6408 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]

RIN 0960-AE57

Supplemental Security Income;

Determining Disability for a Child

Under Age 18; Interim Final Rules With

Request for Comments

AGENCY: Social Security Administration.

ACTION: Interim final rules with request

for comments.

SUMMARY: These rules implement the

childhood disability provisions of

sections 211 and 212 of Public Law

104–193, the Personal Responsibility

and Work Opportunity Reconciliation

Act of 1996 that provide a new

definition of disability for children (i.e.,

individuals under age 18), mandate

changes to the evaluation process for

children’s disability claims and

continuing disability reviews (CDRs),

and require that disability

redeterminations be performed for 18-

year-olds eligible as children in the

month before they attain age 18.

DATES: These rules are effective

beginning April 14, 1997. To be sure

that your comments are considered, we

must receive them no later than April

14, 1997.

ADDRESSES: Comments should be

submitted in writing to the

Commissioner of Social Security, P.O.

Box 1585, Baltimore, MD 21235; sent by

telefax to (410) 966–2830; sent by E-mail

to ‘‘regulations@ssa.gov’’; or delivered

to the Division of Regulations and

Rulings, Social Security Administration,

3–B–1 Operations Building, 6401

Security Boulevard, Baltimore, MD

21235, between 8:00 a.m. and 4:30 p.m.

on regular business days. Comments

may be inspected during these same

hours by making arrangements with the

contact person shown below.

FOR FURTHER INFORMATION CONTACT:

Daniel T. Bridgewater, Legal Assistant,

Division of Regulations and Rulings,

Social Security Administration, 6401

Security Boulevard, Baltimore, MD

21235, (410) 965–3298 for information

about these rules. For information on

eligibility or claiming benefits, call our

national toll-free number, 1–800–772–

1213.

SUPPLEMENTARY INFORMATION:

History

Prior to the enactment of Public Law

104–193 on August 22, 1996, the Act

defined childhood disability in relation

to the definition of disability for adults.

The definition of disability for adults in

section 1614(a)(3) of the Act is an

inability ‘‘to engage in 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

twelve months.’’ Prior to August 22,

1996, the definition of disability for

children (i.e., individuals under the age

of 18) was contained in a parenthetical

statement at the end of section

1614(a)(3)(A): A child was considered

disabled for purposes of eligibility for

SSI if he or she ‘‘* * * suffer[ed] from

any medically determinable physical or

mental impairment of comparable

severity’’ to an impairment(s) that

would make an adult disabled.

Social Security Administration (SSA)

regulations at 20 CFR 416.920 set out a

five-step sequential evaluation process

for determining the disability of adults:

1. Whether the adult is engaging in

substantial gainful activity;

2. Whether, in the absence of

substantial gainful activity, the

individual’s medically determinable

impairment or combination of

impairments is ‘‘severe;’’

3. Whether, if the impairment(s) is

severe, it meets or medically equals the

severity of a listing in the Listing of

Impairments in appendix 1 of subpart P

of 20 CFR part 404 (the Listing);

4. Whether, if the impairment(s) is

severe but does not meet or equal the

severity of a listing, the individual

retains the capacity to do his or her past

relevant work, considering his or her

residual functional capacity; and

5. Whether, if past relevant work is

precluded, the individual retains the

capacity to do any other kind of work

which exists in significant numbers in

the national economy, considering the

individual’s residual functional capacity

and the vocational factors of age,

education and work experience.

Until 1990, if a child was not

engaging in substantial gainful activity

and his or her impairment(s) met the

statutory duration requirement, a child’s

claim for SSI benefits based on

disability was decided based on

whether or not the child’s impairment(s)

met or equaled the severity of a listing,

as in the third step of the process for

adults. We did not provide additional

evaluation steps for children as we did

for adults because it was inappropriate

to apply the vocational rules we used

for adults whose impairments do not

meet or equal the severity of a listed

impairment to childhood claims.

Sullivan v. Zebley

On February 20, 1990, in the case of

Sullivan v. Zebley, 493 U.S. 521 (1990),

the Supreme Court decided that the

‘‘listings-only’’ approach SSA had used

to deny claims for SSI benefits based on

childhood disability did not carry out

the ‘‘comparable severity’’ standard in

title XVI of the Act. This was because

the listings did not provide for an

assessment of a child’s overall

functional impairment. The Court held

that, under the comparable severity

standard, children claiming SSI benefits

based on disability were entitled to an

assessment as part of the disability

determination process, comparable to

adults who have impairments that do

not meet or equal the severity of a

listing and who receive such an

individualized assessment. The Court

found that, whereas adults who are not

found to be disabled under the Listing

still have the opportunity to show that

they are disabled at the last step of the

sequential evaluation process, no

similar opportunity existed for children.

The Court concluded that, although the

vocational analysis we use in claims

filed by adults is inapplicable to claims

for SSI benefits based on disability filed

by children, this does not mean that a

functional analysis could not be applied

to children’s claims.

The Court also addressed various

aspects of the way in which we

employed the Listing in evaluating

childhood disability claims. The Court

stated that the policies for establishing

whether a child’s impairment(s) was

equivalent in severity to a listed

impairment ‘‘exclude[d] claimants who

have unlisted impairments or

combinations of impairments that do

not fulfill all the criteria for any one

listed impairment.’’ The Court was also

concerned that all claimants be given an

opportunity for an assessment of their

functional limitations, including the

effects of their symptoms, in

establishing medical equivalence.

The Childhood Rules That Resulted

From Zebley

As a result of the Zebley decision, we

revised the rules we used to evaluate

childhood disability claims under SSI.

The rules were first published in the

Federal Register on February 11, 1991

(56 FR 5534) as a final rule with a

request for comments. Following

consideration of public comments, we

published a final rule in the Federal

Register on September 9, 1993 (58 FR

47532).

In § 416.924(a) of the prior rules, we

defined the term ‘‘comparable severity’’

in terms of the impact of an impairment
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6409

or a combination of impairments on a

child’s ability to function

independently, appropriately, and

effectively in an age-appropriate

manner. The rules also provided that

each child whose impairment(s) did not

meet or medically or functionally equal

the requirements for any listing would

have an ‘‘individualized functional

assessment’’ (IFA), an evaluation of the

impact of the child’s impairment(s) on

his or her overall ability to function

independently, appropriately, and

effectively in an age-appropriate

manner.

In fact, the rules provided three steps

at which we would consider a child’s

functioning. At each of these steps, we

considered the impact of all of the

child’s medically determinable

impairments on his or her functioning

and considered all relevant evidence,

including the effects of the individual’s

symptoms and the side effects of

medication. We considered the nature of

the impairment(s), the child’s age, the

child’s ability to be tested given his or

her age, the child’s ability to perform

age-appropriate daily activities, and

other relevant factors.

First, we added a ‘‘severe

impairment’’ step for children to

parallel step 2 of the adult sequential

evaluation process. At this step, the

threshold for further evaluation was

whether a child had more than a slight

abnormality or a combination of slight

abnormalities that caused more than

minimal limitation in a child’s ability to

function independently, appropriately,

and effectively in an age-appropriate

manner.

Second, at step 3 of the sequential

evaluation process, we expanded the

rules for determining equivalence to the

Listing. The new ‘‘functional

equivalence’’ rule was intended, among

other things, to address the Supreme

Court’s concerns about our use of the

Listing in childhood cases. Functional

equivalence provided that, if a child’s

impairment(s) did not meet or medically

equal the severity of any listed

impairment, we would assess the child’s

functional limitations and compare

those limitations with the disabling

functional consequences of any listed

impairment, without regard to whether

the listed impairment chosen for

comparison was medically ‘‘related’’ to

the child’s impairment(s); for example,

functional equivalence permits

comparison of the functional limitations

caused by a physical impairment with

the functional limitations establishing

disability in the mental disorders

listings.

Last, for those children whose

impairments were not of listing-level

severity, the rules resulting from the

Zebley decision included an entirely

new fourth step in the sequential

evaluation process for children. At this

step, we used the IFA to assess whether

a child’s severe impairment(s), while

not of listing-level severity, was

nonetheless of ‘‘comparable severity’’ to

an impairment(s) that would disable an

adult.

The IFA addressed the functional

impact of a child’s impairment(s) in

broad areas of functioning, which we

called domains and behaviors, such as

cognition, communication, and motor

abilities. These domains and behaviors

were intended to encompass and reflect

all the things that a child may do at any

particular age, and were, therefore,

intended to include all of a child’s

functioning.

If an IFA showed that a child’s

impairment(s) substantially reduced his

or her ability to function independently,

appropriately, and effectively in an ageappropriate manner, and the

impairment(s) met the duration

requirement, we found the

impairment(s) to be of comparable

severity to an impairment that would

result in disability in an adult, and the

child would, therefore, be considered

disabled. If the impairment(s) did not

substantially reduce the child’s ability

to function independently,

appropriately, and effectively in an ageappropriate manner, or if it did not meet

the duration requirement, we found the

child was not disabled. For most

children, the rules provided examples of

how ‘‘marked’’ and ‘‘moderate’’

limitations in the domains and

behaviors would indicate whether there

was a substantial reduction in

functioning; for example, ‘‘moderate’’

limitations in three domains would

generally, though not invariably, result

in a finding of disability.

Summary of the Childhood Disability

Provisions of Public Law 104–193

Public Law 104–193 provides a new

statutory definition of disability for

children claiming SSI benefits and

directs us to make significant changes in

the way we evaluate childhood

disability claims. Under the new law, a

child’s impairment or combination of

impairments must cause more serious

impairment-related limitations than the

old law and our prior regulations

required.

Section 211(a) of Public Law 104–193

amended section 1614(a)(3) of the Act to

provide a definition of disability for

children separate from that for adults.

The ‘‘comparable severity’’ criterion in

the Act was repealed and replaced with

the following definition:

(C)(i) An individual under the age of 18

shall be considered disabled for the purposes

of this title if that individual has a medically

determinable physical or mental impairment,

which results in marked and severe

functional limitations, and 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.

(ii) Notwithstanding clause (i), no

individual under the age of 18 who engages

in substantial gainful activity (determined in

accordance with regulations prescribed

pursuant to subparagraph (E)) may be

considered to be disabled.

The conference report that

accompanied Public Law 104–193

further explained:

The conferees intend that only needy

children with severe disabilities be eligible

for SSI, and the Listing of Impairments and

other current disability determination

regulations as modified by these provisions

properly reflect the severity of disability

contemplated by the new statutory

definition. In those areas of the Listing that

involve domains of functioning, the

conferees expect no less than two marked

limitations as the standard for qualification.

The conferees are also aware that SSA uses

the term ‘‘severe’’ to often mean ‘‘other than

minor’’ in an initial screening procedure for

disability determination and in other places.

The conferees, however, use the term

‘‘severe’’ in its common sense meaning.

H.R. Conf. Rep. No. 725, 104th Cong.,

2d Sess. 328 (1996), reprinted in 1996

U.S. Code, Cong. and Ad. News 2649,

2716. The House report contains similar

language. See H.R. Rep. No. 651, 104th

Cong., 2d Sess. 1385 (1996), reprinted in

1996 U.S. Code, Cong. and Ad. News

2183, 2444.

Further provisions concerning

childhood disability adjudication are

summarized below with references to

the relevant sections of Public Law 104–

193.

• The Commissioner was directed to

remove references to maladaptive

behavior in the personal/behavioral

domain from listings 112.00C2 and

112.02B2c(2) of the childhood mental

disorders listings (Section 211(b) (1)).

• The Commissioner was directed to

discontinue the IFA for children in 20

CFR 416.924d and 416.924e (Section

211(b) (2)).

• Within 1 year after the date of

enactment, we must redetermine the

eligibility of individuals under the age

of 18 who were eligible for SSI based on

disability as of August 22, 1996, and

whose eligibility may terminate by

reason of the new law. The cases are to

be redetermined using the eligibility

criteria for new applicants. The medical

improvement review standard in section

1614(a) (4) of the Act and 20 CFR

416.994a, used in CDRs, shall not apply
6410 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

to these redeterminations (Section

211(d) (2)).

• The medical improvement review

standard for determining continuing

eligibility for children was revised to

conform to the new definition of

disability for children (Section 211(c)).

• Not less frequently than once every

3 years, we must conduct a CDR for any

childhood disability recipient eligible

by reason of an impairment(s) which is

likely to improve. At the option of the

Commissioner, we may also perform a

CDR with respect to those individuals

under age 18 whose impairments are

unlikely to improve (Section 212(a)).

• We must redetermine the eligibility

of individuals who were eligible for SSI

based on disability in the month before

the month in which they attained age 18

using the rules for determining initial

eligibility for adults. We will do the

redetermination during the 1-year

period beginning on the individual’s

18th birthday. The medical

improvement review standard used in

CDRs does not apply to these

redeterminations (Section 212(b)).

• We must conduct a CDR not later

than 12 months after the birth of the

child for any child whose low birth

weight is a contributing factor material

to our determination that the child was

disabled (Section 212(c)).

• At the time of a CDR, a child’s

representative payee shall present

evidence that the child is and has been

receiving treatment to the extent

considered medically necessary and

available for the disabling impairment.

If a payee refuses without good cause to

provide such evidence, we may select

another representative payee, or pay

benefits directly to the child, if we

determine that it is appropriate and in

the best interests of the child (Section

212(a)).

These rules implement all of the

provisions of sections 211 and 212 of

Public Law 104–193, with the exception

of section 211(d)(2). Because Public Law

104–193 repealed the ‘‘comparable

severity’’ disability standard for

children, and eliminated use of the IFA,

step 4 of our prior sequential evaluation

process (the comparable severity step)

has been removed. To be found disabled

under these rules, an individual under

age 18 must have ‘‘marked and severe

functional limitations,’’ which means

that his or her impairment or

combination of impairments must meet,

or medically equal or functionally

equal, the severity of a listed

impairment.

Summary of Specific Revisions

These interim final rules revise our

prior rules for deciding initial eligibility

and continuing eligibility for children

claiming SSI benefits based on

disability. They also provide rules for

redetermining the eligibility of

individuals who attain age 18 and who

were eligible for SSI based on disability

in the month before the month in which

they attained age 18.

The major changes to the rules are

explained below. In addition, we have

added, removed, and revised language

throughout subpart I of 20 CFR part 416

to remove references to the ‘‘comparable

severity’’ standard and our prior

regulatory definition of disability

interpreting that standard. Since these

are only conforming changes to comply

with the new law, we have not

summarized each of them in this

summary.

These rules do not address every

aspect of the evaluation of disability of

children and of individuals who have

attained age 18. They implement

primarily those changes required by

Public Law 104–193. Therefore, they

must be read in the context of all our

other relevant rules for determining

disability.

Appendix 1 to Subpart P of Part 404—

Listings 112.00C and 112.02B2

Public Law 104–193 mandates

removal of references to ‘‘maladaptive

behaviors’’ in listings 112.00C2 and

112.02B2c(2) in the childhood mental

disorders section of the Listing of

Impairments. Listing 112.00C explains

the severity criteria we use to evaluate

a mental impairment in most of our

childhood mental disorder listings.

These severity criteria are often referred

to as the ‘‘paragraph B’’ criteria because

they are found in paragraph B of most

of the listings to which they apply.

Listing 112.02B2c(2) was a particular

paragraph B criterion for persistent,

serious maladaptive behaviors in

children aged 3 to 18. Pursuant to

Public Law 104–193, we have removed

all references to ‘‘maladaptive

behaviors’’ in listing 112.00C and

deleted all of prior listing 112.02B2c(2);

we have also redesignated the

‘‘personal/behavioral’’ area as the area

of ‘‘personal function.’’ For this reason,

we also removed the reference to

‘‘activities of daily living’’ from former

listing 112.02B2c(1), which we now

designate as listing 112.02B2c because it

is the only paragraph remaining.

The area of personal function now

pertains only to self-care; that is, the

ability to help oneself and to cooperate

with others in taking care of personal

needs, health, and safety (e.g., feeding,

dressing, toileting, bathing, following

medication regimes, and following

safety precautions). Further, we have

clarified the description of the social

area of functioning to make it clearer

that many impairment-related

behavioral problems (including those

previously considered in the prior

personal/behavioral area) are likely to

have their most significant effects on a

child’s social functioning.

In addition, we revised the fourth area

of function from ‘‘concentration,

persistence, and pace’’ to

‘‘concentration, persistence, or pace.’’

This is a technical correction to conform

the language of this section to the rules

in listings 112.00C3 and 112.02B2d,

which have always read ‘‘deficiencies of

concentration, persistence, or pace.’’ We

made a corresponding change in listing

112.00C4, which also used the word

‘‘and.’’ We also made several

clarifications in listing 112.00C2b. The

changes are not substantive and are only

intended to parallel the adult mental

listing 12.00C2 with appropriate

language for children.

Section 416.635 Responsibilities of a

Representative Payee.

We revised this section to provide

that, in cases in which the beneficiary

is an individual under age 18 (including

cases in which the beneficiary is an

individual whose low birth weight is a

contributing factor material to our

determination that the individual is

disabled), the representative payee is

responsible for ensuring that the

beneficiary is and has been receiving

treatment to the extent considered

medically necessary and available for

the condition that was the basis for

providing benefits.

Section 416.902 General Definitions

and Terms for This Subpart

We have added four new definitions.

First, we explain that a disability

redetermination (see § 416.987) is a

redetermination of eligibility based on

disability using the rules for new

applicants appropriate to the

individual’s age, except the rules

pertaining to performance of substantial

gainful activity. Second, we explain that

the term impairment(s) means ‘‘a

medically determinable physical or

mental impairment or a combination of

medically determinable physical or

mental impairments.’’

