevant work. It will indicate that 
we ask you for information about work you have done in the past, and 
that we may ask other people who know about your past work. This is 
consistent with the provisions in current Secs. 404.1565(b) and 
416.965(b), and we propose to include cross-references to those 
sections in paragraph (b)(2).
    We also propose to explain in paragraph (b)(2) that we may use the 
services of vocational experts or vocational specialists, or other 
resources such as the ``Dictionary of Occupational Titles'' to obtain 
information that we need to determine whether you can do your past 
relevant work. For example, we may use one of these sources to 
determine how the work you did is usually performed in the national 
economy. This is a longstanding policy interpretation set out in SSR 
82-61, ``Titles II and XVI: Past Relevant Work--The Particular Job or 
the Occupation As Generally Performed,'' Social Security Rulings, 
Cumulative Edition, 1982, p. 185.
    Proposed paragraph (b)(3), ``If you can do your past relevant 
work'' will be essentially the same as the second sentence of current 
paragraph (b). We have edited it and made it into two sentences for 
clarity.
    We propose to modify paragraph (c) to make clear that, if we decide 
at step 5 that you are not disabled, we are responsible for providing 
evidence of other work you can do (consistent with proposed 
Secs. 404.1512(g) and 416.912(g)). The modified paragraph will also 
make clear that we are not responsible for providing additional 
evidence of RFC or for making another RFC assessment at step 5. This is 
because we use the same RFC assessment at step 5 that we made before we 
considered your ability to do past relevant work at step 4, a point in 
our process at which you have the burdens of production and persuasion.

Sections 404.1561 and 416.961  Your ability to do work depends upon 
your residual functional capacity

    We propose to delete these sections because their provisions are 
incorporated into other proposed and existing rules.

Proposed Sections 404.1562 and 416.962  Medical-Vocational Profiles 
Showing an Inability to Make an Adjustment to Other Work

    We propose to revise and update the headings of these sections in 
order to reflect changes we are proposing to their content.
Current Medical-Vocational Profile
    Currently, Secs. 404.1562 and 416.962 describe a special medical-
vocational profile under which, if you have only a marginal education 
and work experience of 35 years or more during which you did arduous 
unskilled labor, and you are not working and are no longer able to do 
this kind of work because of a severe impairment, we will find that you 
are disabled. We consider this special medical-vocational profile at 
step 5 of the sequential evaluation process, before we consider the 
grid rules. We do this because we have decided that, if you match this 
profile, you do not have the ability to adjust to other work (i.e., you 
are disabled) regardless of your age. If you meet this profile, and are 
age 60 or over, we would usually find you disabled using our grid 
rules. However, if you are under age 60, you might not qualify without 
this special rule.
    Although we have changed the language somewhat over the years, the 
current medical-vocational profile has been in our regulations since 
1960 (when it was at Sec. 404.1502(c)). However, it contains a number 
of provisions that need to be updated to be consistent with our current 
rules and policies. For example, the last sentence of the paragraph 
before the example speaks about the ability to do other work ``on a 
full-time or reasonably regular part-time basis.'' However, in SSR 96-
8p, we explain that at step 5 we consider only full-time work when we 
consider other work you are able to do. See 61 FR 34474, 34475 (July 2, 
1996). Other provisions in the current medical-vocational profile have 
been made obsolete or been superseded by more recent regulations, such 
as our rules on doing substantial gainful activity at step 1 of the 
sequential evaluation process, and our rules on transferability of 
skills in Secs. 404.1568(d)(4) and 416.968(d)(4).
    We therefore propose to delete the second and third sentences of 
the paragraph and to revise the example. These changes will only make 
the rule more consistent with our current policies and will not affect 
anyone who we would find disabled under the current profile. We propose 
to designate all the language discussing this current medical-
vocational profile as paragraph (a) of Secs. 404.1562 and 416.962.
    We also propose to make a conforming change to the third sentence 
of section 203.00(b) in appendix 2 to subpart P of part 404, to reflect 
these changes.
Second Medical-Vocational Profile
    We propose to add to Secs. 404.1562 and 416.962 a second special 
medical-vocational profile that we have been using since 1975, but that 
is not in our regulations. We propose to designate the language 
discussing the second medical-vocational profile as paragraph (b). 
Under this profile, we will find you disabled if you:
     Are of ``advanced age'' (i.e., are at least 55 years old);
     Have a ``limited'' education or less (i.e., generally, an 
11th grade education or less--see Secs. 404.1564(b)(3) and 
916.964(b)(3));
     Have no past relevant work (i.e., either no work 
experience or no work experience that satisfies our definition of 
``past relevant work''); and
     Have a ``severe,'' medically determinable impairment(s).
    If you have these characteristics, we would usually find you 
disabled using our grid rules. However, if you have solely 
``nonexertional'' limitations (see Sec. 200.00(e) of appendix 2 to 
subpart p of part 404), you might not qualify without this special 
profile.
    The original instruction for this profile dates back to a policy 
decision of July 7, 1975. In 1982, we incorporated this profile into 
SSR 82-63, ``Titles II and XVI: Medical-Vocational Profiles Showing an 
Inability To Make an Adjustment to Other Work'' (see Social Security 
Rulings, Cumulative Edition, 1982, page 205). Therefore, the proposed 
rule would only incorporate our longstanding policy interpretation into 
our regulations.
    We also propose to make clear in paragraph (b) and other related 
rules that, if you meet the second medical-vocational profile, we do 
not have to assess RFC. This is because, once we have determined that 
you have a ``severe'' impairment(s) and that you meet the other 
criteria in the profile, we will find you disabled, and we will not 
need an RFC assessment. We recognize that, in most cases, our normal 
sequential evaluation process would require us to do an RFC assessment 
before we determine that you have no past relevant work. However, 
because you must only have a ``severe'' impairment(s) under this 
profile, and your advanced age, limited education, and lack of past 
relevant work should be

[[Page 39909]]

readily apparent from the case record, an RFC assessment is 
unnecessary.

