[Federal Register Volume 68, Number 165 (Tuesday, August 26, 2003)]
[Rules and Regulations]
[Pages 51153-51167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21610]


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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: Final rules.

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SUMMARY: For purposes of this document, ``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.''
    In this final rule we 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; clarify that we may use vocational experts (VEs), 
vocational specialists (VSs), or other resources to obtain evidence we 
need to help us determine whether your impairment(s) prevents 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: These rules will be effective September 25, 2003.

FOR FURTHER INFORMATION CONTACT: Martin Sussman, Regulations Officer, 
Social Security Administration, 100 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, 410-965-1767 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 Web site,

[[Page 51154]]

Social Security Online, at http://www.socialsecurity.gov.
    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 Social Security Online, http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

What Programs Do These Regulations Affect?

    These regulations affect disability determinations and decisions we 
make for you under title II and title XVI of the Social Security Act 
(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 regulations 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:
    [sbull] Workers insured under the Act,
    [sbull] Children of insured workers, and
    [sbull] 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 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 Sec. Sec.  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 the work you are doing is 
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 Sec. Sec.  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 Making, and Why?

    We are 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 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 revisions 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 
your 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 Sec. Sec.  404.1512 and 416.912 of our 
regulations, you

[[Page 51155]]

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, and making every reasonable effort to get 
medical reports from your own medical sources. We are responsible for 
helping you produce evidence that shows whether you are disabled.
    Our administrative process was designed to be nonadversarial. (See 
Sec. Sec.  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 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, 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 Making?

Sections 404.1501 and 416.901--Scope of Subpart

    The second sentence of Sec. Sec.  404.1501(g) and 416.901(j) is 
very long, and it includes a number of clauses. We are clarifying this 
sentence by numbering and listing the clauses and by revising some 
language. This includes clarifying, in new paragraphs (g)(2) and 
(j)(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

    We are revising the second sentence, deleting the third sentence in 
Sec. Sec.  404.1505(a) and 416.905(a), redesignating the fourth 
sentence as the last sentence in Sec.  404.1505(a) and adding four new 
sentences after the second sentence. The revisions in the second 
sentence 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 Social Security Ruling (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 previous third sentence explained 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 
are replacing this sentence (and the fourth sentence in Sec.  
404.1505(a)) with four new sentences that provide more detail about 
this policy, including cross-references to our rules on the sequential 
evaluation process and RFC. They also clarify that we assess RFC once, 
and that we use this assessment at both step 4 and step 5 of the 
sequential evaluation process.

Sections 404.1512 and 416.912--Evidence of Your Impairment

    We are making several revisions in these sections to clarify both 
your responsibility and our responsibility. We are changing the heading 
of these sections from ``Evidence of your impairment'' to ``Evidence'' 
because, as we discuss below, we are adding 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 are making two changes in paragraph (c) to make it clearer. 
These are not substantive changes. First, we are adding a new second 
sentence to paragraph (c) to clarify, consistent with the remainder of 
the paragraph, that we may ask for non-medical information about 
functioning or about other non-medical issues in addition to medical 
information. Second, we are making a slight modification to the 
previous second sentence (now the third sentence) to make it clearer.
    We also are adding a new paragraph (g), ``Other work'' explaining 
our burden at step 5. It explains 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 includes cross-references 
to regulations that explain how we evaluate your ability to do other 
work (Sec. Sec.  404.1560 through 404.1569a and 416.960 through 
416.969a, as appropriate).
    The new paragraph also clarifies, by including the phrase ``make an 
adjustment to other work,'' 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.

[[Page 51156]]

    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, 1978)) 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 now using 
this language in our regulations.

