[Federal Register Volume 68, Number 246 (Tuesday, December 23, 2003)]
[Notices]
[Pages 74279-74280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31522]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 03-1(7)]


Blakes v. Barnhart; Court Cases Involving Sections 12.05 and 
112.05 of the Listing of Impairments That Are Remanded for Further 
Proceedings--Titles II and XVI of the Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 03-
1(7).

EFFECTIVE DATE: December 23, 2003.

FOR FURTHER INFORMATION CONTACT: Cassia Parson, Office of Acquiescence 
and Litigation Coordination, Social Security Administration, 6401 
Security Boulevard, Baltimore, MD 21235-6401, (410) 966-0446, or TTY 
(800) 966-5609.

SUPPLEMENTARY INFORMATION: We are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
    A Social Security Acquiescence Ruling explains how we will apply a 
holding in a decision of a United States Court of Appeals that we 
determine conflicts with our interpretation of a provision of the 
Social Security Act (the Act) or regulations when the Government has 
decided not to seek further review of that decision or is unsuccessful 
on further review.
    We will apply the holding of the Court of Appeals' decision as 
explained in this Social Security Acquiescence Ruling. This Social 
Security Acquiescence Ruling will apply to all decisions where the 
Agency issued a final decision prior to the effective date of the 2000 
mental impairment rules (September 20, 2000), and the Commissioner's 
new final decision after court remand was issued or will be issued on 
or after December 23, 2003. If we made a decision on your application 
for benefits prior to September 20, 2000, under Sections 12.05 and or 
112.05 of the Listings of Impairments and the court remanded the case 
to us for further administrative proceedings, you may request 
application of this Social Security Acquiescence Ruling. You must 
demonstrate, pursuant to 20 CFR 404.985(b)(2) or 416.1485(b)(2), that 
application of the Ruling could change our prior decision in your case.
    Additionally, when we received this precedential Court of Appeals' 
decision and determined that a Social Security Acquiescence Ruling 
might be required, we began to identify those claims that were pending 
before us within the circuit that might be subject to readjudication if 
an Acquiescence Ruling were subsequently issued. Because we determined 
that an Acquiescence Ruling is required and are publishing this Social 
Security Acquiescence Ruling, we will send a notice to those 
individuals whose claims we have identified which may be affected by 
this Social Security Acquiescence Ruling. The notice will provide 
information about the Acquiescence Ruling and the right to request 
readjudication under the Ruling. It is not necessary for an individual 
to receive a notice in order to request application of this Social 
Security Acquiescence Ruling to the prior decision on his or her claim 
as provided in 20 CFR 404.985(b)(2) or 416.1485(b)(2), discussed above.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided for in 20 CFR 404.985(e) or 416.1485(e). If we 
decide to relitigate the issue covered by this Social Security 
Acquiescence Ruling as provided for by 20 CFR 404.985(c) or 
416.1485(c), we will publish a notice in the Federal Register stating 
that we will apply our interpretation of the Act or regulations 
involved and explaining why we have decided to relitigate the issue.
    (Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance; 96.006--
Supplemental Security Income.)

    Dated: October 31, 2003.
Jo Anne B. Barnhart,
Commissioner of Social Security.

Acquiescence Ruling 03-1(7)