Third, we explain that the term

marked and severe functional

limitations, when used as a phrase,

means the standard of disability in the

Act for children claiming SSI benefits,

and is a level of severity that meets or

medically or functionally equals the

requirements of a listing. We explain

that the separate words Marked and

severe are also terms used throughout
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6411

this subpart, but the meanings of these

words in the phrase marked and severe

functional limitations is not the same as

their meanings when used separately.

The meaning of the phrase marked and

severe functional limitations derives

directly from the legislative history of

Public Law 104–193, quoted in the

‘‘Summary of the Childhood Disability

Provisions of Public Law 104–193,’’

above. Since the meanings of the

separate terms marked and severe

predate enactment of Public Law 104–

193, they are touched on in this section

to minimize any confusion from the

new law’s use of the same words, used

in combination with a different

meaning. Finally, we define

Commissioner to mean the

Commissioner of Social Security.

Section 416.906 Basic Definition of

Disability for Children

We have revised this section to

replace the prior ‘‘comparable severity’’

standard with the new ‘‘marked and

severe functional limitations’’ standard

for childhood disability. We also added

the statutory provision that an

individual under age 18 who files a new

claim and who is engaging in

substantial gainful activity will not be

considered disabled. For clarity, we

added language specifying our

longstanding policy that we consider

the effects of combined impairments in

assessing whether a child is disabled.

Section 416.911 Definition of

Disabling Impairment

Under the Act and our regulations,

individuals who file new applications

for benefits based on disability and who

are engaging in substantial gainful

activity are found not disabled.

However, after a disabled individual is

eligible for SSI, the Act and our

regulations permit some individuals to

try to work without losing eligibility. A

recipient of SSI benefits who begins or

returns to work despite a ‘‘disabling

impairment’’ may be found eligible for

special SSI cash benefits and for special

SSI eligibility status under §§ 416.260 ff.

of our regulations.

Section 416.911 provides the

definition of the term ‘‘disabling

impairment’’ for such cases. We have

redesignated all but the last sentence of

prior § 416.911, which was applicable

only to adults, as paragraph (a)(1), and

added a paragraph (b)(1) to define

‘‘disabling impairment’’ for children.

Final paragraph (a)(2) takes account of

the new rules in § 416.987 for the

disability redeterminations required by

section 212(b) of Public Law 104–193.

Consistent with this section of the new

law, the rules explain that, for disability

redetermination cases of individuals

who are age 18, and who were eligible

for SSI benefits based on a disability for

the month before the month in which

they attained age 18, a disabling

impairment is one that meets the criteria

for initial eligibility set forth in

§§ 416.920(c) through (f) for adults. This

is because the new law specifies that

these disability redeterminations shall

apply the eligibility criteria for new

applicants, and not the medical

improvement review standard

provisions of section 1614(a)(4) of the

Act applicable to CDRs. However, step

1 of the sequential evaluation process

for new claims (the substantial gainful

activity step) will not apply. For

individuals affected by this provision

who have a disabling impairment, and

who are working, we will apply the

rules in §§ 416.260 ff. We redesignated

as paragraph (c) the last sentence of

prior § 416.911, which provides that

earnings are not considered in deeming

whether a recipient has a disabling

impairment(s), because it applies to

both adults and children.

Section 416.919n Informing the

Examining Physician or Psychologist of

Examination Scheduling, Report

Content, and Signature Requirements

We have amended § 416.919n(c)(6),

which concerns the opinion of a

consulting physician or psychologist

about an individual’s ability to function

despite his or her impairment(s), to add

a discussion specific to childhood cases

to make it clear that the provision

applies to both adults and children.

Section 416.924 How We Determine

Disability for Children

We have extensively revised this

section, which provides the sequential

evaluation process for childhood

disability claims, to conform to the

provisions of Public law 104–193.

We have deleted former paragraphs

(a) and (f). Prior paragraph (a) defined

comparable severity and prior paragraph

(f) discussed the IFA. We redesignated

prior paragraphs (b) through (e) as (a)

through (d), and revised them as

explained below. We added a new

paragraph (e) to explain what we will do

when children become adults (i.e., they

attain age 18) after they file their

applications for SSI benefits based on

disability but before we make a

determination or decision. We

redesignated prior paragraph (g) as

paragraph (f), but it is otherwise

unchanged. Also, we added a new

paragraph (g).

In final § 416.924, the new sequential

evaluation process for determining

initial eligibility is:

1. Whether the child is engaging in

substantial gainful activity;

2. If not, whether the child has a

medically determinable impairment or

combination of impairments that is

severe; and

3. If the child’s impairment(s) is

severe, whether it meets or medically

equals the requirements of a listing, or

whether the functional limitations

caused by the impairment(s) are the

same as the disabling functional

limitations of any listing and, therefore,

functionally equivalent to such listing.

As in the prior sequential evaluation

process, we will follow the steps in

order. If a determination or decision can

be made at a step, we will stop; if not,

we will proceed to the next step.

New § 416.924(a), ‘‘Steps in

evaluating disability,’’ retains basic

guidance from prior § 416.924(b) that is

unaffected by the new law. It continues

to provide that we will consider all

relevant evidence in a child’s case

record, that we will consider all

impairments for which we have

evidence and their combined effects,

and that we will evaluate any

limitations in a child’s functioning that

result from a child’s symptoms,

including pain. We have removed the

reference to the prior IFA step and made

minor revisions to reflect the new

statutory standard and the new

sequence of evaluation. Because

meeting or equaling the severity of a

listing is now the last step of the

sequence, we have emphasized the

importance of the step by specifying

that a child will be disabled if his or her

impairment(s) meets, medically equals,

or functionally equals the severity of

any listing. We also changed references

to the ‘‘ability to function’’ to

‘‘functioning’’ in order to conform to the

new statutory definition of disability,

which is now expressed in terms of

‘‘marked and severe functional

limitations.’’

Final paragraphs (b) through (d)

provide more detail on the sequential

evaluation steps outlined in paragraph

(a). Final paragraph (b), ‘‘If you are

working,’’ is the same as prior paragraph

(c). A child who files a new application,

and who is engaging in substantial

gainful activity, will be found not

disabled as required by the statute. Final

paragraph (c), ‘‘You must have a severe

impairment(s),’’ is substantively the

same as prior paragraph (d), but revised

to reflect the new law. At step two of the

sequential process, we will continue to

evaluate whether a child has a ‘‘severe’’

impairment or combination of

impairments. We now provide that if a

child has a slight abnormality or a

combination of slight abnormalities that
6412 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

causes no more than minimal functional

limitations, we will find that the child

does not have a severe impairment and,

therefore, is not disabled. The phrase

‘‘minimal functional limitations’’

replaces the phrase from our prior rules

‘‘minimal limitation in your ability to

function, independently, appropriately,

and effectively in an age-appropriate

manner,’’ which, as noted above, was

derived from the prior statutory

definition of disability.

Final paragraph (d) ‘‘Your

impairment(s) must meet, medically

equal, or functionally equal in severity

a listed impairment in appendix 1,’’

explains that an impairment(s) causes

marked and severe functional

limitations if it meets, medically equals

or functionally equals the severity of a

listed impairment. Thus, if a child’s

impairment(s) meets, medically equals,

or functionally equals in severity a

listing (and meets the duration

requirement), we will find the child

disabled. If a child’s impairment(s) does

not meet or medically equal or

functionally equal in severity any

listing, or does not meet the duration

requirement, we will find the child not

disabled. We have removed the

language from prior paragraph (e) that

said a child’s claim would not be denied

because his or her impairment(s) was

not of listing-level severity.

We added a new paragraph (e), ‘‘If

you attain age 18 after you file your

disability application but before we

make a determination or decision,’’ to

explain what we will do in such cases.

We will use the rules for determining

disability in adults when an individual

whom we found disabled prior to

attaining age 18 attains age 18. (We have

always used the adult disability rules

beginning at age 18 when we find that

an individual was not disabled prior to

attaining age 18 to see if the individual

became disabled at a later date.)

Therefore, final paragraph (e) explains

that, for the period during which the

individual is under age 18, we will use

the disability rules in § 416.924, but for

the period starting with the day the

individual attains age 18, we will use

the disability rules for adults filing new

claims in § 416.920.

Except for redesignating prior

paragraph (g) as final paragraph (f),

‘‘Basic considerations,’’ has not been

changed. We will continue to consider

all relevant medical and nonmedical

evidence in a child’s case record.

Finally, we have added a new

paragraph (g) to explain that, when we

make an initial or reconsidered

determination whether you are disabled

or when we make an initial

determination about whether your

disability continues under section

416.994a, we will complete a standard

form, Form SSA–538, Childhood

Disability Evaluation Form. The new

form is designed to guide our

adjudicators through the new sequential

evaluation process and emphasizes the

requirements for establishing functional

equivalence. In new paragraph (g), we

also explain that disability hearing

officers, administrative law judges, and

the administrative appeals judges on the

Appeals Council (when the Appeals

Council makes a decision) will not

complete the form. This is because these

adjudicators issue decisions with

detailed rationales and findings that

will already reflect the steps of the new

sequential evaluation process.

Section 416.924a Age as a Factor of

Evaluation in Childhood Disability

Most of the guidance in our prior

rules on consideration of age in

childhood disability cases has not been

changed by Public Law 104–193. We

have revised this section to conform to

the ‘‘marked and severe functional

limitations’’ disability standard. As

under our prior rules, we will consider

the child’s age in determining whether

he or she has a severe impairment(s).

When evaluating whether the

impairment(s) meets, medically equals,

or functionally equals the severity of a

listing, we will consider the child’s age

if the listing we consider uses age

categories. We have deleted prior

paragraphs (a)(4) and (b), which

addressed issues related to the IFA.

We redesignated prior paragraph (c),

‘‘Correcting chronological age of

premature infants,’’ and prior paragraph

(d), ‘‘Age and the impact of severe

impairments on younger children and

older adolescents,’’ as final paragraphs

(b) and (c) and made changes to conform

to the new definition of disability; we

deleted prior paragraph (d)(4)(ii)

because it was based on the prior

‘‘comparable severity’’ standard.

Section 416.924b Functioning in

Children

This section discusses some of the

terms we use to describe or evaluate

functioning in children, including ageappropriate activities, developmental

milestones, activities of daily living, and

work-related activities. We retained the

discussions of these terms with

appropriate conforming changes. We

also clarified the explanations of the last

three terms, which were described in

our prior rules as ‘‘the most important

indicators of functional limitations’’ in,

respectively, infants up to attainment of

age 3, children aged 3 to attainment of

age 16, and older adolescents aged 16 to

attainment of age 18. In the interim final

rules, we describe these functions as

being ‘‘most important as indicators of

functional limitations,’’ because the

emphasis should be on whatever age

groups for which these indicators of

functional limitations are most

appropriate.

Although we deleted prior paragraph

(b)(5) because it described the domains

and behaviors used in performing an

IFA under our prior rules, consideration

of functional limitations remains an

integral part of the childhood disability

evaluation process. For example, final

§ 416.926a describes areas of

functioning we will consider when we

evaluate whether a child’s

impairment(s) is functionally equivalent

in severity to a listing.

Section 416.924c Other Factors We

Will Consider

As under our prior rules, when we

evaluate whether a child’s

impairment(s) is disabling, we will

consider all relevant factors, such as the

effects of medications, the setting in

which the child lives, the child’s need

for assistive devices, and the child’s

functioning in school. However, as

throughout these interim final rules, we

have revised this section to conform to

the statutory ‘‘marked and severe

functional limitations’’ standard.

Section 416.924d Individualized

Functional Assessment for Children

Section 416.924e Guidelines for

Determining Disability Using the

Individualized Functional Assessment

We deleted both of these sections as

required by section 211(b)(2) of Public

Law 104–193.

Section 416.925 Listing of

Impairments in Appendix 1 of Subpart

P of Part 404 of This Chapter

We have revised paragraph (a) of this

section, ‘‘Purpose of the Listing of

Impairments,’’ to explain that, for

children, the Listing of Impairments

describes impairments that are

considered severe enough to result in

marked and severe functional

limitations. We revised paragraph (b)(2),

which explains the purpose of the

childhood listings in part B of the

Listing, to explain that the level of

severity of the impairments listed in

part B is intended to be the same as that

expressed in the functional severity

criteria of the childhood mental

disorders listings (see 112.01 ff.).

Therefore, in general, a child’s

impairment(s) is of ‘‘listing-level

severity’’ if it results in marked

limitations in two broad areas of

functioning, or extreme limitations in
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6413

one such area. However, we also explain

that when we decide whether a child’s

impairment(s) meets the requirements

for any listed impairment, we will

decide that the impairment is of

‘‘listing-level severity’’ even if it does

not result in marked limitations in two

broad areas of functioning, or extreme

limitations in one such area, if the

listing that we apply does not require

such limitations to establish that an

impairment(s) is disabling. We also

explain that we define the terms

‘‘marked’’ and ‘‘extreme’’ as they apply

to children in § 416.926a.

Section 416.926 Medical Equivalence

for Adults and Children

In these interim final rules, we moved

the rules for deciding whether a child’s

impairment(s) is medically equivalent

in severity to any listing into the same

section as the rules for deciding medical

equivalence of impairments in adults,

reserving § 416.926a for functional

equivalence. To make this clear, we

revised the heading of final § 416.926 to

reflect the inclusion of children. We

also revised final paragraph (a), ‘‘How

medical equivalence is determined,’’ by

replacing the explanation of how we

determine medical equivalence with

provisions from prior § 416.926a. We

also incorporated and revised the last

sentence of prior § 416.926a(a),

explaining that we consider all relevant

evidence in the case record when we

decide the issue of medical equivalence

because it remains applicable to both

adults and children.

We decided to use the provisions of

former § 416.926a(b) to explain our rules

for determining medical equivalence for

both adults and children. This is not a

substantive change, but a clearer

statement of our longstanding policy on

medical equivalence than was

previously included in prior

§ 416.926(a), as it was clarified for

children in prior § 416.926a(b). This

merely allows us to address only once

in our regulations the policy of medical

equivalence, which is and always has

been the same for adults and children.

(Although some of the text of

§ 416.929(a) will differ from the text of

§ 404.1526(a), both sections, which are

in chapter III of title 20 of the Code of

Federal Regulations, will continue to

provide the same substantive rules.)

We have also added a new paragraph

(d), ‘‘Responsibility for determining

medical equivalence,’’ to address our

longstanding policy of who is

responsible for determining medical

equivalence for adults and children.

Section 416.926a Functional

Equivalence for Children

Although Public Law 104–193

discontinued the use of the IFA, the

legislation nevertheless emphasized that

we were still to continue evaluating the

functioning of children in our disability

assessments, as shown by the news

statutory definition of disability,

‘‘marked and severe functional

limitations.’’

Moreover, in the legislative history,

the conferees stated:

* * * Where appropriate, the conferees

remind SSA of the importance of the use of

functional equivalence disability

determination procedures.

* * * [T]he conferees do not intend to

suggest by this definition of childhood

disability that every child need be especially

evaluated for functional limitations, or that

this definition creates a supposition for any

such examination. * * * Nonetheless, the

conferees do not intend to limit the use of

functional information, if reflecting sufficient

severity and is otherwise appropriate.

H.R. Conf. Rep. No. 725, 104th Cong,

2d Sess. 328 (1996), reprinted in 1996

U.S. Code, Cong. and Ad. News 2649,

2716. The House Report also contained

similar language about the importance

of functional information. See H.R. Rep.

No. 651, 104th Cong., 2d Sess. 1385–

1386 (1996), reprinted in 1996 U.S.

Code, Cong. and Ad. News 2183, 2444–

2445.

Thus, even though it eliminated the

IFA, Congress directed us to continue to

evaluate a child’s functional limitations

where appropriate, albeit using a higher

level of severity than under the former

IFA. Congress also explicitly endorsed

our functional equivalence policy as a

means for evaluating impairments that

would not meet or medically equal any

of our listings and without which some

needy children with severe disabilities

would not be eligible.

Therefore, we are retaining our prior

policies on determining functional

equivalence. Because the changes made

by Public Law 104–193 make the

functional equivalence provision that

last point of adjudication in a child’s

claim and, therefore, critical to the

outcome of many cases, we are also

clarifying these rules.

When we published the prior rules in

the Federal Register on September 9,

1993, we chose not to adopt a number

of public comments about our policy of

‘‘functional equivalence.’’ Some

commenters on the 1993 rules thought

that, because the functional equivalence

policy was unfamiliar, it was important

that we provide as much detail as

possible in the regulations so that all

adjudicators would understand and

apply the new rules in the same way.

Several commenters also said that

§ 416.926a should explain the ‘‘thought

processes’’ an adjudicator could employ

to make a finding of functional

equivalence; otherwise, the policy of

functional equivalence might be underutilized. One suggestion was that we

incorporate into the rules the more

detailed instructions in our operating

manuals and training guides. One

commenter suggested that we provide

separate headings for medical

equivalence and functional equivalence

to highlight their differences and the

novelty of the functional equivalence

policy.

Although we did not adopt the

comments in 1993, we have made

changes in these rules that respond to

some of the earlier concerns of 1993 to

reflect the increased importance of the

functional equivalence policy under the

new law.

First, as noted in the explanation of

§ 416.926, we have separated the

discussion of medical equivalence for

children from the discussion of

functional equivalence for children. We

have also incorporated some of the more

detailed explanations from our

operating manuals regarding the

application of functional equivalence.