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

    We are revising the language in paragraph (a) of these sections to 
make it clearer. We are dividing it into five separate paragraphs 
((a)(1) through (a)(5)) with headings. We also are modifying the 
previous language to explain more clearly what the five steps of the 
sequential evaluation process are, and to reflect the provisions of new 
paragraph (e), which we discuss below.
    We are adding 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 are adding a new paragraph (e), we are redesignating 
previous paragraphs (e) and (f) as paragraphs (f) and (g). We are also 
revising these paragraphs to make changes consistent with the changes 
we are making to other rules already described. For example, they now 
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.'' Likewise, new paragraph (g) (previous paragraph (f)) clarifies 
that, at step 5, we consider ``the same residual functional capacity 
assessment'' we used at step 4. In new paragraph (f) (previous 
paragraph (e)), we are changing 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 are also making a comparable conforming change to Sec. Sec.  
404.1560(a) and 416.960(a). In the final rules we are adding new cross-
references that were not in the proposed rules. These references are in 
Sec. Sec.  404.1520(a)(4)(iv) and 416.920(a)(4)(iv) (referencing new 
Sec. Sec.  404.1560(b) and 416.960(b)), and in Sec. Sec.  
404.1520(a)(4)(v) and 416.920(a)(4)(v) and Sec. Sec.  404.1520(g) and 
416.920(g) (referencing new Sec. Sec.  404.1560(c) and 416.960(c)).
    We are also revising the language that was in previous paragraph 
(f)(2) (new 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 
making to Sec. Sec.  404.1562 and 416.962 later in this document, we 
explain the second profile and our reasons for including it in the 
regulations. We are also modifying the language that was in previous 
paragraph (f)(2) (new paragraph (g)(2)) to delete the partial 
description of the first special medical-vocational profile because it 
was duplicative of information already contained in Sec. Sec.  404.1562 
and 416.962.
    Finally, we are making a number of minor editorial changes to 
language that was in previous paragraphs (e) and (f) (new paragraphs 
(f) and (g)).

Sections 404.1545 and 416.945--Your Residual Functional Capacity

    To make paragraph (a) easier to understand, we are revising the 
paragraph by breaking it into five numbered paragraphs ((a)(1) through 
(a)(5)) with headings. We also are reorganizing and clarifying some of 
the text.
    In new paragraph (a)(3), ``Evidence we use to assess your residual 
functional capacity,'' we are including a reference to Sec. Sec.  
404.1512(c) or 416.912(c) (as appropriate), which explains 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 new paragraph (a)(5), ``How we will use our residual functional 
capacity assessment,'' we are explaining 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 are making other changes in paragraph (a) to 
clarify our rules. In new paragraph (a)(1), ``Residual functional 
capacity assessment,'' we are adding a sentence to explain that RFC is 
the most you can do despite your limitations. This incorporates 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 are also making a minor change 
to the language that appeared in proposed paragraph (a)(2) to 
incorporate another clarification provided in that SSR. The new 
paragraph explains that, when we assess RFC, we will consider all 
medically determinable impairments of which we are aware, including 
impairments that are not ``severe.''
    New paragraph (a)(3) clarifies the fifth, sixth, and seventh 
sentences of previous 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 make clear that the phrase ``observations by 
your treating and examining physicians or psychologists'', that had 
appeared in previous paragraph (a), includes ``statements about what 
you can still do,'' as discussed in Sec. Sec.  404.1513 and 416.913. 
Second, we clarify that we consider descriptions and observations

[[Page 51157]]

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 previous paragraph (a), we 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 are deleting the entire eighth sentence of 
previous paragraph (a), which could have been misinterpreted to mean 
that we may or may not consider evidence that we already have. Because 
that is not our intent, and because these final rules make clear that 
we consider all relevant medical and nonmedical evidence in the case 
record, we believe this sentence is unnecessary.
    We are revising the last sentence of previous paragraph (a) (now 
the last sentence of new (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 
Sec. Sec.  404.1594 and 416.994, and the new language simply directs 
you to those sections.
    We made a minor editorial change to proposed Sec. Sec.  
404.1545(a)(5)(ii) and 416.945(a)(5)(ii) to clarify that we consider if 
you can make an adjustment to ``any'' other work. This change retains 
language from Sec. Sec.  404.1561 and 416.961, being deleted by these 
rules. In Sec.  416.945(a)(5)(ii), we also made a minor change to the 
next to the last sentence of the proposed rule by adding the word 
``assessment'' to conform it to the language in proposed (and new) 
Sec.  404.1545(a)(5)(ii).
    We are making a number of other editorial changes to the previous 
rule. These changes are intended only to clarify the previous language 
and to reorganize the provisions into a more logical order.

