[Federal Register Volume 64, Number 119 (Tuesday, June 22, 1999)]
[Notices]
[Pages 33337-33341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15972]
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SOCIAL SECURITY ADMINISTRATION
Social Security Ruling, SSR 99-3p, Title XVI: Evaluation of
Disability and Blindness in Initial Claims for Individuals Age 65 or
Older
AGENCY: Social Security Administration.
ACTION: Notice of Social Security ruling.
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SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of
Social Security gives notice of Social Security Ruling, SSR 99-3p. This
Ruling clarifies the Social Security Administration's standards and
procedures for the adjudication of disability and blindness
[[Page 33338]]
claims for individuals age 65 or older under title XVI, Supplemental
Security Income for the Aged, Blind, and Disabled, of the Social
Security Act.
EFFECTIVE DATE: June 22, 1999.
FOR FURTHER INFORMATION CONTACT: Michelle Hungerman, Office of
Disability, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 21235-6401, (410) 965-2289.
SUPPLEMENTARY INFORMATION: Although we are not required to do so
pursuant to 5 U.S.C. 552(a)(1) and (a)(2), we are publishing this
Social Security Ruling in accordance with 20 CFR 402.35(b)(1).
Social Security Rulings make available to the public precedential
decisions relating to the Federal old-age, survivors, disability,
supplemental security income, and black lung benefits programs. Social
Security Rulings may be based on case decisions made at all
administrative levels of adjudication, Federal court decisions,
Commissioner's decisions, opinions of the Office of the General
Counsel, and Agency interpretations of the law and regulations.
Although Social Security Rulings do not have the same force and
effect as the statute or regulations, they are binding on all
components of the Social Security Administration, in accordance with 20
CFR 402.35(b)(1), and are to be relied upon as precedents in
adjudicating cases.
If this Social Security Ruling is later superseded, modified, or
rescinded, we will publish a notice in the Federal Register to that
effect.
(Catalog of Federal Domestic Assistance, Program No. 96.006
Supplemental Security Income.)
Dated: June 14, 1999.
Kenneth S. Apfel,
Commissioner of Social Security.
Social Security Ruling
Title XVI: Evaluation of Disability and Blindness in Initial Claims for
Individuals Age 65 or Older
Purpose: To clarify SSA's standards and procedures for the
adjudication of title XVI of the Social Security Act (the Act)
disability and blindness claims for individuals age 65 or older. In
particular, this Ruling explains that:
In general, the regulations and procedures for determining
disability for adults under title XVI of the Act who are under age 65
are used when determining whether an individual age 65 or older is
disabled.
Adjudicators are required to consider any impairment(s) the
individual has, including those that are often found in older
individuals.
If an individual age 72 or older has a medically determinable
impairment, that impairment will be considered to be ``severe.''
If the individual's impairment(s) prevents the performance of his
or her past relevant work (PRW), or, if the individual does not have
PRW, the adjudicator must consider two special medical-vocational
profiles showing an inability to make an adjustment to other work
before referring to appendix 2 to subpart P of 20 CFR Part 404.
Generally, adjudicators should use the rules for individuals age
60-64 when determining whether an individual age 65 or older can
perform other work.
Beginning at age 65, age is considered to be a factor that imposes
greater limits on vocational adaptability for individuals who retain
the functional capacity to perform medium work. If illiteracy in
English or the inability to communicate in English further limits such
an individual's vocational scope, a finding of ``disabled'' is
warranted unless the individual's PRW was skilled or semiskilled and
provided the individual with transferable skills.
Some individuals age 65 or older may not understand, or be able to
comply with, our requests to submit evidence or attend a consultative
examination (CE). Therefore, adjudicators must make special efforts in
situations in which it appears that an individual age 65 or older may
not be cooperating.
Citations: Section 5301 of Public Law (P.L.) 105-33, sections 402
and 431 of P.L. 104-193, as amended, sections 1614(a), 1619(b) and
1621(f)(1) of the Act, as amended; 20 CFR Part 404, subpart P,
appendices 1 and 2, and 20 CFR Part 416, sections 416.901-416.923,
416.925, 416.926, 416.927-416.986, 416.988-416.994, and 416.995-
416.998.