Sections 404.1563 and 416.963  Your Age as a Vocational Factor

    We propose only editorial changes to the second sentence of 
paragraph (a).

Sections 404.1569a and 416.969a Exertional and Nonexertional 
Limitations

    We propose to delete the seventh sentence of paragraph (a), 
``General,'' and to add three new sentences in its place. These changes 
are consistent with other changes discussed above.

Sections 404.1594  How We Will Determine Whether Your Disability 
Continues or Ends, and 416.994 How We Will Determine Whether Your 
Disability Continues or Ends, Disabled Adults

    We propose to revise the first sentence of Sec. 404.1594(f)(7) and 
Sec. 416.994(b)(5)(vi), which contain essentially the same language, in 
order to update the cross-reference. This is necessary due to the 
changes we are proposing to Secs. 404.1560 and 416.960 and 
Secs. 404.1561 and 416.961.

Section 203.00, Appendix 2 to Subpart P of Part 404

    As already noted, we propose to revise the third sentence of 
section 203.00(b) to conform to the changes in proposed 
Secs. 404.1562(a) and 416.962(a).

Are We Proposing Any Other Changes?

    We propose to make a number of minor editorial changes throughout 
these rules to make them easier to read and understand. Because these 
proposed changes will not be substantive, we have not summarized them 
all.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules do meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, they 
were subject to OMB review.

Clarity of These Proposed Rules

    Executive Order 12866 requires each agency to write all rules in 
plain language. In addition to your substantive comments on these 
proposed rules, we invite your comments on how to make them easier to 
understand.
    For example:
    Have we organized the material to suit your needs?
    Are the requirements in the rules clearly stated?
    Do the rules contain technical language or jargon that is not 
clear?
    Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rules easier to understand?
    Would more (but shorter) sections be better?
    Could we improve clarity by adding tables, lists, or diagrams?
    What else could we do to make the rules easier to understand?

Regulatory Flexibility Act

    We certify that these proposed regulations will not have a 
significant economic impact on a substantial number of small entities 
because they affect only individuals. Therefore, a regulatory 
flexibility analysis as provided in the Regulatory Flexibility Act, as 
amended, is not required.

Paperwork Reduction Act

    These proposed rules contain reporting requirements at 
Secs. 404.1512(c), 416.912(c), 404.1545(a), 416.945(a), 404.1560(b) and 
416.960(b). The public reporting burden is accounted for in the 
Information Collection Requests for the various forms that the public 
uses to submit the information to SSA. Consequently, a 1-hour 
placeholder burden is being assigned to the specific reporting 
requirement(s) contained in these rules. We are seeking clearance of 
the burden referenced in these rules because the rules were not 
considered during the clearance of the forms. An Information Collection 
Request has been submitted to OMB. We are soliciting comments on the 
burden estimate; the need for the information; its practical utility; 
ways to enhance its quality, utility and clarity; and on ways to 
minimize the burden on respondents, including the use of automated 
collection techniques or other forms of information technology. 
Comments should be submitted to the Social Security Administration at 
the following address: Social Security Administration, Attn: SSA 
Reports Clearance Officer, Rm. 1-A-20 Operations Building, 6401 
Security Boulevard, Baltimore, MD 21235-6401.
    You may submit comments on the reporting requirements for up to 60 
days after publication of this notice; however, your comments will be 
most useful if you submit them within 30 days of publication.

(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)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

    Dated: April 2, 2002.
Jo Anne B. Barnhart,
Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 
subpart P of part 404 and subpart I of part 416 of chapter III of title 
20 of the Code of Federal Regulations as follows:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-    )

Subpart P--[Amended]

    1. The authority citation for subpart P of part 404 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.

    2. Amend Sec. 404.1501 by revising paragraph (g) to read as 
follows:


Sec. 404.1501  Scope of subpart.

* * * * *
    (g) Our rules on vocational considerations are in Secs. 404.1560 
through 404.1569a. We explain in these rules--
    (1) When we must consider vocational factors along with the medical 
evidence;
    (2) How we use our residual functional capacity assessment to 
determine if you can still do your past relevant work or other work;
    (3) How we consider the vocational factors of age, education, and 
work experience;
    (4) What we mean by ``work which exists in the national economy'';
    (5) How we consider the exertional, nonexertional, and skill 
requirements of work, and when we will consider the limitations or 
restrictions that result from your impairment(s) and related symptoms 
to be exertional,

[[Page 39910]]

nonexertional, or a combination of both; and
    (6) How we use the Medical-Vocational Guidelines in appendix 2 of 
this subpart.
* * * * *
    3. Amend Sec. 404.1505, paragraph (a), by revising the second 
sentence, removing the third sentence, redesignating the fourth 
sentence as the last sentence, and adding four new sentences after the 
second sentence to read as follows:


Sec. 404.1505  Basic definition of disability.