Final paragraph (a), ‘‘General,’’ and

final paragraph (b), ‘‘How we determine

functional equivalence,’’ now include,

in reorganized form, the rules for

functional equivalence previously in

§ 416.926a(a) and (b)(3). As already

indicated, we moved prior (b)(1) and

(b)(2), which explained medical

equivalence, to § 416.926. Because of

the reorganization, we deleted the

second sentence from prior paragraph

(b)(3) (‘‘If you have more than one

impairment, we will consider the

combined effects of all your

impairments on your overall

functioning.’’) because it would have

been redundant.

In final paragraph (b), we also

included some of the more detailed

guidelines concerning functional

equivalence that commenters on the

1993 childhood disability rules

requested that we include in the

regulations, and that we believe are

necessitated by the new definition of

disability. This paragraph explains that

there are several methods for

determining functional equivalence, and

that we may use any one of them to

determine whether an impairment is

functionally equivalent in severity to a

listing. Subparagraphs then explain the

various methods that we may employ to

determine functional equivalence. We

explain that there is no set order in

which we must apply these methods

and that, when we find that an
6414 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

impairment(s) is functionally equivalent

to a listed impairment, we will use any

method that is appropriate to, or best

describes, a child’s impairment(s) and

functional limitations. However, we

explain that will consider all of the

methods before we decide that an

impairment(s) is not functionally

equivalent in severity to any listed

impairment and refer to final

§ 416.924(g), which explains how we

will use the new Childhood Disability

Evaluation Form, Form SSA–538, at the

initial and reconsideration levels.

In (b)(1), we explain the first method

we may use. An impairment(s) may be

functionally equivalent in severity to a

listed impairment because of extreme

limitations in one specific function,

such as walking or talking, or based on

a combination or more than one, but

less medically severe, specific

functional limitations, such as walking

and talking. In (b)(2), we explain that an

impairment(s) may be functionally

equivalent to a listed impairment if it

causes functional limitations in broad

areas of development or functioning

(e.g., in motor or social functioning) that

are equivalent in severity to the

disabling functional limitations in

listing 112.12 or listing 112.02. (The

areas of functioning in which an

impairment(s) may be evaluate are

discussed in paragraph (c), described

below.) In (b)(3), we explain that an

impairment(s) may be functionally

equivalent to a listed impairment if it is

chronic and characterized by frequent

episodes of illness or attacks, or by

exacerbations and remissions. In such

cases, we may compare a child’s

functional limitations to those in any

listing for a chronic impairment with

similar episodic criteria. In (b)(4), we

explain that an impairment(s) may be

functionally equivalent to a listed

impairment if it requires treatment over

a long period of time (at least a year)

and the treatment itself (e.g., multiple

surgeries) causes marked and severe

functional limitations, or if the

combined effects of limitations caused

by ongoing treatment and limitations

caused by the impairment(s) result in

marked and severe functional

limitations.

In final paragraph (c), ‘‘Board areas of

development or functioning,’’ we

explain that listing 112.12, for infants

(especially infants who are too young to

test) and listing 112.02 are the listings

we will use for comparison when we

use this method of functional

equivalence. However, when we

determine functional equivalence based

on broad functional limitations, we will

evaluate the functional effects of an

impairment(s) in several areas of

development or functioning specified in

this paragraph of § 416.926a instead of

referring to the listings themselves. We

also explain that we describe the areas

of functioning in general terms in (c)(4)

and in more detail for specific age

groups in (c)(5). If we find ‘‘marked

limitations’’ in two areas of

development or functioning, or

‘‘extreme limitations’’ in one area, we

will find that an impairment(s) is

functionally equivalent to listing 112.12

or listing 112.02. Even though the

listings we use for reference are mental

disorder listings, this evaluation may be

done for a physical impairment(s) or for

a combination of physical and mental

impairments. We define the terms

‘‘marked limitations’’ and ‘‘extreme

limitations’’ in (c)(3).

In (c)(1), we explain how we use the

areas of development or functioning: We

consider the extent of functional

limitations in the areas affected by an

impairment(s) and how limitations in

one area affect development or

functioning in other areas. Thus, when

a physical impairment(s) produces

global limitations (i.e., limitations in the

motor area and at least one other area),

those limitations must be evaluated in

all relevant areas. We also make

reference to new areas of motor

development and functioning we have

added to ensure appropriate

consideration of physical impairments.

In (c)(2), ‘‘Other considerations,’’ we

explain that we will consider all

information in the case record that will

help us determine the effect of an

impairment(s) on a child’s physical and

mental functioning. We will consider

the nature of the impairment(s), the

child’s age, the child’s ability to be

tested given his or her age, the child’s

need for help from others (and whether

such need is age-appropriate), and other

relevant factors.

In (c)(3), we define the terms

‘‘marked’’ and ‘‘extreme’’ limitations.

The definitions are not new, but are

based on longstanding policy in the

regulations and interpretations we have

used in our internal instructions and

training. In (c)(4) and (c)(5), we describe

the areas of development or functioning

that may be addressed in a

determination of functional

equivalence, including the new areas of

motor development and motor

functioning and the revised ‘‘personal’’

area of functioning. The descriptions are

based on our prior descriptions and

changes mandated by Public Law 104–

193, and contain several clarifications

based on our experience evaluating

functional equivalence in children since

1991.

Final paragraph (d), ‘‘Examples of

impairments that are functionally

equivalent in severity to a listed

impairment,’’ is substantively the same

as prior paragraph (d), ‘‘Examples of

impairments of children that are

functionally equivalent to the listings.’’

We made minor editorial changes for

clarity and, as throughout the rules, to

conform the language to the changes in

the law. We also updated examples (1)

and (11) to remove examples of

cardiovascular impairments that are

now listed impairments and, therefore,

no longer examples of equivalence. We

changed example (4) to delete reference

to a ‘‘marked inability to stand and

walk’’ because the limitation described

is actually ‘‘extreme.’’ We changed

example (5) to show how the area of

motor functioning may be used. We also

clarified the primary purpose of

example (10), which is primarily for

children who are too young to test and

for whom a diagnosis and other medical

findings may be difficult to specify.

Section 416.927 Evaluating Medical

Opinions About Your Impairment(s) or

Disability

We have added a description of the

‘‘marked and severe functional

limitations’’ standard for children to

paragraph (a), ‘‘General,’’ which already

included a description of the disability

standard for adults.

Section 416.929 How We Evaluate

Symptoms, Including Pain

Throughout this section, we have

replaced references to a child’s ability to

‘‘function independently, appropriately,

and effectively in an age-appropriate

manner’’ with references to the child’s

‘‘functioning.’’ The rules for evaluating

a child’s symptoms are otherwise

unchanged by the new law.

Section 416.930 Need To Follow

Prescribed Treatment

This section explains that, in order to

receive benefits, an individual must

follow treatment prescribed by his or

her physician if the treatment can

restore his or her ability to work; i.e., if

the treatment could end the individual’s

disability. We have added parallel

language explaining that a child must

follow prescribed treatment if the

treatment can reduce his or her

functional limitations so that they are

no longer ‘‘marked and severe.’’

Section 416.987 Disability

Redeterminations for Individuals Who

Attain Age 18

This section is new. It provides rules

for disability redeterminations
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6415

mandated by section 212(b) of Public

Law 104–193.

In paragraphs (a)(1) and (a)(2), we

explain that Public Law 104–193

requires these redeterminations and

that, when we do these disability

redeterminations, we generally will use

the rules for adults filing new claims,

not the rules we use for CDRs.

In paragraph (a)(3) we explain that we

will notify individuals before we begin

a disability redetermination. In

paragraph (a)(4) we explain that we will

notify the individual in writing of the

results of the redetermination and

explain the individual’s rights in

connection with our notice of disability

redetermination.

Paragraph (b) concerns a group of

recipients who are subject to disability

redeterminations under section 212(b)

of the new law: individuals who became

eligible by reason of disability prior to

attaining age 18, and who were eligible

for SSI benefits based on disability for

the month before the month in which

they attained age 18. Paragraphs (b)(1)

through (b)(7) of this section provide

that, during the 1-year period beginning

on the individual’s eighteenth birthday,

we will redetermine the eligibility of

these individuals using the rules in

§§ 416.920 (c) through (f), and not the

rules in § 416.920(b) or § 416.994; i.e.,

we will decide whether an individual is

disabled using the rules for adults filing

new claims, except the rule that says an

individual engaging in substantial

gainful activity will be found not

disabled. If an individual age 18 or older

has a ‘‘disabling impairment’’ as defined

in § 416.911 and is working, we will

apply the rules for special SSI eligibility

in §§ 416.920ff. We also provide that

eligibility will end if we find that the

individual is not disabled and describe

the month in which we may find an

individual not disabled. Finally, we

explain that, if we find an individual is

not disabled, the last month for which

benefits can be paid is the second

month after the month in which the

individual was determined not to be

disabled.

Section 416.990 When and How Often

We Will Conduct a Continuing Disability

Review

In paragraph (b), ‘‘When we will

conduct a continuing disability review,’’

we have added a new paragraph (b)(11),

mandated by Public Law 104–193. The

new paragraph provides that we will do

a CDR by a child’s first birthday if the

child’s low birth weight is a

contributing factor material to the

determination that the child is disabled;

i.e., whether we would have found the

child disabled if we had not considered

the child’s low birth weight.

In paragraph (c), ‘‘Definitions,’’ we

have revised the definition of a

permanent impairment, medical

improvement not expected, to explain

that for a child, such an impairment is

one that is unlikely to improve to the

point that the child’s functional

limitations will no longer be marked

and severe.

Section 416.994a How We Will

Determine Whether Your Disability

Continues or Ends, and Whether You

Are and Have Been Receiving Treatment

That Is Medically Necessary and

Available, Disabled Children

We revised this section extensively to

comport with provisions in Public Law

104–193 in two ways:

• To revise the medical improvement

review standard (MIRS) used in

conducting a CDR, and

• To add rules that, at the time of a

CDR, a child’s representative payee

must show evidence that the child is

and has been receiving treatment that is

medically necessary and available for

the condition that was the basis for

providing SSI benefits.

The new evaluation sequence for

applying the medical improvement

review standard in a CDR is:

1. Has there been medical

improvement in the impairment(s) on

which eligibility was based? If there has

been no medical improvement, we will

find that the child is still disabled,

unless certain exceptions apply.

2. If there has been medical

improvement, does the impairment(s)

the child had at the time of our most

recent favorable medical determination

or decision still meet, medically equal,

or functionally equal the severity of the

listing that it met or equalled at the time

of the prior determination or decision?

If that impairment(s) still meets or

equals the severity of that listed

impairment as it was written at that

time, we will find the child still

disabled, unless certain exceptions

apply.

3. If that impairment(s) does not still

meet or equal the severity of that listed

impairment as it was written at that

time, is the child now disabled, taking

into consideration all current

impairments.

Because the childhood disability

standard is no longer linked to the adult

standard of inability to work, there is no

longer a step to assess whether any

medical improvement is ‘‘related to the

ability to work.’’

In paragraph (a)(1), we changed the

outline of the sequential evaluation

process for CDRs in childhood disability

cases to reflect the new sequence of

evaluation. The sequence outlined in

paragraph (a)(1) and discussed in more

detail in paragraphs (b)(1) through (b)(3)

differs significantly from the sequence

under our prior rules. In our prior rules,

the first step of the CDR evaluation

process for children required

consideration of whether the child’s

impairment(s) met, or was equivalent in

severity to, a listing. However, the new

statutory definition of disability for

children—‘‘marked and severe

functional limitations’’—means a level

of severity that meets or is medically or

functionally equivalent in severity to

the severity of a listing. Thus, if we were

first to consider whether the child’s

impairment(s) is of listing-level severity,

we would also be deciding whether that

impairment(s) is disabling. In those

instances in which the impairment(s) is

found neither to meet nor to be

equivalent in severity to any listing, we

believe it would be difficult for an

adjudicator to then fairly consider the

issue of medical improvement, because

the adjudicator would already have

concluded that the child is not disabled.

Section 1614(a)(4)(B) of the Act states

that, with some exceptions, disability

can be found to have ceased only if

there is ‘‘substantial evidence which

demonstrates that there has been

medical improvement * * * and that

[the] impairment or combination of

impairments no longer results in

marked and severe functional

limitations.’’

Thus, to ensure proper consideration

of the issue of medical improvement, we

have placed that issue first in the

sequence. If there has been no medical

improvement, we will generally find

that the child is still disabled. There are

exceptions to this rule, set forth in final

paragraphs (e) and (f) of this section and

discussed below.

Under our prior rules, pursuant to the

MIRS provisions in the Act at that time,

if there had been medical improvement,

we considered whether the

improvement was related to the ability

to work (which we defined for

childhood cases as meaning the medical

improvement resulted in an increase in

ability to function independently,

appropriately, and effectively in an ageappropriate manner.) However, the

MIRS as revised by Public Law 104–193

contains no provision for a ‘‘related to

the ability to work’’ step for children

and, thus, limits the application of this

provision to individuals age 18 or over.

Accordingly, we have deleted that step

from our rules (paragraph (d) of our

prior rules).

If there has been medical

improvement, the next step under these
6416 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

rules (discussed in detail in paragraph

(b)(2)) is to consider whether the

impairment(s) that we considered at the

time of our most recent favorable

determination or decision still meets, or

is still equivalent in severity to, the

listing that it met or was equivalent in

severity to at that time, as that listing

then appeared, even if that listing has

since been revised or removed from the

Listing. If that impairment(s) would still

meet or equal in severity that listing, we

will find the child still disabled, subject

to certain exceptions discussed in

paragraphs (e) and (f) of this section and

discussed below.

If that impairment(s) would not now

meet or equal in severity that listing, we

will then consider whether the child is

currently disabled, taking into account

all current impairments, including any

the child did not have or that we did not

consider at the time of our most recent

favorable determination or decision.

At this step (discussed in detail in

paragraph (b)(3)), we first consider

whether the child has a severe

impairment or combination of

impairments considering all current

impairments. If the child does not, we

will find the child not disabled. If so,

we then consider whether the child’s

current impairment(s) meets, or is

medically equivalent or functionally

equivalent in severity to, any listing in

the Listing of Impairments. If so, the

child continues to be disabled; if not,

the child is not disabled.

We will not always follow these steps

in order. In final paragraph (b), we

added language explaining that we may

skip steps in the sequence if it is clear

this would lead to a more prompt

finding that disability continues. We

will not skip any steps unless it is clear

that a continuance will result. For

example, we might not consider the

issue of medical improvement if it is

obvious on the face of the evidence that

a current impairment meets the severity

of a listed impairment.

Final paragraph (c) discussed what we

mean by ‘‘medical improvement’’; i.e.,

any decrease in the severity of the

medical impairment(s) which was

present at the time of our most recent

favorable determination or decision.

This paragraph is largely the same

under our prior rules, but we have

added language to make it clear that we

will disregard minor changes in the

individual’s signs, symptoms, and

laboratory findings that obviously do

not represent medical improvement and

could not result in a finding that the

individual’s disability has ended. This

is a longstanding procedure we have

used in cases in which there is

technically medical improvement

because there is some very slight

improvement in a sign, symptom, or

laboratory finding (e.g., a change in IQ

from 61 to 62) but it is clear that the

outcome will not change.

Final paragraph (d), largely

unchanged from prior paragraph (e),

explains what we will do if we cannot

find the prior file. First, we will

determine whether the child is currently

disabled. If not, we will decide whether

to attempt reconstruction of those

portions of the missing file that were

relevant to our most recent favorable

determination or decision, so as to allow

a decision whether there has been

medical improvement since that time. If

we do not or cannot reconstruct the file,

we will not find medical improvement.

Paragraph (e) concerns ‘‘the first

group of exceptions to medical

improvement.’’ The law provides

limited situations in which disability

can be found to have ended even though

medical improvement has not occurred,

if the child’s impairment(s) no longer

results in marked and severe functional

limitations. Two of the exceptions in

our prior rules—the ‘‘advances in

medical or vocational therapy or

technology’’ exception and the

‘‘vocational therapy’’ exception—have

been limited by Public Law 104–193 to

individuals who have attained age 18.

The third exception is still applicable: A

child’s disability may be found to have

ceased if substantial evidence shows

that, based on new or improved

diagnostic techniques or evaluations,

the child’s impairment(s) is not as

disabling as it was considered to be at

the time of the most recent favorable

determination or decision. We have

revised this exception to conform to the

new definition of disability for children.

Final paragraph (f), largely unchanged

from prior paragraph (g), concerns ‘‘the

second group of exceptions to medical

improvement.’’ These exceptions

include such issues as fraud and failure

to cooperate in obtaining evidence. If

one of these exceptions applies, we may

find that disability ceases without

finding medical improvement or that

the child is currently disabled. We have

revised the language concerning these

exceptions to conform to the new

definition of disability for children.

Final paragraph (g) (prior paragraph

(h)) concerns the month we will find a

child no longer disabled. We revised the

language slightly to conform to the new

definition of disability for children.

Final paragraph (h) (prior paragraph,

(i)) provides that, before we stop

benefits, we will provide an opportunity

for an appeal, and gives a reference to

the rules on appeals; it is unchanged

from our prior rules.

Final paragraph (i) is new; it

implements provisions in Public Law

104–193 requiring that, if a child has a

representative payee, that payee must

present evidence at the time of a CDR

showing that the child is and has been

receiving treatment to the extent

considered medically necessary and

available for the condition(s) that was

the basis for providing SSI benefits,

unless we determine such evidence

would be inappropriate or unnecessary,

considering the nature of the child’s

impairment(s). If the payee refuses

without good cause to provide evidence,

and it is in the best interests of the

child, we will determine if another

payee should be selected or if the child

should receive benefits directly.

