Federal Register / Vol. 65, No. 86 / Wednesday, May 3, 2000 / Notices 25783

10 15 U.S.C. 78s(b)(3)(A).

11 17 CFR 240.19b–4(f)(6).

12 17 CFR 240.19b–4(f)(6)(iii). For purposes only

of accelerating the operative date of this proposal,

the Commission has considered the proposed rule’s

impact on efficiency, competition, and capital

formation. 15 U.S.C. 78c(f). 13 17 CFR 200.30–3(a)(12)

III. Date of Effectiveness of the

Proposed Rule Change and Timing for

Commission Action

The proposed rule change has been

filed by the Exchange pursuant to

Section 19(b)(3)(A) of the Act 10 and

Rule 19b–4(f)(6) thereunder.11 The

Exchange represents that the proposed

rule change:

(i) Does not significantly affect the

protection of investors or the public interest;

(ii) Does not impose any significant burden

on competition; and

(iii) Does not become operative for 30 days

after the date of the filing, or such shorter

time as the Commission may designate if

consistent with the protection of investors

and the public interest; provided that the

Exchange has given the Commission written

notice of its intent to file the proposed rule

change at least five business days prior to the

date of filing of the proposed rule change, or

such shorter time as designated by the

Commission.

The Exchange has requested that the

Commission accelerate the operative

date of the proposal. In addition, the

Exchange provided the Commission

with written notice of its intent to file

the proposed rule change, along with a

brief description of the proposed rule

change, more than five business days

prior to the date of filing the proposed

rule change.

The Commission finds that it is

appropriate to designate this proposal to

become operative today because such

designation is consistent with the

protection of investors and the public

interest.12 Specifically, the proposal is

an across-the-board assessment on all

seat owners intended to raise revenues

to provide capital improvements to the

Exchange. The Phlx represent that the

fee is necessary to help the Phlx remain

competitive with other markets by

enabling it to make technological and

capital improvements. The Exchange

represents that the revenue raised from

this fee is necessary to fund capital

purchases, including hardware for

capacity upgrades, development efforts

for decimalization, trading floor

expansion, and communication

enhancements. Moreover, absent

acceleration of the operative date, the

Phlx’s ability to collect these fees will

lapse, because the initial phase of the

pilot program has expired. Accordingly,

based on the representations of the

Exchange, the Commission deems it

appropriate to approve the proposed

rule change on an accelerated basis until

July 6, 2000.

IV. Solicitation of Comments

Interested persons are invited to

submit written data, views, and

arguments concerning the foregoing,

including whether the proposed rule

change is consistent with the Act.

Persons making written submissions

should file six copies thereof with the

Secretary, Securities and Exchange

Commission, 450 Fifth Street, NW,

Washington, DC 20549–0609. Copies of

the submission, all subsequent

amendments, all written statements

with respect to the proposed rule

change that are filed with the

Commission, and all written

communications relating to the

proposed rule change between the

Commission and any person, other than

those that may be withheld from the

public in accordance with the

provisions of 5 U.S.C. 552, will be

available for inspection and copying in

the Commission’s Public Reference

Room, 450 Fifth Street, NW,

Washington, DC 20549. Copies of such

filing will also be available for

inspection and copying at the principal

office of the Phlx. All submissions

should refer to File No. SR–Phlx–00–29

and should be submitted by May 24,

2000.

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.13

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 00–11006 Filed 5–2–00; 8:45 am]

BILLING CODE 8010–01–M

SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 00–

2(7)]

Hickman v. Apfel; Evidentiary

Requirements for Determining Medical

Equivalence to a Listed Impairment—

Titles II and XVI of the Social Security

Act.

AGENCY: Social Security Administration.

ACTION: Notice of Social Security

Acquiescence Ruling.

SUMMARY: In accordance with 20 CFR

402.35(b)(2), the Commissioner of Social

Security gives notice of Social Security

Acquiescence Ruling 00-2 (7).

EFFECTIVE DATE: May 3, 2000.

