Evidentiary Requirements for Making Findings About Medical Equivalence, 10419-10433 [06-1872]

Agencies

• Social Security Administration

[Federal Register Volume 71, Number 40 (Wednesday, March 1, 2006)]
[Rules and Regulations]
[Pages 10419-10433]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1872]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

RIN 0960-AF19


Evidentiary Requirements for Making Findings About Medical 
Equivalence

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising our regulations that pertain to the processing 
of claims for disability benefits under title II and title XVI of the 
Social Security Act (the Act). These revisions make the language in the 
rules we use under title II of the Act for making findings about 
medical equivalence consistent with the language in the rules that we 
use under title XVI of the Act. These revisions also clarify our rules 
about the evidence we use when we make findings about medical 
equivalence for adults and children. We are also updating and 
clarifying our rules that explain the Listing of Impairments (the 
listings) and how your impairment(s) can meet a listing.

DATES: These rules will be effective on March 31, 2006.

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at https://www.gpoaccess.gov/fr/
index.html.

FOR FURTHER INFORMATION CONTACT: Suzanne DiMarino, Social Insurance 
Specialist, Office of Regulations, Social Security Administration, 107 
Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-
6401, (410) 965-1769 or TTY (410) 966-5609. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web site, 
Social Security Online, at https://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: We are revising our regulations that explain 
how we make findings about whether your impairment(s) medically equals 
a listing. Since February 11, 1997, Sec.  416.926, our regulation for 
making findings about medical equivalence under title XVI, included 
different language from Sec.  404.1526, our regulation about medical 
equivalence under title II. We are now updating Sec.  404.1526 so that 
it is the same as Sec.  416.926.
    As we discuss in more detail below, we are also clarifying language 
in our regulations that was at issue in the decision in Hickman v. 
Apfel, 187 F.3d 683 (7th Cir. 1999), about the evidence we consider 
when we make findings about medical equivalence. Because these final 
rules clarify our regulatory policy that was at issue in Hickman, we 
are also rescinding Acquiescence Ruling (AR) 00-2(7), which we issued 
in response to the court's decision under the authority of Sec. Sec.  
404.985(e)(4) and 416.1485(e)(4) of our regulations concurrently with 
the effective date of these final rules.
    In addition, we are updating and clarifying our rules in Sec. Sec.  
404.1525 and 416.925. As we explain below, the changes are not 
substantive.
    We are also making minor editorial changes throughout Sec. Sec.  
404.1525, 404.1526, 416.925, and 416.926, as well as conforming changes 
in other regulations to reflect the changes we are making in these 
sections.

What Programs Do These Regulations Affect?

    These regulations affect disability determinations and decisions 
that we make under title II and title XVI of the Act. In addition, to 
the extent that Medicare entitlement and Medicaid eligibility are based 
on whether you qualify for disability benefits under title II or title 
XVI, these final regulations also affect the Medicare and Medicaid 
programs.

Who Can Get Disability Benefits?

    Under title II of the Act, we provide for the payment of disability 
benefits if you are disabled and belong to one of the following three 
groups:
     Workers insured under the Act,
     Children of insured workers, and
     Widows, widowers, and surviving divorced spouses (see 
Sec.  404.336) of insured workers.
    Under title XVI of the Act, we provide for Supplemental Security 
Income (SSI) payments on the basis of disability if you are disabled 
and have limited income and resources.

How Do We Define Disability?

    Under both the title II and title XVI programs, disability must be 
the result of any medically determinable physical or mental impairment 
or combination of impairments that is expected to result in death or 
which has lasted or is expected to last for a continuous period of at 
least 12 months. Our definitions of disability are shown in the 
following table:

------------------------------------------------------------------------
                                                       Disability means
                                                          you have a
                                                           medically
                                                         determinable
 If you file a claim under * * *   And you are * * *   impairments(s) as
                                                        described above
                                                       that results in *
                                                              * *
------------------------------------------------------------------------
Title II........................  An adult or child.  The inability to
                                                       do any
                                                       substantial
                                                       gainful activity
                                                       (SGA).
Title XVI.......................  A person age 18 or  The inability to
                                   older.              do any SGA.
Title XVI.......................  A person under age  Marked and severe
                                   18.                 functional
                                                       limitations.
------------------------------------------------------------------------


[[Page 10420]]

How Do We Decide Whether You Are Disabled?

    If you are seeking benefits under title II of the Act, or if you 
are an adult seeking benefits under title XVI of the Act, we use a 
five-step ``sequential evaluation process'' to decide whether you are 
disabled. We describe this five-step process in our regulations at 
Sec. Sec.  404.1520 and 416.920. We follow the five steps in order and 
stop as soon as we can make a determination or decision. The steps are:
    1. Are you working, and is the work you are doing substantial 
gainful activity? 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. If you are not, we will go on to step 2.
    2. Do you have a ``severe'' impairment? If you do not have an 
impairment or combination of impairments that significantly limits your 
physical or mental ability to do basic work activities, we will find 
that you are not disabled. If you do, we will go on to step 3.
    3. Do you have an impairment(s) that meets or medically equals the 
severity of an impairment in the listings? If you do, and the 
impairment(s) meets the duration requirement, we will find that you are 
disabled. If you do not, we will go on to step 4.
    4. Do you have the residual functional capacity to do your past 
relevant work? If you do, we will find that you are not disabled. If 
you do not, we will go on to step 5.
    5. Does your impairment(s) prevent you from doing any other work 
that exists in significant numbers in the national economy, considering 
your residual functional capacity, age, education, and work experience? 
If it does, and it meets the duration requirement, we will find that 
you are disabled. If it does not, we will find that you are not 
disabled.
    We use a different sequential evaluation process for children who 
apply for payments based on disability under SSI. If you are already 
receiving benefits, we also use a different sequential evaluation 
process when we decide whether your disability continues. See 
Sec. Sec.  404.1594, 416.924, 416.994, and 416.994a of our regulations. 
However, all of these processes include steps at which we consider 
whether your impairment(s) meets or medically equals one of our 
listings.

What Are the Listings?

    The listings are examples of impairments that we consider severe 
enough to prevent you as an adult from doing any gainful activity. If 
you are a child seeking SSI payments based on disability, the listings 
describe impairments that we consider severe enough to result in marked 
and severe functional limitations. Although the listings are contained 
only in appendix 1 to subpart P of part 404 of our regulations, we 
incorporate them by reference in the SSI program in Sec.  416.925 of 
our regulations, and apply them to claims under both title II and title 
XVI of the Act.

How Do We Use the Listings?

