[Federal Register Volume 73, Number 149 (Friday, August 1, 2008)]
[Proposed Rules]
[Pages 44946-44952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17333]


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RAILROAD RETIREMENT BOARD

20 CFR Part 220

RIN 3220-AB62


Removal of Listing of Impairments and Related Amendments

AGENCY: Railroad Retirement Board

ACTION: Proposed rule.

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SUMMARY: The Railroad Retirement Board proposes to remove the Listing 
of Impairments within our regulations. The Board's Listing of 
Impairments (the

[[Page 44947]]

Listings) are out of date and no longer reflect advances in medical 
knowledge, treatments, and methods of evaluation. The proposed 
amendments will provide public notice as to how the Railroad Retirement 
Board will determine disability after removal of the Listings.

DATES: Comments should be submitted on or before September 30, 2008.

ADDRESSES: You may submit comments identified by RIN number 3220-AB62, 
by any of the following methods:
    Federal eRulemaking Portal: http://www.regulation.gov. Follow the 
instructions for submitting comments.
    Fax: (312) 751-3336. Mail: Beatrice Ezerski, Secretary to the 
Board, Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 
60611. Hand Delivery/Courier: Beatrice Ezerski, Secretary to the Board, 
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611.

FOR FURTHER INFORMATION CONTACT: Marguerite P. Dadabo, Assistant 
General Counsel, Railroad Retirement Board, 844 Rush Street, Chicago, 
Illinois 60611, (312) 751-4945, TDD (312) 751-4701.

SUPPLEMENTARY INFORMATION: We propose to remove and reserve the entire 
Part A and Part B that comprise the Listing of Impairments (the 
Listings), as well as the introductory paragraphs, in Appendix 1 of 
part 220, Title 20, of the Board's regulations. The Listings are used 
to evaluate disability under the Railroad Retirement Act (RRA). When 
the Listings were originally published on March 28, 1991 (56 FR 12980), 
they conformed to the criteria used to evaluate disability under the 
Social Security Act. The basis for this conformity is that disability 
for any ``regular work'' under the RRA is defined by reference as an 
inability to engage in any ``substantial gainful activity'' as that 
term is used in the Social Security Act, and courts have held that 
disability for ``regular employment'' as that term is used in the RRA 
has the same meaning as disability for ``substantial gainful activity'' 
as that term is used in the Social Security Act. See, for example, 
Peppers v. Railroad Retirement Board, 728 F.2d 404 (7th Cir. 1984). For 
this reason, many of the Board's regulations used to determine 
disability parallel the regulations of the Social Security 
Administration in subpart P, part 404 of title 20 [Determining 
Disability and Blindness].

What Programs Would the Proposed Rule Affect?

    The Board pays benefits based on disability for any regular work to 
insured employees, surviving spouses and surviving children disabled 
prior to age 22, as well as benefits based on disability for one's 
regular railroad occupation to insured employees who meet additional 
service requirements. The Listing of Impairments is used in the 
evaluation of claims based on disability for benefits under the RRA.

How Is Disability Defined?

    Disability under the RRA means that an otherwise qualified claimant 
is unable either to do his or her past regular railroad occupation, or 
to do any other regular work, as a result of a medically determinable 
physical or mental impairment, or combination of impairments, expected 
to result in death or which has lasted or is expected to last for a 
continuous period of at least 12 months. The difference in eligibility 
for an ``occupational'' disability or a disability for any ``regular 
work'' is based on the employee's years of service or age and his or 
her current connection to the railroad industry.

How Is Disability Determined?