FOR FURTHER INFORMATION CONTACT:

Wanda D. Mason, Litigation Staff, Social

Security Administration, 6401 Security

Boulevard, Baltimore, MD 21235-6401,

(410) 966-5044.

SUPPLEMENTARY INFORMATION: Although

not required to do so pursuant to 5

U.S.C. 552(a)(1) and (a)(2), we are

publishing this Social Security

Acquiescence Ruling in accordance

with 20 CFR 402.35(b)(2).

A Social Security Acquiescence

Ruling explains how we will apply a

holding in a decision of a United States

Court of Appeals that we determine

conflicts with our interpretation of a

provision of the Social Security Act (the

Act) or regulations when the

Government has decided not to seek

further review of that decision or is

unsuccessful on further review.

We will apply the holding of the

Court of Appeals’ decision as explained

in this Social Security Acquiescence

Ruling to claims at all levels of

administrative review within the

Seventh Circuit. This Social Security

Acquiescence Ruling will apply to all

determinations or decisions made on or

after May 3, 2000. If we made a

determination or decision on your

application for benefits between August

6, 1999, the date of the Court of

Appeals’ decision, and May 3, 2000, the

effective date of this Social Security

Acquiescence Ruling, you may request

application of the Social Security

Acquiescence Ruling to the prior

determination or decision. You must

demonstrate, pursuant to 20 CFR

404.985(b)(2) or 416.1485(b)(2), that

application of the Ruling could change

our prior determination or decision in

your case.

Additionally, when we received this

precedential Court of Appeals’ decision

and determined that a Social Security

Acquiescence Ruling might be required,

we began to identify those claims that

were pending before us within the

circuit and that might be subject to

readjudication if an Acquiescence

Ruling were subsequently issued.

Because we determined that an

Acquiescence Ruling is required and are

publishing this Social Security

Acquiescence Ruling, we will send a

notice to those individuals whose

claims we have identified which may be

affected by this Social Security

Acquiescence Ruling. The notice will

provide information about the

Acquiescence Ruling and the right to

request readjudication under the Ruling.

It is not necessary for an individual to

receive a notice in order to request

application of this Social Security

Acquiescence Ruling to the prior

determination or decision on his or her

claim as provided in 20 CFR

25784 Federal Register / Vol. 65, No. 86 / Wednesday, May 3, 2000 / Notices

1Although Hickman was a childhood disability

case involving the interpretation of the title XVI

regulation, the same standard for determining

medical equivalency applies to adults and children

under both title II and title XVI programs.

2 20 CFR Part 404, Subpart P, Appendix 1, Listing

101.03 states in pertinent part ‘‘Deficit of

musculoskeletal function due to deformity or

musculoskeletal disease and one of the following:

A. Walking is markedly reduced in speed or

distance despite orthotic or prosthetic devices.’’

3The court noted that when SSA amended the

regulations in 1997 it added a rule that explicitly

eliminates any recourse to nonmedical evidence.

The new rule, 20 CFR 416.926(b), provides that

medical equivalence must be based on medical

findings only. The title II regulation was not

amended nor does it include similar language.

However, in the preamble to the amended

regulations, we stated: ‘‘[T]his is not a substantive

change, but a clearer statement of our longstanding

policy. Although some of the text of 20 CFR

416.926(a) will differ from the text of 20 CFR

404.1526(a), both sections will continue to provide

404.985(b)(2) or 416.1485(b)(2),

discussed above.

If this Social Security Acquiescence

Ruling is later rescinded as obsolete, we

will publish a notice in the Federal

Register to that effect as provided in 20

CFR 404.985(e) or 416.1485(e). If we

decide to relitigate the issue covered by

this Social Security Acquiescence

Ruling as provided by 20 CFR

404.985(c) or 416.1485(c), we will

publish a notice in the Federal Register

stating that we will apply our

interpretation of the Act or regulations

involved and explaining why we have

decided to relitigate the issue.

(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;

96.005—Special Benefits for Disabled Coal

Miners; 96.006—Supplemental Security

Income.)

Dated: April 26, 2000

Kenneth S. Apfel,

Commissioner of Social Security.

