[Code of Federal Regulations]
[Title 20, Volume 2, Parts 400 to 499]
[Revised as of April 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR404]
[Page 334-495]
TITLE 20--EMPLOYEES' BENEFITS
CHAPTER III--SOCIAL SECURITY ADMINISTRATION
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )--Table of Contents
Subpart P--Determining Disability and Blindness
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.
Source: 45 FR 55584, Aug. 20, 1980, unless otherwise noted.
[[Page 335]]
General
Sec. 404.1501 Scope of subpart.
In order for you to become entitled to any benefits based upon
disability or blindness or to have a period of disability established,
you must be disabled or blind as defined in title II of the Social
Security Act. This subpart explains how we determine whether you are
disabled or blind. We discuss a period of disability in subpart D of
this part. We have organized the rules in the following way.
(a) We define general terms, then discuss who makes our disability
determinations and state that disability determinations made under other
programs are not binding on our determinations.
(b) We explain the term disability and note some of the major
factors that are considered in determining whether you are disabled in
Secs. 404.1505 through 404.1510.
(c) Sections 404.1512 through 404.1518 contain our rules on
evidence. We explain your responsibilities for submitting evidence of
your impairment, state what we consider to be acceptable sources of
medical evidence, and describe what information should be included in
medical reports.
(d) Our general rules on evaluating disability if you are filing a
new application are stated in Secs. 404.1520 through 404.1523. We
describe the steps that we go through and the order in which they are
considered.
(e) Our rules on medical considerations are found in Secs. 404.1525
through 404.1530. We explain in these rules--
(1) The purpose of the Listing of Impairments found in appendix 1 of
this subpart and how to use it;
(2) What we mean by the term medical equivalence and how we
determine medical equivalence;
(3) The effect of a conclusion by your physician that you are
disabled;
(4) What we mean by symptoms, signs, and laboratory findings;
(5) How we evaluate pain and other symptoms; and
(6) The effect on your benefits if you fail to follow treatment that
is expected to restore your ability to work, and how we apply the rule.
(f) In Secs. 404.1545 through 404.1546 we explain what we mean by
the term residual functional capacity, state when an assessment of
residual functional capacity is required, and who may make it.
(g) Our rules on vocational considerations are found in
Secs. 404.1560 through 404.1569a. We explain when vocational factors
must be considered along with the medical evidence, discuss the role of
residual functional capacity in evaluating your ability to work, discuss
the vocational factors of age, education, and work experience, describe
what we mean by work which exists in the national economy, discuss the
amount of exertion and the type of skill required for work, describe and
tell how to use the Medical-Vocational Guidelines in appendix 2 of this
subpart, and explain when, for purposes of applying the guidelines in
appendix 2, we consider the limitations or restrictions imposed by your
impairment(s) and related symptoms to be exertional, nonexertional, or a
combination of both.
(h) Our rules on substantial gainful activity are found in
Secs. 404.1571 through 404.1574. These explain what we mean by
substantial gainful activity and how we evaluate your work activity.
(i) In Secs. 404.1577, 404.1578, and 404.1579, we explain the
special rules covering disability for widows, widowers, and surviving
divorced spouses for monthly benefits payable for months prior to
January 1991, and in Secs. 404.1581 through 404.1587 we discuss
disability due to blindness.
(j) Our rules on when disability continues and stops are contained
in Sec. 404.1579 and Secs. 404.1588 through 404.1598. We explain what
your responsibilities are in telling us of any events that may cause a
change in your disability status, when you may have a trial work period,
and when we will review to see if you are still disabled. We also
explain how we consider the issue of medical improvement (and the
exceptions to medical improvement) in deciding whether you are still
disabled.
[45 FR 55584, Aug. 20, 1980, as amended at 50 FR 50126, Dec. 6, 1985; 56
FR 57941, Nov. 14, 1991; 57 FR 30120, July 8, 1992]
[[Page 336]]
Sec. 404.1502 General definitions and terms for this subpart.
As used in the subpart--
Medical sources refers to treating sources, sources of record, and
consultative examiners for us. See Sec. 404.1513.
Secretary means the Secretary of Health and Human Services.
Source of record means a hospital, clinic or other source that has
provided you with medical treatment or evaluation, as well as a
physician or psychologist who has treated or evaluated you but does not
have or did not have an ongoing treatment relationship with you.
State agency means that agency of a State which has been designated
by the State to carry out the disability or blindness determination
function.
Treating source means your own physician or psychologist who has
provided you with medical treatment or evaluation and who has or has had
an ongoing treatment relationship with you. Generally, we will consider
that you have an ongoing treatment relationship with a physician or
psychologist when the medical evidence establishes that you see or have
seen the physician or psychologist with a frequency consistent with
accepted medical practice for the type of treatment and evaluation
required for your medical condition(s). We may consider a physician or
psychologist who has treated you only a few times or only after long
intervals (e.g., twice a year) to be your treating source if the nature
and frequency of the treatment is typical for your condition(s). We will
not consider a physician or psychologist to be your treating physician
if your relationship with the physician or psychologist is not based on
your need for treatment, but solely on your need to obtain a report in
support of your claim for disability. In such a case, we will consider
the physician or psychologist to be a consulting physician or
psychologist.
We or us refers to either the Social Security Administration or the
State agency making the disability or blindness determination.
You refers to the person who has applied for benefits or for a
period of disability or is receiving benefits based on disability or
blindness.
[56 FR 36954, Aug. 1, 1991]
Determinations
Sec. 404.1503 Who makes disability and blindness determinations.
(a) State agencies. State agencies make disability and blindness
determinations for the Secretary for most persons living in the State.
State agencies make these disability and blindness determinations under
regulations containing performance standards and other administrative
requirements relating to the disability and blindness determination
function. States have the option of turning the function over to the
Federal Government if they no longer want to make disability
determinations. Also, the Secretary may take the function away from any
State which has substantially failed to make disability and blindness
determinations in accordance with these regulations. Subpart Q of this
part contains the rules the States must follow in making disability and
blindness determinations.
(b) Social Security Administration. The Social Security
Administration will make disability and blindness determinations for the
Secretary for--
(1) Any person living in a State which is not making for the
Secretary any disability and blindness determinations or which is not
making those determinations for the class of claimants to which that
person belongs; and
(2) Any person living outside the United States.
(c) What determinations are authorized. The Secretary has authorized
the State agencies and the Social Security Administration to make
determinations about--
(1) Whether you are disabled or blind;
(2) The date your disability or blindness began; and
(3) The date your disability or blindness stopped.
(d) Review of State Agency determinations. On review of a State
agency determination or redetermination of disability or blindness we
may find that--
(1) You are, or are not, disabled or blind, regardless of what the
State agency found;
[[Page 337]]
(2) Your disability or blindness began earlier or later than the
date found by the State agency; and
(3) Your disability or blindness stopped earlier or later than the
date found by the State agency.
(e) Initial determinations for mental impairments. An initial
determination by a State agency or the Social Security Administration
that you are not disabled (or a Social Security Administration review of
a State agency's initial determination), in any case where there is
evidence which indicates the existence of a mental impairment, will be
made only after every reasonable effort has been made to ensure that a
qualified psychiatrist or psychologist has completed the medical portion
of the case review and any applicable residual functional capacity
assessment. (See Sec. 404.1616 for the qualifications we consider
necessary for a psychologist to be a psychological consultant and
Sec. 404.1617 for what we consider reasonable effort.) If the services
of qualified psychiatrists or psychologists cannot be obtained because
of impediments at the State level, the Secretary may contract directly
for the services. In a case where there is evidence of mental and
nonmental impairments and a qualified psychologist serves as a
psychological consultant, the psychologist will evaluate only the mental
impairment, and a physician will evaluate the nonmental impairment. The
overall determination of impairment severity in combined mental and
nonmental impairment cases will be made by a medical consultant and not
a psychological consultant unless the mental impairment alone would
justify a finding of disability.
[46 FR 29204, May 29, 1981, as amended at 52 FR 33926, Sept. 9, 1987]
Sec. 404.1503a Program integrity.
We will not use in our program any individual or entity, except to
provide existing medical evidence, who is currently excluded, suspended,
or otherwise barred from participation in the Medicare or Medicaid
programs, or any other Federal or Federally-assisted program; whose
license to provide health care services is currently revoked or
suspended by any State licensing authority pursuant to adequate due
process procedures for reasons bearing on professional competence,
professional conduct, or financial integrity; or who, until a final
determination is made, has surrendered such a license while formal
disciplinary proceedings involving professional conduct are pending. By
individual or entity we mean a medical or psychological consultant,
consultative examination provider, or diagnostic test facility. Also see
Secs. 404.1519 and 404.1519g(b).
[56 FR 36954, Aug. 1, 1991]
Sec. 404.1504 Determinations by other organizations and agencies.
A decision by any nongovernmental agency or any other governmental
agency about whether you are disabled or blind is based on its rules and
is not our decision about whether you are disabled or blind. We must
make a disability or blindness determination based on social security
law. Therefore, a determination made by another agency that you are
disabled or blind is not binding on us.
Definition of Disability
Sec. 404.1505 Basic definition of disability.
(a) The law defines disability as the inability to do any
substantial gainful activity by reason of any medically determinable
physical or mental impairmentich 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. To meet this definition, you must have a severe
impairment, which makes you unable to do your previous work or any other
substantial gainful activity which exists in the national economy. To
determine whether you are able to do any other work, we consider your
residual functional capacity and your age, education, and work
experience. We will use this definition of disability if you are
applying for a period of disability, or disability insurance benefits as
a disabled worker, or child's insurance benefits based on disability
before age 22 or, with respect to disability benefits payable for months
after December 1990, as a widow, widower, or surviving divorced spouse.
[[Page 338]]
(b) There are different rules for determining disability for
individuals who are statutorily blind. We discuss these in
Secs. 404.1581 through 404.1587. There are also different rules for
determining disability for widows, widowers, and surviving divorced
spouses for monthly benefits for months prior to January 1991. We
discuss these rules in Secs. 404.1577, 404.1578, and 404.1579.
[45 FR 55584, Aug. 20, 1980, as amended at 51 FR 10616, Mar. 28, 1986;
57 FR 30120, July 8, 1992]
Sec. 404.1506 When we will not consider your impairment.
(a) Permanent exclusion of felony-related impairment. In determining
whether you are under a disability, we will not consider any physical or
mental impairment, or any increase in severity (aggravation) of a
preexisting impairment, which arises in connection with your commission
of a felony after October 19, 1980, if you are subsequently convicted of
this crime.Your subsequent conviction will invalidate any prior
determination establishing disability if that determination was based
upon any impairment, or aggravation, which we must exclude under this
rule.
(b) Limited use of impairment arising in prison. In determining
whether you are under a disability for purposes of benefit payments, we
will not consider any physical or mental impairment, or any increase in
severity (aggravation) of a preexisting impairment, which arises in
connection with your confinement in a jail, prison, or other penal
institution or correctional facility for conviction of a felony
committed after October 19, 1980. The exclusion of the impairment, or
aggravation, applies in determining disability for benefits payable for
any month during which you are confined. This rule does not preclude the
establishment of a period of disability based upon the impairment or
aggravation. You may become entitled to benefits upon release from
prison provided that you apply and are under a disability at the time.
(c) Felonious offenses. We will consider an offense a felony if--
(1) It is a felony under applicable law; or
(2) In a jurisdiction which does not classify any crime as a felony,
it is an offense punishable by death or imprisonment for a term
exceeding one year.
(d) Confinement. In general, a jail, prison, or other penal
institution or correctional facility is a facility which is under the
control and jurisdiction of the agency in charge of the penal system or
in which convicted criminals can be incarcerated. Confinement in such a
facility continues as long as you are under a sentence of confinement
and have not been released due to parole or pardon. You are considered
confined even though you are temporarily or intermittently outside of
the facility (e.g., on work release, attending school, or hospitalized).
[48 FR 5714, Feb. 8, 1983]
Sec. 404.1508 What is needed to show an impairment.
If you are not doing substantial gainful activity, we always look
first at your physical or mental impairment(s) to determine whether you
are disabled or blind. Your impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques. A
physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by your
statement of symptoms (see Sec. 404.1527). (See Sec. 404.1528 for
further information about what we mean by symptoms, signs, and
laboratory findings.)
[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36954, Aug. 1, 1991]
Sec. 404.1509 How long the impairment must last.
Unless your impairment is expected to result in death, it must have
lasted or must be expected to last for a continuous period of at least
12 months. We call this the duration requirement.
Sec. 404.1510 Meaning of substantial gainful activity.
Substantial gainful activity means work that--
(a) Involves doing significant and productive physical or mental
duties; and
[[Page 339]]
(b) Is done (or intended) for pay or profit.
(See Sec. 404.1572 for further details about what we mean by
substantial gainful activity.)
Sec. 404.1511 Definition of a disabling impairment.
(a) Disabled workers, persons disabled since childhood and, for
months after December 1990, disabled widows, widowers, and surviving
divorced spouses. If you are entitled to disability cash benefits as a
disabled worker, or to child's insurance benefits, or, for monthly
benefits payable after December 1990, to widow's, widower's, or
surviving divorced spouse's monthly benefits, 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 this subpart or which, when considered with
your age, education, and work experience, would result in a finding that
you are disabled under Sec. 404.1594. In determining whether you have a
disabling impairment, earnings are not considered.
(b) Disabled widows, widowers, and surviving divorced spouses, for
monthly benefits for months prior to January 1991. If you have been
entitled to disability benefits as a disabled widow, widower, or
surviving divorced spouse and we must decide whether you had a disabling
impairment for any time prior to January 1991, a disabling impairment is
an impairment (or combination of impairments) which, of itself, was so
severe that it met or equaled a set of criteria in the Listing of
Impairments in appendix 1 of this subpart, or results in a finding that
you were disabled under Sec. 404.1579. In determining whether you had a
disabling impairment, earnings are not considered.
[57 FR 30120, July 8, 1992]
Evidence
Sec. 404.1512 Evidence of your impairment.
(a) General. In general, you have to prove to us that you are blind
or disabled. Therefore, you must bring to our attention everything that
shows 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) and, if material to the determination of
whether you are blind or disabled, its effect on your ability to work on
a sustained basis. We will consider only impairment(s) you say you have
or about which we receive evidence.
(b) What we mean by ``evidence.'' Evidence is anything you or anyone
else submits to us or that we obtain that relates to your claim. This
includes, but is not limited to:
(1) Objective medical evidence, that is, medical signs and
laboratory findings as defined in Sec. 404.1528 (b) and (c);
(2) Other evidence from medical sources, such as medical history,
opinions, and statements about treatment you have received;
(3) Statements you or others make about your impairment(s), your
restrictions, your daily activities, your efforts to work, or any other
relevant statements you make to medical sources during the course of
examination or treatment, or to us during interviews, on applications,
in letters, and in testimony in our administrative proceedings;
(4) Information from other sources, as described in
Sec. 404.1513(e);
(5) Decisions by any governmental or nongovernmental agency about
whether you are disabled or blind; and
(6) At the administrative law judge and Appeals Council levels,
certain findings, other than the ultimate determination about whether
you are disabled, made by State agency medical or psychological
consultants and other program physicians or psychologists, and opinions
expressed by medical advisors based on their review of the evidence in
your case record. See Sec. 404.1527(f) (2) and (3).
(c) Your responsibility. You must provide medical evidence showing
that you have an impairment(s) and how severe it is during the time you
say that you are disabled. If we ask you, you must also provide evidence
about:
(1) Your age;
(2) Your education and training;
(3) Your work experience;
[[Page 340]]
(4) Your daily activities both before and after the date you say
that you became disabled;
(5) Your efforts to work; and
(6) Any other factors showing how your impairment(s) affects your
ability to work. In Secs. 404.1560 through 404.1569, we discuss in more
detail the evidence we need when we consider vocational factors.
(d) Our responsibility. Before we make a determination that you are
not disabled, we will develop your complete medical history for at least
the 12 months preceding the month in which you file your application
unless there is a reason to believe that development of an earlier
period is necessary or unless you say that your disability began less
than 12 months before you filed your application. We will make every
reasonable effort to help you get medical reports from your own medical
sources when you give us permission to request the reports.
(1) ``Every reasonable effort'' means that we will make an initial
request for evidence from your medical source and, at any time between
10 and 20 calendar days after the initial request, if the evidence has
not been received, we will make one followup request to obtain the
medical evidence necessary to make a determination. The medical source
will have a minimum of 10 calendar days from the date of our followup
request to reply, unless our experience with that source indicates that
a longer period is advisable in a particular case.
(2) By ``complete medical history,'' we mean the records of your
medical source(s) covering at least the 12 months preceding the month in
which you file your application. If you say that your disability began
less than 12 months before you filed your application, we will develop
your complete medical history beginning with the month you say your
disability began unless we have reason to believe your disability began
earlier. If applicable, we will develop your complete medical history
for the 12-month period prior to (1) the month you were last insured for
disability insurance benefits (see Sec. 404.130), (2) the month ending
the 7-year period you may have to establish your disability and you are
applying for widow's or widower's benefits based on disability (see
Sec. 404.335(c)(1)), or (3) the month you attain age 22 and you are
applying for child's benefits based on disability (see Sec. 404.350(e)).
(e) Recontacting medical sources. When the evidence we receive from
your treating physician or psychologist or other medical source is
inadequate for us to determine whether you are disabled, we will need
additional information to reach a determination or a decision. To obtain
the information, we will take the following actions.
(1) We will first recontact your treating physician or psychologist
or other medical source to determine whether the additional information
we need is readily available. We will seek additional evidence or
clarification from your medical source when the report from your medical
source contains a conflict or ambiguity that must be resolved, the
report does not contain all the necessary information, or does not
appear to be based on medically acceptable clinical and laboratory
diagnostic techniques. We may do this by requesting copies of your
medical source's records, a new report, or a more detailed report from
your medical source, including your treating source, or by telephoning
your medical source. In every instance where medical evidence is
obtained over the telephone, the telephone report will be sent to the
source for review, signature and return.
(2) We may not seek additional evidence or clarification from a
medical source when we know from past experience that the source either
cannot or will not provide the necessary findings.
(f) Need for consultative examination. If the information we need is
not readily available from the records of your medical treatment source,
or we are unable to seek clarification from your medical source, we will
ask you to attend one or more consultative examinations at our expense.
See Secs. 404.1517 through 404.1519t for the rules governing the
consultative examination process. Generally, we will not request a
consultative examination until we have made every reasonable effort to
obtain evidence from your own medical sources. However, in some
instances, such as when a source is known to be unable to
[[Page 341]]
provide certain tests or procedures or is known to be nonproductive or
uncooperative, we may order a consultative examination while awaiting
receipt of medical source evidence. We will not evaluate this evidence
until we have made every reasonable effort to obtain evidence from your
medical sources.
[56 FR 36954, Aug. 1, 1991]
Sec. 404.1513 Medical evidence of your impairment.
(a) Acceptable sources. We need reports about your impairments from
acceptable medical sources. Acceptable medical sources are--
(1) Licensed physicians;
(2) Licensed osteopaths;
(3) Licensed or certified psychologists;
(4) Licensed optometrists for the measurement of visual acuity and
visual fields (we may need a report from a physician to determine other
aspects of eye diseases); and
(5) Persons authorized to send us a copy or summary of the medical
records of a hospital, clinic, sanitorium, medical institution, or
health care facility. Generally, the copy or summary should be certified
as accurate by the custodian or by any authorized employee of the Social
Security Administration, Veterans' Administration, or State agency.
However, we will not return an uncertified copy or summary for
certification unless there is some question about the document.
(b) Medical reports. Medical reports should include--
(1) Medical history;
(2) Clinical findings (such as the results of physical or mental
status examinations);
(3) Laboratory findings (such as blood pressure, x-rays);
(4) Diagnosis (statement of disease or injury based on its signs and
symptoms);
(5) Treatment prescribed with response, and prognosis; and
(6) A statement about what you can still do despite your
impairment(s) based on the medical source's findings on the factors
under paragraphs (b)(1) through (b)(5) of this section (except in
statutory blindness claims). Although we will request a medical source
statement about what you can still do despite your impairment(s), the
lack of the medical source statement will not make the report
incomplete. See Sec. 404.1527.
(c) Statements about what you can still do. Statements about what
you can still do (based on the medical source's findings on the factors
under paragraphs (b)(1) through (b)(5) of this section) should describe,
but are not limited to, the kinds of physical and mental capabilities
listed below. See Secs. 404.1527 and 404.1545(c).
(1) The medical source's opinion 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
(2) In cases of mental impairment(s), the medical source's opinion
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.
(d) Completeness. The medical evidence, including the clinical and
laboratory findings, must be complete and detailed enough to allow us to
make a determination about whether you are disabled or blind. It must
allow us to determine--
(1) The nature and limiting effects of your impairment(s) for any
period in question;
(2) The probable duration of your impairment; and
(3) Your residual functional capacity to do work-related physical
and mental activities.
(e) Information from other sources. Information from other sources
may also help us to understand how your impairment affects your ability
to work. Other sources include--
(1) Public and private social welfare agencies;
(2) Observations by non-medical sources; and
(3) Other practitioners (for example, naturopaths, chiropractors,
audiologists, etc.).
[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36955, Aug. 1, 1991]
[[Page 342]]
Sec. 404.1514 When we will purchase existing evidence.
We need specific medical evidence to determine whether you are
disabled or blind. You are responsible for providing that evidence.
However, we will pay physicians not employed by the Federal government
and other non-Federal providers of medical services for the reasonable
cost of providing us with existing medical evidence that we need and ask
for after November 30, 1980.
[46 FR 45757, Sept. 15, 1981]
Sec. 404.1515 Where and how to submit evidence.
You may give us evidence about your impairment at any of our offices
or at the office of any State agency authorized to make disability
determinations. You may also give evidence to one of our employees
authorized to accept evidence at another place. For more information
about this, see subpart H of this part.
Sec. 404.1516 If you fail to submit medical and other evidence.
If you do not give us the medical and other evidence that we need
and request, we will have to make a decision based on information
available in your case. We will not excuse you from giving us evidence
because you have religious or personal reasons against medical
examinations, tests, or treatment.
Sec. 404.1517 Consultative examination at our expense.
If your medical sources cannot or will not give us sufficient
medical evidence about your impairment for us to determine whether you
are disabled or blind, we may ask you to have one or more physical or
mental examinations or tests. We will pay for these examinations.
However, we will not pay for any medical examination arranged by you or
your representative without our advance approval. If we arrange for the
examination or test, we will give you reasonable notice of the date,
time, and place the examination or test will be given, and the name of
the person or facility who will do it. We will also give the examiner
any necessary background information about your condition.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1518 If you do not appear at a consultative examination.
(a) General. If you are applying for benefits and do not have a good
reason for failing or refusing to take part in a consultative
examination or test which we arrange for you to get information we need
to determine your disability or blindness, we may find that you are not
disabled or blind. If you are already receiving benefits and do not have
a good reason for failing or refusing to take part in a consultative
examination or test which we arranged for you, we may determine that
your disability or blindness has stopped because of your failure or
refusal. Therefore, if you have any reason why you cannot go for the
scheduled appointment, you should tell us about this as soon as possible
before the examination date. If you have a good reason, we will schedule
another examination. We will consider your physical, mental,
educational, and linguistic limitations (including any lack of facility
with the English language) when determining if you have a good reason
for failing to attend a consultative examination.
(b) Examples of good reasons for failure to appear. Some examples of
what we consider good reasons for not going to a scheduled examination
include--
(1) Illness on the date of the scheduled examination or test;
(2) Not receiving timely notice of the scheduled examination or
test, or receiving no notice at all;
(3) Being furnished incorrect or incomplete information, or being
given incorrect information about the physician involved or the time or
place of the examination or test, or;
(4) Having had death or serious illness occur in your immediate
family.
(c) Objections by your physician. If any of your treating physicians
tell you that you should not take the examination or test, you should
tell us at once. In many cases, we may be able to get the information we
need in another
[[Page 343]]
way. Your physician may agree to another type of examination for the
same purpose.
[45 FR 55584, Aug. 20, 1980, as amended at 59 FR 1635, Jan. 12, 1994]
Standards To Be Used in Determining When a Consultative Examination Will
Be Obtained in Connection With Disability Determinations
Sec. 404.1519 The consultative examination.
A consultative examination is a physical or mental examination or
test purchased for you at our request and expense from a treating
physician or psychologist, another source of record, or an independent
source, including a pediatrician when appropriate. The decision to
purchase a consultative examination will be made on an individual case
basis in accordance with the provisions of Secs. 404.1519a through
404.1519f. Selection of the source for the examination will be
consistent with the provisions of Sec. 404.1503a and Secs. 404.1519g
through 404.1519j. The rules and procedures for requesting consultative
examinations set forth in Secs. 404.1519a and 404.1519b are applicable
at the reconsideration and hearing levels of review, as well as the
initial level of determination.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1519a When we will purchase a consultative examination and how
we will use it.
(a)(1) General. The decision to purchase a consultative examination
for you will be made after we have given full consideration to whether
the additional information needed (e.g., clinical findings, laboratory
tests, diagnosis, and prognosis) is readily available from the records
of your medical sources. See Sec. 404.1512 for the procedures we will
follow to obtain evidence from your medical sources. Before purchasing a
consultative examination, we will consider not only existing medical
reports, but also the disability interview form containing your
allegations as well as other pertinent evidence in your file.
(2) When we purchase a consultative examination, we will use the
report from the consultative examination to try to resolve a conflict or
ambiguity if one exists. We will also use a consultative examination to
secure needed medical evidence the file does not contain such as
clinical findings, laboratory tests, a diagnosis or prognosis necessary
for decision.
(b) Situations requiring a consultative examination. A consultative
examination may be purchased when the evidence as a whole, both medical
and nonmedical, is not sufficient to support a decision on your claim.
Other situations, including but not limited to the situations listed
below, will normally require a consultative examination:
(1) The additional evidence needed is not contained in the records
of your medical sources;
(2) The evidence that may have been available from your treating or
other medical sources cannot be obtained for reasons beyond your
control, such as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is
not available from your treating or other medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency in the
evidence must be resolved, and we are unable to do so by recontacting
your medical source; or
(5) There is an indication of a change in your condition that is
likely to affect your ability to work, but the current severity of your
impairment is not established.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1519b When we will not purchase a consultative examination.
We will not purchase a consultative examination in situations
including, but not limited to, the following situations:
(a) In period of disability and disability insurance benefit claims,
when you do not meet the insured status requirement in the calendar
quarter you allege you became disabled or later and there is no
possibility of establishing an earlier onset;
(b) In claims for widow's or widower's benefits based on disability,
when your alleged month of disability is after the end of the 7-year
period specified in
[[Page 344]]
Sec. 404.335(c)(1) and there is no possibility of establishing an
earlier onset date, or when the 7-year period expired in the past and
there is no possibility of establishing an onset date prior to the date
the 7-year period expired;
(c) In disability insurance benefit claims, when your insured status
expired in the past and there is no possibility of establishing an onset
date prior to the date your insured status expired;
(d) When any issues about your actual performance of substantial
gainful activity or gainful activity have not been resolved;
(e) In claims for child's benefits based on disability, when it is
determined that your alleged disability did not begin before the month
you attained age 22, and there is no possibility of establishing an
onset date earlier than the month in which you attained age 22;
(f) In claims for child's benefits based on disability that are
filed concurrently with the insured individual's claim and entitlement
cannot be established for the insured individual;
(g) In claims for child's benefits based on disability where
entitlement is precluded based on other nondisability factors.
[56 FR 36956, Aug. 1, 1991]
Standards for the Type of Referral and for Report Content
Sec. 404.1519f Type of purchased examinations.
We will purchase only the specific examinations and tests we need to
make a determination in your claim. For example, we will not authorize a
comprehensive medical examination when the only evidence we need is a
special test, such as an X-ray, blood studies, or an electrocardiogram.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1519g Who we will select to perform a consultative
examination.
(a) We will purchase a consultative examination only from a
qualified medical source. The medical source may be your own physician
or psychologist, or another source. If you are a child, the medical
source we choose may be a pediatrician. For a more complete list of
medical sources, see Sec. 404.1513(a).
(b) By ``qualified,'' we mean that the medical source must be
currently licensed in the State and have the training and experience to
perform the type of examination or test we will request; the medical
source must not be barred from participation in our programs under the
provisions of Sec. 404.1503a. The medical source must also have the
equipment required to provide an adequate assessment and record of the
existence and level of severity of your alleged impairments.
(c) The physician or psychologist we choose may use support staff to
help perform the consultative examination. Any such support staff (e.g.,
X-ray technician, nurse) must meet appropriate licensing or
certification requirements of the State. See Sec. 404.1503a.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519h Your treating physician or psychologist.
When in our judgment your treating physician or psychologist is
qualified, equipped, and willing to perform the additional examination
or tests for the fee schedule payment, and generally furnishes complete
and timely reports, your treating physician or psychologist will be the
preferred source to do the purchased examination. Even if only a
supplemental test is required, your treating physician or psychologist
is ordinarily the preferred source.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519i Other sources for consultative examinations.
We will use a source other than your treating physician or
psychologist for a purchased examination or test in situations
including, but not limited to, the following situations:
(a) Your treating physician or psychologist prefers not to perform
such an examination or does not have the equipment to provide the
specific data needed;
(b) There are conflicts or inconsistencies in your file that cannot
be resolved by going back to your treating physician or psychologist;
(c) You prefer a source other than your treating physician or
psychologist
[[Page 345]]
and have a good reason for your preference;
(d) We know from prior experience that your treating physician or
psychologist may not be a productive source, e.g., he or she has
consistently failed to provide complete or timely reports.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519j Objections to the designated physician or psychologist.
You or your representative may object to your being examined by a
designated physician or psychologist. If there is a good reason for the
objection, we will schedule the examination with another physician or
psychologist. A good reason may be that the consultative examination
physician or psychologist had previously represented an interest adverse
to you. For example, the physician or psychologist may have represented
your employer in a workers' compensation case or may have been involved
in an insurance claim or legal action adverse to you. Other things we
will consider include: the presence of a language barrier, the
physician's or psychologist's office location (e.g., 2nd floor, no
elevator), travel restrictions, and whether the physician or
psychologist had examined you in connection with a previous disability
determination or decision that was unfavorable to you. If your objection
is because a physician or psychologist allegedly ``lacks objectivity''
in general, but not in relation to you personally, we will review the
allegations. See Sec. 404.1519s. To avoid a delay in processing your
claim, the consultative examination in your case will be changed to
another physician or psychologist while a review is being conducted. We
will handle any objection to use of the substitute physician or
psychologist in the same manner. However, if we had previously conducted
such a review and found that the reports of the consultative physician
or psychologist in question conformed to our guidelines, we will not
change your examination.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519k Purchase of medical examinations, laboratory tests, and
other services.
We may purchase medical examinations, including psychiatric and
psychological examinations, X-rays and laboratory tests (including
specialized tests such as pulmonary function studies,
electrocardiograms, stress tests, etc.) from a licensed physician or
psychologist, hospital or clinic.
(a) The rate of payment to be used for purchasing medical or other
services necessary to make determinations of disability may not exceed
the highest rate paid by Federal or public agencies in the State for the
same or similar types of service. See Secs. 404.1624 and 404.1626.
(b) If a physician's bill or a request for payment for a physician's
services includes a charge for a laboratory test for which payment may
be made under this part, the amount payable with respect to the test
shall be determined as follows:
(1) If the bill or request for payment indicates that the test was
personally performed or supervised by the physician who submitted the
bill (or for whose services the request for payment was made) or by
another physician with whom that physician shares his or her practice,
the payment will be based on the physician's usual and customary charge
for the test or the rates of payment which the State uses for purchasing
such services, whichever is the lesser amount.
(2) If the bill or request for payment indicates that the test was
performed by an independent laboratory, the amount of reimbursement will
not exceed the billed cost of the independent laboratory or the rate of
payment which the State uses for purchasing such services, whichever is
the lesser amount. A nominal payment may be made to the physician for
collecting, handling and shipping a specimen to the laboratory if the
physician bills for such a service. The total reimbursement may not
exceed the rate of payment which the State uses for purchasing such
services.
(c) The State will assure that it can support the rate of payment it
uses. The State shall also be responsible for monitoring and overseeing
the rate of
[[Page 346]]
payment it uses to ensure compliance with paragraphs (a) and (b) of this
section.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519m Diagnostic tests or procedures.