    (a) * * * To meet this definition, you must have a severe 
impairment(s) that makes you unable to do your past relevant work (see 
Sec. 404.1560(b)) or any other substantial gainful work that exists in 
the national economy. If your severe impairment(s) does not meet or 
medically equal a listing in appendix 1, we will assess your residual 
functional capacity as provided in Secs. 404.1520 and 404.1545. (See 
Secs. 404.1520(g)(2) and 404.1562 for an exception to this rule.) We 
will use this residual functional capacity assessment to determine if 
you can do your past relevant work. If we find that you cannot do your 
past relevant work, we will use the same residual functional capacity 
assessment and your vocational factors of age, education, and work 
experience to determine if you can do other work. * * *
* * * * *
    4. Amend Sec. 404.1512 by:
    a. Revising the section heading;
    b. In paragraph (c), removing ``also'' from the second sentence, 
redesignating the second sentence as the last sentence, and adding one 
new sentence after the first sentence; and
    c. Adding paragraph (g).
    The additions and revisions are to read as follows:


Sec. 404.1512  Evidence.

* * * * *
    (c) Your responsibility. * * * You must provide evidence showing 
how your impairment(s) affects your functioning during the time you say 
that you are disabled, and any other information that we need to decide 
your case. * * *
* * * * *
    (g) Other work. In order to determine under Sec. 404.1520(g) that 
you are able to make an adjustment to other work, we must provide 
evidence about the existence of work in the national economy that you 
can do (see Secs. 404.1560 through 404.1569a), given your residual 
functional capacity (which we have already assessed, as described in 
Sec. 404.1520(e)), age, education, and work experience.
    5. Amend Sec. 404.1520 by revising paragraph (a), by redesignating 
paragraphs (e) and (f) as paragraphs (f) and (g), by revising newly 
redesignated (f) and (g), and by adding a new paragraph (e) to read as 
follows:


Sec. 404.1520  Evaluation of disability in general.

    (a) General--(1) Purpose of this section. This section explains the 
five-step sequential evaluation process we use to decide whether you 
are disabled, as defined in Sec. 404.1505.
    (2) Applicability of these rules. These rules apply to you if you 
file an application for a period of disability or disability insurance 
benefits (or both) or for child's insurance benefits based on 
disability. They also apply if you file an application for widow's or 
widower's benefits based on disability for months after December 1990. 
See Sec. 404.1505(a).
    (3) Evidence considered. We will consider all evidence in your case 
record when we make a determination or decision whether you are 
disabled.
    (4) The five-step sequential evaluation process. The sequential 
evaluation process is a series of five ``steps'' that we follow in a 
set order. If we can find that you are disabled or not disabled at a 
step, we make our determination or decision and we do not go on to the 
next step. If we cannot find that you are disabled or not disabled at a 
step, we go on to the next step. Before we go from step three to step 
four, we assess your residual functional capacity. See paragraph (e) of 
this section. We use this residual functional capacity assessment at 
both step four and step five when we evaluate your claim at these 
steps. These are the five steps we follow:
    (i) At the first step, we consider your work activity, if any. If 
you are doing substantial gainful activity, we will find that you are 
not disabled. See paragraph (b) of this section.
    (ii) At the second step, we consider the medical severity of your 
impairment(s). If you do not have a severe medically determinable 
physical or mental impairment that meets the duration requirement in 
Sec. 404.1509, or a combination of impairments that is severe and meets 
the duration requirement, we will find that you are not disabled. See 
paragraph (c) of this section.
    (iii) At the third step, we also consider the medical severity of 
your impairment(s). If you have an impairment(s) that meets or equals 
one of our listings in appendix 1 of this subpart and meets the 
duration requirement, we will find that you are disabled. See paragraph 
(d) of this section.
    (iv) At the fourth step, we consider our assessment of your 
residual functional capacity and your past relevant work. If you can 
still do your past relevant work, we will find that you are not 
disabled. See paragraph (f) of this section.
    (v) At the fifth and last step, we consider our assessment of your 
residual functional capacity and your age, education, and work 
experience to see if you can make an adjustment to other work. If you 
can make an adjustment to other work, we will find that you are not 
disabled. If you cannot make an adjustment to other work, we will find 
that you are disabled. See paragraph (g) of this section.
    (5) When you are already receiving disability benefits. If you are 
already receiving disability benefits, we will use a different 
sequential evaluation process to decide whether you continue to be 
disabled. We explain this process in Sec. 404.1594(f).
* * * * *
    (e) When your impairment(s) does not meet or equal a listed 
impairment. If your impairment(s) does not meet or equal a listed 
impairment, we will assess and make a finding about your residual 
functional capacity based on all the relevant medical and other 
evidence in your case record, as explained in Sec. 404.1545. (See 
paragraph (g)(2) of this section and Sec. 404.1562 for an exception to 
this rule.) We use our residual functional capacity assessment at the 
fourth step of the sequential evaluation process to determine if you 
can do your past relevant work (paragraph (f) of this section) and at 
the fifth step of the sequential evaluation process (if the evaluation 
proceeds to this step) to determine if you can do other work (paragraph 
(g) of this section).
    (f) Your impairment(s) must prevent you from doing your past 
relevant work. If we cannot make a determination or decision at the 
first three steps of the sequential evaluation process, we will compare 
our residual functional capacity assessment, which we made under 
paragraph (e) of this section, with the physical and mental demands of 
your past relevant work. See Sec. 404.1560(b). If you can still do this 
kind of work, we will find that you are not disabled.
    (g) Your impairment(s) must prevent you from making an adjustment 
to other work. (1) If we find that you cannot do your past relevant 
work because you have a severe impairment(s) (or you do not have any 
past relevant work), we will consider the same residual

[[Page 39911]]

functional capacity assessment we made under paragraph (e) of this 
section, together with your vocational factors (your age, education, 
and work experience) to determine if you can make an adjustment to 
other work. If you can make an adjustment to other work, we will find 
you not disabled. If you cannot, we will find you disabled.
    (2) We use different rules if you meet one of the two special 
medical-vocational profiles described in Sec. 404.1562. If you meet one 
of those profiles, we will find that you cannot make an adjustment to 
other work, and that you are disabled.
    6. Amend Sec. 404.1545 by revising revising paragraph (a) to read 
as follows:


Sec. 404.1545  Your residual functional capacity.