In paragraph (i)(1), we explain that

‘‘medically necessary’’ treatment means

treatment that is expected to improve or

restore the individual’s functioning and

that was prescribed by a ‘‘treating

source’’ as defined in § 416.902. If the

child does not have a treating source,

we will decide whether there is

medically necessary treatment that

could have been prescribed by a treating

source. In paragraph (i)(2), we list some

factors we will consider in evaluating

whether medically necessary treatment

is available; e.g., the location of

institutions or facilities that could

provide treatment, the availability and

cost of transportation to such places, the

availability of local community

resources that would provide free

treatment.

In paragraph (i)(3), we explain that we

will not require a payee to show proof

of treatment if we decide that the

disabling impairment(s) is not amenable

to treatment. In paragraph (i)(4), we

explain that if the representative payee

refuses without good cause to provide

evidence of treatment, we will, if it is in

the child’s best interests, remove the

payee and determine if another payee

should be selected or if the child should

receive benefits directly. We further

explain that when we consider whether

a representative payee had good cause,

we will consider factors such as the

acceptable reasons for failure to follow

prescribed treatment in § 416.930(c) and

other factors similar to those describing

good cause for missing deadlines in

§ 416.1411.

Finally, in paragraph (i)(5) we explain

that the requirements of paragraph (i) do

not apply to a child who is receiving SSI

payments directly. This is because the

treatment provision in Public Law 104–

193 applies only to children who have

representative payees. However, we

have also included a reminder that the

failure-to-follow-prescribed-treatment

rules in § 416.930 continue to apply to
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6417

children who do not have representative

payees.

Other Changes

Sections that have been changed only

so that their language will conform to

the new definition of disability for

children, or to provide references to

new or revised rules, include listings

sections 103.00, 104.00, 112.00, and

114.00, and §§ 416.901, 416.912,

416.913, and 416.919a.

Electronic Version

The electronic file of this document is

available on the Federal Bulletin Board

(FBB) at 9:00 A.M. on the date of

publication in the Federal Register. To

download the file, modem dial (202)

512–1387. The FBB instructions will

explain how to download the file and

the fee. This file is in WordPerfect and

will remain on the FBB during the

comment period.

Regulatory Procedures

Pursuant to section 702(a)(5) of the

Act, 42 U.S.C. 902(a)(5), the Social

Security Administration follows the

Administrative Procedure Act (APA)

rulemaking procedures specified in 5

U.S.C. 553 in the development of its

regulations. The APA provides

exceptions to its Notice of Proposed

Rulemaking (NPRM) procedures when

an agency finds that there is good cause

for dispensing with such procedures on

the basis that they are impracticable,

unnecessary, or contrary to the public

interest. In the case of these interim

final rules, we have determined that

under 5 U.S.C. 553(b)(B), good cause

exists for waiving the NPRM

procedures.

Public Law 104–193 was signed into

law on August 22, 1996. Sections 211

and 212 of the law were effective upon

enactment (or with respect to benefits

for months beginning on or after

enactment) without regard to whether

regulations have been issued. In

addition, section 215 requires the

Commissioner to issue regulations

necessary to carry out the amendments

made by sections 211 and 212, which

are the subject of these interim final

rules, within 3 months after the date of

enactment. Accordingly, to issue these

rules as an NPRM would have delayed

issuance of final rules until well past 3

months after enactment.

In light of the Congressional mandate

that we issue regulations needed to

carry out these statutory provisions as

expeditiously as possible (see H.R. Rep.

No. 651, 104th Cong., 2d Sess. 1392

(1996), reprinted in 1996 U.S. Code,

Cong. and Ad. News 2183, 2451), we

believe good cause exists for waiver of

the NPRM procedures under the APA

since issuance of proposed rules would

be impracticable and contrary to

Congressional intent. In light of the

short statutory deadline in which to

prescribe regulations under section 215

of Public Law 104–193, we find that use

of the NPRM process is impracticable.

Moreover, some of the changes in these

rules are technical ones to conform our

rules to the new definition of disability

for children. The technical changes

made by these rules are minor and do

not represent discretionary policy.

Accordingly, we find that prior notice

and comment are unnecessary with

respect to these rules. However, even

though we are issuing these rules as

interim final regulations, we are

requesting public comments and will

issue revised rules if necessary.

Executive Order 12866

These interim final rules reflect and

implement the disability provisions of

sections 211 and 212 of Public law 104–

193. This is a major rule as defined in

section 251 of Public Law 104–121, 5

U.S.C. 804. The Office of Management

and Budget (OMB) has reviewed these

interim final rules and determined that

they meet the criteria for a significant

regulatory action under Executive Order

12866. Therefore, we prepared and

submitted to OMB, separately from

these interim final rules, an assessment

of the potential costs and benefits of this

regulatory action. This assessment is

available for review by members of the

public.

The potential costs and benefits for

the policies reflected in these interim

final rules follow:

Program Savings

It is estimated that due to the legislation there would be reduced program outlays resulting in the following savings

(in millions of dollars) to the SSI program (over $4.7 billion total in a 6-year period):

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

¥$120 ¥$715 ¥$945 ¥$1,075 ¥$905 ¥$1,010 ¥$4,775

This is the amount we expect to spend (in millions of dollars) on SSI childhood disability benefits:

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

$5,425 $5,285 $5,475 $6,300 $5,715 $6,505 $34,705

Note: Annual numbers may not add to total due to rounding.

It is also estimated that there will be reduced Medicaid program outlays (Federal share) resulting in the following

savings (in millions of dollars) over a 6-year period:

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

¥10 ¥85 ¥110 ¥125 ¥125 ¥135 ¥590

There will also be reduced Medicaid program outlays for States.

Administrative Costs and Savings

The administrative cost of conducting the medical redeterminations of the children who might be affected by the

new childhood disability standards is expected to be $185 million in FY 1997 and $130 million in FY 1998. For

this regulation, the administrative cost of redetermining disability in SSI childhood recipients is assumed to be same

as the cost of a full medical CDR for these individuals, including the additional appellate costs.

From FYs 1999–2002, the ongoing Federal workyear savings are from fewer recipients on the rolls, i.e., from those

children currently receiving benefits who will be terminated and from those children who will be denied under the
6418 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

stricter standards. There will be net savings of approximately $12 million annually beginning with FY99. These savings

will result from fewer income and resource redeterminations, representative payee actions, and maintenance of the

rolls activities. The ongoing State workyear costs are for additional hearings, as well as medical reviews from additional

reconsiderations, resulting from the stricter childhood disability standard.

Estimated administrative costs ($ in millions, rounded to the nearest $5 million) and workyears (rounded to the

nearest 50) are:

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

............................................................................. $185 $130 ¥$10 ¥$10 ¥$10 ¥$10 $265

Workyears

Federal .................................................................... 900 650 ¥250 ¥250 ¥250 ¥250 550

State ........................................................................ 1,200 1,250 150 150 150 150 3,050

Total ................................................................. 2,100 1,900 ¥100 ¥100 ¥100 ¥100 3,550

Note: Annual numbers may not add to total due to rounding.

Reductions in SSI Recipients (in thousands):

We expect benefit eligibility for a total of 135,000 of those children receiving benefits at date of enactment will

be terminated as a result of these changes in the law. The following figures show the estimated annual effect of

the legislation on projected numbers of recipients of Federal SSI benefits:

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002

Current recipients .................................................................................................. ¥10 ¥95 ¥110 ¥95 ¥80 ¥70

New awards .......................................................................................................... ¥10 ¥35 ¥50 ¥70 ¥80 ¥90

Total ............................................................................................................... ¥20 ¥130 ¥160 ¥165 ¥160 ¥160

With the reductions in SSI recipients shown above, we estimate the average number of disabled children (in thousands)

in payment status after implementation of these interim final rules will be:

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002

1,010 950 955 990 1,015 1,040

Note: Annual numbers may not add to total due to rounding.

Regulatory Flexibility Act

We certify that these interim final

rules will not have a significant

economic impact on a substantial

number of small entities since this rule

affects only individuals. Therefore, a

regulatory flexibility analysis as

provided in Public Law 96–354, the

Regulatory Flexibility Act, as amended

by Public Law 104–121 is not required.

Paperwork Reduction Act

These interim final rules contain a

new information collection requirement

in Part 416, section 416.924(g). As

required by 44 U.S.C. 3507, as amended

by section 2 of the Paperwork Reduction

Act of 1995, we have requested under

emergency procedures, and OMB has

approved, under OMB #0960–0568, the

information collection requirements

contained in section 416.924(g).

(Catalog of Federal Domestic Assistance:

Program Nos. 96.001 Social SecurityDisability Insurance; 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).

Dated: February 5, 1997.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the

preamble, 20 CFR chapter III is

amended as follows:

PART 404—FEDERAL OLD-AGE,

SURVIVORS AND DISABILITY

INSURANCE (1950– )

Subpart P—[Amended]

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) and (i), 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) and (i), 422(c), 423, 425, and

902(a)(5)); sec. 211(b), Pub. L. 104–193, 110

Stat. 2105, 2189.

Appendix 1 to Subpart P—[Amended]

2. Part B of Appendix 1 (Listing of

Impairments) of subpart P to part 404 is

amended by revising the third sentence

of the second undesignated paragraph of

103.00A, the fourth undesignated

paragraph of 103.00A, the fourth

sentence of the fifth undesignated

paragraph of 104.00A, the sixth

undesignated paragraph of 104.00A, the

last sentence of the last undesignated

paragraph of 104.00C, the first three

sentences of the eighth undesignated

paragraph of 112.00A, the third

sentence of the first paragraph of
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6419

112.00C, the first sentence of 112.00C2.

introductory text 112.00C2.b.,

112.00C2.c., the heading of 112.00C2.d.,

112.00C4 and the undesignated

paragraph under it, and 112.02B2.c.

introductory text to read as follows:

Appendix 1 to Subpart P—Listing of

Impairments

* * * * *

Part B

* * * * *

103.00 Respiratory System

A. * * *

* * * * *

* * * Even if a child does not show

that his or her impairment meets the

criteria of these listings, the child may

have an impairment(s) that is medically

or functionally equivalent in severity to

one of the listed impairments. * * *

* * * * *

It must be remembered that these

listings are only examples of common

respiratory disorders that are severe

enough to find a child disabled. When

a child has a medically determinable

impairment that is not listed, an

impairment that does not meet the

requirements of a listing, or a

combination of impairments no one of

which meets the requirements of a

listing, we will make a determination

whether the child’s impairment(s) is

medically or functionally equivalent in

severity to the criteria of a listing. (See

§§ 404.1526, 416.926, and 416.926a.)

* * * * *

104.00 Cardiovascular System

A. Introduction

* * * * *

* * * Even though a child who does

not receive treatment may not be able to

show an impairment that meets the

criteria of these listings, the child may

have an impairment(s) that is medically

or functionally equivalent in severity to

one of the listed impairments.

Indeed, it must be remembered that

these listings are only examples of

common cardiovascular disorders that

are severe enough to find a child

disabled. When a child has a medically

determinable impairment that is not

listed, an impairment that does not meet

the requirements of a listing, or a

combination of impairments no one of

which meets the requirements of a

listing, we will make a determination

whether the child’s impairment(s) is

medically or functionally equivalent in

severity to the criteria of a listing. (See

§§ 404.1526, 416.926, and 416.926a.)

* * * * *

C. Treatment and Relationship Status

* * * * *

* * * (See § 404.1594 or § 416.994a,

as appropriate, for our rules on medical

improvement and whether an

individual is no longer disabled.)

112.00 Mental Disorders

A. * * *

* * * * *

It must be remembered that these

listings are only examples of common

mental disorders that are severe enough

to find a child disabled. When a child

has a medically determinable

impairment that is not listed, an

impairment that does not meet the

requirements of a listing, or a

combination of impairments no one of

which meets the requirements of a

listing, we will make a determination

whether the child’s impairment(s) is

medically or functionally equivalent in

severity to the criteria of a listing. (See

§§ 404.1526, 416.926, and 416.926a.)

* * *

* * * * *

C. * * * The functional areas that we

consider are: Motor function; cognitive/

communicative function; social

function; personal function; and

concentration, persistence, or pace.

* * *

1. * * *

2. Preschool children (age 3 to

attainment of age 6). For the age groups

including preschool children through

adolescence, the functional areas used

to measure severity are: (a) Cognitive/

communicative function, (b) social

function, (c) personal function, and (d)

deficiencies of concentration,

persistence, or pace resulting in

frequent failure to complete tasks in a

timely manner. * * * a. * * *

b. Social function. Social functioning

refers to a child’s capacity to form and

maintain relationships with parents,

other adults, and peers. Social

functioning includes the ability to get

along with others (e.g., family members,

neighborhood friends, classmates,

teachers). Impaired social functioning

may be caused by inappropriate

externalized actions (e.g., running away,

physical aggression—but not selfinjurious actions, which are evaluated

in the personal area of functioning), or

inappropriate internalized actions (e.g.,

social isolation, avoidance of

interpersonal activities, mutism). Its

severity must be documented in terms

of intensity, frequency, and duration,

and shown to be beyond what might be

reasonably expected for age. Strength in

social functioning may be documented

by such things as the child’s ability to

respond to and initiate social interaction

with others, to sustain relationships,

and to participate in group activities.

Cooperative behaviors, consideration for

others, awareness of others’ feelings,

and social maturity, appropriate to a

child’s age, also need to be considered.

Social functioning in play and school

may involve interactions with adults,

including responding appropriately to

persons in authority (e.g., teachers,

coaches) or cooperative behaviors

involving other children. Social

functioning is observed not only at

home but also in preschool programs.

c. Personal function. Personal

functioning in preschool children

pertains to self-care; i.e., personal needs,

health, and safety (feeding, dressing,

toileting, bathing; maintaining personal

hygiene, proper nutrition, sleep, health

habits; adhering to medication or

therapy regimens; following safety

precautions). Development of self-care

skills is measured in terms of the child’s

increasing ability to help himself/herself

and to cooperate with others in taking

care of these needs. Impaired ability in

this area is manifested by failure to

develop such skills, failure to use them,

or self-injurious actions. This function

may be documented by a standardized

test of adaptive behavior or by a careful

description of the full range of self-care

activities. These activities are often

observed not only at home but also in

preschool programs.

d. Concentration, persistence, or pace.

* * *

* * * * *

4. Adolescents (age 12 to attainment

of age 18). Functional criteria parallel to

those for primary school children

(cognitive/communicative; social;

personal; and concentration,

persistence, or pace) are the measure of

severity for this age group. Testing

instruments appropriate to adolescents

should be used where indicated.

Comparable findings of disruption of

social function must consider the

capacity to form appropriate, stable, and

lasting relationships. If information is

available about cooperative working

relationships in school or at part-time or

full-time work, or about the ability to

work as a member of a group, it should

be considered when assessing the

child’s social functioning. Markedly

impoverished social contact, isolation,

withdrawal, and inappropriate or

bizarre behavior under the stress of

socializing with others also constitute

comparable findings. (Note that selfinjurious actions are evaluated in the

personal area of functioning.)

a. Personal functioning in adolescents

pertains to self-care. It is measured in
6420 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

the same terms as for younger children,

the focus, however, being on the

adolescent’s ability to take care of his or

her own personal needs, health, and

safety without assistance. Impaired

ability in this area is manifested by

failure to take care of these needs or by

self-injurious actions. This function may

be documented by a standardized test of

adaptive behavior or by careful

descriptions of the full range of self-care

activities.

b. In adolescents, the intent of the

functional criterion described in

paragraph B2d is the same as in primary

school children, However, other

evidence of this functional impairment

may also be available, such as from

evidence of the child’s performance in

wok or work-like settings.

* * * * *

112.01 Category of Impairments,

Mental

112.02 Organic Mental Disorders:

* * * * *

B. * * *

* * * * *

2. * * *

c. Marked impairment in ageappropriate personal functioning,

documented by history and medical

findings (including consideration of

information from parents or other

individuals who have knowledge of the

child, when such information is needed

and available) and including, if

necessary, appropriate standardized

tests; or

* * * * *

3. Part B of Appendix 1 (Listing of

Impairments) of subpart P to part 404 is

amended by revising 114.00D6 and

removing the last sentence of the second

undesignated paragraph under

114.00D6.

114.00 Immune System

* * * * *

D. * * *

6. Evaluation of HIV infection in

children. The criteria in 114.08 do not

describe the full spectrum of diseases or

conditions manifested by children with

HIV infection. As in any case,

consideration must be given to whether

a child’s impairment(s) meets,

medically equals, or functionally equals

the severity of any other listing in

appendix 1 of subpart P; e.g., a

neoplastic disorder listed in 113.00ff.

(See §§ 404.1526, 416.926, and

416.926a.) Although 114.08 includes

cross-references to other listings for the

more common manifestations of HIV

infection, additional listings may also

apply.

* * * * *

PART 416—SUPPLEMENTAL

SECURITY INCOME FOR THE AGED,

BLIND, AND DISABLED

Subpart F—[Amended]

4. The authority citation for subpart F

of part 416 continues to read as follows:

Authority: Secs. 702(a)(5), 1631(a)(2) and

(d)(1) of the Social Security Act (42 U.S.C.

902(a)(5) and 1383(a)(2) and (d)(1)).

5. Section 416.635 is amended by

revising paragraphs (c) and (d) and

adding paragraph (e) to read as follows:

§ 416.635 Responsibilities of a

representative payee.