Sections 404.1546 and 416.946-- Responsibility for Assessing and 
Determining Your Residual Functional Capacity

    We are revising the heading of these sections, which were 
previously titled ``Responsibility for assessing and determining 
residual functional capacity.'' to ``Responsibility for assessing your 
residual functional capacity.'' The two words ``and determining'' are 
superfluous. Our assessment is our determination about RFC.
    Because of agency reorganizations, we are changing the title in the 
existing regulations in paragraph (b) of these sections, ``Director of 
the Office of Disability Hearings'' and in the proposed regulations in 
paragraph (b) of these section, ``Associate Commissioner for 
Disability'' to ``Associate Commissioner for Disability 
Determinations'' because this individual or his or her delegate is now 
responsible for assessing residual functional capacity in the 
disability hearing process.
    The other changes we are making in this section are editorial. To 
make the section easier to understand, we are breaking up the previous 
single paragraph into three separate paragraphs that address the 
responsibilities of:
    [sbull] State agency medical and psychological consultants (new 
paragraph (a)),
    [sbull] State agency disability hearing officers (new paragraph 
(b)), and
    [sbull] Administrative law judges and Appeals Council 
administrative appeals judges (new paragraph (c)).
    We are making minor editorial changes to the wording in proposed 
paragraph (c) to make it clearer.

Sections 404.1560 and 416.960--When Your Vocational Background Will Be 
Considered

    We are changing the previous heading, putting it into active voice, 
to make the meaning clearer.
    We are also making changes in paragraphs (a) ``General,'' (b) 
``Past relevant work,'' and (c) ``Other work,'' consistent with the 
changes we are making in other sections, already noted above.
    For clarity, we are revising paragraph (b) by dividing it into 
three paragraphs with headings, designated (b)(1) through (b)(3). We 
are adding a new sentence in new 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 are adding 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.
    In paragraph (b)(2), ``Determining whether you can do your past 
relevant work,'' we are adding new language to 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. The new language indicates 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 Sec. Sec.  404.1565(b) and 416.965(b), and we are 
including a cross-reference to each of those sections, as appropriate, 
in new paragraph(b)(2).
    We also are explaining in new paragraph(b)(2) that we may use the 
services of VEs or VSs, or other resources such as the ``Dictionary of 
Occupational Titles,'' to obtain evidence that we need to help us 
determine whether you can do your past relevant work. 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.
    In response to a public comment, we are making changes to the 
language that appeared in proposed paragraph (b)(2) to clarify the role 
of a VE at step 4 and to clarify that, if we obtain additional evidence 
at step 4, that evidence is used to help our adjudicators decide if an 
individual can do his or her past relevant work.
    We are editing the second sentence of previous paragraph (b), 
making it into two sentences for clarity, and redesignating it as new 
paragraph (b)(3), ``If you can do your past relevant work.'' Based on a 
public comment we received in response to the notice of proposed 
rulemaking, we are also revising proposed paragraph (b)(3) to clarify 
that, in determining whether you have the RFC to do your past relevant 
work, we do not consider whether the past relevant work exists in 
significant numbers in the national economy. In response to this 
comment, we are also making related clarifying changes to proposed 
paragraphs (b)(3) and (c) and to Sec. Sec.  404.1569a and 416.969a.
    We are modifying previous 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 new 
Sec. Sec.  404.1512(g) and 416.912(g)). The modified paragraph also 
makes 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 whether you have the RFC to do past relevant work at step 4, 
a point in our process at which you have the burdens of production and 
persuasion.
    We are also making minor changes to the language that appeared in 
proposed paragraph (c) to conform it with the new language in 
Sec. Sec.  404.1520 and 416.920

[[Page 51158]]

which explains that at step 5 we consider whether you are able to 
``adjust to'' any other work.

Sections 404.1561 and 416.961--Your Ability To Do Work Depends Upon 
Your Residual Functional Capacity

    We are removing these sections because their provisions are 
incorporated into other new and existing rules. We are making 
additional revisions to the language that appeared in proposed rules in 
Sec. Sec.  404.1520(g) and 416.920(g), 404.1545(a)(5)(ii) and 
416.945(a)(5)(ii), and 404.1560(c)(1) and 416.960(c)(1) to better 
reflect the provisions of deleted Sec. Sec.  404.1561 and 416.961.

Sections 404.1562 and 416.962--If You Have Done Only Arduous Unskilled 
Physical Labor