    (a) General--(1) Residual functional capacity assessment. Your 
impairment(s), and any related symptoms, such as pain, may cause 
physical and mental limitations that affect what you can do in a work 
setting. Your residual functional capacity is the most you can still do 
despite your limitations. We will assess your residual functional 
capacity based on all the relevant evidence in your case record. See 
Sec. 404.1546.
    (2) If you have more than one impairment. We will consider all of 
your impairments of which we are aware, including your medically 
determinable impairments that are not ``severe,'' as explained in 
Secs. 404.1520(c), 404.1521, and 404.1523, when we assess your residual 
functional capacity. See paragraph (e) of this section.
    (3) Evidence we use to assess your residual functional capacity. We 
will assess your residual functional capacity based on all of the 
relevant medical and other evidence. In general, you are responsible 
for providing the evidence we will use to make a finding about your 
residual functional capacity. See Sec. 404.1512(c). However, before we 
make a determination that you are not disabled, we are responsible for 
making every reasonable effort to develop your complete medical 
history, including arranging for a consultative examination(s) if 
necessary. See Secs. 404.1512(d) through (f). We will consider any 
statements about what you can still do that have been provided by 
medical sources, whether or not they are based on formal medical 
examinations. See Sec. 404.1513. We will also consider descriptions and 
observations of your limitations from your impairment(s), including 
limitations that result from your symptoms, such as pain, provided by 
you, your family, neighbors, friends, or other persons. See paragraph 
(e) of this section and Sec. 404.1529.
    (4) What we will consider in assessing residual functional 
capacity. When we assess your residual functional capacity, we will 
consider your ability to meet the physical, mental, sensory, and other 
requirements of work, as described in paragraphs (b), (c), and (d) of 
this section.
    (5) How we will use our residual functional capacity assessment.
    (i) We will first use our residual functional capacity assessment 
at step four of the sequential evaluation process to decide if you can 
do your past relevant work. See Secs. 404.1520(f) and 404.1560(b).
    (ii) If we find that you cannot do your past relevant work (or you 
do not have any past relevant work), we will use the same assessment of 
your residual functional capacity at step five of the sequential 
evaluation process to decide if you can make an adjustment to other 
work that exists in the national economy. See Secs. 404.1520(g) and 
404.1566. At this step, we will not use our assessment of your residual 
functional capacity alone to decide if you are disabled. We will use 
the guidelines in Secs. 404.1560 through 404.1569a, and consider our 
residual functional capacity assessment together with the information 
about your vocational background to make our disability determination 
or decision. For our rules on residual functional capacity assessment 
in deciding whether your disability continues or ends, see 
Sec. 404.1594.
* * * * *
    7. Revise Sec. 404.1546 to read as follows:


Sec. 404.1546  Responsibility for assessing your residual functional 
capacity.

    We are responsible for assessing your residual functional capacity.
    (a) Responsibility for assessing residual functional capacity at 
the State agency. When a State agency makes the disability 
determination, a State agency medical or psychological consultant(s) is 
responsible for assessing your residual functional capacity.
    (b) Responsibility for assessing residual functional capacity in 
the disability hearings process. If your case involves a disability 
hearing under Sec. 404.914, a disability hearing officer is responsible 
for assessing your residual functional capacity. However, if the 
disability hearing officer's reconsidered determination is changed 
under Sec. 404.918, the Associate Commissioner for Disability or his or 
her delegate is responsible for assessing your residual functional 
capacity.
    (c) Responsibility for assessing residual functional capacity at 
the administrative law judge hearing or Appeals Council level. An 
administrative law judge or the administrative appeals judge at the 
Appeals Council (when the Appeals Council makes a decision) is 
responsible for assessing your residual functional capacity.
    8. Amend Sec. 404.1560 by revising the section heading and 
paragraphs (a), (b), and (c) to read as follows:


Sec. 404.1560  When we will consider your vocational background.

    (a) General. If you are applying for a period of disability, or 
disability insurance benefits as a disabled worker, or child's 
insurance benefits based on disability which began before age 22, or 
widow's or widower's benefits based on disability for months after 
December 1990, and we cannot decide whether you are disabled at one of 
the first three steps of the sequential evaluation process (see 
Sec. 404.1520), we will consider your residual functional capacity 
together with your vocational background.
    (b) Past relevant work. We will first compare our assessment of 
your residual functional capacity with the physical and mental demands 
of your past relevant work.
    (1) Definition of past relevant work. Past relevant work is work 
that you have done within the past 15 years, that was substantial 
gainful activity, and that lasted long enough for you to learn to do 
it. See Sec. 404.1565(a).
    (2) Determining whether you can do your past relevant work. We will 
ask you for information about work you have done in the past. We may 
also ask other people who know about your work. See Sec. 404.1565(b). 
We may use the services of vocational experts or vocational 
specialists, or other resources, such as the Dictionary of Occupational 
Titles and its companion volumes and supplements, published by the 
Department of Labor, to obtain information we need to determine whether 
you can do your past relevant work, given your residual functional 
capacity. For example, we may use the Dictionary of Occupational 
Titles, vocational experts, or vocational specialists to determine how 
a job you did is usually performed in the national economy.
    (3) If you can do your past relevant work. If we find that you have 
the residual functional capacity to do your past relevant work, we will 
determine that you are not disabled. We will not consider your 
vocational factors of age, education, and work experience.