We will request the results of any diagnostic tests or procedures
that have been performed as part of a workup by your treating physician
or psychologist or other medical source and will use the results to help
us evaluate impairment severity or prognosis. However, we will not order
diagnostic tests or procedures that involve significant risk to you,
such as myelograms, arteriograms, or cardiac catheterizations for the
evaluation of disability under the Social Security program. Also, a
State agency medical consultant must approve the ordering of any
diagnostic test or procedure when there is a chance it may involve
significant risk. The responsibility for deciding whether to perform the
examination rests with the consultative examining physician or
psychologist.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519n Informing the examining physician or psychologist of
examination scheduling, report content, and signature
requirements.
The physicians or psychologists who perform consultative
examinations will have a good understanding of our disability programs
and their evidentiary requirements. They will be made fully aware of
their responsibilities and obligations regarding confidentiality as
described in Sec. 401.105(e). We will fully inform consulting physicians
or psychologists at the time we first contact them, and at subsequent
appropriate intervals, of the following obligations:
(a) In scheduling full consultative examinations, sufficient time
should be allowed to permit the examining physician or psychologist to
take a case history and perform the examination, including any needed
tests. The following minimum scheduling intervals (i.e., time set aside
for the individual, not the actual duration of the consultative
examination) should be used.
(1) Comprehensive general medical examination--at least 30 minutes;
(2) Comprehensive musculoskeletal or neurological examination--at
least 20 minutes;
(3) Comprehensive psychiatric examination--at least 40 minutes;
(4) Psychological examination--at least 60 minutes (Additional time
may be required depending on types of psychological tests administered);
and
(5) All others--at least 30 minutes, or in accordance with accepted
medical practices.
We recognize that actual practice will dictate that some examinations
may require longer scheduling intervals depending on the circumstances
in a particular situation. We also recognize that these minimum
intervals may have to be adjusted to allow for those claimants who do
not attend their scheduled examination. The purpose of these minimum
scheduling timeframes is to ensure that such examinations are complete
and that sufficient time is made available to obtain the information
needed to make an accurate determination in your case. State agencies
will monitor the scheduling of examinations (through their normal
consultative examination oversight activities) to ensure that any
overscheduling is avoided, as overscheduling may lead to examinations
that are not thorough.
(b) Report content. The reported results of your medical history,
examination, requested laboratory findings, discussions and conclusions
must conform to accepted professional standards and practices in the
medical field for a complete and competent examination. The facts in a
particular case and the information and findings already reported in the
medical and other evidence of record will dictate the extent of detail
needed in the consultative examination report for that case. Thus, the
detail and format for reporting the results of a purchased examination
will vary depending upon the type of examination or testing requested.
The reporting of information will differ from one type of examination to
another when the requested examination relates to the performance of
tests such as ventilatory function tests, treadmill exercise tests, or
audiological tests. The medical report must be complete
[[Page 347]]
enough to help us determine the nature, severity, and duration of the
impairment, and residual functional capacity. The report should reflect
your statements of your symptoms, not simply the physician's or
psychologist's statements or conclusions. The examining physician's or
psychologist's report of the consultative examination should include the
objective medical facts as well as observations and opinions.
(c) Elements of a complete consultative examination. A complete
consultative examination is one which involves all the elements of a
standard examination in the applicable medical specialty. When the
report of a complete consultative examination is involved, the report
should include the following elements:
(1) Your major or chief complaint(s);
(2) A detailed description, within the area of specialty of the
examination, of the history of your major complaint(s);
(3) A description, and disposition, of pertinent ``positive'' and
``negative'' detailed findings based on the history, examination and
laboratory tests related to the major complaint(s), and any other
abnormalities or lack thereof reported or found during examination or
laboratory testing;
(4) The results of laboratory and other tests (e.g., X-rays)
performed according to the requirements stated in the Listing of
Impairments (see appendix 1 of this subpart P);
(5) The diagnosis and prognosis for your impairment(s);
(6) A statement about what you can still do despite your
impairment(s), unless the claim is based on statutory blindness. 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; and
(7) In addition, the consultative physician or psychologist will
consider, and provide some explanation or comment on, your major
complaint(s) and any other abnormalities found during the history and
examination or reported from the laboratory tests. The history,
examination, evaluation of laboratory test results, and the conclusions
will represent the information provided by the physician or psychologist
who signs the report.
(d) When a complete consultative examination is not required. When
the evidence we need does not require a complete consultative
examination (for example, we need only a specific laboratory test result
to complete the record), we may not require a report containing all of
the elements in paragraph (c).
(e) Signature requirements. All consultative examination reports
will be personally reviewed and signed by the physician or psychologist
who actually performed the examination. This attests to the fact that
the physician or psychologist doing the examination or testing is solely
responsible for the report contents and for the conclusions,
explanations or comments provided with respect to the history,
examination and evaluation of laboratory test results. The signature of
the examining physician or psychologist on a report annotated ``not
proofed'' or ``dictated but not read'' is not acceptable. A rubber stamp
signature of a physician or psychologist or the physician's or
psychologist's signature entered by any other person is not acceptable.
[56 FR 36958, Aug. 1, 1991]
Sec. 404.1519o When a properly signed consultative examination report
has not been received.
If a consultative examination report is received unsigned or
improperly signed we will take the following action.
(a) When we will make determinations and decisions without a
properly signed report. We will make a determination or decision in the
circumstances specified in paragraphs (a)(1) and (a)(2) of this section
without waiting for a properly signed consultative examination report.
After we have made the determination or decision, we will obtain a
[[Page 348]]
properly signed report and include it in the file unless the physician
or psychologist who performed the original consultative examination has
died.
(1) Continuous period of disability allowance with an onset date as
alleged or earlier than alleged; or
(2) Continuance of disability.
(b) When we will not make determinations and decisions without a
properly signed report. We will not use an unsigned or improperly signed
consultative examination report to make the determinations or decisions
specified in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of this
section. When we need a properly signed consultative examination report
to make these determinations or decisions, we must obtain such a report.
If the signature of the physician or psychologist who performed the
original examination cannot be obtained because the physician or
psychologist is out of the country for an extended period of time, on an
extended vacation, seriously ill, deceased, or for any other reason, the
consultative examination will be rescheduled with another physician or
psychologist.
(1) Denial; or
(2) Cessation; or
(3) Allowance of a period of disability which has ended; or
(4) Allowance with an onset date later than alleged.
[56 FR 36958, Aug. 1, 1991]
Sec. 404.1519p Reviewing reports of consultative examinations.
(a) We will review the report of the consultative examination to
determine whether the specific information requested has been furnished.
We will consider the following factors in reviewing the report:
(1) Whether the report provides evidence which serves as an adequate
basis for decisionmaking in terms of the impairment it assesses;
(2) Whether the report is internally consistent; Whether all the
diseases, impairments and complaints described in the history are
adequately assessed and reported in the clinical findings; Whether the
conclusions correlate the findings from your medical history, clinical
examination and laboratory tests and explain all abnormalities;
(3) Whether the report is consistent with the other information
available to us within the specialty of the examination requested;
Whether the report fails to mention an important or relevant complaint
within that specialty that is noted in other evidence in the file (e.g.,
your blindness in one eye, amputations, pain, alcoholism, depression);
(4) Whether this is an adequate report of examination as compared to
standards set out in the course of a medical education; and
(5) Whether the report is properly signed.
(b) If the report is inadequate or incomplete, we will contact the
examining consultative physician or psychologist, give an explanation of
our evidentiary needs, and ask that the physician or psychologist
furnish the missing information or prepare a revised report.
(c) With your permission, or where the examination discloses new
diagnostic information or test results that reveal potentially life-
threatening situations, we will refer the consultative examination
report to your treating physician or psychologist. When we refer the
consultative examination report to your treating physician or
psychologist without your permission, we will notify you that we have
done so.
(d) We will perform ongoing special management studies on the
quality of consultative examinations purchased from major medical
sources and the appropriateness of the examinations authorized.
(e) We will take steps to ensure that consultative examinations are
scheduled only with medical sources who have access to the equipment
required to provide an adequate assessment and record of the existence
and level of severity of your alleged impairments.
[56 FR 36959, Aug. 1, 1991]
Sec. 404.1519q Conflict of interest.
All implications of possible conflict of interest between medical or
psychological consultants and their medical or psychological practices
will be avoided. Such consultants are not only those physicians and
psychologists who work for us directly but are also those who do review
and adjudication work
[[Page 349]]
in the State agencies. Physicians and psychologists who work for us
directly as employees or under contract will not work concurrently for a
State agency. Physicians and psychologists who do review work for us
will not perform consultative examinations for us without our prior
approval. In such situations, the physician or psychologist will
disassociate himself or herself from further involvement in the case and
will not participate in the evaluation, decision, or appeal actions. In
addition, neither they, nor any member of their families, will acquire
or maintain, either directly or indirectly, any financial interest in a
medical partnership, corporation, or similar relationship in which
consultative examinations are provided. Sometimes physicians and
psychologists who do review work for us will have prior knowledge of a
case; for example, when the claimant was a patient. Where this is so,
the physician or psychologist will not participate in the review or
determination of the case. This does not preclude the physician or
psychologist from submitting medical evidence based on treatment or
examination of the claimant.
[56 FR 36959, Aug. 1, 1991]
Authorizing and Monitoring the Referral Process
Sec. 404.1519s Authorizing and monitoring the consultative examination.
(a) Day-to-day responsibility for the consultative examination
process rests with the State agencies that make disability
determinations for us.
(b) The State agency will maintain a good working relationship with
the medical community in order to recruit sufficient numbers of
physicians and other providers of medical services to ensure ready
availability of consultative examination providers.
(c) Consistent with Federal and State laws, the State agency
administrator will work to achieve appropriate rates of payment for
purchased medical services.
(d) Each State agency will be responsible for comprehensive
oversight management of its consultative examination program, with
special emphasis on key providers.
(e) A key consultative examination provider is a provider that meets
at least one of the following conditions:
(1) Any consultative examination provider with an estimated annual
billing to the Social Security disability programs of at least $100,000;
or
(2) Any consultative examination provider with a practice of
medicine, osteopathy, or psychology directed primarily towards
evaluation examinations rather than the treatment of patients; or
(3) Any consultative examination provider that does not meet the
above criteria, but is one of the top five consultative examination
providers in the State by dollar volume, as evidenced by prior year
data.
(f) State agencies have flexibility in managing their consultative
examination programs, but at a minimum will provide:
(1) An ongoing active recruitment program for consultative
examination providers;
(2) A process for orientation, training, and review of new
consultative examination providers, with respect to SSA's program
requirements involving consultative examination report content and not
with respect to medical techniques;
(3) Procedures for control of scheduling consultative examinations;
(4) Procedures to ensure that close attention is given to specific
evaluation issues involved in each case;
(5) Procedures to ensure that only required examinations and tests
are authorized in accordance with the standards set forth in this
subpart;
(6) Procedures for providing medical or supervisory approval for the
authorization or purchase of consultative examinations and for
additional tests or studies requested by consulting physicians and
psychologists. This includes physician approval for the ordering of any
diagnostic test or procedure where the question of significant risk to
the claimant/beneficiary might be raised. See Sec. 404.1519m.
(7) Procedures for the ongoing review of consultative examination
results to ensure compliance with written guidelines;
[[Page 350]]
(8) Procedures to encourage active participation by physicians in
the consultative examination oversight program;
(9) Procedures for handling complaints;
(10) Procedures for evaluating claimant reactions to key providers;
and
(11) A program of systematic, onsite reviews of key providers that
will include annual onsite reviews of such providers when claimants are
present for examinations. This provision does not contemplate that such
reviews will involve participation in the actual examinations but,
rather, offer an opportunity to talk with claimants at the provider's
site before and after the examination and to review the provider's
overall operation.
(g) The State agencies will cooperate with us when we conduct
monitoring activities in connection with their oversight management of
their consultative examination programs.
[56 FR 36959, Aug. 1, 1991]
Procedures To Monitor the Consultative Examination
Sec. 404.1519t Consultative examination oversight.
(a) We will ensure that referrals for consultative examinations and
purchases of consultative examinations are made in accordance with our
policies. We will also monitor both the referral processes and the
product of the consultative examinations obtained. This monitoring may
include reviews by independent medical specialists under direct contract
with SSA.
(b) Through our regional offices, we will undertake periodic
comprehensive reviews of each State agency to evaluate each State's
management of the consultative examination process. The review will
involve visits to key providers, with State staff participating,
including a program physician when the visit will deal with medical
techniques or judgment, or factors that go to the core of medical
professionalism.
(c) We will also perform ongoing special management studies of the
quality of consultative examinations purchased from key providers and
other sources and the appropriateness of the examinations authorized.
[56 FR 36960, Aug. 1, 1991]
Evaluation of Disability
Sec. 404.1520 Evaluation of disability in general.
(a) Steps in evaluating disability. We consider all evidence in your
case record when we make a determination or decision whether you are
disabled. When you file a claim for a period of disability and/or
disability insurance benefits or for child's benefits based on
disability, we use the following evaluation process. If you are doing
substantial gainful activity, we will determine that you are not
disabled. If you are not doing substantial gainful activity, we will
first consider the effect of your physical or mental impairment; if you
have more than one impairment, we will also consider the combined effect
of your impairments. Your impairment(s) must be severe and meet the
duration requirement before we can find you to be disabled. We follow a
set order to determine whether you are disabled. We review any current
work activity, the severity of your impairment(s), your residual
functional capacity, your past work, and your age, education, and work
experience. If we can find that you are disabled or not disabled at any
point in the review, we do not review your claim further. Once you have
been found entitled to disability benefits, we follow a somewhat
different order of evaluation to determine whether your entitlement
continues, as explained in Sec. 404.1594(f)(6).
(b) If you are working. If you are working and the work you are
doing is substantial gainful activity, we will find that you are not
disabled regardless of your medical condition or your age, education,
and work experience.
(c) You must have a severe impairment. If you do not have any
impairment or combination of impairments which significantly limits your
physical or mental ability to do basic work activities, we will find
that you do not have a severe impairment and are, therefore, not
disabled. We will not consider your age, education, and work experience.
However, it is possible for you to have a period of disability for a
time in the
[[Page 351]]
past even though you do not now have a severe impairment.
(d) When your impairment(s) meets or equals a listed impairment in
appendix 1. If you have an impairment(s) which meets the duration
requirement and is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age,
education, and work experience.
(e) Your impairments(s) must prevent you from doing past relevant
work. If we cannot make a decision based on your current work activity
or on medical facts alone, and you have a severe impairment(s), we then
review your residual functional capacity and the physical and mental
demands of the work you have done in the past. If you can still do this
kind of work, we will find that you are not disabled.
(f) Your impairment(s) must prevent you from doing any other work.
(1) If you cannot do any work you have done in the past because you have
a severe impairment(s), we will consider your residual functional
capacity and your age, education, and past work experience to see if you
can do other work. If you cannot, we will find you disabled.
(2) If you have only a marginal education, and long work experience
(i.e., 35 years or more) where you only did arduous unskilled physical
labor, and you can no longer do this kind of work, we use a different
rule (see Sec. 404.1562).
[50 FR 8727, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at 56 FR
36960, Aug. 1, 1991]
Sec. 404.1520a Evaluation of mental impairments.
(a) General. The steps outlined in Sec. 404.1520 apply to the
evaluation of physical and mental impairments. In addition, in
evaluating the severity of mental impairments for adults (persons age 18
and over) and in persons under age 18 when Part A of the Listing of
Impairments is used, a special procedure must be followed by us at each
level of adminstrative review. Following this procedure will assist us
in:
(1) Identifying additional evidence necessary for the determination
of impairment severity;
(2) Considering and evaluating aspects of the mental disorder(s)
relevant to your ability to work; and
(3) Organizing and presenting the findings in a clear, concise, and
consistent manner.
(b) Use of the procedure to record pertinent findings and rate the
degree of functional loss. (1) This procedure requires us to record the
pertinent signs, symptoms, findings, functional limitations, and effects
of treatment contained in your case record. This will assist us in
determining if a mental impairment(s) exists. Whether or not a mental
impairment(s) exists is decided in the same way the question of a
physical impairment is decided, i.e., the evidence must be carefully
reviewed and conclusions supported by it. The mental status examination
and psychiatric history will ordinarily provide the needed information.
(See Sec. 404.1508 for further information about what is needed to show
an impairment.)
(2) If we determine that a mental impairment(s) exists, this
procedure then requires us to indicate whether certain medical findings
which have been found especially relevant to the ability to work are
present or absent.
(3) The procedure then requires us to rate the degree of functional
loss resulting from the impairment(s). Four areas of function considered
by us as essential to work have been identified, and the degree of
functional loss in those areas must be rated on a scale that ranges from
no limitation to a level of severity which is incompatible with the
ability to perform those work-related functions. For the first two areas
(activities of daily living and social functioning), the rating of
limitation must be done based upon the following five point scale: none,
slight, moderate, marked, and extreme. For the third area
(concentration, persistence, or pace) the following five point scale
must be used: never, seldom, often, frequent, and constant. For the
fourth area (deterioration or decompensation in work or work-like
settings), the following four point scale must be used: never, once or
twice, repeated (three or more), and continual. The last two points for
each of these scales represent a degree of limitation which is
incompatible with the ability to perform the work-related function.
[[Page 352]]
(c) Use of the procedure to evaluate mental impairments. Following
the rating of the degree of functional loss resulting from the
impairment, we must then determine the severity of the mental
impairment(s).
(1) If the four areas considered by us as essential to work have
been rated to indicate a degree of limitation as none or slight in the
first and second areas, never or seldom in the third area, and never in
the fourth area, we can generally conclude that the impairment is not
severe, unless the evidence otherwise indicates there is significant
limitation of your mental ability to do basic work activities (see
Sec. 404.1521).
(2) If your mental impairment(s) is severe, we must then determine
if it meets or equals a listed mental disorder. This is done by
comparing our prior conclusions based on this procedure (i.e., the
presence of certain medical findings considered by us as especially
relevant to your ability to work and our rating of functional loss
resulting from the mental impairment(s)) against the paragraph A and B
criteria of the appropriate listed mental disorder(s). If we determine
that paragraph C criteria will be used in lieu of paragraph B criteria
(see listings 12.03 and 12.06), we will, by following this procedure,
indicate on the document whether the evidence is sufficient to establish
the presence or absence of the criteria. (See paragraph (d) of this
section).
(3) If you have a severe impairment(s), but the impairment(s)
neither meets nor equals the listings, we must then do a residual
functional capacity assessment.
(4) At all adjudicative levels we must, in each case, incorporate
the pertinent findings and conclusions based on this procedure in our
decision rationale. Our rationale must show the significant history,
including examination, laboratory findings, and functional limitations
that we considered in reaching conclusions about the severity of the
mental impairment(s).
(d) Preparation of the document. A standard document outlining the
steps of this procedure must be completed by us in each case at the
initial, reconsideration, administrative law judge hearing, and Appeals
Council levels (when the Appeals Council issues a decision).
(1) At the initial and reconsideration levels the standard document
must be completed and signed by our medical consultant. At the
administrative law judge hearing level, several options are available:
(i) The administrative law judge may complete the document without
the assistance of a medical advisor;
(ii) The administrative law judge may call a medical advisor for
assistance in preparing the document; or
(iii) Where new evidence is received that is not merely cumulative
of evidence already in your case file or where the issue of a mental
impairment arises for the first time at the administrative law judge
hearing level, the administrative law judge may decide to remand the
case to the State agency for completion of the document and a new
determination. Remand may also be made in situations where the services
of a medical advisor are determined necessary but unavailable to the
administrative law judge. In such circumstances, however, a remand may
ordinarily be made only once.
(2) For all cases involving mental disorders at the administrative
law judge hearing or Appeals Council levels, the standard document will
be appended to the decision.
(Approved by the Office of Management and Budget under control number
0960-0413)
[50 FR 35065, Aug. 28, 1985, as amended at 55 FR 51229, Dec. 12, 1990;
57 FR 30120, July 8, 1992]
Sec. 404.1521 What we mean by an impairment(s) that is not severe.
(a) Non-severe impairment(s). An impairment or combination of
impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities.
(b) Basic work activities. When we talk about basic work activities,
we mean the abilities and aptitudes necessary to do most jobs. Examples
of these include--
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
[[Page 353]]
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual
work situations; and
(6) Dealing with changes in a routine work setting.
[50 FR 8728, Mar. 5, 1985]
Sec. 404.1522 When you have two or more unrelated impairments--initial
claims.
(a) Unrelated severe impairments. We cannot combine two or more
unrelated severe impairments to meet the 12-month duration test. If you
have a severe impairment(s) and then develop another unrelated severe
impairment(s) but neither one is expected to last for 12 months, we
cannot find you disabled, even though the two impairments in combination
last for 12 months.
(b) Concurrent impairments. If you have two or more concurrent
impairments which, when considered in combination, are severe, we must
also determine whether the combined effect of your impairments can be
expected to continue to be severe for 12 months. If one or more of your
impairments improves or is expected to improve within 12 months, so that
the combined effect of your remaining impairments is no longer severe,
we will find that you do not meet the 12-month duration test.
[50 FR 8728, Mar. 5, 1985]
Sec. 404.1523 Multiple impairments.
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard
to whether any such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe combination of
impairments, the combined impact of the impairments will be considered
throughout the disability determination process. If we do not find that
you have a medically severe combination of impairments, we will
determine that you are not disabled (see Sec. 404.1520).
[50 FR 8728, Mar. 5, 1985]
Medical Considerations
Sec. 404.1525 Listing of Impairments in appendix 1.
(a) Purpose of the Listing of Impairments. The Listing of
Impairments describes, for each of the major body systems, impairments
which are considered severe enough to prevent a person from doing any
gainful activity. 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) Adult and childhood diseases. The Listing of Impairments
consists of two parts:
(1) Part A contains medical criteria that apply to adult persons age
18 and over. The medical criteria in part A may also be applied in
evaluating impairments in persons under age 18 if the disease processes
have a similar effect on adults and younger persons.
(2) Part B contains additional medical criteria that apply only to
the evaluation of impairments of persons under age 18. Certain criteria
in part A do not give appropriate consideration to the particular
effects of the disease processes in childhood; i.e., when the disease
process is generally found only in children or when the disease process
differs in its effect on children than on adults. Additional criteria
are included in part B, and the impairment categories are, to the extent
possible, numbered to maintain a relationship with their counterparts in
part A. In evaluating disability for a person under age 18, part B will
be used first. If the medical criteria in part B do not apply, then the
medical criteria in part A will be used.
(c) How to use the Listing of Impairments. Each section of the
Listing of Impairments has a general introduction containing definitions
of key concepts used in that section. Certain specific medical findings,
some of which are required in establishing a diagnosis
[[Page 354]]
or in confirming the existence of an impairment for the purpose of this
Listing, are also given in the narrative introduction. If the medical
findings needed to support a diagnosis are not given in the introduction
or elsewhere in the listing, the diagnosis must still be established on
the basis of medically acceptable clinical and laboratory diagnostic
techniques. Following the introduction in each section, the required
level of severity of impairment is shown under ``Category of
Impairments'' by one or more sets of medical findings. The medical
findings consist of symptoms, signs, and laboratory findings.
(d) Diagnosis of impairments. We will not consider your impairment
to be one listed in appendix 1 solely because it has the diagnosis of a
listed impairment. It must also have the findings shown in the Listing
of that impairment.
(e) Addiction to alcohol or drugs. If you have a condition diagnosed
as addiction to alcohol or drugs, this will not, by itself, be a basis
for determining whether you are, or are not, disabled. As with any other
medical condition, we will decide whether you are disabled based on
symptoms, signs, and laboratory findings.
(f) Symptoms as criteria of listed impairment(s). Some listed
impairment(s) include symptoms usually associated with those
impairment(s) as criteria. Generally, when a symptom is one of the
criteria in a listed impairment, it is only necessary that the symptom
be present in combination with the other criteria. It is not necessary,
unless the listing specifically states otherwise, to provide information
about the intensity, persistence or limiting effects of the symptom as
long as all other findings required by the specific listing are present.
[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 57941, Nov. 14, 1991]
Sec. 404.1526 Medical equivalence.
(a) How medical equivalence is determined. We will decide that your
impairment(s) is medically equivalent to a listed impairment in appendix
1 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 medical criteria shown with the listed
impairment. If your impairment is not listed, we will consider the
listed impairment most like your impairment to decide whether your
impairment is medically equal. If you have more than one impairment, and
none of them meets or equals a listed impairment, we will review the
symptoms, signs, and laboratory findings about your impairments to
determine whether the combination of your impairments is medically equal
to any listed impairment.
(b) Medical equivalence must be based on medical findings. We will
always base our decision about whether your impairment(s) is medically
equal to a listed impairment on medical evidence only. Any medical
findings in the evidence must be supported by medically acceptable
clinical and laboratory diagnostic techniques. We will also consider the
medical opinion given by one or more medical or psychological
consultants designated by the Secretary in deciding medical equivalence.
(See Sec. 404.1616.)
(c) Who is a designated medical or psychological consultant. A
medical or psychological consultant designated by the Secretary 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. A medical consultant must be a physician. A
psychological consultant used in cases where there is evidence of a
mental impairment must be a qualified psychologist. (See Sec. 404.1616
for the qualifications we consider necessary for a psychologist to be a
consultant.)
[45 FR 55584, Aug. 20, 1980, as amended at 52 FR 33926, Sept. 9, 1987]
[[Page 355]]
Sec. 404.1527 Evaluating medical opinions about your impairment(s) or
disability.
(a) General. (1) 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 Sec. 404.1505. Your
impairment must result from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques. See Sec. 404.1508.
(2) Evidence that you submit or that we obtain may contain medical
opinions. Medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.
(b) How we consider medical opinions. In deciding whether you are
disabled, we will always consider the medical opinions in your case
record together with the rest of the relevant evidence we receive.
(c) Making disability determinations. After we review all of the
evidence relevant to your claim, including medical opinions, we make
findings about what the evidence shows.
(1) If all of the evidence we receive, including all medical
opinion(s), is consistent, and there is sufficient evidence for us to
decide whether you are disabled, we will make our determination or
decision based on that evidence.
(2) If any of the evidence in your case record, including any
medical opinion(s), is inconsistent with other evidence or is internally
inconsistent, we will weigh all of the evidence and see whether we can
decide whether you are disabled based on the evidence we have.
(3) If the evidence is consistent but we do not have sufficient
evidence to decide whether you are disabled, or if after weighing the
evidence we decide we cannot reach a conclusion about whether you are
disabled, we will try to obtain additional evidence under the provisions
of Secs. 404.1512 and 404.1519 through 404.1519h. We will request
additional existing records, recontact your treating sources or any
other examining sources, ask you to undergo a consultative examination
at our expense, or ask you or others for more information. We will
consider any additional evidence we receive together with the evidence
we already have.
(4) When there are inconsistencies in the evidence that cannot be
resolved, or when despite efforts to obtain additional evidence the
evidence is not complete, we will make a determination or decision based
on the evidence we have.
(d) How we weigh medical opinions. Regardless of its source, we will
evaluate every medical opinion we receive. Unless we give a treating
source's opinion controlling weight under paragraph (d)(2) of this
section, we consider all of the following factors in deciding the weight
we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a source
who has not examined you.
(2) Treatment relationship. Generally, we give more weight to
opinions from your treating sources, since these sources are likely to
be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's opinion on the
issue(s) of the nature and severity of your impairment(s) is well-
supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight. When we do not
give the treating source's opinion controlling weight, we apply the
factors listed below, as well as the factors in paragraphs (d) (3)
through (5) of this section in determining the weight to give the
opinion. We will always give good reasons in our notice of determination
or
[[Page 356]]
decision for the weight we give your treating source's opinion.
(i) Length of the treatment relationship and the frequency of
examination. Generally, the longer a treating source has treated you and
the more times you have been seen by a treating source, the more weight
we will give to the source's medical opinion. When the treating source
has seen you a number of times and long enough to have obtained a
longitudinal picture of your impairment, we will give the source's
opinion more weight than we would give it if it were from a nontreating
source.
(ii) Nature and extent of the treatment relationship. Generally, the
more knowledge a treating source has about your impairment(s) the more
weight we will give to the source's medical opinion. We will look at the
treatment the source has provided and at the kinds and extent of
examinations and testing the source has performed or ordered from
specialists and independent laboratories. For example, if your
ophthalmologist notices that you have complained of neck pain during
your eye examinations, we will consider his or her opinion with respect
to your neck pain, but we will give it less weight than that of another
physician who has treated you for the neck pain. When the treating
source has reasonable knowledge of your impairment(s), we will give the
source's opinion more weight than we would give it if it were from a
nontreating source.
(3) Supportability. The more a medical source presents relevant
evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion. The
better an explanation a source provides for an opinion, the more weight
we will give that opinion. Furthermore, because nonexamining sources
have no examining or treating relationship with you, the weight we will
give their opinions will depend on the degree to which they provide
supporting explanations for their opinions. We will evaluate the degree
to which these opinions consider all of the pertinent evidence in your
claim, including opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with
the record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of
a specialist about medical issues related to his or her area of
specialty than to the opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring
to our attention, or of which we are aware, which tend to support or
contradict the opinion.
(e) Medical source opinions on issues reserved to the Secretary. (1)
Opinions that you are disabled. We are responsible for making the
determination or decision about whether you meet the statutory
definition of disability. In so doing, we review all of the medical
findings and other evidence that support a medical source's statement
that you are disabled. A statement by a medical source that you are
``disabled'' or ``unable to work'' does not mean that we will determine
that you are disabled.
(2) Other opinions on issues reserved to the Secretary. We use
medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of your impairment(s).
Although we consider opinions from treating and examining sources on
issues such as whether your impairment(s) meets or equals the
requirements of any impairment(s) in the Listing of Impairments in
appendix 1 of this subpart, your residual functional capacity (see
Secs. 404.1545 and 404.1546), or the application of vocational factors,
the final responsibility for deciding these issues is reserved to the
Secretary. We will not give any special significance to the source of
the opinion on these issues.
(f) Opinions of nonexamining medical and psychological consultants
and other nonexamining physicians and psychologists. We consider all
evidence from nonexamining physicians and psychologists to be opinion
evidence. When we consider the opinions of nonexamining sources on the
nature and severity of your impairments, we apply the rules set forth in
paragraphs (a) through (e)
[[Page 357]]
of this section. In addition, the following rules apply to State agency
medical and psychological consultants, and to medical advisors we
consult in connection with administrative law judge hearings and Appeals
Council review.
(1) At the initial and reconsideration steps in the administrative
review process, except in disability hearings, State agency medical and
psychological consultants are members of the teams that make the
determinations of disability. A State agency medical or psychological
consultant will consider the evidence in your case record and make
findings of fact about the medical issues, including, but not limited
to, the existence and severity of your impairment(s), the existence and
severity of your symptoms, whether your impairment(s) meets or equals
the requirements for any impairment listed in appendix 1 to this
subpart, and your residual functional capacity. These administrative
findings of fact are based on the evidence in your case record but are
not themselves evidence at these steps.
(2) Administrative law judges are responsible for reviewing the
evidence and making findings of fact and conclusions of law.
Administrative law judges are not bound by any findings made by State
agency medical or psychological consultants. However, these findings are
considered at the hearing level. See Sec. 404.1512(b)(6). When
administrative law judges consider these findings, they will evaluate
them using the rules set forth in paragraphs (a) through (e) of this
section. Also, administrative law judges may ask for and consider the
opinions of medical advisors on the nature and severity of your
impairment(s) and whether your impairment(s) equals the requirements of
any listed impairment in appendix 1 to this subpart.
(3) When the Appeals Council makes a decision, it will follow the
same rules for considering opinion evidence as administrative law judges
follow.
[56 FR 36960, Aug. 1, 1991]
Sec. 404.1528 Symptoms, signs, and laboratory findings.
Medical findings consist of symptoms, signs, and laboratory
findings:
(a) Symptoms are your own description of your physical or mental
impairment. Your statements alone are not enough to establish that there
is a physical or mental impairment.
(b) Signs are anatomical, physiological, or psychological
abnormalities which can be observed, apart from your statements
(symptoms). Signs must be shown by medically acceptable clinical
diagnostic techniques. Pyschiatric signs are medically demonstrable
phenomena which indicate specific abnormalities of behavior, affect,
thought, memory, orientation and contact with reality. They must also be
shown by observable facts that can be medically described and evaluated.
(c) Laboratory findings are anatomical, physiological, or
psychological phenomena which can be shown by the use of medically
acceptable laboratory diagnostic techniques. Some of these diagnostic
techniques include chemical tests, electrophysiological studies
(electrocardiogram, electroencephalogram, etc.), roentgenological
studies (X-rays), and psychological tests.