Background: On August 5, 1997, P.L. 105-33, the Balanced Budget Act
of 1997, amended P.L. 104-193, the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, as amended, and added
additional alien eligibility criteria. Under the new criteria,
``qualified'' aliens who were lawfully residing in the United States on
August 22, 1996, and who are disabled or blind as defined in section
1614(a) of the Act are eligible for benefits under title XVI provided
all other eligibility requirements are met. Individuals can establish
eligibility based on disability or blindness at any age, even on or
after attaining age 65.
In addition to qualified aliens, determinations of disability under
title XVI also may be needed for other individuals age 65 or older to
determine:
State supplements in some States (section 1616 of the Act);
Whether the work incentive provisions of section 1619(b) of the Act
are applicable; or
Appropriate deeming of income and resources (section 1621(f)(1) of
the Act; 20 CFR 416.1160, 416.1161, 416.1166a, and 416.1204).
For adults (individuals age 18 or older) section 1614(a)(3)(A) of
the Act defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less
than 12 months.
The rules we use to determine if this definition is met are set
forth in our regulations in subpart I of 20 CFR Part 416, and
appendices 1 and 2 to subpart P of 20 CFR Part 404. Although these
rules were, in general, developed for individuals who have not attained
age 65, they do recognize that certain characteristics would result in
greater vocational adversity as individuals age.
Ruling:
Evaluation Issues
In general, the regulations and procedures for determining
disability for adults under title XVI of the Act who are under age 65
are used when determining whether an individual age 65 or older is
disabled, except as provided later in this Ruling.
To determine if an adult is disabled as defined in the Act,
adjudicators generally use the 5-step sequential evaluation process set
out in 20 CFR 416.920.
Step 1--Is the Individual Working?
If the individual is working, and the work is substantial gainful
activity (see 20 CFR 416.971-416.976), we will find that the individual
is not disabled regardless of his or her medical condition, age,
education, or work experience.
Step 2--Does the Individual Have a Severe Impairment?
At step 2 of the sequential evaluation process, a determination is
made about whether an individual has a medically determinable
impairment and whether the individual's medically determinable
impairment--or combination of impairments--is ``severe.'' An individual
who does not have an impairment or combination of impairments that is
``severe'' will be found not disabled.
An impairment(s) is considered ``severe'' if it significantly
limits an
[[Page 33339]]
individual's physical or mental abilities to do basic work activities.
An impairment(s) that is ``not severe'' must be a slight abnormality,
or a combination of slight abnormalities, that has no more than a
minimal effect on the ability to do basic work activities. It is
incorrect to consider an impairment to be ``not severe'' because the
impairment's effects are ``normal'' for a person of that age.
As in any claim, adjudicators must consider signs, symptoms, and
laboratory findings when determining whether an individual age 65 or
older has a medically determinable impairment (see 20 CFR 416.908 and
416.928). The likelihood of the occurrence of some impairments
increases with advancing age; e.g., osteoporosis, osteoarthritis,
certain cancers, adult-onset diabetes mellitus, impairments of memory,
hypertension, and impairments of vision or hearing. Adjudicators are
required to consider any impairment(s) the individual has, including
impairments like the ones listed above that are often found in older
individuals. It is incorrect to disregard any of an individual's
impairments because they are ``normal'' for the person's age.
When an individual has more than one medically determinable
impairment and each impairment by itself is ``not severe,''
adjudicators must still assess the impact of the combination of those
impairments on the individual's ability to function. A claim may be
denied at step 2 only if the evidence shows that the individual's
impairments, when considered in combination, are ``not severe''; i.e.,
do not have more than a minimal effect on the individual's physical or
mental ability(ies) to perform basic work activities.
Special Rule for Individuals Age 72 or Older
Generally, we use step 2 of the sequential evaluation process as a
``screen'' to deny individuals with impairments that would have no more
than a minimal effect on their ability to work even if we considered
their age, education, and work experience. However, with advancing age,
it is increasingly unlikely that individuals with medically
determinable impairments will be found to have minimal limitations in
their ability to do basic work activities. By age 72, separate
consideration of whether an individual's medically determinable
impairment(s) is ``severe'' does not serve the useful screening purpose
that it does for individuals who have not attained age 72. Therefore,
if an individual age 72 or older has a medically determinable
impairment(s), that impairment(s) will be considered to be ``severe,''
and evaluation must proceed to the next step of the sequential
evaluation process.