[[Page 39912]]

    (c) Other work. (1) If we find that you can no longer do your past 
relevant work, we will use the same residual functional capacity 
assessment we used to decide if you could do your past relevant work 
when we decide if you can do other work. We will look at your ability 
to do other work by considering your residual functional capacity and 
your vocational factors of age, education, and work experience. Any 
work (jobs) that you can do must exist in significant numbers in the 
national economy (either in the region where you live or in several 
regions in the country).
    (2) In order to support a finding that you are not disabled at this 
fifth step of the sequential evaluation process, we are responsible for 
providing evidence that demonstrates that other work exists in 
significant numbers in the national economy that you can do, given your 
residual functional capacity and vocational factors. We are not 
responsible for providing additional evidence about your residual 
functional capacity because we will use the same residual functional 
capacity assessment that we used to determine if you can do your past 
relevant work.


Sec. 404.1561  [Removed]

    9. Remove Sec. 404.1561.
    10. Revise Sec. 404.1562 to read as follows:


Sec. 404.1562  Medical-vocational profiles showing an inability to make 
an adjustment to other work.

    (a) If you have done only arduous unskilled physical labor. If you 
have no more than a marginal education (see Sec. 404.1564) and work 
experience of 35 years or more during which you did only arduous 
unskilled physical labor, and you are not working and are no longer 
able to do this kind of work because of a severe impairment(s) (see 
Secs. 404.1520(c), 404.1521, and 404.1523), we will consider you unable 
to do lighter work, and therefore, disabled.
    Example to paragraph (a): B is a 58-year-old miner with a fourth 
grade education who has a lifelong history of unskilled arduous 
physical labor. B says that he is disabled because of arthritis of the 
spine, hips, and knees, and other impairments. Medical evidence shows a 
``severe'' combination of impairments that prevents B from performing 
his past relevant work. Under these circumstances, we will find that B 
is disabled.
    (b) If you are at least 55 years old, have no more than a limited 
education, and have no past relevant work experience. If you have a 
severe, medically determinable impairment(s) (see Secs. 404.1520(c), 
404.1521, and 404.1523), are of advanced age (age 55 or older, see 
Sec. 404.1563), have a limited education or less (see Sec. 404.1564), 
and have no past relevant work experience (see Sec. 404.1565), we will 
find you disabled. If the evidence shows that you meet this profile, we 
will not need to assess your residual functional capacity or consider 
the rules in appendix 2 to this subpart.
    11. Amend Sec. 404.1563 by revising the second sentence of 
paragraph (a) and adding a new sentence after the revised second 
sentence to read as follows:


Sec. 404.1563  Your age as a vocational factor.

    (a) General. * * * When we decide whether you are disabled under 
Sec. 404.1520(g)(1), we will consider your chronological age in 
combination with your residual functional capacity, education, and work 
experience. We will not consider your ability to adjust to other work 
on the basis of your age alone. * * *
* * * * *
    12. Amend Sec. 404.1569a by removing the seventh sentence of 
paragraph (a), redesignating the eighth sentence as the last sentence, 
and adding 3 new sentences after the sixth sentence to read as follows:


Sec. 404.1569a  Exertional and nonexertional limitations.

    (a) General. * * * When we decide whether you can do your past 
relevant work (see Secs. 404.1520(f) and 404.1594(f)(7)), we will 
compare our assessment of your residual functional capacity with the 
demands of your past relevant work. If you cannot do your past relevant 
work, we will use the same residual functional capacity assessment 
along with your age, education, and work experience to decide if you 
can adjust to other work. See Secs. 404.1520(g) and 404.1594(f)(8). * * 
*
* * * * *
    13. Amend Sec. 404.1594 by revising the first sentence of paragraph 
(f)(7) to read as follows:


Sec. 404.1594  How we will determine whether your disability continues 
or ends.

* * * * *
    (f) * * *
* * * * *
    (7) If your impairment(s) is severe, we will assess your current 
ability to do substantial gainful activity in accordance with 
Sec. 404.1560. * * *
* * * * *
    14. Amend Sec. 203.00 in appendix 2 to subpart P of part 404 by 
revising the section heading, revising the third sentence of paragraph 
(b), and adding a new fourth sentence to read as follows:

Appendix 2 To Subpart P of Part 404--Medical-Vocational Guidelines

* * * * *


Sec. 203.00  Maximum sustained work capability limited to medium work 
as a result of severe medically determinable impairment(s).

* * * * *
    (b) * * * However, we will find that an individual who (1) has a 
marginal education, (2) has work experience of 35 years or more during 
which he or she did only arduous unskilled physical labor, (3) is not 
working, and (4) is no longer able to do this kind of work because of a 
severe impairment(s) is disabled, even though the individual is able to 
do medium work. See Sec. 404.1562(a) in this subpart and 
Sec. 416.962(a) in subpart I of part 416.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--[Amended]

    15. The authority citation for subpart I of part 416 continues to 
read as follows:

    Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and 
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 
1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c) 
and 5, 6(c)-(e), 14(a) and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 
1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).