    The listings are in two parts. There are listings for adults (part 
A) and for children (part B). If you are a person age 18 or over, we 
apply the listings in part A when we assess your claim, and we never 
use the listings in part B.
    If you are a person under age 18, we first use the criteria in part 
B of the listings. If the listings in part B do not apply, and the 
specific disease process(es) has a similar effect on adults and 
children, we then use the criteria in part A. (See Sec. Sec.  404.1525 
and 416.925.) If your impairment(s) does not meet any listing, we will 
consider whether it medically equals any listing; that is, whether it 
is as medically severe. (See Sec. Sec.  404.1526 and 416.926.)

What If You Do Not Have An Impairment(s) That Meets or Medically Equals 
a Listing?

    We use the listings only to decide that you are disabled or that 
you are still disabled. We will never deny your claim or decide that 
you no longer qualify for benefits because your impairment(s) does not 
meet or medically equal a listing. If you have a severe impairment(s) 
that does not meet or medically equal any listing, we may still find 
you disabled based on other rules in the ``sequential evaluation 
process.'' Likewise, we will not decide that your disability has ended 
only because your impairment(s) does not meet or medically equal a 
listing.
    Also, when we conduct reviews to determine whether your disability 
continues, we will not find that your disability has ended because we 
have changed a listing. Our regulations explain that, when we change 
our listings, we continue to use our prior listings when we review your 
case, if you qualified for disability benefits or SSI payments based on 
our determination or decision that your impairment(s) met or medically 
equaled a listing. In these cases, we determine whether you have 
experienced medical improvement, and if so, whether the medical 
improvement is related to the ability to work. If your condition(s) has 
medically improved, so that you no longer meet or medically equal the 
prior listing, we evaluate your case further to determine whether you 
are currently disabled. We may find that you are currently disabled, 
depending on the full circumstances of your case. See Sec. Sec.  
404.1594(c)(3)(i) and 416.994(b)(2)(iv)(A). If you are a child who is 
eligible for SSI payments, we follow a similar rule when we decide 
whether you have experienced medical improvement in your condition(s). 
See Sec.  416.994a(b)(2).

What Do We Mean by ``Final Rules'' and ``Prior Rules''?

    Even though these rules will not go into effect until 30 days after 
publication of this notice, for clarity, we refer to the changes we are 
making here as the ``final rules'' and to the rules that will be 
changed by these final rules as the ``prior rules.''

Why Are We Revising Our Evidentiary Requirements for Making Findings 
About Medical Equivalence?

    Prior Sec. Sec.  404.1526 and 416.926 did not contain the same 
language because of changes we made to Sec.  416.926 in final rules 
that we published on February 11, 1997. On that date, we published 
interim final rules to implement the childhood disability provisions of 
Public Law 104-193, the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996. The rules became effective on April 14, 
1997 (62 FR 6408).
    Before April 14, 1997, Sec. Sec.  404.1526 and 416.926 were 
essentially identical, with only minor differences specific to titles 
II and XVI. However, Sec.  416.926 applied only to adults; our rules 
for evaluating medical equivalence for children under the SSI program 
were in Sec.  416.926a of our regulations, along with our policies 
about functional equivalence in children. In the interim final rules 
that became effective on April 14, 1997, we moved the rules for medical 
equivalence in children into the same section as the rules for medical 
equivalence in adults, reserving Sec.  416.926a solely for functional 
equivalence.
    Before April 14, 1997, we provided more detailed rules for 
determining medical equivalence for children in Sec.  416.926a than in 
the corresponding rules for determining medical equivalence for adults 
in Sec. Sec.  404.1526 and 416.926. We adopted this language

[[Page 10421]]

in our childhood regulations from internal operating instructions about 
medical equivalence that we applied to all individuals. When we revised 
Sec.  416.926 in 1997, we decided to use the more detailed rules for 
both children and adults. We explained in the preamble to the interim 
final rules that:

    [w]e decided to use the provisions of former Sec.  416.926a(b) 
to explain our rules for determining medical equivalence for both 
adults and children. This is not a substantive change, but a clearer 
statement of our longstanding policy on medical equivalence than was 
previously included in prior Sec.  416.926(a), as it was clarified 
for children in prior Sec.  416.926a(b). This merely allows us to 
address only once in our regulations the policy of medical 
equivalence, which is and always has been the same for adults and 
children.

62 FR at 6413.
    While we did not revise Sec.  404.1526 when we revised Sec.  
416.926 in 1997, we also recognized that there was no substantive 
difference between the two rules. We noted in the preamble that 
``[a]lthough some of the text of [Sec.  416.926(a)] will differ from 
the text of Sec.  404.1526(a), both sections * * * will continue to 
provide the same substantive rules.'' 62 FR at 6413. Since we did not 
revise Sec.  404.1526 when we published the interim final rules for 
evaluating disability in children, we also did not revise it when we 
published final rules in 2000. 65 FR 54747, 54768 (2000). We are now 
revising prior Sec.  404.1526 so that it includes the same language as 
Sec.  416.926.
    In addition, we are making minor revisions to the language in our 
rules on medical equivalence to clarify that we consider all 
information that is relevant to our finding about whether your 
impairment(s) medically equals the criteria of a listing. In Hickman v. 
Apfel, 187 F.3d 683 (7th Cir. 1999), the Court of Appeals interpreted 
our statement in prior Sec.  416.926(b) that ``[w]e will always base 
our decision about whether your impairment(s) is medically equal to a 
listed impairment on medical evidence only'' differently from what we 
intended. The Hickman court held that this provision meant that we 
could use evidence only from medical sources when we made findings 
about medical equivalence. However, we intended the phrase ``medical 
evidence only'' in the prior regulation section only to exclude 
consideration of the vocational factors of age, education, and work 
experience, as defined in a number of our other regulations. See, for 
example, Sec. Sec.  404.1501(g), 404.1505, 404.1520(g), 404.1560(c)(1), 
416.901(j), 416.905, 416.920(g), and 416.960(c)(1) of our regulations. 
Under our interpretation of our regulations, the phrase ``medical 
evidence'' included not just findings reported by medical sources but 
other information about your medical condition(s) and its effects, 
including your own description of your impairment(s).
    The Hickman court believed that when we amended the regulations in 
1997 to add Sec.  416.926(b) we added a rule that ``explicitly 
eliminates any recourse to non-medical evidence.'' Hickman, 187 F.3d at 
688. However, as we have already noted in the above quotes from the 
preamble to the 1997 interim final regulations, we stated in that 
preamble that this was not our intent. Thus, the court's decision 
interpreted the language of our regulations more narrowly than we 
intended.
    Because of this, we issued AR 00-2(7) to implement the Court of 
Appeals' holding within the States in the Seventh Circuit. 65 FR 25783 
(2000). In the AR, we stated that we intended to clarify the language 
at issue in Hickman at Sec. Sec.  404.1526 and 416.926 through the 
issuance of a regulatory change and that we might rescind the AR once 
we clarified the regulations. 65 FR at 25785. Likewise, when we 
published the final rules for evaluating disability in children on 
September 11, 2000, we indicated in response to comments that we 
planned to revise Sec.  404.1526 to clarify this issue in response to 
Hickman. 65 FR at 54768. We are now revising Sec. Sec.  404.1526 and 
416.926 to clarify our longstanding interpretation of the regulations 
in response to the Hickman decision. As we have already noted, we are 
also publishing a separate notice rescinding AR 00-2(7) effective on 
the same date that these rules become effective.