    The Board, in general, follows a sequential method of evaluating 
disability which takes into consideration the claimant's current work 
activity, if any, and then considers all medical evidence. If a 
claimant cannot be found to be disabled based on medical factors alone, 
the Board then considers vocational factors such as age, education and 
work experience.
    The five steps used to evaluate disability for any regular 
employment under the Act, set out in section 220.100 of the Board's 
regulations, parallel the steps in section 404.1520 of the regulations 
of the Social Security Administration used to determine disability for 
a period of disability, disability insurance benefits, child's 
insurance benefits based on disability and widow(er)'s insurance 
benefits based on disability for months after 1990.
    The first step of that sequence is to determine if the claimant is 
working and if so, if that work is substantial gainful activity (SGA). 
If it is, then the claimant is not disabled, regardless of his or her 
impairments. If the claimant is not working in SGA, the second step is 
to evaluate the medical severity of the impairment or combined 
impairments. If the impairment(s) is not so severe that it 
significantly limits the claimant's ability to do basic work 
activities, the claim is denied. If it does, and the impairment(s) has 
lasted or is expected to last for at least 12 months, or is expected to 
result in death, the third step is to determine whether the 
impairment(s) meets or is medically equal to an impairment listed in 
appendix 1 of that part. If so, the claimant is disabled. It is this 
step that would be changed by these proposed amendments. If the 
claimant is not disabled based on medical factors alone, the fourth 
step is to determine the claimant's residual functional capacity and 
whether his or her impairment(s) prevents the performance of the 
physical and mental demands of his or her past relevant work. If the 
claimant can still perform that work, then he or she is not disabled. 
If he or she cannot, then the Board determines, at the fifth step, 
whether there exists other work in the national economy which an 
individual of the claimant's age, education, work experience and 
residual functional capacity can be expected to perform. If such work 
exists, disability is denied. Otherwise disability is allowed.

What Is the Listing?

    The Listing of Impairments sets out the medical criteria used to 
determine whether a claimant's impairment(s) is so severe that he or 
she is disabled based on medical factors alone. The listing is 
currently considered at the first step of the sequence followed when 
evaluating a claimant's disability for work in his or her regular 
railroad occupation, as set out in section 220.13 of the Board's 
regulations, and at the third step of the sequence followed when 
evaluating disability for any regular work, as set out in section 
220.100. The listing is in two parts. Part A lists the criteria used to 
evaluate impairments of individuals age 18 or older. Part B lists the 
criteria used to evaluate the impairments of children under age 18. 
Each part of the listing is organized by body systems, and each body 
system has an introductory text explaining types of evidence and other 
factors to be considered when evaluating the medical documentation of 
impairments of that body system for disability. The introductory text 
is followed by a list of impairments and the specific medical criteria 
which must be met or equaled for that impairment to be so severe that 
it precludes the performance of any regular work.

How Is the Listing Used?

    The Board currently uses the listing to decide whether an 
individual is disabled or is still disabled. A claimant who is not 
working for an employer covered under the Act and who is not doing work 
that is substantial gainful activity, will be found to be disabled if 
his or her impairment(s) meets or equals the medical criteria of a 
listed impairment.
    The listing is not used to deny a claim of disability. If a 
claimant's

[[Page 44948]]

impairment(s) is severe, but does not meet or medically equal any of 
the impairments in the listing, the evaluation process continues on the 
basis of vocational factors such as the ability to perform past work, 
age, education, and past work experience. The listing is also not used 
to determine that disability has ended because an individual's 
impairment(s) no longer meets or equals a listed impairment, or because 
the listing or its medical criteria has changed. If a listing changes 
and entitlement was based on the individual's impairment(s) having met 
or equaled a listed impairment, the Board will continue to use the 
criteria of the listing in effect at the time of the last favorable 
decision when conducting a review for continuing disability. If the 
individual's condition is found to have improved to where his or her 
impairment(s) no longer medically meets or equals the prior listing, 
the Board must determine whether the medical improvement is related to 
the individual's ability to work, and will consider all circumstances 
of the case before deciding whether the individual is currently 
disabled.

What Problem Does This Proposed Rule Address?

