[Federal Register Volume 68, Number 217 (Monday, November 10, 2003)]
[Notices]
[Pages 63833-63837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28239]
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SOCIAL SECURITY ADMINISTRATION
[Social Security Ruling, SSR 03-03p.]
Titles II and XVI: Evaluation of Disability and Blindness in
Iinitial Claims for Individuals Aged 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 03-03p. We
are revising Social Security Ruling (SSR) 99-3p, Title XVI: Evaluation
of Disability and Blindness in Initial Claims for Individuals Age 65 or
Older (64 FR 33337, June 22, 1999). SSR 99-3p was confined to
individuals who apply for disability payments under title XVI of the
Social Security Act (the Act). In this revised ruling, we are adding
provisions for individuals who apply for disability benefits under
title II of the Act. Section 216(l) of the Act phases in gradual
increases in the full retirement age from age 65 to age 67. As a result
of these increases we will be processing some disability claims under
title II of the Act for individuals who are aged 65 or older.
Therefore, this Ruling clarifies the Social Security Administration's
standards and procedures for the adjudication of disability and
blindness claims for individuals aged 65 or older under titles II and
XVI of the Act. This Ruling supersedes SSR 99-3p.
In addition to the revisions made to incorporate instructions for
title II
[[Page 63834]]
claims we have updated SSR 99-3p. We have deleted the section that was
titled ``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.'' We did this because those
instructions actually applied to all individuals aged 60 or older-not
just to individuals aged 65 and older. In addition, we are revising our
regulations to make this clear. (See Notice of Proposed Rulemaking;
Federal Old-Age, Survivors and Disability Insurance; Determining
Disability and Blindness; Clarification of the Education and Previous
Work Experience Categories in the Medical-Vocational Rules). We have
also deleted obsolete information and made some minor revisions to the
language of SSR 99-3p.
EFFECTIVE DATE: This ruling is effective on the date of its publication
in the Federal Register (November 10, 2003).
FOR FURTHER INFORMATION CONTACT: Martin Sussman, Regulations Officer,
Social Security Administration, 100 Altmeyer Building, 6401 Security
Boulevard, Baltimore, MD 21235-6401, (410) 965-1767.
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 policy 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, Programs 96.001 Social
Security--Disability Insurance; 96.003 Social Security--Special
Benefits for Persons Aged 72 and Over; 96.006 Supplemental Security
Income)
Dated: November 4, 2003.
Jo Anne B. Barnhart,
Commissioner of Social Security.
Policy Interpretation Ruling
This Ruling supersedes SSR 99-3p, Title XVI: Evaluation of
Disability and Blindness in Initial Claims for Individuals Age 65 or
Older (64 FR 33337, June 22, 1999).
Purpose: To clarify SSA's standards and procedures for the
adjudication of titles II and XVI of the Social Security Act (the Act)
disability and blindness claims for individuals aged 65 or older. In
particular, this Ruling explains that:
[sbull] In general, the regulations and procedures for determining
disability for adults who are under age 65 are used when determining
whether an individual aged 65 or older is disabled.
[sbull] Adjudicators are required to consider any impairment(s) the
individual has, including those that are often found in older
individuals.
[sbull] If an individual aged 72 or older has a medically
determinable impairment, that impairment will be considered to be
``severe.''
[sbull] 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.
[sbull] Generally, adjudicators should use the rules for
individuals aged 60-64 when determining whether an individual aged 65
or older can adjust to other work.
[sbull] Some individuals aged 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
aged 65 or older may not be cooperating.
Citations: Section 5301 of Public Law (Pub. L.) 105-33, sections
402 and 431 of Pub. L. 104-193, as amended, sections 216(l), 223(a)(1),
223(d), 1614(a), 1616, 1619(b) and 1621(f)(1) of the Act, as amended;
20 CFR part 404, subpart P, appendices 1 and 2, Sec. Sec. 404.1501-
1599, and 20 CFR part 416, subpart I, Sec. Sec. 416.901-416.923,
416.925-416.926, 416.927-416.986, 416.988-416.994, and 416.995-416.998.
Background: Section 216(l) of the Act phases in a gradual increase
in the full retirement age from age 65 to age 67. These changes first
affect individuals who were born in 1938; that is, who turn age 65 in
2003. By 2027, the incremental increases will be complete, and a full
retirement age of 67 will be applicable to all individuals who were
born in 1960 or later. These provisions do not change the age at which
an individual can take early retirement at a reduced benefit amount,
which remains at age 62. Under title II, an individual can establish
entitlement to benefits based on disability or blindness until the
month in which he or she attains full retirement age. Therefore, as a
result of the increases in the full retirement age, we will be
processing some disability claims under title II of the Act for
individuals who are aged 65 or older.
