[Federal Register Volume 77, Number 143 (Wednesday, July 25, 2012)]
[Rules and Regulations]
[Pages 43492-43496]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17934]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2010-0060]
RIN 0960-AH26
Expedited Vocational Assessment Under the Sequential Evaluation
Process
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are revising our rules to give adjudicators the discretion
to proceed to the fifth step of the sequential evaluation process for
assessing disability when we have insufficient information about a
claimant's past relevant work history to make the findings required for
step 4. If an adjudicator finds at step 5 that a claimant may be unable
to adjust to other work existing in the national economy, the
adjudicator will return to the fourth step to develop the claimant's
work history and make a finding about whether the claimant can perform
his or her past relevant work. We expect that this new expedited
process will not disadvantage any claimant or change the ultimate
conclusion about whether a claimant is disabled, but it will promote
administrative efficiency and help us make more timely disability
determinations and decisions.
DATES: These rules are effective August 24, 2012.
FOR FURTHER INFORMATION CONTACT: Janet Truhe, Office of Disability
Programs, Social Security Administration, 6401 Security Boulevard,
Baltimore, Maryland 21235-6401, (410) 966-7203. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
We published a Notice of Proposed Rulemaking (NPRM) in the Federal
Register on September 13, 2011.\1\ In the NPRM, we proposed to give
adjudicators the discretion to proceed to the fifth step of the
sequential evaluation process for assessing disability when we have
insufficient information about a claimant's past relevant work history
to make the findings required for step 4. If an adjudicator finds at
step 5 that a claimant may be unable to adjust to other work existing
in the national economy, the adjudicator will return to the fourth step
to develop the claimant's work history and make a finding about whether
the claimant can perform his or her past relevant work. The expedited
process does not affect our responsibility under the Social Security
Act (Act) and our current regulations to make every reasonable effort
to develop claimants' medical evidence.\2\ The preamble to the NPRM
provides a full explanation of the background of this expedited
process. You can view the preamble to the NPRM by visiting
www.regulations.gov and searching for document ``SSA-2010-0060-0001.''
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\1\ 76 FR 56357.
\2\ See sections 223(d)(5)(B) and 1614(a)(3)(H) of the Act and
20 CFR 404.1512(d) and 416.912(d).
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Public Comments
We provided 60 days for the public to comment on the NPRM. We
received three comment letters. They came from a member of the
disability advocacy community, a regional disability advocacy group,
and a national group of Social Security claimants' representatives. You
can view the comments by visiting www.regulations.gov and searching for
``SSA-2010-0060.'' After carefully considering the comments, we are
adopting our proposed revisions, with a few minor changes described
below, in these final rules.
Because of their length, we have condensed, summarized, and
paraphrased the comments and responded to the significant issues raised
by the commenters that were within the scope of these rules.
Comment: One commenter expressed concern that adjudicators may
incorrectly deny claims if they do not fully develop claimants' past
work histories and consider the special medical-vocational profiles.\3\
To ensure that adjudicators properly consider the special profiles, the
commenter recommended that we require adjudicators who do not make
findings at step 4 to state that they considered the potential
application of the special profiles before they deny claims at step 5.
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\3\ See 20 CFR 404.1562 and 416.962, Social Security Ruling 82-
63, and POMS DI 25010.001, available at http://policynet.ba.ssa.gov/poms.nsf/lnx/0425010001.
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Response: We agree with the commenter that adjudicators who do not
make findings at step 4 using the expedited process must consider the
potential application of the special medical-vocational profiles before
they deny claims at step 5. To remind our adjudicators to consider the
special profiles in this situation, we are including a reference to
section 404.1562 \4\ in final sections 404.1520(h) and 404.1594(f)(9)
and a reference to section 416.962 \5\ in final sections 416.920(h) and
416.994(b)(5)(viii). We are also including a reference to section
404.1562 in final section 404.1545(a)(5)(ii) to be consistent with the
reference to section 416.962 we proposed and are adopting in final
section 416.945(a)(5)(ii).
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\4\ Medical-vocational profiles showing an inability to make an
adjustment to other work.
\5\ Id.
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However, we are not adopting the suggestion to require adjudicators
to state that they considered medical-vocational profiles in this
situation because we can address the commenter's concern in ways that
we believe will be more effective.
First, we currently have an electronic claims analysis tool in
widespread use at the initial level of our administrative review
process that reminds adjudicators to consider these profiles before
they evaluate claims at step 5. We will insert a similar reminder in
this tool so that adjudicators will consider special profiles before
determining whether to proceed to step 5 using the expedited process.