    Blakes v. Barnhart, 331 F.3d 565 (7th Cir. 2003)--Cases Involving 
Sections 12.05 and 112.05 of the Listing of Impairments That Are 
Remanded By a Court for Further Proceedings Under Titles II and XVI of 
the Social Security Act.
    Issue: For cases originally decided by Administrative Law Judges 
(ALJs) or the Appeals Council before September 20, 2000, which version 
of listing 12.05 or 112.05 to use on remand from a Federal court in the 
Seventh Circuit, and how that listing should be applied.
    Statute/Regulation/Ruling Citation: Sections 205(b)and (g), 223, 
1614(a)(3)and(4)of the Social Security Act (42 U.S.C. 405(b) and (g), 
423, 1382c(a)(3) and (4)); 20 CFR 404.1505, 404.1520, 404.1520a, 
404.1525, 416.905, 416.906, 416.920, 416.920a, 416.924, 416.925, and 20 
CFR Part 404, Subpart P, Appendix 1, sections 12.05 and 112.05.
    Circuit: Seventh (Illinois, Indiana, Wisconsin).
    Blakes v. Barnhart, 331 F.3d 565 (7th Cir. 2003).
    Applicability of Ruling: This Ruling applies only to court remands 
at the Administrative Law Judge (ALJ) hearing and Appeals Council 
levels of the administrative review process.
    Description of Case: Sandra Blakes applied for Supplemental 
Security Income payments based on disability on behalf of her son, 
Lamanuel Wolfe, Jr., in 1998, when Lamanuel was 5 years old. At the ALJ 
hearing, Blakes presented evidence that Lamanuel was being treated for 
a seizure disorder and had received services for speech and language 
delays. There was also evidence of Stanford-Binet IQ testing in 
February 1999 that resulted in a composite score of 81 and subarea 
scores as low as 70.
    The ALJ accepted the intelligence testing scores as valid. The ALJ 
also acknowledged that Lamanuel was receiving services for speech and 
language delays and being treated for a possible seizure disorder. The 
ALJ noted a speech and language assessment which demonstrated severe 
delays in speech intelligibility and receptive and expressive language. 
However, the ALJ rejected Lamanuel's claim that the requirements of the 
listing for mental retardation were met because the evidence did not 
establish that Lamanuel had mental retardation. The ALJ stated that the 
examiner who performed the intelligence testing specifically stated 
that Lamanuel had a good prognosis, and that his language problems 
caused only minimal effects on his activities of daily living. In light 
of that examiner's findings, the ALJ concluded that the evidence did 
not describe a person who has mental retardation. The ALJ also found 
that Lamanuel's impairments did not medically equal any listing or

[[Page 74280]]

functionally equal the listings. Therefore, she found that Lamanuel was 
not disabled.
    The Appeals Council denied the request for review and the claimant 
appealed to the United States District Court for the Eastern District 
of Wisconsin. The United States Magistrate Judge recommended that the 
ALJ's decision be affirmed, because the conclusion that Lamanuel did 
not have mental retardation was supported by substantial evidence. The 
district court adopted the Magistrate Judge's report and 
recommendation, and found that the ALJ had adequately supported her 
conclusion that Lamanuel did not have mental retardation. The district 
court therefore affirmed the Social Security Administration's (SSA's) 
final decision.
    On appeal to the United States Court of Appeals for the Seventh 
Circuit, Blakes offered several arguments. Blakes argued that the ALJ 
failed to build a ``logical bridge'' between the evidence and her 
conclusions, and that the ALJ relied on her own judgment about the 
cause of Lamanuel's impairments without any medical support in the 
record for that judgment. In addition, she argued that the ALJ should 
have called upon a medical expert to testify at the hearing, and that 
Lamanuel's impairments met the requirements of Listing 112.05D. \1\
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    \1\ Although Blakes was a title XVI childhood disability case 
involving the application of Listing 112.05D, similar principles 
also apply to disability claims involving Listing 12.05 under title 
II and title XVI of the Act. Therefore, this Ruling extends to both 
title II and title XVI disability claims involving Listings 12.05 
and 112.05.
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    In remanding the case for further proceedings, including testimony 
from an expert witness, the Court of Appeals held that the ALJ must 
apply the pre-September 20, 2000, version of listing 112.05 in this 
case as the Court interpreted it. The Court noted that after the ALJ 
had decided the case, SSA issued final rules that, among other things, 
revised Listings 12.05 and 112.05.\2\ The court stated that the new 
version of listing 112.05 ``introduced a new, dual requirement'' that 
an individual satisfy the diagnostic description of the introductory 
paragraph and one of the six sets of criteria following the 
introductory paragraph. The Court of Appeals held that the pre-
September 20, 2000, version of the Listings that had been applied by 
the ALJ in her decision did not require an individual to meet the 
diagnostic description for mental retardation, only the other criteria 
of the Listing. The Court of Appeals also held that, on remand, the ALJ 
should apply the Court of Appeals' interpretation of the pre-September 
20, 2000, version of the listings.
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    \2\ See 65 FR 50746 (2000). The final rules were published on 
August 21, 2000, and they became effective on September 20, 2000. 
Id. at 50746.
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Statement As To How Blakes Differs From SSA's Interpretation