    When the Board last published final rules for the listing on March 
28, 1991 (56 FR 12980), it contained the same medical criteria as were 
then in the regulations of the Social Security Administration at Parts 
A and B of the Listing of Impairments in Appendix 1 to Subpart P, Part 
404 of Title 20. This is because disability for ``regular employment'' 
as that term is used in the RRA, has been held to have the same meaning 
as disability for ``substantial gainful activity'' as that term is used 
in the Social Security Act. As such, the criteria used by the Board to 
determine whether a claimant's impairment(s) is medically so severe 
that it prevents any regular work at the third step of evaluation for 
disability under the RRA, should essentially be the same as the 
standards used at the third step of evaluating disability for any 
substantial gainful activity under Title II of the Social Security Act. 
Since 1991, however, SSA has amended its Listing of Impairments to 
reflect advances in medical knowledge, treatments and methods of 
evaluation. Amendments include the addition of a 14th body system; the 
renaming of body systems; the expansion of introductory texts; the 
removal or addition of listed impairments from body systems; and 
changes in the specific medical criteria needed to meet some 
impairments. As a result, the impairments and criteria listed in the 
Board's regulations for use in determining disability based on medical 
factors alone no longer conform with the criteria followed by SSA.

How Does This Proposed Rule Address That Problem?

    This proposed rule would re-establish consistency in the evaluation 
of impairments of individuals under both Acts. The Board has determined 
that even regular updating of its Listings would result in only 
temporary conformity with the criteria in SSA's Listing of Impairments. 
This is because SSA's medical listing rules for each body system 
contains a sunset provision of four to eight years in length, to ensure 
that the criteria used to determine disability reflects changes brought 
about by continual advancements in medical knowledge, treatments and 
methods of evaluation.
    Furthermore, the Board is prohibited by regulation from 
incorporating by reference the regulations of the Social Security 
Administration or any other agency. Section 21.21 of the regulations 
issued by the Administrative Committee of the Federal Register 
(composed of the Archivist of the United States, an officer of the 
Department of Justice designated by the Attorney General, the Public 
Printer, and the Director of the Federal Register) provides that:
    (c) Each agency shall publish its own regulations in full text. 
Cross-references to the regulations of another agency may not be used 
as a substitute for publication in full text, unless the Office of the 
Federal Register finds that the regulation meets any of the following 
exceptions:
    (1) The reference is required by court order, statute, Executive 
order or reorganization plan.
    (2) The reference is to regulations promulgated by an agency with 
the exclusive legal authority to regulate in a subject matter area, but 
the referencing agency needs to apply those regulations in its own 
programs.
    (3) The reference is informational or improves clarity rather than 
being regulatory.
    (4) The reference is to test methods or consensus standards 
produced by a Federal agency that have replaced or preempted private or 
voluntary test methods or consensus standards in a subject matter area.
    (5) The reference is to the Department level from a subagency. (1 
CFR 21.21(c)).
    The Listing of Impairments does not fall within any of the 
exceptions listed in section 21.21(c).
    The Board has therefore decided that the most efficient and cost 
effective approach would be to remove and reserve the entire Appendix 1 
to Part 220--Listing of Impairments, parts A and B, and to replace 
references in Part 220 of the Board's regulations to disability based 
on an impairment listed in the Listing of Impairments with rules that 
describe when the Board will find that a claimant is ``medically 
disabled.'' A definition of the term ``medically disabled'' to mean 
disability based solely on impairment(s), which are considered to be so 
medically severe as to prevent a person from doing any substantial 
gainful activity, will be set out in amended Sec.  220.110(a), with 
Sec.  220.110 also discussing the evidence that will be used by the 
Board in making that determination.
    It is not the Board's intent in removing Appendix I to change or 
nullify any administrative ruling or opinion of the Board's General 
Counsel presently applicable in determining whether an impairment is 
medically disabling. Section 220.100(b)(3), the third step in 
evaluating a claim for disability for any regular employment, is 
amended to Impairment(s) medically disabling, and will be based, in 
part, on ``whether the severity of the impairment(s) would fall within 
any of the impairments included in the Listing of Impairments as issued 
by the Social Security Administration and as amended from time to time 
(20 CFR part 404, Subpart P, Appendix 1) or whether the impairment(s) 
meet such other criteria which the agency by administrative ruling of 
general applicability has determined to be medically disabling.'' 
Reference to the guidelines in Sec.  220.100(b)(3) have been added to 
Sec.  220.13(a), the first step when evaluating a claim for 
occupational disability. Section 220.61(c)(4) has been revised to 
explain that the elements of a complete examining physician's report 
will be based in part on the results of testing performed as stated in 
the Board's directions. Section 220.111, which had discussed medical 
equivalence, when a listed impairment did not meet the requirements set 
forth in the Listing of Impairments, has been removed and reserved as 
no longer relevant to the determination of disability under the 
Railroad Retirement Act. Reference to that section has been removed 
from Sec.  220.114(d)(3). The Board will continue to follow the 
guidelines on medical equivalence set forth in the regulations of the 
Social Security Administration at 20 CFR 404.1526 when determining if a 
claimant is disabled under the Social Security Act for Medicare 
entitlement. References to impairment(s), which