On August 5, 1997, Pub. L. 105-33, the Balanced Budget Act of 1997,
amended Pub. 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 attainment of age 65.
In addition to qualified aliens, determinations of disability under
title XVI also may be needed for other individuals aged 65 or older to
determine:
[sbull] State supplements in some States (section 1616 of the Act);
[sbull] Whether the work incentive provisions of section 1619(b) of
the Act are applicable; or
[sbull] Appropriate deeming of income and resources (section
1621(f)(1) of the Act; 20 CFR 416.1160, 416.1161, 416.1166a, and
416.1204).
Ruling: Evaluation Issues. In general, the regulations and
procedures for determining disability for adults who are under age 65
are used when determining whether an individual aged 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 404.1520 and 416.920.
Step 1--Is the Individual Working? If the individual is working and
the work is substantial gainful activity (see 20 CFR 404.1571-404.1576
and 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.
[[Page 63835]]
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 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 disregard an impairment or consider it 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 aged 65 or
older has a medically determinable impairment (see 20 CFR 404.1508 and
404.1528, and 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 Applying for Title XVI Benefits Who
Are Aged 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 aged 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 (PRW)? 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 aged 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 consider only
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 United States, 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:
[sbull] Is not working;
[sbull] Has a history of 35 years or more of arduous unskilled
physical labor \1\;
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\1\ Training, or isolated, brief, or remote periods of
semiskilled or skilled work will not preclude a finding of arduous,
unskilled work, if such training or experience did not result in
skills that enable the individual to adjust to other work.
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[sbull] Can no longer perform this past arduous work because of a
severe impairment(s); and
[[Page 63836]]
[sbull] Has no more than a marginal education (generally 6th grade
or less).
The ``no work experience'' profile applies when an individual:
[sbull] Has a severe impairment(s);
[sbull] Has no PRW;
[sbull] Is aged 55 or older; and
[sbull] 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.
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 aged 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 aged 65 or older at step 5.
Under those rules, individuals aged 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 Sec. Sec. 201.00(f) and 202.00(f) of
appendix 2, to find transferability of skills for individuals aged 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.
Individuals aged 65 or older who can perform the full range of
``medium'' work are found disabled when they have no more than a
limited education (including individuals who are illiterate in English
or unable to communicate in English) and no PRW. Individuals aged 65 or
older who can perform a full range of ``medium'' work are also found
disabled when they have no more than a marginal education (including
individuals who are illiterate in English or unable to communicate in
English) and no PRW or their PRW is unskilled or their skilled or semi-
skilled PRW provides no transferable skills.
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 aged 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 aged 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:
[sbull] Review the case file thoroughly to identify all allegations
or other indications of impairment.
[sbull] Be aware that the medical evidence or third party
statements can raise additional allegations.
[sbull] When contacting an individual aged 65 or older, be alert to
statements indicating the presence of an impairment(s) commonly
associated with the aging process.
[sbull] 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
404.1512(f), 404.1517, 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. Sections 404.1519f and
416.919f further provide 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 aged 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, 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
404.1512(c), 404.1516, 404.1518, 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 aged
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 aged 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 aged 65 or older has not supplied evidence or
taken an action we requested and still need, the adjudicator must:
[sbull] 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 complete
forms, request field office assistance.
[sbull] 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 aged 65 or older did not attend a CE, the
adjudicator must:
[sbull] Contact the individual to determine why he or she did not
attend the CE.
[sbull] 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.)
[sbull] Send the claimant a call-in letter if telephone contact is
not possible or successful.
[sbull] Contact a third party, if one has been identified, about
assisting the claimant at the same time contact is attempted with the
claimant.
[sbull] When contact is made with the individual or the third
party, explain that the CE is for evaluation purposes
[[Page 63837]]
only and that no treatment will be required.
[sbull] 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 (November 10, 2003).
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'';
SSR 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 96-4p, ``Titles II and XVI: Symptoms, Medically Determinable
Physical and Mental Impairments, and Exertional and Nonexertional
Limitations''; SSR 96-8p, ``Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims''; SSR 96-9p, ``Titles II and
XVI: Determining Capability to do Other Work--Implications of Residual
Functional Capacity for Less Than a Full Range of Sedentary Work''; 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.
[FR Doc. 03-28239 Filed 11-7-03; 8:45 am]
BILLING CODE 4191-02-P