As we indicated in the NPRM, if adjudicators use the
[[Page 43493]]
expedited process, they will still consider whether claimants may be
disabled based on the special medical-vocational profiles, the Medical-
Vocational Guidelines (Guidelines),\6\ or an inability to meet the
mental demands of unskilled work.\7\ We also explained that ``[i]f any
of these rules would indicate that the claimant may be disabled or if
the adjudicator has any doubt whether the claimant can perform other
work existing in significant numbers in the economy, the adjudicator
must return to step 4 to further develop the claimant's vocational
information and determine whether the claimant can perform his or her
past relevant work.'' \8\ If there is insufficient evidence about a
claimant's past relevant work in the record to determine whether a
special medical-vocational profile applies, the adjudicator must return
to step 4 to further develop the vocational evidence because a special
medical-vocational profile may apply.
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\6\ See 20 CFR 404.1569 and 416.969.
\7\ See 76 FR at 56359.
\8\ Id. (emphasis added).
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Second, we plan to conduct training on these final rules for
adjudicators at all levels of the disability determination process
regarding use of the new expedited process. We will also monitor the
use of the expedited process during quality reviews to ensure that we
apply the process correctly.
Comment: One commenter doubted whether we could deny claims at step
5 using the expedited process because a step 5 analysis must include
consideration of claimants' past work histories. Another commenter
stated we should always develop a complete past work history because
evidence of past work can influence our finding at step 5 and can
inform our assessment of the claimant's residual functional capacity
(RFC).\9\
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\9\ See 20 CFR 404.1545 and 416.945. An RFC assessment is a
finding about the most a claimant can still do despite his or her
physical and mental limitations.
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Response: We disagree with these comments. There are a number of
situations in which it would be appropriate to deny a claim without
considering a claimant's past work history. For example, if a claimant
is 44 years old with a high school education and has the RFC to perform
a full range of sedentary work, Rules 201.27, 201.28, and 201.29 of the
Medical-Vocational Guidelines (Guidelines) direct that this claimant be
found not disabled, regardless of the skill level of his or her past
relevant work or the transferability of those skills.\10\ As we
explained in the NPRM, adjudicators will only find that a claimant is
not disabled without returning to step 4 when they can find at step 5
that a claimant is not disabled ``based solely on age, education, and
RFC, regardless of the claimant's skill level and transferability of
those skills.'' \11\
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\10\ See Appendix 2 to Subpart P of Part 404--Medical-Vocational
Guidelines. In this example, none of the special profiles would
potentially apply, and we assume that the claimant can meet the
mental demands of unskilled work.
\11\ 76 FR at 56359 (emphasis added).
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We also disagree with the comment that we need evidence of past
work history to determine a claimant's RFC. As our current rules make
clear, we determine a claimant's RFC before we go to step 4,\12\ and we
do not assess RFC in the context of a claimant's past work history.
Rather, we determine a claimant's RFC based on his or her ability to
meet the ``physical, mental, sensory, and other requirements of work''
\13\ on a ``regular and continuous basis.'' \14\ For example, the
physical demands of work include activities such as sitting, standing,
and walking.\15\ We do not assess RFC in the context of a claimant's
past work history; therefore, we can use the proposed expedited process
regardless of past work history development.
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\12\ See 20 CFR 404.1520(a)(4) and 416.920(a)(4).
\13\ 20 CFR 404.1545(a)(4) and 416.945(a)(4).
\14\ 20 CFR 404.1545(b) and (c) and 416.945(b) and (c).
\15\ See 20 CFR 404.1545(b) and 416.945(b).
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Comment: One commenter questioned our view that the expedited
process would not disadvantage any claimant \16\ and expressed several
concerns. The commenter believed that adjudicators would have too much
discretion to decide when to use the expedited process because we did
not explain what we mean by ``insufficient'' evidence to make a finding
at step 4. The commenter said that by not requiring our adjudicators to
make even a ``reasonable effort'' to obtain additional evidence of past
work history, we diminish their duty to develop the record, even if
evidence is readily available. The commenter also said that if we
adopted the expedited process we would adjudicate claims using
different procedures and would incorrectly deny some claims without
fully assessing some claimants' abilities to perform their past
relevant work. The commenter recognized that making the correct
decision ``as early in the process as possible is the key to a fair
process,'' but said that the expedited process might lead us to deny
claims incorrectly due to insufficient development of past work.
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\16\ See 76 FR at 56357.