    16. Amend Sec. 416.901 by revising paragraph (j) to read as 
follows:


Sec. 416.901  Scope of subpart.

* * * * *
    (j) Our rules on vocational considerations are in Secs. 416.960 
through 416.969a. We explain in these rules--
    (1) When we must consider vocational factors along with the medical 
evidence;
    (2) How we use our residual functional capacity assessment to 
determine if you can still do your past relevant work or other work;
    (3) How we consider the vocational factors of age, education, and 
work experience;
    (4) What we mean by ``work which exists in the national economy'';
    (5) How we consider the exertional, nonexertional, and skill 
requirements of work, and when we will consider the limitations or 
restrictions that result from your impairment(s) and related symptoms 
to be exertional, nonexertional, or a combination of both; and
    (6) How we use the Medical-Vocational Guidelines in appendix 2 of 
subpart P of part 404 of this chapter.
* * * * *

[[Page 39913]]

    17. Amend Sec. 416.905, paragraph (a), by revising the second 
sentence, removing the third sentence, and adding four new sentences 
after the second sentence to read as follows:


Sec. 416.905  Basic definition of disability for adults.

    (a) * * * To meet this definition, you must have a severe 
impairment(s) that makes you unable to do your past relevant work (see 
Sec. 416.960(b)) or any other substantial gainful work that exists in 
the national economy. If your severe impairment(s) does not meet or 
medically equal a listing in appendix 1 to subpart P of part 404 of 
this chapter, we will assess your residual functional capacity as 
provided in Secs. 416.920 and 416.945. (See Secs. 416.920(g)(2) and 
416.962 for an exception to this rule.) We will use this residual 
functional capacity assessment to determine if you can do your past 
relevant work. If we find that you cannot do your past relevant work, 
we will use the same residual functional capacity assessment and your 
vocational factors of age, education, and work experience to determine 
if you can do other work. * * *
* * * * *
    18. Amend Sec. 416.912 by:
    a. Revising the section heading;
    b. In paragraph (c), redesignating the second sentence as the last 
sentence and by adding a new sentence after the first sentence; and
    c. Adding paragraph (g). The revisions and additions are to read as 
follows:


Sec. 416.912  Evidence.

* * * * *
    (c) Your responsibility. * * * You must provide evidence showing 
how your impairment(s) affects your functioning during the time you say 
that you are disabled, and any other information that we need to decide 
your case. * * *
* * * * *
    (g) Other work. In order to determine under Sec. 416.920(g) that 
you are able to make an adjustment to other work, we must provide 
evidence about the existence of work in the national economy that you 
can do (see Secs. 404.1560 through 404.1569a), given your residual 
functional capacity (which we have already assessed, as described in 
Sec. 416.920(e)), age, education, and work experience.
    19. Amend Sec. 416.920 by revising paragraph (a), by redesignating 
paragraphs (e) and (f) as paragraphs (f) and (g), by revising newly 
redesignated (f) and (g), and by adding a new paragraph (e) to read as 
follows:


Sec. 416.920  Evaluation of disability of adults, in general.

    (a) General--(1) Purpose of this section. This section explains the 
five-step sequential evaluation process we use to decide whether you 
are disabled, as defined in Sec. 416.905.
    (2) Applicability of these rules. These rules apply to you if you 
are age 18 or older and you file an application for Supplemental 
Security Income disability benefits.
    (3) Evidence considered. We will consider all evidence in your case 
record when we make a determination or decision whether you are 
disabled.
    (4) The five-step sequential evaluation process. The sequential 
evaluation process is a series of five ``steps'' that we follow in a 
set order. If we can find that you are disabled or not disabled at a 
step, we make our determination or decision and we do not go on to the 
next step. If we cannot find that you are disabled or not disabled at a 
step, we go on to the next step. Before we go from step three to step 
four, we assess your residual functional capacity. See paragraph (e) of 
this section. We use this residual functional capacity assessment at 
both step four and at step five when we evaluate your claim at these 
steps. These are the five steps we follow:
    (i) At the first step, we consider your work activity, if any. If 
you are doing substantial gainful activity, we will find that you are 
not disabled. See paragraph (b) of this section.
    (ii) At the second step, we consider the medical severity of your 
impairment(s). If you do not have a severe medically determinable 
physical or mental impairment that meets the duration requirement in 
Sec. 416.909, or a combination of impairments that is severe and meets 
the duration requirement, we will find that you are not disabled. See 
paragraph (c) of this section.
    (iii) At the third step, we also consider the medical severity of 
your impairment(s). If you have an impairment(s) that meets or equals 
one of our listings in appendix 1 to subpart P of part 404 of this 
chapter and meets the duration requirement, we will find that you are 
disabled. See paragraph (d) of this section.
    (iv) At the fourth step, we consider our assesment of your residual 
functional capacity and your past relevant work. If you can still do 
your past relevant work, we will find that you are not disabled. See 
paragraph (f) of this section.
    (v) At the fifth and last step, we consider our assessment of your 
residual functional capacity and your age, education, and work 
experience to see if you can make an adjustment to other work. If you 
can make an adjustment to other work, we will find that you are not 
disabled. If you cannot make an adjustment to other work, we will find 
that you are disabled. See paragraph (g) of this section.
    (5) When you are already receiving benefits. If you are already 
receiving disability benefits, we will use a different sequential 
evaluation process to decide whether you continue to be disabled. We 
explain this process in Sec. 416.994(b)(5).
* * * * *
    (e) When your impairment(s) does not meet or equal a listed 
impairment. If your impairment(s) does not meet or equal a listed 
impairment, we will assess and make a finding about your residual 
functional capacity based on all the relevant medical and other 
evidence in your case record, as explained in Sec. 416.945. (See 
paragraph (g)(2) of this section and Sec. 416.962 for an exception to 
this rule.) We use our residual functional capacity assessment at the 
fourth step of the sequential evaluation process to determine if you 
can do your past relevant work (paragraph (f) of this section) and at 
the fifth step of the sequential evaluation process (if the evaluation 
proceeds to this step) to determine if you can do other work (paragraph 
(g) of this section).
    (f) Your impairment(s) must prevent you from doing your past 
relevant work. If we cannot make a determination or decision at the 
first three steps of the sequential evaluation process, we will compare 
our residual functional capacity assessment, which we made under 
paragraph (e) of this section, with the physical and mental demands of 
your past relevant work. See Sec. 416.960(b). If you can still do this 
kind of work, we will find that you are not disabled.
    (g) Your impairment(s) must prevent you from making an adjustment 
to other work. (1) If we find that you cannot do your past relevant 
work because you have a severe impairment(s) (or you do not have any 
past relevant work), we will consider the same residual functional 
capacity assessment we made under paragraph (e) of this section, 
together with your vocational factors (your age, education, and work 
experience) to determine if you can make an adjustment to other work. 
If you can make an adjustment to other work, we will find you not 
disabled. If you cannot, we will find you disabled.
    (2) We use different rules if you meet one of the two special 
medical-vocational profiles described in Sec. 416.962. If you meet one 
of those

