[Federal Register Volume 73, Number 53 (Tuesday, March 18, 2008)]
[Proposed Rules]
[Pages 14409-14411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5022]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Docket No. SSA 2007-0082]
RIN 0960-AG67


Revised Medical Criteria for Evaluating HIV Infection

AGENCY: Social Security Administration.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: In a separate notice in today's edition of the Federal 
Register, we are publishing final rules revising the criteria we use to 
evaluate immune system disorders, found in sections 14.00 and 114.00 of 
the Listing of Impairments in appendix 1 to subpart P of part 404 of 
our regulations (the listings). In those rules, we indicate that we 
will issue an Advance Notice of Proposed Rulemaking (ANPRM) inviting 
public comments on how we might update and revise listings 14.08 and 
114.08, our listings for evaluating HIV infection. We are now 
requesting your comments and suggestions about possible revisions to 
those listings.
    After we have considered your comments and suggestions, other 
information about advances in medical knowledge, treatment, and methods 
of evaluating HIV infection, and our program experience using the 
current listings, we will determine whether we should revise listings 
14.08 and 114.08. If we propose specific revisions to the listings, we 
will publish a Notice of Proposed Rulemaking (NPRM) in the Federal 
Register.

DATES: To be sure that your comments are considered, we must receive 
them no later than May 19, 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-2007-0082:
     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-2007-0082 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: Paul Scott, Office of Compassionate 
Allowances and Listings Improvement, Social Security Administration, 
4422 Annex Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 966-1192, 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 ANPRM?

    The purpose of this ANPRM is to give you an opportunity to send us 
comments and suggestions on whether and how we might update and revise 
listings 14.08 and 114.08, our listings for evaluating HIV infection. 
In a separate notice in today's edition of the Federal Register, we are 
publishing final rules revising the criteria we use to evaluate immune 
system disorders, found in sections 14.00 and 114.00 of the listings. 
We proposed changes to listings 14.08 and 114.08 when we published our 
NPRM on August 4, 2006 (71 FR 44432 (2006)), and we received some 
public comments suggesting changes to those listings. Although the 
final rules that we are are publishing today include changes to 
listings 14.08 and 114.08, the criteria in these listings are not 
substantively different from the criteria in our proposed rules and our 
current rules. We have decided to publish this ANPRM partly because we 
need additional information and partly because we believe that some of 
the

[[Page 14410]]

changes suggested in the public comments were too extensive to include 
in a final rule without giving the public a chance to comment on them.

Which rules are we inviting comments about?

    We are considering whether and how to update and revise listings 
14.08 and 114.08. You can find the revised rules for listing sections 
14.00 and 114.00 in a separate notice that we are publishing in today's 
edition of the Federal Register.

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 persons 
who have HIV infection. We are interested in getting comments and 
suggestions from persons who apply for or receive benefits from us, 
members of the general public, advocates and organizations who 
represent people who have HIV infection, State agencies that make 
disability determinations for us, experts in the evaluation of HIV 
infection, and researchers.

What should you comment about?

    We are specifically interested in any comments and suggestions you 
have on how we might update and revise listings 14.08 and 114.08. The 
issues we want your comments to address are:
     Should we add, change, or remove any of the criteria in 
listings 14.08 and 114.08?
     If so, what revisions do you think we should make?

 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 other information about 
advances in medical knowledge, treatment, and methods of evaluating HIV 
infection and our program experience, we will decide whether and how to 
revise listings 14.08 and 114.08. If we propose revisions to those 
listings, we will publish an NPRM in the Federal Register. In 
accordance with the usual rulemaking procedures we follow, if we 
publish an NPRM, you will have a chance to comment on any proposed 
revisions to listings 14.08 and 114.08, 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
                                                         determinable
 If you file a claim under . . .   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   the inability to
                                   18 or older.        do any SGA.
title XVI.......................  An individual       marked and severe
                                   under 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

[[Page 14411]]

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 do 
not 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. If the criteria in part B do not apply, we may 
use the criteria in part A when those criteria give appropriate 
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 in 20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-Age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

    Dated: January 15, 2008.
Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. E8-5022 Filed 3-17-08; 8:45 am]
BILLING CODE 4191-02-P