When Will We Start To Use These Final Rules?

    We will start to use these final rules on their effective date. We 
will continue to use our prior rules until the effective date of these 
final rules. When the final rules become effective, we will apply them 
to new applications filed on or after the effective date of these rules 
and to claims pending before us, as we describe below.
    As is our usual practice when we make changes to our regulations, 
we will apply these final rules on or after their effective date when 
we make a determination or decision, including those claims in which we 
make a determination or decision after remand to us from a Federal 
court. With respect to claims in which we have made a final decision, 
and that are pending judicial review in Federal court, we expect that 
the court's review of the Commissioner's final decision would be made 
in accordance with the rules in effect at the time of the 
administrative law judge's (ALJ) decision, if the ALJ's decision is the 
final decision of the Commissioner. If the court determines that the 
Commissioner's final decision is not supported by substantial evidence, 
or contains an error of law, we would expect that the court would 
reverse the final decision, and remand the case for further 
administrative proceedings pursuant to the fourth sentence of section 
205(g) of the Act, except in those few instances in which the court 
determines that it is appropriate to reverse the final decision and 
award benefits without remanding the case for further administrative 
proceedings. In those cases decided by a court after the effective date 
of the rules, where the court reverses the Commissioner's final 
decision and remands the case for further administrative proceedings, 
on remand, we will apply the provisions of these final rules to the 
entire period at issue in the claim.

What Revisions Are We Making?

Section 404.1526 Medical Equivalence

Section 416.926 Medical Equivalence for Adults and Children

    We are revising Sec. Sec.  404.1526 and 416.926 so that they use 
the same language. We are also revising these sections to clarify that 
we consider all relevant evidence in your case record when we make a 
finding about whether your impairment or combination of impairments 
medically equals a listing. The specific revisions are as follows.
    We are replacing all of the headings with questions, revising text 
to put it into active voice and to use simpler language where possible, 
and reorganizing text and providing more subparagraphs for ease of 
reading.
    Final Sec. Sec.  404.1526(a) and 416.926(a)--``What is medical 
equivalence?''--correspond to the first sentence of prior Sec.  
416.926(a)--``How medical equivalence is determined.'' They provide a 
basic definition of medical equivalence.
    Final Sec. Sec.  404.1526(b) and 416.926(b)--``How do we determine 
medical equivalence?''--correspond to the last sentence of prior Sec.  
416.926(a) and the provisions of prior Sec. Sec.  416.926(a)(1) and 
(a)(2). Throughout these sections, we have removed the word ``medical'' 
from the phrase ``medical findings'' in the prior rules to help clarify 
that we consider all relevant information when we determine whether 
your

[[Page 10422]]

impairment(s) medically equals the requirements of a listing.
    We are also adding new Sec. Sec.  404.1526(b)(4) and 416.926(b)(4) 
to provide cross-references to Sec. Sec.  404.1529(d)(3) and 
416.929(d)(3). Those sections explain how we consider symptoms when we 
make findings about medical equivalence.
    Final Sec. Sec.  404.1526(c) and 416.926(c)--``What evidence do we 
consider when we determine if your impairment(s) medically equals a 
listing?''--correspond to prior Sec. Sec.  404.1526(b) and 416.926(b) 
and the third sentence of prior Sec.  416.926(a). In these sections, we 
clarify that we consider all evidence in your case record about your 
impairment(s) and its effects on you that is relevant to our finding 
whether your impairment(s) medically equals a listing. We also explain 
that this means only that we do not consider your vocational factors of 
age, education, and work experience. The last sentence of final 
Sec. Sec.  404.1526(c) and 416.926(c) corresponds to the last sentence 
of prior Sec. Sec.  404.1526(b) and 416.926(b). We are making minor 
editorial changes to the language of that sentence, including the 
deletion of the word ``medical'' from the phrase ``medical opinion'' 
that was in the prior rules. Under Sec. Sec.  404.1527(a) and 
416.927(a) of our regulations, the term ``medical opinion'' has a 
specific meaning that does not include opinions about medical 
equivalence. This change only updates the language of Sec. Sec.  
404.1526(b) and 416.926(b) to match our other rules.
    Because we are adding new Sec. Sec.  404.1526(c) and 416.926(c), we 
are redesignating prior Sec. Sec.  404.1526(c) and 416.926(c) as 
Sec. Sec.  404.1526(d) and 416.926(d). These paragraphs explain who we 
consider to be designated medical and psychological consultants for 
purposes of determining medical equivalence. We are making only a minor 
editorial correction to the heading of prior paragraph (c) (final 
paragraph (d)): the addition of a question mark.
    We are also redesignating prior Sec.  416.926(d) as Sec.  
416.926(e) because of the addition of new final Sec.  416.926(c). This 
paragraph explains who is responsible for determining medical 
equivalence at each level of the administrative review process. In 
addition, we are making a minor correction to the second sentence to 
reflect our current organization. The prior sentence referred to ``the 
Associate Commissioner for Disability.'' This reference is out of date 
because we no longer have an organization called the Office of 
Disability. The appropriate reference is now to ``the Associate 
Commissioner for Disability Determinations.'' For an explanation of the 
reorganization that resulted in this change, see 67 FR 69287 (November 
15, 2002). (For similar reasons, we are replacing the title ``Director 
of the Office of Disability Hearings'' with the title ``Associate 
Commissioner for Disability Determinations'' in a number of our rules 
in subpart J of part 404 and subpart N of part 416 to update those 
rules as well.) We are also making a minor revision in the heading of 
final Sec.  416.926(e).
    Prior Sec.  404.1526 did not include a provision analogous to prior 
Sec.  416.926(d) (final Sec.  416.926(e)), so we are adding Sec.  
404.1526(e) to make Sec.  404.1526 the same as final Sec.  416.926.

What Other Revisions Are We Making?