[[Page 39914]]

profiles, we will find that you cannot make an adjustment to other 
work, and that you are disabled.
    20. Amend Sec. 416.945 by revising paragraph (a) to read as 
follows:


Sec. 416.945  Your residual functional capacity.

    (a) General--(1) Residual functional capacity assessment. Your 
impairment(s), and any related symptoms, such as pain, may cause 
physical and mental limitations that affect what you can do in a work 
setting. Your residual functional capacity is the most you can still do 
despite your limitations. We will assess your residual functional 
capacity based on all the relevant evidence in your case record. See 
Sec. 416.946.
    (2) If you have more than one impairment. We will consider all of 
your impairments of which we are aware, including your medically 
determinable impairments that are not ``severe,'' as explained in 
Secs. 416.920(c), 416.921, and 416.923, when we assess your residual 
functional capacity. See paragraph (e) of this section.
    (3) Evidence we use to assess your residual functional capacity. We 
will assess your residual functional capacity based on all of the 
relevant medical and other evidence. In general, you are responsible 
for providing the evidence we will use to make a finding about your 
residual functional capacity. See Sec. 416.912(c). However, before we 
make a determination that you are not disabled, we are responsible for 
making every reasonable effort to develop your complete medical 
history, including arranging for a consultative examination(s) if 
necessary. See Secs. 416.912(d) through (f). We will consider any 
statements about what you can still do that have been provided by 
medical sources, whether or not they are based on formal medical 
examinations. See Sec. 416.913. We will also consider descriptions and 
observations of your limitations from your impairment(s), including 
limitations that result from your symptoms, such as pain, provided by 
you, your family, neighbors, friends, or other persons. See paragraph 
(e) of this section and Sec. 416.929.
    (4) What we will consider in assessing residual functional 
capacity. When we assess your residual functional capacity, we will 
consider your ability to meet the physical, mental, sensory, and other 
requirements of work, as described in paragraphs (b), (c), and (d) of 
this section.
    (5) How we will use our residual functional capacity assessment. 
(i) We will first use our residual functional capacity assessment at 
step four of the sequential evaluation process to decide if you can do 
your past relevant work. See 416.920(f) and 416.960(b).
    (ii) If we find that you cannot do your past relevant work (or you 
do not have any past relevant work), we will use the same assessment of 
your residual functional capacity at step five of the sequential 
evaluation process to decide if you can make an adjustment to other 
work that exists in the national economy. See Secs. 416.920(g) and 
416.966. At this step, we will not use our assessment of your residual 
functional capacity alone to decide if you are disabled. We will use 
the guidelines in Secs. 416.960 through 416.969a, and consider your 
residual functional capacity together with the information about your 
vocational background to make our disability determination or decision. 
For our rules on residual functional capacity assessment in deciding 
whether your disability continues or ends, see Sec. 416.994.
* * * * *
    21. Revise Sec. 416.946 to read as follows:


Sec. 416.946  Responsibility for assessing your residual functional 
capacity.

    We are responsible for assessing your residual functional capacity.
    (a) Responsibility for assessing residual functional capacity at 
the State agency. When a State agency makes the disability 
determination, a State agency medical or psychological consultant(s) is 
responsible for assessing your residual functional capacity.
    (b) Responsibility for assessing residual functional capacity in 
the disability hearings process. If your case involves a disability 
hearing under Sec. 416.1414, a disability hearing officer is 
responsible for assessing your residual functional capacity. However, 
if the disability hearing officer's reconsidered determination is 
changed under Sec. 416.1418, the Associate Commissioner for Disability 
or his or her delegate is responsible for assessing your residual 
functional capacity.
    (c) Responsibility for assessing residual functional capacity at 
the administrative law judge hearing or Appeals Council level. An 
administrative law judge or the administrative appeals judge at the 
Appeals Council (when the Appeals Council makes a decision) is 
responsible for assessing your residual functional capacity.
    22. Revise Sec. 416.960 to read as follows:


Sec. 416.960  When we will consider your vocational background.

