[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Proposed Rules]
[Pages 19356-19358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7357]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AF35


Revised Medical Criteria for Evaluating Neurological Impairments

AGENCY: Social Security Administration.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: We are planning to update and revise the rules we use to 
evaluate neurological impairments of adults and children who apply for, 
or receive, disability benefits under title II and Supplemental 
Security Income (SSI) payments based on disability under title XVI of 
the Social Security Act (the Act). The rules we plan on revising are 
sections 11.00 and 111.00 in the Listing of Impairments in appendix 1 
to subpart P of part 404 of our regulations (the listings). We invite 
you to send us comments and suggestions for updating and revising these 
rules.
    After we have considered your comments and suggestions, as well as 
information about advances in medical knowledge, treatment, and methods 
of evaluating neurological disorders, and our program experience, we 
intend to publish for public comment a Notice of Proposed Rulemaking 
(NPRM) that will propose specific revisions to the rules.
    As part of our long-term planning for the disability programs, we 
are also interested in your ideas for how we may be able to improve our 
programs for people who have neurological disorders, especially those 
who would like to work.

DATES: To be sure your comments are considered, we must receive them by 
June 13, 2005.

ADDRESSES: You may give us your comments by: using our Internet site 
facility (i.e., Social Security Online) at http://policy.ssa.gov/pnpublic.nsf/LawsRegs or the Federal eRulemaking Portal at http://www.regulations.gov; e-mail to [email protected]; telefax to (410) 
966-2830, or letter to the Commissioner of Social Security, P.O. Box 
17703, Baltimore, Maryland 21235-7703. You may also deliver them to the 
Office of Regulations, Social Security Administration, 100 Altmeyer 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, 
between 8 a.m. and 4:30 p.m. on regular business days. Comments are 
posted in our Internet site at http://policy.ssa.gov/pnpublic.nsf/LawsRegs, or you may inspect them on regular business days by making 
arrangements with the contact person shown in this preamble.
    Electronic Version: The electronic file of this document is 
available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html. It is also available on the Internet 
site for SSA (i.e., Social Security Online) at: http://policy.ssa.gov/pnpublic.nsf/LawRegs.

FOR FURTHER INFORMATION CONTACT: Fran O. Thomas, Social Insurance 
Specialist, Office of Regulations, Social Security Administration, 100 
Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-
6401, (410) 966-9822 or TTY (410) 966-5609. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

What Is the Purpose of This Notice?

    We are planning to update and revise the rules that we use to 
evaluate neurological impairments of adults and children who apply for, 
or receive, disability benefits under title II and Supplemental 
Security Income (SSI) payments based on disability under title XVI of 
the Act. The purpose of this notice is to give you an opportunity to 
send us comments and suggestions for updating and revising those rules 
as we begin the rulemaking process. We are also asking for your 
comments and ideas about how we can improve our disability programs in 
the future for people with neurological disorders.

Who Should Send Us Comments and Suggestions?

    We invite comments and suggestions from anyone who has an interest 
in the rules we use to evaluate claims for benefits filed by people who 
have neurological disorders. We are interested in getting comments and 
suggestions from people who apply for or receive benefits from us, 
members of the general public, advocates and organizations who advocate 
for people who have neurological disorders, experts in the evaluation 
of neurological

[[Page 19357]]

diseases and injuries, researchers, people who make disability 
determinations and decisions for us, and any other individuals who may 
have ideas for us to consider.

Will We Respond To Your Comments From This Notice?

    No, we will not respond directly to comments you send us because of 
this notice. However, after we consider your comments in response to 
this notice, along with other information such as results of current 
medical research and our program experience, we will decide how to 
revise the rules we use to evaluate neurological impairments. When we 
propose specific revisions to the rules, we will publish an NPRM in the 
Federal Register. In accordance with the usual rulemaking procedures we 
follow, you will have a chance to comment on the revisions we propose 
when we publish the NPRM, and we will summarize and respond to the 
significant comments on the NPRM in the preamble to any final rules.

Which Rules Are We Considering for Updating and Revision?

    We are considering two sections of our listings for updating and 
revision, sections 11.00 and 111.00. These are the listings for 
neurological impairments for adults (Part A, 11.00) and children (Part 
B, 111.00). They include, but are not limited to, such impairments as 
epilepsy, multiple sclerosis, traumatic brain injury, stroke, cerebral 
palsy, muscular dystrophy, and myasthenia gravis.

Where Can You Find These Rules on the Internet?