    Our interpretation of the pre-September 20, 2000, version of 
Listings 12.05 and 112.05 is the same as our interpretation of the 
current listings. The diagnostic description of mental retardation 
contained in the introductory paragraph of these Listings, or ``capsule 
definition,'' is an integral part of their criteria, as in all of the 
mental disorders listings. For example, in Acquiescence Ruling 98-2(8), 
acquiescing in the decision in Sird v. Chater, 105 F.3d 401 (8th Cir. 
1997), we explained that ``SSA's interpretation of the [pre-September 
2000 version of ] Listing [12.05] is that, if an individual has:
    (1) mental retardation, i.e., significantly subaverage general 
intellectual functioning with deficits in adaptive behavior initially 
manifested during the developmental period, or autism, i.e., a 
pervasive developmental disorder characterized by social and 
significant communication deficits originating in the developmental 
period;
    (2) a valid verbal, performance or full scale IQ in the range 
specified by Listing 12.05C; and
    (3) a physical or other mental impairment that is severe within the 
meaning of 20 CFR 404.1520(c) or 416.920(c), the individual's 
impairments meet Listing 12.05C.''\3\ Therefore, the revisions that 
became effective on September 20, 2000, were intended only to clarify 
sections 12.00A and 112.00A of the introductory text of the mental 
disorders listings and were not a change in policy. See 65 FR at 50776, 
50779.
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    \3\ We rescinded Acquiescence Ruling 98-2(8) when re revised the 
mental disorders listings in 2000. 65 FR 50784 (2000).
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    The holding is also inconsistent with our interpretation of the 
effective date provision of the final rules that became effective on 
September 20, 2000. We interpret the effective date provision of the 
final mental disorders rules to mean that, when a court decides a case 
after the effective date of the final rules, reverses the 
Commissioner's final decision, and remands the case for further 
administrative proceedings, we will apply the provisions of the final 
rules on remand to the entire period at issue in the claim. We do not 
apply the version of our rules that the adjudicator applied at the time 
the case originally was adjudicated, since that decision has been 
vacated. Rather, as is the case with respect to other determinations 
and decisions, we apply our current rules to the entire period at 
issue.
    The Court of Appeals, on the other hand, concluded that, on remand, 
the ALJ should apply the pre-September 20, 2000, version of the 
Listings (as the Court interpreted it, different from our intent), even 
though the ALJ will issue the hearing decision after the September 20, 
2000, effective date of the final rules.

Explanation of How SSA Will Apply the Blakes Decision Within the 
Circuit

    This Ruling applies only to cases in which the claimant resides or 
resided in Illinois, Indiana, Wisconsin at the time of the court remand 
and applies only to ALJ hearing or Appeals Council decisions made 
pursuant to a court's remand order.
    This Ruling applies to any case involving:
    (1) A final ALJ's or Appeals Council's decision, made prior to 
September 20, 2000, that was appealed to and remanded by the court, 
and; and
    (2) Evidence of a medically determinable mental impairment to be 
evaluated under Listings 12.05 or 112.05.
    In deciding cases that meet the criteria in the preceding two 
paragraphs, the ALJ or Appeals Council will apply the Seventh Circuit's 
interpretation of the pre-September 20, 2000, version of Listings 12.05 
or 112.05. The ALJ or the Appeals Council will not require that the 
claimant meet the capsule definition of mental retardation in order to 
meet Listing 12.05 or 112.05. To meet a listing, the claimant need only 
satisfy the requirements of subsections A through D of listing 12.05 or 
subsections A through F of listing 112.05, as appropriate to the 
individual's age.
[FR Doc. 03-31522 Filed 12-22-03; 8:45 am]
BILLING CODE 4191-02-F