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Response: We disagree with these comments. First, in response to
the commenter's concern about the definition of ``insufficient,'' we
explained in the NPRM that we would consider evidence to be
insufficient when a claimant does not provide us with enough
information about each of his or her jobs within the relevant 15-year
period on Form SSA-3368, Disability Report-Adult, (or the Internet
version of this form) \17\ and, when necessary, Form SSA-3369, Work
History Report,\18\ for us to make a finding at step 4.\19\ Our
adjudicators are familiar with the concept of ``insufficient evidence''
in this context, and we are confident that they understand reference to
``insufficient evidence'' of a claimant's ability to do his or her past
work. We also have not revised these rules to require adjudicators to
make a reasonable effort to collect additional work history before
going to step 5 in all cases. Imposing such a requirement would delay
adjudication in those cases in which the claimant's past relevant work
history has no effect on the ultimate finding of disability.
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\17\ Currently available at https://secure.ssa.gov/apps6z/radr/radr-fi.
\18\ Currently available at http://www.socialsecurity.gov/online/ssa-3369.pdf.
\19\ 76 FR at 56358.
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Although use of the expedited process may change whether we deny a
claim at step 5 versus step 4, we expect that it will not change the
ultimate determination of whether the claimant is disabled. We will
only deny a claim at step 5 using the expedited process if the
claimant's age, education, and RFC indicate that he or she is not
disabled regardless of what an inquiry into past relevant work would
reveal. As we noted in the NPRM, our experience using a similar
expedient in the ten ``prototype'' States supports the conclusion that
the expedited process does not change our ultimate decision as to
whether or not a claimant is disabled.\20\
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\20\ 76 FR at 56359.
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Other Changes
We are correcting a cross-reference in Sec. Sec. 404.1527 and
416.927 to reflect renumbering changes in a final rule published on
February 23, 2012 at 77 FR 10651.
[[Page 43494]]
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and
determined that these final rules meet the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563. Thus, OMB reviewed them.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
only affect individuals. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
Paperwork Reduction Act
These final rules do not create any new or affect any existing
collections; therefore, they do not require OMB approval under the
Paperwork Reduction Act.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the preamble, we are amending title 20
of the Code of Federal Regulations part 404 subpart P and part 416
subpart I as set forth below:
PART 404--FEDERAL OLD AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart P--[Amended]
0
1. The authority citation for subpart P of part 404 is revised to read
as follows:
Authority: Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a),
(i), and (j), 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), (i), and
(j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193,
110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).
0
2. Amend Sec. 404.1505 by revising the sixth sentence of paragraph (a)
to read as follows:
Sec. 404.1505 Basic definition of disability.
(a) * * * If we find that you cannot do your past relevant work, we
will use the same residual functional capacity assessment and your
vocational factors of age, education, and work experience to determine
if you can do other work. (See Sec. 404.1520(h) for an exception to
this rule.) * * *
* * * * *
0
3. Amend Sec. 404.1520 by adding a new second sentence to paragraph
(a)(4), by revising the last sentence of paragraph (a)(4)(iv), the last
sentence of paragraph (a)(4)(v), the second sentence of paragraph (f),
and by adding a new paragraph (h), to read as follows:
Sec. 404.1520 Evaluation of disability in general.
(a) * * *
(4) * * * See paragraph (h) of this section for an exception to
this rule. * * *
(iv) * * * See paragraphs (f) and (h) of this section and Sec.
404.1560(b).
(v) * * * See paragraphs (g) and (h) of this section and Sec.
404.1560(c).
* * * * *
(f) * * * See paragraph (h) of this section and Sec. 404.1560(b).
* * *
* * * * *
(h) Expedited process. If we do not find you disabled at the third
step, and we do not have sufficient evidence about your past relevant
work to make a finding at the fourth step, we may proceed to the fifth
step of the sequential evaluation process. If we find that you can
adjust to other work based solely on your age, education, and the same
residual functional capacity assessment we made under paragraph (e) of
this section, we will find that you are not disabled and will not make
a finding about whether you can do your past relevant work at the
fourth step. If we find that you may be unable to adjust to other work
or if Sec. 404.1562 may apply, we will assess your claim at the fourth
step and make a finding about whether you can perform your past
relevant work. See paragraph (g) of this section and Sec. 404.1560(c).
0
4. In Sec. 404.1527(e)(1)(ii), remove ``paragraph (f)(1)(i) of this
section'' and add in its place ``paragraph (e)(1)(i) of this section''.
0
5. Amend Sec. 404.1545 by revising the first sentence of paragraph
(a)(5)(ii) to read as follows:
Sec. 404.1545 Your residual functional capacity.
