[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Proposed Rules]
[Pages 19358-19361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7358]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AF58


Revised Medical Criteria for Evaluating Respiratory System 
Disorders

AGENCY: Social Security Administration.

[[Page 19359]]


ACTION: Advance notice of proposed rulemaking.

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SUMMARY: We are planning to update and revise the rules we use to 
evaluate respiratory disorders 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 3.00 
and 103.00 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 respiratory 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 respiratory 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/LawsRegs.

FOR FURTHER INFORMATION CONTACT: Robert J. Augustine, Social Insurance 
Specialist, Office of Regulations, Social Security Administration, 107 
Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-
6401, (410) 965-0020 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 respiratory disorders 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 respiratory 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 respiratory 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 respiratory disorders, experts in the evaluation of 
respiratory disorders, 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 medical research and 
our program experience, we will decide how to revise the rules we use 
to evaluate respiratory 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 3.00 and 103.00. These are the listings for 
respiratory impairments for adults (Part A, 3.00) and children (Part B, 
103.00). They include, but are not limited to, such impairments as 
emphysema, chronic bronchitis, asthma, cystic fibrosis (CF), chronic 
obstructive pulmonary disease (COPD), sleep-related breathing 
disorders, lung transplants, and bronchopulmonary dysplasia (BPD).

Where Can You Find These Rules on the Internet?

    You can find these rules on our Internet site at these locations:
     Sections 3.00 and 103.00 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 3.00 and 103.00 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 Respiratory 
System Disorders?

    We last published final rules containing comprehensive revisions to 
the listings for respiratory impairments in the Federal Register on 
October 7, 1993 (58 FR 52346). The current listings for respiratory 
impairments for adults (3.00) and children (103.00) will no longer be 
in effect 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 for 
revising sections 3.00 and 103.00 of our listings. For example, with 
regard to our listings, we are interested in knowing if:
     You have concerns about any of the current respiratory 
system listing provisions for adults or children; such as whether you 
think we should change any of our medical criteria or whether you think 
a listing is difficult to use or understand.
     You would like to see our respiratory listings include 
something

[[Page 19360]]

that they do not include now; such as conditions and/or new medical 
criteria that you believe should be added to the listings.
     You are aware of criteria we should use to define 
disabling asthma at the listing level.
     You are aware of criteria we should use to define 
disabling bronchopulmonary dysplasia (BPD) 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 respiratory 
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 respiratory disorders might not need benefits from 
us if they could get treatment before their disorders make 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 disorders 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 many sources, 
including the following recent documents, for relevance to our policy 
for evaluating respiratory impairments.
     Expert Panel Report: Guidelines for the Diagnosis and 
Management of Asthma-Update on Selected Topics. National Institute of 
Health (NIH Publication No. 02-5075). Bethesda, MD: U.S. Department of 
Health and Human Services, 2002. This report is available at http://www.nhlbi.nih.gov/guidelines/asthma/asthgdln.htm
     Expert Panel Report II: Guidelines for the Diagnosis and 
Management of Asthma. National Institute of Health (NIH Publication No. 
97-4053). Bethesda, MD: U.S. Department of Health and Human Services, 
1997. This report is available at http://www.nhlbi.nih.gov/guidelines/asthma/asthgdln.htm
    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.

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 . . .   impairment(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
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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 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

[[Page 19361]]

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. 05-7358 Filed 4-12-05; 8:45 am]
BILLING CODE 4191-02-P