* * * * *

(c) Submit to us, upon our request, a

written report accounting for the

benefits received;

(d) Notify us of any change in his or

her circumstances that would affect

performance of the payee

responsibilities; and

(e) In cases in which the beneficiary

is an individual under age 18 (including

cases in which the beneficiary is an

individual whose low birth weight is a

contributing factor material to our

determination that the individual is

disabled), ensure that the beneficiary is

and has been receiving treatment to the

extent considered medically necessary

and available for the condition that was

the basis for providing benefits (See

§ 416.994a(i).)

Subpart I—[Amended]

6. The authority citation for subpart I

of part 416 continues to read as follows:

Authority: Secs. 702(a)(5), 1611, 1614,

1619, 1631(a), (c), and (d)(1), and 1633 of the

Social Security Act (42 U.S.C. 902(a)(5),

1382, 1382c, 1382h, 1383(a), (c), and (d)(1),

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,

1382h note).

7. Section 416.901 is amended by

revising paragraphs (e), (f)(2), and (f)(6)

as follows:

§ 416.901 Scope of subpart.

* * * * *

(e) Our general rules on evaluating

disability for children filing new

applications are stated in § 416.924.

(f) * * *

* * * * *

(2) What we mean by the terms

medical equivalence and functional

equivalence and how we determine

medical equivalence (and functional

equivalence if you are a child);

* * * * *

(6) The effect on your benefits if you

fail to follow treatment that is expected

to restore your ability to work or, if you

are a child, to reduce your functional

limitations to the point that they are no

longer marked and severe, and how we

apply the rule in § 416.930.

* * * * *

7. Section 416.902 is amended by

adding four new definitions between the

definitions for ‘‘Child’’ and ‘‘Medical

sources’’ to read as follows:

§ 416.902 General definitions and terms

for this subpart.

* * * * *

Commissioner means the

Commissioner of Social Security.

Disability redetermination means a

redetermination of your eligibility based

on disability using the rules for new

applicants appropriate to your age,

except the rules pertaining to

performance of substantial gainful

activity. For individuals who are

working and for whom a disability

redetermination is required, we will

apply the rules in §§ 416.260 ff. In

conducting a disability redetermination,

we will not use the rules for

determining whether disability

continues set forth in § 416.994 or

§ 416.994a. (See § 416.987.)

Impairment(s) means a medically

determinable physical or mental

impairment or a combination of

medically determinable physical or

mental impairments.

Marked and severe functional

limitations, when used as a phrase,

means the standard of disability in the

Social Security Act for children

claiming SSI benefits based on disability

and is a level of severity that meets or

medically or functionally equals the

severity of a listing in the Listing of

Impairments in appendix 1 of subpart P

of part 404 (the Listing). See §§ 416.906,

416.924, and 416.926a. The words

‘‘marked’’ and ‘‘severe’’ are also separate

terms used throughout this subpart to

describe measures of functional

limitations; the term ‘‘marked’’ is also

used in the listings. See §§ 416.924 and

416.926a. The meaning of the words

‘‘marked’’ and ‘‘severe’’ when used as

part of the term Marked and severe

functional limitations is not the same as

the meaning of the separate terms

‘‘marked’’ and ‘‘severe’’ used elsewhere

in 20 CFR 404 and 416. (See

§§ 416.924(c) and 416.926a(c).)

* * * * *

8. Section 416.906 is revised to read

as follows:
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6421

§ 416.906 Basic definition of disability for

children.

If you are under age 18, we will

consider you disabled if you have a

medically determinable physical or

mental impairment or combination of

impairments that causes marked and

severe functional limitations, and that

can be expected to cause death or that

has lasted or can be expected to last for

a continuous period of not less than 12

months. Notwithstanding the preceding

sentence, if you file a new application

for benefits and you are engaging in

substantial gainful activity, we will not

consider you disabled. We discuss our

rules for determining disability in

children who file new applications in

§§ 416.924 through 416.924c and

§§ 416.925 through 416.926a.

9. Section 416.911 is revised to read

as follows:

§ 416.911 Definition of disabling

impairment.

(a) If you are an adult:

(1) A disabling impairment is an

impairment (or combination of

impairments) which, of itself, is so

severe that it meets or equals a set of

criteria in the Listing of Impairments in

appendix 1 of subpart P of part 404 of

this chapter or which, when considered

with your age, education and work

experience, would result in a finding

that you are disabled under § 416.994,

unless the disability redetermination

rules in § 416.987(b) apply to you.

(2) If the disability redetermination

rules in § 416.987 apply to you, a

disabling impairment is an impairment

or combination of impairments that

meets the requirements in §§ 416.920(c)

through (f).

(b) If you are a child, a disabling

impairment is an impairment (or

combination of impairments) that

causes marked and severe functional

limitations. This means that the

impairment or combination of

impairments:

(1) Must meet or medically or

functionally equal the requirements of a

listing in the Listing of Impairments in

appendix 1 of subpart P of part 404 of

this chapter, or

(2) Would result in a finding that you

are disabled under § 416.994a.

(c) In determining whether you have

a disabling impairment, earnings are not

considered.

10. Section 416.912 is amended by

revising paragraphs (a) and (c)(6) to read

as follows:

§ 416.912 Evidence of your impairment.

(a) General. In general, you have to

prove to us that you are blind or

disabled. This means that you must

furnish medical and other evidence that

we can use to reach conclusions about

your medical impairment(s). If material

to the determination whether you are

blind or disabled, medical and other

evidence must be furnished about the

effects of your impairment(s) on your

ability to work, or if you are a child, on

your functioning, on a sustained basis.

We will consider only impairment(s)

you say you have or about which we

receive evidence.

* * * * *

(c) * * *

(6) Any other factors showing how

your impairment(s) affects your ability

to work, or, if you are a child, your

functioning. In §§ 416.960 through

416.969, we discuss in more detail the

evidence we need when we consider

vocational factors.

* * * * *

11. Section 416.913 is amended by

revising paragraph (c)(3) to read as

follows:

§ 416.913 Medical evidence of your

impairment.

* * * * *

(c) * * *

(3) If you are a child, the medical

source’s opinion about your functional

limitations in learning, motor

functioning, performing self-care

activities, communicating, socializing,

and completing tasks (and, if you are a

newborn or young infant from birth to

age 1, responsiveness to stimuli).

* * * * *

12. Section 416.919a is amended by

revising paragraph (b)(5) to read as

follows:

§ 416.919a When we will purchase a

consultative examination and how we will

use it.

* * * * *

(b) * * *

(5) There is an indication of a change

in your condition that is likely to affect

your ability to work, or, if you are a

child, your functioning, but the current

severity of your impairment is not

established.

13. Section 416.919n is amended by

revising the fifth sentence of paragraph

(b) and paragraph (c)(6) to read as

follows:

§ 416.919n Informing the examining

physician or psychologist of examination

scheduling, report content, and signature

requirements.

* * * * *

(b) * * * The medical report must be

complete enough to help us determine

the nature, severity, and duration of the

impairment, and your residual

functional capacity (if you are an adult)

or your functioning (if you are a child).

* * *

(c) * * *

(6) A statement about what you can

still d0 despite your impairment(s),

unless the claim is based on statutory

blindness. If you are an adult, this

statement should describe the opinion

of the consultative physician or

psychologist about your ability, despite

your impairment(s), to do work-related

activities such as sitting, standing,

walking, lifting, carrying, handling

objects, hearing, speaking, and traveling;

and, in cases of mental impairment(s),

the opinion of the consultative

physician or psychologist about your

ability to understand, to carry out and

remember instructions, and to respond

appropriately to supervision, coworkers

and work pressures in a work setting. If

you are a child, this statement should

describe the opinion of the consultative

physician or psychologist about your

functional limitations in learning, motor

functioning, performing self-care

activities, communicating, socializing,

and completing tasks (and, if you are a

newborn or young infant from birth to

age 1, responsiveness to stimuli); and

* * * * *

14. Section 416.924 is amended by

removing paragraphs (a) and (f),

redesignating paragraphs (b) through (e)

as (a) through (d), adding new

paragraphs (e) and (g), redesignating

prior paragraph (g) as paragraph (f), and

by revising newly designated

paragraphs (a), (c), and (d) to read as

follows:

§ 416.924 How we determine disability for

children.

(a) Steps in evaluating disability. We

consider all relevant evidence in your

case record when we make a

determination or decision whether you

are disabled. If you allege more than one

impairment, we will evaluate all the

impairments for which we have

evidence. Thus, we will consider the

combined effects of all your

impairments upon your overall health

and functioning. We will also evaluate

any limitations in your functioning that

result from your symptoms, including

pain (see § 416.929). When you file a

new application for benefits, we use the

evaluation process set forth in (b)

through (d) of this section. We follow a

set order to determine whether you are

disabled. If you are doing substantial

gainful activity, we will determine that

you are not disabled and not review

your claim further. If you are not doing

substantial gainful activity, we will

consider your physical or mental

impairment(s) first to see if you have an

impairment or combination of
6422 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

impairments that is severe. If your

impairment(s) is not severe, we will

determine that you are not disabled and

not review your claim further. If your

impairment(s) is severe, we will review

your claim further to see if you have an

impairment(s) that meets, medically

equals, or functionally equals in severity

any impairment that is listed in

appendix 1 of subpart P of part 404 of

this chapter. If you have such an

impairment(s), and it meets the duration

requirement, we will find that you are

disabled. If you do not have such an

impairment(s), or if it does not meet the

duration requirement, we will find that

you are not disabled.

* * * * *

(c) You must have a severe

impairment(s). If your impairment(s) is

a slight abnormality or a combination of

slight abnormalities that causes no more

than minimal functional limitations, we

will find that you do not have a severe

impairment(s) and are, therefore, not

disabled.

(d) Your impairment(s) must meet,

medically equal, or functionally equal

in severity a listed impairment in

appendix 1. An impairment(s) causes

marked and severe functional

limitations if it meets or medically

equals in severity the set of criteria for

an impairment listed in the Listing of

Impairments in appendix 1 of subpart P

of part 404 of this chapter, or if it is

functionally equal in severity to a listed

impairment.

(1) Therefore, if you have an

impairment(s) that is listed in appendix

1, or is medically or functionally equal

in severity to a listed impairment, and

that meets the duration requirement, we

will find you disabled.

(2) If your impairment(s) does not

meet the duration requirement, or does

not meet, medically equal, or

functionally equal in severity a listed

impairment, we will find that you are

not disabled.

(3) We explain our rules for deciding

whether an impairment(s) meets a

listing in § 416.925. Our rules for how

we decide whether an impairment(s)

medically equals a listing are set forth

in § 416.926. Our rules for deciding

whether an impairment(s) functionally

equals a listing are set forth in

§ 416.926a.

(e) If you attain age 18 after you file

your disability application but before we

make a determination or decision. For

the period during which you are under

age 18, we will evaluate whether you

are disabled using the rules in this

section. For the period starting with the

day you attain age 18, we will evaluate

whether you are disabled using the

disability rules we use for adults filing

new claims, in § 416.920.

* * * * *

(g) How we will explain our findings.

When we make an initial or

reconsidered determination whether

you are disabled under this section or

whether your disability continues under

§ 416.994a (except when a disability

hearing officer makes the

reconsideration determination), we will

complete a standard form, Form SSA–

538, Childhood Disability Evaluation

Form. The form outlines the steps of the

sequential evaluation process for

individuals who have not attained age

18. In these cases, the State agency

medical or psychological consultant (see

§ 416.1016) or other designee of the

Commissioner has overall responsibility

for the content of the form and must

sign the form to attest that it is complete

and that he or she is responsible for its

content, including the findings of fact

and any discussion of supporting

evidence. Disability hearing officers,

administrative law judges, and the

administrative appeals judges on the

Appeals Council (when the Appeals

Council makes a decision) will not

complete the form but will indicate

their findings at each step of the

sequential evaluation process in their

determinations or decisions.

15. Section 416.924a is amended by

removing paragraph (a)(4), redesignating

paragraph (a)(5) as paragraph (a)(4),

removing paragraph (b), redesignating

paragraphs (c) and (d) as paragraphs (b)

and (c), revising the third sentence of

paragraph (a) introductory text, revising

paragraph (a)(2), revising the first

sentence of paragraph (a)(3), revising the

first sentence of redesignated paragraph

(b) introductory text, and revising

redesignated paragraphs (c)(1) and (c)(4)

to read as follows:

§ 416.924a Age as a factor of evaluation in

childhood disability.

(a) * * * However, your age is always

an important factor when we decide

whether your impairment(s) is severe

(see § 416.924(c)). * * *

(2) The Listing of Impairments in

appendix 1 of subpart P of part 404 of

this chapter contains examples of

impairments that we consider of such

significance that they cause marked and

severe functional limitations. Therefore,

we will usually decide whether your

impairment meets a listing without

giving special consideration to your age.

However, several listings are divided

into age categories. If the listing

appropriate for evaluating your

impairment includes such age

categories, we will evaluate your

impairment under the criteria for your

age when we decide whether your

impairment meets that listing.

(3) When we compare an unlisted

impairment with a listed impairment to

determine whether you have an

impairment(s) that medically or

functionally equals the severity of a

listing, the way in which we consider

your age will depend on the listing we

use for comparison. * * *

(b) Correcting chronological age of

premature infants. We generally use

chronological age (that is, a child’s age

based on birth date) when we decide

whether, or the extent to which, a

physical or mental impairment or

combination of impairments causes

functional limitations. * * *

* * * * *

(c) * * *

(1) We recognize that how a particular

child adapts to an impairment(s)

depends on many factors (e.g., the

nature and severity of the

impairment(s), the child’s temperament,

the quality of adult intervention, and

the child’s age at onset of the

impairment(s)). By adapting to an

impairment, we mean the child’s ability

to learn those skills, habits, or behaviors

that allow the child to compensate for

the impairment(s) and, thus, to function

as well as possible despite the

impairment(s). Therefore, our disability

determination will consider how you

are adapting to your impairment(s) and

the extent to which you are able to

function as set forth in this section and

§§ 416.924 and 416.924c.

* * * * *

(4) As children approach adulthood—

that is, by about age 16—the functional

abilities, skills, and behaviors that are

appropriate for them are those that are

also appropriate for adults. Older

adolescents generally also share with

the youngest adults the same abilities to

adapt to work-related activities despite

a severe impairment(s). By the age of

adolescence, children have developed

basic physical skills and behaviors, so

that impairments occurring in

adolescence may not have the

cumulative interactive effects on

functioning that impairments occurring

in infancy and early childhood do.

(However, as set forth in paragraph

(c)(1) of this section, we also recognize

that adolescents may experience a

variety of impairments with different

effects on their functioning. For

instance, a child born with a

degenerative disorder will experience a

worsening of its effects as he or she

grows older so that functioning may be

more limited for the older child than it

is for a younger child with the same

illness or disorder.)
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6423

16. Section 416.924b is amended by

revising paragraph (a), the second

sentences in paragraphs (b)(2) and

(b)(3), and paragraph (b)(4), and by

removing paragraph (b)(5) to read as

follows:

§ 416.924b Functioning in children.

(a) General. When we evaluate

whether your impairment(s) is severe

and, if so, whether it causes marked and

severe functional limitations, we will

consider all of your mental and physical

limitations that result from your

impairment(s).

(b) * * *

(2) * * * Ordinarily, failures to

achieve developmental milestones are

most important as indicators of

impaired functioning from birth until

the attainment of age 3, although they

may be used to evaluate older children,

especially preschool children.

(3) * * * Ordinarily, activities of

daily living are most important as

indicators of functional limitations in

children aged 3 to attainment of age 16,

although they may be used to evaluate

children younger than age 3.

(4) Work-related activities. The term

work-related activities refers to those

physical and mental activities that are

associated with, or related to, activities

in the workplace, as manifested in a

person’s activities in contexts such as

school, work, vocational programs, and

organized activities. Ordinarily,

inability to perform work-related

activities is most important as an

indicator of functional limitations in

adolescents aged 16 to attainment of age

18.

17. Section 416.924c is revised to

read:

§ 416.924c Other factors we will consider.

(a) General. When we evaluate

whether your impairment(s) is severe,

and if so, whether it causes marked and

severe functional limitations, we will

consider all factors that are relevant to

the evaluation of the effects of your

impairment(s) on your functioning, such

as the effects of your medications, the

setting in which you live, your need for

assistive devices, and your functioning

in school. Therefore, when we assess

your functional limitations, we will

consider all evidence from medical and

nonmedical sources—such as your

parents, teachers, and other people who

know you—that can help us to

understand how your impairment(s)

affects your functioning. Some of the

factors we will consider include, but are

not limited to, the factors in paragraphs

(b) through (g) of this section.

(b) Chronic illness. If you have a

chronic impairment(s) that is

characterized by episodes of

exacerbation (worsening) or remission

(improvement), we will consider the

frequency and severity of your episodes

of exacerbation and your periods of

remission as factors in our

determination whether you have a

severe impairment(s) and, if so, whether

it meets or medically or functionally

equals in severity any listing, and is

therefore disabling. For instance, if you

require repeated hospitalizations, or

frequent outpatient care with supportive

therapy for a chronic impairment(s), we

will consider this need for treatment in

our determination. When we determine

whether you are disabled, we will

consider how the level of treatment you

need for your chronic illness affects

your functioning. We will consider

whether the length and frequency of

your hospitalizations or episodes of

exacerbation significantly interfere with

your functioning on a longitudinal

basis, or whether the frequency of your

outpatient care affects your functioning.

(c) Effects of medication. We will

consider the effects of medication on

your symptoms, signs, and laboratory

findings, including your functioning.