Acquiescence Ruling 00–2 (7)

Hickman v. Apfel, 187 F.3d 683 (7th

Cir. 1999)—Evidentiary Requirements

for Determining Medical Equivalence to

a Listed Impairment—Titles II and XVI

of the Social Security Act.

Issue: Whether a determination of

medical equivalence under regulations

20 CFR 404.1526 and 416.926 must be

based solely on evidence from medical

sources.1

Statute/Regulation/Ruling Citation:

Sections 216(i), 223(d)(2)(A) and

1614(a)(3) of the Social Security Act (42

U.S.C. 416(i), 423(d)(2)(A) and

1382c(a)(3)); 20 CFR 404.1526(a),

416.926(a), 404.1526(b), and 416.926(b);

20 CFR Part 404, Subpart P, Appendix

1.

Circuit: Seventh (Illinois, Indiana,

Wisconsin).

Hickman v. Apfel, 187 F.3d 683 (7th

Cir. 1999).

Applicability of Ruling: This Ruling

applies to determinations or decisions at

all administrative levels (i.e., initial,

reconsideration, Administrative Law

Judge (ALJ) hearing and Appeals

Council).

Description of Case: In 1985 and again

in 1986, an application for

Supplemental Security Income benefits

was filed on behalf of Steven Hickman

alleging that he had been disabled since

birth. In 1985, Hickman was diagnosed

with elephantiasis, which resulted in

abnormal growth of his extremities.

Various doctors reported that Hickman

had difficulty with balance and gait.

Otherwise, his extremities functioned

normally and his condition was

generally good. We denied each

application and Hickman did not appeal

on either occasion.

Subsequently, Hickman’s right foot

began to increase in size, until his entire

right foot and calf were gigantesque. In

April and May 1992, he was

hospitalized with chronic swelling of

both legs. Support stockings were

prescribed for the gigantism, and

compression garments were prescribed

for the swelling. Hickman’s condition

then improved somewhat, but his ability

to walk remained impaired.

In August 1992, Hickman reapplied

for Supplemental Security Income and

was informed that SSA reopened his

1985 application in order to reevaluate

it under Sullivan v. Zebley, 493 U.S. 521

(1990). SSA denied the reopened

application under Zebley both initially

and on reconsideration, and Hickman

requested a hearing before an ALJ. At

the hearing in April 1994, Hickman

argued that his condition met or

medically equaled the impairment

described in 20 CFR Part 404, Subpart

P, Appendix 1, § 101.03A 2, and that he

was therefore disabled. Hickman

testified that it was hard for him to walk

but that he played basketball and ran

relay races. Hickman further testified

that he walked short distances to the

school bus and to classes in school.

Upon receipt of additional medical

evidence, a supplemental hearing was

held in October 1994. Hickman

submitted a report of a comprehensive

evaluation done by Dr. Richard

Lindseth, a pediatric orthopedist. Dr.

Lindseth concluded that Hickman’s gait

was ‘‘very slow, energy inefficient and

would limit his walking and standing

ability to a considerable degree, length

of his stride and step were reduced to

two-thirds of normal,’’ and ‘‘maximum

walking would be a block or two and

that his standing on both legs would be

limited to 15 to 20 minutes.’’ Testimony

was taken from Hickman’s gym teacher,

who testified that if he were tested ‘‘in

standardized testing, he would flunk.’’

The ALJ issued his decision and

concluded that ‘‘the evidence of record

did not show that [Hickman’s]

impairments meet or equal the

requirements of any listed impairment.’’

The ALJ observed that his ability to

walk was not ‘‘markedly reduced in

speed and distance’’ and denied

Hickman’s application for benefits. In

July 1996, the Appeals Council denied

Hickman’s request for review. Hickman

then initiated his action in district

court. The district court issued a

decision that the ALJ ‘‘properly

considered both medical and

testimonial evidence in assessing the

severity of [Hickman’s] impairment’’

and affirmed that ‘‘the limitation from

his impairment did not meet or equal

the severity required by Listing

101.03A.’’ Hickman appealed to the

United States Court of Appeals for the

Seventh Circuit. On appeal, Hickman

argued that the ALJ improperly

determined that his impairment did not

medically equal Listing 101.03A.

