[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Rules and Regulations]
[Pages 63598-63603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28453]


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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: Final rule.

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

SUMMARY: The Railroad Retirement Board removes the Listing of 
Impairments from its regulations. The Board's Listing of Impairments 
(the Listings) is out of date and no longer reflects advances in 
medical knowledge, treatments, and methods of evaluation. These 
amendments provide public notice as to how the Railroad Retirement 
Board will determine disability after removal of the Listings.

DATES: This rule will be effective December 4, 2009.

ADDRESSES: 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 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 have been 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 Will the Final 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 has been 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 has been 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 will be changed by these 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 that have 
been 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 
has been 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 has been in two parts. Part A listed the criteria 
used to evaluate impairments of individuals age 18 or older. Part B 
listed the criteria used to evaluate the impairments of children under 
age 18. Each part of the listing was organized by body systems, and 
each body system had 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 was followed by a list of impairments and the 
specific medical criteria which had to be met or equaled for that 
impairment to be so severe that

[[Page 63599]]

it precluded the performance of any regular work.

How Was the Listing Used?

    The Board used the listing to decide whether an individual was 
disabled or was still disabled. A claimant who was not working for an 
employer covered under the Act and who was not doing work that was 
substantial gainful activity, was found to be disabled if his or her 
impairment(s) met or equaled the medical criteria of a listed 
impairment.
    The listing was not used to deny a claim of disability. If a 
claimant's impairment(s) was severe, but did not meet or medically 
equal any of the impairments in the listing, the evaluation process 
continued on the basis of vocational factors such as the ability to 
perform past work, age, education, and past work experience. The 
listing also was not used to determine that disability had ended 
because an individual's impairment(s) no longer met or equaled a listed 
impairment, or because the listing or its medical criteria had changed. 
If a listing changed and entitlement was based on the individual's 
impairment(s) having met or equaled a listed impairment, the Board 
continued 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 was found to have improved to 
where his or her impairment(s) no longer medically met or equaled the 
prior listing, the Board determined whether the medical improvement was 
related to the individual's ability to work, and considered all 
circumstances of the case before deciding whether the individual was 
currently disabled.

What Problem Does This Final 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 Final Rule Address That Problem?

    This final rule will 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, CFR Title 1, 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:
     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:
     The reference is required by court order, statute, 
Executive order or reorganization plan.
     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.
     The reference is informational or improves clarity rather 
than being regulatory.
     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.
     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 is 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 is 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 1 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

[[Page 63600]]

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 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, and 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 was 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 published the proposed rule on August 1, 2008. (73 FR 
44946) and invited comments by September 30, 2008. No comments were 
received. After the Board submitted a draft final rule to the Office of 
Management and Budget (OMB), OMB solicited comments from the Social 
Security Administration (SSA), the Department of Justice, and the 
Veterans' Administration. SSA submitted two comments concerning the 
continuing disability review process. The first comment noted that the 
amendment changes the definition for ``medical improvement related to 
the ability to work'' when the comparison point decision (CPD) was made 
at step 3 of sequential evaluation. That comment stated that the 
substitution of the phrase ``medically disabling'' for ``meets or 
equals'' may not work for CPDs that were based on meeting or equaling a 
listing because it removes the need to compare the current severity 
with the standard used to find disability at the CPD. The second 
comment stated that the second sentence in section 220.178(c)(1) was 
unclear as to whether the severity level referred to the current 
severity or the severity established at the CPD. The Board has reviewed 
the comments and the amendments to section 220.178(c)(1) and agrees 
that the second sentence could be confusing. We have modified that 
sentence to make it clear that in a continuing disability review, the 
claimant's current severity will be compared to the standard that was 
used to make the original, or ``comparison point'', decision.
    The remainder of the proposed rule is being published as a final 
rule without change.
    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.


0
For the reasons set out in the preamble, the Railroad Retirement Board 
amends Title 20, Chapter II, Part 220, Determining Disability, as 
follows:

PART 220--[AMENDED]

0
1. The authority citation for part 220 continues to read as follows:

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


0
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.
* * * * *

0
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.
* * * * *

0
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.
* * * * *

0
5. In Sec.  220.101 revise paragraphs (c)(2) and (c)(3) to read as 
follows:

[[Page 63601]]

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.
* * * * *

0
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, 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]

0
7. Remove and reserve Sec.  220.111.

0
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.
* * * * *

0
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.)

0
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.

0
11. In Sec.  220.177:
0
a. Amend paragraph (c) by revising the second paragraph of Example 2; 
and
0
b. Revise paragraph (d)(1).
    The revisions read as follows:

[[Page 63602]]

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 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.
* * * * *

0
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 current severity 
of the prior impairment(s) is no longer medically disabling based on 
the standard [see Sec.  220.100(b)(3)] applied at the time of that 
decision, 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.
* * * * *

0
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

[[Page 63603]]

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.
* * * * *

0
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]

0
15. In Sec.  220.181 amend paragraph (i) by removing the word ``not'' 
and adding in its place the word ``no''.

0
16. In Sec.  220.186(c) amend the definition of ``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 (1) through (3) of the definition 
to read as follows:


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

* * * * *
    (c) * * *
    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 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]

0
17. Remove and reserve Appendix 1 to Part 220.

    Dated: November 20, 2009.

    For the Board.
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. E9-28453 Filed 12-3-09; 8:45 am]
BILLING CODE 7905-01-P