Step 3--Does the Individual Have an Impairment(s) That Meets or Equals
an Impairment Listed in Appendix 1?
When an individual has a severe impairment(s) that meets or
medically equals the requirements for one of the impairments in the
Listing of Impairments in appendix 1 to subpart P of 20 CFR Part 404,
and meets the duration requirement, the individual is disabled.
When Disability Cannot Be Found at Step 3--Assessing Residual
Functional Capacity
When the individual does not have an impairment(s) that meets or
equals the requirements for a listed impairment, the adjudicator is
required to assess the individual's residual functional capacity (RFC).
The RFC assessment is an adjudicator's finding about the ability of an
individual to perform both physical and mental work-related activities
despite his or her impairment(s). The assessment considers all of the
individual's medically determinable impairments, including those that
are ``not severe,'' and all limitations or restrictions caused by
symptoms, such as pain, that are related to the medically determinable
impairment(s). The assessment is based upon consideration of all
relevant evidence in the case record, including medical evidence and
relevant nonmedical evidence, such as observations of lay witnesses of
an individual's apparent symptomatology, or an individual's own
statement of what he or she is able or unable to do.
When assessing RFC in an initial claim, an adjudicator should not
find that an individual has limitations or restrictions beyond those
caused by his or her medically determinable impairment(s). Limitations
or restrictions due to factors such as age, height, or whether the
individual has ever engaged in certain activities in his or her PRW
(e.g., lifting heavy weights) are, per se, not considered in assessing
RFC. (See SSR 96-8p, ``Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims.'')
Step 4--Does the Individual Have an Impairment(s) That Prevents Him or
Her From Performing Past Relevant Work?
The RFC assessment discussed above is first used at step 4 of the
sequential evaluation process to determine whether the individual is
capable of doing PRW. The rules and procedures we use to make this
determination for individuals under age 65 are also applicable to
individuals age 65 or older. This includes consideration of whether the
individual can perform his or her PRW as he or she actually performed
it or as it is generally performed in the national economy. If the
individual's PRW was performed in a foreign economy, we will generally
only consider whether the individual can perform his or her PRW as he
or she described it. However, if the work the individual did in a
foreign economy also exists in the U.S. economy, we will consider
whether he or she can perform the work as it is generally performed in
the national economy. If the individual can perform his or her PRW, he
or she will be found not disabled.
(See SSR 82-40, ``Titles II and XVI: The Vocational Relevance of the
Past Work Performed in a Foreign Country.'')
Step 5--Can the Individual Do Other Work?
The last step of the sequential evaluation process requires us to
determine whether an individual can do other work considering his or
her RFC, age, education and work experience.
Special Medical-Vocational Profiles Showing an Inability To Make an
Adjustment to Other Work
If the individual's impairment(s) does preclude the performance of
PRW, or if the individual does not have PRW, two special medical-
vocational profiles must be considered before referring to appendix 2
to subpart P of 20 CFR Part 404. The special profiles are discussed in
SSR 82-63, ``Titles II and XVI: Medical-Vocational Profiles Showing an
Inability to Make an Adjustment to Other Work.''
The ``arduous unskilled physical labor'' profile applies when an
individual:
Is not working;
Has a history of 35 years or more of arduous unskilled physical
labor;1
Can no longer perform this past arduous work because of a severe
impairment(s); and
Has no more than a marginal education (generally 6th grade or
less).
The ``no work experience'' profile applies when an individual:
Has a severe impairment(s);
Has no past relevant work;
Is age 55 or older; and
Has no more than a limited education (generally, 11th grade or
less).
If either of these profiles applies, a finding of ``disabled'' must
be made. This finding is made without considering the criteria in
appendix 2 to subpart P of 20 CFR Part 404.
[[Page 33340]]
Applying the Criteria in Appendix 2 to Subpart P of 20 CFR part 404
If the special medical-vocational profiles are not applicable, we
use the rules in appendix 2 to subpart P of 20 CFR Part 404 to
determine whether the individual has the ability to do other work. The
highest age category used in appendix 2 is age 60-64, ``closely
approaching retirement age.'' However, we have longstanding internal
procedures that direct our adjudicators to use the rules for ages 60-64
when making determinations for individuals age 65 or older at step 5.