Although medications may control the

most obvious manifestations of your

condition(s), they may or may not affect

the functional limitations imposed by

your impairment(s). If your symptoms

or signs are reduced by medications, we

will consider whether any functional

limitations which may nevertheless

persist are marked and severe, even if

there is apparent improvement from the

medications. We will also consider

whether your medications create any

side effects which cause or contribute to

your functional limitations.

(d) Effects of structured or highly

supportive settings. Children with

serious impairments may spend much

of their time in structured or highly

supportive settings. A structured or

highly supportive setting may be your

own home, in which family members

make extraordinary adjustments to

accommodate your impairment(s); or

your classroom at school, whether a

regular class in which you are

accommodated or a special classroom;

or a residential facility or school where

you live for a period of time. Children

with chronic impairments also

commonly have their lives structured in

such a way as to minimize stress and

reduce their symptoms or signs of

impairment; others may continue to

have persistent pain, fatigue, decreased

energy, or other symptoms or signs,

though at a lesser level of severity. Such

children may be more impaired in their

overall functioning than their symptoms

and signs would indicate. Therefore, if

your symptoms or signs are controlled

or reduced by the environment in which

you live, we will consider your

functioning outside of this highly

structured setting.

(e) Adaptations. We will consider the

nature and extent of any other

adaptations that are made for you in

order to enable you to function. Such

adaptations may include assistive

devices, appliances, or technology.

Some adaptations may enable you to

function normally, or almost normally

(e.g., eyeglasses, hearing aids). Others

may increase your functioning, even

though you may still have functional

limitations (e.g., ankle-foot orthoses,

hand or foot splints, and specially

adapted or custom-made tools, utensils,

or devices for self-care activities such as

bathing, feeding, toileting, and

dressing). When we evaluate your

overall functioning with an adaptation,

we will consider the degree to which

the adaptation enables you to function

and any functional limitations that

nevertheless persist.

(f) Time spent in therapy. You may

need frequent and ongoing therapy from

one or more kinds of health care

professionals in order to maintain or

improve your functional status. Therapy

may include occupational, physical, or

speech and language therapy, special

nursing services, psychotherapy, or

psychosocial counseling. Frequent

therapy, although intended to improve

your functioning in some ways, may

also interfere with your functioning in

other ways. If you receive frequent

therapy at school during a normal

school day, it may or may not interfere

significantly with your functioning. If

you must frequently interrupt your

activities at school or at home for

therapy, these interruptions may

interfere with your functioning. We will

consider the frequency of any therapy

that you must have, how long you have

needed the therapy or will need the

therapy, and whether it interferes with

your functioning.

(g) School attendance. (1) School

records and information from people at

school who know you or who have

examined you, such as teachers and

school psychologists, psychiatrists, or

therapists, may be important sources of

information about your impairment(s)

and its effect on your functioning. If you

attend school, we will consider this

evidence when it is relevant and

available to us.

(2) The fact that you are able to attend

school will not, in itself, be an

indication that you are not disabled. We

will consider the circumstances of your

school attendance, such as your

functioning in a regular classroom
6424 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

setting. Likewise, the fact that you are

in a special education classroom setting,

or that you are not in such a setting, will

not in itself establish your actual

limitations or abilities. We will consider

the fact of such placement or lack of

placement in the context of the

remainder of the evidence in your case

record.

(3) However, if you are unable to

attend school on a regular basis because

of your impairment(s), we will consider

this when we determine whether you

are disabled.

(h) Treatment and intervention, in

general. With adequate treatment or

intervention, some children not only

have their symptoms and signs reduced,

but also maintain, return to or achieve

a level of functioning that is not

disabling. Treatment or intervention

may prevent, eliminate, or reduce

functional limitations; if such

limitations were disabling in the

absence of treatment or intervention,

treatment or intervention may eliminate

them or reduce them so that they are not

disabling. We will, therefore, evaluate

the effects of your treatment or

intervention to determine the actual

outcome of the treatment or intervention

in your particular case.

18. Section 416.924d is removed.

19. Section 416.924e is removed.

20. Section 416.925 is amended by

revising paragraph (a) and adding five

sentences to the end of paragraph (b)(2)

to read as follows:

§ 416.925 Listing of Impairments in

appendix 1 of subpart P of part 404 of this

chapter.

(a) Purpose of the Listing of

Impairments. The Listing of

Impairments describes, for each of the

major body systems, impairments that

are considered severe enough to prevent

an adult from doing any gainful activity

or, for a child, that causes marked and

severe functional limitations. Most of

the listed impairments are permanent or

expected to result in death, or a specific

statement of duration is made. For all

others, the evidence must show that the

impairment has lasted or is expected to

last for a continuous period of at least

12 months.

(b) * * *

(2) * * * Although the severity

criteria in Part B of the Listing of

Impairments are expressed in different

ways for different impairments, the

level of severity for impairments listed

in part B is intended to be the same as

that expressed in the functional severity

criteria of the childhood mental

disorders listings. (See listings 112.01 ff.

of appendix 1 of subpart P of part 404

of this chapter.) Therefore, in general, a

child’s impairment(s) is of ‘‘listing-level

severity’’ if it causes marked limitations

in two broad areas of functioning or

extreme limitations in one such area.

(See § 416.926a for definition of the

terms marked and extreme as they apply

to children.) However, when we decide

whether your impairment(s) meets the

requirements for any listed impairment,

we will decide that your impairment is

of ‘‘listing-level severity’’ even if it does

not result in marked limitations in two

broad areas of functioning, or extreme

limitations in one such area, if the

listing that we apply does not require

such limitations to establish that an

impairment(s) is disabling.

* * * * *

21. Section 416.926 is amended by

revising the section heading, paragraph

(a), the last sentence of paragraph (b),

and the first sentence of paragraph (c),

and by adding paragraph (d) to read as

follows:

§ 416.926 Medical equivalence for adults

and children.

(a) How medical equivalence is

determined. We will decide that your

impairment(s) is medically equivalent to

a listed impairment in appendix 1 of

subpart P of part 404 of this chapter if

the medical findings are at least equal

in severity and duration to the listed

findings. We will compare the

symptoms, signs, and laboratory

findings about your impairment(s), as

shown in the medical evidence we have

about your claim, with the

corresponding medical criteria shown

for any listed impairment. When we

make a finding regarding medical

equivalence, we will consider all

relevant evidence in your case record.

Medical equivalence can be found in

two ways:

(1) If you have an impairment that is

described in the Listing of Impairments

in appendix 1 of subpart P of part 404

of this chapter, but:

(i) You do not exhibit one or more of

the medical findings specified in the

particular listing, or

(ii) You exhibit all of the medical

findings, but one or more of the findings

is not as severe as specified in the

listing, we will nevertheless find that

your impairment is medically

equivalent to that listing if you have

other medical findings related to your

impairment that are at least of equal

medical significance.

(2) If you have an impairment that is

not described in the Listing of

Impairments in appendix 1, or you have

a combination of impairments, no one of

which meets or is medically equivalent

to a listing, we will compare your

medical findings with those for closely

analogous listed impairments. If the

medical findings related to your

impairment(s) are at least of equal

medical significance to those of a listed

impairment, we will find that your

impairment(s) is medically equivalent to

the analogous listing.

(b) * * * We will also consider the

medical opinion given by one or more

medical or psychological consultants

designated by the Commissioner in

deciding medical equivalence. (See

§ 416.1016.)

(c) Who is a designated medical or

psychological consultant. A medical or

psychological consultant designated by

the Commissioner includes any medical

or psychological consultant employed

or engaged to make medical judgments

by the Social Security Administration,

the Railroad Retirement Board, or a

State agency authorized to make

disability determinations. * * *

(d) Responsibility for determining

medical equivalence. In cases where the

State agency or other designee of the

Commissioner makes the initial or

reconsideration disability

determination, a State agency medical

or psychological consultant or other

designee of the Commissioner (see

§ 416.1016) has the overall

responsibility for determining medical

equivalence. For cases in the disability

hearing process or otherwise decided by

a disability hearing officer, the

responsibility for determining medical

equivalence rests with either the

disability hearing officer or, if the

disability hearing officer’s

reconsideration determination is

changed under § 416.1418, with the

Associate Commissioner for Disability

or his or her delegate. For cases at the

Administrative Law Judge or Appeals

Council level, the responsibility for

deciding medical equivalence rests with

the Administrative Law Judge or

Appeals Council.

22. Section 416.926a is revised to read

as follows:

§ 416.926a Functional equivalence for

children

(a) General. If your impairment or

combination of impairments does not

meet, or is not medically equivalent in

severity to, any listed impairment in

appendix 1 of subpart P of part 404 of

this chapter, we will assess all

functional limitations caused by your

impairment(s), i.e., what you cannot do

because of your impairment(s), to

determine if your impairment(s) is

functionally equivalent in severity to

any listed impairment. While all

possible impairments are not addressed

within the Listing of Impairments,

within the listed impairments are all the
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6425

physical and mental functional

limitations, i.e., what a child cannot do

as a result of an impairment, that

produce marked and severe functional

limitations. If the functional

limitation(s) caused by your

impairment(s) is the same as the

disabling functional limitation(s) caused

by a listed impairment, we will find that

your impairment(s) is equivalent in

severity to that listed impairment, even

if your impairment(s) is not medically

related to the listed impairment. When

we make a determination or decision

using this rule, the primary focus will

be on whether your functional

limitations are disabling, as long as

there is a direct, medically determinable

cause for these limitations. As with any

disabling impairment, the duration

requirement must also be met (see

§§ 416.909 and 416.924(a)).

(b) How we determine functional

equivalence. We will compare any

functional limitations resulting from

your impairment(s) with the disabling

functional limitations of any listed

impairment in part A or part B of the

Listing that includes the same

functional limitations. The listing we

use for comparison need not be

medically related to your impairment(s).

In paragraphs (b)(1) through (b)(4) of

this section we explain the methods we

may use to decide that your

impairment(s) is functionally equivalent

in severity to a listing. There is no set

order in which we must consider these

methods and we may not consider them

all if we find that your impairment(s) is

functionally equivalent in severity to a

listed impairment. We will use any

method that is appropriate to, or best

describes, your impairment(s) and

functional limitations. However, we will

consider all of the methods before we

determine that your impairment(s) is

not functionally equivalent in severity

to any listed impairment. At the initial

and reconsideration levels (except when

a disability hearing officer makes the

reconsideration determination), we will

also complete a standard form, Form

SSA–538, Childhood Disability

Evaluation Form, to show how we

determined whether your impairment(s)

is functionally equivalent in severity to

a listed impairment. (See § 416.924(g).)

(1) Limitation of specific functions.

We may find that your impairment(s) is

functionally equivalent in severity to a

listed impairment because of extreme

limitation of one specific function, such

as walking or talking. (See paragraph (c)

of this section for an explanation of the

term ‘‘extreme.’’) Some listings also

include criteria requiring limitation of

more than one specific function, such as

limitations in walking and talking; each

limitation in itself is not enough to

show disability, but the combination of

limitations establishes marked and

severe functional limitations. If you

have a limitation of a combination of

specific functions that are the same as

those in such a listed impairment, we

will find that your impairment(s) is

functionally equivalent in severity to

that listing.

(2) Broad areas of development or

functioning. Instead of looking at

limitation of specific functions, we may

evaluate the effects of your

impairment(s) in broad areas of

development or functioning, such as

social functioning, motor functioning, or

personal functioning (i.e., self-care) and

determine if your functional limitations

are equivalent in severity to the

disabling functional limitations in

listing 112.12 or listing 112.02. If you

have extreme limitations in one area of

functioning or marked limitation in two

areas of functioning, we will find that

your impairment(s) is functionally

equivalent in severity to a listed

impairment. We explain the broad areas

of development or functioning we

consider and what the terms ‘‘extreme’’

and ‘‘marked’’ mean in paragraph (c) of

this section.

(3) Episodic impairments. If you have

a chronic impairment(s) that is

characterized by frequent illnesses or

attacks, or be exacerbations and

remissions, we may evaluate your

functional limitations using the

methods in paragraphs (b)(1) and (b)(2)

of this section. However, your

functional limitations may vary and we

may not be able to use the methods in

paragraphs (b)(1) and (b)(2) of this

section. Instead, we may compare your

functional limitation(s) to those in any

listing for a chronic impairment with

similar episodic criteria to determine if

your impairment(s) has such a serious

impact on your functioning over time

that it is functionally equivalent in

severity to one of those listings.

Limitations that are characteristic of

episodic impairments are not

necessarily related to a single, specific

function. Episodes of disabling

functional limitations may occur with

specified frequency despite treatment. If

your episodic impairment(s) produces

disabling functional limitations that are

the same as the disabling functional

limitations of a listed impairment with

similar episodic criteria, we will find

that you are disabled even though you

may be able to function adequately

between episodes.

(4) Limitations related to treatment or

medication effects. Some impairments

require treatment over a long period of

time (i.e., at least a year) and the

treatment itself (e.g., multiple surgeries)

causes marked and severe functional

limitations. Marked and severe

functional limitations may also result

from the combined effects of limitations

caused by ongoing treatment and

limitations caused by an impairment(s).

In many cases, we will be able to

evaluate such limitations using the

methods for evaluating specific

functions or broad areas of development

or functioning in paragraphs (b)(1) and

(b)(2) of this section. But we may also

compare your functional limitations(s)

to criteria in listings based on treatment

(including side effects of medication)

that is itself disabling or that contributes

to functional limitations. If treatment of

your impairment(s) produces functional

limitations that are the same as the

disabling functional limitations of a

listed impairment, we will find that

your impairment(s) is functionally

equivalent in severity to that listing.

(c) Broad areas of development or

functioning. When we determine

functional equivalence based on broad

areas of development or functioning, we

will evaluate the functional effects of

your impairment(s) in several areas of

development or functioning to

determine if your functional limitations

are equivalent in severity to the

disabling functional limitations of

listing 112.12 or listing 112.02.

However, instead of referring to the

areas of development or functioning in

those listings, we will refer to the areas

of development or functioning

described in paragraphs (c)(4) and (c)(5)

of this section. (We describe the areas in

general terms in paragraph (c)(4) and

then in detail as they apply to specific

age groups in paragraph (c)(5).) If you

have marked limitations in two areas of

development or functioning, or extreme

limitation in one area, we will find that

your impairment(s) is functionally

equivalent in severity to listing 112.12

or listing 112.02, even if your

impairment(s) is a physical

impairment(s) or a combination of

physical and mental impairments. We

explain the meaning of the terms

‘‘marked limitation’’ and ‘‘extreme

limitation’’ in paragraph (c)(3) of this

section.

(1) How we use the areas of

development or functioning. (i) When

we make a finding about functional

equivalence, we will consider the extent

of your functional limitations in the

areas affected by your impairment(s).

We will also consider how your

limitation(s) in one area affects your

development or functioning in other

areas.

(ii) In some children, some physical

impairments will be evaluated most
6426 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

appropriately only in the areas of motor

development or motor functioning. In

others, the effects will be more global.

If you have a physical impairment(s)

that causes a functional limitation(s) not

addressed solely in the area of motor

development or motor functioning, we

will consider the effects of your

impairment in all relevant areas in

which you have limitations from the

impairment(s). A physical

impairment(s) may cause limitations in

any or all of the areas of development

or functioning.

(2) Other considerations. When we

assess your functioning, we will

consider all information in your case

record that can help us determine the

effect of your impairment(s) on your

physical and mental functioning. We

will consider the nature of your

impairment(s), your age, your ability to

be tested given your age, and other

relevant factors (see §§ 416.924a through

416.924c). We will consider whether

any help that you need from others to

enable you to do any particular activity

(e.g., dressing) is appropriate to your

age.

(3) Definitions of ‘‘marked’’ and

‘‘extreme’’ limitations—(i) Marked

limitation means—(A) When

standardized tests are used as the

measure of functional abilities, a valid

score that is two standard deviations or

more below the norm for the test (but

less than three standard deviations); or

(B) For children from birth to

attainment of age 3, functioning at more

than one-half but not more than twothirds of chronological age; or

(C) For children from age 3 to

attainment of age 18, ‘‘more than

moderate’’ and ‘‘less than extreme.’’

Marked limitation may arise when

several activities or functions are

limited or even when only one is

limited as long as the degree of

limitation is such as to interfere

seriously with the child’s functioning.

(ii) Extreme limitation means— (A)

When standardized tests are used as the

measure of functional abilities, a valid

score that is three standard deviations or

more below the norm for the test; or

(B) For children from birth to

attainment of age 3, functioning at onehalf chronological age or less; or

(C) For children from birth to

attainment of age 18, no meaningful

functioning in a given area. There may

be extreme limitation when several

activities or functions are limited or

even when only one is limited.

(4) Areas of development or

functioning. The following are the areas

of development or functioning that may

be addressed in a finding of functional

equivalence.

(i) Cognition/communication: The

ability or inability to learn, understand,

and solve problems through intuition,

perception, verbal and nonverbal

reasoning, and the application of

acquired knowledge; the ability to retain

and recall information, images, events,

and procedures during the process of

thinking. The ability or inability to

comprehend and produce language (e.g.,

vocabulary and grammar) in order to

communicate (e.g., to respond, as in

answering questions, following

directions, acknowledging the

comments of others; to request, as in

demanding action, meeting needs,

seeking information, requesting

clarification, initiating interaction; to

comment, as in sharing information,

expressing feelings, and ideas,

providing explanations, describing

events, maintaining interaction, using

hearing that is adequate for

conversation, and using speech

(articulation, voice, and fluency) that is

intelligible.