    You can find these rules on our Internet site at these locations:
     Sections 11.00 and 111.00 are in the Listing of 
Impairments in appendix 1 to subpart P of part 404 of our regulations 
at http://www.ssa.gov/OP_Home/cfr20/404/404-ap10.htm.
     You can also look up sections 11.00 and 111.00 of the 
listings at http://www.ssa.gov/disability/professionals/bluebook/.
     If you do not have Internet access, you can find the Code 
of Federal Regulations in some public libraries, Federal depository 
libraries, and public law libraries.

Why Are We Updating and Revising Our Rules for Evaluating Neurological 
Impairments?

    We last published final rules containing comprehensive revisions to 
the listings for neurological impairments in the Federal Register on 
December 6, 1985 (50 FR 50068). Although we also published final rules 
revising the preface to the neurological body system on August 21, 2000 
(65 FR 50746), made technical revisions to the listings that included 
some changes to the neurological body system listings on April 24, 
2002, and moved the listings for malignant brain tumors to our 
Malignant Neoplastic Diseases body system on November 15, 2004 (69 FR 
67018), we have not comprehensively revised the rules since 1985.
    The current listings for neurological impairments for adults 
(11.00) and children (111.00) will no longer be effective on July 1, 
2005, unless we extend them or revise and promulgate them again.

What Should You Comment About?

    We are interested in any comments and suggestions you have about 
sections 11.00 and 111.00 of our listings. For example, with regard to 
our listings, we are interested in knowing if:
     You have concerns about any of the current neurological 
listings provisions for adults or children; such as whether you think 
we should change any of our criteria or whether you think a listing is 
difficult to use or understand.
     You would like to see our neurological listings include 
something that they do not include now; such as conditions and/or new 
medical criteria that you believe should be added to the listings.
     You think it would be beneficial to change the current 
disease-specific listing format to a more inclusive category format 
such as ``Vascular disorders,'' ``Demyelinating disorders,'' and 
``Movement disorders.''
     You think these listings should continue to include 
functional criteria that consider all aspects of listed neurological 
impairments such as motor and sensory deficits, cognitive/behavioral 
abnormalities, speech/language limitations, and vision/hearing losses.
     You are aware of criteria we should use to define 
disabling epilepsy at the listing level.
    In addition to your comments about our regulations, we are also 
interested in any ideas you have about how the disability requirements 
of the Act and our regulations affect people who have neurological 
disorders, especially those who would like to work, full-time or part-
time with supports. Your ideas can address our existing rules and 
regulations or suggest changes to the law. For example, we know that 
many people who have neurological disorders might not need benefits 
from us if they could get treatment before their disease or injury 
makes them unable to work. Others may be unable to work but may not 
need to stay out of work indefinitely if they could get treatment or 
other interventions. Many people with permanent impairments can work if 
they have a supporting safety net (including title II disability 
benefits and SSI payments). Work can also be therapeutic for some 
people. Although the Act and our regulations include some access to 
health care through Medicare and Medicaid, some provisions for 
vocational rehabilitation, and a number of work incentives, these 
provisions are generally for people who already qualify for benefits 
under our disability programs.
    We will consider your ideas as we develop the NPRM we intend to 
publish for public comment, and, where applicable, as part of our long-
term planning for the disability program.

What Other Information Will We Consider?

    We will also be considering information from other sources, 
including the following recent documents, for relevance to our policy 
for evaluating neurological impairments.
     ``Management of Treatment-Resistant Epilepsy.'' Evidence 
Report/Technology Assessment: Number 77. Rockville, MD: Agency for 
Healthcare Research and Quality (AHRQ Publication No. 03-E028) April, 
2004. This report is available at http://www.ncbi.nlm.nih.gov/books/bv.fcgi?rid=hstat1a.chapter.11665
     ``Criteria to Determine Disability Related to Multiple 
Sclerosis.'' Evidence Report/Technology Assessment: Number 100. 
Rockville, MD: Agency for Healthcare Research and Quality (AHRQ 
Publication No. 03-E028) May, 2004. This report is available at http://www.ahrq.gov/clinic/epcsums/msdissum.htm#contents
    Other Information:

Who Can Get Disability Benefits?

    Under title II of the Act, we provide for the payment of disability 
benefits if you are disabled and belong to one of the following three 
groups:
     Workers insured under the Act,
     Children of insured workers, and
     Widows, widowers, and surviving divorced spouses (see 
Sec.  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 are disabled 
and have limited income and resources.