[[Page 44949]]

medically meet and/or equal the severity of impairments in the Listing 
of Impairments, have been revised to refer to impairment(s) that is 
medically disabling in Sec. Sec.  220.100(b)(4); 220.101(c)(2); 
220.101(c)(3); 220.112(e); 220.114(d)(2); 220.120(e); 220.177(c); 
220.177(d)(1); 220.178(c)(1); 220.178(c)(3); 220.179(a)(4)(iii); 
220.180(b); and 220.180(c). Reference to the Listing as the source of 
information on new or improved medical techniques considered when 
determining whether an annuitant is still disabled has been removed, as 
if an annuitant is found to be no longer disabled for that reason, that 
finding will be explained to the annuitant when such a determination is 
made. Reference to the Listings has been removed from Sec.  
220.179(a)(4)(i). A spelling error is corrected in Sec.  220.181, and 
the criteria in examples of permanent impairments where medical 
improvement is not expected have been clarified in Sec.  220.186.
    The Board, with the concurrence of the Office of Management and 
Budget, has determined that this rule is not a significant regulatory 
action within the meaning of Executive Order 12866. Therefore, no 
regulatory impact analysis is required.

List of Subjects in 20 CFR Part 220

    Railroad retirement, Disability benefits.

PART 220--[AMENDED]

    For the reasons set out in the preamble, the Railroad Retirement 
Board proposes to amend Title 20, Chapter II, part 220, Determining 
Disability, as follows:
    1. The authority citation for part 220 continues to read as 
follows:

    Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.

    2. In Sec.  220.13, revise paragraph (a) to read as follows:


Sec.  220.13  Establishment of permanent disability for work in regular 
railroad occupation.

* * * * *
    (a) The Board evaluates the employee's medically documented 
physical and mental impairment(s) to determine if the employee is 
medically disabled. In order to be found medically disabled, the 
employee's impairments must be severe enough to prevent a person from 
doing any substantial gainful activity. The Board makes this 
determination based on the guidelines set out in Sec.  220.100(b)(3). 
If the Board finds that an employee has an impairment which is 
medically disabling, it will find the employee disabled for work in his 
or her regular occupation without considering the duties of his or her 
regular occupation.
* * * * *
    3. In Sec.  220.61, revise paragraph (c)(4) to read as follows:


Sec.  220.61  Informing the examining physician or psychologist of 
examination scheduling, report content and signature requirements.

* * * * *
    (c) * * *
    (4) The results of laboratory and other tests (e.g., x-rays) 
performed according to the requirements stated in the Board's 
directions to the examining physician or psychologist.
* * * * *
    4. In Sec.  220.100, revise paragraphs (b)(3) and (b)(4) to read as 
follows:


Sec.  220.100  Evaluation of disability for any regular employment.