    We are revising and updating the headings of these sections in 
order to reflect changes we are making to their content.
First Medical-Vocational Profile
    Previously, Sec. Sec.  404.1562 and 416.962 described one special 
medical-vocational profile. Under that profile, 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, this 
medical-vocational profile has been in our regulations since 1960 (when 
it was at Sec.  404.1502(c)). However, the language in previous 
Sec. Sec.  404.1562 and 416.962 needed to be updated to be consistent 
with our current rules and policies. For example, the last sentence of 
the paragraph before the example spoke 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 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 Sec. Sec.  404.1568(d)(4) and 416.968(d)(4).
    We therefore are deleting the second and third sentences of the 
previous sections and revising the example. These changes only make the 
rule more consistent with our current policies and will not affect 
anyone whom we would have found disabled under the previous rule. We 
are also changing the occupation title that appeared in the proposed 
example to paragraph (a) from ``miner'' to ``miner's helper'' because 
there are some highly skilled mining occupations that would not meet 
the qualifications for this medical-vocational profile.
    We are designating all the language discussing this first medical-
vocational profile as paragraph (a) of revised Sec. Sec.  404.1562 and 
416.962 in order to distinguish it from the second medical-vocational 
profile in new paragraph (b), discussed below. We also are making 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 are adding to Sec. Sec.  404.1562 and 416.962 a second special 
medical-vocational profile that we have been using since 1975, but that 
has not been in our regulations. We are designating the language 
discussing the second medical-vocational profile as paragraph (b). 
Under this profile, we will find you disabled if you:
    [sbull] Are of ``advanced age'' (i.e., are at least 55 years old);
    [sbull] Have a ``limited'' education or less (i.e., generally, an 
11th grade education or less--see Sec. Sec.  404.1564(b)(3) and 
916.964(b)(3));
    [sbull] Have no past relevant work (i.e., either no work experience 
or no work experience that satisfies our definition of ``past relevant 
work''); and
    [sbull] 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 new rule 
incorporates our longstanding policy interpretation into our 
regulations.
    We also are clarifying 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 readily apparent from the case record, an RFC assessment is 
unnecessary.

Sections 404.1563 and 416.963--Your Age as a Vocational Factor.

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

Sections 404.1569a and 416.969a--Exertional and Nonexertional 
Limitations

    We are deleting the seventh sentence of paragraph (a), ``General,'' 
and adding three new sentences in its place. These changes are 
consistent with other changes discussed above.
    We are making a minor change to proposed Sec. Sec.  404.1569a and 
416.969a at the end of the third new sentence to refer to, ``any other 
work which exists in the national economy.'' We believe that this 
revision, which retains more of the language from these sections prior 
to these amendments, helps clarify that ``other work'', as 
distinguished from a claimant's previous work, must exist in 
significant numbers in the national economy.

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 are revising 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-references. This is necessary due to the 
changes we are making to Sec. Sec.  404.1560 and 416.960 and the 
removal of Sec. Sec.  404.1561 and 416.961.

[[Page 51159]]

Section 203.00, Appendix 2 to Subpart P of Part 404

    As already noted, we are revising the third sentence of section 
203.00(b) to conform to the changes in new Sec. Sec.  404.1562(a) and 
416.962(a).
    Public Comments: We published these regulatory provisions in the 
Federal Register as a Notice of Proposed Rulemaking (NPRM) on June 11, 
2002 (67 FR 39904). We provided the public a 60-day comment period. The 
comment period closed on August 12, 2002. We heard from eight 
commenters in response to this notice. The commenters included 
attorneys, an organization whose members include attorneys and others 
who represent the interest of disabled persons, a State agency that 
makes disability determinations on our behalf, and individuals who did 
not identify a particular affiliation. A summary of the comments we 
received and our responses to the comments are set out below.
    Because some of the comments were detailed and lengthy, we have 
condensed, summarized, or paraphrased them. We have, however, tried to 
summarize the commenters'' views accurately and to respond to all of 
the significant issues raised by the commenters that are within the 
scope of these rules.
    Comment: One commenter expressed concerns about whether the 
proposed revisions would apply to all cases or if they would only apply 
to cases filed after the effective date of the revisions. This 
commenter stated that it would be preferable to apply the new rules 
only to cases filed after the effective date of the revisions.
    Response: These new rules, as stated in DATES, above, will be 
effective 30 days after the date published in the Federal Register. As 
is our usual practice when we amend our regulations, the new rules will 
apply to all administrative determinations and decisions made on or 
after that effective date, regardless of the date on which an 
application was filed.
    Comment: This same commenter stated that although the burden is on 
the claimant to produce evidence to show disability, the 5th Circuit 
Court of Appeals has ruled that the Commissioner has the burden of 
ensuring that evidentiary gaps are filled and the record is complete. 
The commenter stated that, if an administrative law judge (ALJ) is not 
satisfied with the development of the record, he or she should ``reset 
the case'' to complete the record if possible, rather than issue an 
unfavorable decision.
    Response: We believe that our existing regulations (Sec. Sec.  
404.1512(d) and 416.912(d)) and the new rules at Sec. Sec.  
404.1545(a)(3) and 416.945(a)(3) address the commenter's concerns, and 
clearly explain our responsibility to develop the record and to assist 
claimants in obtaining evidence. Before making a determination that an 
individual is not disabled, our adjudicators, including ALJs, will 
develop the individual's complete medical history.
    Comment: One commenter stated that the proposed rules should 
clarify at Sec.  404.1560 that past relevant work must exist in the 
national economy in order to be considered as past relevant work for 
the purpose of denying benefits under the sequential evaluation 
process. He stated that finding an individual can perform past work 
that no longer exists is not in conformity with the Social Security 
Act's requirement that, to be considered gainful employment, work must 
exist in the national economy.
    Response: We do not agree with the commenter's interpretation of 
the Social Security Act. Sections 223(d)(2)(A) and 1614(a)(3)(B) of the 
Act provide that:

