[Federal Register Volume 63, Number 47 (Wednesday, March 11, 1998)]
[Proposed Rules]
[Pages 11854-11856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6212]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
RIN 0960-AE65
Revised Medical Criteria for Determination of Disability,
Endocrine System and Related Criteria
AGENCY: Social Security Administration.
ACTION: Proposed rule.
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SUMMARY: We are proposing to delete ``Obesity,'' from the listing to
adjudicate claims for disability under titles II and XVI of the Social
Security Act (the Act) when we evaluate claims of individuals at step 3
of our sequential evaluation process. Current medical and vocational
research demonstrates that, while many individuals with obesity are
disabled, obesity, in and of itself, is not necessarily determinative
of an individual's inability to engage in any gainful activity.
Instead, individuals with obesity would have their cases reviewed under
the listing for an affected body system(s) or, on a case-by-case basis,
at the remaining steps of the sequential evaluation process.
DATES: To be sure that your comments are considered, we must receive
them no later than May 11, 1998.
ADDRESSES: Comments should be submitted in writing to the Commissioner
of Social Security, P.O. Box 1585, Baltimore, MD 21235, sent by telefax
to (410) 966-2830, sent by e-mail to regulations@ssa.gov, or delivered
to the Social Security Administration, 2109 West Low Rise Building,
6401 Security Boulevard, Baltimore, MD 21235, between 8:00 a.m. and
4:30 p.m. on regular business days. Comments may be inspected during
these hours by making arrangements with the contact person shown below.
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in WordPerfect and will remain on the FBB during the
comment period.
FOR FURTHER INFORMATION CONTACT: Robert Augustine, Legal Assistant,
Office of Process and Innovation Management, Social Security
Administration, 6401 Security Boulevard, Baltimore, Maryland 21235,
(410) 966-5121 for information about these rules. For information on
eligibility or claiming benefits, call our national toll-free number,
1-800-772-1213.
SUPPLEMENTARY INFORMATION: Title II of the Act provides for the payment
of disability insurance benefits to workers insured under the Act.
Title II also provides, under certain circumstances, for the payment of
child's insurance benefits for persons who become disabled before age
22 and widow's and widower's insurance benefits based on disability for
widows, widowers, and surviving divorced spouses of insured
individuals. In addition, title XVI of the Act provides for
supplemental security income (SSI) payments to persons who are aged,
blind, or disabled and who have limited income and resources.
For adults under both the title II and title XVI programs and for
persons claiming child's insurance benefits based on disability under
the title II program, ``disability'' means that an impairment(s)
results in an inability to engage in any substantial gainful activity.
For an individual under age 18 claiming SSI benefits based on
disability, ``disability'' means that an impairment(s) results in
``marked and severe functional limitations.'' Under both title II and
title XVI, disability must be the result of any medically determinable
physical or mental impairment(s) that can be expected to result in
death or that has lasted or can be expected to last for a continuous
period of at least 12 months.
The process for determining whether an individual (except for an
individual under age 18 claiming SSI benefits based on disability) is
disabled based on the statutory definition is set forth in our
longstanding regulations at Secs. 404.1520 and 416.920. These
regulations provide for a sequential evaluation process for evaluating
disability. There is a separate sequential evaluation process for
individuals under age 18 claiming SSI benefits based on disability. At
step 3 of both sequential evaluation processes we ask the same
question: Whether an individual, who is not engaging in substantial
gainful activity and who has an impairment(s) that is severe, has an
impairment(s) that meets or equals in severity the criteria of an
impairment listed in appendix 1 of subpart P of part 404, the Listing
of Impairments (the listings). The listings describe, for each of the
major body systems, impairments that are considered severe enough to
prevent a
[[Page 11855]]
person from doing any gainful activity (or in the case of a child under
age 18 claiming SSI benefits based on disability, to cause marked and
severe functional limitations). Although the listings are contained
only in part 404, they are referenced by subpart I of part 416.
The listings are divided into part A and part B. The criteria in
part A are applied in evaluating impairments of persons age 18 or over.