Sec. 404.1529 How we evaluate symptoms, including pain.
(a) General. In determining whether you are disabled, we consider
all your symptoms, including pain, and the extent to which your symptoms
can reasonably be accepted as consistent with the objective medical
evidence and other evidence. By objective medical evidence, we mean
medical signs and laboratory findings as defined in Sec. 404.1528 (b)
and (c). By other evidence, we mean the kinds of evidence described in
Secs. 404.1512(b) (2) through (6) and 404.1513(b) (1), (4), and (5) and
(e). 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. 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
[[Page 358]]
daily living and your ability to work. However, statements about your
pain or other symptoms will not alone establish that you are disabled;
there must be medical signs and laboratory findings which show that you
have a medical impairment(s) which could reasonably be expected to
produce the pain or other symptoms alleged and which, when considered
with all of the other evidence (including statements about the intensity
and persistence of your pain or other symptoms which may reasonably be
accepted as consistent with the medical signs and laboratory findings),
would lead to a conclusion that you are disabled. In evaluating the
intensity and persistence of your symptoms, including pain, we will
consider all of the available evidence, including your medical history,
the medical signs and laboratory findings and statements about how your
symptoms affect you. (Section 404.1527 explains how we consider opinions
of your treating source and other medical opinions on the existence and
severity of your symptoms, such as pain.) 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.
(b) Need for medically determinable impairment that could reasonably
be expected to produce your symptoms, such as pain. Your symptoms, such
as pain, fatigue, shortness of breath, weakness, or nervousness, will
not be found to affect your ability to do basic work activities unless
medical signs or laboratory findings show that a medically determinable
impairment(s) is present. Medical signs and laboratory findings,
established by medically acceptable clinical or laboratory diagnostic
techniques, must show the existence of a medical impairment(s) which
results from anatomical, physiological, or psychological abnormalities
and which could reasonably be expected to produce the pain or other
symptoms alleged. At the initial or reconsideration step in the
administrative review process (except in disability hearings), a State
agency medical or psychological consultant (or other medical or
psychological consultant designated by the Secretary) directly
participates in determining whether your medically determinable
impairment(s) could reasonably be expected to produce your alleged
symptoms. In the disability hearing process, a medical or psychological
consultant may provide an advisory assessment to assist a disability
hearing officer in determining whether your impairment(s) could
reasonably be expected to produce your alleged symptoms. At the
administrative law judge hearing or Appeals Council level, the
administrative law judge or the Appeals Council may ask for and consider
the opinion of a medical advisor concerning whether your impairment(s)
could reasonably be expected to produce your alleged symptoms. The
finding that your impairment(s) could reasonably be expected to produce
your pain or other symptoms does not involve a determination as to the
intensity, persistence, or functionally limiting effects of your
symptoms. We will develop evidence regarding the possibility of a
medically determinable mental impairment when we have information to
suggest that such an impairment exists, and you allege pain or other
symptoms but the medical signs and laboratory findings do not
substantiate any physical impairment(s) capable of producing the pain or
other symptoms.
(c) Evaluating the intensity and persistence of your symptoms, such
as pain, and determining the extent to which your symptoms limit your
capacity for work--(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. In
evaluating the intensity and persistence of your symptoms, we consider
all of the available evidence, including your medical history, the
medical signs and laboratory findings, and statements from you, your
treating or examining physician or psychologist, or other persons about
how your symptoms affect you. We also consider the medical opinions of
your treating
[[Page 359]]
source and other medical opinions as explained in Sec. 404.1527.
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, 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) Consideration of objective medical evidence. Objective medical
evidence is evidence obtained from the application of medically
acceptable clinical and laboratory diagnostic techniques, such as
evidence of reduced joint motion, muscle spasm, sensory deficit or motor
disruption. 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. We must always
attempt to obtain objective medical evidence and, when it is obtained,
we will consider it in reaching a conclusion as to whether you are
disabled. However, we will not reject your statements about the
intensity and persistence of your pain or other symptoms or about the
effect your symptoms have on your ability to work solely because the
available objective medical evidence does not substantiate your
statements.
(3) Consideration of other evidence. Since symptoms sometimes
suggest a greater severity of impairment than can be shown by objective
medical evidence alone, we will carefully consider any other information
you may submit about your symptoms. The information that you, your
treating or examining physician or psychologist, or other persons
provide about your pain or other symptoms (e.g., what may precipitate or
aggravate your symptoms, what medications, treatments or other methods
you use to alleviate them, and how the symptoms may affect your pattern
of daily living) is also an important indicator of the intensity and
persistence of your symptoms. Because symptoms, such as pain, are
subjective and difficult to quantify, any symptom-related functional
limitations and restrictions which you, your treating or examining
physician or psychologist, or other persons report, which can reasonably
be accepted as consistent with the objective medical evidence and other
evidence, will be taken into account as explained in paragraph (c)(4) of
this section in reaching a conclusion as to whether you are disabled. We
will consider all of the evidence presented, including information about
your prior work record, your statements about your symptoms, evidence
submitted by your treating, examining or consulting physician or
psychologist, and observations by our employees and other persons.
Section 404.1527 explains in detail how we consider and weigh treating
source and other medical opinions about the nature and severity of your
impairment(s) and any related symptoms, such as pain. Factors relevant
to your symptoms, such as pain, which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain
or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other
symptoms;
(v) Treatment, other than medication, you receive or have received
for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.
(4) How we determine the extent to which symptoms, such as pain,
affect your capacity to perform basic work activities. In determining
the extent to which your symptoms, such as pain, affect your capacity to
perform basic work activities, we consider all of the available evidence
described in paragraphs (c)(1) through (c)(3) of this section. We will
consider your statements about the intensity, persistence, and limiting
effects of your symptoms, and
[[Page 360]]
we will evaluate your statements in relation to the objective medical
evidence and other evidence, in reaching a conclusion as to whether you
are disabled. We will consider whether there are any inconsistencies in
the evidence and the extent to which there are any conflicts between
your statements and the rest of the evidence, including your medical
history, the medical signs and laboratory findings, and statements by
your treating or examining physician or psychologist or other persons
about how your symptoms affect you. Your symptoms, including pain, will
be determined to diminish your capacity for basic work activities 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) Consideration of symptoms in the disability determination
process. We follow a set order of steps to determine whether you are
disabled. If you are not doing substantial gainful activity, we consider
your symptoms, such as pain, to evaluate whether you have a severe
physical or mental impairment(s), and at each of the remaining steps in
the process. Sections 404.1520 and 404.1520a explain this process in
detail. We also consider your symptoms, such as pain, at the appropriate
steps in our review when we consider whether your disability continues.
Sections 404.1579 and 404.1594 explain the procedure we follow in
reviewing whether your disability continues.
(1) Need to establish a severe medically determinable impairment(s).
Your symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness, are considered in making a determination as to whether your
impairment or combination of impairment(s) is severe. (See
Sec. 404.1520(c).)
(2) Decision whether the Listing of Impairments is met. Some listed
impairment(s) include symptoms, such as pain, as criteria. Section
404.1525(f) explains how we consider your symptoms when your symptoms
are included as criteria for a listed impairment.
(3) Decision whether the Listing of Impairments is equaled. If your
impairment is not the same as a listed impairment, we must determine
whether your impairment(s) is medically equivalent to a listed
impairment. Section 404.1526 explains how we make this determination.
Under Sec. 404.1526(b), we will consider equivalence based on medical
evidence only. In considering whether your symptoms, signs, and
laboratory findings are medically equal to the symptoms, signs, and
laboratory findings of a listed impairment, we will look to see whether
your symptoms, signs, and laboratory findings are at least equal in
severity to the listed criteria. However, we will not substitute your
allegations of pain or other symptoms for a missing or deficient sign or
laboratory finding to raise the severity of your impairment(s) to that
of a listed impairment. If the symptoms, signs, and laboratory findings
of your impairment(s) are equivalent in severity to those of a listed
impairment, we will find you disabled. If it does not, we will consider
the impact of your symptoms on your residual functional capacity. (See
paragraph (d)(4) of this section.)
(4) Impact of symptoms (including pain) on residual functional
capacity. 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 this subpart, we will consider the
impact of your impairment(s) and any related symptoms, including pain,
on your residual functional capacity. (See Sec. 404.1545.)
[56 FR 57941, Nov. 14, 1991]
Sec. 404.1530 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.
(b) When you do not follow prescribed treatment. If you do not
follow the prescribed treatment without a good reason, we will not find
you disabled or, if you are already receiving benefits, we will stop
paying you benefits.
(c) Acceptable reasons for failure to follow prescribed treatment.
We will consider your physical, mental, educational, and linguistic
limitations (including any lack of facility with the English language)
when determining if
[[Page 361]]
you have an acceptable reason for failure to follow prescribed
treatment. The following are examples of a good reason for not following
treatment:
(1) The specific medical treatment is contrary to the established
teaching and tenets of your religion.
(2) The prescribed treatment would be cataract surgery for one eye,
when there is an impairment of the other eye resulting in a severe loss
of vision and is not subject to improvement through treatment.
(3) Surgery was previously performed with unsuccessful results and
the same surgery is again being recommended for the same impairment.
(4) The treatment because of its magnitude (e.g. open heart
surgery), unusual nature (e.g., organ transplant), or other reason is
very risky for you; or
(5) The treatment involves amputation of an extremity, or a major
part of an extremity.
[45 FR 55584, Aug. 20, 1980, as amended at 59 FR 1635, Jan. 12, 1994]
Sec. 404.1535 How we will determine whether your drug addiction or
alcoholism is a contributing factor material to the
determination of disability.
(a) General. If we find that you are disabled and have medical
evidence of your drug addiction or alcoholism, we must determine whether
your drug addiction or alcoholism is a contributing factor material to
the determination of disability.
(b) Process we will follow when we have medical evidence of your
drug addiction or alcoholism. (1) The key factor we will examine in
determining whether drug addiction or alcoholism is a contributing
factor material to the determination of disability is whether we would
still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of your
current physical and mental limitations, upon which we based our current
disability determination, would remain if you stopped using drugs or
alcohol and then determine whether any or all of your remaining
limitations would be disabling.
(i) If we determine that your remaining limitations would not be
disabling, we will find that your drug addiction or alcoholism is a
contributing factor material to the determination of disability.
(ii) If we determine that your remaining limitations are disabling,
you are disabled independent of your drug addiction or alcoholism and we
will find that your drug addiction or alcoholism is not a contributing
factor material to the determination of disability.
[60 FR 8147, Feb. 10, 1995]
Sec. 404.1536 Treatment required for individuals whose drug addiction
or alcoholism is a contributing factor material to the
determination of disability.
(a) If we determine that you are disabled and drug addiction or
alcoholism is a contributing factor material to the determination of
disability (as described in Sec. 404.1535), you must avail yourself of
appropriate treatment for your drug addiction or alcoholism at an
institution or facility approved by us when this treatment is available
and make progress in your treatment. Generally, you are not expected to
pay for this treatment. You will not be paid benefits for any month
after the month we have notified you in writing that--
(1) You did not comply with the terms, conditions and requirements
of the treatment which has been made available to you; or
(2) You did not avail yourself of the treatment after you had been
notified that it is available to you.
(b) If your benefits are suspended for failure to comply with
treatment requirements, your benefits can be reinstated in accordance
with the rules in Sec. 404.470.
[60 FR 8147, Feb. 10, 1995]
Sec. 404.1537 What we mean by appropriate treatment.
By appropriate treatment, we mean treatment for drug addiction or
alcoholism that serves the needs of the individual in the least
restrictive setting possible consistent with your treatment plan. These
settings range from outpatient counseling services through a variety of
residential treatment settings including acute detoxification,
[[Page 362]]
short-term intensive residential treatment, long-term therapeutic
residential treatment, and long-term recovery houses. Appropriate
treatment is determined with the involvement of a State licensed or
certified addiction professional on the basis of a detailed assessment
of the individual's presenting symptomatology, psychosocial profile, and
other relevant factors. This assessment may lead to a determination that
more than one treatment modality is appropriate for the individual. The
treatment will be provided or overseen by an approved institution or
facility. This treatment may include (but is not limited to)--
(a) Medical examination and medical management;
(b) Detoxification;
(c) Medication management to include substitution therapy (e.g.,
methadone);
(d) Psychiatric, psychological, psychosocial, vocational, or other
substance abuse counseling in a residential or outpatient treatment
setting; or
(e) Relapse prevention.
[60 FR 8148, Feb. 10, 1995]
Sec. 404.1538 What we mean by approved institutions or facilities.
Institutions or facilities that we may approve include--
(a) An institution or facility that furnishes medically recognized
treatment for drug addiction or alcoholism in conformity with applicable
Federal or State laws and regulations;
(b) An institution or facility used by or licensed by an appropriate
State agency which is authorized to refer persons for treatment of drug
addiction or alcoholism;
(c) State licensed or certified care providers;
(d) Programs accredited by the Commission on Accreditation for
Rehabilitation Facilities (CARF) and/or the Joint Commission for the
Accreditation of Healthcare Organizations (JCAHO) for the treatment of
drug addiction or alcoholism;
(e) Medicare or Medicaid certified care providers; or
(f) Nationally recognized self-help drug addiction or alcoholism
recovery programs (e.g., Alcoholics Anonymous or Narcotics Anonymous)
when participation in these programs is specifically prescribed by a
treatment professional at an institution or facility described in
paragraphs (a) through (e) of this section as part of an individual's
treatment plan.
[60 FR 8148, Feb. 10, 1995]
Sec. 404.1539 How we consider whether treatment is available.
Our determination about whether treatment is available to you for
your drug addiction or your alcoholism will depend upon--
(a) The capacity of an approved institution or facility to admit you
for appropriate treatment;
(b) The location of the approved institution or facility, or the
place where treatment, services or resources could be provided to you;
(c) The availability and cost of transportation for you to the place
of treatment;
(d) Your general health, including your ability to travel and
capacity to understand and follow the prescribed treatment;
(e) Your particular condition and circumstances; and
(f) The treatment that is prescribed for your drug addiction or
alcoholism.
[60 FR 8148, Feb. 10, 1995]
Sec. 404.1540 Evaluating compliance with the treatment requirements.
(a) General. Generally, we will consider information from the
treatment institution or facility to evaluate your compliance with your
treatment plan. The treatment institution or facility will:
(1) Monitor your attendance at and participation in treatment
sessions;
(2) Provide reports of the results of any clinical testing (such as,
hematological or urinalysis studies for individuals with drug addiction
and hematological studies and breath analysis for individuals with
alcoholism) when such tests are likely to yield important information;
(3) Provide observational reports from the treatment professionals
familiar with your individual case (subject to verification and Federal
confidentiality requirements); or
[[Page 363]]
(4) Provide their assessment or views on your noncompliance with
treatment requirements.
(b) Measuring progress. Generally, we will consider information from
the treatment institution or facility to evaluate your progress in
completing your treatment plan. Examples of milestones for measuring
your progress with the treatment which has been prescribed for your drug
addiction or alcoholism may include (but are not limited to)--
(1) Abstinence from drug or alcohol use (initial progress may
include significant reduction in use);
(2) Consistent attendance at and participation in treatment
sessions;
(3) Improved social functioning and levels of gainful activity;
(4) Participation in vocational rehabilitation activities; or
(5) Avoidance of criminal activity.
[60 FR 8148, Feb. 10, 1995]
Sec. 404.1541 Establishment and use of referral and monitoring
agencies.
We will contract with one or more agencies in each of the States,
Puerto Rico and the District of Columbia to provide services to
individuals whose disabilities are based on a determination that drug
addiction or alcoholism is a contributing factor material to the
determination of disability (as described in Sec. 404.1535) and to
submit information to us which we will use to make decisions about these
individuals' benefits. These agencies will be known as referral and
monitoring agencies. Their duties and responsibilities include (but are
not limited to)--
(a) Identifying appropriate treatment placements for individuals we
refer to them;
(b) Referring these individuals for treatment;
(c) Monitoring the compliance and progress with the appropriate
treatment of these individuals; and
(d) Promptly reporting to us any individual's failure to comply with
treatment requirements as well as failure to achieve progress through
the treatment.
[60 FR 8148, Feb. 10, 1995]
Residual Functional Capacity
Sec. 404.1545 Your residual functional capacity.
(a) General. Your impairment(s), and any related symptoms, such as
pain, may cause physical and mental limitations that affect what you can
do in a work setting. Your residual functional capacity is what you can
still do despite your limitations. If you have more than one impairment,
we will consider all of your impairment(s) of which we are aware. We
will consider your ability to meet certain demands of jobs, such as
physical demands, mental demands, sensory requirements, and other
functions, as described in paragraphs (b), (c), and (d) of this section.
Residual functional capacity is an assessment based upon all of the
relevant evidence. It may include descriptions (even your own) of
limitations that go beyond the symptoms, such as pain, that are
important in the diagnosis and treatment of your medical condition.
Observations by your treating or examining physicians or psychologists,
your family, neighbors, friends, or other persons, of your limitations,
in addition to those observations usually made during formal medical
examinations, may also be used. These descriptions and observations,
when used, must be considered along with your medical records to enable
us to decide to what extent your impairment(s) keeps you from performing
particular work activities. This assessment of your remaining capacity
for work is not a decision on whether you are disabled, but is used as
the basis for determining the particular types of work you may be able
to do despite your impairment(s). Then, using the guidelines in
Secs. 404.1560 through 404.1569a, your vocational background is
considered along with your residual functional capacity in arriving at a
disability determination or decision. In deciding whether your
disability continues or ends, the residual functional capacity
assessment may also be used to determine whether any medical improvement
you have experienced is related to your ability to work as discussed in
Sec. 404.1594.
(b) Physical abilities. When we assess your physical abilities, we
first assess
[[Page 364]]
the nature and extent of your physical limitations and then determine
your residual functional capacity for work activity on a regular and
continuing basis. A limited ability to perform certain physical demands
of work activity, such as sitting, standing, walking, lifting, carrying,
pushing, pulling, or other physical functions (including manipulative or
postural functions, such as reaching, handling, stooping or crouching),
may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
and then determine your residual functional capacity for work activity
on a regular and continuing basis. A limited ability to carry out
certain mental activities, such as limitations in understanding,
remembering, and carrying out instructions, and in responding
appropriately to supervision, co-workers, and work pressures in a work
setting, may reduce your ability to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s)
which impose environmental restrictions, may cause limitations and
restrictions which affect other work-related abilities. If you have this
type of impairment(s), we consider any resulting limitations and
restrictions which may reduce your ability to do past work and other
work in deciding your residual functional capacity.
(e) Total limiting effects. When you have a severe impairment(s),
but your symptoms, signs, and laboratory findings do not meet or equal
those of a listed impairment in appendix 1 of this subpart, we will
consider the limiting effects of all your impairment(s), even those that
are not severe, in determining your residual functional capacity. Pain
or other symptoms may cause a limitation of function beyond that which
can be determined on the basis of the anatomical, physiological or
psychological abnormalities considered alone; e.g., someone with a low
back disorder may be fully capable of the physical demands consistent
with those of sustained medium work activity, but another person with
the same disorder, because of pain, may not be capable of more than the
physical demands consistent with those of light work activity on a
sustained basis. In assessing the total limiting effects of your
impairment(s) and any related symptoms, we will consider all of the
medical and nonmedical evidence, including the information described in
Sec. 404.1529(c).
[56 FR 57943, Nov, 14, 1991]
Sec. 404.1546 Responsibility for assessing and determining residual
functional capacity.
The State agency staff medical or psychological consultants or other
medical or psychological consultants designated by the Secretary are
responsible for ensuring that the State agency makes a decision about
your residual functional capacity. In cases where the State agency makes
the disability determination, a State agency staff medical or
psychological consultant must assess residual functional capacity where
it is required. This assessment is based on all of the evidence we have,
including any statements regarding what you can still do that have been
provided by treating or examining physicians, consultative physicians,
or any other medical or psychological consultant designated by the
Secretary. See Sec. 404.1545. For cases in the disability hearing
process, the responsibility for deciding your residual functional
capacity rests with either the disability hearing officer or, if the
disability hearing officer's reconsidered determination is changed under
Sec. 404.918, with the Director of the Office of Disability Hearings or
his or her delegate. For cases at the Administrative Law Judge hearing
or Appeals Council level, the responsibility for deciding your residual
functional capacity rests with the Administrative Law Judge or Appeals
Council.
[56 FR 36962, Aug. 1, 1991]
[[Page 365]]
Vocational Considerations
Sec. 404.1560 When your vocational background will be considered.
(a) General. If you are applying for a period of disability, or
disability insurance benefits as a disabled worker, or child's insurance
benefits based on disability which began before age 22, or widow's or
widower's benefits based on disability for months after December 1990,
and we cannot decide whether you are disabled on medical evidence alone,
we will consider your residual functional capacity together with your
vocational background.
(b) Past relevant work. We will first compare your residual
functional capacity with the physical and mental demands of the kind of
work you have done in the past. If you still have the residual
functional capacity to do your past relevant work, we will find that you
can still do your past work, and we will determine that you are not
disabled, without considering your vocational factors of age, education,
and work experience.
(c) Other work. If we find that you can no longer do the kind of
work you have done in the past, we will then consider your residual
functional capacity together with your vocational factors of age,
education, and work experience to determine whether you can do other
work. By other work we mean jobs that exist in significant numbers in
the national economy.
[55 FR 11011, Mar. 26, 1990, as amended at 57 FR 30120, July 8, 1992]
Sec. 404.1561 Your ability to do work depends upon your residual
functional capacity.
If you can do your previous work (your usual work or other
applicable past work), we will determine that you are not disabled.
However, if your residual functional capacity is not enough to enable
you to do any of your previous work, we must still decide if you can do
any other work. To do this, we consider your residual functional
capacity, and your age, education, and work experience. Any work (jobs)
that you can do must exist in significant numbers in the national
economy (either in the region where you live or in several regions of
the country). Sections 404.1563 through 404.1565 explain how we evaluate
your age, education, and work experience when we are deciding whether or
not you are able to do other work.
Sec. 404.1562 If you have done only arduous unskilled physical labor.
If you have only a marginal education and work experience of 35
years or more during which you did arduous unskilled physical labor, and
you are not working and are no longer able to do this kind of work
because of a severe impairment(s), we will consider you unable to do
lighter work, and therefore, disabled. However, if you are working or
have worked despite your impairment(s) (except where the work is
sporadic or is not medically advisable), we will review all the facts in
your case, and we may find that you are not disabled. In addition, we
will consider that you are not disabled if the evidence shows that you
have training or past work experience which enables you to do
substantial gainful activity in another occupation with your impairment,
either on a full-time or a reasonably regular part-time basis.
Example: B is a 60-year-old miner with a fourth grade education who
has a life-long history of arduous physical labor. B says that he is
disabled because of arthritis of the spine, hips, and knees, and other
impairments. Medical evidence shows a combination of impairments and
establishes that these impairments prevent B from performing his usual
work or any other type of arduous physical labor. His vocational
background does not show that he has skills or capabilities needed to do
lighter work which would be readily transferable to another work
setting. Under these circumstances, we will find that B is disabled.
Sec. 404.1563 Your age as a vocational factor.
(a) General. Age refers to how old you are (your chronological age)
and the extent to which your age affects your ability to adapt to a new
work situation and to do work in competition with others. However, we do
not determine disability on your age alone. We must also consider your
residual functional capacity, education, and work experience. If you are
unemployed because of your age and you can still do a significant number
of jobs which
[[Page 366]]
exist in the national economy, we will find that you are not disabled.
We explain in detail how we consider your age as a vocational factor in
appendix 2. However, we will not apply these age categories mechanically
in a borderline situation.
(b) Younger person. If you are under age 50, we generally do not
consider that your age will seriously affect your ability to adapt to a
new work situation. In some circumstances, however, we consider age 45 a
handicap in adapting to a new work setting (see Rule 201.17 in appendix
2).
(c) Person approaching advanced age. If you are closely approaching
advanced age (50-54), we will consider that your age, along with a
severe impairment and limited work experience, may seriously affect your
ability to adjust to a significant number of jobs in the national
economy.
(d) Person of advanced age. We consider that advanced age (55 or
over) is the point where age significantly affects a person's ability to
do substantial gainful activity. If you are severely impaired and of
advanced age and you cannot do medium work (see Sec. 404.1567(c)), you
may not be able to work unless you have skills that can be used in
(transferred to) less demanding jobs which exist in significant numbers
in the national economy. If you are close to retirement age (60-64) and
have a severe impairment, we will not consider you able to adjust to
sedentary or light work unless you have skills which are highly
marketable.
(e) Information about your age. We will usually not ask you to prove
your age. However, if we need to know your exact age to determine
whether you get disability benefits or if the amount of your benefit
will be affected, we will ask you for evidence of your age.
Sec. 404.1564 Your education as a vocational factor.
(a) General. Education is primarily used to mean formal schooling or
other training which contributes to your ability to meet vocational
requirements, for example, reasoning ability, communication skills, and
arithmetical ability. However, if you do not have formal schooling, this
does not necessarily mean that you are uneducated or lack these
abilities. Past work experience and the kinds of responsibilities you
had when you were working may show that you have intellectual abilities,
although you may have little formal education. Your daily activities,
hobbies, or the results of testing may also show that you have
significant intellectual ability that can be used to work.
(b) How we evaluate your education. The importance of your
educational background may depend upon how much time has passed between
the completion of your formal education and the beginning of your
physical or mental impairment(s) and by what you have done with your
education in a work or other setting. Formal education that you
completed many years before your impairment began, or unused skills and
knowledge that were a part of your formal education, may no longer be
useful or meaningful in terms of your ability to work. Therefore, the
numerical grade level that you completed in school may not represent
your actual educational abilities. These may be higher or lower.
However, if there is no other evidence to contradict it, we will use
your numerical grade level to determine your educational abilities. The
term education also includes how well you are able to communicate in
English since this ability is often acquired or improved by education.
In evaluating your educational level, we use the following categories:
(1) Illiteracy. Illiteracy means the inability to read or write. We
consider someone illiterate if the person cannot read or write a simple
message such as instructions or inventory lists even though the person
can sign his or her name. Generally, an illiterate person has had little
or no formal schooling.
(2) Marginal education. Marginal education means ability in
reasoning, arithmetic, and language skills which are needed to do
simple, unskilled types of jobs. We generally consider that formal
schooling at a 6th grade level or less is a marginal education.
(3) Limited education. Limited education means ability in reasoning,
arithmetic, and language skills, but not enough to allow a person with
these educational qualifications to do
[[Page 367]]
most of the more complex job duties needed in semi-skilled or skilled
jobs. We generally consider that a 7th grade through the 11th grade
level of formal education is a limited education.
(4) High school education and above. High school education and above
means abilities in reasoning, arithmetic, and language skills acquired
through formal schooling at a 12th grade level or above. We generally
consider that someone with these educational abilities can do semi-
skilled through skilled work.
(5) Inability to communicate in English. Since the ability to speak,
read and understand English is generally learned or increased at school,
we may consider this an educational factor. Because English is the
dominant language of the country, it may be difficult for someone who
doesn't speak and understand English to do a job, regardless of the
amount of education the person may have in another language. Therefore,
we consider a person's ability to communicate in English when we
evaluate what work, if any, he or she can do. It generally doesn't
matter what other language a person may be fluent in.
(6) Information about your education. We will ask you how long you
attended school and whether you are able to speak, understand, read and
write in English and do at least simple calculations in arithmetic. We
will also consider other information about how much formal or informal
education you may have had through your previous work, community
projects, hobbies, and any other activities which might help you to
work.
Sec. 404.1565 Your work experience as a vocational factor.
(a) General. Work experience means skills and abilities you have
acquired through work you have done which show the type of work you may
be expected to do. Work you have already been able to do shows the kind
of work that you may be expected to do. We consider that your work
experience applies when it was done within the last 15 years, lasted
long enough for you to learn to do it, and was substantial gainful
activity. We do not usually consider that work you did 15 years or more
before the time we are deciding whether you are disabled (or when the
disability insured status requirement was last met, if earlier) applies.
A gradual change occurs in most jobs so that after 15 years it is no
longer realistic to expect that skills and abilities acquired in a job
done then continue to apply. The 15-year guide is intended to insure
that remote work experience is not currently applied. If you have no
work experience or worked only ``off-and-on'' or for brief periods of
time during the 15-year period, we generally consider that these do not
apply. If you have acquired skills through your past work, we consider
you to have these work skills unless you cannot use them in other
skilled or semi-skilled work that you can now do. If you cannot use your
skills in other skilled or semi-skilled work, we will consider your work
background the same as unskilled. However, even if you have no work
experience, we may consider that you are able to do unskilled work
because it requires little or no judgment and can be learned in a short
period of time.
(b) Information about your work. Under certain circumstances, we
will ask you about the work you have done in the past. If you cannot
give us all of the information we need, we will try, with your
permission, to get it from your employer or other person who knows about
your work, such as a member of your family or a co-worker. When we need
to consider your work experience to decide whether you are able to do
work that is different from what you have done in the past, we will ask
you to tell us about all of the jobs you have had in the last 15 years.
You must tell us the dates you worked, all of the duties you did, and
any tools, machinery, and equipment you used. We will need to know about
the amount of walking, standing, sitting, lifting and carrying you did
during the work day, as well as any other physical or mental duties of
your job. If all of your work in the past 15 years has been arduous and
unskilled, and you have very little education, we will ask you to tell
us about all of your work from the time you first began working. This
information could help you to get disability benefits.
[[Page 368]]
Sec. 404.1566 Work which exists in the national economy.
(a) General. We consider that work exists in the national economy
when it exists in significant numbers either in the region where you
live or in several other regions of the country. It does not matter
whether--
(1) Work exists in the immediate area in which you live;
(2) A specific job vacancy exists for you; or
(3) You would be hired if you applied for work.
(b) How we determine the existence of work. Work exists in the
national economy when there is a significant number of jobs (in one or
more occupations) having requirements which you are able to meet with
your physical or mental abilities and vocational qualifications.
Isolated jobs that exist only in very limited numbers in relatively few
locations outside of the region where you live are not considered ``work
which exists in the national economy''. We will not deny you disability
benefits on the basis of the existence of these kinds of jobs. If work
that you can do does not exist in the national economy, we will
determine that you are disabled. However, if work that you can do does
exist in the national economy, we will determine that you are not
disabled.
(c) Inability to obtain work. We will determine that you are not
disabled if your residual functional capacity and vocational abilities
make it possible for you to do work which exists in the national
economy, but you remain unemployed because of--
(1) Your inability to get work;
(2) Lack of work in your local area;
(3) The hiring practices of employers;
(4) Technological changes in the industry in which you have worked;
(5) Cyclical economic conditions;
(6) No job openings for you;
(7) You would not actually be hired to do work you could otherwise
do; or
(8) You do not wish to do a particular type of work.
(d) Administrative notice of job data. When we determine that
unskilled, sedentary, light, and medium jobs exist in the national
economy (in significant numbers either in the region where you live or
in several regions of the country), we will take administrative notice
of reliable job information available from various governmental and
other publications. For example, we will take notice of--
(1) Dictionary of Occupational Titles, published by the Department
of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security
Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor
Statistics.
(e) Use of vocational experts and other specialists. If the issue in
determining whether you are disabled is whether your work skills can be
used in other work and the specific occupations in which they can be
used, or there is a similarly complex issue, we may use the services of
a vocational expert or other specialist. We will decide whether to use a
vocational expert or other specialist.
Sec. 404.1567 Physical exertion requirements.
To determine the physical exertion requirements of work in the
national economy, we classify jobs as sedentary, light, medium, heavy,
and very heavy. These terms have the same meaning as they have in the
Dictionary of Occupational Titles, published by the Department of Labor.
In making disability determinations under this subpart, we use the
following definitions:
(a) Sedentary work. Sedentary work involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other
sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be
[[Page 369]]
very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can
do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more than 50 pounds
at a time with frequent lifting or carrying of objects weighing up to 25
pounds. If someone can do medium work, we determine that he or she can
also do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more than 100 pounds
at a time with frequent lifting or carrying of objects weighing up to 50
pounds. If someone can do heavy work, we determine that he or she can
also do medium, light, and sedentary work.
(e) Very heavy work. Very heavy work involves lifting objects
weighing more than 100 pounds at a time with frequent lifting or
carrying of objects weighing 50 pounds or more. If someone can do very
heavy work, we determine that he or she can also do heavy, medium, light
and sedentary work.
Sec. 404.1568 Skill requirements.