    An individual shall be determined to be under a disability only 
if his physical or mental impairment or impairments are of such 
severity that he is not only unable to do his previous work but 
cannot, considering his age, education, and work experience, engage 
in any other kind of substantial gainful work which exists in the 
national economy, regardless of whether such work exists in the 
immediate area in which he lives, or whether a specific job vacancy 
exists for him, or whether he would be hired if he applied for work. 
For purposes of the preceding sentence * * *, ``work which exists in 
the national economy'' means work which exists in significant 
numbers either in the region where such individual lives or in 
several regions of the country.

In this excerpt, the phrase ``which exists in the national economy'' 
relates to ``any other kind of substantial gainful activity'' (i.e., 
work other than an individual's previous work). It does not relate to 
``previous work.'' Thus, the Act does not require that an individual's 
previous work exist in significant numbers in the national economy. 
(See SSR 82-40, ``Titles II and XVI: The Vocational Relevance of the 
Past Work Performed in a Foreign Country.'') Consequently, we do not 
consider job prevalence at step 4 of sequential evaluation. Neither do 
we consider an individual's age, education, and work experience. The 
issue at step 4 is whether or not an individual's impairment(s) 
prevents him or her from being able to perform the job duties of his or 
her past relevant work. If he or she has the residual functional 
capacity to still do his or her past relevant work, we will make a 
finding of not disabled at step 4 and deny the claim whether or not 
that previous work exists in significant numbers in the national 
economy. In response to this comment, we are making additional changes 
in Sec. Sec.  404.1560 and 416.960 to ensure that other members of the 
public do not misunderstand this.
    Comment: One commenter stated that the proposed rules would not be 
a clarification of our rules, but a change. He stated that the proposed 
rules would force claimants to prove at step 4 that they cannot do 
other work (their past job, as performed in the national economy) 
against testimony from a trained VE. He stated that it is not fair that 
the claimant would have the burden of proof at step 4, yet have no 
ability to rebut testimony from a trained expert, and that VE testimony 
and all opinion evidence regarding other work should be limited to step 
5 where the Commissioner has the burden of proof.
    Response: We do not agree that these new rules represent a change 
in policy. Our longstanding policy is that evaluation of ability to do 
past relevant work at step 4 involves two aspects. We will find that a 
claimant is not disabled at this step if he or she retains the physical 
and mental capacity to perform either the functional demands and job 
duties of a particular past relevant job (i.e., the job as the 
individual actually performed it) or the functional demands and job 
duties of the occupation as generally required by employers throughout 
the national economy. (See SSR 82-61: ``Titles II and XVI: Past 
Relevant Work--The Particular Job or the Occupation as Generally 
Performed.'') Thus, evaluation of capacity to do past relevant work as 
generally performed in the national economy is not, as the commenter 
suggests, an assessment of ability to do ``other work'' (i.e., step 5 
of sequential evaluation). In addition, allowing for expert testimony 
on the issue of how work is generally performed in the national economy 
is not unfair. VE testimony can be examined and rebutted at any step of 
sequential evaluation.
    Comment: One commenter, who generally supported the proposed rules, 
recommended that the new rules clarify that adjudicators may obtain VE 
testimony about past relevant work, but that such testimony is not 
required. The commenter also suggested that we clarify that the VE's 
role at step 4 should be limited to explaining how the claimant's past 
relevant work is normally performed in the national economy. The 
commenter stated that the VE should not determine whether