Section 404.1525 Listing of Impairments in Appendix 1

Section 416.925 Listing of Impairments in Appendix 1 of Subpart P of 
Part 404 of This Chapter

    We are updating and clarifying these sections, which describe the 
listings and how we use them. As in final Sec. Sec.  404.1526 and 
416.926, we are replacing all of the headings with questions, deleting 
the word ``medical'' from the phrase ``medical criteria,'' revising 
text to put it into active voice and into simpler language where 
possible, and reorganizing text and providing more subparagraphs for 
ease of reading. We are also explaining better how we organize listings 
sections and providing an explanation of what it means to ``meet'' a 
listing.
    We are also updating our descriptions of the part B listings to 
reflect the current listings. As we explain below, some of the prior 
provisions regarding the part B listings dated back to 1977 and no 
longer accurately described the content of those listings. Finally, we 
are moving the provisions on symptoms as they pertain to meeting the 
listings to Sec. Sec.  404.1529 and 416.929, our rules on evaluating 
symptoms, and deleting a provision that was unnecessary because it was 
redundant.
    The following is a summary of the major changes we are making in 
final Sec. Sec.  404.1525 and 416.925.
    We are moving the discussion of duration in the last two sentences 
of prior Sec. Sec.  404.1525(a) and 416.925(a) to final Sec. Sec.  
404.1525(c) and 416.925(c), where we discuss how we use the listings.
    Final Sec. Sec.  404.1525(b) and 416.925(b)--``How is appendix 1 
organized?''--correspond to prior Sec. Sec.  404.1525(b) and 
416.925(b). They explain that the listings are in two parts: part A, 
which is primarily for adults, and part B, which is only for children. 
In paragraph (b)(2), the paragraph that describes part B of the 
listings, we are deleting language from the prior rule that was out of 
date and no longer necessary.
    When we originally published the part B listings for children in 
1977, we intended them to supplement the part A listings. In the 
preamble to the publication of the part B listings, we explained that 
we originally developed the part A listings primarily for determining 
disability in adults. We indicated that a number of the listings for 
adults at that time were appropriate for evaluating disability in 
children too, but that there were also some listings that were not 
appropriate because certain listed impairments had different effects in 
children. We also noted that there were some diseases and other 
impairments in young children that were not addressed in the adult 
listings. Therefore, we published the part B listings, which we 
referred to as ``additional criteria.'' See 42 FR 14705 (March 16, 
1977). The regulation at that time stated:

Part B is used where the criteria in Part A do not give appropriate 
consideration to the particular effects of 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. Where additional criteria are included in 
Part B, the impairment categories are, to the extent feasible, 
numbered to maintain a relationship with their counterparts in Part 
A. The method for adjudicating claims for children under age 18 is 
to look first to Part B. Where the medical criteria in Part B are 
not applicable, the medical criteria in Part A should be used.

20 CFR 416.906 (1977). (In 1977, we published the childhood listings 
and the regulation that explained them only in subpart I of part 416 of 
our regulations. In 1980, we changed to the current version of our 
rules, in which we publish both the child and adult listings only in 
appendix 1 of subpart P of part 404 of our regulations and provide 
explanations of the listings in both Sec. Sec.  404.1525 and 416.925. 
(45 FR 55566, August 20, 1980.))
    With minor editorial changes, the corresponding language of the 
rules in prior Sec. Sec.  404.1525(b)(2) and 416.925(b)(2) was 
essentially the same as the language that we first published. However, 
since we originally published the listings, we have greatly expanded 
the childhood listings in part B so that it is no longer appropriate to 
speak of them as a supplement to the part A listings. To the contrary, 
the part B listings are for the most part stand-

[[Page 10423]]

alone; that is, in addition to listings that are specifically for 
children, and with relatively few exceptions, they include the same 
listings as part A when those listings are applicable to both adults 
and children. Although it is still appropriate in claims of children to 
refer to certain listings in part A when the part B listings do not 
apply, the current relationship of part A to part B is the opposite of 
what it was when we first published the part B listings in 1977. For 
children, the primary listings are in part B, and we may use certain 
part A listings in addition to the part B listings.
    We believe that the language in the first three sentences of prior 
Sec. Sec.  404.1525(b)(2) and 416.925(b)(2) was not only out of date 
but also unnecessary. We first published it (and the part B listings) 
to provide rules for adjudicating claims of children under the SSI 
program when that program was still relatively young. Rules explaining 
the relationship between part A and the new part B were helpful in 
those early years, but we believe that we do not need this kind of 
explanation in our regulations anymore. They do not provide rules for 
adjudication or guidelines for our adjudicators to follow when they 
determine disability in children under the listings, and we do not 
believe that they provide information that is especially helpful to 
public understanding of our rules.
    Therefore, we are deleting most of the language in the first three 
sentences of prior Sec. Sec.  404.1525(b)(2) and 416.925(b)(2). We are 
clarifying in the third sentence of final Sec. Sec.  404.1525(b)(2) and 
416.925(b)(2)(i) that, if the criteria in part B do not apply, we may 
use the criteria in part A when those criteria give appropriate 
consideration to the effects of the impairment(s) in children. This is 
a more accurate statement of how we now use the part A listings in 
childhood claims. In the fourth sentence of the final rules, we are 
retaining the provision in the third sentence of the prior rules that 
explains that, to the extent possible, we number the provisions in part 
B to maintain a relationship with part A. We are retaining this 
statement in our rules because there are still some body systems in 
part B in which the listings are not numbered consecutively because of 
this relationship, and this provision will continue to answer questions 
about why some listings in part B are not consecutively numbered.
    In the prior rules, Sec.  416.925(b)(2) was longer than Sec.  
404.1525(b)(2). This was because the paragraph in part 416 included 
rules about our definition of the phrase ``listing-level severity,'' 
which we use when we evaluate claims of children seeking SSI payments 
based on disability under title XVI of the Act. We are not making any 
substantive changes to this language, but we are making minor editorial 
changes in final Sec.  416.925(b)(2)(ii). None of these revisions, 
which are set forth in the bullets below, is a substantive change from 
the prior rules.
     First, because the prior paragraph was long, we are 
dividing it into two subparagraphs. Final Sec.  416.925(b)(2)(i) is the 
same as final Sec.  404.1525(b)(2). Final Sec.  416.925(b)(2)(ii) 
contains the provisions unique to part 416 that started with the sixth 
sentence of prior Sec.  416.925(b)(2).
     Second, the prior section referred to both ``domains of 
functioning'' and ``broad areas of functioning.'' These terms are 
synonymous in our rules; however, we currently use the phrase ``domains 
of functioning'' more frequently. Therefore, in the final rules, we are 
changing the phrase ``broad areas of functioning'' to ``domains of 
functioning'' for consistency of language within the rules.
     Third, in the prior rules, we inadvertently referred 
inconsistently to both ``extreme limitations'' and ``extreme 
limitation'' in a domain as a standard of listing-level severity. We 
are correcting this inconsistency by changing the word ``limitations'' 
to ``limitation'' consistent with the standards in our other rules; 
see, for example, Sec.  416.926a(a).
     Finally, we are deleting a duplicate cross-reference to 
Sec.  416.926a. We inadvertently included the same parenthetical cross-
reference to the definitions of the terms ``marked'' and ``extreme'' in 
the seventh and ninth sentences of prior Sec.  416.925(b). We are 
deleting the second reference.
    Final Sec. Sec.  404.1525(c) and 416.925(c)--``How do we use the 
listings?''--correspond to prior Sec. Sec.  404.1525(c) and 416.925(c). 
We are breaking up the prior paragraph into shorter subparagraphs and 
making editorial changes for clarity. In the second sentence of final 
Sec. Sec.  404.1525(c)(2) and 416.925(c)(2), we are expanding and 
clarifying the second sentence of prior Sec. Sec.  404.1525(c) and 
416.925(c). The final rules clarify that we sometimes provide 
information in the introductory section of each body system that is 
necessary to show whether your impairment meets the criteria of a 
particular listing, not just to establish a diagnosis or the existence 
of a medically determinable impairment. For example, to meet most 
musculoskeletal listings, you must show that you have either an 
``inability to ambulate effectively'' or an ``inability to perform fine 
and gross movements effectively.'' We define these severity terms from 
the individual musculoskeletal listings in the introductory text of the 
musculoskeletal body system, in section 1.00B2 for adults and 101.00B2 
for children. Likewise, to meet listings 12.05 and 112.05, you must 
have mental retardation that satisfies the criteria in the introductory 
paragraph of those listings (the so-called capsule definition) in 
addition to the criteria in one of the paragraphs that follows the 
capsule definition; that is, listing 12.05A, B, C, or D for adults or 
112.05A, B, C, D, or E for children. We explain this requirement for 
meeting listings 12.05 and 112.05 in the fourth paragraph of section 
12.00A for adults and the eighth paragraph of section 112.00A for 
children.
    Final Sec. Sec.  404.1525(c)(3) and 416.925(c)(3) correspond to the 
next-to-last sentence of prior Sec. Sec.  404.1525(c) and 416.925(c). 
However, we are expanding the information from the prior rules and 
clarifying it to define what we mean when we say that your impairment 
``meets'' the requirements of a listing. We are deleting the 
explanation in the next-to-last sentence of the prior rules that the 
required level of severity in a listing is shown by ``one or more sets 
of medical findings'' and deleting the last sentence, which said that 
the medical findings ``consist of symptoms, signs, and laboratory 
findings.'' These descriptions of our listings were not accurate. We 
have always had some listings that also include functional criteria. 
Further, we have a number of listings that do not include symptoms, 
signs, and laboratory findings in their criteria. We are not replacing 
the prior sentences because we believe that the final rules are clear 
enough without a detailed description of all the possible kinds of 
criteria a given listing might contain. Instead, we simply provide that 
your impairment(s) meets the requirements of a listing when it 
satisfies all of the criteria of that listing, including any relevant 
criteria in the introduction to the body system, and meets the duration 
requirement.
    Final Sec. Sec.  404.1525(c)(4) and 416.925(c)(4) correspond to the 
last two sentences of prior Sec. Sec.  404.1525(a) and 416.925(a). In 
the prior rules, these sentences explained that