Hickman contended that the ALJ could

not rely on lay testimony in deciding

whether his impairment medically

equaled a listing, because the

regulations require that the

determination of medical equivalence

be based on medical evidence alone.

Holding: The Seventh Circuit noted

that the ALJ relied on nonmedical

testimonial evidence to determine that

Hickman’s impairment did not

medically equal Listing 101.03A. The

court held that reliance on nonmedical

testimonial evidence was inappropriate.

The court observed that 20 CFR

416.926(a) states that ‘‘[w]hen we make

a finding regarding medical

equivalence, we will consider all

relevant evidence in your case record.’’

However, the court stated that the

regulation is quite clear that ‘‘medical

case records’’ are considered the

primary ‘‘relevant’’ form of evidence.

Moreover, the court cited 20 CFR

416.926(b), which states that ‘‘[w]e will

always base our decision about whether

your impairment(s) is medically equal

to a listed impairment on medical

evidence only.’’ Hickman argued ‘‘that

the ALJ improperly discounted Dr.

Lindseth’s report in favor of evidence

gleaned from nonmedical witnesses

during the hearing.’’ The Seventh

Circuit agreed, stating that SSA’s

regulations require that the findings

regarding medical equivalence must be

made based on medical evidence alone.3

Federal Register / Vol. 65, No. 86 / Wednesday, May 3, 2000 / Notices 25785

the same substantive rules.’’ 62 FR 6408, February

11, 1997, at 6413.

4 In accordance with 20 CFR 416.926(a), SSA

considers all relevant evidence in the case record

when it makes a finding on medical equivalence.

Although the companion regulation for title II, 20

CFR 404.1526(a), does not contain this language,

SSA applies the same equivalency policy under

both titles.

The Seventh Circuit concluded that

Hickman had a medical condition that

was medically equivalent to the

impairment set forth in Listing 101.03.

The Seventh Circuit reversed the

judgment of the district court and

remanded the case with instructions to

enter judgment in Hickman’s favor.

Statement as to How Hickman Differs

From SSA’s Interpretation of the

Regulations

The Seventh Circuit based its findings

on 20 CFR 416.926(b), which states,

‘‘[w]e will always base our decision

about whether your impairment(s) is

medically equal to a listed impairment

on medical evidence only.’’ However,

we intended the phrase ‘‘medical

evidence only’’ in this context only to

exclude consideration of the vocational

factors of age, education, and work

experience. Other than such vocational

factors, however, in accordance with 20

CFR 416.926(a), SSA considers all

relevant evidence in the case record

when it makes a finding on medical

equivalence.4

The Seventh Circuit decision differs

from SSA’s national rule by requiring it

to consider only a narrow definition of

medical evidence, that is, evidence from

medical sources, in determining

medical equivalence and not permitting

the use of other relevant evidence. The

agency, on the other hand, interprets

‘‘medical evidence’’ broadly so as to

include not just objective test results or

other findings reported by medical

sources, but other information about a

claimant’s medical conditions and their

effects, including the claimant’s own

description of his or her impairments.

Thus, the court’s decision that medical

equivalence is decided based solely on

evidence from medical sources

interprets the ‘‘medical evidence only’’

language of the regulation more

narrowly than we intend.

Explanation of How SSA Will Apply

The Hickman Decision Within the

Circuit

This Ruling applies only to cases in

which the claimant resides in Illinois,

Indiana or Wisconsin at the time of the

determination or decision at any level of

administrative review; i.e., initial,

reconsideration, ALJ hearing or Appeals

Council review.

In determining medical equivalence,

we will use only information obtained

from health care professionals. We will

not use any evidence from a source

other than a health care professional in

determining medical equivalence.

We intend to clarify the language at

issue in this case at 20 CFR 404.1526

and 416.926 through the issuance of a

regulatory change, and we may rescind

this Ruling once we have clarified the

regulations.