* * * * *
    (b) * * *
    (3) Impairment(s) is medically disabling. If the claimant has an 
impairment or a combination of impairments which meets the duration 
requirement and which the Board finds is medically disabling, the Board 
will find the claimant disabled without considering his or her age, 
education or work experience. In determining whether an impairment or 
combination of impairments is medically disabling, the Board will 
consider factors such as the nature and limiting effects of the 
impairment(s); the effects of the treatment the claimant has undergone, 
is undergoing, and/or will continue to undergo; the prognosis for the 
claimant; medical records furnished in support of the claimant's claim; 
whether the severity of the impairment(s) would fall within any of the 
impairments included in the Listing of Impairments as issued by the 
Social Security Administration and as amended from time to time (20 CFR 
part 404, Subpart P, Appendix 1); or whether the impairment(s) meet 
such other criteria which the agency by administrative ruling of 
general applicability has determined to be medically disabling.
    (4) Impairment(s) must prevent past relevant work. If the 
claimant's impairment or combination of impairments is not medically 
disabling, the Board will then review the claimant's residual 
functional capacity (see Sec.  220.120) and the physical and mental 
demands of past relevant work (see Sec.  220.130). If the Board 
determines that the claimant is still able to do his or her past 
relevant work, the Board will find that he or she is not disabled. If 
the claimant is unable to do his or her past relevant work, the Board 
will follow paragraph (b)(5) of this section.
* * * * *
    5. In Sec.  220.101, revise paragraphs (c)(2) and (c)(3) to read as 
follows:


Sec.  220.101  Evaluation of mental impairments.

* * * * *
    (c) * * *
    (2) If the claimant's mental impairment(s) is severe, the Board 
must then determine if it is medically disabling using the Board's 
prior conclusions based on this procedure (i.e., the presence of 
certain medical findings considered by the Board as especially relevant 
to a claimant's ability to work and the Board's rating of functional 
loss resulting from the mental impairment(s)).
    (3) If the claimant has a severe impairment(s), but the 
impairment(s) is not medically disabling, the Board will then do a 
residual functional capacity assessment for those claimants (employees, 
widow(er)s, and children) whose applications are based on disability 
for any regular employment under the Railroad Retirement Act.
* * * * *
    6. Revise Sec.  220.110 to read as follows:


Sec.  220.110  Medically Disabled

    (a)``Medically disabled.'' The term ``medically disabled'' refers 
to disability based solely on impairment(s) which are considered to be 
so medically severe as to prevent a person from doing any substantial 
gainful activity. The Board will base its decision about whether the 
claimant's impairment(s) is medically disabling on medical evidence 
only, without consideration of the claimant's residual functional 
capacity, age, education or work experience. The Board will also 
consider the medical opinion given by one or more physicians employed 
or engaged by the Board or the Social Security Administration to make 
medical judgments. The medical evidence used to establish a diagnosis 
or confirm the existence of an impairment, and to establish the 
severity of the impairment includes medical findings consisting of 
signs, symptoms and laboratory findings. The medical findings must be 
based on medically acceptable clinical and laboratory diagnostic 
techniques. If the claimant has more than one impairment, but none of 
the impairments, by themselves, is medically disabling, the Board will 
review the signs, symptoms, and laboratory findings of all of the 
impairments to determine whether the combination of impairments is 
medically disabling. In general,

[[Page 44950]]

impairments that the Board considers to be medically disabling are:
    (1) Permanent;
    (2) Expected to result in death; or
    (3) Have a specific length of duration.
    (b) Diagnosis of impairments. A diagnosis of a particular 
impairment is not sufficient for a finding of medical disability, 
unless the diagnosis is supported by medical findings that are based on 
medically acceptable clinical and laboratory techniques.
    (c) Addiction to alcohol or drugs. If a claimant has a condition 
diagnosed as addiction to alcohol or drugs, this condition will not, by 
itself, be a basis for determining whether the claimant is, or is not, 
disabled. As with any other medical condition, the Board will decide 
whether the claimant is disabled based on symptoms, signs, and 
laboratory findings.


Sec.  220.111  [Removed and Reserved]

    7. Remove and reserve Sec.  220.111.
    8. In Sec.  220.112, revise paragraph (e) introductory text and 
Example 1 to read as follows:


Sec.  220.112  Conclusions by physicians concerning the claimant's 
disability.