    [m]ost 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.

    We are moving this language to the section of the final rules in 
which we

[[Page 10424]]

explain how we decide whether your impairment(s) meets a listing 
because it is most relevant to that finding. We are also making 
revisions to this language to better explain what we meant by the 
statement ``or a specific statement of duration is made'' in our prior 
rules. We meant by this statement that in some listings we state that 
we will find that your impairment(s) will meet the listing for a 
specific period of time. For example, in listings 13.06A and 113.06A, 
acute leukemia, we state that we will find that your impairment is 
disabling until at least 24 months from the date of diagnosis or 
relapse or at least 12 months from the date of the bone marrow or stem 
cell transplantation, whichever is later. Thereafter, we will evaluate 
any residual impairment under the criteria for the affected body 
systems.
    Final Sec. Sec.  404.1525(c)(5) and 416.925(c)(5) are new. They 
explain that when your impairment(s) does not meet a listing, it can 
``medically equal'' the criteria of a listing, and provide a cross-
reference to Sec. Sec.  404.1526 and 416.926, our rules on medical 
equivalence. They also explain that when your impairment(s) does not 
meet or medically equal a listing we may find you disabled or still 
disabled at a later step in the sequential evaluation process. We do 
not specify the step in the process at which we may find you disabled 
or still disabled because there are different sequential evaluation 
processes for adults and children who file initial claims and for 
continuing disability reviews of adults and children.
    We are removing prior Sec. Sec.  404.1525(e) and 416.925(e) because 
we have more recent rules. Our policy on how we consider drug addiction 
and alcoholism is in Sec. Sec.  404.1535 and 416.935, which we 
published in 1995. See 60 FR 8140, at 8147 (February 10, 1995).
    Because of this deletion, we are redesignating Sec. Sec.  
404.1525(f) and 416.925(f) as Sec. Sec.  404.1525(e) and 416.925(e). We 
are also simplifying these sections and making our regulations on the 
evaluation of symptoms more consistent by exchanging the provisions in 
prior Sec. Sec.  404.1525(f) and 416.925(f) (final Sec. Sec.  
404.1525(e) and 416.925(e)) with the provisions of prior Sec. Sec.  
404.1529(d)(2) and 416.929(d)(2). In both prior and current Sec. Sec.  
404.1529(d) and 416.929(d), we explain how we consider your symptoms 
(such as pain) at each step of the sequential evaluation process. For 
example, in paragraph (d)(1) we explain how we consider your symptoms 
when we determine if your impairment(s) is ``severe,'' and in paragraph 
(d)(3) we explain how we consider your symptoms when we determine if 
your impairment(s) medically equals a listing. However, in prior 
paragraph (d)(2), instead of explaining how we consider your symptoms 
when we determine if your impairment meets a listing, we provided only 
a cross-reference to Sec. Sec.  404.1525(f) and 416.925(f), where we 
explained our policy on symptoms and meeting listings.
    For consistency, we are now moving the explanation of our policy on 
symptoms and meeting listings from prior Sec. Sec.  404.1525(f) and 
416.925(f) to Sec. Sec.  404.1529(d)(2) and 416.929(d)(2) so that it is 
together with our explanations of how we consider symptoms at other 
steps in the sequential evaluation process. In final Sec. Sec.  
404.1525(e) and 416.925(e), we are providing a cross-reference to final 
Sec. Sec.  404.1529(d)(2) and 416.929(d)(2) to ensure that our 
adjudicators refer to the provisions that we moved from prior 
Sec. Sec.  404.1525(f) and 416.925(f) to final Sec. Sec.  
404.1529(d)(2) and 416.929(d)(2). As we have already noted, we are 
adding similar new Sec. Sec.  404.1526(b)(4) and 416.926(b)(4) to 
provide cross-references to Sec. Sec.  404.1529(d)(3) and 416.929(d)(3) 
to refer to our rules for considering symptoms when making medical 
equivalence determinations.