[[Page 51160]]

the claimant's description of past relevant work is credible or whether 
the claimant can perform past relevant work, either as it is normally 
performed in the national economy or as he or she actually previously 
performed it. According to the commenter, it is the administrative law 
judge's, not the VE's, duty to determine whether a claimant can 
continue to perform past work. The commenter also suggested that we 
include a cross-reference to Sec. Sec.  404.1560(c) and 416.960(c) in 
several sections of the regulations that address the concept of ``other 
work.''
    Response: We agree with the suggestion about adding cross-
references and have added them to new Sec.  404.1520(a)(4)(iv) and (v) 
and Sec.  416.920(a)(4)(iv) and (v). We also agree that VE testimony is 
not a requirement at step 4, but that VE testimony may be obtained at 
step 4 to provide evidence to help us determine whether or not an 
individual can do his or her past relevant work. We do not agree that 
the VE is or should be limited to testifying about how an individual's 
past relevant work is normally performed in the national economy. 
Although we agree that the ultimate responsibility for making the 
necessary findings at step 4 rests with our adjudicators, we believe 
that it is appropriate for our adjudicators to consider evidence from a 
VE, VS, or other vocational resource (along with the other evidence in 
the case record) on a broad range of step 4 issues to help them decide 
if an individual can do his or her past relevant work. A VE or VS may 
offer relevant evidence within his or her expertise or knowledge 
concerning the physical and mental demands of a claimant's past 
relevant work, as he or she actually performed it or as it is generally 
performed. Such testimony may be helpful in supplementing or evaluating 
the accuracy of the claimant's description of his past work. In 
addition, a VE or VS may offer expert opinion testimony in response to 
a hypothetical question about whether a person with the physical and 
mental limitations (as determined by our adjudicator) imposed by the 
claimant's medical impairments can meet the demands of the claimant's 
previous work, either as the claimant actually performed it in the past 
or as that work is generally performed. In response to this comment 
about the role of the VE at step 4, we are making additional revisions 
to Sec. Sec.  404.1560(b)(2) and 416.960(b)(2) to clarify our policy in 
this regard.
    Comment: One commenter stated that a VE should not play any role at 
all in the disability process.
    Response: The commenter did not explain why she stated that VEs 
should play no role in the disability claims adjudication process. We 
do not agree, and we made no changes in our longstanding policy based 
on this comment.
    Several of the comments we received were outside the scope of the 
proposed rules. Two commenters asked us to provide additional 
clarification about aspects of step 5 of sequential evaluation that are 
not within the scope of these rules. Another commenter asked about 
claimants being able to record hearings before an ALJ. One commenter 
provided observations relating to her own claim for benefits. Because 
these comments were outside the scope of these rules, we are not 
addressing them.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules do meet the criteria for a significant 
regulatory action under Executive Order 12866, as amended by Executive 
Order 13258. Thus, they were subject to OMB review.

Regulatory Flexibility Act

    We certify that these 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 final rules contain amended reporting requirements at 
Sec. Sec.  404.1560 and 416.960 of the final regulation. The public 
reporting burden is accounted for in the Information Collection Request 
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 form.
    SSA solicited public comment in the notice of proposed rulemaking 
and subsequently received and incorporated suggestions from the public 
that have resulted in revision to these two sections of the regulation. 
As a result, SSA is soliciting comments in the final rule 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. While these rules 
will be effective September 25, 2003, these burdens will not be 
effective until cleared by OMB.
    An Information Collection Request has been submitted to OMB for 
clearance. Comments may be mailed or faxed to the Office of Management 
and Budget and the Social Security Administration at the following 
addresses/fax numbers:

Office of Management and Budget, Attn: OMB Desk Officer for SSA, Rm. 
10235, New Executive Office Building, 725 17th St., NW., Washington, DC 
20503, Fax No. 202-395-6974.
Social Security Administration, Attn: SSA Reports Clearance Officer, 
1338 Annex Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
Fax No. 410-965-6400.

    Comments can be received up to 30 days after publication of this 
notice. To receive a copy of the OMB clearance package, you may call 
the SSA Reports Clearance Officer on 410-965-0454.

(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: May 22, 2003.
Jo Anne B. Barnhart,
Commissioner of Social Security.


0
For the reasons set out in the preamble, we are amending 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:

[[Page 51161]]

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

Subpart P--[Amended]

0
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.