* * * * *
    (e) Medical opinions that will not be considered conclusive nor 
given extra weight. The Board will not consider as conclusive nor give 
extra weight to medical opinions which are not in accord with the 
statutory or regulatory standards for establishing disability. Thus, 
opinions that the individual's impairments are medically disabling 
where the medical findings which are the basis for that conclusion 
would not support an impairment so severe as to preclude any 
substantial gainful activity will not be conclusive nor given extra 
weight. Likewise, an opinion(s) as to the individual's residual 
functional capacity which is not in accord with regulatory requirements 
set forth in Sec. Sec.  220.120 and 220.121 will not be conclusive nor 
given extra weight.

    Example 1: A medical opinion states that a claimant is disabled 
based on blindness, but findings show functional visual accuity in 
the better eye, after best correction, of 20/100. That medical 
opinion would not be conclusive or given extra weight.
* * * * *
    9. In Sec.  220.114, remove paragraph (d)(2), redesignate 
paragraphs (d)(3) and (d)(4) as paragraphs (d)(2) and (d)(3), and 
revise the newly redesignated paragraphs (d)(2) and (d)(3) to read as 
follows:


Sec.  220.114  Evaluation of symptoms, including pain.

* * * * *
    (d) * * *
    (2) Decision of whether impairment(s) is medically disabling. The 
Board will not substitute the claimant's allegations of pain or other 
symptoms for a missing or deficient sign or laboratory finding to raise 
the severity of the claimant's impairment(s) to that of being medically 
disabling. If the symptoms, signs, and laboratory findings of the 
claimant's impairment(s) are found by the Board to be so severe as to 
prevent any substantial gainful activity, the Board will find the 
claimant disabled. If it does not, the Board will consider the impact 
of the claimant's symptoms on the claimant's residual functional 
capacity. (See paragraph (d)(3) of this section.)
    (3) Impact of symptoms (including pain) on residual functional 
capacity. If the claimant has a medically determinable severe physical 
or mental impairment(s), but the claimant's impairment(s) is not 
medically disabling, the Board will consider the impact of the 
claimant's impairment(s) and any related symptoms, including pain, on 
the claimant's residual functional capacity. (See Sec.  220.120 of this 
part.)
    10. In Sec.  220.120, revise paragraph (e) to read as follows:


Sec.  220.120  The claimant's residual functional capacity.

* * * * *
    (e) Total limiting effects. When the claimant has a severe 
impairment(s), but the claimant's symptoms, signs, and laboratory 
findings are not medically disabling, the Board will consider the 
limiting effects of all of the claimant's impairment(s), even those 
that are not severe, in determining the claimant's residual functional 
capacity. Pain or other symptoms may cause a limitation of function 
beyond that which can be determined on the basis of the anatomical, 
physiological or psychological abnormalities considered alone; e.g., 
someone with a low back disorder may be fully capable of the physical 
demands consistent with those of sustained medium work activity, but 
another person with the same disorder, because of pain, may not be 
capable of more than the physical demands consistent with those of 
light work activity on a sustained basis. In assessing the total 
limiting effects of the claimant's impairment(s) and any related 
symptoms, the Board will consider all of the medical and non-medical 
evidence, including the information described in Sec.  220.114 of this 
part.
    11. In Sec.  220.177:
    a. Amend paragraph (c) by revising the second paragraph of Example 
2; and
    b. Revise paragraph (d)(1)
    The revisions read as follows:


Sec.  220.177  Terms and definitions.

* * * * *
    (c) * * *

    Example 2: * * *
    Medical improvement has occurred because there has been a 
decrease in the severity of the annuitant's impairments as shown by 
x-ray and clinical evidence of solid union and his return to full 
weight-bearing. This medical improvement is related to his ability 
to work because these findings no longer support an impairment of 
the severity of the impairment on which the finding that he was 
medically disabled was based (see Sec.  220.178(c)(1)). Whether or 
not the annuitant's disability is found to have ended will depend on 
the Board's determination as to whether he can currently engage in 
substantial gainful activity.