The criteria in part A may also be used to evaluate impairments in
persons under age 18 if the disease processes have a similar effect on
adults and children. Part B contains additional criteria for evaluating
impairments of children under age 18 when the criteria in part A do not
give appropriate consideration to the particular effects of the disease
processes in childhood. In evaluating disability for a person under age
18, we first use the criteria in part B and, if the criteria in part B
do not apply, we use the criteria in part A (see Secs. 404.1525 and
416.925).
When these and several other listings were revised and published in
the Federal Register on December 6, 1985 (50 FR 50068), we indicated
that medical advances in disability evaluation and treatment and
program experience would require that we periodically review and update
the medical criteria in the listings. Accordingly, we published
expiration dates ranging from 3 to 8 years for each of the specific
body system listings. We subsequently extended these dates in a final
rule published in the Federal Register on December 6, 1993 (58 FR
64121). These dates appear in the introductory statement before part A
and provide that the current listings in part A and part B for the
endocrine system and obesity (9.00) and the endocrine system (109.00)
will no longer be effective on June 6, 1997. Subsequently, we issued
final rules on June 5, 1997 (62 FR 30746) extending the expiration date
of these listings for both part A and part B to June 7, 1999. We are
now proposing to delete listing 9.09, ``Obesity,'' and related
provisions in the listings, and to rename the section ``Endocrine
System.'' (There is no listing for obesity in part B.) These changes
will not affect the expiration date for the endocrine system listings.
We propose to remove listing 9.09 to recognize that there is no
generally accepted current medical and vocational knowledge which
establishes that even massive obesity, per se, has a defined adverse
effect on an individual's ability to work; i.e., even long-term,
massive obesity at the level specified in the listing does not
necessarily cause limitations that would prevent an individual from
engaging in any gainful activity. Associated disorders of the
musculoskeletal, cardiovascular, peripheral vascular, and pulmonary
systems are generally the major cause of disability at the listing
level in obese individuals but, unless the associated disorder(s) is
itself of listing-level severity, no reliable conclusions may be drawn
about disability in most obese individuals. Rather, it is necessary to
consider the effect of any disorders related to or aggravated by
obesity on each individual, on a case-by-case basis, in order to
determine whether the individual is disabled.
The following is a detailed summary of the proposed revisions,
together with our reasons for proposing these changes.
Revisions to Part A of Appendix 1
Table of Contents
We propose to delete ``and Obesity'' from section 9.00 to reflect
the proposed deletion of listing 9.09.
9.00 Endocrine System and Obesity
We propose to delete ``and Obesity'' from the heading in this
listing to reflect the proposed deletion of listing 9.09. We also
propose to delete the second and third paragraphs from the preface of
9.00 because they discuss aspects of the evaluation of obesity. This
discussion would no longer be needed under this proposal.
9.01 Category of Impairments, Endocrine System and Obesity
We propose to delete ``and Obesity'' from the heading of this
listing to reflect the proposed deletion of listing 9.09.
9.09 Obesity
We propose to delete this listing in its entirety. Current medical
and vocational research demonstrates that the listing is not
necessarily reflective of an inability to engage in any gainful
activity or even of an inability to engage in substantial gainful
activity. For example, listing 9.09A requires a ``[h]istory of pain and
limitation of motion in any weight-bearing joint or the lumbosacral
spine (on physical examination) associated with findings on medically
acceptable imaging techniques of arthritis in the affected joint or
lumbosacral spine.'' While such findings certainly could be a cause of
disability depending on their impact on a particular individual's
functioning, the listing is not specific: It does not indicate the
degree of pain, does not require current pain, only a history of pain,
and does not indicate a degree of limitation of motion, or any
functional effects resulting from the impairment. Thus, the current
listing can be satisfied with only minimal additional findings over and
above the weight levels, even though some individuals might have
sufficient residual functional capacities to work.
The same holds true for the other criteria in current listing 9.09.
Even though the findings in listings 9.09B through 9.09E could be
disabling if they were to cause significant limitations of functioning
in a given individual, they could also include individuals who are not
prevented from working. Indeed, only listings 9.09B and 9.09E specify
laboratory values, but those findings may or may not be associated with
significantly limited functioning, depending on the individual.