Sections 404.1528 and 416.928 Symptoms, Signs, and Laboratory Findings

    We are deleting the opening statement of these sections, which said 
that ``[m]edical findings consist of symptoms, signs, and laboratory 
findings.'' We believe that the statement is unnecessary and that 
deleting it will help to remove any confusion about the evidence we 
consider wherever we use ``medical findings'' in our rules.

Sections 404.1529 and 416.929 How We Evaluate Symptoms, Including Pain

    As we have already explained, we are replacing Sec. Sec.  
404.1529(d)(2) and 416.929(d)(2) with the text of prior Sec. Sec.  
404.1525(f) and 416.925(f). Except for minor editorial revisions, the 
language is unchanged.
    We are adding the word ``medically'' to the heading of final 
Sec. Sec.  404.1529(d)(3) and 416.929(d)(3) so that they read, 
``Decision whether the Listing of Impairments is medically equaled.'' 
We are revising the third sentence in those sections, for conformity 
with the changes in final Sec. Sec.  404.1526 and 416.926, to indicate 
that we will base a finding of medical equivalence on all relevant 
evidence in the case record about the impairment(s) and its effect on 
the individual.
    We are making a number of minor editorial changes throughout final 
Sec. Sec.  404.1529 and 416.929 to update them to match our current 
rules. For example, throughout these sections we are changing 
references to ``your treating or examining physician or psychologist'' 
to ``your treating or nontreating source.'' This change updates the 
rules to match the terms we use in Sec. Sec.  404.1502 and 416.902 and 
our other rules that refer to medical sources; it does not change the 
meaning of the sentence. We are also correcting a cross-reference in 
the second sentence of Sec. Sec.  404.1529(a) and 416.929(a) to reflect 
our current rules.

Public Comments

    In the Notice of Proposed Rulemaking (NPRM) we published on June 
17, 2005 (70 FR 35188), we provided the public with a 60-day period in 
which to comment. The period ended on August 16, 2005.
    We received comments from four public commenters. One commenter 
sent in comments supporting the proposed changes; because it was 
entirely supportive, that letter did not require summary or response. 
We carefully considered the three remaining comment letters. Because 
some of the comments in these letters were long, we have condensed, 
summarized, and paraphrased them. We have tried, however, to summarize 
the commenters' views accurately and to respond to all of the 
significant issues raised by the commenters that were within the scope 
of the proposed rules. We provide our reasons for adopting or not 
adopting the comments in our responses below.
    Comment: One commenter did not agree with our proposal to remove 
language from the last two sentences of prior Sec. Sec.  404.1525(c) 
and 416.925(c). We explained in the NPRM that we proposed to delete the 
explanation in the next-to-last sentence of the prior rules that the 
required level of severity in a listing is shown by ``one or more sets 
of medical findings'' and to delete the last sentence, which said that 
the medical findings ``consist of symptoms, signs, and laboratory 
findings,'' because these descriptions of our listings were not 
accurate. The commenter disagreed, saying that ``[a]ll listings do 
require, in some combination, symptoms, signs and/or laboratory 
findings.'' The commenter further stated that the proposed rules seemed 
to ``over-estimate the importance of `function[.]' '' The commenter 
said that any functional restriction(s) described in the listings must 
still result from the impairment, and that the presence of the 
impairment

[[Page 10425]]