[FR 00–10934 Filed 5–3–00; 8:45am]

Billing Code 4191–02–F

DEPARTMENT OF STATE

[Public Notice 3304]

Amendment to Bureau of Educational

and Cultural Affairs Request for

Proposals: Small Grants Competition;

Grassroots Citizen Participation in

Democracy

SUMMARY: The Office of Citizen

Exchanges, Bureau of Educational and

Cultural Affairs of the U.S. Department

of State announces the addition of

Brazil to the Latin American geographic

region for which proposals will be

accepted.

The Small Grants Competition was

announced on April 20, 2000 in the

Federal Register (Volume 65, pg.

21061). The deadline for proposals is

June 2, 2000.

ADDITIONAL INFORMATION: Interested

organizations should contact Laverne

Johnson, 202/619–5337; E-Mail

ljohnson@usia.gov.

Dated: April 26, 2000.

Evelyn S. Lieberman,

Under Secretary for Public Diplomacy and

Public Affairs, U.S. Department of State.

[FR Doc. 00–11023 Filed 5–2–00; 8:45 am]

BILLING CODE 4710–11–P

DEPARTMENT OF STATE

[Public Notice 3306]

Bureau of Oceans and International

Environmental and Scientific Affairs;

Certifications Pursuant to Section 609

of Public Law 101–162

April 27, 2000.

SUMMARY: On April 25, 2000, the

Department of State certified, pursuant

to Section 609 of Public Law 101–162

(‘‘Section 609’’), that 16 nations have

adopted programs to reduce the

incidental capture of sea turtles in their

shrimp fisheries comparable to the

program in effect in the United States.

The Department also certified that the

fishing environments in 25 other

countries do not pose a threat of the

incidental taking of sea turtles protected

under Section 609. Shrimp imports from

any nation not certified were prohibited

effective May 1, 2000 pursuant to

Section 609.

EFFECTIVE DATE: May 3, 2000.

FOR FURTHER INFORMATION CONTACT:

David Hogan, Office of Marine

Conservation, Bureau of Oceans and

International Environmental and

Scientific Affairs, Department of State,

Washington, DC 20520–7818; telephone:

(202) 647–2335.

SUPPLEMENTARY INFORMATION: Section

609 of Public Law 101–162 prohibits

imports of certain categories of shrimp

unless the President certifies to the

Congress not later than May 1 of each

year either: (1) that the harvesting

nation has adopted a program governing

the incidental capture of sea turtles in

its commercial shrimp fishery

comparable to the program in effect in

the United States and has an incidental

take rate comparable to that of the

United States; or (2) that the fishing

environment in the harvesting nation

does not pose a threat of the incidental

taking of sea turtles. The President has

delegated the authority to make this

certification to the Department of State.

Revised State Department guidelines for

making the required certifications were

published in the Federal Register on

July 2, 1999 (Vol. 64, No. 130, Public

Notice 3086).

On April 25, 2000, the Department

certified 16 nations on the basis that

their sea turtle protection program is

comparable to that of the United States:

Belize, Colombia, Costa Rica, Ecuador,

El Salvador, Guatemala, Guyana,

Indonesia, Mexico, Nicaragua, Nigeria,

Panama, Suriname, Thailand, Trinidad

and Tobago, and Venezuela. Honduras,

certified on these grounds in 1998, did

not retain their certification. Honduras

failed to demonstrate that its regulations

requiring the use of sea turtle excluder

devices (TEDs) were being adequately

enforced. The Department expects that

Honduras will take steps necessary to

regain certification in 2000.

The Department also certified 25

shrimp harvesting nations as having

fishing environments that do not pose a

danger to sea turtles. Sixteen nations

have shrimping grounds only in cold

waters where the risk of taking sea

turtles is negligible. They are:

Argentina, Belgium, Canada, Chile,

Denmark, Finland, Germany, Iceland,

Ireland, the Netherlands, New Zealand,

Norway, Russia, Sweden, the United

Kingdom, and Uruguay. Nine nations

only harvest shrimp using small boats