For this reason, we believe that individuals with the kinds of
additional impairments currently listed in 9.09 must have their cases
reviewed under the listing for the affected body system or, on a case-
by-case basis, at the remaining steps of the sequential evaluation
process. Individuals whose severe impairments related to obesity are
not of listing-level severity may establish that they are disabled,
given their residual functional capacities, together with their age,
education, and work experience.
We considered revising the obesity listing by clarifying the
severity criteria for the various listed body systems that could be
affected (musculoskeletal, cardiovascular, peripheral vascular and
respiratory). However, because the effects of obesity and related
impairments on an individual's functioning vary so widely, we concluded
that the only way we could be certain that individuals would be
disabled would be by requiring the other impairments to meet or equal
the severity of their respective listings. If another body system
listing is met or equaled, the individual's weight would become
immaterial to the finding of disability. We also considered raising the
weights in the tables to the extent that the exacerbated effect of the
obesity would ensure that the individuals would be disabled under the
listing based on weight alone. We chose not to revise the listing in
this way because we would have had to raise the weights in the tables
to such high levels that we would rarely use the listing.
Other Revisions
Introductory Text
We propose to delete ``and Obesity'' from item 10 of the
introductory text that precedes part A of the Listing of Impairments.
We also propose to revise item 10 of the introductory text to read
``Endocrine System (9.00 and 109.00):
[[Page 11856]]
June 7, 1999.'' to conform with the style of this section.
3.00 Respiratory System
We propose to delete the cross-reference to the obesity listing in
the last sentence of 3.00H and in listing 3.10, Sleep-related breathing
disorders. Since we propose to delete the obesity listing, the cross-
reference would no longer be appropriate.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these proposed regulations meet the criteria for a
significant regulatory action under Executive Order (E.O.) 12866.
Therefore, we prepared and submitted to OMB an assessment of the
potential costs and benefits of this regulatory action. This assessment
also contains an analysis of alternative policies we considered and
chose not to adopt. It is available for review by members of the public
by contacting the person shown above.
Regulatory Flexibility Act
We certify that these proposed rules will not have a significant
economic impact on a substantial number of small entities because they
affect only individuals. Thus, a regulatory flexibility analysis as
provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
These proposed regulations will impose no new reporting or
recordkeeping requirements requiring OMB clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security-Disability Insurance; 96.006, Supplemental Security Income)
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: December 19, 1997.
Kenneth S. Apfel,
Commissioner of Social Security.
For the reasons set out in the preamble, part 404, subpart P,
Chapter III of Title 20, Code of Federal Regulations, is proposed to be
amended as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
1. The authority citation for subpart P continues to read as
follows:
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189.
Appendix 1 to Subpart P--[Amended]
2. Appendix 1 to Subpart P is amended as follows:
a. Item 10 of the introductory text before Part A of appendix 1 is
revised.
b. The Table of Contents for Part A of appendix 1 is amended by
removing ``and Obesity'' from section 9.00.
c. Listing 3.00 in part A of appendix 1 is amended by removing the
last sentence of paragraph H.
d. Listing 3.10 in Part A of appendix 1 is revised.
e. Listing 9.00 in part A of appendix 1 is amended by removing
``and Obesity'' from the title and removing the last two paragraphs
from the preface.
f. Listing 9.01 in part A of appendix 1 is amended by removing
``and Obesity'' from the title.
g. Listing 9.09 in part A of appendix 1 is removed.
The revised text is set forth as follows:
Appendix 1 to Subpart P--Listing of Impairments
* * * * *
10. Endocrine System (9.00 and 109.00): June 7, 1999.
* * * * *
Part A
* * * * *
3.10 Sleep-related breathing disorders. Evaluate under 3.09
(Chronic cor pulmonale) or 12.02 (Organic mental disorders).
* * * * * *
[FR Doc. 98-6212 Filed 3-10-98; 8:45 am]
BILLING CODE 4190-29-P
