Comment from Appleton, Robert, none--member of the general public

Comments on Docket No. SSA-2008-0016, Revised Medical Criteria for Evaluating Cardiovascular Disorders—Comments on Proposed Changes to Listing Provisions 1) Potential Conflict between Listing of Impairments and Statute Section 223(d)(2) of the Social Security Act (as amended), provides that: “An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” Corresponding language also appears in Section 1614(a)(3)(B). This statutory language requires consideration of age, education, and work experience, as an integral part of any finding that an individual is disabled. The criteria in all sections (including sections 2.00 and 102.00) of the Listing of Impairments (in appendix 1 to subpart P of part 404 of the regulations) are used, in combination with section 404.1520(d) of subpart P and/or section 416.920(d) of subpart I, to find individuals disabled without considering age, education and work experience or the ability to do previous work or other work. There is a direct conflict between the cited statutory language and the regulations being considered here, with respect to the question of whether age, education and work experience must be considered as part of any finding that an individual is disabled. If any parts of Appendix 1 to subpart P of part 404 are extended, added, or changed, an appropriate rationale should be provided to justify the continued existence of these regulations, in light of the rather obvious conflict with underlying statutory provisions. 2) Previously Proposed Criteria for Validating the Listing of Impairments, to Document Lack of Conflict with the Statute One rationale which has been proposed is that the regulations being considered here can exist as an “Administrative expedient” if they result in a finding of disability only for individuals who would still be found disabled even if age, education and work experience were considered. Based on work which began several years earlier, the Disability Research Institute (Illinois) in August 2001 proposed various criteria which could be used to validate the Listing of Impairments, to verify that they are not resulting in any significant numbers of “false positive” findings of disability. The proposed criteria currently appear at: http://www.dri.uiuc.edu/research/p01-02c/default.htm and include several testing criteria, including: a) general population testing to determine the relationship between meeting the Listing criteria and not engaging in substantial gainful activity (SGA), and b) testing allowances under the Listing to see whether the individual would still be found disabled if age, education, and work experience were considered (as required by statute), at steps 4 and 5 of the sequential evaluation process in sections 404.1520 and 416.920. 3) What is the Congressional Intent Concerning the Presumption of Disability Flowing from Meeting the Listing Provisions?--Can the Listing Presumption be Overcome in the Absence of Current Performance of SGA? Social Security Ruling (SSR) 72-4c cites 1967 Congressional discussion of the Listing of Impairments, which preceded the first publication of the Listing of Impairments in regulations. That Congressional intent from 1967 indicates that the presumption of disability which flows from meeting the Listing provisions could, “of course,” be overcome “if other evidence establishes ability to engage in substantial gainful activity . . .” Congress did not indicate that the Listing presumption would be overcome only if the individual was “actually currently engaging in substantial gainful activity” but definitely left open the possibility that various other unspecified evidence (e.g., perhaps sustained performance of SGA with an unchanged impairment which meets the medical criteria in the Listing) could sometimes overcome the Listing presumption. From this Congressional discussion, it appears to this commenter that Congress assumed that the presumption of disability flowing from meeting the Listing provisions would not be so strong as to sometimes invalidate the underlying statutory provisions requiring consideration of age, education and work experience before any finding of disability. However, the Social Security Administration’s (SSA’s) regulations (including the previously cited regulations sections 404.1520 and 416.920) make no provision for overcoming the Listing presumption in any situation other than cases where the individual is currently engaging in SGA. Because SSA strengthened the Listing presumption beyond what the Congress intended, SSA must document the regulations record to show that any Listing provision being established, modified and/or continued has virtually no possibility of resulting in a finding of “disability” for any individual who would not be found disabled if age, education, and work experience were considered as required by statute. 4) Summary When developing, adding, changing, or extending any provisions of the Listing of Impairments (related to evaluating hearing loss or any other disorders or impairments), SSA should clearly document the regulations record to show that appropriate testing has been done, to verify that the Listing sections in question (in virtually all cases) result in a presumption of “disability” only for those individuals who would also be found disabled under the statutorily required consideration of age, education and work experience (and of ability to do previous work or other work). The testing should proceed along the lines suggested by the Disability Research Institute, or should use other similar appropriate methodology which maintains the integrity of the cited statutory provisions. Testimony at the November 2005 conference at Gallaudet University (cited in the NPRM) indicated that roughly 40 to 50 percent (or more) of deaf individuals are in the labor force. It appears to be inconsistent with the statute to assume (based solely on hearing testing) that all deaf individuals (who are not currently working) are unable to work. This level of work force participation by the deaf is clearly more frequent that the “rare exception, highly motivated individual” standard which is generally cited in connection with other listing provisions. This clearly raises questions of inappropriate inconsistency between the provisions proposed here and other parts of the Listing of Impairments;. 5) Disclaimer The author of these comments is writing as a member of the general public. These comments do not, necessarily, represent the view of any public or private organization. The preparation of these comments did not involve use of the facilities, equipment, or “on duty” time of any public or private organization. Only public-access websites were used in researching and preparing these comments.