    (d) * * *
    (1) Under the law, disability is defined, in part, as the inability 
to do any regular employment by reason of a physical or mental 
impairment(s). ``Regular employment'' is defined in this part as 
``substantial gainful activity.'' In determining whether the annuitant 
is disabled under the law, the Board will measure, therefore, how and 
to what extent the annuitant's impairment(s) has affected his or her 
ability to do work. The Board does this by looking at how the 
annuitant's functional capacity for doing basic work activities has 
been affected. Basic work activities means the abilities and aptitudes 
necessary to do most jobs. Included are exertional abilities such as 
walking, standing, pushing, pulling, reaching and carrying, and non-
exertional abilities and aptitudes such as seeing, hearing, speaking, 
remembering, using judgment, dealing with changes in a work setting and 
dealing with both supervisors and fellow workers. The annuitant who has 
no impairment(s) would be able to do all basic work activities at 
normal levels; he or she would have an unlimited functional capacity to 
do basic work activities. Depending on its nature and severity, an 
impairment(s) will result in some limitation to the functional capacity 
to do one or more of these basic work activities. Diabetes, for 
example, can result in circulatory problems which could limit the 
length of time the annuitant could stand or walk and can result in 
damage to his or her eyes as well, so that the annuitant also had 
limited vision. What the annuitant can still do, despite his or her 
impairment(s), is called his or her residual functional capacity. How 
the residual functional capacity is assessed

[[Page 44951]]

is discussed in more detail in Sec.  220.120. Unless an impairment is 
so severe that it is deemed to prevent the annuitant from doing 
substantial gainful activity (i.e., the impairment(s) is medically 
disabling), it is this residual functional capacity that is used to 
determine whether the annuitant can still do his or her past work or, 
in conjunction with his or her age, education and work experience, do 
any other work.
* * * * *
    12. In Sec.  220.178, revise paragraphs (c)(1) and (c)(3) to read 
as follows:


Sec.  220.178  Determining medical improvement and its relationship to 
the annuitant's ability to do work.

* * * * *
    (c) * * *
    (1) Previous impairment was medically disabling. If the Board's 
most recent favorable decision was based on the fact that the 
annuitant's impairment(s) at that time was medically disabling, an 
assessment of his or her residual functional capacity would not have 
been made. If medical improvement has occurred and the severity of the 
prior impairment(s) is supported by current medical findings, the Board 
will find that the medical improvement was related to the annuitant's 
ability to work. If the medical findings support impairment(s) that is 
currently so severe as to be medically disabling, the annuitant is 
deemed, in the absence of evidence to the contrary, to be unable to 
engage in substantial gainful activity. If there has been medical 
improvement to the degree that the impairment(s) is not currently 
medically disabling, then there has been medical improvement related to 
the annuitant's ability to work. The Board must, of course, also 
establish that the annuitant can currently engage in gainful activity 
before finding that his or her disability has ended.
* * * * *
    (3) Prior residual functional capacity assessment should have been 
made, but was not. If the most recent favorable medical decision should 
have contained an assessment of the annuitant's residual functional 
capacity (i.e., his or her impairment(s) was not medically disabling) 
but does not, either because this assessment is missing from the 
annuitant's file or because it was not done, the Board will reconstruct 
the residual functional capacity. This reconstructed residual 
functional capacity will accurately and objectively assess the 
annuitant's functional capacity to do basic work activities. The Board 
will assign the maximum functional capacity consistent with an 
allowance.

    Example: The annuitant was previously found to be disabled on 
the basis that while his impairment was not medically disabling, it 
did prevent him from doing his past or any other work. The prior 
adjudicator did not, however, include a residual functional capacity 
assessment in the rationale of that decision and a review of the 
prior evidence does not show that such an assessment was ever made. 
If a decrease in medical severity, i.e., medical improvement, has 
occurred, the residual functional capacity based on the current 
level of severity of the annuitant's impairment will have to be 
compared with his residual functional capacity based on its prior 
severity in order to determine if the medical improvement is related 
to his ability to do work. In order to make this comparison, the 
Board will review the prior evidence and make an objective 
assessment of the annuitant's residual functional capacity at the 
time of its most recent favorable medical determination, based on 
the symptoms, signs and laboratory findings as they then existed.
* * * * *
    13. In Sec.  220.179, revise paragraphs (a)(3)(ii) introductory 
text, (a)(4)(i) introductory text, and the example following paragraph 
(a)(4)(iii) to read as follows:


Sec.  220.179  Exceptions to medical improvement.