Under those rules, individuals age 65 or older who are limited to
``sedentary'' or ``light'' work will be found disabled unless their PRW
provided them with transferable skills or they are at least a high
school graduate and their education provides for direct entry into
skilled work. As set out in sections 201.00(f) and 202.00(f) of
appendix 2, to find transferability of skills for individuals age 65 or
older who are limited to sedentary or light work, there must be very
little, if any, vocational adjustment required in terms of tools, work
processes, work settings, or the industry.1
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\1\ However, for individuals residing in the Fifth, Sixth, and
Eighth Federal judicial circuits, see Acquiescence Rulings AR 95-
1(6), AR 99-2(8), and AR 99-3(5).
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Individuals age 65 or older who can perform the full range of
medium work are found disabled when they have no more than a marginal
education and their PRW was unskilled or they had no PRW, or when they
have no more than a limited education and no PRW. In addition, some
individuals who do not meet these criteria may also be found disabled
as set forth in the next section.
Special Rule for Determining Disability for Individuals Age 65 or Older
Who Can Perform Medium Work But Who Are Illiterate in English or Unable
To Communicate in English
Section 203.00 of appendix 2 contains rules used to make disability
determinations for individuals who retain the functional capacity to
perform medium work. The capacity to perform medium work also includes
the capacity to perform light and sedentary work, and represents the
capability to perform a substantial number of jobs. For individuals
under age 65 considered under this section, this capability represents
a substantial vocational scope even for individuals who are illiterate
in English or unable to communicate in English.
However, beginning at age 65, the individual's age is considered to
be a factor that imposes greater limits on vocational adaptability. If
illiteracy in English or the inability to communicate in English
further limits such an individual, a finding of ``disabled'' is
warranted unless the individual's PRW was skilled or semiskilled and
provided the individual with transferable skills. For a finding of
transferability of skills to medium work for an individual age 65 or
older, there must be very little, if any, vocational adjustment
required in terms of tools, work processes, work settings, or the
industry.
Duration
As indicated earlier, the likelihood of the occurrence of some
impairments, such as osteoporosis, osteoarthritis, certain cancers,
adult-onset diabetes mellitus, impairments of memory, hypertension, and
impairments of vision or hearing, increases with advancing age.
Moreover, such impairments are more likely to be chronic than acute.
Therefore, adjudicators must be especially careful before concluding
that an impairment in an individual age 65 or older will not meet the
12-month duration requirement.
Development Issues
Developing Allegations of Impairment(s)
When obtaining the medical history of an individual age 65 or
older, it is important to be alert to and address allegations of
impairments that are commonly associated with the aging process, such
as osteoporosis, arthritis, loss of vision, hearing loss, and memory
loss. Allegations may be raised in response to specific questions about
the individual's impairment(s); e.g., on Form SSA-3368-BK. However,
adjudicators must also be alert to allegations raised in other evidence
in the file. For example, questionnaires about activities of daily
living may contain statements like ``I have difficulty walking or
climbing stairs because my legs hurt,'' ``I can't clean my apartment
because my back hurts,'' or ``I don't read much anymore because I don't
see well.'' These statements constitute allegations of impairment(s).
Therefore, adjudicators must:
Review the case file thoroughly to identify all allegations or
other indications of impairment.
Be aware that the medical evidence or third party statements can
raise additional allegations.
When contacting an individual age 65 or older, be alert to
statements indicating the presence of an impairment(s) commonly
associated with the aging process.
Consider all signs or symptoms indicative of an impairment(s),
including those impairments caused by degenerative changes associated
with the aging process.
Purchasing Medical Evidence
Our regulations, at 20 CFR 416.912(f) and 416.917, indicate that we
will purchase CEs when the individual's medical sources cannot or will
not give us sufficient medical evidence about the individual's
impairment for us to determine if he or she is disabled. Section
416.919f further provides that we will purchase only the specific
examinations and tests that we need to make a determination or
decision. Due to the wide range of allegations contained in cases of
individuals age 65 or older, evidence addressing more than one body
system may need to be purchased. In these situations, it is usually
appropriate to purchase general medical examinations rather than
examinations targeted at particular body systems. This will ensure that
all allegations of impairment are evaluated, and will reduce the burden
on the individual. For example, if the individual alleges back and knee
pain, shortness of breath on exertion, and numbness and weakness in his
or her arm, a general medical examination would usually be preferable
to separate orthopedic, neurologic, and respiratory or cardiac
examinations.