must still be established by medical findings.
    Response: We did not make any changes in the final rules as a 
result of this comment. Like these final rules, the proposed rules only 
provided a clearer explanation of the criteria various listings may 
contain and how we use listings. The rules indicate that ``[w]ithin 
each listing, we specify the objective medical and other findings 
needed to satisfy the criteria of that listing.'' See proposed and 
final Sec. Sec.  404.1525(c)(3) and 416.925(c)(3). Therefore, the rules 
do continue to require consideration of clinical signs or laboratory 
findings, or both, under every listing, in addition to the symptoms and 
functional limitations that result from the medically determinable 
impairment when those factors are criteria in a listing.
    Likewise, we explain that in the introductory text of listings ``we 
may also include specific criteria for establishing a diagnosis'' or 
for ``confirming the existence of an impairment.'' We also state that 
``[e]ven if we do not include specific criteria for establishing a 
diagnosis or confirming the existence of your impairment, you must 
still show that you have a severe medically determinable impairment(s), 
as defined in [Sec. Sec.  404.1508, 404.1520(c), 416.908, and 
416.920(c)].'' See proposed and final Sec. Sec.  404.1525(c)(2) and 
416.925(c)(2). Sections 404.1508 and 416.908 of our regulations provide 
that an individual must show an impairment that results from 
anatomical, physiological, or psychological abnormalities which can be 
shown by medically acceptable clinical and laboratory diagnostic 
techniques, and that an impairment ``must be established by medical 
evidence consisting of signs, symptoms, and laboratory findings.''
    Comment: The same commenter also did not support our proposal to 
delete the word ``medical'' from the phrase ``medical opinion'' in the 
last sentence of prior Sec. Sec.  404.1526(b) and 416.926(b) (proposed 
and final Sec. Sec.  404.1526(c) and 416.926(c)). The commenter said 
that opinions from medical or psychological consultants designated by 
the Commissioner ``would obviously be medical opinions.'' (Emphasis in 
original.)
    Response: We did not adopt the comment because it is not correct 
under our regulatory definition of the term ``medical opinion.'' As we 
explained in the preamble to the NPRM (70 FR at 35190), ``[u]nder 
Sec. Sec.  404.1527(a) and 416.927(a) of our regulations, the term 
`medical opinion' has a specific meaning that does not include opinions 
about medical equivalence.'' Sections 404.1527(a)(2) and 416.927(a)(2) 
of our regulations define ``medical opinions'' as ``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.'' The 
term ``medical opinion'' is different from the term ``medical source 
opinions on issues reserved to the Commissioner,'' which we define in 
Sec. Sec.  404.1527(e) and 416.927(e) of our regulations. In those 
sections, we explain that opinions on some issues are not ``medical 
opinions,'' and we follow with examples of such opinions. In Sec. Sec.  
404.1527(e)(2) and 416.927(e)(2), we explain that opinions from medical 
sources about whether an impairment(s) meets or medically equals the 
requirements of a listing are ``opinions on issues reserved to the 
Commissioner.''
    Comment: The same commenter also recommended editorial changes. The 
commenter recommended that we add the word ``medical'' before the words 
``history'' and ``signs'' in proposed Sec. Sec.  404.1529(c)(1) and 
(c)(4) and 416.929(c)(1) and (c)(4). The commenter also recommended 
that instead of using the term ``nontreating source'' throughout 
Sec. Sec.  404.1529 and 416.929 we use the phrase ``others who have 
examined but not treated you.'' Finally, the commenter suggested that 
we add a sentence to indicate that we will consider information from 
the individual and from others who can provide information about the 
individual's medical condition.
    Response: We did not adopt the comments. The reason we proposed to 
delete the word ``medical'' before the words ``history'' and ``sign'' 
in Sec. Sec.  404.1529(c)(1) and (c)(4) and 416.929(c)(1) and (c)(4) is 
that it did not add anything meaningful to the prior regulations and 
could have been misinterpreted. Although we do not define the phrase 
``medical history'' in our regulations, we do define the term 
``complete medical history'' in Sec. Sec.  404.1512(d) and 416.912(d). 
In those rules, we define the term as meaning ``records of your medical 
source(s) covering at least the 12 months preceding the month in which 
you file your application'' or preceding other dates in certain special 
situations we describe in the rules. Since we do not intend to restrict 
the meaning of the word ``history'' only to records from medical 
sources, we believe that it is important to delete the word in 
Sec. Sec.  404.1529(c) and 416.929(c) to avoid any confusion with the 
term ``complete medical history.''
    The reason we proposed to delete the word ``medical'' from before 
the word ``signs'' is that it was redundant. We define the term 
``signs'' in Sec. Sec.  404.1528(b) and 416.928(b) of our regulations 
as ``anatomical, physiological, or psychological abnormalities which 
can be observed, apart from your statements (symptoms)'' and explain 
that ``signs'' must be shown by ``medically acceptable clinical 
diagnostic techniques.'' Therefore, under our definition ``signs'' are 
always ``medical.''
    There are two reasons that we did not adopt the recommendation to 
replace our proposed references to the term ``nontreating source'' with 
the phrase ``others who have examined but not treated you.'' First, the 
sentence proposed by the commenter was not an accurate paraphrase of 
our definition of ``nontreating source'' in Sec. Sec.  404.1502 and 
416.902 of our regulations. Under our regulations, a ``nontreating 
source'' may have provided treatment to the individual. Our regulations 
specify that a nontreating source is an acceptable medical source who 
``does not have, or did not have, an ongoing treatment relationship'' 
with the individual. (Emphasis supplied.) This does not necessarily 
mean that the source provided no treatment; for example, an acceptable 
medical source who treats an individual one time in an emergency room 
is a ``nontreating source'' under our rules even though the source has 
provided some treatment. Second, and as we explained in the preamble to 
the NPRM (70 FR at 35193), we proposed to use the phrase ``nontreating 
source'' throughout Sec. Sec.  404.1529 and 416.929 so that it would 
match our use of the term in other disability rules. If we replaced it 
with another phrase, it would not be consistent with those other rules.
    Finally, we did not add the sentence suggested by the commenter 
that would provide that we consider evidence from the individual and 
others. The commenter did not indicate where the additional sentence 
should go, but in the context of the commenter's letter it appears that 
the commenter was suggesting that we add it to Sec. Sec.  404.1529 and 
416.929, our regulations that explain how we consider symptoms, such as 
pain. We did not adopt the comment because we already explain 
throughout those regulations that we consider all evidence relevant to 
our consideration of a person's symptoms, which can include evidence 
from the individual and from others who can

[[Page 10426]]

provide information about the individual's condition.
    Comment: Another commenter indicated concerns about our policy of 
medical equivalence. The commenter believed that we should not review 
unlisted impairments under our listings because approvals ``necessarily 
end up based on ailments the claimant does not have and therefore 
cannot demonstrate as still existing upon review.'' The commenter 
believed that the policy of medical equivalence does not ``contribute 
to [an] accurate, money saving and streamlined approval process.''
    The commenter was also concerned that it is more difficult for 
people with unlisted impairments and combinations of impairments to be 
approved. The commenter suggested that we update our listings to 
include new illnesses that are currently being approved under the 
present impairment listings and provide a listing for people who have a 
combination of impairments.
    The commenter also said that it is difficult for beneficiaries to 
determine which doctor visits to put down on our forms when we do a 
continuing disability review if they do not know which impairments we 
considered when we found them disabled. The commenter believed that on 
review it would be necessary to change our records regarding an 
individual's impairments and that there is a chance of losing benefits 
because of this. Finally, the commenter made a number of comments that 
were relevant to another NPRM, ``Administrative Review Process for 
Adjudicating Initial Disability Claims,'' 70 FR 43589 (July 25, 2005).
    Response: These final rules only clarify our longstanding policies 
for determining medical equivalence to listings. As long as the 
listings do not include every disabling impairment or combination of 
impairments that a person might have, we will still need the policy of 
medical equivalence to ensure that we allow individuals who should be 
allowed as early in our process as possible. It is often easier, 
faster, and less costly to find individuals disabled based on medical 
equivalence than to proceed to consider disability based on assessment 
of their residual functional capacity and their age, education, and 
previous work experience.
    Under our policy of medical equivalence we do find individuals to 
be disabled based on the impairments they have even if the impairment 
is unlisted or there is a combination of impairments. We compare an 
individual's impairment or combination of impairments with a closely 
analogous listing for purposes of establishing the severity of the 
impairment(s). For example, we may find that an individual's migraine 
headaches (an unlisted impairment) are medically equivalent in severity 
to listing 11.03, a seizure disorder listing that is the most closely 
analogous listing we have for comparison. When we do, we find that the 
individual is disabled from migraine headaches that are equally as 
severe as the seizures described in listing 11.03; we code the 
individual's impairment in our computer system as migraine headaches, 
not seizures, and we show in the individual's case record that we found 
disability based on migraine headaches. Even when we do not have a 
specific code for an individual's particular medical impairment, we 
still show the medical impairment(s) we considered--not the impairment 
in the listing we used for comparison--in the individual's case record. 
Therefore, beneficiaries should not be concerned about there being a 
need to change our records to reflect a ``true diagnosis'' in order to 
avoid losing benefits. Also, we do not find individuals disabled based 
only on their diagnoses; rather, we consider the severity of their 
impairments.
    Under our regulations for considering whether a beneficiary 
continues to be disabled, we must review the individual's case record 
and consider all of the impairments the individual had at the time we 
last found disability, including those that were not the basis for our 
last finding of disability. If necessary, we also consider new 
impairments the individual has developed since the last time we found 
him or her disabled. See Sec. Sec.  404.1594, 416.994, and 416.994a of 
our regulations. Under these regulations, we generally must show that 
there has been medical improvement in the individual's original medical 
impairment(s). If there is, we must also consider all of the 
individual's current impairments before we can determine that the 
individual is no longer disabled. Therefore, when we review the 
continuing disability of beneficiaries, we ask them to provide us with 
information about all of their medical conditions since the last time 
we found them disabled and the names of all of the doctors and other 
treatment sources they have. Individuals should not choose which of 
their doctor visits to tell us about, but should report all of their 
medical history to us.
    As we revise the listings, we are trying to make them more 
inclusive. For example, we revised the musculoskeletal listings in 2001 
to place less emphasis on diagnosis and more on functional outcomes 
than we had in the past. Instead of listing specific diagnoses, we 
generally list categories of impairments; for example, ``major 
dysfunction of a joint(s)'' for any medical reason (see listings 1.02 
and 101.02). More recently, we published revisions to the skin listings 
that also use categories of skin disorders instead of specific 
diagnoses (see sections 7.00 and 107.00 of our listings). By revising 
the listings in this way, we allow more people to show that their 
impairments are included in the listings. We also believe that more 
people, especially people with combinations of impairments, can show 
that their impairments medically equal listings when listings include 
these kinds of criteria. Again, our emphasis is less on the specific 
medical conditions the individuals have and more on the specific 
effects the impairments have on their ability to work (or in the case 
of a child, to function compared to other children the same age who do 
not have impairments).
    The comments that were relevant to the other NPRM cited above were 
outside the scope of this rulemaking. They are included with the public 
comments for that NPRM and we will address them when we issue final 
rules in connection with that NPRM.
    Comment: The last commenter's letter first noted that