0
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 Sec. Sec.  
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, nonexertional, or a combination of both; and
    (6) How we use the Medical-Vocational Guidelines in appendix 2 of 
this subpart.
* * * * *

0
3. Amend Sec.  404.1505(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 Sec. Sec.  404.1520(e) and 404.1545. 
(See Sec. Sec.  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. * 
* *
* * * * *

0
4. Amend Sec.  404.1512 by revising the section heading, revising 
paragraph (c), and adding a new paragraph (g) to read as follows:


Sec.  404.1512  Evidence.

* * * * *
    (c) Your responsibility. You must provide medical evidence showing 
that you have an impairment(s) and how severe it is during the time you 
say that you are disabled. 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. If we ask you, you must provide evidence about:
    (1) Your age;
    (2) Your education and training;
    (3) Your work experience;
    (4) Your daily activities both before and after the date you say 
that you became disabled;
    (5) Your efforts to work; and
    (6) Any other factors showing how your impairment(s) affects your 
ability to work. In Sec. Sec.  404.1560 through 404.1569, we discuss in 
more detail the evidence we need when we consider vocational factors.
* * * * *
    (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 Sec. Sec.  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.

0
5. Amend Sec.  404.1520 as follows:
0
a. By revising paragraph (a),
0
b. By redesignating paragraphs (e) and (f) as paragraphs (f) and (g),
0
c. By adding a new paragraph (e) and
0
d. By revising newly redesignated paragraphs (f) and (g).
    The revisions and additions 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 and Sec.  404.1560(b).)
    (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

[[Page 51162]]

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 and Sec.  404.1560(c).)
    (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 adjust to 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 any 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. 
(See Sec.  404.1560(c).) 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.

0
6. Amend Sec.  404.1545 by 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 medically determinable impairments of which we are aware, 
including your medically determinable impairments that are not 
``severe,'' as explained in Sec. Sec.  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 developing your complete medical history, including arranging for a 
consultative examination(s) if necessary, and making every reasonable 
effort to help you get medical reports from your own medical sources. 
(See Sec. Sec.  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 Sec. Sec.  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 any other 
work that exists in the national economy. (See Sec. Sec.  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 Sec. Sec.  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.
* * * * *

0
7. Revise Sec.  404.1546 to read as follows:


Sec.  404.1546  Responsibility 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 the Office 
of Disability Determinations 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. If your 
case is at the administrative law judge hearing level under Sec.  
404.929 or at the Appeals Council review level under Sec.  404.967, the 
administrative law judge or the administrative appeals judge at the 
Appeals Council (when the Appeals Council makes a decision) is 
responsible

[[Page 51163]]

for assessing your residual functional capacity.

0
8. Revise Sec.  404.1560 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, as discussed in paragraphs (b) and (c) 
of this section.
    (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 evidence we need to 
help us determine whether you can do your past relevant work, given 
your residual functional capacity. A vocational expert or specialist 
may offer relevant evidence within his or her expertise or knowledge 
concerning the physical and mental demands of a claimant's past 
relevant work, either as the claimant actually performed it or as 
generally performed in the national economy. Such evidence may be 
helpful in supplementing or evaluating the accuracy of the claimant's 
description of his past work. In addition, a vocational expert or 
specialist may offer expert opinion testimony in response to a 
hypothetical question about whether a person with the physical and 
mental limitations imposed by the claimant's medical impairment(s) can 
meet the demands of the claimant's previous work, either as the 
claimant actually performed it or as generally 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 can still do your past work and are not disabled. We 
will not consider your vocational factors of age, education, and work 
experience or whether your past relevant work exists in significant 
numbers in the national economy.
    (c) Other work. (1) If we find that your residual functional 
capacity is not enough to enable you to do any of 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 adjust to any other work. We will look at your ability to 
adjust to other work by considering your residual functional capacity 
and your vocational factors of age, education, and work experience. Any 
other work (jobs) that you can adjust to 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]

0
9. Remove Sec.  404.1561.

0
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 
Sec. Sec.  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's helper 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 Sec. Sec.  
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.

0
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. * * *

0
12. Amend Sec.  404.1569a 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.  404.1569a  Exertional and nonexertional limitations.

    (a) General. * * * When we decide whether you can do your past 
relevant work (see Sec. Sec.  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 any other work which exists in the national economy. (See 
Sec. Sec.  404.1520(g) and 404.1594(f)(8).) * * *
* * * * *

0
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.

* * * * *

[[Page 51164]]

    (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. * * *
* * * * *
0
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]

0
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).