Failure To Cooperate
Individuals filing for benefits based on disability or blindness
have certain responsibilities for furnishing us with, or helping us
obtain, needed evidence. Our regulations at 20 CFR 416.912(c), 416.916,
and 416.918 describe these responsibilities. However, due to factors
such as possible language barriers or limited education, some
individuals age 65 or older may not understand, or be able to comply
with, our requests to submit evidence or attend a CE.
If it appears that an individual age 65 or older is not
cooperating, adjudicators must take the following additional actions
when the individual does not have an appointed representative, or when
the appointed representative has asked us to deal directly with the
individual.
If an individual age 65 or older has not supplied evidence or taken
an action we requested and still need, the adjudicator must:
Contact the individual to determine why he or she has not complied
with our request. If it appears that the individual needs personal
assistance, including interpreter assistance, to
[[Page 33341]]
complete forms, request field office assistance.
Contact a third party (i.e., someone other than the individual's
representative) if one has been identified, about assisting the
individual at the same time the adjudicator contacts the individual.
If an individual age 65 or older did not attend a CE, the
adjudicator must:
Contact the individual to determine why he or she did
not attend the CE.
Make at least two attempts at different times on
different days to contact the individual by telephone. (A busy
signal does not constitute an attempt.)
Send the claimant a call-in letter if telephone contact
is not possible or successful.
Contact a third party, if one has been identified,
about assisting the claimant at the same time contact is attempted
with the claimant.
When contact is made with the individual or the third
party, explain that the CE is for evaluation purposes only, and that
no treatment will be required.
Reschedule the CE if the individual had a good reason
for not attending the prior CE (e.g., he or she had transportation
problems or was out of the country at the time of the CE) and
indicates a willingness to attend a rescheduled CE.
Non-English-Speaking or Limited-English-Proficiency Individuals
For all the development issues discussed above, adjudicators must
remember that we are responsible for obtaining the services of a
qualified interpreter if the individual requests or needs one. This
includes providing an interpreter at a CE if the CE provider is not
sufficiently fluent in the individual's language.
EFFECTIVE DATE: This Ruling is effective on the date of its publication
in the Federal Register.
CROSS-REFERENCES: SSR 82-40, ``Titles II and XVI: The Vocational
Relevance of the Past Work Performed in a Foreign Country''; SSR 82-61,
``Titles II and XVI: Past Relevant Work--The Particular Job or the
Occupation as Generally Performed''; SSR 82-62, ``Titles II and XVI: A
Disability Claimant's Capacity To Do Past Relevant Work, In General'';
SR 82-63, ``Titles II and XVI: Medical-Vocational Profiles Showing an
Inability To Make an Adjustment to Other Work'''; SSR 85-28, ``Titles
II and XVI: Medical Impairments That Are Not Severe''; SSR 96-3p,
``Titles II and XVI: Considering Allegations of Pain and Other Symptoms
in Determining Whether a Medically Determinable Impairment Is Severe'';
SSR 96-8p, ``Titles II and XVI: Assessing Residual Functional Capacity
in Initial Claims''; AR 95-1(6), ``Preslar v. Secretary of Health and
Human Services, 14 F.3d 1107 (6th Cir. 1994)--Definition of Highly
Marketable Skills for Individuals Close to Retirement Age--Titles II
and XVI of the Social Security Act''; AR 99-2(8), ``Kerns v. Apfel, 160
F.3d 464 (8th Cir. 1998)--Definition of Highly Marketable Skills for
Individuals Close to Retirement Age--Titles II and XVI of the Social
Security Act''; AR 99-3(5), ``McQueen v. Apfel, --Definition of Highly
Marketable Skills for Individuals Close to Retirement Age--Titles II
and XVI of the Social Security Act''; and Program Operations Manual
System, sections DI 22505.015, DI 22510.018, DI 22510.019, DI
23515.010, DI 23515.025, DI 25010.001, SI 00502.142, and GN 00203.001.
________________
\1\ Training, or isolated, brief, or remote periods of
semiskilled or skilled work will not preclude a finding or arduous
unskilled work if such training or experience did not result in
skills that enable the individual to do other work.
[FR Doc. 99-15972 Filed 6-21-99; 8:45 am]
BILLING CODE 4190-29-P