In order to evaluate your skills and to help determine the existence
in the national economy of work you are able to do, occupations are
classified as unskilled, semi-skilled, and skilled. In classifying these
occupations, we use materials published by the Department of Labor. When
we make disability determinations under this subpart, we use the
following definitions:
(a) Unskilled work. Unskilled work is work which needs little or no
judgment to do simple duties that can be learned on the job in a short
period of time. The job may or may not require considerable strength.
For example, we consider jobs unskilled if the primary work duties are
handling, feeding and offbearing (that is, placing or removing materials
from machines which are automatic or operated by others), or machine
tending, and a person can usually learn to do the job in 30 days, and
little specific vocational preparation and judgment are needed. A person
does not gain work skills by doing unskilled jobs.
(b) Semi-skilled work. Semi-skilled work is work which needs some
skills but does not require doing the more complex work duties. Semi-
skilled jobs may require alertness and close attention to watching
machine processes; or inspecting, testing or otherwise looking for
irregularities; or tending or guarding equipment, property, materials,
or persons against loss, damage or injury; or other types of activities
which are similarly less complex than skilled work, but more complex
than unskilled work. A job may be classified as semi-skilled where
coordination and dexterity are necessary, as when hands or feet must be
moved quickly to do repetitive tasks.
(c) Skilled work. Skilled work requires qualifications in which a
person uses judgment to determine the machine and manual operations to
be performed in order to obtain the proper form, quality, or quantity of
material to be produced. Skilled work may require laying out work,
estimating quality, determining the suitability and needed quantities of
materials, making precise measurements, reading blueprints or other
specifications, or making necessary computations or mechanical
adjustments to control or regulate the work. Other skilled jobs may
require dealing with people, facts, or figures or abstract ideas at a
high level of complexity.
(d) Skills that can be used in other work (transferability)--(1)
What we mean by transferable skills. We consider you to have skills that
can be used in other jobs, when the skilled or semi-skilled work
activities you did in past work can be used to meet the requirements of
skilled or semi-skilled work activities of other jobs or kinds of work.
This depends largely on the similarity of occupationally significant
work activities among different jobs.
(2) How we determine skills that can be transferred to other jobs.
Transferability is most probable and meaningful among jobs in which--
[[Page 370]]
(i) The same or a lesser degree of skill is required;
(ii) The same or similar tools and machines are used; and
(iii) The same or similar raw materials, products, processes, or
services are involved.
(3) Degrees of transferability. There are degrees of transferability
of skills ranging from very close similarities to remote and incidental
similarities among jobs. A complete similarity of all three factors is
not necessary for transferability. However, when skills are so
specialized or have been acquired in such an isolated vocational setting
(like many jobs in mining, agriculture, or fishing) that they are not
readily usable in other industries, jobs, and work settings, we consider
that they are not transferable.
Sec. 404.1569 Listing of Medical-Vocational Guidelines in appendix 2.
The Dictionary of Occupational Titles includes information about
jobs (classified by their exertional and skill requirements) that exist
in the national economy. Appendix 2 provides rules using this data
reflecting major functional and vocational patterns. We apply these
rules in cases where a person is not doing substantial gainful activity
and is prevented by a severe medically determinable impairment from
doing vocationally relevant past work. The rules in appendix 2 do not
cover all possible variations of factors. Also, as we explain in
Sec. 200.00 of appendix 2, we do not apply these rules if one of the
findings of fact about the person's vocational factors and residual
functional capacity is not the same as the corresponding criterion of a
rule. In these instances, we give full consideration to all relevant
facts in accordance with the definitions and discussions under
vocational considerations. However, if the findings of fact made about
all factors are the same as the rule, we use that rule to decide whether
a person is disabled.
Sec. 404.1569a Exertional and nonexertional limitations.
(a) General. Your impairment(s) and related symptoms, such as pain,
may cause limitations of function or restrictions which limit your
ability to meet certain demands of jobs. These limitations may be
exertional, nonexertional, or a combination of both. Limitations are
classified as exertional if they affect your ability to meet the
strength demands of jobs. The classification of a limitation as
exertional is related to the United States Department of Labor's
classification of jobs by various exertional levels (sedentary, light,
medium, heavy, and very heavy) in terms of the strength demands for
sitting, standing, walking, lifting, carrying, pushing, and pulling.
Sections 404.1567 and 404.1569 explain how we use the classification of
jobs by exertional levels (strength demands) which is contained in the
Dictionary of Occupational Titles published by the Department of Labor,
to determine the exertional requirements of work which exists in the
national economy. Limitations or restrictions which affect your ability
to meet the demands of jobs other than the strength demands, that is,
demands other than sitting, standing, walking, lifting, carrying,
pushing or pulling, are considered nonexertional. Sections 404.1520(f)
and 404.1594(f)(8) explain that if you can no longer do your past
relevant work because of a severe medically determinable impairment(s),
we must determine whether your impairment(s), when considered along with
your age, education, and work experience, prevents you from doing any
other work which exists in the national economy in order to decide
whether you are disabled (Sec. 404.1520(f)) or continue to be disabled
(Sec. 404.1594(f)(8)). Paragraphs (b), (c), and (d) of this section
explain how we apply the medical-vocational guidelines in appendix 2 of
this subpart in making this determination, depending on whether the
limitations or restrictions imposed by your impairment(s) and related
symptoms, such as pain, are exertional, nonexertional, or a combination
of both.
(b) Exertional limitations. When the limitations and restrictions
imposed by your impairment(s) and related symptoms, such as pain, affect
only your ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling), we consider
that you have only exertional
[[Page 371]]
limitations. When your impairment(s) and related symptoms only impose
exertional limitations and your specific vocational profile is listed in
a rule contained in appendix 2 of this subpart, we will directly apply
that rule to decide whether you are disabled.
(c) Nonexertional limitations. (1) When the limitations and
restrictions imposed by your impairment(s) and related symptoms, such as
pain, affect only your ability to meet the demands of jobs other than
the strength demands, we consider that you have only nonexertional
limitations or restrictions. Some examples of nonexertional limitations
or restrictions include the following:
(i) You have difficulty functioning because you are nervous,
anxious, or depressed;
(ii) You have difficulty maintaining attention or concentrating;
(iii) You have difficulty understanding or remembering detailed
instructions;
(iv) You have difficulty in seeing or hearing;
(v) You have difficulty tolerating some physical feature(s) of
certain work settings, e.g., you cannot tolerate dust or fumes; or
(vi) You have difficulty performing the manipulative or postural
functions of some work such as reaching, handling, stooping, climbing,
crawling, or crouching.
(2) If your impairment(s) and related symptoms, such as pain, only
affect your ability to perform the nonexertional aspects of work-related
activities, the rules in appendix 2 do not direct factual conclusions of
disabled or not disabled. The determination as to whether disability
exists will be based on the principles in the appropriate sections of
the regulations, giving consideration to the rules for specific case
situations in appendix 2.
(d) Combined exertional and nonexertional limitations. When the
limitations and restrictions imposed by your impairment(s) and related
symptoms, such as pain, affect your ability to meet both the strength
and demands of jobs other than the strength demands, we consider that
you have a combination of exertional and nonexertional limitations or
restrictions. If your impairment(s) and related symptoms, such as pain,
affect your ability to meet both the strength and demands of jobs other
than the strength demands, we will not directly apply the rules in
appendix 2 unless there is a rule that directs a conclusion that you are
disabled based upon your strength limitations; otherwise the rules
provide a framework to guide our decision.
[56 FR 57943, Nov, 14, 1991]
Substantial Gainful Activity
Sec. 404.1571 General.
The work that you have done during any period in which you believe
you are disabled may show that you are able to do work at the
substantial gainful activity level. If you are able to engage in
substantial gainful activity, we will find that you are not disabled.
(We explain the rules for persons who are statutorily blind in
Sec. 404.1584.) Even if the work you have done was not substantial
gainful activity, it may show that you are able to do more work than you
actually did. We will consider all of the medical and vocational
evidence in your file to decide whether or not you have the ability to
engage in substantial gainful activity.
Sec. 404.1572 What we mean by substantial gainful activity.
Substantial gainful activity is work activity that is both
substantial and gainful:
(a) Substantial work activity. Substantial work activity is work
activity that involves doing significant physical or mental activities.
Your work may be substantial even if it is done on a part-time basis or
if you do less, get paid less, or have less responsibility than when you
worked before.
(b) Gainful work activity. Gainful work activity is work activity
that you do for pay or profit. Work activity is gainful if it is the
kind of work usually done for pay or profit, whether or not a profit is
realized.
(c) Some other activities. Generally, we do not consider activities
like taking care of yourself, household tasks, hobbies, therapy, school
attendance, club
[[Page 372]]
activities, or social programs to be substantial gainful activity.
Sec. 404.1573 General information about work activity.
(a) The nature of your work. If your duties require use of your
experience, skills, supervision and responsibilities, or contribute
substantially to the operation of a business, this tends to show that
you have the ability to work at the substantial gainful activity level.
(b) How well you perform. We consider how well you do your work when
we determine whether or not you are doing substantial gainful activity.
If you do your work satisfactorily, this may show that you are working
at the substantial gainful activity level. If you are unable, because of
your impairments, to do ordinary or simple tasks satisfactorily without
more supervision or assistance than is usually given other people doing
similar work, this may show that you are not working at the substantial
gainful activity level. If you are doing work that involves minimal
duties that make little or no demands on you and that are of little or
no use to your employer, or to the operation of a business if you are
self-employed, this does not show that you are working at the
substantial gainful activity level.
(c) If your work is done under special conditions. Even though the
work you are doing takes into account your impairment, such as work done
in a sheltered workshop or as a patient in a hospital, it may still show
that you have the necessary skills and ability to work at the
substantial gainful activity level.
(d) If you are self-employed. Supervisory, managerial, advisory or
other significant personal services that you perform as a self-employed
individual may show that you are able to do substantial gainful
activity.
(e) Time spent in work. While the time you spend in work is
important, we will not decide whether or not you are doing substantial
gainful activity only on that basis. We will still evaluate the work to
decide whether it is substantial and gainful regardless of whether you
spend more time or less time at the job than workers who are not
impaired and who are doing similar work as a regular means of their
livelihood.
Sec. 404.1574 Evaluation guides if you are an employee.
(a) General. We use several guides to decide whether the work you
have done shows that you are able to do substantial gainful activity.
(1) Your earnings may show you have done substantial gainful
activity. The amount of your earnings from work you have done may show
that you have engaged in substantial gainful activity. Generally, if you
worked for substantial earnings, this will show that you are able to do
substantial gainful activity. On the other hand, the fact that your
earnings are not substantial will not necessarily show that you are not
able to do substantial gainful activity. We will generally consider work
that you are forced to stop after a short time because of your
impairment as an unsuccessful work attempt and your earnings from that
work will not show that you are able to do substantial gainful activity.
(2) We consider only the amounts you earn. We do not consider any
income not directly related to your productivity when we decide whether
you have done substantial gainful activity. If your earnings are being
subsidized, the amount of the subsidy is not counted when we determine
whether or not your work is substantial gainful activity. Thus, where
work is done under special conditions, we only consider the part of your
pay which you actually earn. For example, where a handicapped person
does simple tasks under close and continuous supervision, we would not
determine that the person worked at the substantial gainful activity
level only on the basis of the amount of pay. An employer may set a
specific amount as a subsidy after figuring the reasonable value of the
employee's services. If your work is subsidized and your employer does
not set the amount of the subsidy or does not adequately explain how the
subsidy was figured, we will investigate to see how much your work is
worth.
(3) If you are working in a sheltered or special environment. If you
are working in a sheltered workshop, you may or may not be earning the
amounts you
[[Page 373]]
are being paid. The fact that the sheltered workshop or similar facility
is operating at a loss or is receiving some charitable contributions or
governmental aid does not establish that you are not earning all you are
being paid. Since persons in military service being treated for severe
impairments usually continue to receive full pay, we evaluate work
activity in a therapy program or while on limited duty by comparing it
with similar work in the civilian work force or on the basis of
reasonable worth of the work, rather than on the actual amount of the
earnings.
(b) Earnings guidelines. (1) General. If you are an employee, we
first consider the criteria in paragraph (a) of this section and
Sec. 404.1576, and then the guides in paragraphs (b) (2), (3), (4), (5),
and (6) of this section.
(2) Earnings that will ordinarily show that you have engaged in
substantial gainful activity. We will consider that your earnings from
your work activities as an employee show that you have engaged in
substantial gainful activity if--
(i) Your earnings averaged more than $200 a month in calendar years
prior to 1976;
(ii) Your earnings averaged more than $230 a month in calendar year
1976;
(iii) Your earnings averaged more than $240 a month in calendar year
1977;
(iv) Your earnings averaged more than $260 a month in calendar year
1978;
(v) Your earnings averaged more than $280 a month in calendar year
1979;
(vi) Your earnings averaged more than $300 a month in calendar years
after 1979 and before 1990; or
(vii) Your earnings averaged more than $500 a month in calendar
years after 1989.
(3) Earnings that will ordinarily show that you have not engaged in
substantial gainful activity. We will generally consider that the
earnings from your work as an employee will show that you have not
engaged in substantial gainful activity if--
(i) Your earnings averaged less than $130 a month in calendar years
before 1976;
(ii) Your earnings averaged less than $150 a month in calendar year
1976;
(iii) Your earnings averaged less than $160 a month in calendar year
1977;
(iv) Your earnings averaged less than $170 a month in calendar year
1978;
(v) Your earnings averaged less than $180 a month in calendar year
1979;
(vi) Your earnings averaged less than $190 a month in calendar years
after 1979 and before 1990; or
(vii) Your earnings averaged less than $300 a month in calendar
years after 1989.
(4) If you work in a sheltered workshop. If you are working in a
sheltered workshop or a comparable facility especially set up for
severely impaired persons, your earnings and activities will ordinarily
establish that you have not done substantial gainful activity if--
(i) Your average earnings are not greater than $200 a month in
calendar years prior to 1976;
(ii) Your average earnings are not greater than $230 a month in
calendar year 1976;
(iii) Your average earnings are not greater than $240 a month in
calendar year 1977;
(iv) Your average earnings are not greater than $260 a month in
calendar year 1978;
(v) Your average earnings are not greater than $280 a month in
calendar year 1979;
(vi) Your average earnings are not greater than $300 a month in
calendar years after 1979 and before 1990; or
(vii) Your average earnings are not greater than $500 a month in
calendar years after 1989.
(5) If there is evidence showing that you may have done substantial
gainful activity. If there is evidence showing that you may have done
substantial gainful activity, we will apply the criteria in paragraph
(b)(6) of this section regarding comparability and value of services.
(6) Earnings that are not high or low enough to show whether you
engaged in substantial gainful activity. If your earnings, on the
average, are between the amounts shown in paragraphs (b)(2) and (3) of
this section, we will generally consider other information in addition
to your earnings, such as whether--
[[Page 374]]
(i) Your work is comparable to that of unimpaired people in your
community who are doing the same or similar occupations as their means
of livelihood, taking into account the time, energy, skill, and
responsibility involved in the work, or
(ii) Your work, although significantly less than that done by
unimpaired people, is clearly worth the amounts shown in paragraph
(b)(2) of this section, according to pay scales in your community.
[46 FR 4869, Jan. 19, 1981, as amended at 48 FR 21936, May 16, 1983; 49
FR 22272, May 29, 1984; 54 FR 53605, Dec. 29, 1989]
Sec. 404.1575 Evaluation guides if you are self-employed.
(a) If you are a self-employed person. We will consider your
activities and their value to your business to decide whether you have
engaged in substantial gainful activity if you are self-employed. We
will not consider your income alone since the amount of income you
actually receive may depend upon a number of different factors like
capital investment, profit sharing agreements, etc. We will generally
consider work that you are forced to stop after a short time because of
your impairment as an unsuccessful work attempt and your income from
that work will not show that you are able to do substantial gainful
activity. We will evaluate your work activity on the value to the
business of your services regardless of whether you receive an immediate
income for your services. We consider that you have engaged in
substantial gainful activity if--
(1) Your work activity, in terms of factors such as hours, skills,
energy output, efficiency, duties, and responsibilities, is comparable
to that of unimpaired individuals in your community who are in the same
or similar businesses as their means of livelihood;
(2) Your work activity, although not comparable to that of
unimpaired individuals, is clearly worth the amount shown in
Sec. 404.1574(b)(2) when considered in terms of its value to the
business, or when compared to the salary that an owner would pay to an
employee to do the work you are doing; or
(3) You render services that are significant to the operation of the
business and receive a substantial income from the business.
(b) What we mean by significant services. (1) If you are not a farm
landlord and you operate a business entirely by yourself, any services
that you render are significant to the business. If your business
involves the services of more than one person, we will consider you to
be rendering significant services if you contribute more than half the
total time required for the management of the business, or you render
management services for more than 45 hours a month regardless of the
total management time required by the business.
(2) If you are a farm landlord, that is, you rent farm land to
another, we will consider you to be rendering significant services if
you materially particpate in the production or the management of the
production of the things raised on the rented farm. (See Sec. 404.1082
of this chapter for an explanation of material participation.) If you
were given social security earnings credits because you materially
participated in the activities of the farm and you continue these same
activities, we will consider you to be rendering significant services.
(c) What we mean by substantial income. After your normal business
expenses are deducted from your gross income to determine net income, we
will deduct the reasonable value of any unpaid help, any soil bank
payments that were included as farm income, and impairment-related work
expenses described in Sec. 404.1576 that have not been deducted in
determining your net earnings from self-employment. We will consider the
resulting amount of income from the business to be substantial if--
(1) It averages more than the amounts described in
Sec. 404.1574(b)(2); or
(2) It averages less than the amounts described in
Sec. 404.1574(b)(2) but the livelihood which you get from the business
is either comparable to what it was before you became severely impaired
or is comparable to that of unimpaired
[[Page 375]]
self-employed persons in your community who are in the same or similar
business as their means of livelihood.
[46 FR 4870, Jan. 19, 1981, as amended at 48 FR 21936, May 16, 1983; 49
FR 22272, May 29, 1984]
Sec. 404.1576 Impairment-related work expenses.
(a) General. When we figure your earnings in deciding if you have
done substantial gainful activity, we will subtract the reasonable costs
to you of certain items and services which, because of your
impairment(s), you need and use to enable you to work. The costs are
deductible even though you also need or use the items and services to
carry out daily living functions unrelated to your work. Paragraph (b)
of this section explains the conditions for deducting work expenses.
Paragraph (c) of this section describes the expenses we will deduct.
Paragraph (d) of this section explains when expenses may be deducted.
Paragraph (e) of this section describes how expenses may be allocated.
Paragraph (f) of this section explains the limitations on deducting
expenses. Paragraph (g) of this section explains our verification
procedures.
(b) Conditions for deducting impairment-related work expenses. We
will deduct impairment-related work expenses if--
(1) You are otherwise disabled as defined in Secs. 404.1505,
404.1577 and 404.1581-404.1583;
(2) The severity of your impairment(s) requires you to purchase (or
rent) certain items and services in order to work;
(3) You pay the cost of the item or service. No deduction will be
allowed to the extent that payment has been or will be made by another
source. No deduction will be allowed to the extent that you have been,
could be, or will be reimbursed for such cost by any other source (such
as through a private insurance plan, Medicare or Medicaid, or other plan
or agency). For example, if you purchase crutches for $80 but you were,
could be, or will be reimbursed $64 by some agency, plan, or program, we
will deduct only $16;
(4) You pay for the item or service in a month you are working (in
accordance with paragraph (d) of this section); and
(5) Your payment is in cash (including checks or other forms of
money). Payment in kind is not deductible.
(c) What expenses may be deducted--(1) Payments for attendant care
services. (i) If because of your impairment(s) you need assistance in
traveling to and from work, or while at work you need assistance with
personal functions (e.g., eating, toileting) or with work-related
functions (e.g., reading, communicating), the payments you make for
those services may be deducted.
(ii) If because of your impairment(s) you need assistance with
personal functions (e.g., dressing, administering medications) at home
in preparation for going to and assistance in returning from work, the
payments you make for those services may be deducted.
(iii)(A) We will deduct payments you make to a family member for
attendant care services only if such person, in order to perform the
services, suffers an economic loss by terminating his or her employment
or by reducing the number of hours he or she worked.
(B) We consider a family member to be anyone who is related to you
by blood, marriage or adoption, whether or not that person lives with
you.
(iv) If only part of your payment to a person is for services that
come under the provisions of paragraph (c)(1) of this section, we will
only deduct that part of the payment which is attributable to those
services. For example, an attendant gets you ready for work and helps
you in returning from work, which takes about 2 hours a day. The rest of
his or her 8 hour day is spent cleaning your house and doing your
laundry, etc. We would only deduct one-fourth of the attendant's daily
wages as an impairment-related work expense.
(2) Payments for medical devices. If your impairment(s) requires
that you utilize medical devices in order to work, the payments you make
for those devices may be deducted. As used in this subparagraph, medical
devices include durable medical equipment which can withstand repeated
use, is customarily used for medical purposes, and is generally not
useful to a person in the absence of an illness or injury.
[[Page 376]]
Examples of durable medical equipment are wheelchairs, hemodialysis
equipment, canes, crutches, inhalators and pacemakers.
(3) Payments for prosthetic devices. If your impairment(s) requires
that you utilize a prosthetic device in order to work, the payments you
make for that device may be deducted. A prosthetic device is that which
replaces an internal body organ or external body part. Examples of
prosthetic devices are artificial replacements of arms, legs and other
parts of the body.
(4) Payments for equipment. (i) Work-related equipment. If your
impairment(s) requires that you utilize special equipment in order to do
your job, the payments you make for that equipment may be deducted.
Examples of work-related equipment are one-hand typewriters, vision
aids, sensory aids for the blind, telecommunication devices for the deaf
and tools specifically designed to accommodate a person's impairment(s).
(ii) Residential modifications. If your impairment(s) requires that
you make modifications to your residence, the location of your place of
work will determine if the cost of these modifications will be deducted.
If you are employed away from home, only the cost of changes made
outside of your home to permit you to get to your means of
transportation (e.g., the installation of an exterior ramp for a
wheelchair confined person or special exterior railings or pathways for
someone who requires crutches) will be deducted. Costs relating to
modifications of the inside of your home will not be deducted. If you
work at home, the costs of modifying the inside of your home in order to
create a working space to accommodate your impairment(s) will be
deducted to the extent that the changes pertain specifically to the
space in which you work. Examples of such changes are the enlargement of
a doorway leading into the workspace or modification of the workspace to
accommodate problems in dexterity. However, if you are self-employed at
home, any cost deducted as a business expense cannot be deducted as an
impairment-related work expense.
(iii) Nonmedical appliances and equipment. Expenses for appliances
and equipment which you do not ordinarily use for medical purposes are
generally not deductible. Examples of these items are portable room
heaters, air conditioners, humidifiers, dehumidifiers, and electric air
cleaners. However, expenses for such items may be deductible when
unusual circumstances clearly establish an impairment-related and
medically verified need for such an item because it is essential for the
control of your disabling condition, thus enabling you to work. To be
considered essential, the item must be of such a nature that if it were
not available to you there would be an immediate adverse impact on your
ability to function in your work activity. In this situation, the
expense is deductible whether the item is used at home or in the working
place. An example would be the need for an electric air cleaner by an
individual with severe respiratory disease who cannot function in a non-
purified air environment. An item such as an exercycle is not deductible
if used for general physical fitness. If it is prescribed and used as
necessary treatment of your impairment and necessary to enable you to
work, we will deduct payments you make toward its cost.
(5) Payments for drugs and medical services. (i) If you must use
drugs or medical services (including diagnostic procedures) to control
your impairment(s) the payments you make for them may be deducted. The
drugs or services must be prescribed (or utilized) to reduce or
eliminate symptoms of your impairment(s) or to slow down its
progression. The diagnostic procedures must be performed to ascertain
how the impairment(s) is progressing or to determine what type of
treatment should be provided for the impairment(s).
(ii) Examples of deductible drugs and medical services are
anticonvulsant drugs to control epilepsy or anticonvulsant blood level
monitoring; antidepressant medication for mental disorders; medication
used to allay the side effects of certain treatments; radiation
treatment or chemotherapy for cancer patients; corrective surgery for
spinal disorders; electroencephalograms and brain scans
[[Page 377]]
related to a disabling epileptic condition; tests to determine the
efficacy of medication on a diabetic condition; and immunosuppressive
medications that kidney transplant patients regularly take to protect
against graft rejection.
(iii) We will only deduct the costs of drugs or services that are
directly related to your impairment(s). Examples of non-deductible items
are routine annual physical examinations, optician services (unrelated
to a disabling visual impairment) and dental examinations.
(6) Payments for similar items and services--(i) General. If you are
required to utilize items and services not specified in paragraphs (c)
(1) through (5) of this section but which are directly related to your
impairment(s) and which you need to work, their costs are deductible.
Examples of such items and services are medical supplies and services
not discussed above, the purchase and maintenance of a dog guide which
you need to work, and transportation.
(ii) Medical supplies and services not described above. We will
deduct payments you make for expendable medical supplies, such as
incontinence pads, catheters, bandages, elastic stockings, face masks,
irrigating kits, and disposable sheets and bags. We will also deduct
payments you make for physical therapy which you require because of your
impairment(s) and which you need in order to work.
(iii) Payments for transportation costs. We will deduct
transportation costs in these situations:
(A) Your impairment(s) requires that in order to get to work you
need a vehicle that has structural or operational modifications. The
modifications must be critical to your operation or use of the vehicle
and directly related to your impairment(s). We will deduct the costs of
the modifications, but not the cost of the vehicle. We will also deduct
a mileage allowance for the trip to and from work. The allowance will be
based on data compiled by the Federal Highway Administration relating to
vehicle operating costs.
(B) Your impairment(s) requires you to use driver assistance,
taxicabs or other hired vehicles in order to work. We will deduct
amounts paid to the driver and, if your own vehicle is used, we will
also deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A)
of this section, for the trip to and from work.
(C) Your impairment(s) prevents your taking available public
transportation to and from work and you must drive your (unmodified)
vehicle to work. If we can verify through your physician or other
sources that the need to drive is caused by your impairment(s) (and not
due to the unavailability of public transportation), we will deduct a
mileage allowance, as provided in paragraph (c)(6)(iii)(A) of this
section, for the trip to and from work.
(7) Payments for installing, maintaining, and repairing deductible
items. If the device, equipment, appliance, etc., that you utilize
qualifies as a deductible item as described in paragraphs (c) (2), (3),
(4) and (6) of this section, the costs directly related to installing,
maintaining and repairing these items are also deductible. (The costs
which are associated with modifications to a vehicle are deductible.
Except for a mileage allowance, as provided for in paragraph (c)(6)(iii)
of this section, the costs which are associated with the vehicle itself
are not deductible.)
(d) When expenses may be deducted. (1) Effective date. To be
deductible an expense must be incurred after November 30, 1980. An
expense may be considered incurred after that date if it is paid
thereafter even though pursuant to a contract or other arrangement
entered into before December 1, 1980.
(2) Payments for services. A payment you make for services may be
deducted if the services are received while you are working and the
payment is made in a month you are working. We consider you to be
working even though you must leave work temporarily to receive the
services.
(3) Payments for items. A payment you make toward the cost of a
deductible item (regardless of when it is acquired) may be deducted if
payment is made in a month you are working. See paragraph (e)(4) of this
section when purchases are made in anticipation of work.
(e) How expenses are allocated. (1) Recurring expenses. You may pay
for services on a regular periodic basis, or you
[[Page 378]]
may purchase an item on credit and pay for it in regular periodic
installments or you may rent an item. If so, each payment you make for
the services and each payment you make toward the purchase or rental
(including interest) is deductible in the month it is made.
Example. B starts work in October 1981 at which time she purchases
a medical device at a cost of $4,800 plus interest charges of $720. Her
monthly payments begin in October. She earns and receives $400 a month.
The term of the installment contract is 48 months. No downpayment is
made. The monthly allowable deduction for the item would be $115 ($5520
divided by 48) for each month of work during the 48 months.
(2) Nonrecurring expenses. Part or all of your expenses may not be
recurring. For example, you may make a one-time payment in full for an
item or service or make a downpayment. If you are working when you make
the payment we will either deduct the entire amount in the month you pay
it or allocate the amount over a 12 consecutive month period beginning
with the month of payment, whichever you select.
Example A begins working in October 1981 and earns $525 a month. In
the same month he purchases and pays for a deductible item at a cost of
$250. In this situation we could allow a $250 deduction for October
1981, reducing A's earnings below the SGA level for that month.
If A's earnings had been $15 above the SGA earnings amount, A
probably would select the option of projecting the $250 payment over the
12-month period, October 1981-September 1982, giving A an allowable
deduction of $20.83 a month for each month of work during that period.
This deduction would reduce A's earnings below the SGA level for 12
months.
(3) Allocating downpayments. If you make a downpayment we will, if
you choose, make a separate calculation for the downpayment in order to
provide for uniform monthly deductions. In these situations we will
determine the total payment that you will make over a 12 consecutive
month period beginning with the month of the downpayment and allocate
that amount over the 12 months. Beginning with the 13th month, the
regular monthly payment will be deductible. This allocation process will
be for a shorter period if your regular monthly payments will extend
over a period of less than 12 months.
Example 1. C starts working in October 1981, at which time he
purchases special equipment at a cost of $4,800, paying $1,200 down. The
balance of $3,600, plus interest of $540, is to be repaid in 36
installments of $115 a month beginning November 1981. C earns $500 a
month. He chooses to have the downpayment allocated. In this situation
we would allow a deduction of $205.42 a month for each month of work
during the period October 1981 through September 1982. After September
1982, the deduction amount would be the regular monthly payment of $115
for each month of work during the remaining installment period.
Explanation:
Downpayment in 10/81.......................... $1,200
Monthly payments 11/81 through 09/82.......... 1,265
------------
12) 2,465 =$205.42
Example 2. D, while working, buys a deductible item in July 1981,
paying $1,450 down. However, his first monthly payment of $125 is not
due until September 1981. D chooses to have the downpayment allocated.
In this situation we would allow a deduction of $225 a month for each
month of work during the period July 1981 through June 1982. After June
1982, the deduction amount would be the regular monthly payment of $125
for each month of work.
Explanation:
Downpayment in 07/81.......................... $1,450
Monthly payments 09/81 through 06/82.......... 1,250
------------
12) 2,700 =$225
(4) Payments made in anticipation of work. A payment toward the cost
of a deductible item that you made in any of the 11 months preceding the
month you started working will be taken into account in determining your
impairment-related work expenses. When an item is paid for in full
during the 11 months preceding the month you started working the payment
will be allocated over the 12-consecutive month period beginning with
the month of the payment. However, the only portion of the payment which
may be deductible is the portion allocated to the month work begins and
the following months. For example, if an item is purchased 3 months
before the month work began and is paid for with a one-time payment of
$600, the deductible amount
[[Page 379]]
would be $450 ($600 divided by 12, multiplied by 9). Installment
payments (including a downpayment) that you made for a particular item
during the 11 months preceding the month you started working will be
totaled and considered to have been made in the month of your first
payment for that item within this 11 month period. The sum of these
payments will be allocated over the 12-consecutive month period
beginning with the month of your first payment (but never earlier than
11 months before the month work began). However, the only portion of the
total which may be deductible is the portion allocated to the month work
begins and the following months. For example, if an item is purchased 3
months before the month work began and is paid for in 3 monthly
installments of $200 each, the total payment of $600 will be considered
to have been made in the month of the first payment, that is, 3 months
before the month work began. The deductible amount would be $450 ($600
divided by 12, multiplied by 9). The amount, as determined by these
formulas, will then be considered to have been paid in the first month
of work. We will deduct either this entire amount in the first month of
work or allocate it over a 12-consecutive month period beginning with
the first month of work, whichever you select. In the above examples,
the individual would have the choice of having the entire $450 deducted
in the first month of work or of having $37.50 a month ($450 divided by
12) deducted for each month that he works over a 12-consecutive month
period, beginning with the first month of work. To be deductible the
payments must be for durable items such as medical devices, prostheses,
work-related equipment, residential modifications, nonmedical appliances
and vehicle modifications. Payments for services and expendable items
such as drugs, oxygen, diagnostic procedures, medical supplies and
vehicle operating costs are not deductible for purposes of this
paragraph.