    (a) General. If you are age 18 or older and applying for 
supplemental security income benefits based on disability, and we 
cannot decide whether you are disabled at one of the first three steps 
of the sequential evaluation process (see Sec. 416.920), we will 
consider your residual functional capacity together with your 
vocational background.
    (b) Past relevant work. We will first compare our assessment of 
your residual functional capacity with the physical and mental demands 
of your past relevant work.
    (1) Definition of past relevant work. Past relevant work is work 
that you have done within the past 15 years, that was substantial 
gainful activity, and that lasted long enough for you to learn to do 
it. See Sec. 416.965(a).
    (2) Determining whether you can do your past relevant work. We will 
ask you for information about work you have done in the past. We may 
also ask other people who know about your work. See Sec. 416.965(b). We 
may use the services of vocational experts or vocational specialists, 
or other resources, such as the Dictionary of Occupational Titles and 
its companion volumes and supplements, published by the Department of 
Labor, to obtain information we need to determine whether you can do 
your past relevant work, given your residual functional capacity. For 
example, we may use the Dictionary of Occupational Titles, vocational 
experts, or vocational specialists to determine how a job you did is 
usually performed in the national economy.
    (3) If you can do your past relevant work. If we find that you have 
the residual functional capacity to do your past relevant work, we will 
determine that you are not disabled. We will not consider your 
vocational factors of age, education, and work experience.
    (c) Other work. (1) If we find that you can no longer do your past 
relevant work, we will use the same residual functional capacity 
assessment we used to decide if you could do your past relevant work 
when we decide if you can do other work. We will look at your ability 
to do other work by considering your residual functional capacity and 
your vocational factors of age, education, and work experience. Any 
work (jobs) that you can do must exist in significant numbers in the 
national economy (either in the region where you live or in several 
regions in the country).
    (2) In order to support a finding that you are not disabled at this 
fifth step of the sequential evaluation process, we are responsible for 
providing evidence

[[Page 39915]]

that demonstrates that other work exists in significant numbers in the 
national economy that you can do, given your residual functional 
capacity and vocational factors. We are not responsible for providing 
additional evidence about your residual functional capacity because we 
will use the same residual functional capacity assessment that we used 
to determine if you can do your past relevant work.


Sec. 416.961  [Removed]

    23. Remove Sec. 416.961.
    24. Revise Sec. 416.962 to read as follows:


Sec. 416.962  Medical-vocational profiles showing an inability to make 
an adjustment to other work.

    (a) If you have done only arduous unskilled physical labor. If you 
have no more than a marginal education (see Sec. 416.964) and work 
experience of 35 years or more during which you did only arduous 
unskilled physical labor, and you are not working and are no longer 
able to do this kind of work because of a severe impairment(s) (see 
Secs. 416.920(c), 416.921, and 416.923), we will consider you unable to 
do lighter work, and therefore, disabled.
    Example to paragraph (a): B is a 58-year-old miner with a fourth 
grade education who has a lifelong history of unskilled arduous 
physical labor. B says that he is disabled because of arthritis of the 
spine, hips, and knees, and other impairments. Medical evidence shows a 
``severe'' combination of impairments that prevents B from performing 
his past relevant work. Under these circumstances, we will find that B 
is disabled.
    (b) If you are at least 55 years old, have no more than a limited 
education, and have no past relevant work experience. If you have a 
severe, medically determinable impairment(s) (see Secs. 416.920(c), 
416.921, and 416.923), are of advanced age (age 55 or older, see 
Sec. 416.963), have a limited education or less (see Sec. 416.964), and 
have no past relevant work experience (see Sec. 416.965), we will find 
you disabled. If the evidence shows that you meet this profile, we will 
not need to assess your residual functional capacity or consider the 
rules in appendix 2 to subpart P of part 404 of this chapter.
    25. Amend Sec. 416.963 by revising the second sentence of paragraph 
(a) and adding a new sentence after the newly revised second sentence 
to read as follows:


Sec. 416.963  Your age as a vocational factor.

    (a) General. * * * When we decide whether you are disabled under 
Sec. 416.920(g)(1), we will consider your chronological age in 
combination with your residual functional capacity, education, and work 
experience. We will not consider your ability to adjust to other work 
on the basis of your age alone. * * *
* * * * *
    26. Amend Sec. 416.969a by removing the seventh sentence of 
paragraph (a), redesignating the eighth sentence as the last sentence, 
and adding three new sentences after the sixth sentence to read as 
follows:


Sec. 416.969a  Exertional and nonexertional limitations.

    (a) General. * * * When we decide whether you can do your past 
relevant work (see Secs. 416.920(f) and 416.994(b)(5)(vi)), we will 
compare our assessment of your residual functional capacity with the 
demands of your past relevant work. If you cannot do your past relevant 
work, we will use the same residual functional capacity assessment 
along with your age, education, and work experience to decide if you 
can adjust to other work. See Secs. 416.920(g) and 416.994(b)(5)(vii). 
* * *
* * * * *
    27. Amend Sec. 416.994 by revising the first sentence of paragraph 
(b)(5)(vi) to read as follows:


Sec. 416.994  How we will determine whether your disability continues 
or ends, disabled adults.

* * * * *
    (b) * * *
    (5) * * *
* * * * *
    (vi) Step 6. If your impairment(s) is severe, we will assess your 
current ability to do substantial gainful activity in accordance with 
Sec. 416.960. * * *
* * * * *
[FR Doc. 02-13901 Filed 6-10-02; 8:45 am]
BILLING CODE 4191-02-P