(a) * * *
(5) * * *
(ii) If we find that you cannot do your past relevant work, you do
not have any past relevant work, or if we use the procedures in Sec.
404.1520(h) and Sec. 404.1562 does not apply, we will use the same
assessment of your residual functional capacity at step five of the
sequential evaluation process to decide if you can adjust to any other
work that exists in the national economy. * * *
* * * * *
0
6. Amend Sec. 404.1560 by adding a second sentence to paragraph (b)
and revising the first two sentences of paragraph (c)(1) to read as
follows:
Sec. 404.1560 When we will consider your vocational background.
* * * * *
(b) * * * See Sec. 404.1520(h) for an exception to this rule.
* * * * *
(c) Other work. (1) If we find that your residual functional
capacity does not enable you to do any of your past relevant work or if
we use the procedures in Sec. 404.1520(h), we will use the same
residual functional capacity assessment when we decide if you can
adjust to any other work. We will look at your ability to adjust to
other work by considering your residual functional capacity and the
vocational factors of age, education, and work experience, as
appropriate in your case. (See Sec. 404.1520(h) for an exception to
this rule.) * * *
* * * * *
0
7. Amend Sec. 404.1565 by revising the second sentence of paragraph
(b) to read as follows:
Sec. 404.1565 Your work experience as a vocational factor.
* * * * *
(b) * * * If you cannot give us all of the information we need, we
may try, with your permission, to get it from your employer or other
person who knows about your work, such as a member of your family or a
co-worker. * * *
0
8. Amend Sec. 404.1569 by revising the third sentence to read as
follows:
Sec. 404.1569 Listing of Medical-Vocational Guidelines in appendix 2.
* * * We apply these rules in cases where a person is not doing
substantial gainful activity and is prevented by a severe medically
determinable
[[Page 43495]]
impairment from doing vocationally relevant past work. (See Sec.
404.1520(h) for an exception to this rule.) * * *
0
9. Amend Sec. 404.1594 by revising paragraph (f)(8) and adding a new
paragraph (f)(9) to read as follows:
Sec. 404.1594 How we will determine whether your disability continues
or ends.
* * * * *
(f) * * *
(8) If you are not able to do work you have done in the past, we
will consider whether you can do other work given the residual
functional capacity assessment made under paragraph (f)(7) of this
section and your age, education, and past work experience (see
paragraph (f)(9) of this section for an exception to this rule). If you
can, we will find that your disability has ended. If you cannot, we
will find that your disability continues.
(9) We may proceed to the final step, described in paragraph (f)(8)
of this section, if the evidence in your file about your past relevant
work is not sufficient for us to make a finding under paragraph (f)(7)
of this section about whether you can perform your past relevant work.
If we find that you can adjust to other work based solely on your age,
education, and residual functional capacity, we will find that you are
no longer disabled, and we will not make a finding about whether you
can do your past relevant work under paragraph (f)(7) of this section.
If we find that you may be unable to adjust to other work or if Sec.
404.1562 may apply, we will assess your claim under paragraph (f)(7) of
this section and make a finding about whether you can perform your past
relevant work.
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--[Amended]
0
10. The authority citation for subpart I of part 416 continues to read
as follows:
Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L.
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423
note, and 1382h note).
0
11. Amend Sec. 416.905 by revising the last sentence of paragraph (a)
to read as follows:
Sec. 416.905 Basic definition of disability for adults.
(a) * * * If we find that you cannot do your past relevant work, we
will use the same residual functional capacity assessment and your
vocational factors of age, education, and work experience to determine
if you can do other work. (See Sec. 416.920(h) for an exception to
this rule.)
* * * * *
0
12. Amend Sec. 416.920 by adding a new second sentence to paragraph
(a)(4), by revising the last sentence of paragraph (a)(4)(iv), the last
sentence of paragraph (a)(4)(v), the second sentence of paragraph (f),
and by adding a new paragraph (h), to read as follows:
Sec. 416.920 Evaluation of disability of adults, in general.
(a) * * *
(4) * * * See paragraph (h) of this section for an exception to
this rule. * * *
(iv) * * * See paragraphs (f) and (h) of this section and Sec.
416.960(b).
(v) * * * See paragraphs (g) and (h) of this section and Sec.
416.960(c).