(f) Limits on deductions. (1) We will deduct the actual amounts you
pay towards your impairment-related work expenses unless the amounts are
unreasonable. With respect to durable medical equipment, prosthetic
devices, medical services, and similar medically-related items and
services, we will apply the prevailing charges under Medicare (part B of
title XVIII, Health Insurance for the Aged and Disabled) to the extent
that this information is readily available. Where the Medicare guides
are used, we will consider the amount that you pay to be reasonable if
it is no more than the prevailing charge for the same item or service
under the Medicare guidelines. If the amount you actually pay is more
than the prevailing charge for the same item under the Medicare
guidelines, we will deduct from your earnings the amount you paid to the
extent you establish that the amount is consistent with the standard or
normal charge for the same or similar item or service in your community.
For items and services that are not listed in the Medicare guidelines,
and for items and services that are listed in the Medicare guidelines
but for which such guides cannot be used because the information is not
readily available, we will consider the amount you pay to be reasonable
if it does not exceed the standard or normal charge for the same or
similar item(s) or service(s) in your community.
(2) Impairment-related work expenses are not deducted in computing
your earnings for purposes of determining whether your work was
``services'' as described in Sec. 404.1592(b).
(3) The decision as to whether you performed substantial gainful
activity in a case involving impairment-related work expenses for items
or services necessary for you to work generally will be based upon your
``earnings'' and not on the value of ``services'' you rendered. (See
Secs. 404.1574(b)(6) (i) and (ii), and 404.1575(a)). This is not
necessarily so, however, if you are in a position to control or
manipulate your earnings.
(4) The amount of the expenses to be deducted must be determined in
a uniform manner in both the disability insurance and SSI programs.
(5) No deduction will be allowed to the extent that any other source
has paid or will pay for an item or service. No deduction will be
allowed to the extent that you have been, could be, or will be,
reimbursed for payments you made. (See paragraph (b)(3) of this
section.)
[[Page 380]]
(6) The provisions described in the foregoing paragraphs of this
section are effective with respect to expenses incurred on and after
December 1, 1980, although expenses incurred after November 1980 as a
result of contractual or other arrangements entered into before December
1980, are deductible. For months before December 1980 we will deduct
impairment-related work expenses from your earnings only to the extent
they exceeded the normal work-related expenses you would have had if you
did not have your impairment(s). We will not deduct expenses, however,
for those things which you needed even when you were not working.
(g) Verification. We will verify your need for items or services for
which deductions are claimed, and the amount of the charges for those
items or services. You will also be asked to provide proof that you paid
for the items or services.
[48 FR 21936, May 16, 1983]
Widows, Widowers, and Surviving Divorced Spouses
Sec. 404.1577 Disability defined for widows, widowers, and surviving
divorced spouses for monthly benefits payable for months prior
to January 1991.
For monthly benefits payable for months prior to January 1991, the
law provides that to be entitled to a widow's or widower's benefit as a
disabled widow, widower, or surviving divorced spouse, you must have a
medically determinable physical or mental impairment which can be
expected to result in death or has lasted or can be expected to last for
a continuous period of not less than 12 months. The impairment(s) must
have been of a level of severity to prevent a person from doing any
gainful activity. To determine whether you were disabled, we consider
only your physical or mental impairment(s). We do not consider your age,
education, and work experience. We also do not consider certain felony-
related and prison-related impairments, as explained in Sec. 404.1506.
(For monthly benefits payable for months after December 1990, see
Sec. 404.1505(a).)
[57 FR 30120, July 8, 1992]
Sec. 404.1578 How we determine disability for widows, widowers, and
surviving divorced spouses for monthly benefits payable for
months prior to January 1991.
(a) For monthly benefits payable for months prior to January 1991,
we will find that you were disabled and pay you widow's or widower's
benefits as a widow, widower, or surviving divorced spouse if--
(1) Your impairment(s) had specific clinical findings that were the
same as those for any impairment in the Listing of Impairments in
appendix 1 of this subpart or were medically equivalent to those for any
impairment shown there;
(2) Your impairment(s) met the duration requirement.
(b) However, even if you met the requirements in paragraphs (a) (1)
and (2) of this section, we will not find you disabled if you were doing
substantial gainful activity.
[57 FR 30121, July 8, 1992]
Sec. 404.1579 How we will determine whether your disability continues
or ends.
(a) General. (1) The rules for determining whether disability
continues for widow's or widower's monthly benefits for months after
December 1990 are discussed in Secs. 404.1594 through 404.1598. The
rules for determining whether disability continues for monthly benefits
for months prior to January 1991 are discussed in paragraph (a)(2) of
this section and paragraphs (b) through (h) of this section.
(2) If you are entitled to disability benefits as a disabled widow,
widower, or surviving divorced spouse, and we must decide whether your
disability continued or ended for monthly benefits for months prior to
January 1991, there are a number of factors we consider in deciding
whether your disability continued. We must determine if there has been
any medical improvement in your impairment(s) and, if so, whether this
medical improvement is related to your ability to work. If your
impairment(s) has not so medically improved, we must address whether one
or more exceptions applies. If medical improvement related to your
ability to
[[Page 381]]
work has not occurred and no exception applies, your benefits will
continue. Even where medical improvement related to your ability to work
has occurred or an exception applies, in most cases (see paragraph (e)
of this section for exceptions) before we can find that you are no
longer disabled, we must also show that your impairment(s), as shown by
current medical evidence, is no longer deemed, under appendix 1 of this
subpart, sufficient to preclude you from engaging in gainful activity.
(b) Terms and definitions. There are several terms and definitions
which are important to know in order to understand how we review your
claim to determine whether your disability continues.
(1) Medical improvement. Medical improvement is any decrease in the
medical severity of your impairment(s) which was present at the time of
the most recent favorable medical decision that you were disabled or
continued to be disabled. A determination that there has been a decrease
in medical severity must be based on changes (improvement) in the
symptoms, signs and/or laboratory findings (see Sec. 404.1528)
associated with your impairment(s).
Example 1: You were awarded disability benefits due to a herniated
nucleus pulposus which was determined to equal the level of severity
contemplated by Listing 1.05.C. At the time of our prior favorable
decision, you had had a laminectomy. Postoperatively, a myelogram still
showed evidence of a persistent deficit in your lumbar spine. You had
pain in your back, and pain and a burning sensation in your right foot
and leg. There were no muscle weakness or neurological changes and a
modest decrease in motion in your back and leg. When we reviewed your
claim your treating physician reported that he had seen you regularly
every 2 to 3 months for the past 2 years. No further myelograms had been
done, complaints of pain in the back and right leg continued especially
on sitting or standing for more than a short period of time. Your doctor
further reported a moderately decreased range of motion in your back and
right leg, but again no muscle atrophy or neurological changes were
reported. Medical improvement has not occurred because there has been no
decrease in the severity of your back impairment as shown by changes in
symptoms, signs, or laboratory findings.
Example 2: You were awarded disability benefits due to rheumatoid
arthritis of a severity as described in Listing 1.02 of appendix 1 of
this subpart. At the time, laboratory findings were positive for this
condition. Your doctor reported persistent swelling and tenderness of
your fingers and wrists and that you complained of joint pain. Current
medical evidence shows that while laboratory tests are still positive
for rheumatoid arthritis, your impairment has responded favorably to
therapy so that for the last year your fingers and wrists have not been
significantly swollen or painful. Medical improvement has occurred
because there has been a decrease in the severity of your impairment as
documented by the current symptoms and signs reported by your physician.
Although your impairment is subject to temporary remissions and
exacerbations the improvement that has occurred has been sustained long
enough to permit a finding of medical improvement. We would then
determine if this medical improvement is related to your ability to
work.
(2) Determining whether medical improvement is related to your
ability to work. If medical improvement has occurred and the severity of
the prior impairment(s) no longer meets or equals the listing section
which was used in making our most recent favorable decision, we will
find that the medical improvement was related to your ability to work.
We make this finding because the criteria in appendix 1 of this subpart
are related to ability to work because they reflect impairments which
are considered severe enough to prevent a person from doing any gainful
work. We must, of course, also establish that, considering all of your
current impairments not just those which existed at the time of the most
recent prior favorable medical decision, your condition does not meet or
equal the requirements of appendix 1 before we could find that your
disability has ended. If there has been any medical improvement in your
impairment(s), but it is not related to your ability to do work and none
of the exceptions applies, your benefits will be continued.
(3) Determining whether your impairment(s) is deemed, under appendix
1 of this subpart, sufficient to preclude you from engaging in gainful
activity. Even where medical improvement related to your ability to work
has occurred or an exception applies, in most cases before we can find
that you are no longer disabled, we must also show that your
impairment(s) is no longer deemed,
[[Page 382]]
under appendix 1 of this subpart, sufficient to preclude you from
engaging in gainful activity. All current impairments will be
considered, not just the impairment(s) present at the time of our most
recent favorable determination. Sections 404.1525, 404.1526, and
404.1578 set out how we will decide whether your impairment(s) meets or
equals the requirements of appendix 1 of this subpart.
(4) Evidence and basis for our decision. Our decisions under this
section will be made on a neutral basis without any initial inference as
to the presence or absence of disability being drawn from the fact that
you have previously been determined to be disabled. We will consider all
evidence you submit, as well as all evidence we obtain from your
treating physician(s) and other medical or nonmedical sources. What
constitutes ``evidence'' and our procedures for obtaining it are set out
in Secs. 404.1512 through 404.1518. Our determination regarding whether
your disability continues will be made on the basis of the weight of the
evidence.
(5) Point of comparison. For purposes of determining whether medical
improvement has occurred, we will compare the current severity of that
impairment(s) which was present at the time of the most recent favorable
medical decision that you were disabled or continued to be disabled to
the medical severity of that impairment(s) at that time. If medical
improvement has occurred, we will determine whether the medical
improvement is related to your ability to do work based on this
previously existing impairment(s). The most recent favorable medical
decision is the latest decision involving a consideration of the medical
evidence and the issue of whether you were disabled or continued to be
disabled which became final.
(c) Determining medical improvement and its relationship to your
ability to do work. Paragraphs (b) (1) and (2) of this section discuss
what we mean by medical improvement and how we determine whether medical
improvement is related to your ability to work.
(1) Medical improvement. Medical improvement is any decrease in the
medical severity of impairment(s) present at the time of the most recent
favorable medical decision that you were disabled or continued to be
disabled. Whether medical improvement has occurred is determined by a
comparison of prior and current medical evidence which must show that
there have been changes (improvement) in the symptoms, signs or
laboratory findings associated with that impairment(s).
(2) Determining whether medical improvement is related to ability to
work. If there is a decrease in medical severity as shown by the signs,
symptoms and laboratory findings, we then must determine if it is
related to your ability to do work, as explained in paragraph (b)(2) of
this section. In determining if the medical improvement that has
occurred is related to your ability to work, we will assess whether the
previously existing impairments still meet or equal the level of
severity contemplated by the same listing section in appendix 1 of this
subpart which was used in making our most recent favorable decision.
Appendix 1 of this subpart describes impairments which, if severe
enough, affect a person's ability to work. If the appendix level of
severity is met or equaled, the individual is deemed, in the absence of
evidence of the contrary, to be unable to engage in gainful activity. If
there has been medical improvement to the degree that the requirement of
the listing section is no longer met or equaled, then the medical
improvement is related to your ability to work. Unless an objective
assessment shows that the listing requirement is no longer met or
equaled based on actual changes shown by the medical evidence, the
medical improvement that has occurred will not be considered to be
related to your ability to work.
(3) Prior file cannot be located. If the prior file cannot be
located, we will first determine whether your current impairment(s) is
deemed, under appendix 1 of this subpart, sufficient to preclude you
from engaging in gainful activity. (In this way, we will be able to
determine that your disability continues at the earliest time without
addressing the issue of reconstructing prior evidence which can be a
lengthy process.) If so, your benefits will continue unless one of the
second group of exceptions applies (see paragraph (e) of
[[Page 383]]
this section). If not, we will determine whether an attempt should be
made to reconstruct those portions of the file that were relevant to our
most recent favorable medical decision (e.g., medical evidence from
treating sources and the results of consultative examinations). This
determination will consider the potential availability of old records in
light of their age, whether the source of the evidence is still in
operation, etc.; and whether reconstruction efforts will yield a
complete record of the basis for the most recent favorable medical
decision. If relevant parts of the prior record are not reconstructed
either because it is determined not to attempt reconstruction or because
such efforts fail, medical improvement cannot be found. The
documentation of your current impairments will provide a basis for any
future reviews. If the missing file is later found, it may serve as a
basis for reopening any decision under this section in accordance with
the rules in Sec. 404.988.
(4) Impairment(s) subject to temporary remission. In some cases the
evidence shows that an individual's impairment is subject to temporary
remission. In assessing whether medical improvement has occurred in
persons with this type of impairment, we will be careful to consider the
longitudinal history of the impairment(s), including the occurrence of
prior remissions, and prospects for future worsening of the
impairment(s). Improvement in such impairments that is only temporary
will not warrant a finding of medical improvement.
(5) Applicable listing has been revised since the most recent
favorable medical decision. When determining whether any medical
improvement is related to your ability to work, we use the same listing
section in appendix 1 of this subpart which was used to make our prior
favorable decision. We will use the listing as it appeared at the time
of the prior decision, even where the requirement(s) of the listing was
subsequently changed. The current revised listing requirement will be
used if we determine that you have medically improved and it is
necessary to determine whether you are now considered unable to engage
in gainful activity.
(d) First group of exceptions to medical improvement. The law
provides for certain limited situations when your disability can be
found to have ended even though medical improvement has not occurred, if
your impairment(s) is no longer considered, under appendix 1 of this
subpart, sufficient to preclude you from engaging in gainful activity.
These exceptions to medical improvement are intended to provide a way of
finding that a person is no longer disabled in those limited 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, before we can find you are no longer
disabled, we must also show that, taking all your current impairment(s)
into account, not just those that existed at the time of our most recent
favorable medical decision, your impairment(s) is no longer deemed,
under appendix 1 of this subpart, sufficient to preclude you from
engaging in gainful activity. As part of the review process, you will be
asked about any medical therapy you received or are receiving. Your
answers and the evidence gathered as a result as well as all other
evidence, will serve as the basis for the finding that an exception does
or does not apply.
(1) Substantial evidence shows that you are the beneficiary of
advances in medical therapy or technology (related to your ability to
work). Advances in medical therapy or technology are improvements in
treatment or rehabilitative methods which have favorably affected the
severity of your impairment(s). We will apply this exception when
substantial evidence shows that you have been the beneficiary of
services which reflect these advances and they have favorably affected
the severity of your impairment(s). This decision will be based on new
medical evidence. In many instances, an advanced medical therapy or
technology will result in a decrease in severity as shown by symptoms,
signs and laboratory findings which will meet the definition of medical
improvement. This exception will, therefore, see very limited
application.
[[Page 384]]
(2) Substantial evidence shows that based on new or improved
diagnostic or evaluative techniques 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 or evaluative techniques have given, and will continue
to give, rise to improved methods for measuring and documenting the
effect of various impairments on the ability to do work. 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 medical decision, such evidence may serve as a basis
for finding that you are no longer disabled, if your impairment(s) is no
longer deemed, under appendix 1 of this subpart, sufficient to preclude
you from engaging in gainful activity. In order to be used under this
exception, however, the new or improved techniques must have become
generally available after the date of our most recent favorable medical
decision.
(i) How we will determine which methods are new or improved
techniques and when they become generally available. New or improved
diagnostic techniques or evaluations will come to our attention by
several methods. In reviewing cases, we often become aware of new
techniques when their results are presented as evidence. Such techniques
and evaluations are also discussed and acknowledged in medical
literature by medical professional groups and other governmental
entities. Through these sources, we develop listings of new techniques
and when they become generally available. For example, we will consult
the Health Care Financing Administration for its experience regarding
when a technique is recognized for payment under Medicare and when they
began paying for the technique.
(ii) How you will know which methods are new or improved techniques
and when they become generally available. We will let you know which
methods we consider to be new or improved techniques and when they
become available through two vehicles.
(A) Some of the future changes in the Listing of Impairments in
appendix 1 of this subpart will be based on new or improved diagnostic
or evaluative techniques. Such listing changes will clearly state this
fact as they are published as Notices of Proposed Rulemaking and the new
or improved technique will be considered generally available as of the
date of the final publication of that particular listing in the Federal
Register.
(B) A cumulative list since 1970 of new or improved diagnostic
techniques or evaluations, how they changed the evaluation of the
applicable impairment and the month and year they became generally
available, will be published in the Notices section of the Federal
Register. Included will be any changes in the Listing of Impairments
published in the Code of Federal Regulations since 1970 which are
reflective of new or improved techniques. No cases will be processed
under this exception until this cumulative listing is so published.
Subsequent changes to the list will be published periodically. The
period will be determined by the volume of changes needed.
Example: The electrocardiographic exercise test has replaced the
Master's 2-step test as a measurement of heart function since the time
of your last favorable medical decision. Current evidence could show
that your condition, which was previously evaluated based on the
Master's 2-step test, is not now as disabling as was previously thought.
If, taking all your current impairments into account, you are now able
to engage in gainful activity, this exception would be used to find that
you are no longer disabled even if medical improvement has not occurred.
(3) Substantial evidence demonstrates that any prior disability
decision was in error. We will apply the exception to medical
improvement based on error if substantial evidence (which may be
evidence on the record at the time any prior determination of the
entitlement to benefits based on disability was made, or newly obtained
evidence which relates to that determination) demonstrates that a prior
determination was in error. A prior determination will be found in error
only if:
(i) Substantial evidence shows on its face that the decision in
question should not have been made (e.g., the evidence in your file such
as pulmonary function study values was misread or an adjudicative
standard such as a listing in appendix 1 of this subpart was
misapplied).
[[Page 385]]
Example: You were granted benefits when it was determined that your
epilepsy met Listing 11.02. This listing calls for a finding of major
motor seizures more frequently than once a month as documented by EEG
evidence and by a detailed description of a typical seizure pattern. A
history of either diurnal episodes or nocturnal episodes with residuals
interfering with daily activities is also required. On review, it is
found that a history of the frequency of your seizures showed that they
occurred only once or twice a year. The prior decision would be found to
be in error, and whether you were still considered to be disabled would
be based on whether your current impairment(s) meets or equals the
requirements of appendix 1 of this subpart.
(ii) At the time of the prior evaluation, required and material
evidence of the severity of your impairment(s) was missing. That
evidence becomes available upon review, and substantial evidence
demonstrates that had such evidence been present at the time of the
prior determination, disability would not have been found.
(iii) Substantial evidence which is new evidence which relates to
the prior determination (of allowance or continuance) refutes the
conclusions that were based upon the prior evidence (e.g., a tumor
thought to be malignant was later shown to have actually been benign).
Substantial evidence must show that had the new evidence (which relates
to the prior determination) been considered at the time of the prior
decision, the claim would not have been allowed or continued. A
substitution of current judgment for that used in the prior favorable
decision will not be the basis for applying this exception.
Example: You were previously granted disability benefits on the
basis of diabetes mellitus which the prior adjudicator believed was
equivalent to the level of severity contemplated in the Listing of
Impairments. The prior record shows that you had ``brittle'' diabetes
for which you were taking insulin. Your urine was 3+ for sugar, and you
alleged occasional hypoglycemic attacks caused by exertion. On review,
symptoms, signs and laboratory findings are unchanged. The current
adjudicator believes, however, that your impairment does not equal the
severity contemplated by the listings. Error cannot be found because it
would represent a substitution of current judgment for that of the prior
adjudicator that your impairment equaled a listing.
(iv) The exception for error will not be applied retroactively under
the conditions set out above unless the conditions for reopening the
prior decision (see Sec. 404.988) are met.
(4) You are currently engaging in substantial gainful activity. If
you are currently engaging in substantial gainful activity before we
determine whether you are no longer disabled because of your work
activity, we will consider whether you are entitled to a trial work
period as set out in Sec. 404.1592. We will find that your disability
has ended in the month in which you demonstrated your ability to engage
in substantial gainful activity (following completion of a trial work
period, where it applies). This exception does not apply in determining
whether you continue to have a disabling impairment(Sec. 404.1511) for
purposes of deciding your eligibility for a reentitlement period
(Sec. 404.1592a).
(e) Second group of exceptions to medical improvement. In addition
to the first group of exceptions to medical improvement, the following
exceptions may result in a determination that you are no longer
disabled. In these situations the decision will be made without a
determination that you have medically improved or can engage in gainful
activity.
(1) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim under the rules in Sec. 404.988. In determining
whether a prior favorable determination or decision was fraudulently
obtained, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which you may have had at the time.
(2) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical or
other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 404.911 explains the
factors we consider and how we will determine
[[Page 386]]
generally whether you have good cause for failure to cooperate. In
addition, Sec. 404.1518 discusses how we determine whether you have good
cause for failing to attend a consultative examination. The month in
which your disability ends will be the first month in which you failed
to do what we asked.
(3) We are unable to find you. If there is a question about whether
you continue to be disabled and we are unable to find you to resolve the
question, we will determine that your disability has ended. The month
your disability ends will be the first month in which the question arose
and we could not find you.
(4) You fail to follow prescribed treatment which would be expected
to restore your ability to engage in gainful activity. If treatment has
been prescribed for you which would be expected to restore your ability
to work, you must follow that treatment in order to be paid benefits. If
you are not following that treatment and you do not have good cause for
failing to follow that treatment, we will find that your disability has
ended (see Sec. 404.1530(c)). The month your disability ends will be the
first month in which you failed to follow the prescribed treatment.
(f) Evaluation steps. To assure 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 will follow specific steps in
reviewing the question of whether your disability continues. Our review
may stop and benefits may be continued at any point if we determine
there is sufficient evidence to find that you are still unable to engage
in gainful activity. The steps are:
(1) Are you engaging in substantial gainful activity? If you are
(and any applicable trial work period has been completed), we will find
disability to have ended.
(2) If you are not, has there been medical improvement as defined in
paragraph (b)(1) of this section? If there has been medical improvement
as shown by a decrease in medical severity, see step (3). If there has
been no decrease in medical severity, there has been no medical
improvement. (see step (4).)
(3) If there has been medical improvement, we must determine (in
accordance with paragraph (b)(2) of this section) whether it is related
to your ability to work. If medical improvement is not related to your
ability to do work, see step (4). If medical improvement is related to
your ability to do work, see step (5).
(4) If we found at step (2) that there has been no medical
improvement or if we found at step (3) that the medical improvement is
not related to your ability to work, we consider whether any of the
exceptions in paragraphs (d) and (e) of this section apply. If none of
them apply, your disability will be found to continue. If one of the
first group of exceptions to medical improvement (see paragraph (d) of
this section) applies, we will proceed to step (5). If an exception from
the second group of exceptions to medical improvement applies, your
disability will be found to have ended. The second group of exceptions
to medical improvement may be considered at any point in this process.
(5) If medical improvement is related to your ability to work or if
one of the first group of exceptions to medical improvement applies, we
will determine (considering all your impairments) whether the
requirements of appendix 1 of this subpart are met or equaled. If your
impairment(s) meets or equals the requirements of appendix 1 of this
subpart, your disability will be found to continue. If not, your
disability will be found to have ended.
(g) The month in which we will find you are no longer disabled. If
the evidence shows that you are no longer disabled, we will find that
your disability ended in the earliest of the following months--
(1) The month the evidence shows you are no longer disabled under
the rules set out in this section, and you were disabled only for a
specified period of time in the past;
(2) The month the evidence shows you are no longer disabled under
the rules set out in this section, but not earlier than the month in
which we
[[Page 387]]
mail you a notice saying that the information we have shows that you are
not disabled;
(3) The month in which you demonstrated your ability to engage in
substantial gainful activity (following completion of a trial work
period); however, we may pay you benefits for certain months in and
after the reentitlement period which follows the trial work period. (See
Sec. 404.1592 for a discussion of the trial work period, Sec. 404.1592a
for a discussion of the reentitlement period, and Sec. 404.337 for when
your benefits will end.);
(4) The month in which you return to full-time work, with no
significant medical restrictions and acknowledge that medical
improvement has occurred, as long as we expected your impairment(s) to
improve (see Sec. 404.1591);
(5) The first month in which you failed to do what we asked, without
good cause when the rule set out in paragraph (e)(2) of this section
applies;
(6) The first month in which the question of continuing disability
arose and we could not find you, when the rule set out in paragraph
(e)(3) of this section applies;
(7) The first month in which you failed to follow prescribed
treatment without good cause, when the rule set out in paragraph (e)(4)
of this section applies; or
(8) The first month you were told by your physician that you could
return to work provided there is no substantial conflict between your
physician's and your statements regarding your awareness of your
capacity for work and the earlier date is supported by medical evidence.
(h) Before we stop your benefits. Before we determine you are no
longer disabled, we will give you a chance to explain why we should not
do so. Sections 404.1595 and 404.1597 describe your rights (including
appeal rights) and the procedures we will follow.
[50 FR 50126, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr.
30, 1986, as amended at 57 FR 30121, July 8, 1992; 59 FR 1635, Jan. 12,
1994]
Blindness
Sec. 404.1581 Meaning of blindness as defined in the law.
We will consider you blind under the law for a period of disability
and for payment of disability insurance benefits if we determine that
you are statutorily blind. Statutory blindness is defined in the law as
central visual acuity of 20/200 or less in the better eye with the use
of correcting lens. An eye which has a limitation in the field of vision
so that the widest diameter of the visual field subtends an angle no
greater than 20 degrees is considered to have a central visual acuity of
20/200 or less. Your blindness must meet the duration requirement in
Sec. 404.1509. We do not consider certain felony-related and prison-
related impairments, as explained in Sec. 404.1506.
[45 FR 55584, Aug. 20, 1980, as amended at 48 FR 5715, Feb. 8, 1983]
Sec. 404.1582 A period of disability based on blindness.
If we find that you are blind and you meet the insured status
requirement, we may establish a period of disability for you regardless
of whether you can do substantial gainful activity. A period of
disability protects your earnings record under Social Security so that
the time you are disabled will not count against you in determining
whether you will have worked long enough to qualify for benefits and the
amount of your benefits. However, you will not necessarily be entitled
to receive disability insurance cash benefits even though you are blind.
If you are a blind person under age 55, you must be unable to do any
substantial gainful activity in order to be paid disability insurance
cash benefits.
Sec. 404.1583 How we determine disability for blind persons who are age
55 or older.
We will find that you are eligible for disability insurance benefits
even though you are still engaging in substantial gainful activity, if--
(a) You are blind;
(b) You are age 55 or older; and
(c) You are unable to use the skills or abilities like the ones you
used in any
[[Page 388]]
substantial gainful activity which you did regularly and for a
substantial period of time. (However, you will not be paid any cash
benefits for any month in which you are doing substantial gainful
activity.)
Sec. 404.1584 Evaluation of work activity of blind people.
(a) General. If you are blind (as explained in Sec. 404.1581), we
will consider the earnings from the work you are doing to determine
whether or not you should be paid cash benefits.
(b) Under Age 55. If you are under age 55, we will evaluate the work
you are doing using the guides in paragraph (d) of this section to
determine whether or not your work shows that you are doing substantial
gainful activity. If you are not doing substantial gainful activity, we
will pay you cash benefits. If you are doing substantial gainful
activity, we will not pay you cash benefits. However, you will be given
a period of disability as described in subpart D of this part.
(c) Age 55 or older. If you are age 55 or older, we will evaluate
your work using the guides in paragraph (d) of this section to determine
whether or not your work shows that you are doing substantial gainful
activity. If you have not shown this ability, we will pay you cash
benefits. If you have shown an ability to do substantial gainful
activity, we will evaluate your work activity to find out how your work
compares with the work you did before. If the skills and abilities of
your new work are about the same as those you used in the work you did
before, we will not pay you cash benefits. However, if your new work
requires skills and abilities which are less than or different than
those you used in the work you did before, we will pay you cash
benefits, but not for any month in which you actually perform
substantial gainful activity.
(d) Evaluation of earnings. The law provides a different earnings
test for substantial gainful activity of people who are blind. We will
not consider that you are able to engage in substantial gainful activity
on the basis of earnings unless your monthly earnings average more than
$334.00 in 1978; $375.00 in 1979; $417.00 in 1980; $459.00 in 1981; and
$500.00 in 1982. (Sections 404.1574(a)(2), 404.1575(c) and 404.1576 are
applicable in determining the amount of your earnings.) Thereafter, an
increase in the substantial gainful activity amount will depend on
increases in the cost of living. For work activity performed in taxable
years before 1978, the earnings considered enough to show an ability to
do substantial gainful activity are the same for blind people as for
others.
[45 FR 55584, Aug. 20, 1980, as amended at 48 FR 21939, May 16, 1983]
Sec. 404.1585 Trial work period for persons age 55 or older who are
blind.
If you become eligible for disability benefits even though you were
doing substantial gainful activity because you are blind and age 55 or
older, you are entitled to a trial work period if--
(a) You later return to substantial gainful activity that requires
skills or abilities comparable to those required in the work you
regularly did before you became blind or became 55 years old, whichever
is later; or
(b) Your last previous work ended because of an impairment and the
current work requires a significant vocational adjustment.
Sec. 404.1586 Why and when we will stop your cash benefits.
(a) When you are not entitled to benefits. If you become entitled to
disability cash benefits as a statutorily blind person, we will find
that you are no longer entitled to benefits beginning with the earliest
of--
(1) The month your vision, based on current medical evidence, does
not meet the definition of blindness and your disability does not
continue under the rules in Sec. 404.1594 and you were disabled only for
a specified period of time in the past;
(2) The month your vision, based on current medical evidence, does
not meet the definition of blindness and your disability does not
continue under the rules in Sec. 404.1594, but not earlier than the
month in which we mail you a notice saying that the information we have
shows that you are not disabled;
[[Page 389]]
(3) If you are under age 55, the month in which you demonstrated
your ability to engage in substantial gainful activity (following
completion of a trial work period); however, we may pay you benefits for
certain months in and after the reentitlement period which follows the
trial work period. (See Sec. 404.1592a for a discussion of the
reentitlement period, and Sec. 404.316 on when your benefits will end.);
or
(4) If you are age 55 or older, the month (following completion of a
trial work period) when your work activity shows you are able to use, in
substantial gainful activity, skills and abilities comparable to those
of some gainful activity which you did with some regularity and over a
substantial period of time. The skills and abilities are compared to the
activity you did prior to age 55 or prior to becoming blind, whichever
is later.
(b) If we find that you are not entitled to disability cash
benefits. If we find that you are not entitled to disability cash
benefits on the basis of your work activity but your visual impairment
is sufficiently severe to meet the definition of blindness, the period
of disability that we established for you will continue.
(c) If you do not follow prescribed treatment. If treatment has been
prescribed for you that can restore your ability to work, you must
follow that treatment in order to be paid benefits. If you are not
following that treatment and you do not have a good reason for failing
to follow that treatment (see Sec. 404.1530(c)), we will find that your
disability has ended. The month in which your disability will be found
to have ended will be the first month in which you failed to follow the
prescribed treatment.
(d) If you do not cooperate with us. If we ask you to give us
medical or other evidence or to go for a medical examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 404.911 explains the
factors we consider and how we will determine generally whether you have
good cause for failure to cooperate. In addition, Sec. 404.1518
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your disability
will be found to have ended will be the month in which you failed to do
what we asked.
(e) If we are unable to find you. If there is a question about
whether you continue to be disabled by blindness and we are unable to
find you to resolve the question, we will find that your disability, has
ended. The month it ends will be the first month in which the question
arose and we could not find you.
(f) Before we stop your benefits. Before we stop your benefits or
period of disability, we will give you a chance to give us your reasons
why we should not stop your benefits or your period of disability.
Section 404.1595 describes your rights and the procedures we will
follow.
(g) If you are in an appropriate vocational rehabilitation program.
(1) Your benefits, and those of your dependents, may be continued for
months after November 1980 after your impairment is no longer disabling
if--
(i) Your disability did not end before December 1980;
(ii) You are participating in an appropriate program of vocational
rehabilitation, that is, one that has been approved under a State plan
approved under title I of the Rehabilitation Act of 1973 and which meets
the requirements outlined in 34 CFR part 361 for a rehabilitation
program;
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) Your benefits generally will be stopped with the month--
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.
Exception: In no case will your benefits be stopped with a month earlier
than
[[Page 390]]
the second month after your disability ends.
[45 FR 55584, Aug. 20, 1980, as amended at 47 FR 31543, July 21, 1982;
47 FR 52693, Nov. 23, 1982; 49 FR 22272, May 29, 1984; 50 FR 50130, Dec.
6, 1985; 51 FR 17617, May 14, 1986; 59 FR 1635, Jan. 12, 1994]
Sec. 404.1587 Circumstances under which we may suspend your benefits
before we make a determination.