(ii) Motor: The ability or inability to

use gross and fine motor skills to relate

to the physical environment and serve

one’s physical purposes. It involves

general mobility, balance, and the

ability to perform age-appropriate

physical activities involved in play,

physical education, sports, and

physically related daily activities other

than self-care (see Personal area).

(iii) Social: The ability or inability to

form and maintain relationships with

other individuals and with groups; e.g.,

parents, siblings, neighborhood

children, classmates, teachers. Ability is

manifested in responding to and

initiating social interaction with others,

sustaining relationships, and

participating in group activities. It

involves cooperative behaviors,

consideration for others, awareness of

others’ feelings, and social maturity

appropriate to a child’s age. Ability is

also manifested in the absence of

inappropriate externalized actions (e.g.,

running away, physical aggression—but

not self-injurious actions, which are

evaluated in the personal area of

functioning), and the absence of

inappropriate internalized actions (e.g.,

social isolation, avoidance of

interpersonal activities, mutism). Social

functioning in play, school, and work

situations may involve interactions with

adults, including responding

appropriately to persons in authority

(e.g., teachers, coaches, employers) or

cooperative behaviors involving other

children.

(iv) Responsiveness to stimuli (birth to

age 1 only): The ability or inability to

respond appropriately to stimulation

(visual, auditory, tactile, vestibular,

proprioceptive).

(v) Personal (age 3 to age 18 only):

The ability or inability to help yourself

and to cooperate with others in taking

care of your personal needs, health, and

safety (e.g., feeding, dressing, toileting,

bathing; maintaining personal hygiene,

proper nutrition, sleep, health habits;

adhering to medication or therapy

regimens; following safety precautions).

(vi) Concentration, persistence, or

pace (age 3 to age 18 only): The ability

or inability to attend to, and sustain

concentration on, an activity or task,

such as playing, reading, or practicing a

sport, and the ability to perform the

activity or complete the task at a

reasonable pace.

(5) Descriptions for specific age

groups—(i) Newborns and young infants

(birth to attainment of age 1) Children

in this age group are evaluated in terms

of four areas of development. The

following are general descriptions of

development typical of this age group.

(A) Cognitive/communicative

development (birth to attainment of age

1): Your ability or inability to show

interest in, and actively seek interaction

with, your environment, first randomly,

then through trial-and-error, and finally

with deliberate and purposeful intent.

Your ability or inability to first

recognize, and then attach meaning to,

routine situations and events and

gradually to everyday sounds and

eventually to familiar words. Your

ability or inability to vocalize, both

imitatively and spontaneously, using

vowels and later consonants, first in

isolation, and then in increasingly

longer babbling strings.

(B) Motor development (birth to

attainment of age 1): Your ability or

inability to explore and manipulate your

environment by moving your body and

by using your hands; e.g., by

increasingly controlling position and

movement of head, sitting with support,

creeping or crawling, pulling to

standing position, walking with hand

held, standing alone briefly, waving

small rattle, reaching for or grasping

objects, transferring toys, picking up

small objects, attempting to scribble.

(C) Social development (birth to

attainment of age 1): Your ability or

inability to form and maintain intimate

relationships, and to respond to, and

eventually initiate reciprocal

interactions with, your primary

caregivers (e.g., through games such as

pat-a-cake, peek-a-boo, so big). Your

ability or inability to begin to regulate

the behavior of others through

intentional behavior (e.g., gestures,

vocalizations). Your ability or inability

to recognize and produce a variety of
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6427

emotional cues (e.g., facial expressions,

vocal tone changes).

(D) Responsiveness to stimuli (birth to

attainment of age 1): Your ability or

inability to form patterns of selfregulation, i.e., to recognize internal

cues (e.g., hunger, pain), and to organize

external experiences (e.g., light, sound,

temperature, movement), and to regulate

your reactions to them (e.g., brightening

in response to sights and sounds,

enjoying being touched or stroked or

held, enjoying gentle movement in

space (‘‘rock-a-bye-baby’’)).

(ii) Older infants and toddlers (age 1

to attainment of age 3): Children in this

age group are evaluated in terms of three

areas of development. The following are

general descriptions of development

typical of this age group.

(A) Cognitive/communicative

development (age 1 to attainment of age

3): Your ability or inability to

understand by responding to

increasingly complex requests,

instructions, and questions; to refer to

yourself and things around you by

pointing and eventually by naming; to

form concepts and to solve simple

problems through purposeful

experimentation (e.g., disassembling

toys), imitation (immediate and

delayed), and constructive play (e.g.,

putting things in and out of containers,

building with blocks, exploring spaces);

to demonstrate your knowledge of

objects, actions, and situations you have

encountered through pretend play

activities; to spontaneously

communicate your wishes or needs by

using gestures, an increasing number of

intelligible words, and eventually

grammatically correct simple sentences

and questions with increasingly rich

and broad vocabulary.

(B) Motor development (age 1 to

attainment of age 3): Your ability or

inability to move in your environment

using your body with steadily

increasing dexterity and independence

from support by others, and your

increasing ability to manipulate small

objects and to use your hands to do, or

to get, something that you want or need.

(C) Social development (age 1 to

attainment of age 3): Your ability or

inability to exhibit normal dependence

upon, and intimacy with, your primary

caregivers, as well as increasing

independence from them; to initiate and

respond to a variety of emotional cues;

to regulate and organize emotions and

behaviors. Your ability or inability to be

interested in initiating and maintaining

interactions with others, first during

brief, yet frequent encounters, and

gradually increasing to longer, sustained

ones. Your ability or inability to show

interest in, initially watch, then play

alongside, and eventually interact with

similarly aged peers.

(iii) Preschool children (age 3 to

attainment of age 6). Children in this

age group are evaluated in terms of five

areas of development. The following are

general descriptions of development

typical of this age group.

(A) Cognitive/communicative

development (age 3 to attainment of age

6): Your ability or inability to learn,

understand, and solve problems through

intuition, perception, verbal and

nonverbal reasoning, and the

application of acquired knowledge; your

ability or inability to retain and recall

information, images, events, and

procedures during the process of

thinking (as in the development of

readiness skills for formal learning (e.g.,

learning letters, shapes, colors) and

skills for daily living (e.g., putting toys

in proper places)). Your ability or

inability to communicate by expressing

your needs, feelings, and preferences; by

telling, requesting, predicting, and

relating information; by describing

actions and functions; by providing

explanations; by following and giving

directions; and by engaging in

conversation in a spontaneous,

interactive, and increasingly intelligible

manner, using increasingly complex

vocabulary and grammar.

(B) Motor development (age 3 to

attainment of age 6): Your ability or

inability to move and use your arms and

legs in increasingly more intricate and

coordinated activity, and your ability or

inability to use your hands with

increasing coordination to manipulate

small objects during play (e.g., drawing,

using building blocks, constructing

puzzles) and physically related daily

activities other than self-care (see

Personal area).

(C) Social development (age 3 to

attainment of age 6): Your ability or

inability to initiate social exchanges, to

organize and regulate your emotions

and behaviors, and to respond to your

social environment through appropriate

and increasingly complex interactions,

such as showing affection, sharing, and

helping; your ability to relate to

caregivers with increasing

independence, to choose your own

friends, and to play cooperatively with

other children, one-at-a-time or in a

group.

(D) Personal development (age 3 to

attainment of age 6): Your ability or

inability to help yourself and to

cooperate with others in taking care of

your personal needs, health, and safety

(e.g., bathing, dressing, maintaining

sleep habits, crossing the street with an

adult).

(E) Concentration, persistence, or

pace (age 3 to attainment of age 6): Your

ability or inability to engage in an

activity, and to sustain the activity for

a period of time at a reasonable pace

(e.g., playing a simple board game).

(iv) School-age children (age 6 to

attainment of age 12). Children in this

age group are evaluated in terms of five

areas of functioning. The following are

general descriptions of functioning

typical of this age group.

(A) Cognitive/communicative

functioning (age 6 to attainment of age

12): Your ability or inability to learn,

understand, and solve problems through

intuition, perception, verbal and

nonverbal reasoning, and the

application of acquired knowledge; the

ability to retain and recall information,

images, events, and procedures during

the process of thinking, as in formal

learning situations (e.g., reading, class

discussions) and in daily living (e.g.,

telling time, making change). Your

ability or inability to comprehend and

produce language (e.g., vocabulary,

grammar) in order to communicate in

social conversation (e.g., to express

feelings, meet needs, seek information,

describe events, share stories), and in

learning situations (e.g., to exchange

information and ideas with peers and

family or with groups such as your

school classes) in a spontaneous,

interactive, sustained, and intelligible

manner, using increasingly complex

vocabulary and grammar.

(B) Motor functioning (age 6 to

attainment of age 12): Your ability or

inability to use fine and gross motor

skills in order to engage in the physical

activities involved in normal mobility,

school work, play, physical education,

sports, and other physically related

daily activities other than self-care (see

Personal area).

(C) Social functioning (age 6 to

attainment of age 12): Your ability or

inability to play alone, with another

child, and in a group; to initiate and

develop friendships; to respond to your

social environments through

appropriate and increasingly complex

interpersonal behaviors, such as

empathizing with others and tolerating

differences; and to relate appropriately

to individuals and in group situations

(e.g., siblings, parents or caregivers,

peers, teachers, school classes,

neighborhood groups).

(D) Personal functioning (age 6 to

attainment of age 12): Your ability or

inability to help yourself and to

cooperate with others in taking care of

your personal needs, health, and safety

(e.g., eating, dressing, maintaining

personal hygiene, following safety

precautions).
6428 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

(E) Concentration, persistence, or

pace (age 6 to attainment of age 12):

Your ability or inability to engage in an

activity, and to sustain the activity for

a period of time and at a reasonable

pace.

(v) Adolescents (age 12 to attainment

of age 18): Children in this age group are

evaluated in terms of five areas of

functioning. The following are general

descriptions of functioning typical of

this age group.

(A) Cognitive/communicative

functioning (age 12 to attainment of age

18): Your ability or inability to learn,

understand, and solve problems through

intuition, perception, verbal and

nonverbal reasoning, and the

application of acquired knowledge; the

ability or inability to retain and recall

information, images, events, and

procedures during the process of

thinking, as in formal learning

situations (e.g., composition, classroom

discussion) and in daily living (e.g.,

using the post office, using public

transportation). Your ability or inability

to comprehend and produce language

(e.g., vocabulary, grammar) in order to

communicate in conversation (e.g., to

express feelings, meet needs, seek

information, describe events, tell

stories), and in learning situations (e.g.,

to obtain and convey information and

ideas) both spontaneously and

interactively, in all communication

environments (e.g., home, classroom,

game fields, extra-curricular activities,

job), and with all communication

partners (e.g., parents, siblings, peers,

school classes, teachers, employers).

(B) Motor functioning (age 12 to

attainment of age 18): Your ability or

inability to use fine and gross motor

skills in order to engage in the physical

activities involved in normal mobility,

school work, play, physical education,

sports, and other physically related

daily activities other than self-care (see

Personal area).

(C) Social functioning (age 12 to

attainment of age 18): Your ability or

inability to initiate and develop

friendships, to relate appropriately to

individual peers and adults and to peer

and adult groups, and to reconcile

conflicts between yourself and peers or

family members or other adults outside

your family.

(D) Personal functioning (age 12 to

attainment of age 18): Your ability or

inability to help yourself in taking care

of your personal needs, health, and

safety (e.g., dressing, bathing, doing

laundry, adhering to medication or

therapy regiments).

(E) Concentration, persistence, or

pace (age 12 to attainment of age 18):

Your ability or inability to engage in an

activity, and to sustain the activity for

a period of time and at a reasonable

pace.

(d) Examples of impairments that are

functionally equivalent in severity to a

listed impairment. The following are

some examples of impairment and

limitations that are functionally

equivalent to listings. Findings of

equivalence based on the disabling

functional limits of a child’s

impairment(s) are not limited to the

examples in this paragraph (d), because

these examples do not describe all

possible effects of impairments that

might be found to be functionally

equivalent in severity to a listed

impairment. As with any disabling

impairment, the duration requirement

must also be met (see §§ 416.909 and

416.924(a)).

(1) Documented need for major organ

transplant (e.g., liver).

(2) Any condition that is disabling at

the time of onset, requiring a series of

staged surgical procedures within 12

months after onset as a life-saving

measure or for salvage or restoration of

function, and such major function is not

restored or is not expected to be restored

within 12 months after onset of the

condition.

(3) Frequent need for a life-sustaining

device (e.g., central venous alimentatin

catheter), at home or elsewhere.

(4) Ambulation possible only with

obligatory bilateral upper limb

assistance.

(5) Any physical impairment(s) or

combination of physical and mental

impairments causing marked restriction

of age-appropriate personal functioning

and marked restriction in motor

functioning.

(6) Any physical impairment(s) or

combination of physical and mental

impairments causing complete inability

to function independently outside the

area of one’s home within ageappropriate norms.

(7) Requirement for 24-hour-a-day

supervision for medical (including

psychological) reasons.

(8) Infants weighing less than 1200

grams at birth, until attainment of 1 year

of age.

(9) Infants weighing at least 1200 but

less than 2000 grams at birth, and who

are small for gestational age, until

attainment of 1 year of age. (Small for

gestational age means a birth weight

that is at or more than 2 standard

deviations below the mean or that is

below the 3rd growth percentile for the

gestational age of the infant.)

(10) In an infant who has not attained

age 1 year, and who may be too young

to test, any limitations caused by a

physical impairment(s) or a

combination of physical and mental

impairments that causes the same

functional limitations in listing 112.12.

(11) Major congenital organ

dysfunction which could be expected to

result in death within the first year of

life without surgical correction, and the

impairment is expected to be disabling

(because of residual impairment

following surgery, or the recovery time

required, or both) until attainment of 1

year of age.

(12) Gastrostomy in a child who has

not attained age 3.

(e) Responsibility for determining

functional equivalence. In cases where

the State agency or other designee of the

Commissioner makes the initial or

reconsideration disability

determination, a State agency medical

or psychological consultant or other

designee of the Commissioner (see

§ 416.1016) has the overall

responsibility for determining

functional equivalence. For cases in the

disability hearing process or otherwise

decided by a disability hearing officer,

the responsibility for determining

functional equivalence rests with either

the disability hearing officer or, if the

disability hearing officer’s

reconsideration determination is

changed under § 416.1418, with the

Associate Commissioner for Disability

or his or her delegate. For cases at the

Administrative Law Judge or Appeals

Council level, the responsibility for

deciding functional equivalence rests

with the Administrative Law Judge or

Appeals Council.

23. Section 416.927 is amended by

revising paragraph (a)(1) to read as

follows:

§ 416.927 Evaluating medical opinions

about your impairment(s) or disability.

(a) General. (1) If you are an adult,

you can only be found disabled if you

are unable 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. (See

§ 416.905.) If you are a child, you can

be found disabled only if you have a

medically determinable physical or

mental impairment(s) that causes

marked and severe functional

limitations and that can be expected to

result in death or that has lasted or can

be expected to last for a continuous

period of not less than 12 months. (See

§ 416.906.)

* * * * *

24. Section 416.929 is amended by

revising the fourth, fifth, and last

sentences of paragraph (a), the heading
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6429

of paragraph (c), the first and last

sentences of paragraph (c)(1), the second

sentence of paragraph (c)(2), the heading

and the first and last sentences of

paragraph (c)(4), the reference at the end

of paragraph (d)(1), the sixth and ninth

sentences of paragraph (d)(3), and

paragraph (d)(4) to read as follows:

§ 416.929 How we evaluate symptoms,

including pain.

(a) * * * These include statements or

reports from you, your treating or

examining physician or psychologist,

and others about your medical history,

diagnosis, prescribed treatment, daily

activities, efforts to work, and any other

evidence showing how your

impairment(s) and any related

symptoms affect your ability to work (or

if you are a child, your functioning). We

will consider all of your statements

about your symptoms, such as pain, and

any description you, your physician,

your psychologist, or other persons may

provide about how the symptoms affect

your activities of daily living and your

ability to work (or if you are a child,

your functioning). * * * We will then

determine the extent to which your

alleged functional limitations and

restrictions due to pain or other

symptoms can reasonably be accepted

as consistent with the medical signs and

laboratory findings and other evidence

to decide how your symptoms affect

your ability to work (or if you are a

child, your functioning).

* * * * *

(c) * * * (1) General. When the

medical signs or laboratory findings

show that you have a medically

determinable impairment(s) that could

reasonably be expected to produce your

symptoms, such as pain, we must then

evaluate the intensity and persistence of

your symptoms so that we can

determine how your symptoms limit

your capacity for work or, if you are a

child, your functioning. * * *

Paragraphs (c)(2) through (c)(4) of this

section explain further how we evaluate

the intensity and persistence of your

symptoms and how we determine the

extent to which your symptoms limit

your capacity for work (or, if you are a

child, your functioning) when the

medical signs or laboratory findings

show that you have a medically

determinable impairment(s) that could

reasonably be expected to produce your

symptoms, such as pain.

(2) * * * Objective medical evidence

of this type is a useful indicator to assist

us in making reasonable conclusions

about the intensity and persistence of

your symptoms and the effect those

symptoms, such as pain, may have on

your ability to work or, if you are a

child, your functioning. * * *

* * * * *

(4) How we determine the extent to

which symptoms, such as pain, affect

your capacity to perform basic work

activities, or, if you are a child, your

functioning). In determining the extent

to which your symptoms, such as pain,

affect your capacity to perform basic

work activities (or if you are a child,

your functioning), we consider all of the

available evidence described in

paragraphs (c)(1) through (c)(3) of this

section. * * * Your symptoms,

including pain, will be determined to

diminish your capacity for basic work

activities (or, if you are a child, your

functioning) to the extent that your

alleged functional limitations and

restrictions due to symptoms, such as

pain, can reasonably be accepted as

consistent with the objective medical

evidence and other evidence.