    (a) * * *
    (3) * * *
    (ii) How the annuitant will know which methods are new or improved 
techniques and when they become generally available. The Board will let 
annuitants know which methods it considers to be new or improved 
techniques and when they become available.
* * * * *
    (4) * * *
    (i) Substantial evidence shows on its face that the decision in 
question should not have been made (e.g., the evidence in file such as 
pulmonary function study values was misread or an adjudicative standard 
such as a medical/vocational rule in appendix 2 of this part was 
misapplied).
* * * * *
    (iii) * * *

    Example: The annuitant was previously found entitled to a 
disability annuity on the basis of diabetes mellitus which the prior 
adjudicator believed was medically disabling. The prior record shows 
that the annuitant has ``brittle'' diabetes for which he was taking 
insulin. The annuitant's urine was 3+ for sugar, and he alleged 
occasional hypoglycemic attacks caused by exertion. His doctor felt 
the diabetes was never really controlled because he was not 
following his diet or taking his medication regularly. On review, 
symptoms, signs and laboratory findings are unchanged. The current 
adjudicator feels, however, that the annuitant's impairment clearly 
is not medically disabling. Error cannot be found because it would 
represent a substitution of current judgment for that of the prior 
adjudicator that the annuitant's impairment was medically disabling. 
The exception for error will not be applied retroactively under the 
conditions set out above unless the conditions for reopening the 
prior decision are met.
* * * * *
    14. In Sec.  220.180, revise paragraphs (b) and (c) to read as 
follows:


Sec.  220.180  Determining continuation or cessation of disability.

* * * * *
    (b) If the annuitant is not engaging in substantial gainful 
activity, does he or she have an impairment or combination of 
impairments which is medically disabling? If the annuitant's 
impairment(s) is medically disabling, his or her disability will be 
found to continue;
    (c) If the annuitant's impairment(s) is not medically disabling, 
has there been medical improvement as defined in Sec.  220.177(a)? If 
there has been medical improvement as shown by a decrease in medical 
severity, see step (d). If there has been no decrease in medical 
severity, then there has been no medical improvement; (See step (e));
* * * * *


Sec.  220.181  [Amended]

    15. In Sec.  220.181 amend paragraph (i) by removing the word 
``not'' and adding in its place the word ``no''.
    16. In Sec.  220.186(c) amend the definition for ``Permanent 
impairment, medical improvement not expected'' by removing the phrase 
``Sec.  220.178(c)(4)'' and adding in its place the phrase ``Sec.  
220.178(c)(3)'' and revise paragraphs (c)(1) through (c)(3) to read as 
follows:


Sec.  220.186  When and how often the Board will conduct a continuing 
disability review.

* * * * *
    (c) Definitions. As used in this section--* * *
    Permanent impairment medical improvement not expected--* * *
    (1) Parkinsonian syndrome with significant rigidity, brady kinesia, 
or tremor in two extremities, which, singly or in combination, result 
in sustained disturbance of gross and dexterous movements, or gait and 
station.
    (2) Amyotrophic lateral sclerosis, based on documentation of a 
clinically appropriate medical history, neurological findings 
consistent with the diagnosis of ALS, and the results of any 
electrophysiological and neuroimaging testing.
    (3) Diffuse pulmonary fibrosis in an individual age 55 or older 
which

[[Page 44952]]

reduces FEV1 to 1.45 to 2.05 (L, BTPS) or less depending on the 
individual's height.
* * * * *

Appendix 1 to Part 220--[Removed and Reserved]

    17. Remove and reserve Appendix 1 to part 220--Listing of 
Impairments.

    Dated: July 23, 2008.

    For The Board.
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. E8-17333 Filed 7-31-08; 8:45 am]
BILLING CODE 7905-01-P