[[Page 19358]]

How Do We Define Disability?

    Under both the title II and title XVI programs, disability must be 
the result of any medically determinable physical or mental impairment 
or combination of impairments that is expected to result in death or 
which has lasted or is expected to last for a continuous period of at 
least 12 months. Our definitions of disability are shown in the 
following table:

------------------------------------------------------------------------
                                                       Disability means
                                                          you have a
                                                           medically
                                                         determinable
 If you file a claim under . . .   And you are . . .   impairments(s) as
                                                        described above
                                                       and that results
                                                           in . . .
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title II........................  an adult or child.  the inability to
                                                       do any
                                                       substantial
                                                       gainful activity
                                                       (SGA).
title XVI.......................  a person age 18 or  the inability to
                                   older.              do any SGA.
title XVI.......................  a person under age  marked and severe
                                   18.                 functional
                                                       limitations.
------------------------------------------------------------------------

How Do We Decide Whether You Are Disabled?

    If you are seeking benefits under title II of the Act, or if you 
are an adult seeking benefits under title XVI of the Act, we use a 
five-step ``sequential evaluation process'' to decide whether you are 
disabled. We describe this five-step process 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 will find that you are not disabled, 
regardless of your medical condition or your age, education, and work 
experience. If you are not, we will go on to step 2.
    2. Do you have a ``severe'' impairment? If you do not have an 
impairment or combination of impairments that significantly limits your 
physical or mental ability to do basic work activities, we will find 
that you are not disabled. If you do, we will go on to step 3.
    3. Do you have an impairment(s) that meets or medically equals the 
severity of an impairment in the listings? If you do, and the 
impairment(s) meets the duration requirement, we will find that you are 
disabled. If you do not, we will go on to step 4.
    4. Do you have the residual functional capacity to do your past 
relevant work? If you do, we will find that you are not disabled. If 
you do not, we w will go on to step 5.
    5. Does your impairment(s) prevent you from doing any other work 
that exists in significant numbers in the national economy, considering 
your residual functional capacity, age, education, and work experience? 
If it does, and it meets the duration requirement, we will find that 
you are disabled. If it does not, we will find that you are not 
disabled.
    We use a different sequential evaluation process for children who 
apply for payments based on disability under title XVI of the Act. We 
describe that sequential evaluation process in Sec.  416.924 of our 
regulations.
    If you are already receiving benefits, we also use a different 
sequential evaluation process when we decide whether your disability 
continues. See Sec. Sec.  404.1594, 416.994, and 416.994a of our 
regulations. All of the sequential evaluation processes, however, 
include steps at which we consider whether your impairment(s) meets or 
medically equals one of our listings.

What Are the Listings?

    The listings are examples of impairments that we consider severe 
enough to prevent you as an adult from doing any gainful activity. If 
you are a child seeking SSI payments based on disability, the listings 
describe impairments that we consider severe enough to result in marked 
and severe functional limitations. Although the listings are contained 
only in appendix 1 to subpart P of part 404 of our regulations, we 
incorporate them by reference in the SSI program in Sec.  416.925 of 
our regulations, and apply them to claims under both title II and title 
XVI of the Act.

How Do We Use the Listings?

    The listings are in two parts. There are listings for adults (part 
A) and for children (part B). If you are a person age 18 or over, we 
apply the listings in part A when we assess your claim, and we never 
use the listings in part B.
    If you are a person under age 18, we first use the criteria in part 
B of the listings. If the listings in part B do not apply, and the 
specific disease process(es) has a similar effect on adults and 
children, we then use the criteria in part A. (See Sec. Sec.  404.1525 
and 416.925.)
    If your impairment(s) does not meet any listing, we will also 
consider whether it medically equals any listing; that is, whether it 
is as medically severe. (See Sec. Sec.  404.1526 and 416.926.)

What If You Do Not Have An Impairment(s) That Meets or Medically Equals 
a Listing?

    We use the listings only to decide that you are disabled or that 
you are still disabled. We will never deny your claim or decide that 
you no longer qualify for benefits because your impairment(s) does not 
meet or medically equal a listing. If you have a severe impairment(s) 
that does not meet or medically equal any listing, we may still find 
you disabled based on other rules in the ``sequential evaluation 
process'' described above. Likewise, we will not decide that your 
disability has ended only because your impairment(s) does not meet or 
medically equal a listing.

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: March 21, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
[FR Doc. 05-7357 Filed 4-12-05; 8:45 am]
BILLING CODE 4191-02-P