(d) * * *

(1) * * * (See § 416.920(c) for adults

and § 416.924(c) for children.)

* * * * *

(3) * * * (If you are a child and we

cannot find equivalence based on

medical evidence only, we will consider

pain and other symptoms under

§ 416.926(a)(b)(3) in determining

whether you have an impairment(s) that

causes overall functional limitations

that are the same as the disabling

limitations of a listed impairment.)

* * * If they are not, we will consider

the impact of your symptoms on your

residual functional capacity if you are

an adult.* * *

(4) Impact of symptoms (including

pain) on residual functional capacity or,

if you are a child, on your functioning.

If you have a medically determinable

severe physical or mental

impairment(s), but your impairment(s)

does not meet or equal an impairment

listed in appendix 1 of subpart P of part

404 of this chapter, we will consider the

impact of your impairment(s) and any

related symptoms, including pain, or

your residual functional capacity, if you

are an adult, or, on your functioning if

you are a child. (See §§ 416.945 and

416.924a through 416.924e.)

25. Section 416.930 is amended by

revising paragraph (a) to read as follows:

§ 416.930 Need to follow prescribed

treatment.

(a) What treatment you must follow.

In order to get benefits, you must follow

treatment prescribed by your physician

if this treatment can restore your ability

to work, or, if you are a child, if the

treatment can reduce your functional

limitations so that they are no longer

marked and severe.

* * * * *

26. Section 416.987 and an

undesignated center heading are added

to 20 CFR part 416, subpart I to read as

follows:

Disability Redeterminations for

Individuals Who Attain Age 18

§ 416.987 Disability redeterminations for

individuals who attain age 18.

(a)(1) Public Law 104–193, The

Personal Responsibility and Work

Opportunity Reconciliation Act of 1996,

requires that the individuals described

in paragraph (b) of this section must

have their eligibility redetermined.

(2) For these individuals, subject to

the provisions of paragraphs (b)(2) and

(b)(3) of this section, we will use the

rules for new applicants; we will not

use the rules for determining whether

disability continues set out in § 416.994.

If you are an individual affected by the

provisions of this section, we may find

that you are not now disabled even

though we previously found that you

were disabled.

(3) Before we begin your disability

redetermination, we will notify you that

we are redetermining your eligibility for

payments, why we are redetermining

your eligibility, which disability rules

we will apply, that our review could

result in a finding that your SSI

payments based on disability could be

terminated, that you have the right to

submit medical and other evidence for

our consideration during the

redetermination, and that when we

make our determination, we will notify

you of our determination, your right to

appeal the determination, and your right

to request continuation of benefits

during appeal.

(4) We will notify you in writing of

the results of the disability

redetermination. The notice will tell

you what our determination is, the

reasons for our determination and your

right to request reconsideration of the

determination. If our determination

shows that we should stop your SSI

payments based on disability, the notice

will also tell you of your right to request

that your benefits continue during any

appeal. The results of an initial

disability redetermination are binding

unless you request a reconsideration

within the stated time period, or we

revise the initial determination.

(b)(1) We will redetermine the

eligibility of individuals

(i) Who became eligible for SSI

benefits by reason of disability prior to

attaining age 18, and
6430 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

(ii) Who also were eligible for such

benefits for the month before the month

in which they attained age 18.

(2) When we make this determination,

we will apply the rules in

§§ 416.920(c)–(f); we will not apply the

rules in § 416.920(b) or § 416.994.

(3) If you are an individual affected by

the provisions of this section, and you

are disabled under § 416.920 (d) or (f),

and you are working, we will apply the

rules in §§ 416.260 ff.

(4) We will initiate this disability

redetermination during the 1-year

period beginning on your 18th birthday.

(5) If we find that you are not disabled

under the rules in § 416.920 (except

§ 416.920(b)), your eligibility will end.

The month in which we will find you

not disabled is explained in paragraph

(b)(6) of this section; the month your

benefits will stop is explained in

paragraph (b)(7) of this section.

(6) If the evidence shows that you are

not disabled, we will find that your

disability ended in the earliest of:

(i) The month the evidence shows that

you are not disabled under the rules set

out in this section, but not earlier than

the month in which we mail you a

notice saying that you are not disabled.

(ii) The first month in which you

failed without good cause to follow

prescribed treatment under the rules in

§ 416.930.

(iii) The first month in which you

failed without good cause to do what we

asked. Section 416.1411 explains the

factors we will consider and how we

will determine generally whether you

have good cause for failure to cooperate.

In addition, § 416.918 discusses how we

determine whether you have good cause

for failing to attend a consultative

examination.

27. Section 416.990 is amended by

revising paragraphs (b)(9) and (b)(10),

adding paragraph (b)(11), and revising

the first and second sentences of the

definition of Permanent impairment in

paragraph (c) to read as follows:

§ 416.990 When and how often we will

conduct a continuing disability review.

* * * * *

(b) * * *

(9) Evidence we receive raises a

question whether your disability or

blindness continues;

(10) You have been scheduled for a

vocational reexamination diary review;

or

(11) By your first birthday, if you are

a child whose low birth weight was a

contributing factor material to our

determination that you were disabled;

i.e., whether we would have found you

disabled if we had not considered your

low birth weight.

(c) * * *

Permanent impairment—medical

improvement not expected—refers to a

case in which any medical improvement

in a person’s impairment(s) is not

expected. This means an extremely

severe condition determined on the

basis of our experience in administering

the disability programs to be at least

static, but more likely to be

progressively disabling either by itself

or by reason of impairment

complications, and unlikely to improve

so as to permit the individual to engage

in substantial gainful activity or, if you

are a child, unlikely to improve to the

point that you will no longer have

marked and severe functional

limitations. * * *

* * * * *

28. Section 416.994a is amended by

removing paragraphs (b)(4), (b)(5), (c)(4),

(d) (f)(1), and (f)(2), redesignating

paragraphs (e) through (i) as paragraphs

(d) through (h), redesignating

paragraphs (f)(3) and (f)(4) as paragraphs

(e)(1) and (e)(2), adding paragraph (i),

revising the section heading and

paragraphs (a)(1), revising the first

sentence of the introductory text to

paragraph (b), adding two sentences

between the first and second sentences

of the introductory text to paragraph (b),

revising paragraphs (b)(1) through (b)(3),

adding one sentence between the first

and second sentences of the

introductory text to paragraph (c),

revising the third and fourth sentences

of redesignated paragraph (d), revising

the introductory text to redesignated

paragraph (e), revising paragraph (e)(1),

revising the second sentence of the

introductory text to redesignated

paragraph (f), and revising paragraphs

(f)(4) and (g)(5) to read as follows:

§ 416.994a How we will determine whether

your disability continues or ends, and

whether you are and have been receiving

treatment that is medically necessary and

available, disabled children.

(a) * * *

(1) We will first consider whether

there has been medical improvement in

your impairment(s). We define ‘‘medical

improvement’’ in paragraph (c) of this

section. If there has been no medical

improvement, we will find you are still

disabled unless one of the exceptions in

paragraphs (e) or (f) of this section

applies. If there has been medical

improvement, we will consider whether

the impairments(s) you had at the time

of our most recent favorable

determination or decision now meets or

medically or functionally equals the

severity of the listing it met or equalled

at that time. If so, we will find you are

still disabled, unless one of the

exceptions in paragraphs (e) or (f) of this

section applies. If not, we will consider

whether your current impairment(s) are

disabling under the rules in § 416.924.

These steps are described in more detail

in paragraph (b) of this section. Even

where medical improvement or an

exception applies, in most cases, we

will find that your disability has ended

only if we also find that you are not

currently disabled.

* * * * *

(b) Sequence of evaluation. To ensure

that disability reviews are carried out in

a uniform manner, that decisions of

continuing disability can be made in the

most expeditious and administratively

efficient way, and that any decisions to

stop disability benefits are made

objectively, neutrally, and are fully

documented, we follow specific steps in

determining whether your disability

continues. However, we may skip steps

in the sequence if it is clear this would

lead to a more prompt finding that your

disability continues. For example, we

might not consider the issue of medical

improvement if it is obvious on the face

of the evidence that a current

impairment meets the severity of a

listed impairment. * * *

(1) Has there been medical

improvement in your condition(s)? We

will determine whether there has been

medical improvement in the

impairment(s) you had at the time of our

most recent favorable determination or

decision. (The term medical

improvement is defined in paragraph (c)

of this section.) If there has been no

medical improvement, we will find that

your disability continues, unless one of

the exceptions to medical improvement

described in paragraph (e) or (f) of this

section applies.

(i) If one of the first group of

exceptions to medical improvement

applies, we will proceed to step 3.

(ii) If one of the second group of

exceptions to medical improvement

applies, we may find that your disability

has ended.

(2) Does your impairment(s) still meet

or equal the severity of the listed

impairment that it met or equaled

before? If there has been medical

improvement, we will consider whether

the impairment(s) that we considered at

the time of our most recent favorable

determination or decision still meets or

equals the severity of the listed

impairment it met or equalled at that

time. In making this decision, we will

consider the current severity of the

impairment(s) present and documented

at the time of our most recent favorable

determination or decision, and the same

listing section used to make that
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 6431

determination or decision as it was

written at that time, even if it has since

been revised or removed from the

Listing of Impairments. If that

impairment(s) does not still meet or

equal the severity of that listed

impairment, we will proceed to the next

step. If that impairment(s) still meets or

equals the severity of that listed

impairment as it was written at that

time, we will find that you are still

disabled, unless one of the exceptions to

medical improvement described in

paragraphs (e) or (f) of this section

applies.

(i) If one of the first group of

exceptions to medical improvement

applies, we will proceed to step 3.

(ii) If one of the second group of

exceptions to medical improvement

applies, we may find that your disability

has ended.

(3) Are you currently disabled? If

there has been medical improvement in

the impairment(s) that we considered at

the time of our most recent favorable

determination or decision, and if that

impairment(s) no longer meets or equals

the severity of the listed impairment

that it met or equaled at that time, we

will consider whether you are disabled

under the rules in §§ 416.924(c) and (d).

In determining whether you are

currently disabled, we will consider all

impairments you now have, including

you did not have at the time of our most

recent favorable determination or

decision, or that we did not consider at

that time. The steps in determining

current disability are summarized as

follows:

(i) Do you have a severe impairment

or combination of impairment? If there

has been medical improvement in your

impairment(s), or if one of the first

group of exceptions applies, we will

determine whether your current

impairment(s) is severe, as defined in

§ 416.924(c). If your impairment(s) is

not severe, we will find that your

disability has ended. If your

impairment(s) is severe, we will then

consider whether it meets or medically

equals the severity of a listed

impairment.

(ii) Does your impairment(s) meet or

medically equal the severity of any

impairment listed in appendix 1 of

subpart P of part 404 of this chapter? If

your current impairment(s) meets or

medically equals the severity of any

listed impairment, as described in

§§ 416.925 and 416.926, we will find

that your disability continues. If not, we

will consider whether it functionally

equals the severity of a listed

impairment.

(iii) Does your impairment(s)

functionally equal the severity of any

listed impairment? If your current

impairment(s) functionally equals the

severity of any listed impairment, as

described in § 416.926a, we will find

that your disability continues. If not, we

will find that your disability has ended.

(c) * * * Although the decrease in

severity may be of any quantity or

degree, we will disregard minor changes

in your signs, symptoms, and laboratory

findings that obviously do not represent

medical improvement and could not

result in a finding that your disability

has ended.

* * * * *

(d) * * * If so, your benefits will

continue unless one of the second group

of exceptions applies (see paragraph (f)

of this section). If not, we will

determine whether an attempt should be

made to reconstruct those portions of

the missing file that were relevant to our

most recent favorable determination or

decision (e.g., school records, medical

evidence from treating sources, and the

results of consultative examination).

* * *

(e) First group of exceptions to

medical improvement. The law provides

certain limited situations when your

disability can be found to have ended

even though medical improvement has

not occurred, if your impairment(s) no

longer results in marked and severe

functional limitations. These exceptions

to medical improvement are intended to

provide a way of finding that a person

is no longer disabled in those situations

where, even though there has been no

decrease in severity of the

impairment(s), evidence shows that the

person should no longer be considered

disabled or never should have been

considered disabled. If one of these

exceptions applies, we must also show

that your impairment(s) does not now

result in marked and severe functional

limitations, before we can find you are

no longer disabled, taking all your

current impairments into account, not

just those that existed at the time of our

most recent favorable determination or

decision. The evidence we gather will

serve as the basis for the finding that an

exception applies.

(1) Substantial evidence shows that,

based on new or improved diagnostic

techniques or evaluations, your

impairment(s) is not as disabling as it

was considered to be at the time of the

most recent favorable decision.

Changing methodologies and advances

in medical and other diagnostic

techniques or evaluations have given

rise to, and will continue to give rise to,

improved methods for determining the

causes of (i.e., diagnosing) and

measuring and documenting the effects

of various impairment on children and

their functioning. Where, by such new

or improved methods, substantial

evidence shows that your impairment(s)

is not as severe as was determined at the

time of our most recent favorable

decision, such evidence may serve as a

basis for a finding that you are no longer

disabled, provided that you do not

currently have an impairment(s) that

meets or equals the severity of any listed

impairment, and therefore results in

marked and severe functional

limitations.

* * * * *

(f) * * * In these situations, the

determination or decision will be made

without a finding that you have

demonstrated medical improvement or

that you are currently not disabled

under the rules in § 416.924. * * *

(4) You fail to follow prescribed

treatment which would be expected to

improve your impairment(s) so that it no

longer results in marked and severe

functional limitations. If treatment has

been prescribed for you which would be

expected to improve your impairment(s)

so that it no longer results in marked

and severe functional limitations, you

must follow that treatment in order to be

paid benefits.

(g) * * *

(5) The first month in which you were

told by your physician that you could

return to normal activities, provided

there is no substantial conflict between

your physician’s and your statements

regarding your awareness of your

capacity, and the earlier date is

supported by substantial evidence; or

* * * * *

(i) Requirement for treatment that is

medically necessary and available. If

you have a representative payee, the

representative payee must, at the time of

the continuing disability review, present

evidence demonstrating that you are

and have been receiving treatment, to

the extent considered medically

necessary and available, for the

condition(s) that was the basis for

providing you with SSI benefits, unless

we determine that requiring your

representative payee to provide such

evidence would be inappropriate or

unnecessary considering the nature of

your impairment(s). If your

representative payee refuses without

good cause to comply with this

requirement, and if we decide that it is

in your best interests, we may pay your

benefits to another representative payee

or to you directly.

(1) What we mean by treatment that

is medically necessary. Treatment that is

medically necessary means treatment

that is expected to improve or restore
6432 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

your functioning and that was

prescribed by a treating source, as

defined in § 416.902. If you do not have

a treating source, we will decide

whether there is treatment that is

medically necessary that could have

been prescribed by a treating source.

The treatment may include (but is not

limited to)—

(i) Medical management;

(ii) Psychiatric, psychological, or

psychosocial counseling;

(iii) Physical therapy; and

(iv) Home therapy, such as

administering oxygen or giving

injections.

(2) How we will consider whether

medically necessary treatment is

available. When we decide whether

medically necessary treatment is

available, we will consider such things

as (but not limited)—

(i) The location of an institution or

facility or place where treatment,

services, or resources could be provided

to you in relationship to where you

reside;

(ii) The availability and cost of

transportation for you and your payee to

the place of treatment;

(iii) Your general health, including

your ability to travel for the treatment;

(iv) The capacity of an institution or

facility to accept you for appropriate

treatment;

(v) The cost of any necessary

medications or treatments that are not

paid for by Medicaid or another insurer

or source; and

(vi) The availability of local

community resources (e.g., clinics,

charitable organizations, public

assistance agencies) that would provide

free treatment or funds to cover

treatment.

(3) When we will not require evidence

of treatment that is medically necessary

and available. We will not require your

representative payee to present evidence

that you are and have been receiving

treatment if we find that the

condition(s) that was the basis for

providing you benefits is not amenable

to treatment.

(4) Removal of a payee who does not

provide evidence that a child is and has

been receiving treatment that is

medically necessary and available. If

your representative payee refuses

without good cause to provide evidence

that you are and have been receiving

treatment that is medically necessary

and available, we may, if it is in your

best interests, suspend payment of

benefits to the representative payee, and

pay benefits to another payee or to you.

When we decide whether your

representative payee had good cause, we

will consider factors such as the

acceptable reasons for failure to follow

prescribed treatment in § 416.930(c) and

other factors similar to those describing

good cause for missing deadlines in

§ 416.1411.

(5) If you do not have a representative

payee. If you do not have a

representative payee and we make your

payments directly to you, the provisions

of this paragraph do not apply to you.

However, we may still decide that you

are failing to follow prescribed

treatment under the provisions of

§ 416.930, if the requirements of that

section are met.

29. Section 416.998 is revised to read

as follows:

§ 416.998 If you become disabled by

another impairment(s).

If a new severe impairment(s) begins

in or before the month in which your

last impairment(s) ends, we will find

that your disability is continuing. The

new impairment(s) need not be

expected to last 12 months or to result

in death, but it must be severe enough

to keep you from doing substantial

gainful activity, or severe enough so that

you are still disabled under § 416.994,

or, if you are a child, to result in marked

and severe functional limitations.

[FR Doc. 97–3317 Filed 2–10–97; 8:45 am]

BILLING CODE 4190–29–M