We will suspend your benefits if all of the information we have
clearly shows that you are not disabled and we will be unable to
complete a determination soon enough to prevent us from paying you more
monthly benefits than you are entitled to. This may occur when you are
blind as defined in the law and age 55 or older and you have returned to
work similar to work you previously performed.
Continuing or Stopping Disability
Sec. 404.1588 Your responsibility to tell us of events that may change
your disability status.
If you are entitled to cash benefits or to a period of disability
because you are disabled, you should promptly tell us if--
(a) Your condition improves;
(b) You return to work;
(c) You increase the amount of your work; or
(d) Your earnings increase.
Sec. 404.1589 We may conduct a review to find out whether you continue
to be disabled.
After we find that you are disabled, we must evaluate your
impairment(s) from time to time to determine if you are still eligible
for disability cash benefits. We call this evaluation a continuing
disability review. We may begin a continuing disability review for any
number of reasons including your failure to follow the provisions of the
Social Security Act or these regulations. When we begin such a review,
we will notify you that we are reviewing your eligibility for disability
benefits, why we are reviewing your eligibility, that in medical reviews
the medical improvement review standard will apply, that our review
could result in the termination of your benefits, and that you have the
right to submit medical and other evidence for our consideration during
the continuing disability review. In doing a medical review, we will
develop a complete medical history of at least the preceding 12 months
in any case in which a determination is made that you are no longer
under a disability. If this review shows that we should stop payment of
your benefits, we will notify you in writing and give you an opportunity
to appeal. In Sec. 404.1590 we describe those events that may prompt us
to review whether you continue to be disabled.
[51 FR 16825, May 7, 1986]
Sec. 404.1590 When and how often we will conduct a continuing
disability review.
(a) General. We conduct continuing disability reviews to determine
whether or not you continue to meet the disability requirements of the
law. Payment of cash benefits or a period of disability ends if the
medical or other evidence shows that you are not disabled as determined
under the standards set out in section 223(f) of the Social Security
Act.
(b) When we will conduct a continuing disability review. A
continuing disability review will be started if--
(1) You have been scheduled for a medical improvement expected diary
review;
(2) You have been scheduled for a periodic review (medical
improvement possible or medical improvement not expected) in accordance
with the provisions of paragraph (d) of this section;
(3) We need a current medical or other report to see if your
disability continues. (This could happen when, for example, an advance
in medical technology, such as improved treatment for Alzheimer's
disease or a change in vocational therapy or technology raises a
disability issue.);
(4) You return to work and successfully complete a period of trial
work;
(5) Substantial earnings are reported to your wage record;
(6) You tell us that you have recovered from your disability or that
you have returned to work;
(7) Your State Vocational Rehabilitation Agency tells us that--
(i) The services have been completed; or
[[Page 391]]
(ii) You are now working; or
(iii) You are able to work;
(8) Someone in a position to know of your physical or mental
condition tells us that you are not disabled, that you are not following
prescribed treatment, that you have returned to work, or that you are
failing to follow the provisions of the Social Security Act or these
regulations, and it appears that the report could be substantially
correct;
(9) Evidence we receive raises a question as to whether your
disability continues; or
(10) You have been scheduled for a vocational reexamination diary
review.
(c) Definitions. As used in this section--
Medical improvement expected diary--refers to a case which is
scheduled for review at a later date because the individual's
impairment(s) is expected to improve. Generally, the diary period is set
for not less than 6 months or for not more than 18 months. Examples of
cases likely to be scheduled for medical improvement expected diary are
fractures and cases in which corrective surgery is planned and recovery
can be anticipated.
Permanent impairment--medical improvement not expected--refers to a
case in which any medical improvement in the 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. The interaction of the individual's age, impairment
consequences and lack of recent attachment to the labor market may also
be considered in determining whether an impairment is permanent.
Improvement which is considered temporary under Sec. 404.1579(c)(4) or
Sec. 404.1594(c)(3)(iv), as appropriate, will not be considered in
deciding if an impairment is permanent. Examples of permanent
impairments taken from the list contained in our other written
guidelines which are available for public review are as follows and are
not intended to be all inclusive:
(1) Parkinsonian Syndrome which has reached the level of severity
necessary to meet the Listing in appendix 1.
(2) Amyotrophic Lateral Sclerosis which has reached the level of
severity necessary to meet the Listing in appendix 1.
(3) Diffuse pulmonary fibrosis in an individual age 55 or over which
has reached the level of severity necessary to meet the Listing in
appendix 1.
(4) Amputation of leg at hip.
Nonpermanent impairment--refers to a case in which any medical
improvement in the person's impairment(s) is possible. This means an
impairment for which improvement cannot be predicted based on current
experience and the facts of the particular case but which is not at the
level of severity of an impairment that is considered permanent.
Examples of nonpermanent impairments are: regional enteritis,
hyperthyroidism, and chronic ulcerative colitis.
Vocational reexamination diary--refers to a case which is scheduled
for review at a later date because the individual is undergoing
vocational therapy, training or an educational program which may improve
his or her ability to work so that the disability requirement of the law
is no longer met. Generally, the diary period will be set for the length
of the training, therapy, or program of education.
(d) Frequency of review. If your impairment is expected to improve,
generally we will review your continuing eligibility for disability
benefits at intervals from 6 months to 18 months following our most
recent decision. Our notice to you about the review of your case will
tell you more precisely when the review will be conducted. If your
disability is not considered permanent but is such that any medical
improvement in your impairment(s) cannot be accurately predicted, we
will review your continuing eligibility for disability benefits at least
once every 3 years. If your disability is considered permanent, we will
review your continuing eligibility for benefits no less frequently than
once every 7 years but no more frequently than once every 5
[[Page 392]]
years. Regardless of your classification, we will conduct an immediate
continuing disability review if a question of continuing disability is
raised pursuant to paragraph (b) of this section.
(e) Change in classification of impairment. If the evidence
developed during a continuing disability review demonstrates that your
impairment has improved, is expected to improve, or has worsened since
the last review, we may reclassify your impairment to reflect this
change in severity. A change in the classification of your impairment
will change the frequency with which we will review your case. We may
also reclassify certain impairments because of improved tests,
treatment, and other technical advances concerning those impairments.
(f) Review after administrative appeal. If you were found eligible
to receive or to continue to receive disability benefits on the basis of
a decision by an administrative law judge, the Appeals Council or a
Federal court, we will not conduct a continuing disability review
earlier than 3 years after that decision unless your case should be
scheduled for a medical improvement expected or vocational reexamination
diary review or a question of continuing disability is raised pursuant
to paragraph (b) of this section.
(g) Waiver of timeframes. All cases involving a nonpermanent
impairment will be reviewed by us at least once every 3 years unless we,
after consultation with the State agency, determine that the requirement
should be waived to ensure that only the appropriate number of cases are
reviewed. The appropriate number of cases to be reviewed is to be based
on such considerations as the backlog of pending reviews, the projected
number of new applications, and projected staffing levels. Such waiver
shall be given only after good faith effort on the part of the State to
meet staffing requirements and to process the reviews on a timely basis.
Availability of independent medical resources may also be a factor. A
waiver in this context refers to our administrative discretion to
determine the appropriate number of cases to be reviewed on a State by
State basis. Therefore, your continuing disability review may be delayed
longer than 3 years following our original decision or other review
under certain circumstances. Such a delay would be based on our need to
ensure that backlogs, reviews required to be performed by the Social
Security Disability Benefits Reform Act of 1984 (Pub. L. 98-460), and
new disability claims workloads are accomplished within available
medical and other resources in the State agency and that such reviews
are done carefully and accurately.
[51 FR 16825, May 7, 1986]
Sec. 404.1591 If your medical recovery was expected and you returned to
work.
If your impairment was expected to improve and you returned to full-
time work with no significant medical limitations and acknowledge that
medical improvement has occurred, we may find that your disability ended
in the month you returned to work. Unless there is evidence showing that
your disability has not ended, we will use the medical and other
evidence already in your file and the fact that you returned to full-
time work without significant limitations to determine that you are no
longer disabled. (If your impairment is not expected to improve, we will
not ordinarily review your claim until the end of the trial work period,
as described in Sec. 404.1592.)
Example: Evidence obtained during the processing of your claim
showed that you had an impairment that was expected to improve about 18
months after your disability began. We, therefore, told you that your
claim would be reviewed again at that time. However, before the time
arrived for your scheduled medical re-examination, you told us that you
had returned to work and your impairment had improved. We investigated
immediately and found that, in the 16th month after your disability
began, you returned to full-time work without any significant medical
restrictions. Therefore, we would find that your disability ended in the
first month you returned to full-time work.
[50 FR 50130, Dec. 6, 1985]
Sec. 404.1592 The trial work period.
(a) Definition of the trial work period. The trial work period is a
period during which you may test your ability to work and still be
considered disabled.
[[Page 393]]
It begins and ends as described in paragraph (e) of this section. During
this period, you may perform services (see paragraph (b) of this
section) in as many as 9 months, but these months do not have to be
consecutive. We will not consider those services as showing that your
disability has ended until you have performed services in at least 9
months. However, after the trial work period has ended we will consider
the work you did during the trial work period in determining whether
your disability ended at any time after the trial work period.
(b) What we mean by services. When used in this section, services
means any activity, even though it is not substantial gainful activity,
which is done by a person in employment or self-employment for pay or
profit, or is the kind normally done for pay or profit. If you are an
employee, we will consider your work to be services if in any calendar
year after 1989 you earn more than $200 a month ($75 a month is the
amount for calendar years 1979 through 1989, and $50 a month is the
amount for calendar years before 1979). If you are self-employed, we
will consider your activities services if in any calendar year after
1989, your net earnings are more than $200 a month ($75 a month is the
amount for calendar years 1979 through 1989, and $50 a month is the
amount for calendar years before 1979), or you work more than 40 hours a
month in the business in any calendar year after 1989 (15 hours a month
is the figure for calendar years before 1990). We generally do not
consider work to be services when it is done without remuneration or
merely as therapy or training, or when it is work usually done in a
daily routine around the house, or in self-care.
(c) Limitations on the number of trial work periods. You may have
only one trial work period during a period of entitlement to cash
benefits.
(d) Who is and is not entitled to a trial work period. (1) Those who
are receiving disability insurance benefits, child's benefits based on
disability and, beginning December 1, 1980, those who are receiving
widows' or widowers' benefits based on disability, or surviving divorced
spouses' benefits based on disability, generally are entitled to a trial
work period.
(2) You are not entitled to a trial work period if--
(i) You are entitled to a period of disability but not to disability
insurance cash benefits; or
(ii) You are receiving disability insurance benefits in a second
period of disability for which you did not have to complete a waiting
period.
(e) When the trial work period begins and ends. The trial work
period begins with the month in which you become entitled to disability
insurance cash benefits, to child's cash benefits based on disability or
to widow's, widower's, or surviving divorced spouse's cash benefits
based on disability. It cannot begin before the month in which you file
your application for benefits and for widows, widowers, and surviving
divorced spouses, it cannot begin before December 1, 1980. It ends with
the close of whichever of the following calendar months is the earlier:
(1) The 9th month (whether or not the months have been consecutive)
in which you have performed services; or
(2) The month in which new evidence, other than evidence relating to
any work you did during the trial work period, shows that you are not
disabled, even though you have not worked a full 9 months. We may find
that your disability has ended at any time during the trial work period
if the medical or other evidence shows that you are no longer disabled
(see Sec. 404.1594).
[45 FR 55584, Aug. 20, 1980, as amended at 49 FR 22273, May 29, 1984; 50
FR 50130, Dec. 6, 1985; 54 FR 53605, Dec. 29, 1989]
Sec. 404.1592a The reentitlement period.
(a) General. The reentitlement period is an additional period after
9 months of trial work during which you may continue to test your
ability to work if you have a disabling impairment. You will not be paid
benefits for any month, after the third month, in this period in which
you do substantial gainful activity and you will be paid benefits for
months in which you do not do substantial gainful activity. (See
Secs. 404.316, 404.337, 404.352 and 404.401a.) If anyone else is
receiving monthly benefits based on your earnings record, that
individual will not be paid benefits for
[[Page 394]]
any month for which you cannot be paid benefits during the reentitlement
period. If your benefits are stopped because you do substantial gainful
activity they may be started again without a new application and a new
determination of disability if you discontinue doing substantial gainful
activity during this period. In determining, for reentitlement benefit
purposes, whether you do substantial gainful activity in a month, we
consider only your work in or earnings for that month; we do not
consider the average amount of your work or earnings over a period of
months.
(b) When the reentitlement period begins and ends. The reentitlement
period begins with the first month following completion of 9 months of
trial work but cannot begin earlier than December 1, 1980. It ends with
whichever is earlier--
(1) The month before the first month in which your impairment no
longer exists or is not medically disabling; or
(2) The last day of the 15th month following the end of your trial
work period. (See Secs. 404.316, 404.337, and 404.352 for when your
benefits end.)
(c) When you are not entitled to a reentitlement period. You are not
entitled to a reentitlement period if:
(1) You are entitled to a period of disability, but not to
disability insurance cash benefits;
(2) You are not entitled to a trial work period;
(3) Your entitlement to disability insurance benefits ended before
you completed 9 months of trial work in that period of disability.
[49 FR 22273, May 29, 1984, as amended at 58 FR 64883, Dec. 10, 1993]
Sec. 404.1593 Medical evidence in continuing disability review cases.
(a) General. If you are entitled to benefits or if a period of
disability has been established for you because you are disabled, we
will have your case file with the supporting medical evidence previously
used to establish or continue your entitlement. Generally, therefore,
the medical evidence we will need for a continuing disability review
will be that required to make a current determination or decision as to
whether you are still disabled, as defined under the medical improvement
review standard. See Secs. 404.1579 and 404.1594.
(b) Obtaining evidence from your medical sources. You must provide
us with reports from your physician, psychologist, or others who have
treated or evaluated you, as well as any other evidence that will help
us determine if you are still disabled. See Sec. 404.1512. You must have
a good reason for not giving us this information or we may find that
your disability has ended. See Sec. 404.1594(e)(2). If we ask you, you
must contact your medical sources to help us get the medical reports. We
will make every reasonable effort to help you in getting medical reports
when you give us permission to request them from your physician,
psychologist, or other medical sources. See Sec. 404.1512(d)(1)
concerning what we mean by every reasonable effort. In some instances,
such as when a source is known to be unable to provide certain tests or
procedures or is known to be nonproductive or uncooperative, we may
order a consultative examination while awaiting receipt of medical
source evidence. Before deciding that your disability has ended, we will
develop a complete medical history covering at least the 12 months
preceding the date you sign a report about your continuing disability
status. See Sec. 404.1512(c).
(c) When we will purchase a consultative examination. A consultative
examination may be purchased when we need additional evidence to
determine whether or not your disability continues. As a result, we may
ask you, upon our request and reasonable notice, to undergo consultative
examinations and tests to help us determine if you are still disabled.
See Sec. 404.1517. We will decide whether or not to purchase a
consultative examination in accordance with the standards in
Secs. 404.1519a through 404.1519b.
[56 FR 36962, Aug. 1, 1991]
Sec. 404.1594 How we will determine whether your disability continues
or ends.
(a) General. There is a statutory requirement that, if you are
entitled to disability benefits, your continued entitlement to such
benefits must be reviewed periodically. If you are entitled
[[Page 395]]
to disability benefits as a disabled worker or as a person disabled
since childhood, or, for monthly benefits payable for months after
December 1990, as a disabled widow, widower, or surviving divorced
spouse, there are a number of factors we consider in deciding whether
your disability continues. We must determine if there has been any
medical improvement in your impairment(s) and, if so, whether this
medical improvement is related to your ability to work. If your
impairment(s) has not medically improved we must consider whether one or
more of the exceptions to medical improvement applies. If medical
improvement related to your ability to work has not occurred and no
exception applies, your benefits will continue. Even where medical
improvement related to your ability to work has occurred or an exception
applies, in most cases (see paragraph (e) of this section for
exceptions), we must also show that you are currently able to engage in
substantial gainful activity before we can find that you are no longer
disabled.
(b) Terms and definitions. There are several terms and definitions
which are important to know in order to understand how we review whether
your disability continues.
(1) Medical improvement. Medical improvement is any decrease in the
medical severity of your impairment(s) which was present at the time of
the most recent favorable medical decision that you were disabled or
continued to be disabled. A determination that there has been a decrease
in medical severity must be based on changes (improvement) in the
symptoms, signs and/or laboratory findings associated with your
impairment(s) (see Sec. 404.1528).
Example 1: You were awarded disability benefits due to a herniated
nucleus pulposus. At the time of our prior decision granting you
benefits you had had a laminectomy. Postoperatively, a myelogram still
shows evidence of a persistent deficit in your lumbar spine. You had
pain in your back, and pain and a burning sensation in your right foot
and leg. There were no muscle weakness or neurological changes and a
modest decrease in motion in your back and leg. When we reviewed your
claim your treating physician reported that he had seen you regularly
every 2 to 3 months for the past 2 years. No further myelograms had been
done, complaints of pain in the back and right leg continued especially
on sitting or standing for more than a short period of time. Your doctor
further reported a moderately decreased range of motion in your back and
right leg, but again no muscle atrophy or neurological changes were
reported. Medical improvement has not occurred because there has been no
decrease in the severity of your back impairment as shown by changes in
symptoms, signs or laboratory findings.
Example 2: You were awarded disability benefits due to rheumatoid
arthritis. At the time, laboratory findings were positive for this
condition. Your doctor reported persistent swelling and tenderness of
your fingers and wrists and that you complained of joint pain. Current
medical evidence shows that while laboratory tests are still positive
for rheumatoid arthritis, your impairment has responded favorably to
therapy so that for the last year your fingers and wrists have not been
significantly swollen or painful. Medical improvement has occurred
because there has been a decrease in the severity of your impairment as
documented by the current symptoms and signs reported by your physician.
Although your impairment is subject to temporary remission and
exacerbations, the improvement that has occurred has been sustained long
enough to permit a finding of medical improvement. We would then
determine if this medical improvement is related to your ability to
work.
(2) Medical improvement not related to ability to do work. Medical
improvement is not related to your ability to work if there has been a
decrease in the severity of the impairment(s) as defined in paragraph
(b)(1) of this section, present at the time of the most recent favorable
medical decision, but no increase in your functional capacity to do
basic work activities as defined in paragraph (b)(4) of this section. If
there has been any medical improvement in your impairment(s), but it is
not related to your ability to do work and none of the exceptions
applies, your benefits will be continued.
Example: You are 65 inches tall and weighed 246 pounds at the time
your disability was established. You had venous insufficiency and
persistent edema in your legs. At the time, your ability to do basic
work activities was affected because you were able to sit for 6 hours,
but were able to stand or walk only occasionally. At the time of our
continuing disability review, you had undergone a vein stripping
operation. You now weigh 220 pounds and have intermittent edema. You are
still able to sit for 6 hours at a time and to stand or walk only
occasionally although you report less discomfort on walking. Medical
improvement has occurred
[[Page 396]]
because there has been a decrease in the severity of the existing
impairment as shown by your weight loss and the improvement in your
edema. This medical improvement is not related to your ability to work,
however, because your functional capacity to do basic work activities
(i.e., the ability to sit, stand and walk) has not increased.
(3) Medical improvement that is related to ability to do work.
Medical improvement is related to your ability to work if there has been
a decrease in the severity, as defined in paragraph (b)(1) of this
section, of the impairment(s) present at the time of the most recent
favorable medical decision and an increase in your functional capacity
to do basic work activities as discussed in paragraph (b)(4) of this
section. A determination that medical improvement related to your
ability to do work has occurred does not, necessarily, mean that your
disability will be found to have ended unless it is also shown that you
are currently able to engage in substantial gainful activity as
discussed in paragraph (b)(5) of this section.
Example 1: You have a back impairment and had a laminectomy to
relieve the nerve root impingement and weakness in your left leg. At the
time of our prior decision, basic work activities were affected because
you were able to stand less than 6 hours, and sit no more than \1/2\
hour at a time. You had a successful fusion operation on your back about
1 year before our review of your entitlement. At the time of our review,
the weakness in your leg has decreased. Your functional capacity to
perform basic work activities now is unimpaired because you now have no
limitation on your ability to sit, walk, or stand. Medical improvement
has occurred because there has been a decrease in the severity of your
impairment as demonstrated by the decreased weakness in your leg. This
medical improvement is related to your ability to work because there has
also been an increase in your functional capacity to perform basic work
activities (or residual functional capacity) as shown by the absence of
limitation on your ability to sit, walk, or stand. Whether or not your
disability is found to have ended, however, will depend on our
determination as to whether you can currently engage in substantial
gainful activity.
Example 2: You were injured in an automobile accident receiving a
compound fracture to your right femur and a fractured pelvis. When you
applied for disability benefits 10 months after the accident your doctor
reported that neither fracture had yet achieved solid union based on his
clinical examination. X-rays supported this finding. Your doctor
estimated that solid union and a subsequent return to full weight
bearing would not occur for at least 3 more months. At the time of our
review 6 months later, solid union had occurred and you had been
returned to full weight-bearing for over a month. Your doctor reported
this and the fact that your prior fractures no longer placed any
limitation on your ability to walk, stand, lift, etc., and, that in
fact, you could return to fulltime work if you so desired.
Medical improvement has occurred because there has been a decrease
in the severity of your impairments as shown by X-ray and clinical
evidence of solid union and your return to full weight-bearing. This
medical improvement is related to your ability to work because you no
longer meet the same listed impairment in appendix 1 of this subpart
(see paragraph (c)(3)(i) of this section). In fact, you no longer have
an impairment which is severe (see Sec. 404.1521) and your disability
will be found to have ended.
(4) Functional capacity to do basic work activities. Under the law,
disability is defined, in part, as the inability to do any substantial
gainful activity by reason of any medically determinable physical or
mental impairment(s). In determining whether you are disabled under the
law, we must measure, therefore, how and to what extent your
impairment(s) has affected your ability to do work. We do this by
looking at how your functional capacity for doing basic work activities
has been affected. Basic work activities means the abilities and
aptitudes necessary to do most jobs. Included are exertional abilities
such as walking, standing, pushing, pulling, reaching and carrying, and
nonexertional abilities and aptitudes such as seeing, hearing, speaking,
remembering, using judgment, dealing with changes and dealing with both
supervisors and fellow workers. A person who has no impairment(s) would
be able to do all basic work activities at normal levels; he or she
would have an unlimited functional capacity to do basic work activities.
Depending on its nature and severity, an impairment will result in some
limitation to the functional capacity to do one or more of these basic
work activities. Diabetes, for example, can result in circulatory
problems which could limit the length of time a person could stand or
walk and damage to his or her eyes as well, so that the person also had
[[Page 397]]
limited vision. What a person can still do despite an impairment, is
called his or her residual functional capacity. How the residual
functional capacity is assessed is discussed in more detail in
Sec. 404.1545. Unless an impairment is so severe that it is deemed to
prevent you from doing substantial gainful activity (see Secs. 404.1525
and 404.1526), it is this residual functional capacity that is used to
determine whether you can still do your past work or, in conjunction
with your age, education and work experience, any other work.
(i) A decrease in the severity of an impairment as measured by
changes (improvement) in symptoms, signs or laboratory findings can, if
great enough, result in an increase in the functional capacity to do
work activities. Vascular surgery (e.g., femoropopliteal bypass) may
sometimes reduce the severity of the circulatory complications of
diabetes so that better circulation results and the person can stand or
walk for longer periods. When new evidence showing a change in signs,
symptoms and laboratory findings establishes that both medical
improvement has occurred and your functional capacity to perform basic
work activities, or residual functional capacity, has increased, we say
that medical improvement which is related to your ability to do work has
occurred. A residual functional capacity assessment is also used to
determine whether you can engage in substantial gainful activity and,
thus, whether you continue to be disabled (see paragraph (b)(5) of this
section).
(ii) Many impairment-related factors must be considered in assessing
your functional capacity for basic work activities. Age is one key
factor. Medical literature shows that there is a gradual decrease in
organ function with age; that major losses and deficits become
irreversible over time and that maximum exercise performance diminishes
with age. Other changes related to sustained periods of inactivity and
the aging process include muscle atrophy, degenerative joint changes,
decrease in range of motion, and changes in the cardiac and respiratory
systems which limit the exertional range.
(iii) Studies have also shown that the longer an individual is away
from the workplace and is inactive, the more difficult it becomes to
return to ongoing gainful employment. In addition, a gradual change
occurs in most jobs so that after about 15 years, it is no longer
realistic to expect that skills and abilities acquired in these jobs
will continue to apply to the current workplace. Thus, if you are age 50
or over and have been receiving disability benefits for a considerable
period of time, we will consider this factor along with your age in
assessing your residual functional capacity. This will ensure that the
disadvantages resulting from inactivity and the aging process during a
long period of disability will be considered. In some instances where
available evidence does not resolve what you can or cannot do on a
sustained basis, we will provide special work evaluations or other
appropriate testing.
(5) Ability to engage in substantial gainful activity. In most
instances, we must show that you are able to engage in substantial
gainful activity before your benefits are stopped. When doing this, we
will consider all your current impairments not just that impairment(s)
present at the time of the most recent favorable determination. If we
cannot determine that you are still disabled based on medical
considerations alone (as discussed in Secs. 404.1525 and 404.1526), we
will use the new symptoms, signs and laboratory findings to make an
objective assessment of your functional capacity to do basic work
activities or residual functional capacity and we will consider your
vocational factors. See Secs. 404.1545 through 404.1569.
(6) Evidence and basis for our decision. Our decisions under this
section will be made on a neutral basis without any initial inference as
to the presence or absence of disability being drawn from the fact that
you have previously been determined to be disabled. We will consider all
evidence you submit, as well as all evidence we obtain from your
treating physician(s) and other medical or nonmedical sources. What
constitutes evidence and our procedures for obtaining it are set out in
Secs. 404.1512
[[Page 398]]
through 404.1518. Our determination regarding whether your disability
continues will be made on the basis of the weight of the evidence.
(7) Point of comparison. For purposes of determining whether medical
improvement has occurred, we will compare the current medical severity
of that impairment(s) which was present at the time of the most recent
favorable medical decision that you were disabled or continued to be
disabled to the medical severity of that impairment(s) at that time. If
medical improvement has occurred, we will compare your current
functional capacity to do basic work activities (i.e., your residual
functional capacity) based on this previously existing impairment(s)
with your prior residual functional capacity in order to determine
whether the medical improvement is related to your ability to do work.
The most recent favorable medical decision is the latest decision
involving a consideration of the medical evidence and the issue of
whether you were disabled or continued to be disabled which became
final.
(c) Determining medical improvement and its relationship to your
abilities to do work. Paragraphs (b) (1) through (3) of this section
discuss what we mean by medical improvement, medical improvement not
related to your ability to work and medical improvement that is related
to your ability to work. How we will arrive at the decision that medical
improvement has occurred and its relationship to the ability to do work,
is discussed below.
(1) Medical improvement. Medical improvement is any decrease in the
medical severity of impairment(s) present at the time of the most recent
favorable medical decision that you were disabled or continued to be
disabled and is determined by a comparison of prior and current medical
evidence which must show that there have been changes (improvement) in
the symptoms, signs or laboratory findings associated with that
impairment(s).
(2) Determining if medical improvement is related to ability to
work. If there is a decrease in medical severity as shown by the
symptoms, signs and laboratory findings, we then must determine if it is
related to your ability to do work. In paragraph (b)(4) of this section,
we explain the relationship between medical severity and limitation on
functional capacity to do basic work activities (or residual functional
capacity) and how changes in medical severity can affect your residual
functional capacity. In determining whether medical improvement that has
occurred is related to your ability to do work, we will assess your
residual functional capacity (in accordance with paragraph (b)(4) of
this section) based on the current severity of the impairment(s) which
was present at your last favorable medical decision. Your new residual
functional capacity will then be compared to your residual functional
capacity at the time of our most recent favorable medical decision.
Unless an increase in the current residual functional capacity is based
on changes in the signs, symptoms, or laboratory findings, any medical
improvement that has occurred will not be considered to be related to
your ability to do work.
(3) Following are some additional factors and considerations which
we will apply in making these determinations.
(i) Previous impairment met or equaled listings. If our most recent
favorable decision was based on the fact that your impairment(s) at the
time met or equaled the severity contemplated by the Listing of
Impairments in appendix 1 of this subpart, an assessment of your
residual functional capacity would not have been made. If medical
improvement has occurred and the severity of the prior impairment(s) no
longer meets or equals the same listing section used to make our most
recent favorable decision, we will find that the medical improvement was
related to your ability to work. Appendix 1 of this subpart describes
impairments which, if severe enough, affect a person's ability to work.
If the appendix level of severity is met or equaled, the individual is
deemed, in the absence of evidence to the contrary, to be unable to
engage in substantial gainful activity. If there has been medical
improvement to the degree that the requirement of the listing section is
no longer met or equaled, then the medical improvement is related to
your ability to work. We must, of
[[Page 399]]
course, also establish that you can currently engage in gainful activity
before finding that your disability has ended.
(ii) Prior residual functional capacity assessment made. The
residual functional capacity assessment used in making the most recent
favorable medical decision will be compared to the residual functional
capacity assessment based on current evidence in order to determine if
your functional capacity for basic work activities has increased. There
will be no attempt made to reassess the prior residual functional
capacity.
(iii) Prior residual functional capacity assessment should have been
made, but was not. If the most recent favorable medical decision should
have contained an assessment of your residual functional capacity (i.e.,
your impairments did not meet or equal the level of severity
contemplated by the Listing of Impairments in appendix 1 of this
subpart) but does not, either because this assessment is missing from
your file or because it was not done, we will reconstruct the residual
functional capacity. This reconstructed residual functional capacity
will accurately and objectively assess your functional capacity to do
basic work activities. We will assign the maximum functional capacity
consistent with an allowance.
Example: You were previously found to be disabled on the basis that
``while your impairment did not meet or equal a listing, it did prevent
you from doing your past or any other work.'' The prior adjudicator did
not, however, include a residual functional capacity assessment in the
rationale of this decision and a review of the prior evidence does not
show that such an assessment was ever made. If a decrease in medical
severity, i.e., medical improvement, has occurred, the residual
functional capacity based on the current level of severity of your
impairment will have to be compared with your residual functional
capacity based on its prior severity in order to determine if the
medical improvement is related to your ability to do work. In order to
make this comparison, we will review the prior evidence and make an
objective assessment of your residual functional capacity at the time of
our most recent favorable medical determination, based on the symptoms,
signs and laboratory findings as they then existed.
(iv) Impairment subject to temporary remission. In some cases the
evidence shows that an individual's impairments are subject to temporary
remission. In assessing whether medical improvement has occurred in
persons with this type of impairment, we will be careful to consider the
longitudinal history of the impairments, including the occurrence of
prior remission, and prospects for future worsenings. Improvement in
such impairments that is only temporary will not warrant a finding of
medical improvement.
(v) Prior file cannot be located. If the prior file cannot be
located, we will first determine whether you are able to now engage in
substantial gainful activity based on all your current impairments. (In
this way, we will be able to determine that your disability continues at
the earliest point without addressing the often lengthy process of
reconstructing prior evidence.) If you cannot engage in substantial
gainful activity currently, your benefits will continue unless one of
the second group of exceptions applies (see paragraph (e) of this
section). If you are able to engage in substantial gainful activity, 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 medical decision (e.g., work history, medical evidence from
treating sources and the results of consultative examinations). This
determination will consider the potential availability of old records in
light of their age, whether the source of the evidence is still in
operation; and whether reconstruction efforts will yield a complete
record of the basis for the most recent favorable medical decision. If
relevant parts of the prior record are not reconstructed either because
it is determined not to attempt reconstruction or because such efforts
fail, medical improvement cannot be found. The documentation of your
current impairments will provide a basis for any future reviews. If the
missing file is later found, it may serve as a basis for reopening any
decision under this section in accordance with the rules in
Sec. 404.988.
(d) First group of exceptions to medical improvement. The law
provides for certain limited situations when your disability can be
found to have ended even though medical improvement has not occurred, if
you can engage in substantial gainful activity. These exceptions
[[Page 400]]
to medical improvement are intended to provide a way of finding that a
person is no longer disabled in those limited 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, taking all your current
impairment(s) into account, not just those that existed at the time of
our most recent favorable medical decision, you are now able to engage
in substantial gainful activity before your disability can be found to
have ended. As part of the review process, you will be asked about any
medical or vocational therapy you received or are receiving. Your
answers and the evidence gathered as a result as well as all other
evidence, will serve as the basis for the finding that an exception
applies.
