[Federal Register Volume 72, Number 238 (Wednesday, December 12, 2007)]
[Proposed Rules]
[Pages 70527-70529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24061]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / 
Proposed Rules  

[[Page 70527]]



SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Docket No. SSA 2007-0065]
RIN 0960-AG65


Revised Medical Criteria for Evaluating Functional Limitations 
Due to Digestive Disorders

AGENCY: Social Security Administration.

ACTION: Advance notice of proposed rulemaking.

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

SUMMARY: On October 19, 2007, we published final rules in the Federal 
Register (72 FR 59397) revising the criteria in sections 5.00 and 
105.00 of the Listing of Impairments in appendix 1 to subpart P of part 
404 of our regulations (the listings), the sections that we use to 
evaluate claims involving digestive disorders. In those rules, we 
indicated that we would issue an Advance Notice of Proposed Rulemaking 
(ANPRM) inviting public comments on whether we should add a functional 
listing for digestive disorders, and if so, what functional criteria 
would be appropriate (72 FR at 59416). We are now requesting your 
comments and suggestions.
    After we have considered your comments and suggestions, other 
information about the functional effects of digestive disorders, and 
our adjudicative experience, we will determine whether it is 
appropriate to add a functional listing for digestive disorders. If we 
decide to add such a listing, we will publish for public comment a 
Notice of Proposed Rulemaking (NPRM) that will propose specific 
revisions to the rules.

DATES: To be sure that your comments are considered, we must receive 
them no later than February 11, 2008.

ADDRESSES: You may submit comments by any of the following methods. 
Regardless of which method you choose, to ensure that we can associate 
your comments with the correct regulation for consideration, you must 
state that your comments refer to Docket No. SSA-2007-0065:
     Federal eRulemaking Portal at http://www.regulations.gov. 
(This is the preferred method for submitting your comments.) In the 
Search Documents section, select ``Social Security Administration'' 
from the agency drop-down menu, then click ``submit''. In the Docket ID 
Column, locate SSA-2007-0065 and then click ``Add Comments'' in the 
``Comments Add/Due By'' column.
     Telefax to (410) 966-2830.
     Letter to the Commissioner of Social Security, P.O. Box 
17703, Baltimore, Maryland 21235-7703.
     Deliver your comments to the Office of Regulations, Social 
Security Administration, 922 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 on the Federal eRulemaking portal, or you may 
inspect them on regular business days by making arrangements with the 
contact person shown in this preamble.

FOR FURTHER INFORMATION CONTACT: Suzanne DiMarino, Social Insurance 
Specialist, Office of Regulations, Social Security Administration, 937 
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 965-1769, for information about this notice. 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 site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

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.

What is the purpose of this notice?

    The purpose of this notice is to give you an opportunity to send us 
comments and suggestions regarding the possible addition of a listing 
based on functional limitations to the listings for evaluating 
digestive disorders in sections 5.00 and 105.00 of the listings. On 
October 19, 2007, we published final rules revising the criteria in 
sections 5.00 and 105.00. Some commenters on the NPRM for those rules 
(66 FR 57009, published November 14, 2001) recommended that we add a 
functional listing for hepatitis using criteria similar to those in 
listings 14.08N and 114.08O for human immunodeficiency virus (HIV). In 
responding to this comment, we explained that we did not adopt the 
recommendation because we did not believe we should add such a listing 
without first proposing it for public comment. We also believe that we 
need additional information to determine the criteria that would be 
included in a functional listing, and whether such a listing should be 
applicable to all digestive disorders or limited to specific disorders, 
such as hepatitis. Accordingly, we indicated in the NPRM that we would 
issue an Advanced Notice of Proposed Rulemaking, inviting public 
comments on these questions.

On which rules are we inviting comments?

    We are considering whether to add a listing based on functional 
limitations to the listings for evaluating digestive disorders in 
sections 5.00 and 105.00 of the listings. You can find the revised 
rules for these listings on the Internet at: http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=039144316124+0+0+0&WAISaction=retrieve.
    You can find the functional listings we use to evaluate HIV on our 
Internet site at these locations:
     Listing 14.08N is available at http://www.socialsecurity.gov/disability/professionals/bluebook/14.00-Immune-Adult.htm, and listing 114.08O is available at http://www.socialsecurity.gov/disability/professionals/bluebook/114.00-Immune-Childhood.htm.
     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.

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 digestive 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 
represent people who have digestive disorders, State agencies that make

[[Page 70528]]

disability determinations for us, experts in the evaluation of 
digestive disorders, and researchers.

What should you comment about?

    We are specifically interested in any comments and suggestions you 
have about adding a listing based on functional limitations to sections 
5.00 and 105.00 of our listings. The issues we want to address are:
     Should we add a listing based on functional limitations to 
the listings for digestive disorders?
     If so, what criteria should we use?
     Should we use these criteria to evaluate all digestive 
disorders, or should they be applicable only to the evaluation of 
specific disorders, such as hepatitis?

Will we respond to your comments from this notice?

    We will not respond directly to comments you send us in response to 
this notice. However, after we consider your comments along with other 
information, such as medical research and our adjudicative experience, 
we may decide to add a listing based on functional limitations to the 
listings for digestive disorders. If we propose the addition of such a 
listing, 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 any proposed addition(s) to the digestive listings if we 
publish an NPRM, and we will summarize and respond to the significant 
comments on the NPRM in the preamble to any final rules.

Other Information

Who can get disability benefits?

    Under title II of the Social Security Act (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
 If you file a claim under *                            determinable
             * *                And you are * * *     impairment(s) as
                                                    described above that
                                                      results in * * *
------------------------------------------------------------------------
Title II....................  an adult or child...  the inability to do
                                                     any substantial
                                                     gainful activity
                                                     (SGA).
Title XVI...................  an individual age 18  the inability to do
                               or older.             any SGA.
Title XVI...................  an individual under   marked and severe
                               age 18.               functional
                                                     limitations.
------------------------------------------------------------------------

How do we decide whether you are disabled?

    If you are applying for benefits under title II of the Act, or if 
you are an adult applying for payments 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 SGA? If you are 
working and the work you are doing is SGA, 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 to step 4.
    4. Do you have the residual functional capacity (RFC) 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 RFC, 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 SSI. 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, 416.924, 416.994, and 416.994a of our regulations. 
However, all of these processes 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 an individual 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 an individual under age 18, we first use the criteria in 
part B of the listings. Part B contains criteria that apply only to 
individuals who are under age 18. If the criteria in part B do not 
apply, we may use the criteria in part A when those criteria give 
appropriate

[[Page 70529]]

consideration to the effects of the impairment(s) in children. (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 as an impairment in the listings. (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 not 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.'' 
Likewise, we will not decide that your disability has ended only 
because your impairment(s) no longer meets or medically equals 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: November 26, 2007.
Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. E7-24061 Filed 12-11-07; 8:45 am]
BILLING CODE 4191-02-P