    * * * at least some of the listings can be broken down into (a) 
cause[s] and (b) effects. That is to say, someone will `meet' the 
listings if they have the listed cause(s) and the listed effects.

The commenter asked whether the causes and effects are both 
``findings'' and if not, why not. The commenter further said that 
``[t]he proposed regulations appear[ed] to emphasize cause over 
effects,'' that this would ``require assessments which are both 
subjective [and] arbitrary,'' and that ``[a]s long as a `severe' 
cause(s) [is] present, it is the effects of the cause(s) that render 
someone disabled.'' (Emphasis in original.) The commenter provided an 
example of one individual who was blinded by a cannon firing buckshot 
and who sustained significant ``collateral damage'' and a second 
individual who was blinded by a BB gun. He concluded: ``Perhaps we 
should pay most of our attention to the effects. * * * If they are both 
blind, then they are both blind.''
    On the other hand, the commenter also suggested that our 
``regulations should re-direct [our] focus to both (a) `severe' 
cause(s), and (b) the listed `severe' effects.'' (Emphasis in 
original.)

[[Page 10427]]

The commenter did not elaborate on this observation.
    Response: We did not make any changes in the final rules in 
response to this comment, in part because the comment was not clear to 
us. We believe the commenter was referring primarily to the language in 
proposed (now final) Sec. Sec.  404.1526(b)(2) and (b)(3) and 
416.926(b)(2) and (b)(3) that explained that we compare the 
``findings'' related to an individual's impairment(s) to the findings 
of a listing. (The word ``findings'' also appears in Sec. Sec.  
404.1526(b)(1) and 416.926(b)(1), but in that context the claimant has 
the listed impairment, and it would not appear to be relevant to this 
comment.) It appears that the commenter believed that there are 
listings that consider the cause of the individual's medically 
determinable impairment(s), and that in some cases the cause of an 
individual's impairment would not be as severe as the cause of the 
impairment we include in the listing we are using for comparison; using 
the commenter's example, being shot with a cannon as compared to being 
shot with a BB gun, even though both result in blindness.
    The commenter's observations and example were erroneous for two 
reasons. First, the listings do not include findings about how an 
individual specifically acquires an impairment. The listings use 
symptoms, signs, and laboratory findings to describe medical conditions 
(that is, what we call ``impairments'') and do not specify that 
individuals must demonstrate how they acquired their impairments. Even 
in listings such as listings 12.05 and 112.05, which specify that the 
impairment must have been present since before age 22, or listings 
12.02 and 112.02, which specify that there must be an organic basis for 
the required dysfunction of the brain, there is no requirement to 
specify particular causes of particular severity for these impairments. 
The findings in our listings establish only that the impairments exist 
and how serious they are.
    Second, an impairment(s) that medically equals a listing cannot by 
definition be objectively less serious than a listed impairment. The 
nature of the impairment cannot be separated from the severity 
criteria; for example, a dysthymic disorder (an unlisted impairment) 
that medically equals listing 12.04A1, major depressive disorder, 
because it results in ``marked'' limitations of functioning in two of 
the areas described in paragraph 12.04B is by definition as medically 
severe as a major depressive disorder. The test of medical equivalence 
is whether the totality of the individual's findings are equivalent in 
severity to the totality of the findings in the listing we use for 
comparison.
    It should also be noted that most of our current listings are not 
diagnosis-specific, but more categorical. For example, as we have 
already noted in response to the first commenter's letter, most of our 
musculoskeletal listings describe categories of musculoskeletal 
problems regardless of their cause, instead of specific diagnoses; for 
example, major dysfunction of major peripheral joints or disorders of 
the spine. The same can be said for many other listings in other body 
systems, including our listings for blindness. Therefore, the question 
whether the ``cause'' of an individual's impairment is less serious 
than the ``cause'' of a listed impairment could not arise in such 
listings since the emphasis is on the comparison of the ``effects.''
    The proposed (now final) rules explaining how an individual's 
impairment(s) medically equals a listing for the most part repeated 
language that has been in our regulations and other instructions for 
many years. They did not emphasize ``cause'' over ``effects'' but 
merely indicated that an individual must have findings of equivalent 
severity to findings in a given listing. If anything, our deletion of 
references to ``medical'' evidence in the proposed rules and these 
final rules emphasized the predominant importance of the ``effects'' of 
impairments over their causes.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules meet the criteria for a significant 
regulatory action under Executive Order 12866, as amended by Executive 
Order 13258. Thus, they were reviewed by OMB.

Regulatory Flexibility Act

    We certify that these rules will not have a significant economic 
impact on a substantial number of small entities because they affect 
only individuals. Thus, a regulatory flexibility analysis as provided 
in the Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) of 1995 says that no persons are 
required to respond to a collection of information unless it displays a 
valid OMB control number. In accordance with the PRA, SSA is providing 
notice that the Office of Management and Budget has approved the 
information collection requirements contained in sections 404.918(d) 
and 416.1418(d) of these final rules. The OMB Control Number for this 
collection is 0960-0709, expiring October 31, 2008.