(1) Substantial evidence shows that you are the beneficiary of
advances in medical or vocational therapy or technology (related to your
ability to work). Advances in medical or vocational therapy or
technology are improvements in treatment or rehabilitative methods which
have increased your ability to do basic work activities. We will apply
this exception when substantial evidence shows that you have been the
beneficiary of services which reflect these advances and they have
favorably affected the severity of your impairment or your ability to do
basic work activities. This decision will be based on new medical
evidence and a new residual functional capacity assessment. (See
Sec. 404.1545.) In many instances, an advanced medical therapy or
technology will result in a decrease in severity as shown by symptoms,
signs and laboratory findings which will meet the definition of medical
improvement. This exception will, therefore, see very limited
application.
(2) Substantial evidence shows that you have undergone vocational
therapy (related to your ability to work). Vocational therapy (related
to your ability to work) may include, but is not limited to, additional
education, training, or work experience that improves your ability to
meet the vocational requirements of more jobs. This decision will be
based on substantial evidence which includes new medical evidence and a
new residual functional capacity assessment. (See Sec. 404.1545.) If, at
the time of our review you have not completed vocational therapy which
could affect the continuance of your disability, we will review your
claim upon completion of the therapy.
Example 1: You were found to be disabled because the limitations
imposed on you by your impairment allowed you to only do work that was
at a sedentary level of exertion. Your prior work experience was work
that required a medium level of exertion. Your age and education at the
time would not have qualified you for work that was below this medium
level of exertion. You enrolled in and completed a specialized training
course which qualifies you for a job in data processing as a computer
programmer in the period since you were awarded benefits. On review of
your claim, current evidence shows that there is no medical improvement
and that you can still do only sedentary work. As the work of a computer
programmer is sedentary in nature, you are now able to engage in
substantial gainful activity when your new skills are considered.
Example 2: You were previously entitled to benefits because the
medical evidence and assessment of your residual functional capacity
showed you could only do light work. Your prior work was considered to
be heavy in nature and your age, education and the nature of your prior
work qualified you for work which was no less than medium in exertion.
The current evidence and residual functional capacity show there has
been no medical improvement and that you can still do only light work.
Since you were originally entitled to benefits, your vocational
rehabilitation agency enrolled you in and you successfully completed a
trade school course so that you are now qualified to do small appliance
repair. This work is light in nature, so when your new skills are
considered, you are now able to engage in substantial gainful activity
even though there has been no change in your residual functional
capacity.
(3) Substantial evidence shows that based on new or improved
diagnostic or evaluative techniques 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 or evaluative techniques have given, and will continue
to give, rise to improved methods for measuring and documenting the
effect of various impairments on the ability to do work.
[[Page 401]]
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 medical decision, such evidence may serve as a
basis for finding that you are no longer disabled, if you can currently
engage in substantial gainful activity. In order to be used under this
exception, however, the new or improved techniques must have become
generally available after the date of our most recent favorable medical
decision.
(i) How we will determine which methods are new or improved
techniques and when they become generally available. New or improved
diagnostic techniques or evaluations will come to our attention by
several methods. In reviewing cases, we often become aware of new
techniques when their results are presented as evidence. Such techniques
and evaluations are also discussed and acknowledged in medical
literature by medical professional groups and other governmental
entities. Through these sources, we develop listings of new techniques
and when they become generally available. For example, we will consult
the Health Care Financing Administration for its experience regarding
when a technique is recognized for payment under Medicare and when they
began paying for the technique.
(ii) How you will know which methods are new or improved techniques
and when they become generally available. We will let you know which
methods we consider to be new or improved techniques and when they
become available through two vehicles.
(A) Some of the future changes in the Listing of Impairments in
appendix 1 of this subpart will be based on new or improved diagnostic
or evaluative techniques. Such listings changes will clearly state this
fact as they are published as Notices of Proposed Rulemaking and the new
or improved technique will be considered generally available as of the
date of the final publication of that particular listing in the Federal
Register.
(B) A cumulative list since 1970 of new or improved diagnostic
techniques or evaluations, how they changed the evaluation of the
applicable impairment and the month and year they became generally
available, will be published in the Notices section of the Federal
Register. Included will be any changes in the Listing of Impairments
published in the Code of Federal Regulations since 1970 which are
reflective of new or improved techniques. No cases will be processed
under this exception until this cumulative listing is so published.
Subsequent changes to the list will be published periodically. The
period will be determined by the volume of changes needed.
Example: The electrocardiographic exercise test has replaced the
Master's 2-step test as a measurement of heart function since the time
of your last favorable medical decision. Current evidence could show
that your condition, which was previously evaluated based on the
Master's 2-step test, is not now as disabling as was previously thought.
If, taking all your current impairments into account, you are now able
to engage in substantial gainful activity, this exception would be used
to find that you are no longer disabled even if medical improvement has
not occurred.
(4) Substantial evidence demonstrates that any prior disability
decision was in error. We will apply the exception to medical
improvement based on error if substantial evidence (which may be
evidence on the record at the time any prior determination of the
entitlement to benefits based on disability was made, or newly obtained
evidence which relates to that determination) demonstrates that a prior
determination was in error. A prior determination will be found in error
only if:
(i) Substantial evidence shows on its face that the decision in
question should not have been made (e.g., the evidence in your file such
as pulmonary function study values was misread or an adjudicative
standard such as a listing in appendix 1 or a medical/vocational rule in
appendix 2 of this subpart was misapplied).
Example 1: You were granted benefits when it was determined that
your epilepsy met Listing 11.02. This listing calls for a finding of
major motor seizures more frequently than once a month as documented by
EEG evidence and by a detailed description of a typical seizure pattern.
A history of either diurnal episodes or nocturnal episodes with
residuals interfering with daily activities is also required. On review,
it is found that a history of the frequency of your seizures showed that
they occurred only once or twice a year. The prior decision would be
[[Page 402]]
found to be in error, and whether you were still considered to be
disabled would be based on whether you could currently engage in
substantial gainful activity.
Example 2: Your prior award of benefits was based on vocational
rule 201.12 in appendix 2 of this subpart. This rule applies to a person
age 50-54 who has at least a high school education, whose previous work
was entirely at a semiskilled level, and who can do only sedentary work.
On review, it is found that at the time of the prior determination you
were actually only age 46 and vocational rule 201.21 should have been
used. This rule would have called for a denial of your claim and the
prior decision is found to have been in error. Continuation of your
disability would depend on a finding of your current ability to engage
in substantial gainful activity.
(ii) At the time of the prior evaluation, required and material
evidence of the severity of your impairment(s) was missing. That
evidence becomes available upon review, and substantial evidence
demonstrates that had such evidence been present at the time of the
prior determination, disability would not have been found.
Example: You were found disabled on the basis of chronic
obstructive pulmonary disease. The severity of your impairment was
documented primarily by pulmonary function testing results. The evidence
showed that you could do only light work. Spirometric tracings of this
testing, although required, were not obtained, however. On review, the
original report is resubmitted by the consultative examining physician
along with the corresponding spirometric tracings. A review of the
tracings shows that the test was invalid. Current pulmonary function
testing supported by spirometric tracings reveals that your impairment
does not limit your ability to perform basic work activities in any way.
Error is found based on the fact that required, material evidence which
was originally missing now becomes available and shows that if it had
been available at the time of the prior determination, disability would
not have been found.
(iii) Substantial evidence which is new evidence which relates to
the prior determination (of allowance or continuance) refutes the
conclusions that were based upon the prior evidence (e.g., a tumor
thought to be malignant was later shown to have actually been benign).
Substantial evidence must show that had the new evidence (which relates
to the prior determination) been considered at the time of the prior
decision, the claim would not have been allowed or continued. A
substitution of current judgment for that used in the prior favorable
decision will not be the basis for applying this exception.
Example: You were previously found entitled to benefits on the
basis of diabetes mellitus which the prior adjudicator believed was
equivalent to the level of severity contemplated in the Listing of
Impairments. The prior record shows that you had ``brittle'' diabetes
for which you were taking insulin. Your urine was 3+ for sugar, and you
alleged occasional hypoglycemic attacks caused by exertion. On review,
symptoms, signs and laboratory findings are unchanged. The current
adjudicator feels, however, that your impairment clearly does not equal
the severity contemplated by the listings. Error cannot be found because
it would represent a substitution of current judgment for that of the
prior adjudicator that your impairment equaled a listing.
(iv) The exception for error will not be applied retroactively under
the conditions set out above unless the conditions for reopening the
prior decision (see Sec. 404.988) are met.
(5) You are currently engaging in substantial gainful activity. If
you are currently engaging in substantial gainful activity before we
determine whether you are no longer disabled because of your work
activity, we will consider whether you are entitled to a trial work
period as set out in Sec. 404.1592. We will find that your disability
has ended in the month in which you demonstrated your ability to engage
in substantial gainful activity (following completion of a trial work
period, where it applies). This exception does not apply in determining
whether you continue to have a disabling impairment(s) (Sec. 404.1511)
for purposes of deciding your eligibility for a reentitlement period
(Sec. 404.1592a).
(e) Second group of exceptions to medical improvement. In addition
to the first group of exceptions to medical improvement, the following
exceptions may result in a determination that you are no longer
disabled. In these situations the decision will be made without a
determination that you have medically improved or can engage in
substantial gainful activity.
(1) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim
[[Page 403]]
under the rules in Sec. 404.988. In determining whether a prior
favorable determination or decision was fraudulently obtained, we will
take into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
which you may have had at the time.
(2) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical or
other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 404.911 explains the
factors we consider and how we will determine generally whether you have
good cause for failure to cooperate. In addition, Sec. 404.1518
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your disability
ends will be the first month in which you failed to do what we asked.
(3) We are unable to find you. If there is a question about whether
you continue to be disabled and we are unable to find you to resolve the
question, we will determine that your disability has ended. The month
your disability ends will be the first month in which the question arose
and we could not find you.
(4) You fail to follow prescribed treatment which would be expected
to restore your ability to engage in substantial gainful activity. If
treatment has been prescribed for you which would be expected to restore
your ability to work, you must follow that treatment in order to be paid
benefits. If you are not following that treatment and you do not have
good cause for failing to follow that treatment, we will find that your
disability has ended (see Sec. 404.1530(c)). The month your disability
ends will be the first month in which you failed to follow the
prescribed treatment.
(f) Evaluation steps. To assure 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 will follow specific steps in
reviewing the question of whether your disability continues. Our review
may cease and benefits may be continued at any point if we determine
there is sufficient evidence to find that you are still unable to engage
in substantial gainful activity. The steps are:
(1) Are you engaging in substantial gainful activity? If you are
(and any applicable trial work period has been completed), we will find
disability to have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of
impairments which meets or equals the severity of an impairment listed
in appendix 1 of this subpart? If you do, your disability will be found
to continue.
(3) If you do not, has there been medical improvement as defined in
paragraph (b)(1) of this section? If there has been medical improvement
as shown by a decrease in medical severity, see step (4). If there has
been no decrease in medical severity, there has been no medical
improvement. (See step (5).)
(4) If there has been medical improvement, we must determine whether
it is related to your ability to do work in accordance with paragraphs
(b)(1) through (4) of this section; i.e., whether or not there has been
an increase in the residual functional capacity based on the
impairment(s) that was present at the time of the most recent favorable
medical determination. If medical improvement is not related to your
ability to do work, see step (5). If medical improvement is related to
your ability to do work, see step (6).
(5) If we found at step (3) that there has been no medical
improvement or if we found at step (4) that the medical improvement is
not related to your ability to work, we consider whether any of the
exceptions in paragraphs (d) and (e) of this section apply. If none of
them apply, your disability will be found to continue. If one of the
first group of exceptions to medical improvement applies, see step (6).
If an exception from the second group of exceptions to medical
improvement applies, your disability will be found to
[[Page 404]]
have ended. The second group of exceptions to medical improvement may be
considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to
do work or if one of the first group of exceptions to medical
improvement applies, we will determine whether all your current
impairments in combination are severe (see Sec. 404.1521). This
determination will consider all your current impairments and the impact
of the combination of those impairments on your ability to function. If
the residual functional capacity assessment in step (4) above shows
significant limitation of your ability to do basic work activities, see
step (7). When the evidence shows that all your current impairments in
combination do not significantly limit your physical or mental abilities
to do basic work activities, these impairments will not be considered
severe in nature. If so, you will no longer be considered to be
disabled.
(7) If your impairment(s) is severe, we will assess your current
ability to engage in substantial gainful activity in accordance with
Sec. 404.1561. That is we will assess your residual functional capacity
based on all your current impairments and consider whether you can still
do work you have done in the past. If you can do such work, disability
will be found to have ended.
(8) If you are not able to do work you have done in the past, we
will consider one final step. Given the residual functional capacity
assessment and considering your age, education and past work experience,
can you do other work? If you can, disability will be found to have
ended. If you cannot, disability will be found to continue.
(g) The month in which we will find you are no longer disabled. If
the evidence shows that you are no longer disabled, we will find that
your disability ended in the earliest of the following months.
(1) The month the evidence shows you are no longer disabled under
the rules set out in this section, and you were disabled only for a
specified period of time in the past;
(2) The month the evidence shows you are no longer disabled under
the rules set out in this section, but not earlier than the month in
which we mail you a notice saying that the information we have shows
that you are not disabled;
(3) The month in which you demonstrated your ability to engage in
substantial gainful activity (following completion of a trial work
period); however, we may pay you benefits for certain months in and
after the reentitlement period which follows the trial work period. (See
Sec. 404.1592a for a discussion of the reentitlement period. If you are
receiving benefits on your own earnings record, see Sec. 404.316 for
when your benefits will end. See Sec. 404.352 if you are receiving
benefits on a parent's earnings as a disabled adult child.);
(4) The month in which you actually do substantial gainful activity
(where you are not entitled to a trial work period);
(5) The month in which you return to full-time work, with no
significant medical restrictions and acknowledge that medical
improvement has occurred, and we expected your impairment(s) to improve
(see Sec. 404.1591);
(6) The first month in which you failed without good cause to do
what we asked, when the rule set out in paragraph (e)(2) of this section
applies;
(7) The first month in which the question of continuing disability
arose and we could not find you, when the rule set out in paragraph
(e)(3) of this section applies;
(8) The first month in which you failed without good cause to follow
prescribed treatment, when the rule set out in paragraph (e)(4) of this
section applies; or
(9) The first month you were told by your physician that you could
return to work provided there is no substantial conflict between your
physician's and your statements regarding your awareness of your
capacity for work and the earlier date is supported by the medical
evidence.
(h) Before we stop your benefits. Before we stop your benefits or a
period of disability, we will give you a chance to explain why we should
not do so. Sections 404.1595 and 404.1597 describe your
[[Page 405]]
rights (including appeal rights) and the procedures we will follow.
[50 FR 50130, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr.
30, 1986, as amended at 52 FR 44971, Nov. 24, 1987; 57 FR 30121, July 8,
1992; 59 FR 1635, Jan. 12, 1994]
Sec. 404.1595 When we determine that you are not now disabled.
(a) When we will give you advance notice. Except in those
circumstances described in paragraph (d) of this section, we will give
you advance notice when we have determined that you are not now disabled
because the information we have conflicts with what you have told us
about your disability. If your dependents are receiving benefits on your
Social Security number and do not live with you, we will also give them
advance notice. To give you advance notice, we will contact you by mail,
telephone or in person.
(b) What the advance notice will tell you. We will give you a
summary of the information we have. We will also tell you why we have
determined that you are not now disabled, and will give you a chance to
reply. If it is because of--
(1) Medical reasons. The advance notice will tell you what the
medical information in your file shows;
(2) Your work activity. The advance notice will tell you what
information we have about the work you are doing or have done, and why
this work shows that you are not disabled; or
(3) Your failure to give us information we need or do what we ask.
The advance notice will tell you what information we need and why we
need it or what you have to do and why.
(c) What you should do if you receive an advance notice. If you
agree with the advance notice, you do not need to take any action. If
you desire further information or disagree with what we have told you,
you should immediately write or telephone the State agency or the social
security office that gave you the advance notice or you may visit any
social security office. If you believe you are now disabled, you should
tell us why. You may give us any additional or new information,
including reports from your doctors, hospitals, employers or others,
that you believe we should have. You should send these as soon as
possible to the local social security office or to the office that gave
you the advance notice. We consider 10 days to be enough time for you to
tell us, although we will allow you more time if you need it. You will
have to ask for additional time beyond 10 days if you need it.
(d) When we will not give you advance notice. We will not give you
advance notice when we determine that you are not disabled if--
(1) We recently told you that the information we have shows that you
are not now disabled, that we were gathering more information, and that
your benefits will stop; or
(2) We are stopping your benefits because you told us you are not
now disabled; or
(3) We recently told you that continuing your benefits would
probably cause us to overpay you and you asked us to stop your benefits.
Sec. 404.1596 Circumstances under which we may suspend your benefits
before we make a determination.
(a) General. Under some circumstances, we may stop your benefits
before we make a determination. Generally, we do this when the
information we have clearly shows you are not now disabled but we cannot
determine when your disability ended. These situations are described in
paragraph (b)(1) and other reasons are given in paragraph (b)(2) of this
section. We refer to this as a suspension of benefits. Your benefits, as
well as those of your dependents (regardless of where they receive their
benefits), may be suspended. When we do this we will give you advance
notice. (See Sec. 404.1595.) We will contact your spouse and children if
they are receiving benefits on your Social Security number, and the
benefits are being mailed to an address different from your own.
(b) When we will suspend your benefits--(1) You are not now
disabled. We will suspend your benefits if the information we have
clearly shows that you are not disabled and we will be unable to
complete a determination soon enough to prevent us from paying you more
monthly benefits than you are entitled to. This may occur when--
(i) New medical or other information clearly shows that you are able
to do
[[Page 406]]
substantial gainful activity and your benefits should have stopped more
than 2 months ago;
(ii) You completed a 9-month period of trial work more than 2 months
ago and you are still working;
(iii) At the time you filed for benefits your condition was expected
to improve and you were expected to be able to return to work. You
subsequently did return to work more than 2 months ago with no
significant medical restrictions; or
(iv) You are not entitled to a trial work period and you are
working.
(2) Other reasons. We will also suspend your benefits if--
(i) You have failed to respond to our request for additional medical
or other evidence and we are satisfied that you received our request and
our records show that you should be able to respond.
(ii) We are unable to locate you and your checks have been returned
by the Post Office as undeliverable; or
(iii) You refuse to accept vocational rehabilitation services
without a good reason. Section 404.422 gives you examples of good
reasons for refusing to accept vocational rehabilitation services.
(c) When we will not suspend your cash benefits. We will not suspend
your cash benefits if--
(1) The evidence in your file does not clearly show that you are not
disabled;
(2) We have asked you to furnish additional information;
(3) You have become disabled by another impairment; or
(4) After November 1980, even though your impairment is no longer
disabling,
(i) You are participating in an appropriate vocational
rehabilitation program (that is, one that has been approved under a
State plan approved under title I of the Rehabilitation Act of 1973 and
which meets the requirements outlined in 34 CFR part 361) which you
began during your disability,
(ii) Your disability did not end before December 1, 1980, and
(iii) We have determined that your completion of the program, or
your continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
[45 FR 55584, Aug. 20, 1980, as amended at 47 FR 31543, July 21, 1982;
47 FR 52693, Nov. 23, 1982; 51 FR 17617, May 14, 1986]
Sec. 404.1597 After we make a determination that you are not now
disabled.
(a) General. If we determine that you do not meet the disability
requirements of the law, your benefits generally will stop. We will send
you a formal written notice telling you why we believe you are not
disabled and when your benefits should stop. If your spouse and children
are receiving benefits on your Social Security number, we will also stop
their benefits and tell them why. The notices will explain your right to
reconsideration if you disagree with our determination. However, your
benefits may continue after November 1980 even though your impairment is
no longer disabling, if your disability did not end before December
1980, and you are particpating in an appropriate vocational
rehabilitation program as described in Sec. 404.1596 which you began
before your disability ended. In addition, we must have determined that
your completion of the program, or your continuation in the program for
a specified period of time, will significantly increase the likelihood
that you will not have to return to the disability benefit rolls. You
may still appeal our determination that you are not disabled even though
your benefits are continuing because of your participation in an
appropriate vocational rehabilitation program. You may also appeal a
determination that your completion or of continuation for a specified
period of time in an appropriate vocational rehabilitation program will
not significantly increase the likelihood that you will not have to
return to the disability benefit rolls and, therefore, you are not
entitled to continue to receive benefits.
(b) If we make a determination that your physical or mental
impairment(s) has ceased, did not exist, or is no longer disabling
(Medical Cessation Determination). If we make a determination that the
physical or mental impairment(s) on the basis of which benefits were
payable has ceased, did not exist, or is no longer disabling (a medical
cessation
[[Page 407]]
determination), your benefits will stop. As described in paragraph (a)
of this section, you will receive a written notice explaining this
determination and the month your benefits will stop. The written notice
will also explain your right to appeal if you disagree with our
determination and your right to request that your benefits and the
benefits, if any, of your spouse or children, be continued under
Sec. 404.1597a. For the purpose of this section, benefits means
disability cash payments and/or Medicare, if applicable. The continued
benefit provisions of this section do not apply to an initial
determination on an application for disability benefits, or to a
determination that you were disabled only for a specified period of
time.
[47 FR 31544, July 21, 1982, as amended at 51 FR 17618, May 14, 1986; 53
FR 29020, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988]
Sec. 404.1597a Continued benefits pending appeal of a medical cessation
determination.
(a) General. If we determine that you are not entitled to benefits
because the physical or mental impairment(s) on the basis of which such
benefits were payable is found to have ceased, not to have existed, or
to no longer be disabling, and you appeal that determination, you may
choose to have your benefits continued pending reconsideration and/or a
hearing before an administrative law judge on the disability cessation
determination. For the purpose of this entire section, the election of
continued benefits means the election of disability cash payments and/or
Medicare, if applicable. You can also choose to have the benefits
continued for anyone else receiving benefits based on your wages and
self-employment income (and anyone else receiving benefits because of
your entitlement to benefits based on disability). If you appeal a
medical cessation under both title II and title XVI (a concurrent case),
the title II claim will be handled in accordance with title II
regulations while the title XVI claim will be handled in accordance with
the title XVI regulations.
(b) When the provisions of this section are available. (1) Benefits
may be continued under this section only if the determination that your
physical or mental impairment(s) has ceased, has never existed, or is no
longer disabling is made on or after January 12, 1983 (or before January
12, 1983, and a timely request for reconsideration or a hearing before
an administrative law judge is pending on that date).
(2) Benefits may be continued under this section only for months
beginning with January 1983, or the first month for which benefits are
no longer otherwise payable following our determination that your
physical or mental impairment(s) has ceased, has never existed, or is no
longer disabling, whichever is later.
(3) Continued payment of benefits under this section will stop
effective with the earlier of:
(i) The month before the month in which an administrative law
judge's hearing decision finds that your physical or mental
impairment(s) has ceased, has never existed, or is no longer disabling
or the month before the month of a new administrative law judge decision
(or final action by the Appeals Council on the administrative law
judge's recommended decision) if your case was sent back to an
administrative law judge for further action; or
(ii) The month before the month no timely request for a
reconsideration or a hearing before an administrative law judge is
pending. These continued benefits may be stopped or adjusted because of
certain events (such as work and earnings or receipt of worker's
compensation) which occur while you are receiving these continued
benefits and affect your right to receive continued benefits.
These continued benefits may be stopped or adjusted because of certain
events (such as work and earning or receipt of worker's compensation)
which occur while you are receiving these continued benefits and affect
your right to receive continued benefits.
(c) Continuation of benefits for anyone else pending your appeal.
(1) When you file a request for reconsideration or hearing before an
administrative law judge on our determination that your physical or
mental impairment(s) has ceased, has never existed, or is no longer
disabling, or your case has been
[[Page 408]]
sent back (remanded) to an administrative law judge for further action,
you may also choose to have benefits continue for anyone else who is
receiving benefits based on your wages and self-employment income (and
for anyone else receiving benefits because of your entitlement to
benefits based on disability), pending the outcome of your appeal.
(2) If anyone else is receiving benefits based on your wages and
self-employment income, we will notify him or her of the right to choose
to have his or her benefits continue pending the outcome of your appeal.
Such benefits can be continued for the time period in paragraph (b) of
this section only if he or she chooses to have benefits continued and
you also choose to have his or her benefits continued.
(d) Statement of choice. When you or another party request
reconsideration under Sec. 404.908(a) or a hearing before an
administrative law judge under Sec. 404.932(a) on our determination that
your physical or mental impairment(s) has ceased, has never existed, or
is no longer disabling, or if your case is sent back (remanded) to an
administrative law judge for further action, we will explain your right
to receive continued benefits and ask you to complete a statement
specifying which benefits you wish to have continued pending the outcome
of the reconsideration or hearing before an administrative law judge.
You may elect to receive only Medicare benefits during appeal even if
you do not want to receive continued disability benefits. If anyone else
is receiving benefits based on your wages and self-employment income (or
because of your entitlement to benefits based on disability), we will
ask you to complete a statement specifying which benefits you wish to
have continued for them, pending the outcome of the request for
reconsideration or hearing before an administrative law judge. If you
request appeal but you do not want to receive continued benefits, we
will ask you to complete a statement declining continued benefits
indicating that you do not want to have your benefits and those of your
family, if any, continued during the appeal.
(e) Your spouse's or children's statement of choice. If you request,
in accordance with paragraph (d) of this section, that benefits also be
continued for anyone who had been receiving benefits based on your wages
and self-employment, we will send them a written notice. The notice will
explain their rights and ask them to complete a statement either
declining continued benefits, or specifying which benefits they wish to
have continued, pending the outcome of the request for reconsideration
or a hearing before an administrative law judge.
(f) What you must do to receive continued benefits pending notice of
our reconsideration determination. (1) If you want to receive continued
benefits pending the outcome of your request for reconsideration, you
must request reconsideration and continuation of benefits no later than
10 days after the date you receive the notice of our initial
determination that your physical or mental impairment(s) has ceased, has
never existed, or is no longer disabling. Reconsideration must be
requested as provided in Sec. 404.909, and you must request continued
benefits using a statement in accordance with paragraph (d) of this
section.
(2) If you fail to request reconsideration and continued benefits
within the 10-day period required by paragraph (f)(1) of this section,
but later ask that we continue your benefits pending a reconsidered
determination, we will use the rules in Sec. 404.911 to determine
whether good cause exists for your failing to request benefit
continuation within 10 days after receipt of the notice of the initial
cessation determination. If you request continued benefits after the 10-
day period, we will consider the request to be timely and will pay
continued benefits only if good cause for delay is established.
(g) What you must do to receive continued benefits pending an
administrative law judge's decision. (1) To receive continued benefits
pending an administrative law judge's decision on our reconsideration
determination, you must request a hearing and continuation of benefits
no later than 10 days after the date you receive the notice of our
reconsideration determination that your physical or mental impairment(s)
has ceased, has never existed, or is no
[[Page 409]]
longer disabling. A hearing must be requested as provided in
Sec. 404.933, and you must request continued benefits using a statement
in accordance with paragraph (d) of this section.
(2) If you request continued benefits pending an administrative law
judge's decision but did not request continued benefits while we were
reconsidering the initial cessation determination, your benefits will
begin effective the month of the reconsideration determination.
(3) If you fail to request continued payment of benefits within the
10-day period required by paragraph (g)(1) of this section, but you
later ask that we continue your benefits pending an administrative law
judge's decision on our reconsidered determination, we will use the
rules as provided in Sec. 404.911 to determine whether good cause exists
for your failing to request benefit continuation within 10 days after
receipt of the reconsideration determination. If you request continued
benefits after the 10-day period, we will consider the request to be
timely and will pay continued benefits only if good cause for delay is
established.
(h) What anyone else must do to receive continued benefits pending
our reconsideration determination or an administrative law judge's
decision. (1) When you or another party (see Secs. 404.908(a) and
404.932(a)) request a reconsideration or a hearing before an
administrative law judge on our medical cessation determination or when
your case is sent back (remanded) to an administrative law judge for
further action, you may choose to have benefits continue for anyone else
who is receiving benefits based on your wages and self-employment
income. An eligible individual must also choose whether or not to have
his or her benefits continue pending your appeal by completing a
separate statement of election as described in paragraph (e) of this
section.
(2) He or she must request continuation of benefits no later than 10
days after the date he or she receives notice of termination of
benefits. He or she will then receive continued benefits beginning with
the later of January 1983, or the first month for which benefits are no
longer otherwise payable following our initial or reconsideration
determination that your physical or mental impairment(s) has ceased, has
never existed, or is no longer disabling. Continued benefits will
continue until the earlier of:
(i) The month before the month in which an administrative law
judge's hearing decision finds that your physical or mental
impairment(s) has ceased, has never existed, or is no longer disabling
or the month before the month of the new administrative law judge
decision (or final action is taken by the Appeals Council on the
administrative law judge's recommended decision) if your case was sent
back to an administrative law judge for further action; or
(ii) The month before the month no timely request for a
reconsideration or a hearing before an administrative law judge is
pending. These continued benefits may be stopped or adjusted because of
certain events (such as work and earnings or payment of worker's
compensation) which occur while an eligible individual is receiving
continued benefits and affect his or her right to receive continued
benefits.
These continued benefits may be stopped or adjusted because of certain
events (such as work and earnings or payment of workers compensation)
which occur while an eligible individual is receiving continued benefits
and affect his or her right to receive continued benefits.
(3) If he or she fails to request continuation of benefits within
the 10-day period required by this paragraph, but requests continuation
of benefits at a later date, we will use the rules as provided in
Sec. 404.911 to determine whether good cause exists for his or her
failure to request continuation of benefits within 10 days after receipt
of the notice of termination of his or her benefits. His or her late
request will be considered to be timely and we will pay him or her
continued benefits only if good cause for delay is established.
(4) If you choose not to have benefits continued for anyone else who
is receiving benefits based on your wages and self-employment income,
pending the appeal on our determination, we will not continue benefits
to him or her.
[[Page 410]]
(i) What you must do when your case is remanded to an administrative
law judge. If we send back (remand) your case to an administrative law
judge for further action under the rules provided in Sec. 404.977, and
the administrative law judge's decision or dismissal order issued on
your medical cessation appeal is vacated and is no longer in effect,
continued benefits are payable pending a new decision by the
administrative law judge or final action is taken by the Appeals Council
on the administrative law judge's recommended decision.
(1) If you (and anyone else receiving benefits based on your wages
and self-employment income or because of your disability) previously
elected to receive continued benefits pending the administrative law
judge's decision, we will automatically start these same continued
benefits again. We will send you a notice telling you this, and that you
do not have to do anything to have these same benefits continued until
the month before the month the new decision of order of dismissal is
issued by the administrative law judge or until the month before the
month the Appeals Council takes final action on the administrative law
judge's recommended decision. These benefits will begin again with the
first month of nonpayment based on the prior administrative law judge
hearing decision or dismissal order. Our notice explaining reinstatement
of continued benefits will also tell you to report to us any changes or
events that affect your receipt of benefits.
(2) After we automatically reinstate your continued benefits as
described in paragraph (h)(1) of this section, we will contact you to
determine if any adjustment is required to the amount of continued
benefits payable due to events that affect the right to receive benefits
involving you, your spouse and/or children. If you have returned to
work, we will request additional information about this work activity.
If you are working, your continued benefits will not be stopped while
your appeal of the medical cessation of disability is still pending
unless you have completed a trial work period and are engaging in
substantial gainful activity. In this event, we will suspend your
continued benefits. If any other changes have occurred which would
require a reduction in benefit amounts, or nonpayment of benefits, we
will send an advance notice to advise of any adverse change before the
adjustment action is taken. The notice will also advise you of the right
to explain why these benefits should not be adjusted or stopped. You
will also receive a written notice of our determination. The notice will
also explain your right to reconsideration if you disagree with this
determination.
(3) If the final decision on your appeal of your medical cessation
is a favorable one, we will send you a written notice in which we will
advise you of your right to benefits, if any, before you engaged in
substantial gainful activity and to reentitlement should you stop
performing substantial gainful activity. If you disagree with our
determination, you will have the right to appeal this decision.
(4) If the final decision on your appeal of your medical cessation
is an unfavorable one (the cessation is affirmed), you will also be sent
a written notice advising you of our determination, and your right to
appeal if you think we are wrong.