* * * * *
(f) * * * See paragraph (h) of this section and Sec. 416.960(b). *
* *
* * * * *
(h) Expedited process. If we do not find you disabled at the third
step, and we do not have sufficient evidence about your past relevant
work to make a finding at the fourth step, we may proceed to the fifth
step of the sequential evaluation process. If we find that you can
adjust to other work based solely on your age, education, and the same
residual functional capacity assessment we made under paragraph (e) of
this section, we will find that you are not disabled and will not make
a finding about whether you can do your past relevant work at the
fourth step. If we find that you may be unable to adjust to other work
or if Sec. 416.962 may apply, we will assess your claim at the fourth
step and make a finding about whether you can perform your past
relevant work. See paragraph (g) of this section and Sec. 416.960(c).
0
13. In Sec. 416.927(e)(1)(ii), remove ``paragraph (f)(1)(i) of this
section'' and add in its place ``paragraph (e)(1)(i) of this section''.
0
14. Amend Sec. 416.945 by revising the first sentence of paragraph
(a)(5)(ii) to read as follows:
Sec. 416.945 Your residual functional capacity.
(a) * * *
(5) * * *
(ii) If we find that you cannot do your past relevant work, you do
not have any past relevant work, or if we use the procedures in Sec.
416.920(h) and Sec. 416.962 does not apply, we will use the same
assessment of your residual functional capacity at step five of the
sequential evaluation process to decide if you can adjust to any other
work that exists in the national economy.
* * * * *
0
15. Amend Sec. 416.960 by adding a second sentence to paragraph (b)
and revising the first two sentences of paragraph (c)(1) to read as
follows:
Sec. 416.960 When we will consider your vocational background.
* * * * *
(b) * * * See Sec. 416.920(h) for an exception to this rule.
* * * * *
(c) Other work. (1) If we find that your residual functional
capacity does not enable you to do any of your past relevant work or if
we use the procedures in Sec. 416.920(h), we will use the same
residual functional capacity assessment when we decide if you can
adjust to any other work. We will look at your ability to adjust to
other work by considering your residual functional capacity and the
vocational factors of age, education, and work experience, as
appropriate in your case. (See Sec. 416.920(h) for an exception to
this rule.) * * *
* * * * *
0
16. Amend Sec. 416.965 by revising the second sentence of paragraph
(b) to read as follows:
Sec. 416.965 Your work experience as a vocational factor.
* * * * *
(b) * * * If you cannot give us all of the information we need, we
may try, with your permission, to get it from your employer or other
person who knows about your work, such as a member of your family or a
co-worker. * * *
0
17. Amend Sec. 416.969 by revising the third sentence to read as
follows:
Sec. 416.969 Listing of Medical-Vocational Guidelines in appendix 2
of subpart P of part 404 of this chapter.
* * * We apply these rules in cases where a person is not doing
substantial gainful activity and is prevented by a severe medically
determinable impairment from doing vocationally relevant past work.
(See Sec. 416.920(h) for an exception to this rule.) * * *
0
18. Amend Sec. 416.987 by revising the first sentence of paragraph (b)
to read as follows:
[[Page 43496]]
Sec. 416.987 Disability redeterminations for individuals who attain
age 18.
* * * * *
(b) * * * When we redetermine your eligibility, we will use the
rules for adults (individuals age 18 or older) who file new
applications explained in Sec. 416.920(c) through (h). * * *
* * * * *
0
19. Amend Sec. 416.994 by revising paragraph (b)(5)(vii) and adding a
new paragraph (b)(5)(viii) to read as follows:
Sec. 416.994 How we will determine whether your disability continues
or ends, disabled adults.
* * * * *
(b) * * *
(5) * * *
(vii) Step 7. If you are not able to do work you have done in the
past, we will consider whether you can do other work given the residual
functional capacity assessment made under paragraph (b)(5)(vi) of this
section and your age, education, and past work experience (see
paragraph (b)(5)(viii) of this section for an exception to this rule).
If you can, we will find that your disability has ended. If you cannot,
we will find that your disability continues.
(viii) Step 8. We may proceed to the final step, described in
paragraph (b)(5)(vii) of this section, if the evidence in your file
about your past relevant work is not sufficient for us to make a
finding under paragraph (b)(5)(vi) of this section about whether you
can perform your past relevant work. If we find that you can adjust to
other work based solely on your age, education, and residual functional
capacity, we will find that you are no longer disabled, and we will not
make a finding about whether you can do your past relevant work under
paragraph (b)(5)(vi) of this section. If we find that you may be unable
to adjust to other work or if Sec. 416.962 may apply, we will assess
your claim under paragraph (b)(5)(vi) of this section and make a
finding about whether you can perform your past relevant work.
* * * * *
[FR Doc. 2012-17934 Filed 7-24-12; 8:45 am]
BILLING CODE 4191-02-P