0
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 Sec. Sec.  
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.
* * * * *

0
17. Amend Sec.  416.905(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 Sec. Sec.  416.920(e) and 416.945. (See Sec.  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.
* * * * *

0
18. Amend Sec.  416.912 by revising the section heading, revising 
paragraph (c), and adding a new paragraph (g) to read as follows:


Sec.  416.912  Evidence.

* * * * *
    (c) Your responsibility. You must provide medical evidence showing 
that you have an impairment(s) and how severe it is during the time you 
say that you are disabled. 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. If we ask you, you must provide evidence about:
    (1) Your age;
    (2) Your education and training;
    (3) Your work experience;
    (4) Your daily activities both before and after the date you say 
that you became disabled;
    (5) Your efforts to work; and
    (6) Any other factors showing how your impairment(s) affects your 
ability to work, or, if you are a child, your functioning. In 
Sec. Sec.  416.960 through 416.969, we discuss in more detail the 
evidence we need when we consider vocational factors.
* * * * *
    (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 Sec. Sec.  416.960 through 416.969a), given your residual 
functional capacity (which we have already assessed, as described in 
Sec.  416.920(e)), age, education, and work experience.

0
19. Amend Sec.  416.920 as follows:
0
a. By revising paragraph (a),
0
b. By redesignating paragraphs (e) and (f) as paragraphs (f) and (g),
0
c. By adding a new paragraph (e) and
0
d. By revising newly redesignated paragraphs (f) and (g).
    The revisions and addition 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

[[Page 51165]]

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 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 and Sec.  416.960(b).)
    (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 and Sec.  
416.960(c).)
    (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.  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 adjust to 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 any 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. 
(See Sec.  416.960(c).) 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 profiles, we will find that you cannot make an adjustment to 
other work, and that you are disabled.

0
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 medically determinable impairments of which we are aware, 
including your medically determinable impairments that are not 
``severe,'' as explained in Sec. Sec.  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 developing your complete medical history, including arranging for a 
consultative examination(s) if necessary, and making every reasonable 
effort to help you get medical reports from your own medical sources. 
(See Sec. Sec.  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 Sec. Sec.  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 any other 
work that exists in the national economy. (See Sec. Sec.  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 Sec. Sec.  416.960 through 416.969a, 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.  416.994.
* * * * *

0
21. Revise Sec.  416.946 to read as follows:


Sec.  416.946  Responsibility 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)

[[Page 51166]]

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 the Office 
of Disability Determinations 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. If your 
case is at the administrative law judge hearing level under Sec.  
416.1429 or at the Appeals Council review level under Sec.  416.1467, 
the 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.

0
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, as discussed in paragraphs (b) and (c) of this 
section.
    (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 evidence we need to 
help us determine whether you can do your past relevant work, given 
your residual functional capacity. A vocational expert or specialist 
may offer relevant evidence within his or her expertise or knowledge 
concerning the physical and mental demands of a claimant's past 
relevant work, either as the claimant actually performed it or as 
generally performed in the national economy. Such evidence may be 
helpful in supplementing or evaluating the accuracy of the claimant's 
description of his past work. In addition, a vocational expert or 
specialist may offer expert opinion testimony in response to a 
hypothetical question about whether a person with the physical and 
mental limitations imposed by the claimant's medical impairment(s) can 
meet the demands of the claimant's previous work, either as the 
claimant actually performed it or as generally 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 can still do your past work and are not disabled. We 
will not consider your vocational factors of age, education, and work 
experience or whether your past relevant work exists in significant 
numbers in the national economy.
    (c) Other work. (1) If we find that your residual functional 
capacity is not enough to enable you to do any of 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 adjust to any other work. We will look at your ability to 
adjust to other work by considering your residual functional capacity 
and your vocational factors of age, education, and work experience. Any 
other work (jobs) that you can adjust to 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.  416.961  [Removed]

0
23. Remove Sec.  416.961.

0
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 
Sec. Sec.  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's helper 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 Sec. Sec.  
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.

0
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. * * *
* * * * *

0
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:

[[Page 51167]]

Sec.  416.969a  Exertional and nonexertional limitations.

    (a) General. * * * When we decide whether you can do your past 
relevant work (see Sec. Sec.  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 any other work which exists in the national 
economy. (See Sec. Sec.  416.920(g) and 416.994(b)(5)(vii).) * * *
* * * * *

0
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. your impairment(s) is severe, we will assess your 
current ability to do substantial gainful activity in accordance with 
Sec.  416.960. * * *
* * * * *
[FR Doc. 03-21610 Filed 8-25-03; 8:45 am]
BILLING CODE 4191-02-P