(5) If you (or the others receiving benefits based on your wages and
self-employment income or because of your disability) did not previously
elect to have benefits continued pending an administrative law judge
decision, and you now want to elect continued benefits, you must request
to do so no later than 10 days after you receive our notice telling you
about continued benefits. If you fail to request continued benefits
within the 10-day period required by paragraph (f)(1) of this section,
but later ask that we continue your benefits pending an administrative
law judge remand decision, we will use the rules in Sec. 404.911 to
determine whether good cause exists for your failing to request benefit
continuation within 10 days after receipt of the notice telling you
about benefit continuation. We will consider the request to be timely
and will pay continued benefits only if good cause for delay is
established. If you make this new election, benefits may begin with the
month of the order sending (remanding) your case back to the
administrative law judge. Before we begin to pay
[[Page 411]]
you continued benefits as described in paragraph (h)(1) of this section
we will contact you to determine if any adjustment is required to the
amount of continued benefits payable due to events which may affect your
right to benefits. If you have returned to work, we will request
additional information about this work activity. If you are working,
continued benefits may be started and will not be stopped because of
your work while your appeal of the medical cessation of your disability
is still pending unless you have completed a trial work period and are
engaging in substantial gainful activity. If any changes have occurred
which establish a basis for not paying continued benefits or a reduction
in benefit amount, we will send you a notice explaining the adjustment
or the reason why we cannot pay continued benefits. The notice will also
explain your right to reconsideration if you disagree with this
determination. If the final decision on your appeal of your medical
cessation is a favorable one, we will send you a written notice in which
we will advise you of your right to benefits, if any, before you engaged
in substantial gainful activity and to reentitlement should you stop
performing substantial gainful activity. If you disagree with our
determination, you will have the right to appeal this decision. If the
final decision on your appeal of your medical cessation is an
unfavorable one (the cessation is affirmed), you will also be sent a
written notice advising you of our determination, and your right to
appeal if you think we are wrong.
(6) If a court orders that your case be sent back to us (remanded)
and your case is sent to an administrative law judge for further action
under the rules provided in Sec. 404.983, the administrative law judge's
decision or dismissal order on your medical cessation appeal is vacated
and is no longer in effect. Continued benefits are payable to you and
anyone else receiving benefits based on your wages and self-employment
income or because of your disability pending a new decision by the
administrative law judge or final action is taken by the Appeals Council
on the administrative law judge's recommended decision. In these court-
remanded cases reaching the administrative law judge, we will follow the
same rules provided in paragraphs (i) (1), (2), (3), (4) and (5) of this
section.
(j) Responsibility to pay back continued benefits. (1) If the final
decision of the Secretary affirms the determination that you are not
entitled to benefits, you will be asked to pay back any continued
benefits you receive. However, as described in the overpayment recovery
and waiver provisions of subpart F of this part, you will have the right
to ask that you not be required to pay back the benefits. You will not
be asked to pay back any Medicare benefits you received during the
appeal.
(2) Anyone else receiving benefits based on your wages and self-
employment income (or because of your disability) will be asked to pay
back any continued benefits he or she received if the determination that
your physical or mental impairment(s) has ceased, has never existed, or
is no longer disabling, is not changed by the final decision of the
Secretary. However, he or she will have the right to ask that he or she
not be required to pay them back, as described in the overpayment
recovery and waiver provisions of subpart F of this part. He or she will
not be asked to pay back any Medicare benefits he or she received during
the appeal.
(3) Waiver of recovery of an overpayment resulting from the
continued benefits paid to you or anyone else receiving benefits based
on your wages and self-employment income (or because of your disability)
may be considered as long as the determination was appealed in good
faith. It will be assumed that such appeal is made in good faith and,
therefore, any overpaid individual has the right to waiver consideration
unless such individual fails to cooperate in connection with the appeal,
e.g., if the individual fails (without good reason) to give us medical
or other evidence we request, or to go for a physical or mental
examination when requested by us, in connection with the appeal. In
determining whether an individual has good cause for failure to
cooperate and, thus, whether an appeal was made in good faith, we will
take into account any physical, mental, educational, or linguistic
limitations (including any
[[Page 412]]
lack of facility with the English language) the individual may have
which may have caused the individual's failure to cooperate.
[53 FR 29020, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988, as amended at 57
FR 1383, Jan. 14, 1992; 59 FR 1635, Jan. 12, 1994]
Sec. 404.1598 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 Sec. 404.1594.
[50 FR 50136, Dec. 6, 1985]
Sec. 404.1599 Work incentive experiments and rehabilitation
demonstration projects in the disability program.
(a) Authority and purpose. Section 505(a) of the Social Security
Disability Amendments of 1980, Pub. L. 96-265, directs the Secretary to
develop and conduct experiments and demonstration projects designed to
provide more cost-effective ways of encouraging disabled beneficiaries
to return to work and leave benefit rolls. These experiments and
demonstration projects will test the advantages and disadvantages of
altering certain limitations and conditions that apply to title II
disabled beneficiaries. The objective of all work incentive experiments
or rehabilitation demonstrations is to determine whether the alternative
requirements will save Trust Fund monies or otherwise improve the
administration of the disability program established under title II of
the Act.
(b) Altering benefit requirements, limitations or conditions.
Notwithstanding any other provision of this part, the Secretary may
waive compliance with the entitlement and payment requirements for
disabled beneficiaries to carry our experiments and demonstration
projects in the title II disability program. The projects involve
altering certain limitations and conditions that currently apply to
applicants and beneficiaries to test their effect on the program.
(c) Applicability and scope--(1) Participants and nonparticipants.
If you are selected to participate in an experiment or demonstration
project, we may temporarily set aside one or more of the current benefit
entitlement or payment requirements, limitations or conditions and apply
alternative provisions to you. We may also modify current methods of
administering the Act as part of a project and apply alternative
procedures or policies to you. The alternative provisions or methods of
administration used in the projects will not disadvantage you in
contrast to current provisions, procedures or policies. If you are not
selected to participate in the experiments or demonstration projects (or
if you are placed in a control group which is not subject to alternative
requirements and methods) we will continue to apply to you the current
benefit entitlement and payment requirements, limitations and conditions
and methods of administration in the title II disability program.
(2) Alternative provisions or methods of administration. The
alternative provisions or methods of administration that apply to you in
an experiment or demonstration project may include (but are not limited
to) one or more of the following:
(i) Reducing your benefits (instead of not paying) on the basis of
the amount of your earnings in excess of the SGA amount;
(ii) Extending your benefit eligibility period that follows 9 months
of trial work, perhaps coupled with benefit reductions related to your
earnings;
(iii) Extending your Medicare benefits if you are severely impaired
and return to work even though you may not be entitled to monthly cash
benefits;
(iv) Altering the 24-month waiting period for Medicare entitlement;
and
(v) Stimulating new forms of rehabilitation.
(d) Selection of participants. We will select a probability sample
of participants for the work incentive experiments and demonstration
projects from newly awarded beneficiaries who meet certain pre-selection
criteria (for example, individuals who are likely to be able to do
substantial work despite continuing severe impairments). These
[[Page 413]]
criteria are designed to provide larger subsamples of beneficiaries who
are not likely either to recover medically or die. Participants may also
be selected from persons who have been receiving DI benefits for 6
months or more at the time of selection.
(e) Duration of experiments and demonstration projects. A notice
describing each experiment or demonstration project will be published in
the Federal Register before each experiment or project is placed in
operation. The work incentive experiments and rehabilitation
demonstrations will be activated in 1982. A final report on the results
of the experiments and projects is to be completed and transmitted to
Congress by June 9, 1993. However, the authority for the experiments and
demonstration projects will not terminate at that time. Some of the
alternative provisions or methods of administration may continue to
apply to participants in an experiment or demonstration project beyond
that date in order to assure the validity of the research. Each
experiment and demonstration project will have a termination date (up to
10 years from the start of the experiment or demonstration project).
[48 FR 7575, Feb. 23, 1983, as amended at 52 FR 37605, Oct. 8, 1987; 55
FR 51687, Dec. 17, 1990]
Appendix 1 to Subpart P--Listing of Impairments
The body system listings in parts A and B of the Listing of
Impairments will no longer be effective on the following dates unless
extended by the Commissioner or revised and promulgated again.
1. Growth Impairment (100.00): December 7, 1998.
2. Musculoskeletal System (1.00 and 101.00): June 6, 1997.
3. Special Senses and Speech (2.00 and 102.00): December 4, 1998.
4. Respiratory System (3.00 and 103.00): October 7, 2000.
5. Cardiovascular System (4.00 and 104.00): February 10, 1998.
6. Digestive System (5.00 and 105.00): December 5, 1997.
7. Genito-Urinary System (6.00 and 106.00): December 5, 1997.
8. Hemic and Lymphatic System (7.00 and 107.00): June 6, 1997.
9. Skin (8.00): June 6, 1997.
10. Endocrine System and Obesity (9.00) and Endocrine System
(109.00): June 6, 1997.
11. Multiple Body Systems (110.00): July 2, 1998.
12. Neurological (11.00 and 111.00): June 5, 1998.
13. Mental Disorders (12.00): August 28, 1997.
14. Mental Disorders (112.00): June 12, 1997.
15. Neoplastic Diseases, Malignant (13.00 and 113.00): June 6, 1997.
16. Immune System (14.00 and 114.00): July 2, 1998.
Part A
Criteria applicable to individuals age 18 and over and to children
under age 18 where criteria are appropriate.
Sec.
1.00 Musculoskeletal System.
2.00 Special Senses and Speech.
3.00 Respiratory System.
4.00 Cardiovascular System.
5.00 Digestive System.
6.00 Genito-Urinary System.
7.00 Hemic and Lymphatic System.
8.00 Skin.
9.00 Endocrine System and Obesity.
10.00 [Reserved]
11.00 Neurological.
12.00 Mental Disorders.
13.00 Neoplastic Diseases, Malignant.
14.00 Immune System.
1.00 Musculoskeletal System
A. Loss of function may be due to amputation or deformity. Pain may
be an important factor in causing functional loss, but it must be
associated with relevant abnormal signs or laboratory findings.
Evaluations of musculoskeletal impairments should be supported where
applicable by detailed descriptions of the joints, including ranges of
motion, condition of the musculature, sensory or reflex changes,
circulatory deficits, and X-ray abnormalities.
B. Disorders of the spine, associated with vertebrogenic disorders
as in 1.05C, result in impairment because of distortion of the bony and
ligamentous architecture of the spine or impingement of a herniated
nucleus pulposus or bulging annulus on a nerve root. Impairment caused
by such abnormalities usually improves with time or responds to
treatment. Appropriate abnormal physical findings must be shown to
persist on repeated examinations despite therapy for a reasonable
presumption to be made that severe impairment will last for a continuous
period of 12 months. This may occur in cases with unsuccessful prior
surgical treatment.
Evaluation of the impairment caused by disorders of the spine
requires that a clinical diagnosis of the entity to be evaluated first
must be established on the basis of adequate history, physical
examination, and roentgenograms. The specific findings stated in 1.05C
represent the level required for that impairment; these findings, by
themselves,
[[Page 414]]
are not intended to represent the basis for establishing the clinical
diagnosis. Furthermore, while neurological examination findings are
required, they are not to be interpreted as a basis for evaluating the
magnitude of any neurological impairment. Neurological impairments are
to be evaluated under 11.00-11.19.
The history must include a detailed description of the character,
location, and radiation of pain; mechanical factors which incite and
relieve pain; prescribed treatment, including type, dose, and frequency
of analgesic; and typical daily activities. Care must be taken to
ascertain that the reported examination findings are consistent with the
individual's daily activities.
There must be a detailed description of the orthopedic and
neurologic examination findings. The findings should include a
description of gait, limitation of movement of the spine given
quantitatively in degrees from the vertical position, motor and sensory
abnormalities, muscle spasm, and deep tendon reflexes. Observations of
the individual during the examination should be reported; e.g., how he
or she gets on and off the examining table. Inability to walk on heels
or toes, to squat, or to arise from a squatting position, where
appropriate, may be considered evidence of significant motor loss.
However, a report of atrophy is not acceptable as evidence of
significant motor loss without circumferential measurements of both
thighs and lower legs (or upper or lower arms) at a stated point above
and below the knee or elbow given in inches or centimeters. A specific
description of atrophy of hand muscles is acceptable without
measurements of atrophy but should include measurements of grip
strength.
These physical examination findings must be determined on the basis
of objective observations during the examination and not simply a report
of the individual's allegation, e.g., he says his leg is weak, numb,
etc. Alternative testing methods should be used to verify the
objectivity of the abnormal findings, e.g., a seated straight-leg
raising test in addition to a supine straight-leg raising test. Since
abnormal findings may be intermittent, their continuous presence over a
period of time must be established by a record of ongoing treatment.
Neurological abnormalities may not completely subside after surgical or
nonsurgical treatment, or with the passage of time. Residual
neurological abnormalities, which persist after it has been determined
clinically or by direct surgical or other observation that the ongoing
or progressive condition is no longer present, cannot be considered to
satisfy the required findings in 1.05C.
Where surgical procedures have been performed, documentation should
include a copy of the operative note and available pathology reports.
Electrodiagnostic procedures and myelography may be useful in
establishing the clinical diagnosis, but do not constitute alternative
criteria to the requirements in 1.05C.
C. After maximum benefit from surgical therapy has been achieved in
situations involving fractures of an upper extremity (see 1.12) or soft
tissue injuries of a lower or upper extremity (see 1.13), i.e., there
have been no significant changes in physical findings or X-ray findings
for any 6-month period after the last definitive surgical procedure,
evaluation should be made on the basis of demonstrable residuals.
D. Major joints as used herein refer to hip, knee, ankle, shoulder,
elbow, or wrist and hand. (Wrist and hand are considered together as one
major joint.)
E. The measurements of joint motion are based on the techniques
described in the ``Joint Motion Method of Measuring and Recording,''
published by the American Academy of Orthopedic Surgeons in 1965, or the
``Guides to the Evaluation of Permanent Impairment--The Extremities and
Back'' (Chapter I); American Medical Association, 1971.
1.01 Category of Impairments, Musculoskeletal
1.02 Active rheumatoid arthritis and other inflammatory arthritis.
With both A and B.
A. History of persistent joint pain, swelling, and tenderness
involving multiple major joints (see 1.00D) and with signs of joint
inflammation (swelling and tenderness) on current physical examination
despite prescribed therapy for at least 3 months, resulting in
significant restriction of function of the affected joints, and clinical
activity expected to last at least 12 months; and
B. Corroboration of diagnosis at some point in time by either.
1. Positive serologic test for rheumatoid factor; or
2. Antinuclear antibodies; or
3. Elevated sedimentation rate; or
4. Characteristic histologic changes in biopsy of synovial membrane
or subcutaneous nodule (obtained independent of Social Security
disability evaluation).
1.03 Arthritis of a major weight-bearing joint (due to any cause):
With history of persistent joint pain and stiffness with signs of
marked limitation of motion or abnormal motion of the affected joint on
current physical examination. With:
A. Gross anatomical deformity of hip or knee (e.g, subluxation,
contracture, bony or fibrous ankylosis, instability) supported by X-ray
evidence of either significant joint space narrowing or significant bony
destruction and markedly limiting ability to walk and stand; or
B. Reconstructive surgery or surgical arthrodesis of a major weight-
bearing joint and
[[Page 415]]
return to full weight-bearing status did not occur, or is not expected
to occur, within 12 months of onset.
1.04 Arthritis of one major joint in each of the upper extremities
(due to any cause):
With history of persistent joint pain and stiffness, signs of marked
limitation of motion of the affected joints on current physical
examination, and X-ray evidence of either significant joint space
narrowing or significant bony destruction. With:
A. Abduction and forward flexion (elevation) of both arms at the
shoulders, including scapular motion, restricted to less than 90
degrees; or
B. Gross anatomical deformity (e.g., subluxation, contracture, bony
or fibrous ankylosis, instability, ulnar deviation) and enlargement or
effusion of the affected joints.
1.05 Disorders of the spine:
A. Arthritis manifested by ankylosis or fixation of the cervical or
dorsolumbar spine at 30 deg. or more of flexion measured from the
neutral postion, with X-ray evidence of:
1. Calcification of the anterior and lateral ligaments; or
2. Bilateral ankylosis of the sacroiliac joints with abnormal
apophyseal articulations; or
B. Osteoporosis, generalized (established by X-ray) manifested by
pain and limitation of back motion and paravertebral muscle spasm with
X-ray evidence of either:
1. Compression fracture of a vertebral body with loss of at least 50
percent of the estimated height of the vertebral body prior to the
compression fracture, with no intervening direct traumatic episode; or
2. Multiple fractures of vertebrae with no intervening direct
traumatic episode; or
C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus,
spinal stenosis) with the following persisting for at least 3 months
despite prescribed therapy and expected to last 12 months. With both 1
and 2:
1. Pain, muscle spasm, and significant limitation of motion in the
spine; and
2. Appropriate radicular distribution of significant motor loss with
muscle weakness and sensory and reflex loss.
1.08 Osteomyelitis or septic arthritis (established by X-ray):
A. Located in the pelvis, vertebra, femur, tibia, or a major joint
of an upper or lower extremity, with persistent activity or occurrence
of at least two episodes of acute activity within a 5-month period prior
to adjudication, manifested by local inflammatory, and systemic signs
and laboratory findings (e.g., heat, redness, swelling, leucocytosis, or
increased sedimentation rate) and expected to last at least 12 months
despite prescribed therapy; or
B. Multiple localizations and systemic manifestations as in A above.
1.09 Amputation or anatomical deformity of (i.e., loss of major
function due to degenerative changes associated with vascular or
neurological deficits, traumatic loss of muscle mass or tendons and X-
ray evidence of bony ankylosis at an unfavorable angle, joint
subluxation or instability):
A. Both hands; or
B. Both feet; or
C. One hand and one foot.
1.10 Amputation of one lower extremity (at or above the tarsal
region):
A. Hemipelvectomy or hip disarticulation; or
B. Amputation at or above the tarsal region due to peripheral
vascular disease or diabetes mellitus; or
C. Inability to use a prosthesis effectively, without obligatory
assistive devices, due to one of the following:
1. Vascular disease; or
2. Neurological complications (e.g., loss of position sense); or
3. Stump too short or stump complications persistent, or are
expected to persist, for at least 12 months from onset; or
4. Disorder of contralateral lower extremity which markedly limits
ability to walk and stand.
1.11 Fracture of the femur, tibia, tarsal bone of pelvis with solid
union not evident on X-ray and not clinically solid, when such
determination is feasible, and return to full weight-bearing status did
not occur or is not expected to occur within 12 months of onset.
1.12 Fractures of an upper extremity with non-union of a fracture
of the shaft of the humerus, radius, or ulna under continuing surgical
management directed toward restoration of functional use of the
extremity and such function was not restored or expected to be restored
within 12 months after onset.
1.13 Soft tissue injuries of an upper or lower extremity requiring
a series of staged surgical procedures within 12 months after onset for
salvage and/or restoration of major function of the extremity, and such
major function was not restored or expected to be restored within 12
months after onset.
2.00 Special Senses and Speech
A. Ophthalmology
1. Causes of impairment. Diseases or injury of the eyes may produce
loss of central or peripheral vision. Loss of central vision results in
inability to distinguish detail and prevents reading and fine work. Loss
of peripheral vision restricts the ability of an individual to move
about freely. The extent of impairment of sight should be determined by
visual testing.
2. Central visual acuity. A loss of central visual acuity may be
caused by impaired distant and/or near vision. However, for an
individual to meet the level of severity described in 2.02 and 2.04,
only the remaining central visual acuity for distance of the better eye
with best correction based on the Snellen
[[Page 416]]
test chart measurement may be used. Correction obtained by special
visual aids (e.g., contact lenses) will be considered if the individual
has the ability to wear such aids.
3. Field of vision. Impairment of peripheral vision may result if
there is contraction of the visual fields. The contraction may be either
symmetrical or irregular. The extent of the remaining peripheral visual
field will be determined by usual perimetric methods at a distance of
330 mm. under illumination of not less than 7-foot candles. For the
phakic eye (the eye with a lens), a 3 mm. white disc target will be
used, and for the aphakic eye (the eye without the lens), a 6 mm. white
disc target will be used. In neither instance should corrective
spectacle lenses be worn during the examination but if they have been
used, this fact must be stated.
Measurements obtained on comparable perimetric devices may be used;
this does not include the use of tangent screen measurements. For
measurements obtained using the Goldmann perimeter, the object size
designation III and the illumination designation 4 should be used for
the phakic eye, and the object size designation IV and illumination
designation 4 for the aphakic eye.
Field measurements must be accompanied by notated field charts, a
description of the type and size of the target and the test distance.
Tangent screen visual fields are not acceptable as a measurement of
peripheral field loss.
Where the loss is predominantly in the lower visual fields, a system
such as the weighted grid scale for perimetric fields described by B.
Esterman (see Grid for Scoring Visual Fields, II. Perimeter, Archives of
Ophthalmology, 79:400, 1968) may be used for determining whether the
visual field loss is comparable to that described in Table 2.
4. Muscle function. Paralysis of the third cranial nerve producing
ptosis, paralysis of accommodation, and dilation and immobility of the
pupil may cause significant visual impairment. When all the muscle of
the eye are paralyzed including the iris and ciliary body (total
ophthalmoplegia), the condition is considered a severe impairment
provided it is bilateral. A finding of severe impairment based primarily
on impaired muscle function must be supported by a report of an actual
measurement of ocular motility.
5. Visual efficiency. Loss of visual efficiency may be caused by
disease or injury resulting in a reduction of central visual acuity or
visual field. The visual efficiency of one eye is the product of the
percentage of central visual efficiency and the percentage of visual
field efficiency. (See Tables No. 1 and 2, following 2.09.)
6. Special situations. Aphakia represents a visual handicap in
addition to the loss of central visual acuity. The term monocular
aphakia would apply to an individual who has had the lens removed from
one eye, and who still retains the lens in his other eye, or to an
individual who has only one eye which is aphakic. The term binocular
aphakia would apply to an individual who has had both lenses removed. In
cases of binocular aphakia, the central efficiency of the better eye
will be accepted as 75 percent of its value. In cases of monocular
aphakia, where the better eye is aphakic, the central visual efficiency
will be accepted as 50 percent of the value. (If an individual has
binocular aphakia, and the central visual acuity in the poorer eye can
be corrected only to 20/200, or less, the central visual efficiency of
the better eye will be accepted as 50 percent of its value.)
Ocular symptoms of systemic disease may or may not produce a
disabling visual impairement. These manifestations should be evaluated
as part of the underlying disease entity by reference to the particular
body system involved.
7. Statutory blindness. The term ``statutory blindness'' refers to
the degree of visual impairment which defines the term ``blindness'' in
the Social Security Act. Both 2.02 and 2.03 A and B denote statutory
blindness.
B. Otolaryngology
1. Hearing impairment. Hearing ability should be evaluated in terms
of the person's ability to hear and distinguish speech.
Loss of hearing can be quantitatively determined by an audiometer
which meets the standards of the American National Standards Institute
(ANSI) for air and bone conducted stimuli (i.e., ANSI S 3.6-1969 and
ANSI S 3.13-1972, or subsequent comparable revisions) and performing all
hearing measurements in an environment which meets the ANSI standard for
maximal permissible background sound (ANSI S 3.1-1977).
Speech discrimination should be determined using a standardized
measure of speech discrimination ability in quiet at a test presentation
level sufficient to ascertain maximum discrimination ability. The speech
discrimination measure (test) used, and the level at which testing was
done, must be reported.
Hearing tests should be preceded by an otolaryngologic examination
and should be performed by or under the supervision of an
otolaryngologist or audiologist qualified to perform such tests.
In order to establish an independent medical judgment as to the
level of impairment in a claimant alleging deafness, the following
examinations should be reported: Otolaryngologic examination, pure tone
air and bone audiometry, speech reception threshold (SRT), and speech
discrimination testing. A copy of reports of medical examination and
audiologic evaluations must be submitted.
Cases of alleged ``deaf mutism'' should be documented by a hearing
evaluation. Records obtained from a speech and hearing
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rehabilitation center or a special school for the deaf may be
acceptable, but if these reports are not available, or are found to be
inadequate, a current hearing evaluation should be submitted as outlined
in the preceding paragraph.
2. Vertigo associated with disturbances of labyrinthine-vestibular
function, including Meniere's disease. These disturbances of balance are
characterized by an hallucination of motion or loss of position sense
and a sensation of dizziness which may be constant or may occur in
paroxysmal attacks. Nausea, vomiting, ataxia, and incapacitation are
frequently observed, particularly during the acute attack. It is
important to differentiate the report of rotary vertigo from that of
``dizziness'' which is described as lightheadedness, unsteadiness,
confusion, or syncope.
Meniere's disease is characterized by paroxysmal attacks of vertigo,
tinnitus, and fluctuating hearing loss. Remissions are unpredictable and
irregular, but may be longlasting; hence, the severity of impairment is
best determined after prolonged observation and serial reexaminations.
The diagnosis of a vestibular disorder requires a comprehensive
neuro-otolaryngologic examination with a detailed description of the
vertiginous episodes, including notation of frequency, severity, and
duration of the attacks. Pure tone and speech audiometry with the
appropriate special examinations, such as Bekesy audiometry, are
necessary. Vestibular functions is assessed by positional and caloric
testing, preferably by electronystagmography. When polytograms, contrast
radiography, or other special tests have been performed, copies of the
reports of these tests should be obtained in addition to reports of
skull and temporal bone X-rays.
3. Organic loss of speech. Glossectomy or laryngectomy or
cicatricial laryngeal stenosis due to injury or infection results in
loss of voice production by normal means. In evaluating organic loss of
speech (see 2.09), ability to produce speech by any means includes the
use of mechanical or electronic devices. Impairment of speech due to
neurologic disorders should be evaluated under 11.00-11.19.
2.01 Category of Impairments, Special Senses and Speech
2.02 Impairment of central visual acuity. Remaining vision in the
better eye after best correction is 20/200 or less.
2.03 Contraction of peripheral visual fields in the better eye.
A. To 10 deg. or less from the point of fixation; or
B. So the widest diameter subtends an angle no greater than 20 deg.;
or
C. To 20 percent or less visual field efficiency.
2.04 Loss of visual efficiency. Visual efficiency of better eye
after best correction 20 percent or less. (The percent of remaining
visual efficiency=the product of the percent of remaining central visual
efficiency and the percent of remaining visual field efficiency.)
2.05 Complete homonymous hemianopsia (with or without macular
sparing). Evaluate under 2.04.
2.06 Total bilateral ophthalmoplegia.
2.07 Disturbance of labyrinthine-vestibular function (including
Meniere's disease), characterized by a history of frequent attacks of
balance disturbance, tinnitus, and progressive loss of hearing. With
both A and B:
A. Disturbed function of vestibular labyrinth demonstrated by
caloric or other vestibular tests; and
B. Hearing loss established by audiometry.
2.08 Hearing impairments (hearing not restorable by a hearing aid)
manifested by:
A. Average hearing threshold sensitivity for air conduction of 90
decibels or greater and for bone conduction to corresponding maximal
levels, in the better ear, determined by the simple average of hearing
threshold levels at 500, 1000 and 2000 hz. (see 2.00B1); or
B. Speech discrimination scores of 40 percent or less in the better
ear;
2.09 Organic loss of speech due to any cause with inability to
produce by any means speech which can be heard, understood, and
sustained.
Table No. 1--Percentage of Central Visual Efficiency Corresponding to
Central Visual Acuity Notations for Distance in the Phakic and Aphakic
Eye (Better Eye)
------------------------------------------------------------------------
Snellen Percent central visual efficiency
------------------------------------------------------------------------
Aphakic Aphakic
English Metric Phakic \1\ monocular \2\ binocular \3\
------------------------------------------------------------------------
20/16...... 6/5 100 50 75
20/20...... 6/6 100 50 75
20/25...... 6/7.5 95 47 71
20/32...... 6/10 90 45 67
20/40...... 6/12 85 42 64
20/50...... 6/15 75 37 56
20/64...... 6/20 65 32 49
20/80...... 6/24 60 30 45
20/100..... 6/30 50 25 37
20/125..... 6/38 40 20 30
20/160..... 6/48 30 ............... 22
20/200..... 6/60 20 ............... ...............
------------------------------------------------------------------------
Column and Use.
\1\ Phakic.--1. A lens is present in both eyes. 2. A lens is present in
the better eye and absent in the poorer eye. 3. A lens is present in
one eye and the other eye is enucleated.
\2\ Monocular.--1. A lens is absent in the better eye and present in the
poorer eye. 2. The lenses are absent in both eyes; however, the
central visual acuity in the poorer eye after best correction in 20/
200 or less. 3. A lens is absent from one eye and the other eye is
enucleated.
\3\ Binocular.--1. The lenses are absent from both eyes and the central
visual acuity in the poorer eye after best correction is greater than
20/200.
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Table No. 2--Chart of Visual Field Showing Extent of Normal Field and
Method of Computing Percent of Visual Field Efficiency
1. Diagram of right eye illustrates extent of normal visual field as
tested on standard perimeter at 3/330 (3 mm. white disc at a distance of
330 mm.) under 7 foot-candles illumination. The sum of the eight
principal meridians of this field total 500 deg..
2. The percent of visual field efficiency is obtained by adding the
number of degrees of the eight principal meridians of the contracted
field and dividing by 500. Diagram of left eye illustrates visual field
contracted to 30 deg. in the temporal and down and out meridians and to
20 deg. in the remaining six meridians. The percent of visual field
efficiency of this field is: 6 x 20+2 x 30 =180<divide>500=0.36 or 36
percent remaining visual field efficiency, or 64 percent loss.
3.00 Respiratory System
A. Introduction. The listings in this section describe impairments
resulting from respiratory disorders based on symptoms, physical signs,
laboratory test abnormalities, and response to a regimen of treatment
prescribed by a treating source. Respiratory disorders along with any
associated impairment(s) must be established by medical evidence.
Evidence must be provided in sufficient detail to permit an independent
reviewer to evaluate the severity of the impairment.
Many individuals, especially those who have listing-level
impairments, will have received the benefit of medically prescribed
treatment. Whenever there is evidence of such treatment, the
longitudinal clinical record must include a description of the treatment
prescribed by the treating source and response in addition to
information about the nature and severity of the impairment. It is
important to document any prescribed treatment and response, because
this medical management may have improved the individual's functional
status. The longitudinal record should provide information regarding
functional recovery, if any.
Some individuals will not have received ongoing treatment or have an
ongoing relationship with the medical community, despite the existence
of a severe impairment(s). An individual who does not receive treatment
may or may not be able to show the existence of an impairment that meets
the criteria of these listings. Even if an individual does not show that
his or her impairment meets the criteria of these listings, the
individual may have an impairment(s) equivalent in severity to one of
the listed impairments or be disabled because of a limited residual
functional capacity. Unless the claim can be decided favorably on the
basis of the current evidence, a longitudinal record is still important
because it will provide information about such things as the ongoing
medical severity of the impairment, the level of the individual's
functioning, and the
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frequency, severity, and duration of symptoms. Also, the asthma listing
specifically includes a requirement for continuing signs and symptoms
despite a regimen of prescribed treatment.
Impairments caused by chronic disorders of the respiratory system
generally produce irreversible loss of pulmonary function due to
ventilatory impairments, gas exchange abnormalities, or a combination of
both. The most common symptoms attributable to these disorders are
dyspnea on exertion, cough, wheezing, sputum production, hemoptysis, and
chest pain. Because these symptoms are common to many other diseases, a
thorough medical history, physical examination, and chest x-ray or other
appropriate imaging technique are required to establish chronic
pulmonary disease. Pulmonary function testing is required to assess the
severity of the respiratory impairment once a disease process is
established by appropriate clinical and laboratory findings.
Alterations of pulmonary function can be due to obstructive airway
disease (e.g., emphysema, chronic bronchitis, asthma), restrictive
pulmonary disorders with primary loss of lung volume (e.g., pulmonary
resection, thoracoplasty, chest cage deformity as in kyphoscoliosis or
obesity), or infiltrative interstitial disorders (e.g., diffuse
pulmonary fibrosis). Gas exchange abnormalities without significant
airway obstruction can be produced by interstitial disorders. Disorders
involving the pulmonary circulation (e.g., primary pulmonary
hypertension, recurrent thromboembolic disease, primary or secondary
pulmonary vasculitis) can produce pulmonary vascular hypertension and,
eventually, pulmonary heart disease (cor pulmonale) and right heart
failure. Persistent hypoxemia produced by any c